B-166849, OCTOBER 27, 1969, 49 COMP. GEN. 274

B-166849, OCTOBER 27, 1969, 49 COMP. GEN. 274

CONTRACTS -- SPECIFICATIONS -- RESTRICTIVE -- PARTICULAR MAKE -- SALIENT CHARACTERISTICS THE CRITERIA ESTABLISHED FOR THE EXPERIENCE CERTIFICATE UNDER AN INVITATION FOR A COMPLETE ELECTRIC GENERATING PLANT THAT CONTAINED A BRAND NAME OR EQUAL CLAUSE TO PERMIT BIDDERS TO UNDERSTAND THE CONCEPT OF THE COMPLETELY PACKAGED PLANTS OF THE TWO NAMED BRANDS, BUT WHICH DID NOT INDICATE THE RELATIONSHIP BETWEEN THE BRAND NAMES AND AN ACCEPTABLE EQUIVALENT, FAILED TO SATISFY THE SALIENT CHARACTERISTICS REQUIREMENT OF PARAGRAPH 1-1206.2(B) OF THE ARMED SERVICES PROCUREMENT REGULATION, AND NOTWITHSTANDING THE INDUSTRY MAY HAVE UNDERSTOOD THE GOVERNMENT'S NEEDS, THE PROCUREMENT WOULD BE CANCELED HAD PERFORMANCE NOT REACHED AN ADVANCED STAGE. A BRAND NAME OR EQUAL DESCRIPTION SHOULD BE USED ONLY WHERE THE NEEDS OF THE GOVERNMENT CANNOT BE ADEQUATELY DESCRIBED, AND WHEN USED SALIENT CHARACTERISTICS SHOULD BE IDENTIFIED WITH CLARITY AND PRECISION. CONTRACTS -- SPECIFICATIONS -- RESTRICTIVE -- PARTICULAR MAKE -- USE LIMITED TO UNAVAILABILITY OF ADEQUATE SPECIFICATIONS THE USE OF A BRAND NAME OR EQUAL METHOD OF SOLICITATION TO PERMIT POSSIBLE SUPPLIERS TO UNDERSTAND THE CONCEPT OF A COMPLETELY PACKAGED POWER PLANT AS CURRENTLY SUPPLIED BY THE TWO NAMED BRANDS WHERE THE TECHNICAL REQUIREMENTS OF THE GOVERNMENT WERE DESCRIBED IN DETAIL CANNOT BE JUSTIFIED UNDER PARAGRAPH 1-1206.1(A) OF THE ARMED SERVICES PROCUREMENT REGULATION, WHICH PROVIDES THAT "THIS TECHNIQUE SHOULD BE USED ONLY WHEN AN ADEQUATE SPECIFICATION OR MORE DETAILED DESCRIPTION CANNOT FEASIBLY BE MADE AVAILABLE BY MEANS OTHER THAN REVERSE ENGINEERING IN TIME FOR THE PROCUREMENT UNDER CONSIDERATION," AND THE SPECIFICATION USED IN THE SOLICITATION SHOULD BE CAREFULLY REVIEWED TO DETERMINE ITS TECHNICAL ADEQUACY INSOFAR AS A BRAND NAME OR EQUAL PROCUREMENT IS CONCERNED. CONTRACTS -- SPECIFICATIONS -- RESTRICTIVE - PARTICULAR MAKE -- MODIFICATION OF BRAND NAME ALTHOUGH THE EXPERIENCE CERTIFICATE REQUIREMENT IN A BRAND NAME OR EQUAL SOLICITATION FOR A COMPLETE ELECTRIC GENERATING PLANT WAS REQUIRED TO BE EXECUTED "BY AN OFFICIAL OF THE FIRM MANUFACTURING THE EQUIPMENT," THE CERTIFICATE SIGNED BY AN OFFICIAL OF THE SUCCESSFUL BIDDER WHOSE LETTERHEAD INDICATED THAT IT IS A DISTRIBUTOR FOR ONE OF THE TWO NAMED BRANDS SPECIFIED IN THE INVITATION IS ACCEPTABLE IN VIEW OF THE FACT THAT THE STANDARD PACKAGE OF BOTH BRAND NAMED MANUFACTURERS REQUIRED "SLIGHT" MODIFICATION TO MEET THE SPECIFICATIONS, AND EVEN THOUGH THE LANGUAGE USED RESPECTING THE MODIFICATION ACCORDED THE CONTRACTING OFFICER TOO MUCH INTERPRETIVE LEEWAY FOR A FORMALLY ADVERTISED PROCUREMENT, THE ABSENCE OF AN APPROPRIATE STANDARD DID NOT INHIBIT THE FULL AND FREE COMPETITION REQUIRED BY 10 U.S.C. 2305(B). HOWEVER, THE VAGUENESS OF THE LANGUAGE SHOULD BE ELIMINATED IN FUTURE PROCUREMENTS.

TO THE SECRETARY OF THE NAVY, OCTOBER 27, 1969:

REFERENCE IS MADE TO A LETTER (WITH ENCLOSURES) DATED JULY 30, 1969, FROM THE DIRECTOR OF CONTRACT ADMINISTRATION, AND TO A FURTHER LETTER (WITH ENCLOSURE) DATED SEPTEMBER 11, 1969, FROM THE COUNSEL, NAVAL FACILITIES ENGINEERING COMMAND, REPORTING ON THE PROTEST OF FAIRBANKS MORSE INC., AGAINST THE AWARD OF CONTRACT NO. N62578-69-C-0069 TO STEWART AND STEVENSON SERVICES, INC.

THE CONTRACT WAS AWARDED ON MAY 5, 1969, PURSUANT TO INVITATION FOR BIDS NO. N62578-69-B-0069, WHICH WAS ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND (NAVFAC), DAVISVILLE, RHODE ISLAND, ON NOVEMBER 29, 1968. SIX AMENDMENTS WERE MADE BETWEEN THE DATE THE INVENTION WAS ISSUED AND THE DATE OF OPENING, MARCH 18, 1969, AT WHICH TIME FIVE BIDS WERE RECEIVED. THE LOW BID ($2,082,190.50) WAS SUBMITTED BY STEWART AND STEVENSON SERVICES, INC. (S&S), AND THE BID OF FAIRBANKS MORSE INC. (FAIRBANKS) WAS SECOND LOW IN THE TOTAL AMOUNT OF $2,194,454.

