B-167944, NOVEMBER 24, 1969, 49 COMP. GEN. 347

B-167944, NOVEMBER 24, 1969, 49 COMP. GEN. 347

CONTRACTS -- SPECIFICATIONS -- RESTRICTIVE -- PARTICULAR MAKE -- INVITATION SUFFICIENCY AN INVITATION FOR BIDS THAT IN SOLICITING A BRAND NAME OR EQUAL SEWER RODDING MACHINE LISTED AS ESSENTIAL CHARACTERISTICS THE NONOPERATIONAL FEATURES OF THE MACHINE THAT DID NOT SUGGEST THE MACHINE'S PRIMARY FUNCTION OR ITS REQUIRED LEVEL OF PERFORMANCE IS A RESTRICTIVE INVITATION, FOR BIDDERS COULD ONLY DETERMINE THE EQUALITY OF THEIR PRODUCTS FROM THE LISTED CHARACTERISTICS OF THE BRAND NAME, WHEREAS "OR EQUAL" MEANS TO BE ACCEPTABLE, A PRODUCT NEED ONLY BE CAPABLE OF MEETING THE SAME STANDARD OF PERFORMANCE AS THE BRAND NAME. IT IS NOT ENOUGH THAT AN INVITATION FURNISH THE ESSENTIAL CHARACTERISTICS OF THE BRAND NAME--NOW PROVIDED IN SECTION 1-1206.1(A) OF THE ARMED SERVICES PROCUREMENT REGULATION IN REVISION NO. 3, JUNE 30, 1969--AND FUTURE INVITATIONS SHOULD CONTAIN SUFFICIENT INFORMATION FOR THE INTELLIGENT PREPARATION OF BIDS SO AS TO OBTAIN THE MAXIMUM COMPETITION CONTEMPLATED BY 10 U.S.C. 2305(B).

TO THE SECRETARY OF THE ARMY, NOVEMBER 24, 1969

WE REFER TO A LETTER, WITH ENCLOSURES, DATED OCTOBER 8, 1969, FROM THE GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, RELATIVE TO THE PROTEST OF THE FLEXIBLE PIPE TOOL DIVISION, ROCKWELL MANUFACTURING COMPANY, AGAINST THE AWARD OF CONTRACT NO. DACW61-69-C-0193 TO O'BRIEN MANUFACTURING COMPANY, INC., UNDER INVITATION FOR BIDS DACW61-69-B 0072, ISSUED ON MAY 29, 1969, BY THE UNITED STATES ARMY ENGINEER DISTRICT, PHILADELPHIA, PENNSYLVANIA.

THE SUBJECT INVITATION SOLICITED BIDS FOR FURNISHING A SEWER RODDING MACHINE, WITH ASSOCIATED PARTS, DESCRIBED ON PAGE 6 OF THE INVITATION AS FOLLOWS:

1. SEWER RODDING MACHINE, REAR TOW, TRAILER MOUNTED, 2-WHEEL, 1 EA

WITH RETRACTABLE SWIVEL WHEEL ON TOWING END, WITH 12-VOLT

STARTER GENERATOR, "FLEXIBLE" PIPE RODER MODEL RPRS-1 OR EQUAL.

THE FOLLOWING ACCESSORIES (OR CORRESPONDING ACCESSORIES ON

EQUIPMENT OTHER THEN "FLEXIBLE") SHALL BE FURNISHED WITH THE

RODDING MACHINE:

(A) 18 FOOT ROD GUIDE HOSE, ROD GUIDE BELL 1 EA

(B) STREET STAND FOR ROD GUIDE HOSE 1 EA

(C) EZY MANHOLE GUIDE BRACE 1 EA

(D) RTOX 4" ROOT SAW 1 EA

(E) RT-1X6" ROOT SAW 1 EA

(G) SO-3-6--6" SELECTO BLADE, 3 BLADE CUTTER 1 EA

(F) TP-1--6" PORCUPINE 2 EA

(H) RC-1 FLEXICROME RODS AND COUPLINGS 5/16" DIAMETER X 120 PCS

36" L.

