B-179762, 178718, MAY 15, 1974

B-179762, 178718, MAY 15, 1974

1. PREPARATION AND ESTABLISHMENT OF SPECIFICATIONS TO REFLECT MINIMUM NEEDS OF GOVERNMENT ARE MATTERS PRIMARILY WITHIN JURISDICTION OF PROCURING AGENCY, SUBJECT TO QUESTION BY GAO ONLY WHEN NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. 2. WHERE CONTRACTING AGENCY IN BRAND NAME OR EQUAL PURCHASE DESCRIPTION GOES BEYOND MAKE OR MODEL OF BRAND NAME AND SPECIFIES PARTICULAR FEATURES, SUCH FEATURES MUST BE PRESUMED TO HAVE BEEN REGARDED AS MATERIAL AND ESSENTIAL TO NEEDS OF GOVERNMENT. 3. GAO RECOGNIZES THAT GOVERNMENT MAY OBTAIN TECHNICAL EQUIPMENT WHICH EMPLOYS OPERATIONAL FEATURES WHICH UPGRADE STATE-OF-THE-ART EVEN THOUGH SIMILAR EQUIPMENT GENERALLY EQUIVALENT FROM PERFORMANCE STANDPOINT IS COMMERCIALLY AVAILABLE. 4. OPERATIONAL OR HUMAN ENGINEERING ADVANTAGES INVOLVED IN PROCUREMENT OF EQUIPMENT IS PROPER REFLECTION ON MINIMUM NEEDS OF GOVERNMENT.

TO PARTICLE DATA, INC.; COULTER ELECTRONICS, INC.:

ON JANUARY 31, MAY 25, AND JUNE 4, 1973, INVITATIONS FOR BIDS (IFB) NOS. NIH-73B-(SS)-203 (-203); NIH-73B-(SS)-400 (-400); AND NIH-73B-(SS) 423 (- 423) WERE ISSUED RESPECTIVELY BY THE NATIONAL INSTITUTES OF HEALTH, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW). EACH OF THESE SOLICITATIONS SPECIFIED A COULTER ELECTRONICS (COULTER) MODEL ZBI PARTICLE COUNTER "OR EQUAL." ON AUGUST 24, 1973, THE FOOD AND DRUG ADMINISTRATION, SUPPLY MANAGEMENT BRANCH, ISSUED IFB NO. PROC 7426(A) FOR THE FURNISHING OF ONE "COUNTER," DESCRIBED AS A COULTER MODEL ZBI, "OR EQUAL."

ALL OF THE SOLICITATIONS RESULTED IN PROTESTS BEING FILED BY PARTICLE DATA, INC. (PDI). SOLICITATION -400 WAS PROTESTED, BEFORE AWARD, ON THE GROUNDS THAT (1) THE AGGREGATE AWARD PROVISION MADE IT UNDULY RESTRICTIVE, AND (2) THE RECORDER AND TELEPRINTER WERE UNNECESSARY. SOLICITATIONS - 203, -423 AND 7426(A) WERE PROTESTED AS CONTAINING UNDULY RESTRICTIVE SPECIFICATIONS IN THAT THE STATED SALIENT CHARACTERISTICS WERE NOT THE MINIMUM NEEDS OF THE GOVERNMENT. OF THE LATTER SOLICITATIONS, -423 AND 7462(A) REMAIN BEFORE AWARD.

PROTEST ON SOLICITATION -400

PRIOR TO THE OPENING DATE OF JUNE 18, 1973, A LETTER DATED JUNE 9, 1973, FROM PDI REQUESTED THAT THE AGGREGATE AWARD PROVISION BE REMOVED FROM THE SOLICITATION. THE QUESTION WAS ALSO RAISED AS TO THE NECESSITY FOR A RECORDER AND A TELEPRINTER. BY MEMORANDUM DATED JUNE 14, 1973, THE HEW SCIENTIFIC INVESTIGATOR JUSTIFIED THE NEED FOR BOTH THE RECORDER AND THE TELEPRINTER, AND ALSO THE AGGREGATE AWARD PROVISION. PDI'S PROTEST WAS DENIED BY HEW ON JUNE 15, 1973.

FOUR BIDS WERE RECEIVED IN A TIMELY FASHION AND PUBLICLY OPENED ON JUNE 18, 1973. THE TWO LOWER BIDS RECEIVED WERE CONSIDERED TO BE NONRESPONSIVE TO THE SPECIFICATIONS AND WERE REJECTED. THE NEXT LOW BIDDER, COULTER ELECTRONICS, INC. (COULTER), SUBMITTED A RESPONSIVE BID, WAS CONSIDERED TO BE A RESPONSIBLE CONTRACTOR, AND IT WAS ANTICIPATED THAT AWARD WOULD BE MADE TO THAT FIRM. PDI SUBMITTED THE HIGHEST BID AS TO PRICE ON THIS SOLICITATION.

