B-164494, AUG. 28, 1968

B-164494, AUG. 28, 1968

TO DANCO INSTRUMENTS, INC.:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE ACTION OF THE FOREST SUPERVISOR, ASHLEY NATIONAL FOREST, VERNAL, UTAH, IN REJECTING YOUR LOW BID SUBMITTED IN RESPONSE TO DEPARTMENT OF AGRICULTURE INVITATION FOR BIDS NO. 01-1-68.

THE INVITATION, ISSUED ON MARCH 15, 1968, REQUESTED BIDS FOR FURNISHING 50 CHANNEL MARKING BUOYS WITH AUTOMATIC FLASHING MARKER LIGHT AND SOLAR SWITCH, SIMILAR TO AUTOMATIC POWER, INC., MODEL BA-323 MOLDED FIBERGLASS BUOY OR EQUAL. THE SPECIFICATIONS SET FORTH THE SALIENT FEATURES OF THE BUOY ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. IN ADDITION, THE INVITATION UNDER A CLAUSE ENTITLED "BRAND NAMES," PROVIDED, IN PERTINENT PART AS FOLLOWS: "/A) IF ARTICLES HAVE BEEN IDENTIFIED IN THIS INVITATION BY A -BRAND NAME OR EQUAL- DESCRIPTION, SUCH REFERENCE IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS FOR THE SOLE PURPOSE OF INDICATING TO PROSPECTIVE BIDDERS A DESCRIPTION OF ARTICLES THAT WILL BE SATISFACTORY. BIDDERS ARE NOT EXPECTED TO FURNISH EXACT DUPLICATES BUT ONLY ARTICLES WHICH ARE EQUAL, INSOFAR AS THE GOVERNMENT'S NEEDS ARE CONCERNED, TO THE REFERENCED BRAND NAME ARTICLES. BIDS OFFERING ARTICLES OTHER THAN BRAND NAME ARTICLES REFERENCED IN THIS INVITATION WILL BE CONSIDERED ONLY IF SUCH OFFERED ARTICLES ARE CLEARLY IDENTIFIED IN THE BIDS AND BIDDERS FURNISH WITH THEIR BIDS (1) DESCRIPTIVE MATERIAL INCLUDING CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER GRAPHIC MATERIAL, WHICH WILL CLEARLY SHOW THE CHARACTERISTICS OF THE ARTICLES OFFERED, AND (2) A STATEMENT SHOWING IN DETAIL THE DIFFERENCES BETWEEN THE ARTICLES OFFERED AND THOSE REFERENCED IN THE INVITATION. FAILURE TO FURNISH THE INFORMATION REQUIRED BY (1) AND (2) ABOVE WILL REQUIRE REJECTION OF THE BIDS.' ALSO, THE INVITATION UNDER A CLAUSE ENTITLED "SCOPE" ADVISED PROSPECTIVE BIDDERS AS FOLLOWS: "THE GOVERNMENT DESIRES TO PURCHASE 50 EACH CHANNEL MARKING BUOYS WITH AUTOMATIC FLASHING MARKER LIGHT WITH SOLAR SWITCH, AND ALSO TWO INFORMATIONAL SQUARES IN ACCORDANCE WITH THE ATTACHED SPECIFICATIONS. DIMENSIONS, SIZE, ETC. ARE IN ALL CASES APPROXIMATE, AND BIDDERS MAY OFFER THEIR NEAREST STOCK EQUIVALENT.'

