B-165409, DECEMBER 26, 1968, 48 COMP. GEN. 441

B-165409, DECEMBER 26, 1968, 48 COMP. GEN. 441

CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE - SALIENT CHARACTERISTICS AN INVITATION FOR AN ARGON LASER WITH CERAMIC DISCHARGE TUBE, CARSON MODEL SP-300 OR EQUAL THAT FAILED TO INDICATE WHETHER ALL OR SOME OF THE SPECIFICATION DETAILS WERE SALIENT FEATURES OR CHARACTERISTICS ESSENTIAL TO THE NEEDS OF THE GOVERNMENT IS A DEFECTIVE INVITATION THAT PROVIDED NO BASIS FOR THE DETERMINATION MADE UNDER PARAGRAPH 1-1206.4 OF THE ARMED SERVICES PROCUREMENT REGULATION TO THE EFFECT THAT THE DEVIATIONS IN THE SUCCESSFUL BID WHICH FAILED TO COMPLY WITH IMPORTANT ASPECTS OF THE INVITATION WERE MINOR OR INCONSEQUENTIAL, AND DETERRED THE BRAND NAME MANUFACTURER FROM OFFERING A LOWER PRICED "OR EQUAL" ITEM. IN FUTURE PROCUREMENTS UTILIZING BRAND NAME OR EQUAL DESCRIPTIONS, ACTUAL NEEDS SHOULD BE DETERMINED IN ADVANCE AND ONLY THOSE NEEDS SET FORTH AS SALIENT CHARACTERISTICS IN APPROPRIATE TERMS IN THE INVITATION.

TO THE SECRETARY OF THE AIR FORCE, DECEMBER 26, 1968:

REFERENCE IS MADE TO CORRESPONDENCE DATED OCTOBER 7, 1968, FROM THE ATTORNEY FOR CARSON LABORATORIES, INC., REQUESTING THAT OUR OFFICE RECONSIDER THE DENIAL BY THE DEPARTMENT OF THE AIR FORCE OF ITS PROTEST AGAINST THE AWARD OF A CONTRACT TO HUGHES ELECTRON DYNAMICS DIVISION, HUGHES AIRCRAFT COMPANY, UNDER INVITATION FOR BIDS NO. F19617-68-B 0040, ISSUED BY THE BASE PROCUREMENT DIVISION, WESTOVER AIR FORCE BASE, MASSACHUSETTS. THIS PROTEST WAS THE SUBJECT OF A REPORT DATED NOVEMBER 6, 1968, FROM THE DEPUTY CHIEF, PROCUREMENT OPERATIONS, DIVISION, DIRECTORATE, PROCUREMENT POLICY, DEPUTY CHIEF OF STAFF, SYSTEMS AND LOGISTICS.

THE INVITATION DATED APRIL 18, 1968, REQUESTED BIDS FOR THE FURNISHING OF ONE ARGON LASER WITH CERAMIC DISCHARGE TUBE, CARSON MODEL SP-300 OR EQUAL. IN ADDITION, THE INVITATION LISTED CERTAIN TECHNICAL SPECIFICATIONS WHICH THE LASER HAD TO MEET TO BE "EQUAL" TO THE BRAND NAME ITEM. THE INVITATION CONTAINED THE CLAUSE REQUIRED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1206.3 INFORMING BIDDERS THAT THE "BRAND NAME OR EQUAL" DESCRIPTION WAS INTENDED TO BE DESCRIPTIVE BUT NOT RESTRICTIVE, AND WAS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WOULD BE SATISFACTORY, AND THAT BIDS OFFERING "EQUAL" PRODUCTS WOULD BE CONSIDERED IF IT WAS DETERMINED THAT SUCH PRODUCTS WERE EQUAL IN ALL "MATERIAL" RESPECTS TO THE REFERENCED BRAND NAME PRODUCT.

