B-182202, DEC 13, 1974

B-182202, DEC 13, 1974

1. ALTHOUGH ASPR 1-1206.1(B)(1974 ED.) AUTHORIZES PROCUREMENT ON A BRAND NAME ONLY BASIS IN SOME CIRCUMSTANCES, USE OF SUCH RESTRICTION IS QUESTIONABLE WHERE THERE IS NO INDICATION THAT THE BRAND NAME PRODUCT POSSESSED AN ESSENTIAL FEATURE WHICH OTHER PRODUCTS LACKED. SOLE FACT THAT BRAND NAME PRODUCT WAS THE ONLY ONE WHICH PROVED SATISFACTORY AFTER TESTING OF COMMERCIALLY AVAILABLE PRODUCTS OF FOUR MANUFACTURERS DOES NOT JUSTIFY USE OF SUCH RESTRICTION. 2. SINCE AGENCY'S REPORT INDICATES THAT PROTESTER'S EQUAL PRODUCT SUBMITTED UNDER BRAND NAME ONLY SOLICITATION DID NOT MEET ITS ESSENTIAL NEEDS, AWARD MADE AT HIGHER PRICE TO BIDDER OFFERING BRAND NAME PRODUCT WILL NOT BE QUESTIONED. INVITATION FOR BIDS (IFB) DAAH03-75-B-0010 WAS ISSUED JUNE 15, 1974, BY THE U.S. ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA FOR 25 UNITS, ADL MINI-MICROWAVE INTRUDER DETECTOR, MODEL 2202, TO INCLUDE TRANSFORMER, MODEL 501, 24 VOLT, AND 7 UNITS, ADL MICROWAVE INTRUDER DETECTOR, MODEL 205, TO INCLUDE TRANSFORMER, MODEL 501, 24 VOLT AND ANTENNA PAIR. BIDS WERE OPENED AUGUST 5, 1974, REVEALING RECEIPT OF THREE BIDS. THE LOW BID OF OMNI SPECTRA, INC. (OMNI) WAS REJECTED SINCE THE INVITATION DID NOT PERMIT BIDDING ON A BRAND NAME OR EQUAL BASIS AND OMNI SUBMITTED A BID AND DESCRIPTIVE LITERATURE ON ITS OWN MODELS 110 AND 100 MICROWAVE INTRUSION SENSOR, RATHER THAN ON THE ADL EQUIPMENT SPECIFIED IN THE INVITATION. AWARD WAS MADE ON AUGUST 30, 1974, TO THE SECOND LOW BIDDER, MANAGEMENT SECURITY, INC., WHICH HAD BID ON THE SPECIFIED ADL EQUIPMENT. OMNI PROTESTS THE REJECTION OF ITS LOW BID, CLAIMING THAT IT WAS ORALLY ADVISED PRIOR TO BID OPENING THAT BIDS ON A BRAND NAME OR EQUAL BASIS WOULD BE ACCEPTED EVEN THOUGH THE IFB HAD NOT SO PROVIDED AND THAT ITS EQUIPMENT

OMNI SPECTRA, INC.: IS IN FACT EQUAL TO THE SPECIFIED BRAND NAME. ACCORDINGLY, THE PROTESTER REQUESTS THAT THE INSTANT AWARD BE SET ASIDE. AS TO FUTURE PROCUREMENTS OMNI STATES THAT THERE ARE SEVERAL MANUFACTURERS OF MICROWAVE INTRUDER DETECTORS OF EQUAL OR SUPERIOR PERFORMANCE TO THE EQUIPMENT SPECIFIED AND, THAT THE GOVERNMENT'S REQUIREMENTS SHOULD BE BETTER DEFINED SO AS TO ENCOURAGE TRULY COMPETITIVE BIDDING. TO SUPPORT ITS ALLEGATIONS THAT ITS EQUIPMENT EQUALS OR EXCEEDS THE REFERENCED ADL EQUIPMENT. OMNI ALLUDES TO THE AWARD BY THE TREASURY DEPARTMENT OF A CONTRACT FOR ITS MODEL 110 WHICH WAS SUBMITTED IN RESPONSE TO AN INVITATION CALLING FOR ADL MODEL 2202, OR EQUAL. OMNI ALSO STATES ITS MODELS 100 AND 110 ARE INCLUDED ON A GSA SUPPLY SCHEDULE CONTRACT; THAT ITS EQUIPMENT IS IN USE BY OTHER FEDERAL AGENCIES; AND HAS BEEN CERTIFIED BY THE FEDERAL COMMUNICATIONS COMMISSION.