THE ITEM FOR PROCUREMENT WAS A COMPLETE ELECTRIC GENERATING PLANT OF 2,000 KILOWATT CAPACITY, THE CONTROL HOUSE AND GENERATOR ALL TO BE IN ACCORDANCE WITH SPECIFICATION PROVISIONS AND TECHNICAL AND SPECIAL REQUIREMENTS WHICH WERE ATTACHED TO AND MADE A PART OF THE INVITATION. THE AMENDED INVITATION PERMITTED BIDS ON THE FOLLOWING BASES: (A) ONE COMPLETE PLANT WITH ONE CONTROL HOUSE AND FOUR GENERATORS; (B) ONE, TWO, OR THREE COMPLETE PLANTS, EACH CONSISTING OF ONE CONTROL HOUSE AND THREE GENERATORS; OR (C) ONE COMPLETE PLANT CONSISTING OF A CONTROL HOUSE AND TWO GENERATORS. THE AWARD WAS MADE UNDER ALTERNATE (B) FOR THREE PLANTS, EACH HAVING A CONTROL HOUSE AND THREE GENERATORS.

THE NAVFAC SPECIFICATION WHICH WAS REFERRED TO IN THE BIDDING SCHEDULE IS NO. 29-69-0069, THE TEXT OF WHICH IS 85 PAGES LONG. AT PAGE 56 THEREOF, IN PARAGRAPH 2A.3.5, THERE APPEARS THE FOLLOWING LANGUAGE:

EACH GENERATING PLANT SHALL BE GENERAL MOTORS CORPORATION, ELECTROMOTIVE DIVISION, MODEL MU 20E 720 OR FAIRBANKS MORSE INCORPORATED, POWER SYSTEMS DIVISION, MODEL HPP 4-961 OR EQUAL IN QUALITY, MANUFACTURING AND PROVEN SERVICE PERFORMANCE WITH MODIFICATIONS AS SPECIFIED HEREIN. THE "BRAND NAME OR EQUAL" CLAUSE, INCLUDED AT PAGE 40 OF THE SPECIFICATION, STATED IN FULL:

BRAND NAME OR EQUAL (1961 NOV.). AS USED IN THIS CLAUSE, THE TERM "BRAND NAME" INCLUDES IDENTIFICATION OF PRODUCTS BY MAKE AND MODEL.

A. IF ITEMS CALLED FOR BY THIS INVITATION FOR BIDS HAVE BEEN IDENTIFIED IN THE SPECIFICATION BY A "BRAND NAME OR EQUAL" DESCRIPTION, SUCH IDENTIFICATION IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS TO INDICATE THE EQUALITY AND CHARACTERISTICS OF PRODUCTS THAT WILL BE SATISFACTORY. BIDS OFFERING "EQUAL" PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE INVITATION FOR BIDS.

B. UNLESS THE BIDDER CLEARLY INDICATES IN HIS BID THAT HE IS OFFERING AN "EQUAL" PRODUCT, HIS BID SHALL BE CONSIDERED AS OFFERING A BRAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BIDS.

C. (1) IF THE BIDDER PROPOSES TO FURNISH AN "EQUAL" PRODUCT, THE BRAND NAME, IF ANY, OF THE PRODUCT TO BE FURNISHED SHALL BE INSERTED IN THE SPACE PROVIDED IN THE INVITATION FOR BIDS, OR SUCH PRODUCT SHALL BE OTHERWISE CLEARLY IDENTIFIED IN THE BID. THE EVALUATION OF BIDS AND THE DETERMINATION AS TO EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE GOVERNMENT AND WILL BE BASED ON INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN HIS BID, AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY.

CAUTION TO BIDDERS: THE PURCHASING ACTIVITY IS NOT RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH IS NOT IDENTIFIED IN THE BID AND REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. ACCORDINGLY, TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE BIDDER MUST FURNISH AS A PART OF HIS BID ALL DESCRIPTIVE MATERIAL (SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER INFORMATION) NECESSARY FOR THE PURCHASING ACTIVITY TO (I) DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE INVITATION FOR BIDS AND (II) ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. THE INFORMATION FURNISHED MAY INCLUDE SPECIFIC REFERENCES TO INFORMATION PREVIOUSLY FURNISHED OR TO INFORMATION OTHERWISE AVAILABLE TO THE PURCHASING ACTIVITY.

(2)IF THE BIDDER PROPOSES TO MODIFY A PRODUCT SO AS TO MAKE IT CONFORM TO THE REQUIREMENTS OF THE INVITATION FOR BIDS, HE SHALL (I) INCLUDE IN HIS BID A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS AND (II) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS.

(3) MODIFICATIONS PROPOSED AFTER BID OPENING TO MAKE A PRODUCT CONFORM TO A BRAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BIDS WILL NOT BE CONSIDERED.

WITH RESPECT TO PROCUREMENT OF GOODS ON A "BRAND NAME OR EQUAL" BASIS, PARAGRAPH 1-1206.2(B) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES IN PART:

"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. *** IN OUR RECENT DECISION, DECEMBER 26, 1968, 48 COMP. GEN. 441, WE HAD OCCASION TO QUOTE FROM B-157857, JANUARY 26, 1966, THE FOLLOWING WELL-ESTABLISHED RULE:

*** 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.

A MATTER PRELIMINARY TO A CONSIDERATION OF THE ISSUES RAISED BY THE PROTEST IS THE APPARENT ABSENCE OF A LIST OF SALIENT CHARACTERISTICS. SHOULD BE EMPHASIZED THAT PARAGRAPH 2A.3.5 OF THE NAVFAC SPECIFICATION REQUIRES GENERATING PLANTS TO BE THE EQUAL OF EITHER THE GENERAL MOTORS OR FAIRBANKS PRODUCTS "WITH MODIFICATIONS AS SPECIFIED HEREIN." THE SPECIFICATION CONTAINS NUMEROUS PARAGRAPHS, EACH OF WHICH MAY CONSTITUTE EITHER A DESCRIPTION OF OR A MODIFICATION TO A SPECIFIC FEATURE OF THE NAMED BRANDS. WE ARE WITHOUT THE ENGINEERING KNOW-HOW REQUIRED TO MAKE THE DISTINCTION REGARDING ANY OF THE SPECIFICATION'S PROVISIONS. HOWEVER, WE BELIEVE THAT IT IS QUITE POSSIBLE THAN MANY, IF NOT MOST OF THE NUMEROUS PROVISIONS ARE DESCRIPTIVE OF THE CHARACTERISTICS OF THE NAMED BRANDS. TO THE EXTENT THAT THE SPECIFICATION IS IN FACT DESCRIPTIVE, IT MAY BE SAID THAT THE GOVERNMENT'S INTENT WAS TO ADVISE BIDDERS OF THE CHARACTERISTICS OF THE BRAND NAME GENERATING PLANTS DEEMED ESSENTIAL TO THE GOVERNMENT'S NEEDS.