IT IS HEW'S POSITION THAT THE FORMAT AND REQUIREMENTS OF THE SOLICITATION WERE PROPER. AWARD IN THE AGGREGATE WAS NECESSARY AS EACH ITEM REQUESTED WAS FABRICATED TO ACCEPT A HARD LINE PROGRAM. THE DATA FROM THE INTERFACE OF A HARD LINE PROGRAM WILL ONLY TRANSFER INTO A PRINTER CALIBRATED TO ACCEPT THE ORIGINAL PROGRAM LINE. ADDITIONALLY, THE JUSTIFICATION FOR THE TWO INSTRUMENTS (RECORDER AND TELEPRINTER) WAS THAT THEY WOULD NOT BE USED REDUNDANTLY, BUT RATHER EACH WOULD BE USED IN THE RESEARCH PROGRAM AS DIFFERENT TOOLS (1) TO GAIN RAPID KNOWLEDGE OF THE SIZE DISTRIBUTION CURVE AND; (2) TO STORE THE REQUIRED DATE IN THE CHANNELYZER. IT WAS BASED UPON THESE REASONS THAT HEW INITIALLY DETERMINED PDI'S PROTEST TO BE WITHOUT MERIT.

THE PROCUREMENT OFFICIALS INVOLVED WITH THIS SOLICITATION HAVE DETERMINED WHAT THEY BELIEVE TO BE THE REQUIREMENTS THAT ARE SUFFICIENT TO MEET THE GOVERNMENT'S MINIMUM NEEDS. IN THIS REGARD, OUR OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THE PREPARATION AND ESTABLISHMENT OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE PROCUREMENT AGENCY, TO BE QUESTIONED BY OUR OFFICE ONLY WHEN NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. 53 COMP. GEN. (B-180434, APRIL 12, 1974); 38 COMP. GEN. 190 (1958); 37 ID., 757 (1958), 17 ID., 554 (1938); B-176420, JANUARY 4, 1973. RECOGNIZE THAT GOVERNMENT PROCUREMENT OFFICIALS, WHO ARE FAMILIAR WITH THE CONDITIONS UNDER WHICH SUPPLIES OR EQUIPMENT HAVE BEEN USED IN THE PAST ARE GENERALLY IN THE BEST POSITION TO KNOW THE GOVERNMENT'S ACTUAL NEEDS AND ARE BEST ABLE TO DRAFT APPROPRIATE SPECIFICATIONS. THUS, WE HAVE HELD THAT THE GOVERNMENT CANNOT BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WOULD HAVE THE EFFECT OF REQUIRING SPECIFICATIONS NOT MEETING THE CONSIDERED NEEDS OF THE PROCUREMENT AGENCY.

BASED ON THE RECORD BEFORE US, WE FIND THAT PROPER CONSIDERATION WAS GIVEN TO WHAT EQUIPMENT WAS NECESSARY FOR THIS PROCUREMENT. THERE IS NO RECORD OF ANY PROTEST FROM ANY OTHER BIDDERS CONCERNING THE REQUIRED EQUIPMENT OR MANNER OF AWARD. THEREFORE, WE BELIEVE THAT THE PROCURING AGENCY PROPERLY EXERCISED ITS DISCRETION IN DRAFTING THE SPECIFICATIONS AND WE WILL NOT QUESTION THIS DETERMINATION.

ACCORDINGLY, AWARD MAY BE MADE TO THE LOW, RESPONSIVE AND RESPONSIBLE BIDDER UNDER THE SOLICITATION.

PROTESTS ON SOLICITATIONS -203, -423 AND 7426(A)

THE THREE SOLICITATIONS IN QUESTION ALL INVOLVE PROTESTS BY PDI AGAINST THE RESTRICTIVE NATURE OF THE SALIENT CHARACTERISTICS INVOLVED. IN ALL THREE INSTANCES, PDI WAS THE LOW BIDDER UNDER THE "BRAND NAME OR EQUAL" SOLICITATIONS. HOWEVER, WHEN EVALUATED IN ACCORDANCE WITH FEDERAL PROCUREMENT REGULATIONS (FPR) 1-1.307-7 ENTITLED "BID EVALUATION AND AWARD, 'BRAND NAME OR EQUAL' DESCRIPTION," IT WAS DETERMINED THAT THE PRODUCT OFFERED BY PDI DID NOT CONTAIN THE REQUIRED VIEWING SCREEN OR MANOMETERS. THEREFORE, THE LOW BIDS OF PDI WERE REJECTED IN ALL THREE CASES.