THE CONTRACTING OFFICER STATES THAT HE WAS TELEPHONED BY THE PROTESTER ON OR ABOUT AUGUST 1, 1974, AND WAS ASKED WHETHER AN OFFER OF AN "EQUAL" ITEM WOULD BE CONSIDERED. HE ADVISED THE PROTESTER THAT SOLICITATIONS NORMALLY SPECIFY WHETHER AN OFFER OF AN EQUAL PRODUCT IS PERMITTED, BUT THAT IF THE SUBJECT SOLICITATION WAS SILENT IN THIS REGARD, AN "EQUAL" BID WOULD BE CONSIDERED. THE RECORD INDICATES THAT THE CONTRACTING OFFICER APPARENTLY WAS UNDER THE IMPRESSION THAT A NEGOTIATED PROCUREMENT WAS INVOLVED AND THAT AT NO TIME DURING THE PROCUREMENT WAS IT RECOGNIZED THAT THE TELEPHONE CONVERSATION PERTAINED TO THE INSTANT IFB.

FOR THE REASONS STATED BELOW WE HAVE RESERVATIONS REGARDING THE PROCUREMENT OF INTRUDER DETECTION DEVICES ON THE BASIS OF THE ADL BRAND NAME ONLY. THE JUSTIFICATION PROVIDED BY THE ARMY FOR SUCH PROCUREMENT PRACTICE IS THAT ADL'S EQUIPMENT HAD BEEN TESTED FOR TWO YEARS UNDER ACTUAL CONDITIONS WITHOUT COMPONENT FAILURES OR FALSE ALARMS, INDICATING A HIGH DEGREE OF RELIABILITY. MOREOVER, THE ARMY WAS NOT AWARE OF OTHER EQUIPMENT ON THE MARKET WHICH WOULD PERFORM WITH THE SAME RELIABILITY UNDER THE NECESSARY VARIETY OF CONDITIONS. WE HAVE BEEN INFORMALLY ADVISED THAT PRIOR TO SOLICITATION THE AGENCY TESTED THE COMMERCIALLY AVAILABLE ITEMS OF FOUR MANUFACTURERS AND THAT ONLY THE BRAND NAME PROVED SUCCESSFUL. ACCORDINGLY, THE ARMY SUBMITS THAT ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1206.1(B) (1974 ED.), STIPULATING THAT PROCUREMENTS SHOULD NOT BE MADE ON AN "OR EQUAL" BASIS WHEN IT IS DETERMINED THAT ONLY A PARTICULAR PRODUCT MEETS THE ESSENTIAL REQUIREMENTS OF THE GOVERNMENT, SHOULD CONTROL ITS PROCUREMENTS OF THE SUBJECT DEVICES. WE RECOGNIZE THAT IN CERTAIN CASES A BRAND NAME ONLY SPECIFICATION MAY BE JUSTIFIED, SUCH AS IN THE CASE CITED BY THE ARMY (B-16555, JANUARY 24, 1969) WHERE, AMONG OTHER REASONS, THE BRAND NAME ITEM WAS THE ONLY PRODUCT WHICH HAD BEEN "RF CERTIFIED" BY THE NATIONAL BUREAU OF STANDARDS. HOWEVER, THERE DOES NOT APPEAR TO EXIST ANY SUCH SPECIAL PERFORMANCE OR DESIGN REQUIREMENT IN THE INSTANT CASE TO JUSTIFY PROCUREMENT ON A BRAND NAME ONLY BASIS.

THE FACT THAT AN ITEM MANUFACTURED BY ONE COMPANY HAS PROVEN SATISFACTORY IN USE IS NOT SUFFICIENT TO JUSTIFY THE RESTRICTION OF A PROCUREMENT TO THAT PRODUCT TO THE EXCLUSION OF OTHERS. 50 COMP. GEN. 209, 215 (1970). EVEN IF A PARTICULAR PRODUCT MAY BE THE ONLY ONE KNOWN BY AN AGENCY THAT WOULD COMPLY WITH ITS NEEDS, THE EXCLUSION OF ANY OTHER SUITABLE DEVICE THAT MIGHT POSSIBLY EXIST IS RESTRICTIVE OF COMPETITION.