HOWEVER, WE HAVE BEEN INFORMALLY ADVISED BY NAVFAC PERSONNEL THAT THE CHARACTERISTICS THAT ARE CONSIDERED SALIENT BY THE PROCUREMENT OFFICIALS ARE TO BE FOUND IN THE NAVFAC SPECIFICATION AT PARAGRAPH 1A.28, WHICH IS ENTITLED "OPERATIONAL EXPERIENCE REQUIREMENT AND INFORMATION CERTIFICATE" (OERIC). THAT PARAGRAPH PROVIDES AS FOLLOWS: OPERATIONAL EXPERIENCE REQUIREMENT AND INFORMATION CERTIFICATE.

A. BIDDERS MUST FURNISH WITH THEIR BIDS A PROPERLY EXECUTED CERTIFICATE BY AN OFFICIAL OF THE FIRM MANUFACTURING THE EQUIPMENT TO BE FURNISHED HEREUNDER. FAILURE TO FURNISH THE CERTIFICATE MAY RESULT IN REJECTION OF THE BID. THE CERTIFICATE SHALL CERTIFY THAT THE EQUIPMENT MEETS ALL OF THE OPERATING EXPERIENCE REQUIREMENTS AND SHALL CONTAIN SUPPLEMENTARY INFORMATION, ALL AS DELINEATED BELOW.

B. THE CERTIFICATE MUST AFFIRM THAT THE ENGINE MODEL OFFERED MUST HAVE PERFORMED SUCCESSFULLY IN TWO SEPARATE INSTALLATIONS. EACH ENGINE SHALL HAVE OPERATED SUCCESSFULLY NOT LESS THAN 6,000 HOURS IN STATIONARY ELECTRIC GENERATING SERVICE AT TWO SEPARATE INSTALLATIONS WITHIN A TWO YEAR PERIOD, OR SHALL HAVE OPERATED SUCCESSFULLY NOT LESS THAN 2000 HOURS IN STATIONARY ELECTRIC GENERATING SERVICE IN TWO SEPARATE INSTALLATIONS WITHIN A TWO YEAR PERIOD PLUS NOT LESS THAN 6000 HOURS ON EACH OF TWO SEPARATE INSTALLATIONS IN MARINE OR LOCOMOTIVE SERVICE WITH A PERIOD OF TWO YEARS AND IN ADDITION TO FOREGOING ALTERNATIVES, THE COMPLETE FULLY ASSEMBLED POWER PLANT SHALL HAVE OPERATED SUCCESSFULLY NOT LESS THAN 2000 HOURS IN STATIONARY ELECTRIC GENERATING SERVICE IN TWO SEPARATE LOCATIONS WITHIN A PERIOD OF TWO YEARS ON EQUIPMENT IDENTICAL TO THE SPECIFICATIONS OR SLIGHTLY MODIFIED IF APPROVED BY THE CONTRACTING OFFICER. DETERMINING THIS EXPERIENCE:

(1) ONLY EXPERIENCE ON THE SAME ENGINE MODEL IS ACCEPTABLE. ENGINE MODEL IS CONSIDERED TO BE A GIVEN SERIES OR CLASS OF IDENTICAL BORE AND STROKE AND OF THE SAME TYPE OF ENGINE SUCH AS IN-LINE OR V. IN-LINE AND V ENGINES WITH IDENTICAL BORE AND STROKE ARE CONSIDERED AS TWO SEPARATE MODELS OF ENGINES. THE EXPERIENCE ON AN ENGINE WITH AN ENGINE WITH A GIVEN WITH A GIVEN NUMBER OF CYLINDERS IS CONSIDERED SATISFACTORY FOR ENGINES OF THE SAME OR SMALLER NUMBER OF CYLINDERS BUT NOT SATISFACTORY FOR A LARGER NUMBER OF CYLINDERS.

(2) ONLY EXPERIENCE AT THE IDENTICAL OR HIGHER ROTATIVE SPEED AS THAT WHICH IS OFFERED IS ACCEPTABLE.

(3) ONLY EXPERIENCE AT THE SAME OR HIGHER BRAKE MEAN EFFECTIVE PRESSURE AS THAT WHICH IS OFFERED IS ACCEPTABLE.

(4) ONLY EXPERIENCE AT THE SAME OR HIGHER MAXIMUM FIRING PRESSURE AS THAT WHICH IS OFFERED IS ACCEPTABLE.

(5) ONLY EXPERIENCE WITH OIL AND DUAL FUEL ENGINES IS ACCEPTABLE AS SUCH EXPERIENCE.

(6) ONLY EXPERIENCE IN EITHER 50-CYCLE OR 60-CYCLE ALTERNATING CURRENT SERVICE IS ACCEPTABLE AS SUCH EXPERIENCE.

C. INFORMATION TO BE CONTAINED IN THE CERTIFICATE SHALL INCLUDE:

(1) A LIST OF AT LEAST TWO ENGINE INSTALLATIONS.

(2) OWNER AND LOCATION OF EACH SUCH INSTALLATION.

(3) DATE AND INITIAL OPERATION AT EACH SUCH INSTALLATION.

(4) NUMBER OF HOURS OF OPERATION COMPLETED BY A DESIGNATED DATE AT EACH SUCH INSTALLATION.

(5) HORSEPOWER, KILOWATT, ROTATIVE SPEED OF THE UNIT AT EACH SUCH INSTALLATION.

(6) BRAKE MEAN EFFECTIVE PRESSURE RATING OF THE ENGINE AT EACH SUCH INSTALLATION."