THE PROTESTS HAVE GENERATED A SUBSTANTIAL AMOUNT OF DISCUSSION AND CORRESPONDENCE COVERING THE TECHNICAL AND LEGAL ISSUES PERTINENT THERETO. FROM OUR REVIEW OF THE ENTIRE RECORD, WE MUST DENY THE PROTESTS OF PDI FOR REASONS SET FORTH BELOW.

THE IFB'S IN QUESTION SOLICITED BIDS FOR THE PURCHASE OF COUNTING DEVICES, "MODEL ZBI OF COULTER ELECTRONICS, INC., OR EQUAL." ESSENTIAL CHARACTERISTICS OF THE BRAND NAME WERE LISTED IN THE IFB, INCLUDING REQUIREMENTS FOR THE FOLLOWING:

"DUAL VOLUME MANOMETER: THE PARTICLE COUNTER SHALL BE EQUIPPED WITH A 100/500 MICROLITER DUAL VOLUME MANOMETER, WHICH SHALL BE OF SINGULAR CONSTRUCTION, CONSISTING OF ONLY ONE (1) PIECE OF GLASS. ***

"MONITORING: INSTRUMENT SHALL BE EQUIPPED WITH MONITOR SYSTEMS TO PROVIDE ELECTRICAL AND MECHANICAL CHECKS AND DETECT APERTURE BLOCKAGE.

"(A) OSCILLOSCOPE - FOR DISPLAYING AN ELECTRICAL PATTERN OF INDIVIDUAL PARTICLES IN THE FORM OF A SERIES OF VOLTAGES PULSES. ***

"(B) APERTURE (ORIFICE) - THE INSTRUMENT SHALL BE PROVIDED WITH A MICRO- PROJECTION, MONITOR VIEWING SCREEN TO AID IN THE DETECTION OF APERTURE BLOCKAGE. THE IMAGE OF THE APERTURE SHALL BE DISPLAYED ON THE FRONT PANEL SCREEN OF THE INSTRUMENT TO ALLOW SIMULTANEOUS VIEWING OF THE APERTURE IMAGE AND THE OSCILLOSCOPE."

PRIOR TO THE DATES SET FOR BID OPENING, PDI QUESTIONED THE NEED TO SPECIFY A DUAL VOLUME MANOMETER AND OSCILLOSCOPE VIEWING SCREEN. IT WAS URGED THAT THESE REQUIREMENTS EXCEEDED THE MINIMUM OR ACTUAL NEEDS OF THE GOVERNMENT AND, AS SUCH, ACTED TO ELIMINATE PDI (WHICH MANUFACTURES OR DISTRIBUTES A PARTICLE COUNTER WITHOUT THESE FEATURES), FROM COMPETING UNDER THE IFB, THEREBY RESULTING IN AN UNDUE RESTRICTION OF COMPETITION.

HEW HAS ESSENTIALLY JUSTIFIED THE INCLUSION OF THE ABOVE SALIENT CHARACTERISTICS TO WHICH PDI PROTESTS IN THE FOLLOWING MANNER. THE REQUIREMENTS FOR ALL PROTESTED SOLICITATIONS WERE DEVELOPED BY THE INDIVIDUAL PROGRAM OFFICE REQUIRING THE SPECIFIC EQUIPMENT. IT WAS THE OPINION OF THE INDIVIDUAL RESEARCH MICROBIOLOGISTS, FOR WHOM THESE INSTRUMENTS WERE TO BE PROCURED, THAT THESE SPECIFIC DESIGN FEATURES WERE IN FACT ESSENTIAL FOR THEIR RESEARCH AND THEREFORE, ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. PROCUREMENT OFFICIALS AT HEW FELT RELUCTANT TO SUBSTITUTE THEIR OWN JUDGMENT AS TO DESIGN CRITERIA FOR THAT OF THE SCIENTISTS WHO WOULD BE USING THE INSTRUMENTS. IN ESSENCE, HEW JUSTIFIED THE NECESSITY FOR THESE SPECIFIC SALIENT CHARACTERISTICS PRIMARILY UPON HUMAN ENGINEERING FACTORS, WHICH ENCOMPASS OPERATIONAL ADVANTAGES RESULTING IN MORE CONSISTENT LEVELS OF ACCURACY AND GREATER EASE OF PERFORMING SCIENTIFIC EXPERIMENTATION.