FOUR BIDS WERE RECEIVED AND OPENED ON APRIL 15, 1968. YOUR FIRM OFFERED TO FURNISH YOUR DANCO MODEL C1S MARKING BUOY AT A UNIT PRICE OF $79. THE NEXT LOWEST BIDDER, ARBEN MARINE PRODUCTS, C., OFFERED TO FURNISH ITS MODEL SL-1840 MARKING BUOY AT A PRICE OF $98.85 EACH. THE TWO OTHER BIDDERS QUOTED UNIT PRICES OF $111.85 AND $149 FOR THE BUOYS. YOUR LOW BID WAS REJECTED AS NONRESPONSIVE BECAUSE THE ITEMS OFFERED BY YOUR FIRM DID NOT MEET THE SPECIFICATION REQUIREMENTS OF THE INVITATION AS TO WEIGHT, MATERIAL, OR SHAPE. ON MAY 13, 1968, A CONTRACT FOR FURNISHING THE BUOYS WAS AWARDED TO ARBEN MARINE PRODUCTS, INC., AS THE LOW RESPONSIVE BIDDER. THE CONTRACT PROVIDED FOR DELIVERY OF THE BUOYS WITHIN 90 DAYS.

THE CONTRACTING OFFICER HAS REPORTED YOUR ITEM'S DEVIATIONS FROM THE SPECIFICATIONS AS FOLLOWS: "AFTER CONSULTATION WITH THE RECREATION FORESTERS AT THE SUPERVISOR'S OFFICE AND THE MANILA RANGER DISTRICT, AND AFTER REVIEWING THE DANCO MODEL SPECIFICATIONS, I HAVE DETERMINED THAT THE DANCO BUOY, WHILE UNDOUBTEDLY A GOOD PRODUCT, DOES NOT MEET THE ADVERTISED SPECIFICATIONS SET FORTH IN ASHLEY IFB NO. 01-1-68. "1. WEIGHT THE IFB SPECIFICATIONS CALL FOR A BUOY WEIGHING APPROXIMATELY 70 POUNDS, OVERALL DISPLACEMENT WITH COUNTERWEIGHT TO BE APPROXIMATELY 113 POUNDS. THE DANCO MODEL HAS AN OVERALL WEIGHT OF APPROXIMATELY 40 POUNDS, INCLUDING THE COUNTERWEIGHT. ,2. SHELL FABRICATION THE IFB CALLED FOR 1/8 INCH MOLDED POLYESTER/FIBER GLASS SHELL. THE DANCO MODEL HAS A NYLON CLOTH COVERING. "3. SHAPE WE INDICATED A CYLINDRICAL SHAPE IN THE IFB DRAWING. WHILE WE REALIZE THE DANCO RECTANGULAR MODEL IS QUITE DURABLE AND VISIBLE, WE PREFER THE MODIFIED CYLINDRICAL DESIGN WE CALLED FOR.'

IN A MEMORANDUM DATED JULY 24, 1968, THE FOREST SERVICE STATES THAT THE MINIMUM REQUIREMENTS FOR THE INVITATION WERE DETERMINED BY ITS LIMITED KNOWLEDGE OF SIMILAR BUOYS ON THE MARKET AND OF THE BUOYS CURRENTLY BEING USED ON THE FLAMING GORGE RESERVOIR; THAT THE NATIONAL PARK SERVICE HAS ADMINISTRATION OF THE NORTH END OF THE RESERVOIR AND THAT THE SERVICE CURRENTLY HAS THE AUTOMATIC POWER, INC. MODEL BA-323 MOLDED FIBERGLASS BUOYS IN USE IN THAT AREA; AND THAT THE DETERMINATION OF THE FOREST SERVICE TO PURCHASE SIMILAR UNITS AS SPECIFIED ON PAGE 5 OF THE CONTRACT WAS TO OBTAIN UNIFORMITY OF THE BUOYS ON THE ENTIRE RESERVOIR. THE RECORD INDICATES THAT THE UNITED STATES COAST GUARD HAS AGREED WITH THE FOREST SERVICE THAT COMMONALITY OF SHAPE AND TYPE OF NAVIGATIONAL AND SAFETY AIDS WITHIN ANY WATERWAY IS ESSENTIAL TO REDUCE CONFUSION ON THE PART OF USERS AND TO INSURE THE MAXIMUM EFFECTIVENESS OF THOSE DEVICES.