HOWEVER, IN OUR OPINION THE FIRST FOUR CRITERIA LISTED DO NOT STATE CHARACTERISTICS OF THE BRAND NAMES. THE FIRST REQUIRES THE EXPERIENCE CERTIFICATE TO RELATE TO EXPERIENCE ON THE SAME ENGINE MODEL AS OFFERED. SIMILARLY, THE CRITERIA CONCERNING ROTATIVE SPEED, BRAKE MEAN EFFECTIVE PRESSURE AND MAXIMUM FIRING PRESSURE INCLUDE THE EXPRESS LANGUAGE "AS THAT WHICH IS OFFERED." THESE CRITERIA CONCERN THE RELATIONSHIP BETWEEN THE PRODUCT ACTUALLY OFFERED AND THE OPERATING PLANTS LISTED IN THE CERTIFICATE; BUT THESE CRITERIA DO NOT STATE NOR INDICATE THE RELATIONSHIP BETWEEN THE BRAND NAMES AND AN ACCEPTABLE EQUIVALENT. BY WAY OF ILLUSTRATION: SUPPOSE A BIDDER OFFERS TO SUPPLY A GENERATING PLANT WHOSE ENGINE HAS A ROTATIVE SPEED OF 700 R.P.M.; SUPPOSE ALSO THAT BOTH BRAND NAMES OPERATE AT 720 R.P.M.; FURTHER, ASSUME THAT THE BIDDER'S EXPERIENCE CERTIFICATE LISTS INSTALLATIONS OPERATING AT 710 R.P.M. THE ROTATIVE SPEED CRITERION OF PARAGRAPH 1A.28 IS SATISFIED. NEVERTHELESS, IF A ROTATIVE SPEED OF 720 R.P.M. IS INDEED A SALIENT CHARACTERISTIC OF THE NAMED BRANDS, THE PRODUCT OFFERED IN THE EXAMPLE ABOVE IS MATERIALLY DIFFERENT FROM THE BRAND NAME PRODUCTS.

WHILE IT IS ARGUABLE THAT THE LAST TWO ITEMS LISTED ARE SALIENT CHARACTERISTICS, THEY ARE NOT IDENTIFIED BY THE LANGUAGE AS PERTAINING TO EITHER OF THE BRAND NAME MODELS. IN SHORT, WE FIND NOTHING IN THIS INVITATION WHICH CLEARLY SETS FORTH THOSE PARTICULAR FEATURES OF THE TWO NAMED BRANDS WHICH HAVE BEEN DETERMINED BY THE ADMINISTRATIVE OFFICIALS TO BE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. THIS DEFICIENCY FALLS WITHIN THE PROSCRIPTION OF THE PREVIOUSLY CITED DECISIONS OF OUR OFFICE, IN THAT A BIDDER IS REQUIRED TO GUESS AT THE ESSENTIAL QUALITIES OF THE BRAND NAME ITEMS. THE FACT THAT FIRMS IN THE INDUSTRY MAY HAVE UNDERSTOOD EXACTLY WHAT THE GOVERNMENT REQUIRED IS NOT RELEVANT TO THE LEGAL ISSUE CONCERNING THE SUFFICIENCY OF THE WRITTEN ADVERTISED INVITATION. SEE, IN THIS REGARD, 10 U.S.C. 2305(B), WHICH PROVIDES:

(B) THE SPECIFICATIONS IN INVITATIONS FOR BIDS MUST CONTAIN THE NECESSARY LANGUAGE AND ATTACHMENTS, AND MUST BE SUFFICIENTLY DESCRIPTIVE IN LANGUAGE AND ATTACHMENTS, TO PERMIT FULL AND FREE COMPETITION. IF THE SPECIFICATIONS IN AN INVITATION FOR BIDS DO NOT CARRY THE NECESSARY DESCRIPTIVE LANGUAGE AND ATTACHMENTS, OR IF THOSE ATTACHMENTS ARE NOT ACCESSIBLE TO ALL COMPETENT AND RELIABLE BIDDERS, THE INVITATION IS INVALID AND NO AWARD MAY BE MADE.

HAD THE PROCUREMENT NOT REACHED ITS PRESENT ADVANCED STAGE, WE WOULD BE OBLIGATED TO OBJECT TO ANY AWARD MADE ON THE BASIS OF THIS INVITATION. SEE, FOR EXAMPLE, 41 COMP. GEN. 76 (1961) WHERE, IN A PREAWARD SITUATION, WE CONCLUDED THAT THE INFORMATION AVAILABLE TO BIDDERS WAS INSUFFICIENT TO ADVISE THEM OF ALL THE SALIENT CHARACTERISTICS OF THE NAMED MAKE AND MODEL. WE HELD IN THE CITED DECISION THAT, "SINCE THE FULL AND FREE COMPETITION REQUIRED BY THE STATUTES HAS NOT BEEN OBTAINED, NO VALID AWARD MAY RESULT FROM THIS INVITATION." IN THAT DECISION, WE RECOGNIZED THAT WHILE PROCUREMENT ON A "BRAND NAME OR EQUAL" BASIS IS SOMETIMES NECESSARY, IT IS "GENERALLY UNDESIRABLE AND SHOULD BE RESERVED FOR EXCEPTIONAL CASES WHERE THE NEEDS OF THE GOVERNMENT CANNOT OTHERWISE BE ADEQUATELY DESCRIBED." THIS INSTANT PROCUREMENT, LIKE THE ONES AT 41 COMP. GEN. 76 AND 43 ID. 761 (1964), IS "AN EXAMPLE OF THE DIFFICULTIES ALL TOO FREQUENTLY ENCOUNTERED IN PROCUREMENT UTILIZING BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS." 43 COMP. GEN. 761, AT 767.

HOWEVER, THE CONTRACT HAS BEEN SUBSTANTIALLY PERFORMED AND NO BIDDER HAS COMPLAINED OF THE ABSENCE OF A LIST OF SALIENT CHARACTERISTICS. THEREFORE, WE DO NOT CONSIDER THAT A CANCELLATION AT THIS DATE WOULD SERVE THE GOVERNMENT'S BEST INTERESTS. WE RECOMMEND THAT EVERY EFFORT BE MADE TO INSURE THAT, IN FUTURE PROCUREMENTS CONDUCTED ON A "BRAND NAME OR EQUAL" BASIS, THE SALIENT CHARACTERISTICS OF THE BRAND NAME ITEM BE IDENTIFIED WITH CLARITY AND PRECISION.