IN OUR VIEW, THE REQUIREMENTS FOR THE DUAL VOLUME MANOMETER AND OSCILLOSCOPE SCREEN REPRESENT VALID AND REASONABLE REFLECTIONS OF THE ACTUAL NEEDS OF THE GOVERNMENT, BASED PRIMARILY UPON OPERATIONAL RATHER THAN ENGINEERING RESPONSIBILITIES. AS WAS POINTED OUT ABOVE, THE DETERMINATION OF THE NEEDS OF THE GOVERNMENT AND THE METHOD OF ACCOMMODATING THESE NEEDS IS PRIMARILY THE RESPONSIBILITY OF THE CONTRACTING AGENCIES OF THE GOVERNMENT. THIS IS PARTICULARILY APPLICABLE HERE WHERE THE PROCUREMENT IS FOR EQUIPMENT OF A HIGHLY SPECIALIZED NATURE AND THE DETERMINATIONS MUST BE BASED ON EXPERT TECHNICAL OPINION. SEE 46 COMP. GEN. 606, 609 (1967); B-174140, B 174205, MAY 16, 1972. ALSO, WHERE, AS HERE, THE CONTRACTING AGENCY IN A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION GOES BEYOND THE MAKE AND MODEL OF THE BRAND NAME AND SPECIFIES PARTICULAR FEATURES, WE HAVE HELD THAT SUCH FEATURES MUST BE PRESUMED TO HAVE BEEN REGARDED AS MATERIAL AND ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. WITH PARTICULAR REFERENCE TO THIS CASE, HEW'S INSISTENCE ON THE VIEWING SCREEN AND DUAL VOLUME MANOMETER CONSTITUTES AN UNQUALIFIED ADMINISTRATIVE DETERMINATION THAT THE CHARACTERISTICS WERE AND ARE MATERIAL AND ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. SEE 51 COMP. GEN. 247 (1971); 49 COMP. GEN. 195, 199 (1969).

KEEPING THESE PRINCIPLES IN MIND, WE CANNOT SUBSCRIBE TO PDI'S CHARACTERIZATION OF THE SALIENT CHARACTERISTICS AS MERELY A "PERSONAL PREFERENCE" UNRELATED TO THE ESSENTIAL NEEDS OF THE GOVERNMENT. IT IS AXIOMATIC THAT THE GOVERNMENT MAY OBTAIN TECHNICAL EQUIPMENT WHICH EMPLOYS OPERATIONAL FEATURES UPGRADING THE STATE-OF-THE-ART BY TAKING ADVANTAGE OF THE MOST ADVANCED DEVELOPMENTS AVAILABLE WHERE THE NEED EXISTS. BELIEVE THIS TO BE SO EVEN THOUGH SIMILAR EQUIPMENT GENERALLY EQUIVALENT FROM A PERFORMANCE STANDPOINT IS COMMERCIALLY AVAILABLE. OUR OFFICE HAS ATTACHED SIGNIFICANCE TO OPERATIONAL OR HUMAN ENGINEERING ADVANTAGES INVOLVED IN THE PROCUREMENT OF PARTICULAR EQUIPMENT AS PROPER REFLECTIONS ON THE MINIMUM NEEDS OF THE GOVERNMENT. SEE 51 COMP. GEN. 247, SUPRA., B- 174140, 174205, SUPRA. WE DO NOT VIEW THE REQUIREMENTS IN QUESTION TO BE FRIVOLOUS OR UNNECESSARY FEATURES OF THE COUNTERS. IN OUR OPINION, DEFINITE ADVANTAGES, IN TERMS OF OPERATIONAL EASE, REDUCTION OF ERROR, AND SPEED OF DETECTING ORIFICE BLOCKAGE MAKE THE GOVERNMENT'S SPECIFICATION OF THESE FEATURES TO BE NOT ONLY PREFERRED, BUT REASONABLE REQUIREMENTS IN THE CIRCUMSTANCES.

ACCORDINGLY, WE CONCLUDE THAT THE SALIENT CHARACTERISTICS REQUIRING A DUAL VOLUME MANOMETER AND OSCILLOSCOPE VIEWING SCREEN MAY NOT BE QUESTIONED BY OUR OFFICE, AND PDI'S PROTEST AGAINST THESE FEATURES MUST BE DENIED. THEREFORE, THE AWARD MADE UNDER SOLICITATION -203 WAS PROPER, AND AWARDS UNDER SOLICITATIONS -423 AND 7426(A) MAY BE MADE TO THE LOW, RESPONSIVE AND RESPONSIBLE BIDDER.