FOUR BIDS WERE RECEIVED AND OPENED ON MAY 28, 1968. THE BIDS WERE IN THE FOLLOWING AMOUNTS:

HUGHES ELECTRON DYNAMICS DIVISION (HUGHES) 21,750

HUGHES ELECTRON DYNAMICS DIVISION 21,750

(HUGHES)

SPECTRA-PHYSICS, INC. 25,050

CARSON LABORATORIES, INC. 26,660

(CARSON)

THE RECORD BEFORE US INDICATES THAT THE LOW BID OF COHERENT RADIATION LABORATORIES WAS OFFERED ON AN "OR EQUAL" BASIS AND WAS RESPECTED SINCE IT FAILED TO MEET THE SIZE, WEIGHT AND MOUNTING REQUIREMENTS OF THE INVITATION. HUGHES OFFERED TO FURNISH ITS MODEL NO. 3055H AS EQUAL TO THE CARSON MODEL SP-300 REFERENCED IN THE INVITATION. HUGHES FURNISHED DESCRIPTIVE LITERATURE WITH ITS BID ON ITS MODEL NO. 3055H. AIR FORCE TECHNICAL PERSONNEL AND THE CONTRACTING OFFICER DETERMINED THAT THE HUGHES "OR EQUAL" BID WAS ACCEPTABLE UNDER THE SPECIFICATIONS AND ASPR 1-1206.4. SUBPARAGRAPH (A) OF THAT SECTION PROVIDES:

(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 1-1206.3 (B) 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.

HOWEVER, BEFORE AN AWARD WAS MADE, CARSON IN ITS LETTER OF JUNE 19, 1968, TO THE CONTRACTING OFFICER, PROTESTED THE AWARD OF A CONTRACT TO ANY BIDDER UNTIL SUCH TIME AS ALL THE DESIRED AND ALLOWABLE ALTERNATE SPECIFICATIONS CONCERNED IN THIS INVITATION HAVE BEEN OFFERED TO ALL THE BIDDERS. CARSON STATED THAT THE "LOW ACCEPTABLE BID" WAS IN FACT AN ALTERNATE OR SUBSTITUTE BID WHICH SUBSTANTIALLY DEVIATED FROM THE SPECIFICATIONS IN THE INVITATION AND SHOULD BE REJECTED. CARSON REQUESTED THAT THE INVITATION BE REISSUED WITH THE TECHNICALLY ACCEPTABLE ALTERNATE SPECIFICATIONS IN ORDER THAT THE GOVERNMENT MAY OBTAIN THE LEAST EXPENSIVE LASER AVAILABLE THAT MEETS TECHNICAL REQUIREMENTS.

BY LETTER DATED JUNE 28, 1968, THE CONTRACTING OFFICER ADVISED CARSON THAT ITS REFERENCE TO HUGHES "ALTERNATE BID" WAS NOT APPLICABLE AS THE LOW RESPONSIVE BID WAS NOT AN ALTERNATE BUT AN EQUIVALENT PRODUCT WITHOUT A SUBSTANTIAL DEVIATION; THAT IS, THE "MINOR VARIATION IS INSIGNIFICANT AND DOES NOT ALTER THE MATERIAL RESPECTS OF EQUALITY.' THE CONTRACTING OFFICER STATED THAT AN EVALUATION WAS OBTAINED WHICH FULLY SUPPORTED HIS DETERMINATION THAT ALL ESSENTIAL CHARACTERICTICS OF THE INVITATION WERE MET BY HUGHES. ACCORDINGLY, CARSON WAS ADVISED THAT ITS PROTEST MUST BE DENIED. ON THE SAME DAY, AN AWARD IN THE AMOUNT OF $21,750 WAS MADE TO HUGHES.