FURTHERMORE, THE PROPRIETY OF USING A BRAND NAME OR EQUAL METHOD OF SOLICITATION IS OPEN TO SERIOUS QUESTION. ASPR 1-1206.1(A) PROVIDES THAT "THIS TECHNIQUE SHOULD BE USED ONLY WHEN AN ADEQUATE SPECIFICATION OR MORE DETAILED DESCRIPTION CANNOT FEASIBLY BE MADE AVAILABLE BY MEANS OTHER THAN REVERSE ENGINEERING (SEE 1-304) IN TIME FOR THE PROCUREMENT UNDER CONSIDERATION." IT IS APPROPRIATE TO OBSERVE THAT THE "TECHNICAL REQUIREMENTS" SECTION OF NAVFAC SPECIFICATION 29-69-0069 CONSISTS OF 36 PAGES, CONTAINING 116 NUMBERED SECTIONS. THERE ARE REFERENCES THEREIN TO 10 FEDERAL SPECIFICATIONS, 14 MILITARY SPECIFICATIONS, 5 MILITARY STANDARDS AND 17 TECHNICAL PUBLICATIONS OF VARIOUS NONGOVERNMENTAL SOCIETIES, ASSOCIATIONS AND INSTITUTES. THE TECHNICAL REQUIREMENTS APPEAR TO US TO BE VERY DETAILED. IN THE MIDST OF THIS WELTER OF PROVISIONS IS THE BRAND NAME OR EQUAL PROVISION IN PARAGRAPH 2A.3.5. THE STATED JUSTIFICATION FOR USE OF THIS PROVISION WAS INCLUDED IN THE LETTER OF SEPTEMBER 11, 1969, AS FOLLOWS:

*** THE BRAND NAME OR EQUAL SOLICITATION WAS USED TO PERMIT POSSIBLE SUPPLIERS TO UNDERSTAND THE CONCEPT OF A COMPLETELY PACKAGED POWER PLANT AS CURRENTLY SUPPLIED BY GENERAL MOTORS AND FAIRBANKS MORSE. *** THIS IS NOT, IN OUR OPINION, A SUFFICIENT BASIS FOR PROCUREMENT ON A BRAND NAME OR EQUAL BASIS. IN VIEW OF THE COMPLETE AND DETAILED DESCRIPTION OF THE AGENCY'S REQUIREMENTS IN THE NAVFAC SPECIFICATION, WE FIND IT DIFFICULT TO CONCEIVE OF ANY NECESSITY FOR THE INCLUSION OF A BRAND NAME OR EQUAL CLAUSE IN THE SOLICITATION. ACCORDINGLY, WE SUGGEST THAT THE NAVFAC SPECIFICATION BE CAREFULLY REVIEWED TO DETERMINE ITS TECHNICAL ADEQUACY INSOFAR AS BRAND NAME OR EQUAL PROCUREMENT IS CONCERNED.

THE MAIN ARGUMENT OF FAIRBANKS IS THAT S&S'S BID WAS NOT RESPONSIVE FOR EITHER OF TWO REASONS: FIRST, ASSUMING THAT S&S INTENDED TO OFFER THE BRAND NAME ITEM AS MODIFIED, THE INFORMATION SUPPLIED ON ITS OERIC DID NOT MEET THE REQUIREMENTS OF PARAGRAPH 1A.28 OF THE NAVFAC SPECIFICATION, QUOTED ABOVE; OR SECOND, S&S INTENDED TO SUPPLY A POWER PLANT EQUIVALENT TO THE TWO BRAND NAME PRODUCTS (IN WHICH EVENT THE S&S BID SHOULD HAVE BEEN REJECTED FOR FAILURE TO SUPPLY THE DESCRIPTIVE MATERIAL REQUIRED BY THE "BRAND NAME OR EQUAL" CLAUSE, ALSO QUOTED ABOVE). RESOLUTION OF EACH OF THESE CONTENTIONS ULTIMATELY DEPENDS UPON THE PROPER INTERPRETATION TO BE GIVEN TO THE OERIC CLAUSE.

IT IS APPARENT THAT S&S DID NOT FURNISH WITH ITS BID THE INFORMATION REQUIRED BY SUBPARAGRAPH "C" OF THE "BRAND NAME OR EQUAL" CLAUSE AND, IN CONSONANCE WITH SUBPARAGRAPH "B" THEREOF, IT WAS TO BE CONSIDERED AS OFFERING ONE OF THE BRAND NAME PRODUCTS REFERENCED IN THE INVITATION. NOTE IN PASSING THAT THE S&S BID DID NOT AFFIRMATIVELY INDICATE WHICH OF THE TWO NAMED BRANDS WAS BEING OFFERED. THE SEPTEMBER 11 NAVFAC LETTER COMMENTS THAT THIS FACT "DID NOT OFFER ANY PROBLEMS INASMUCH AS STEWART AND STEVENSON IS A DISTRIBUTOR OF GENERAL MOTORS DIESEL ENGINES AS INDICATED BY THEIR LETTERHEAD, AND THE OICC (OFFICER IN CHARGE, CONTRACTS) WAS WELL AWARE OF THIS FACT AND NATURALLY ASSUMED THAT GENERAL MOTORS ENGINES WOULD BE FURNISHED." IT IS FUNDAMENTAL UNDER THE PRINCIPLES OF FORMAL ADVERTISING THAT THE DETERMINATION OF WHAT A BIDDER IS OFFERING DEPENDS NOT UPON AN ADMINISTRATIVE ASSUMPTION BUT UPON THE CONTENTS OF THE BID AS SUBMITTED. IT IS CLEAR THAT THE ADMINISTRATIVE ASSUMPTION WAS MADE NECESSARY IN THIS CASE BECAUSE OF A FAILURE TO COMPLY WITH THE PROVISIONS OF ASPRI 1-1206.3(A), WHICH REQUIRE:

(A) EXCEPT AS PROVIDED IN (C) BELOW, WHEN A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION IS INCLUDED IN AN INVITATION FOR BIDS, THE FOLLOWING SHALL BE INSERTED AFTER EACH ITEM SO DESCRIBED IN THE INVITATION, FOR COMPLETION BY THE BIDDER:

BIDDING ON:

MANUFACTURER'S NAME BRAND

NO.