(IILLUSTRATED PARTS BOOK 2 EA

BIDDERS WERE ALSO ADVISED ON PAGE 6 THAT SINCE THE EQUIPMENT TO BE PROCURED IS TO BE USED TO CLEAN DRAINS ON CANAL EMBANKMENTS, "LIGHT WEIGHT AND EASE OF MANEUVERABILITY ON STEEP SLOPES AND EMBANKMENTS ARE ESSENTIAL FEATURES OF THE EQUIPMENT TO BE FURNISHED."

PARAGRAPH SP 1.04 OF THE INVITATION CONTAINED THE CLAUSE REQUIRED BY PARAGRAPH 1-1206.3 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 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.

OF THE SIX BIDDERS SOLICITED, ONLY TWO BIDDERS RESPONDED: O'BRIEN MANUFACTURING COMPANY, INC., WITH A BID IN THE AMOUNT OF $2,754; AND FLEXIBLE PIPE TOOL DIVISION, ROCKWELL MANUFACTURING COMPANY, WITH A BID IN THE AMOUNT OF $2,910. O'BRIEN OFFERED TO FURNISH ITS MODEL 900 HMC, SECTIONAL SEWER RODDER, AS EQUAL TO FLEXIBLE'S MODEL RPRS 1, AND ON JUNE 17, 1969, THE PROCURING ACTIVITY FORWARDED O'BRIEN'S BID, TOGETHER WITH ITS DESCRIPTIVE LITERATURE, TO THE RESIDENT ENGINEER, CHESAPEAKE CITY RESIDENT OFFICE, MARYLAND, FOR A TECHNICAL EVALUATION. ON JUNE 19, 1969, THE RESIDENT ENGINEER DETERMINED THAT O'BRIEN'S EQUIPMENT WAS "EQUAL" TO THE FLEXIBLE MODEL WITHIN THE MEANING OF ASPR 1-1206.4(A), AND IN ACCORDANCE WITH HIS RECOMMENDATION, THE CONTRACTING OFFICER AWARDED THE CONTRACT ON JUNE 23, 1969, TO O'BRIEN AS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER. WE UNDERSTAND THAT THE ITEM WAS DELIVERED TO THE GOVERNMENT ON SEPTEMBER 25, 1969.

BY TELEGRAM DATED JUNE 26, 1969, AND LETTERS DATED JULY 16, AUGUST 13 AND 27, 1969, FLEXIBLE UNSUCCESSFULLY PROTESTED TO THE PROCURING ACTIVITY AGAINST THE AWARD ON THE GROUND THAT THE O'BRIEN UNIT DEVIATED FROM THE SPECIFICATIONS COVERING THE FLEXIBLE MODEL AND WAS THEREFORE NONRESPONSIVE. BY LETTER DATED SEPTEMBER 18, 1969, FLEXIBLE PROTESTED TO OUR OFFICE AND REQUESTED THAT WE REVIEW THE PROCUREMENT.

AN EXAMINATION OF FLEXIBLE'S CORRESPONDENCE WITH THE PROCURING ACTIVITY INDICATES THAT ITS OBJECTION TO THE AWARD IS FOUNDED ON ASSERTED VARIANCES OF THE O'BRIEN MODEL FROM THE SPECIFICATIONS COVERING THE REFERENCED FLEXIBLE MODEL. WE HAVE BEEN INFORMALLY ADVISED THAT SPECIFICATIONS COVERING THE FLEXIBLE MODEL WERE NOT FURNISHED WITH THE INVITATION, AND WE HAVE DISCOVERED NO REFERENCE TO SUCH SPECIFICATIONS IN THE INVITATION. SEE ASPR 1-1206.2(C). THE PRINCIPAL DIFFERENCE ADVANCED IS THAT THE O'BRIEN MODEL HAS A HYDRAULIC DRIVE WHILE THE SPECIFICATIONS FOR THE FLEXIBLE MODEL CALL FOR A MECHANICAL DRIVE. IN ITS LETTER OF AUGUST 13, 1969, TO THE PROCURING ACTIVITY, FLEXIBLE MAINTAINED THAT ANY INVESTIGATION INTO THE TYPES OF MACHINES AVAILABLE WOULD REVEAL THAT THERE ARE BOTH MECHANICALLY AND HYDRAULICALLY OPERATED MACHINES AVAILABLE AND THAT IT COULD HAVE OFFERED A COMPETITIVE HYDRAULICALLY OPERATED MACHINE. ALSO, FLEXIBLE QUESTIONED WHETHER THE WEIGHT OF THE O'BRIEN MODEL, APPROXIMATELY 2,000 POUNDS AS OPPOSED TO APPROXIMATELY 1,300 POUNDS FOR THE FLEXIBLE MODEL, RENDERED IT UNSUITABLE FOR THE INTENDED USE DESCRIBED ON PAGE 6 OF THE INVITATION.