THE ATTORNEY FOR CARSON FILED A PROTEST WITH THE PROCURING ACTIVITY BY LETTER DATED JULY 12, 1968, STATING THAT THE LASER ON WHICH THE HUGHES BID WAS BASED FAILED TO COMPLY WITH THE REQUIREMENTS OF THE SPECIFICATION IN SEVERAL IMPORTANT ASPECTS. FOR EXAMPLE, THE DISCHARGE TUBE OF THE HUGHES LASER IS METALLIC RATHER THAN CERAMIC, AND THE LENGTH EXCEEDS THE MAXIMUM DIMENSIONS STATED IN THE SPECIFICATION. THE PROTEST OF CARSON WAS SUBMITTED TO THE AIR FORCE LOGISTICS COMMAND (AFLC) FOR ITS DECISION. THAT COMMAND DENIED THE PROTEST STATING THAT THE TECHNICAL EVALUATION INDICATES THAT THE METALLIC DISCHARGE TUBE AND SLIGHT DIFFERENCE IN DIMENSION ARE SUCH MINOR DEVIATIONS AS NOT TO AFFECT THE SUITABILITY OF THE ITEM FOR ITS INTENDED USE AND THAT THE METALLIC DISCHARGE TUBE AND OVERALL DIMENSIONS OF THE LASER HEAD ARE ADEQUATE TO MEET THE REQUIREMENTS OF THE GOVERNMENT (CITING ASPR 1 1206.4 (A) AND B-153499 OF AUGUST 24, 1964). BY LETTER OF AUGUST 27,1968, THE CONTRACTING OFFICER ADVISED CARSON OF THIS DENIAL. APPROXIMATELY 2 MONTHS OF THE 3-MONTH DELIVERY SCHEDULE HAD ELAPSED AT THAT TIME. SUBSEQUENTLY, CARSON PROTESTED THIS MATTER TO HEADQUARTERS UNITED STATES AIR FORCE, AND BY LETTER DATED SEPTEMBER 23, 1968, CARSON WAS ADVISED OF THE CONCURRENCE IN THE DECISION OF AFLC DENYING THE PROTEST.

AS OF OCTOBER 25, 1968, AFLC ADVISED THAT DELIVERY OF THE EQUIPMENT WAS ANTICIPATED DURING THE FOLLOWING WEEK. UNDER THE ABOVE CIRCUMSTANCES, HEADQUARTERS UNITED STATES AIR FORCES REAFFIRMED ITS CONCURRENCE IN THE DECISION DENYING THE PROTEST OF CARSON.

UPON REVIEW OF THIS PROCUREMENT, WE HAVE CONCLUDED THAT THE INVITATION WAS DEFECTIVE AND THAT NO AWARD SHOULD HAVE BEEN MADE UNDER THE INVITATION. HOWEVER, CONSIDERING THAT DELIVERY WAS TO BE MADE WITHIN 90 DAYS AND THAT THE AWARD WAS MADE ON JUNE 28, 1968, CORRECTIVE ACTION IS NOT POSSIBLE AT THIS TIME. OUR CONSIDERATION OF THE PROTEST IS SET OUT BELOW FOR THE FUTURE GUIDANCE OF PROCUREMENT OFFICIALS.

ASPR 1-1206.2 (B) PROVIDES THAT "BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS SHOULD SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCTS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. ASPR 1-1206.2 (C) PROVIDES THAT WHEN NECESSARY TO DESCRIBE ADEQUATELY THE ITEM REQUIRED, AN APPLICABLE COMMERCIAL CATALOG DESCRIPTION, OR PERTINENT EXTRACTS THEREFROM, MAY BE USED IF SUCH DESCRIPTION IS IDENTIFIED IN THE INVITATION FOR BIDS AS BEING THAT OF THE PARTICULAR NAMED MANUFACTURER, PRODUCER, OR DISTRIBUTOR.

THE INVITATION SPECIFICATIONS PROVIDED, IN PERTINENT PART, AS FOLLOWS:

SPECIFICATIONS OUTPUT POWER--- 3 WATTS, CW, TEMOO, ALL WAVELENGTHS MAJOR WAVELENGTHS--- 4800 A AT 1.2 WATTS,

5145 A AT 1.2 WATTS BEAM POLARIZATION--- SINGLE TRANSVERSE MODE, LINEARLY POLARIZED BEAM DIAMETER--- 1.5 MM AT HALF POWER POINTS BEAM DIVERGENCY--- APPROX. 0.5 MILLIRADIANS MIRROR CONFIGURATION--- LONG RADIUS BEAM RIPPLE- -- .1 PERCENT (360HZ) BEAM NOISE--- LESS THAN 1 PERCENT (10-100HZ) STABILITY--- 1 PERCENT COOLING--- INTEGRAL LIQUID TO LIQUID HEAT--- EXCHANGER SIZE--- MAXIMUM 41 INCHES LONG X 12 INCHES WIDE X 12 INCHES HIGH (1M HEAD) WEIGHT (LASER HEAD/--- APPROX. 60 LBS.MOUNTING--- VERTICAL IMPUT POWER--- 3 PHASE/220V AT 10 KW

* * * * * * * NOTE: CATALOG CUTS AND/OR SPECIFICATIONS INCLUDING DEVIATIONS MUST ACCOMPANY BIDS, AND FAILURE TO FURNISH SUCH CATALOG CUTS AND/OR SPECIFICATIONS MAY BE CAUSE FOR DISQUALIFICATION OF THE BID.