PURSUANT TO THE REQUIREMENT OF PARAGRAPH 1A.28, S&S SUBMITTED AS ITS OERIC THE FOLLOWING LETTER (DATED MARCH 17, 1969) TO THE OFFICER IN CHARGE AT DAVISVILLE:

THIS SHALL CERTIFY THAT THE EQUIPMENT MEETS ALL OF THE OPERATING EXPERIENCE REQUIREMENTS AND FURTHER CERTIFY TO BE TRUE AND ACCURATE THE FOLLOWING SUPPLEMENTARY INFORMATION. INSTALLATION SITE NO. 1

(FIVE FULLY ASSEMBLED POWER PLANTS WITH SLIGHT MODIFICATIONS TO THE SPECIFICATIONS OF THE SOLICITATION. ENGINES ARE THE SAME MODEL AS PROPOSED IN OUR OFFER.) BARBADOS POWER & LIGHT SPRING GARDENS, BARBADOS

IN SERVICE APRIL, 1967

UNIT NO. 1--3,442 OPERATING HOURS AS OF NOVEMBER, 1968

UNIT NO. 2--4,338 OPERATING HOURS AS OF NOVEMBER, 1968

UNIT NO. 3--4,195 OPERATING HOURS AS OF NOVEMBER, 1968

UNIT NO. 4--4,507 OPERATING HOURS AS OF NOVEMBER, 1968

UNIT NO. 5--4,516 OPERATING HOURS AS OF NOVEMBER, 1968

HP---3050; KW----2100; RPM--750

BMEP--125 PSI INSTALLATION SITE NO. 2

(FOUR FULLY ASSEMBLED POWER PLANTS WITH SLIGHT MODIFICATIONS TO THE SPECIFICATIONS OF THE SOLICITATION. ENGINES ARE THE SAME MODEL AS PROPOSED IN OUR OFFER.) JAMAICA PUBLIC SERVICE MONTEGO BAY, JAMAICA

IN SERVICE SEPTEMBER, 1967

UNIT NO. 1--3,710 OPERATING HOURS AS OF NOVEMBER, 1968

UNIT NO. 2--6,045 OPERATING HOURS AS OF NOVEMBER, 1968

UNIT NO. 3--3,256 OPERATING HOURS AS OF NOVEMBER, 1968

UNIT NO. 4--5,414 OPERATING HOURS AS OF NOVEMBER, 1968

HP--3050; KW------2100; RPM--750

BMEP--125 PSI

THE ENGINE PROPOSED IN OUR OFFER HAD A TOTAL QUANTITY OF 437 LOCOMOTIVE INSTALLATIONS AS OF JUNE, 1968. EXPERIENCE SHOWS ACCUMULATIVE OPERATING HOURS FOR THIS SERVICE TO BE AN AVERAGE OF 500 HOURS PER MONTH. WE SAFELY ESTIMATE 50% OF THIS QUANTITY TO HAVE ACHIEVED AT THIS TIME IN EXCESS OF 6,000 HOURS IN A TWO YEAR PERIOD.

RAILROAD OWNERS

CHICAGO & NORTHWESTERN

D & RGW

ERIE

GREAT NORTHERN

NORFOLK & WESTERN

NORTHERN PACIFIC

PENNSYLVANIA

SOUTHERN PACIFIC

SINCERELY,

STEWART & STEVENSON SERVICES, INC.

J. CARSEY MANNING, DIRECTOR

GOVERNMENT AND NATIONAL CONTRACTS

WE INFORMALLY POSED TO NAVFAC PERSONNEL THE QUESTION WHETHER ABOVE LETTER SATISFIES THAT PORTION OF PARAGRAPH 1A.28 WHICH REQUIRES THE CERTIFICATE TO BE EXECUTED "BY AN OFFICIAL OF THE FIRM MANUFACTURING THE EQUIPMENT TO BE FURNISHED HEREUNDER." THE RESPONSE WAS AFFIRMATIVE. WE OBSERVE THAT S&S REPRESENTED ITSELF ON PAGE 2 OF STANDARD FORM 33 TO BE A "MANUFACTURER" OF THE SUPPLIES OFFERED FOR PURPOSES OF THE WALSH-HEALEY ACT (41 U.S.C. 35-45). HOWEVER, AS WAS INDICATED PREVIOUSLY, THE S&S LETTERHEAD DENOMINATES THE COMPANY A "DISTRIBUTOR" OF GENERAL MOTORS DIESEL ENGINES. IT HAS BEEN INFORMALLY REPRESENTED TO US BY RESPONSIBLE NAVFAC OFFICIALS THAT THE GENERAL MOTORS GENERATING PLANT SPECIFIED IN PARAGRAPH 2A.3.5 MUST BE MODIFIED IN NUMEROUS RESPECTS IN ORDER TO MEET THE SPECIFICATION REQUIREMENTS. THE SAME POINT WAS MADE IN THE LETTERS OF JULY 30 AND SEPTEMBER 11, 1969; THE LATTER CLEARLY STATED THAT THE "SPECIFICATIONS WERE SO WRITTEN THAT NEITHER GENERAL MOTORS NOR FAIRBANKS MORSE COULD MEET OUR SPECIFIC REQUIREMENT WITH THEIR STANDARD PACKAGE." THEREFORE, S&S IN ORDER TO COMPLY WITH THE SPECIFICATION MUST PERFORM CERTAIN MODIFICATION WORK ON THE BASIC GENERAL MOTORS UNIT. IN ADDITION, THE LANGUAGE OF PARAGRAPH 1A.28 WAS DRAFTED BY KNOWLEDGEABLE AGENCY PERSONNEL, AND THUS THEIR STATEMENTS AS TO THE MEANING OF THE WORD "MANUFACURING" SHOULD BE GIVEN APPROPRIATE CONSIDERATION. FURTHERMORE, ANOTHER BIDDER, HUNT ENGINE AND EQUIPMENT CO., OFFERED TO SUPPLY A GENERAL MOTORS ENGINE. ITS LETTER SUBMITTED IN RESPONSE TO THE OERIC CLAUSE IS SIGNED BY HUNT'S VICE PRESIDENT AND GENERAL MANAGER. HUNT'S INTERPRETATION OF THIS ASPECT OF THE OERIC CLAUSE THEREFORE CONFORMS TO THAT OF NAVFAC. IN THE LIGHT OF ALL THE FACTS AND CIRCUMSTANCES, THE FACT THAT S&S'S LETTERHEAD INDICATES THAT IT IS A DISTRIBUTOR OF GENERAL MOTORS DIESEL ENGINES IS NOT OF CRITICAL SIGNIFICANCE. ACCORDINGLY, THE SIGNING OF THE EXPERIENCE CERTIFICATE BY AN S&S OFFICIAL APPEARS PROPER UNDER THE CLAUSE.