THE CONTRACTING OFFICER ACKNOWLEDGES THAT IN ADDITIONAL TO THE TYPE OF DRIVE AND WEIGHT, THE O'BRIEN MODEL DIFFERS IN OTHER RESPECTS FROM THE FLEXIBLE MODEL, BUT MAINTAINS THAT THE DIFFERENCES ARE NOT CONTROLLING AND THAT THE O'BRIEN MODEL IS IN "ALL MATERIAL RESPECTS 'EQUAL' TO THAT OF FLEXIBLE, AS FAR AS PERFORMANCE CHARACTERISTICS ARE CONCERNED." IN THIS CONNECTION, THE CONTRACTING OFFICER'S REPORT CONTAINS THE FOLLOWING COMPARISON OF THE O'BRIEN AND FLEXIBLE MODELS, WITH RESPECT TO WHICH IT IS STATED THAT THEY "COMPARE CLOSELY IN MANY PRINCIPAL FEATURES":

O'BRIEN FLEXIBLE

7 HP ENGINE 6 HP ENGINE

700 FT. RODS 600 FT. RODS

CHAIN DRIVE (POSITIVE) CHAIN DRIVE (POSITIVE)

4000 LB. PULL BACK 3000 LB. PULL BACK

OVERLOAD CLUTCH OVERLOAD CLUTCH

VARIABLE SPEED TRANSMISSION VARIABLE SPEED TRANSMISSION

DISC BRAKE ON REEL DISC BRAKE ON REEL

FOOTAGE METER FOOTAGE METER

12-VOLT STARTER 12-VOLT STARTER

WE HAVE BEEN INFORMALLY ADVISED, HOWEVER, THAT THE TECHNICAL EVALUATION OF THE O'BRIEN BID WAS CONFINED TO THE DETERMINATION OF ITS CONFORMANCE TO THE CHARACTERISTICS LISTED ON PAGE 6 OF THE INVITATION.

THE CIRCUMSTANCES OF THIS PROCUREMENT EVIDENCE AN INATTENTIVENESS TO THE APPROACH THAT SHOULD BE FOLLOWED IN THE PREPARATION OF PURCHASE DESCRIPTIONS AND LEAD US TO THE CONCLUSION THAT THE INSTANT INVITATION DID NOT PERMIT THE FULL AND FREE COMPETITION REQUIRED BY 10 U.S.C. 2305(B).

IF WE GIVE CREDENCE TO THE CONTRACTING OFFICER'S POSITION THAT ONLY THE CHARACTERISTICS LISTED ON PAGE 6 WERE ESSENTIAL (AND THE STATED SCOPE OF THE TECHNICAL EVALUATION OF THE O'BRIEN MODEL IS AT LEAST CONSISTENT WITH THIS POSITION), THE SUGGESTION CAN BE MADE THAT THE INVITATION REFLECTS LITERAL COMPLIANCE WITH OUR DECISIONS IN THIS AREA REQUIRING DISCLOSURE OF ESSENTIAL CHARACTERISTICS AND IS THEREFORE NOT DEFECTIVE. IN THIS CONNECTION, TWO RECENT DECISIONS OF OUR OFFICE (49 COMP. GEN.--(1969); 48 COMP. GEN. 441 (1968)) HAVE CITED WITH APPROVAL THE FOLLOWING RULE EXPRESSED IN B-157857, JANUARY 26, 1966:

*** 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.

WE BELIEVE, HOWEVER, THAT TO YIELD TO THE CONCLUSION SUGGESTED, IT WOULD BE NECESSARY TO IGNORE THE FUNDAMENTAL REQUIREMENT THAT ADVERTISED INVITATIONS MUST CONTAIN SUFFICIENT INFORMATION FOR THE INTELLIGENT PREPARATION OF BIDS SO THAT THE MAXIMUM COMPETITION POSSIBLE IS OBTAINED. THE REQUIREMENT THAT BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS SET FORTH ALL MATERIAL CHARACTERISTICS OF THE ITEM DEEMED ESSENTIAL IS BUT A DERIVATIVE APPLICATION OF THIS PRINCIPLE.

AS WE VIEW PAGE 6 OF THE INVITATION, THE CONTRACTING OFFICER'S INTERPRETATION REQUIRES ONE ASSUMPTION WHICH WE BELIEVE REFLECTS THE RESTRICTIVE CHARACTER OF THE INVITATION; NAMELY, THAT A POTENTIAL BIDDER WHEN EXAMINING THE INVITATION WOULD RECOGNIZE THAT THE EQUALITY OF THE PRODUCT COULD BE DETERMINED ONLY BY REFERENCE TO THE LISTED CHARACTERISTICS OF THE BRAND NAME AND NO OTHER CHARACTERISTICS. IT SHOULD BE EMPHASIZED HERE THAT THE "OR EQUAL" REQUIREMENT IS GENERALLY CONSIDERED TO MEAN THAT AN ACCEPTABLE PRODUCT NEED ONLY BE CAPABLE OF MEETING THE SAME STANDARD OF PERFORMANCE AS THE BRAND NAME. CF. 45 COMP. GEN. 462, 466 (1966). WITH THIS IN MIND, IT SHOULD BE NOTED THAT APART FROM THE REQUIREMENT FOR A 12-VOLT GENERATOR AND THE NEED THAT THE MACHINE BE LIGHT WEIGHT AND MANEUVERED EASILY, THE LISTED CHARACTERISTICS DO NOT SUGGEST TO US ANY FEATURES OF THE MACHINE ITSELF AFFECTING THE PERFORMANCE OF ITS PRIMARY FUNCTION, NOR FOR THAT MATTER IS THE REQUIRED LEVEL OF PERFORMANCE STATED. IN ADDITION TO THE TYPE OF DRIVE, THE CONTRACTING OFFICER'S COMPARISON OF THE O'BRIEN AND FLEXIBLE MODELS WOULD SEEM TO US TO SUGGEST OTHER OPERATIONAL FEATURES WHICH MIGHT AFFECT PERFORMANCE OF THE MACHINE.