THE INVITATION FAILED TO INDICATE WHETHER ALL OR SOME OF THE SPECIFICATION DETAILS LISTED ABOVE WERE SALIENT FEATURES OR CHARACTERISTICS WHICH WERE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. HOWEVER, THE RECORD BEFORE US INDICATES THAT COMPLETE DETAILED SPECIFICATIONS OF THE CARSON MODEL WERE USED WHICH INCLUDED CHARACTERISTICS WHICH WERE FOUND IN THE EVALUATION OF BIDS TO BE NOT ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. IN OUR DECISION B-157857, JANUARY 26, 1966, OUR OFFICE CONSIDERED A CASE WHERE A BRAND NAME OR EQUAL PURCHASE DESCRIPTION DID NOT INCLUDE ALL THE CHARACTERISTICS OF THE BRAND NAME ITEM WHICH WERE CONSIDERED ESSENTIAL TO THE GOVERNMENT'S NEEDS. THAT DECISION, IT WAS STATED:

* * * BIDDERS OFFERING "EQUAL" PRODUCTS SHOULD NOT HAVE TO GUESS AT THE ESSENTIAL QUALITIES OF THE BRAND NAME ITEM. UNDER THE REGULATIONS THEY ARE ENTITLED TO BE ADVISED IN THE INVITATION OF THE PARTICULAR FEATURES OR CHARACTERISTICS OF THE REFERENCED ITEM WHICH THEY ARE REQUIRED TO MEET. AN INVITATION WHICH FAILS TO LIST ALL THE CHARACTERISTICS DEEMED ESSENTIAL, OR LISTS CHARACTERISTICS WHICH ARE NOT ESSENTIAL, IS DEFECTIVE. 41 COMP. GEN. 242, 250-51; B-154611, AUGUST 28, 1964. SEE, ALSO, 38 COMP. GEN. 345 AND B-157081, OCTOBER 18, 1965.

CARSON PROTESTED THE AWARD OF A CONTRACT TO HUGHES ON THE GROUNDS THAT THE BID FAILED TO COMPLY WITH THE REQUIREMENTS OF THE SPECIFICATION IN SEVERAL IMPORTANT ASPECTS. THE INVITATION CALLED FOR A LASER WITH A CERAMIC DISCHARGE TUBE AND PROVIDED THAT THE LASER HEAD SIZE WOULD BE A MAXIMUM OF 41 INCHES LONG X 12 INCHES WIDE X 12 INCHES HIGH. THE RECORD BEFORE US SHOWS THAT THE ITEM HUGHES IS FURNISHING HAS A HEAD LENGTH OF 44 INCHES, 3 INCHES LONGER THAN THE MAXIMUM SIZE SPECIFIED AND ADDITIONALLY THE HUGHES LASER IS EQUIPPED WITH A METALLIC DISCHARGE TUBE RATHER THAN A CERAMIC TUBE AS STATED IN THE ITEM DESCRIPTION. THE CONTRACTING OFFICER HAS STATED, IN EFFECT, THAT THE FACT THAT THE HUGHES MODEL HAS A METALLIC DISCHARGE TUBE INSTEAD OF THE SPECIFIED CERAMIC DISCHARGE TUBE AND THE FACT THAT THE HUGHES MODEL IS SLIGHTLY LONGER IN SIZE WERE NOT SUFFICIENT DEVIATIONS TO JUSTIFY REJECTION OF THE HUGHES BID AS NONRESPONSIVE SINCE THESE DEVIATIONS ARE OF A MINOR NATURE AND DO NOT AFFECT THE SUITABILITY OF THE HUGHES MODEL FOR ITS INTENDED USE. THE AIR FORCE FOUND NO OBJECTION TO THE TECHNICAL EVALUATION WHICH DETERMINED THAT DESPITE THESE MINOR DEVIATIONS, THE HUGHES MODEL MEETS THE REQUIREMENTS OF THE GOVERNMENT AND IS ,EQUAL" TO THE CARSON MODEL WITHIN THE MEANING OF ASPR- 1206.4 (A).