REDUCED TO ITS ESSENTIALS, THE FAIRBANKS' ARGUMENT IS THIS: ASSUMING THAT S&S INTENDED TO SUPPLY THE GENERAL MOTORS GENERATING PLANT EXACTLY AS MODIFIED IN THE NAVFAC SPECIFICATION, THE OERIC IS DEFECTIVE IN THAT THE BARBADOS AND JAMAICA INSTALLATIONS ARE NOT EXAMPLES OF "THE COMPLETE FULLY ASSEMBLED POWER PLANT *** IDENTICAL TO THE SPECIFICATIONS OR SLIGHTLY MODIFIED IF APPROVED BY THE CONTRACTING OFFICER." PARAGRAPH 1A.28 OF THE NAVFAC SPECIFICATION. ON THE OTHER HAND, IF IT BE PRESUMED THAT THE BARBADOS AND JAMAICA GENERATING STATIONS ARE INDEED "IDENTICAL" OR SLIGHTLY MODIFIED VERSIONS OF WHAT S&S INTENDED TO FURNISH, S&S MUST BE CONSIDERED AS HAVING PROPOSED AN EQUIVALENT PRODUCT IN WHICH EVENT, UNDER THE "BRAND NAME OR EQUAL" CLAUSE QUOTED ABOVE, THE BID SHOULD HAVE BEEN REJECTED FOR NONRESPONSIVENESS FOR THE REASON THAT S&S FAILED TO SUPPLY ANY DESCRIPTIVE DATA WITH ITS BID.

WE CONSIDER THAT THE FIRST ALTERNATIVE CONTENTION RAISES A QUESTION OF RESPONSIVENESS UNDER OUR HOLDING IN 48 COMP. GEN. 291, NOVEMBER 6, 1968, 48. THAT DECISION (ALSO INVOLVING DISEL ENGINE GENERATING PLANTS) CONTAINED A SOMEWHAT SIMILAR EXPERIENCE CLAUSE. WE HELD, AGREEING WITH THE POSITION OF THE ARMY CORPS OF ENGINEERS, THAT THE EXPERIENCE REQUIREMENTS CONCERNED THE "RELIABILITY OF THE ITEM OFFERED" AND THUS WENT TO THE RESPONSIVENESS OF THE BID, NOT TO THE RESPONSIBILITY OF THE BIDDER. THE SPECIFIC CONTENTIONS OF FAIRBANKS REGARDING THE OERIC ARE:

1. NEITHER THE BARBADOS NOR THE JAMAICA INSTALLATIONS CAN BE CONSIDERED "IDENTICAL TO THE SPECIFICATIONS OR SLIGHTLY MODIFIED," BECAUSE THE ENGINE'S ROTATIVE SPEED, BRAKE MEAN EFFECTIVE PRESSURE AND CYCLE ARE DIFFERENT FROM THOSE SPECIFIED IN THE INVITATION, AND BECAUSE THEY BOTH UTILIZE OUTDOOR SWITCHGEAR INSTEAD OF THE REQUIRED CONTROL UNIT;

2. EXPERIENCE FROM FOUR SEPARATE LOCATIONS IS REQUIRED TO MEET THE OERIC CLAUSE SINCE THE CLAUSE STATES THAT EXPERIENCE ON THE COMPLETE FULLY ASSEMBLED POWER PLANT MUST BE "IN ADDITION TO THE FOREGOING ALTERNATIVES";

3. THE S&S CERTIFICATE, INSOFAR AS IT RELATES TO THE MARINE OR LOCOMOTIVE EXPERIENCE, PROVIDES INSUFFICIENT INFORMATION, THAT IS, ONLY AN ESTIMATE OF THE NUMBER OF HOURS OF OPERATION, AND NO INFORMATION AT ALL ON HORSEPOWER, ROTATIVE SPEED, BRAKE MEAN EFFECTIVE PRESSURE, ETC.

WE NOTE THAT FAIRBANKS' OERIC IS IN CONSONANCE WITH AT LEAST THE SECOND PORTION OF THE ABOVE INTERPRETATION, IN THAT FOUR SEPARATE LOCATIONS ARE CITED, TWO OF WHICH ARE SPECIFICALLY SAID TO BE "REPRESENTATIVE OF COMPLETE FULLY ASSEMBLED POWER PLANTS."

WE DISAGREE WITH THE THIRD FAIRBANKS' ARGUMENT. A CAREFUL READING OF PARAGRAPH 1A.28 REVEALS THAT THE REQUIRED CERTIFICATE CONSISTS OF TWO PARTS: CERTIFICATION THAT THE LISTED OPERATING EXPERIENCE REQUIREMENTS HAVE BEEN MET, AND CERTAIN SUPPLEMENTARY INFORMATION, "ALL AS DELINEATED BELOW." SUBPARAGRAPH "B" STATES THE EXPERIENCE TO WHICH THE BIDDER MUST CERTIFY WITHOUT REQUIRING SUPPORTING INFORMATION. SUBPARAGRAPH "C" SETS FORTH THE SUPPLEMENTARY INFORMATION WHICH MUST ALSO BE CONTAINED IN THE CERTIFICATE BUT NO CERTIFICATION WITH REFERENCE THERETO IS REQUIRED. EXAMINATION OF THE S&S CERTIFICATE WITH REFERENCE TO SUBPARAGRAPH "C" CLEARLY SHOWS THAT ALL THE REQUIRED ITEMS OF INFORMATION WERE INCLUDED FOR BOTH THE BARBADOS AND JAMAICA LOCATIONS. IT IS TRUE THAT NO SUCH INFORMATION WAS PROVIDED WITH RESPECT TO THE LOCOMOTIVE EXPERIENCE RELATED IN THE CERTIFICATE, BUT SUCH INFORMATION WAS NOT REQUIRED UNDER PARAGRAPH 1A.28. THE ONLY REQUIREMENT IN PARAGRAPH 1A.28 AS TO LOCOMOTIVE SERVICE WAS THAT THE BIDDER CERTIFY THAT IN EACH OF TWO SEPARATE INSTALLATIONS THE ENGINE HAD OPERATED SUCCESSFULLY FOR NOT LESS THAN 6,000 HOURS WITHIN A 2- YEAR PERIOD. WE CONSTRUE THE FIRST SENTENCE OF S&S'S CERTIFICATE, TOGETHER WITH THE LAST PARAGRAPH THEREOF, TO CONSTITUTE THE REQUIRED CERTIFICATION.