WE ARE NOT IN A POSITION TO REACH A TECHNICAL JUDGMENT AS TO WHICH OTHER OPERATIONAL FEATURES ARE IN FACT ESSENTIAL TO PERFORMANCE OF THE MACHINE. NEVERTHELESS, IT WOULD BE ABSURD TO SUGGEST THAT A PRODUCT WHICH FAILS TO INCLUDE ANY OF THESE FEATURES COULD BE DETERMINED TO BE ACCEPTABLE, BUT THIS, IN EFFECT, IS THE CONCLUSION THAT FLOWS FROM THE CONTRACTING OFFICER'S POSITION. CERTAINLY, NO MANUFACTURER OF THE EQUIPMENT INVOLVED HERE WOULD BE INSENSITIVE TO THESE FEATURES AND, WHEN FACED WITH AN INVITATION SILENT IN THIS AREA, HE IS, IN OUR VIEW, REQUIRED TO DIVINE THE ESSENTIALITY OF THESE FEATURES, AS WELL AS THEIR IMPACT ON THE UNSTATED LEVEL OF PERFORMANCE. UNDER THE CIRCUMSTANCES, THE BRAND NAME DESIGNATION WOULD BE OF NO REAL ASSISTANCE TO THE BIDDER IN MAKING THIS DETERMINATION. IT DOES, HOWEVER, HAVE THE PRACTICAL EFFECT OF LIMITING THE NAMED MANUFACTURER'S SUBMISSION TO THE MODEL SPECIFIED AND MIGHT SUGGEST TO POTENTIAL BIDDERS THAT ALL OF THE UNSTATED FEATURES OF THE BRAND NAME ARE ESSENTIAL. AND WHERE, AS IS ALLEGED BY FLEXIBLE, A PARTICULAR CHARACTERISTIC OF THE MODEL DESIGNATED DISTINGUISHES IT FROM OTHER COMPETITIVE EQUIPMENT OFFERED BY THE BRAND NAME MANUFACTURER AND OTHERS, THE ADVERSE EFFECT ON THE COMPETITIVE BASE RESULTING FROM A FAILURE TO PROVIDE A SUFFICIENTLY DETAILED DESCRIPTION OF THE GOVERNMENT'S NEEDS IS CLEAR.

WITH RESPECT TO THE USE OF A BRAND NAME OR EQUAL PURCHASE DESCRIPTION, THE RECORD INDICATES ONLY THAT IT WAS UTILIZED HERE BECAUSE NO APPLICABLE MILITARY OR FEDERAL SPECIFICATION EXISTED, AND IT WAS DETERMINED THAT IT WOULD BE "IMPRACTICABLE OR UNECONOMICAL TO PREPARE A SPECIFICATION" FOR A "ONE-TIME PROCUREMENT ITEM." SEE ASPR 1 1202 (B)(VI) AND (VII) (A). GIVEN THIS DETERMINATION, IMMEDIATE RECOURSE TO A BRAND NAME OR EQUAL PURCHASE DESCRIPTION IS NOT JUSTIFIED BY OUR DECISIONS. SEE 41 COMP. GEN. 76, 80 (1961); 38 ID. 291, 294 (1958); 10 ID. 555, 556 (1931); 5 ID. 835, 837 (1926). THE REQUIRED APPROACH IS, WE BELIEVE, CLEARLY INDICATED BY THE GOVERNING REGULATION. ASPR 1-1206.1(A) (JANUARY 1, 1969), IN EFFECT AT THE TIME THIS PROCUREMENT WAS INITIATED, PROVIDED AS FOLLOWS:

(A) A PURCHASE DESCRIPTION MAY BE USED IN LIEU OF A SPECIFICATION WHEN AUTHORIZED BY 1-1202(B) AND, SUBJECT TO THE RESTRICTION ON REPETITIVE USE IN 1-1202(B)(VII), WHERE NO APPLICABLE SPECIFICATION EXISTS. A PURCHASE DESCRIPTION SHOULD SET FORTH THE ESSENTIAL CHARACTERISTICS AND FUNCTIONS OF THE ITEMS OR MATERIALS REQUIRED. PURCHASE DESCRIPTIONS SHALL NOT BE WRITTEN SO AS TO SPECIFY A PRODUCT, OR A PARTICULAR FEATURE OF A PRODUCT, PECULIAR TO ONE MANUFACTURER AND THEREBY PRECLUDE CONSIDERATION OF A PRODUCT MANUFACTURED BY ANOTHER COMPANY, UNLESS IT IS DETERMINED THAT THE PARTICULAR FEATURE IS ESSENTIAL TO THE GOVERNMENT'S REQUIREMENTS, AND THAT SIMILAR PRODUCTS OF OTHER COMPANIES LACKING THE PARTICULAR FEATURE WOULD NOT MEET THE MINIMUM REQUIREMENTS FOR THE ITEM. GENERALLY, THE MINIMUM ACCEPTABLE PURCHASE DESCRIPTION IS THE IDENTIFICATION OF A REQUIREMENT BY USE OF BRAND NAME FOLLOWED BY THE WORDS "OR EQUAL." 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. PURCHASE DESCRIPTIONS OF SERVICES TO BE PROCURED SHOULD OUTLINE TO THE GREATEST DEGREE PRACTICABLE THE SPECIFIC SERVICES THE CONTRACTOR IS EXPECTED TO PERFORM. THUS, CONSISTENT WITH THE REQUIREMENTS OF 10 U.S.C. 2305(B), PURCHASE DESCRIPTIONS ARE TO SET FORTH THE "ESSENTIAL CHARACTERISTICS AND FUNCTIONS" OF THE ITEM REQUIRED IN TERMS THAT PERMIT THE BROADEST COMPETITIVE BASE CONSISTENT WITH THE GOVERNMENT'S NEEDS. THIS SHOULD, IF POSSIBLE, BE THE PROCEDURE OF CHOICE, AS THE ABOVE-CITED DECISIONS AND THE REGULATION INDICATE. MOREOVER, FROM THE STANDPOINT OF AFFORDING POTENTIAL BIDDERS AN EQUAL OPPORTUNITY TO COMPETE, IT SHOULD BE NOTED THAT EVEN WHEN A BRAND NAME OR EQUAL PURCHASE DESCRIPTION IS USED, THE REQUIREMENT FOR AN IDENTIFICATION OF ESSENTIAL CHARACTERISTICS REMAINS, ASPR 1 1206.2(B). HERE, WE FIND NOTHING IN THE RECORD BEFORE US WHICH WITH PARTICULARITY. IN OUR VIEW, THE BRAND NAME OR EQUAL DESIGNATION WAS SUGGESTS THAT THE GOVERNMENT'S REQUIREMENTS COULD NOT HAVE BEEN SPELLED OUT INCLUDED AS A MATTER OF ADMINISTRATIVE CONVENIENCE TO PARTICULARIZE ITS MINIMUM REQUIREMENT FOR A "SEWER RODDING MACHINE." WE BELIEVE THAT COMPLIANCE WITH ASPR 1-1206.1(A) WOULD HAVE LED TO A COMPLETE SPECIFICATION OF THE STANDARD OF PERFORMANCE REQUIRED OF THE REQUESTED ITEM. PARENTHETICALLY, WE NOTE THAT ASPR 1-1206.1(A) (REVISION NO. 3, JUNE 30, 1969) NOW PROVIDES SPECIFIC GUIDANCE IN THIS AREA BY LISTING CHARACTERISTICS WHICH ARE TO BE CONSIDERED IN EXPRESSING THE GOVERNMENT'S MINIMUM REQUIREMENTS:

(I) COMMON NOMENCLATURE;

(II) KIND OF MATERIAL, I.E., TYPE, GRADE, ALTERNATIVES, ETC.;

(III) ELECTRICAL DATA, IF ANY;

(IV) DIMENSIONS, SIZE OF CAPACITY;

(V) PRINCIPLES OF OPERATION;

(VI) RESTRICTIVE ENVIRONMENTAL CONDITIONS;

(VII) INTENDED USE, INCLUDING--

(A) LOCATION WITHIN AN ASSEMBLY, AND

(B) ESSENTIAL OPERATING CONDITIONS;

(VIII) EQUIPMENT WITH WHICH THE ITEM IS TO BE USED;

(IX) OTHER PERTINENT INFORMATION THAT FURTHER DESCRIBES THE ITEM,

MATERIAL OF SERVICE REQUIRED.

IN VIEW OF THE FACT THAT DELIVERY OF THE EQUIPMENT HAS ALREADY BEEN MADE, NO REMEDIAL ACTION IS NOW POSSIBLE. WE EXPECT, HOWEVER, THAT APPROPRIATE STEPS WILL BE TAKEN TO AVOID A REPETITION OF THE FOREGOING CIRCUMSTANCES IN THE CASE OF FUTURE SIMILAR PROCUREMENTS.