THE ATTORNEY FOR CARSON BY LETTER OF JULY 12, 1968, TO THE COMMANDER, 8TH AIR FORCE, WESTOVER AIR FORCE BASE, MASSACHUSETTS, STATED THAT IN VIEW OF THE MANNER IN WHICH THE SPECIFICATION WAS DEVELOPED, AND IN VIEW OF THE IMPRESSION CLEARLY CONVEYED TO CARSON THAT THE REQUIREMENTS OF THE SPECIFICATION WERE CRITICAL (ESPECIALLY WHERE MAXIMUM DIMENSIONS WERE SPECIFIED), IT WAS LED TO BELIEVE THAT ONLY ITS REFERENCED BRAND NAME MODEL WOULD BE SUITABLE AND THUS WAS NEVER GIVEN AN OPPORTUNITY TO SUBMIT A BID BASED ON ITS LOWER PRICED STANDARD LASER DESIGN. THE ATTORNEY FURTHER STATES THAT CARSON'S STANDARD LASER DESIGN COULD HAVE MET THE REQUIREMENTS OF THE SPECIFICATION TO THE SAME EXTENT THAT THE HUGHES LASER MAY BE CONSIDERED TO HAVE MET THE REQUIREMENTS OF THE SPECIFICATION, AND THAT THE CARSON STANDARD DESIGN IS PRICED BELOW THE BID SUBMITTED BY HUGHES.

WE HAVE CONSIDERED THE APPLICABILITY OF B-153499, CITED BY AFLC, TO SUPPORT THE AWARD MADE TO HUGHES BUT WE BELIEVE THAT SUCH DECISION IS DISTINGUISHABLE SINCE IT DID NOT INVOLVE A BRAND NAME OR EQUAL PURCHASE DESCRIPTION OR ASPR 1-1206.2 (B).

WE MUST, OF COURSE, ACCORD SIGNIFICANT WEIGHT TO THE TECHNICAL FINDING BY AFLC THAT THE VARIANCES IN THE HUGHES LASER WERE MINOR AND DID NOT AFFECT THE SUITABILITY OF THE ITEM FOR ITS INTENDED USE. AT THE SAME TIME, WE ALSO MUST RECOGNIZE THAT THE HUGHES LASER DID NOT REPRESENT AN EQUAL PRODUCT TO THE BRAND NAME REFERENCED. WHILE HUGHES' FAILURE TO DEMONSTRATE COMPLETE EQUALITY OF ITS PRODUCT TO THE BRAND NAME ITEM WAS NOT OF MAJOR PROPORTIONS, ITS FAILURE TO CONFORM TO THE MINIMUM SIZE AND TO THE DISCHARGE TUBE REQUIREMENTS RENDERED ITS BID NONRESPONSIVE. HOLD THIS BECAUSE THE STATEMENT OF SPECIFICATIONS CONTAINED IN THE INVITATION MUST BE VIEWED AS REPRESENTING THE ESSENTIAL SALIENT FEATURES OR CHARACTERISTICS OF THE LASER REQUIRED BY THE GOVERNMENT. WE FIND NO FACTUAL BASIS TO IDENTIFY CERTAIN OF THOSE LISTED FEATURES OR CHARACTERISTICS AS MINOR OR INCONSEQUENTIAL IN DETERMINING EQUALITY UNDER ASPR 1-1206.4.