THE SECOND CONTENTION ADVANCED BY FAIRBANKS HINGES UPON THE PHRASE "IN ADDITION TO FOREGOING ALTERNATIVES" AS USED IN SUBPARAGRAPH "B" OF PARAGRAPH 1A.28. HOWEVER, WE ARE NOT CONVINCED THAT SUCH LANGUAGE WAS MEANT TO EXCLUDE THE POSSIBILITY THAT THE SAME TWO INSTALLATIONS COULD FULFILL MORE THAN ONE OF THE EXPERIENCE REQUIREMENTS. NOR DO WE THINK THAT SUCH A CONSTRUCTION IS NECESSARILY IMPLIED. ACCORDINGLY, IT WAS PROPER FOR S&S TO REFER TO THE BARBADOS AND JAMAICA INSTALLATIONS IN SATISFACTION OF BOTH OF THE STATIONARY ELECTRIC GENERATION REQUIREMENTS. HOWEVER, WE BELIEVE THAT THERE IS MERIT TO FAIRBANKS' FIRST CONTENTION. THE NAVFAC RESPONSE THERETO WAS INCLUDED IN THE LETTER OF SEPTEMBER 11, 1969, AND IS AS FOLLOWS:

3. FINALLY, THE BARBADOS AND JAMAICA EXAMPLE POWER PLANTS WERE CONSIDERED TO BE SUFFICIENTLY CLOSE TO THE SPECIFICATION SO THAT THESE INSTALLATIONS MET THE REQUIREMENT FOR EQUIPMENT WHICH WAS EITHER IDENTICAL OR SLIGHTLY MODIFIED. IN THIS REGARD IT IS NOTED THAT THE SPECIFICATION EXPRESSLY PERMITS ROTATIVE SPEEDS, BRAKE MEAN EFFECTIVE PRESSURE, FIRING PRESSURE, AND CYCLES (50 OR 60) OF THE ENGINE USED IN THE INSTALLATIONS LISTED TO ESTABLISH EXPERIENCE TO BE OF HIGHER OR DIFFERENT VALUES THAN THOSE SET FORTH IN THE SPECIFICATION AS IS THE CASE WITH THE ENGINES CITED IN THE OERIC. WITH REGARD TO THE CONTROL UNIT, IT IS NOTED THAT STEWART AND STEVENSON TOOK NO EXCEPTION TO THE TYPE OF CONTROL UNIT INDICATED IN THE SPECIFICATION, AND THE TYPE DEFINED THEREIN WILL BE SUPPLIED.

THE ROOT ISSUE CONCERNS THE DEGREE OF SIMILARITY BETWEEN THE COMPLETE, FULLY ASSEMBLED POWER PLANTS AT BARBADOS AND JAMAICA AND THE GENERAL MOTORS BRAND NAME GENERATING PLANT AS SPECIFICALLY MODIFIED BY NAVFAC SPECIFICATIONS 29-69-0069. THE ADMINISTRATIVE OFFICIALS STATE THAT THE BARBADOS AND JAMAICA PLANTS WERE CONSIDERED "SUFFICIENTLY CLOSE" WHEREAS FAIRBANKS CONTENDS THAT THEY WERE NOT SUFFICIENTLY SIMILAR UNDER THE OERIC.

THE DISPUTE IS NOT A TECHNICAL ONE; RATHER, IT IS ONE OF DEFINITION. THE CLAUSE DID NOT INDICATE WHAT DEGREE OF MODIFICATION WOULD BE CONSIDERED "SLIGHT." THE LANGUAGE, IN OUR OPINION, ACCORDS TO THE CONTRACTING OFFICER TOO MUCH INTERPRETIVE LEEWAY FOR A FORMALLY ADVERTISED PROCUREMENT. (FOR THAT MATTER, IT APPEARS THAT THE MEANING OF "SUCCESSFUL" PERFORMANCE COULD HAVE BEEN SPELLED OUT WITH GREATER CLARITY.) IT IS EVIDENT THAT S&S CONSTRUED THE BARBADOS AND JAMAICA LOCATIONS AS BEING SUFFICIENTLY SIMILAR TO QUALIFY UNDER THE WORDS "SLIGHTLY MODIFIED." THE ABSENCE OF AN APPROPRIATE STANDARD DOES NOT APPEAR, HOWEVER, TO HAVE INHIBITED THE "FULL AND FREE COMPETITION" REQUIRED BY 10 U.S.C. 2305(B). ON THE OTHER HAND, THE LANGUAGE OF PARAGRAPH 1A.28, IF UTILIZED IN THE FUTURE, SHOULD BE REDRAFTED BY NAVFAC TO ELIMINATE ALL AREAS OF VAGUENESS.

FAIRBANKS HAS ALSO ALLEGED NONCOMPLIANCE WITH ASPER 2-407.9(B). THAT BIDDER PROTESTED TO THE CONTRACTING OFFICER APPROXIMATELY 1 MONTH PRIOR TO AWARD, AND IT SPECIFICALLY REQUESTED THE CONTRACTING OFFICER, IF THE PROTEST WERE NOT UPHELD, TO FORWARD THE MATTER FOR OUR REVIEW BEFORE ANY AWARD WAS MADE. ON MAY 2, 1969, WE WERE INFORMALLY ADVISED BY NAVFAC OF THIS PROTEST. WE WERE ALSO INFORMED THAT URGENCY PRECLUDED FURTHER DELAY IN AWARD, WHICH WAS SUBSEQUENTLY MADE ON MAY 5, 1969. WE THEREFORE DO NOT FEEL THAT THE CITED ASPR PROVISION WAS COMPROMISED HERE.

WE MUST REITERATE THAT THE INVITATION WAS POORLY DRAFTED IN THAT IT LACKED A LIST OF SALIENT CHARACTERISTICS AND CONTAINED AN OERIC CLAUSE WHICH WAS VAGUE AND CONFUSING. WE URGE THAT CORRECTIVE ACTIONS BE TAKEN TO PREVENT RECURRENCES.