PROCUREMENT ON A BRAND NAME ONLY BASIS IS AUTHORIZED BY ASPR 1 1206.1(B) (1974 ED.) "*** WHEN IT HAS BEEN DETERMINED IN ACCORDANCE WITH (A) ABOVE (ASPR 1-1206.1(A) (1974 ED.) THAT ONLY A PARTICULAR PRODUCT MEETS THE ESSENTIAL REQUIREMENTS OF THE GOVERNMENT ***." PARAGRAPH (A) OF THE ABOVE REGULATION PROVIDES THAT GENERALLY THE MINIMUM ACCEPTABLE PURCHASE DESCRIPTION IS THE BRAND NAME OR EQUAL IDENTIFICATION AND THAT A PARTICULAR PRODUCT, OR A PARTICULAR FEATURE OF A PRODUCT, PECULIAR TO ONE MANUFACTURER IS NOT TO BE SPECIFIED "*** 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."

IN THIS CONNECTION THE RECORD BEFORE US DOES NOT SHOW THAT THE BRAND NAME PRODUCT WAS FOUND TO POSSESS AN ESSENTIAL PARTICULAR FEATURE WHICH OTHERS LACKED. THE RECORD MERELY INDICATES THAT OF ALL THOSE TESTED ONLY THE BRAND NAME PRODUCT FUNCTIONED RELIABLY AND IN AN ACCEPTABLE MANNER. WE DO NOT THINK ASPR 1-1206.1 (1974 ED.) PERMITS THE USE OF A BRAND NAME ONLY PURCHASE DESCRIPTION MERELY ON THE BASIS OF SUCH EVIDENCE. IN THE ABSENCE OF A MORE DETAILED DESCRIPTION OF THE AGENCY'S ESSENTIAL REQUIREMENTS IT IS IMPOSSIBLE TO ESTABLISH WHETHER A MANUFACTURER COULD HAVE MODIFIED ITS COMMERCIALLY AVAILABLE PRODUCT SO AS TO MEET THE GOVERNMENT'S ESSENTIAL REQUIREMENTS FOR LESS. 33 COMP. GEN. 524 (1954).

WITH RESPECT TO THE RESTRICTIVENESS OF THE INSTANT INVITATION, THE ARMY'S REPORT INDICATES THAT THE USING ACTIVITY HAS REEVALUATED ITS REQUIREMENT WITH A VIEW TO CANCELING THE PROCUREMENT AND RESOLICITING ON A BRAND NAME OR EQUAL BASIS. HOWEVER, AFTER REVIEWING OMNI'S SPECIFICATIONS THE ARMY HAS CONCLUDED, IN PART, THAT THE OFFERED OMNI EQUIPMENT (1) WOULD PROVIDE INSUFFICIENT AMBIENT TEMPERATURE VARIATION AND CONSEQUENTLY WOULD NOT PERFORM ADEQUATELY IN UNHEATED IGLOO AREAS. (2) (2) WOULD INDICATE CONTINUOUS FALSE ALARMS WHEN USED WITH FLUORESCENT LIGHTING AND (3) WOULD RESULT IN MAINTENANCE PROBLEMS IN THAT THE WARRANTY IS VOIDED IF MAINTAINED BY ANYONE OTHER THAN THE MANUFACTURER.

WE FIND NO BASIS FOR QUESTIONING THE VALIDITY OF ARMY'S DETERMINATION THAT OMNI'S COMMERCIALLY AVAILABLE EQUIPMENT WOULD NOT SATISFY REDSTONE'S ESSENTIAL REQUIREMENTS AND WE THEREFORE DO NOT RECOMMEND ANY CORRECTIVE ACTION WITH REGARD TO THE INSTANT AWARD.

IN VIEW OF THE FOREGOING, WE HAVE REQUESTED THE DEPARTMENT OF THE ARMY TO TAKE OUR VIEWS INTO CONSIDERATION WITH REGARD TO FUTURE PROCUREMENTS OF THE SUBJECT ITEM.