WE HAVE CONSTRUED THE WORDS "OR EQUAL," WHEN USED IN CONJUNCTION WITH A BRAND NAME PURCHASE DESCRIPTION, TO MEAN THAT AN ALTERNATE ITEM MUST BE EQUAL TO THE PRODUCT SPECIFIED, INSOFAR AS THE NEEDS OF THE PROCURING AGENCY ARE CONCERNED, BUT NOT NECESSARILY AN EXACT DUPLICATE THEREOF IN DETAIL OR PERFORMANCE. 38 COMP. GEN. 291, AND DECISIONS CITED THEREIN; 43 ID. 761. HAD THE PURCHASE DESCRIPTION IN THIS CASE CONTAINED, IN ADDITION TO THE BRAND NAME OR EQUAL DESCRIPTION, ONLY THOSE SALIENT CHARACTERISTICS WHICH WERE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT IN ACCORDANCE WITH ASPR 1-1206.2 (B), HUGHES BID WOULD CLEARLY HAVE BEEN RESPONSIVE TO THE INVITATION FOR BIDS. HOWEVER, THE FACT REMAINS THAT THE BID OF HUGHES WAS NOT COMPLETELY RESPONSIVE TO THE TERMS OF THE INVITATION FOR BIDS IN THAT IT FAILED TO OFFER THE MINIMUM SIZE AND TYPE OF DISCHARGE TUBE SPECIFIED. HAD THIS MATTER BEEN BROUGHT TO OUR ATTENTION PRIOR TO AWARD OF THE CONTRACT, IT SEEMS CLEAR THAT THE BEST INTERESTS OF THE UNITED STATES WOULD HAVE REQUIRED CANCELLATION OF THE INVITATION AND A READVERTISEMENT OF THE GOVERNMENT'S NEEDS. HOWEVER, THE DEVIATIONS IN THE BID WERE, CONCEDEDLY, DEVIATIONS TO REQUIREMENTS IN THE PURCHASE DESCRIPTION WHICH WERE ACTUALLY UNNECESSARY TO THE GOVERNMENT'S NEEDS.

THIS PROCUREMENT IS AN EXAMPLE OF THE DIFFICULTIES ALL TOO FREQUENTLY ENCOUNTERED IN PROCUREMENTS UTILIZING BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS. IN FUTURE PROCUREMENTS INVOLVING SUCH PURCHASE DESCRIPTIONS, THE GOVERNMENT'S ACTUAL NEEDS SHOULD BE DETERMINED IN ADVANCE OF THE ISSUANCE OF THE INVITATION FOR BIDS AND ONLY SUCH ACTUAL NEEDS SHOULD BE SET FORTH AS SALIENT CHARACTERISTICS. SEE, IN THAT CONNECTION, ASPR 1-1206.2 (B) WHICH SPECIFIES THAT ,-BRAND NAME OR EQUAL- PURCHASE DESCRIPTIONS SHOULD SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCTS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT.' ALSO, IN THE FUTURE, IF REASONABLE TOLERANCES RESPECTING THE PHYSICAL OR FUNCTIONAL CHARACTERISTICS OF EQUIPMENT ARE GENERALLY ACCEPTABLE TO YOUR DEPARTMENT (AS APPEARS TO BE THE CASE IN THE INSTANT PROCUREMENT), THE SALIENT CHARACTERISTICS IN THE PURCHASE DESCRIPTION SHOULD BE STATED IN APPROPRIATE TERMS. SEE B-136574, AUGUST 14, 1958; 43 COMP. GEN. 761.

ALTERNATIVELY, WE SUGGEST THAT THE PURCHASE DESCRIPTION WAS WRITTEN TO SPECIFY ONLY THE CARSON LASER AND SHOULD HAVE PRECLUDED CONSIDERATION OF COMPARABLE LASERS MANUFACTURED BY OTHER SOURCES. WHILE SUCH WAS NOT INTENDED, AS EVIDENCED BY THE AWARD TO HUGHES, THE CIRCUMSTANCES INDICATE THAT THE LASER REQUIRED BY THE GOVERNMENT WAS A COMMERCIAL OFF-THE-SHELF ITEM WHICH COULD HAVE BEEN PROCURED COMPETITIVELY UNDER A PURCHASE DESCRIPTION SETTING FORTH THE ESSENTIAL CHARACTERISTICS AND FUNCTIONS OF THE LASER. SEE ASPR 1-1206.1 (A); CF. 41 COMP. GEN. 76.