PARAGRAPH 1-1.307-7 (A) FPR (FPR) PROVIDES AS FOLLOWS:

"/A) BIDS OFFERING PRODUCTS WHICH DIFFER FROM BRAND NAME PRODUCTS REFERENCED IN A -BRAND NAME OR EQUAL- PURCHASE DESCRIPTION SHALL BE CONSIDERED FOR AWARD WHERE THE CONTRACTING OFFICER DETERMINES IN ACCORDANCE WITH THE TERMS OF THE CLAUSE IN 1-1.307-6 (A) (2) THAT THE OFFERED PRODUCTS ARE EQUAL IN ALL MATERIAL RESPECTS TO THE PRODUCTS REFERENCED. BIDS SHALL NOT BE REJECTED BECAUSE OF MINOR DIFFERENCES IN DESIGN, CONSTRUCTION, OR FEATURES WHICH DO NOT AFFECT THE SUITABILITY OF THE PRODUCTS FOR THEIR INTENDED USE.'

WHILE A "BRAND NAME" DESIGNATION IS INTENDED TO BE DESCRIPTIVE AND MUST BE SO INTERPRETED, SPECIFICATIONS SPELLING OUT ESSENTIAL CHARACTERISTICS TO MEET THE NEEDS OF THE GOVERNMENT MUST BE STRICTLY MET. FPR 1-1-307-4 (G). SEE ALSO 45 COMP. GEN. 312, 316. ON THE FACTS OF RECORD, IT IS OUR VIEW THAT THE BID SUBMITTED BY YOUR FIRM WAS NOT RESPONSIVE TO THE INVITATION FOR BIDS IN THAT IT FAILED TO INDICATE THAT IT WOULD MEET ALL THE SALIENT REQUIREMENTS OF THE BRAND NAME ITEM AS SET FORTH IN THE INVITATION DESCRIPTION.

THE DRAFTING OF SPECIFICATIONS FOR MATERIALS OR SERVICES TO BE PURCHASED FOR GOVERNMENT USE IS THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCIES AND A DETERMINATION AS TO THEIR NEEDS WILL NOT BE QUESTIONED UNLESS OBVIOUSLY ARBITRARY OR UNREASONABLE. 17 COMP. GEN. 554; 38 ID. 190. TO THIS PROCUREMENT, WE FIND NO ADEQUATE BASIS FOR HOLDING THAT THE SPECIFICATIONS WERE NOT BASED UPON A BONA FIDE DETERMINATION OF THE NEEDS OF THE DEPARTMENT OF AGRICULTURE. THE EXERCISE OF SUCH DETERMINATION IS VESTED IN THE PROCUREMENT OFFICIALS INVOLVED IN EACH CASE AND, IN THE ABSENCE OF BAD FAITH, IS NOT SUBJECT TO OBJECTION BY OUR OFFICE. CLEARLY, IN THE ORDERLY CONDUCT OF ITS BUSINESS THE GOVERNMENT MAY NOT BE PLACED IN THE POSITION OF HAVING TO SHARE SUCH DISCRETIONARY AUTHORITY WITH ONE OF ITS POTENTIAL SUPPLIERS OR BE PLACED IN A POSITION OF PERMITTING BIDDERS TO DICTATE SPECIFICATIONS TAILORED TO THEIR PRODUCTS. ALSO, THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED. B-136766, NOVEMBER 19, 1958; 36 COMP. GEN. 251. WHILE THE LAW CONTEMPLATES FAIR AND UNRESTRICTED COMPETITION, THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE REQUIREMENTS OF AN INVITATION IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. 30 COMP. GEN. 368; B- 142595, JULY 25, 1960.

IN VIEW OF THE INFORMATION SUBMITTED BY THE CONTRACTING AGENCY DEMONSTRATING THAT THERE EXISTED A BONA FIDE NEED FOR THE TYPE OF MARKING BUOY DESCRIBED IN THE INVITATION, WE FIND NO BASIS TO OBJECT TO THE ADMINISTRATIVE POSITION IN THIS MATTER.