B-119456, APRIL 23, 1954, 33 COMP. GEN. 524

B-119456, APRIL 23, 1954, 33 COMP. GEN. 524

BIDS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE OR PATENTED DEVICES INVITATIONS TO BID SHOULD NOT BE DRAWN AROUND OR NAME PARTICULAR MAKES OR BRANDS UNLESS AN OPPORTUNITY IS ALSO AFFORDED OTHER BIDDERS TO OFFER SUBSTITUTE "OR EQUAL" ITEMS, AND THEREFORE AN INVITATION TO BID WHICH SPECIFIED A PATENTED DEVICE AND DID NOT PERMIT THE SUBMISSION OF ALTERNATE BIDS IS LEGALLY DEFECTIVE AND NO AWARD PROPERLY MAY BE MADE UNDER SUCH INVITATION.

ACTING COMPTROLLER GENERAL WEITZEL TO THE POSTMASTER GENERAL, APRIL 23, 1954:

REFERENCE IS MADE TO YOUR REPORT OF APRIL 13, 1954, RELATIVE TO THE PROTEST OF CRAMER POSTURE CHAIR COMPANY, INC., KANSAS CITY, MISSOURI, QUESTIONING THE PROPRIETY OF THE SPECIFICATIONS UNDER INVITATION 2293, FOR 12,000 ADJUSTABLE PLATFORM STOOLS IN ACCORDANCE WITH POST OFFICE DEPARTMENT DRAWING NO. RD-30-2.

THE PROTESTANT REQUESTS MODIFICATION OF THE SPECIFICATIONS FOR THE FOLLOWING REASONS:

1. AS A MANUFACTURER OF QUALITY OFFICE AND INDUSTRIAL SEATING, WE BELIEVE THAT WE CAN SUBMIT FOR YOUR APPROVAL, AN ADJUSTABLE PLATFORMSTOOL OF SIMPLIFIED DESIGN INCORPORATING FEATURES OF EASY ADJUSTMENT, DURABILITY, AND FREEDOM FROM TROUBLE, WHICH CAN BE PRODUCED IN QUANTITY AT A REASONABLE COST.

2. WE BELIEVE THAT A MORE SIMPLE, TROUBLE-FREE, ACCESSIBLE, ADJUSTMENT SHOULD BE INCORPORATED IN THE DESIGN.

3. WE BELIEVE THAT SPECIFICATION, AS DRAWN, TO BE PROPRIETY IN NATURE IN THAT THE ADJUSTING MECHANISM DETAILED IN THE SPECIFICATION IS A PATENTED DEVICE AND WOULD HAVE TO BE PURCHASED FROM ONE AND ONLY ONE MANUFACTURER.

THE APPARENT PURPOSE OF THE PROTESTANT'S FIRST TWO REASONS IS TO RECOMMEND CHANGES IN THE SPECIFICATIONS IN ALL RESPECTS NECESSARY TO CONFORM TO ITS PROPOSED STOOL, FOR WHICH IT HAS SUBMITTED ITS DRAWING NO. A3-354. HOWEVER, IN THE MEMORANDUM FROM THE OFFICE OF CHIEF INDUSTRIAL ENGINEER, POST OFFICE DEPARTMENT, THE PROTESTANT'S RECOMMENDATIONS WERE REVIEWED IN DETAIL AND IT WAS CONCLUDED THAT THEY OFFERED NO ADVANTAGES OVER THE STOOL SPECIFIED IN THE SUBJECT INVITATION. THIS OFFICE HAS NO REASON TO QUESTION THE CORRECTNESS OF THIS CONCLUSION.

THE THIRD REASON STATED, AND THE PRIMARY BASIS OF THE PROTEST, RELATES TO THE DESCRIPTION CONTAINED IN THE SECOND PARAGRAPH OF REQUIREMENT 2.5 OF THE SPECIFICATIONS, PROVIDING FOR THE VERTICAL ADJUSTMENT OF THE PEDESTAL UPON WHICH THE SEAT IS MOUNTED. THAT PARAGRAPH IS AS FOLLOWS:

THE ADJUSTING MECHANISM SHALL BE FULLY CONCEALED AND TAMPER-PROOF, SHALL HAVE A MINIMUM LOAD CAPACITY OF 500 POUNDS APPLIED AS A SHOCK LOAD, AND SHALL CONSIST OF A MACHINED HOUSING, TWO REMOVABLE SLIDE BUSHINGS AND NOT LESS THAN 14 HARD STEEL BALLS NO LARGER THAN 5/32 INCH DIAMETER, WHICH SHALL BE ASSEMBLED TO FORM A TAPERED BALL-CLUTCH MECHANISM THROUGH WHICH A SUITABLY MACHINED 5/8 INCH DIAMETER, COLD FINISHED STEEL GRIP-ROD, S.A.E. 1112, SHALL OPERATE. THE BALL CLUTCH MECHANISM SHALL BE AFFIXED TO THE UPPER END OF THE 1 1/4 INCH DIAMETER PEDESTAL CORE TUBE IN A MANNER TO PERMIT THE GRIP-ROD TO FREELY PASS THROUGH THE MECHANISM ON UPWARD LIFE OF THE SEAT OR PEDESTAL CAP AND SHALL HOLD THE ROD SECURELY AND PREVENT THE SEAT FROM MOVING DOWNWARD AT ANY POSITION WHERE UPWARD LIFE OF THE ROD CEASES. AT THE TOP POSITION OF THE ADJUSTING MECHANISM, AN ADDITIONAL LIFT OF APPROXIMATELY 30 TO 40 POUNDS SHALL ACT TO DISENGAGE THE MECHANISM THEREBY RELEASING THE BALL CLUTCH, AND THE SEAT SHALL BE MANUALLY LOWERED IN A CONTINUOUS OPERATION TO THE BOTTOM POSITION OF THE ADJUSTING MECHANISM, WHERE, BY ADDITIONAL PRESSURE OF APPROXIMATELY 30 TO 40 POUNDS ON THE SEAT, THE CLUTCH SHALL BE RE-SET AND BE READY TO SECURELY ENGAGE THE GRIP-ROD ON UPWARD LIFT OF THE SEAT. THIS SHALL ENABLE SEAT ADJUSTMENT TO BE ACCOMPLISHED AT ANY POINT WITHIN THE MINIMUM AND MAXIMUM SHOWN WITHOUT THE USE OF PINS, BOLTS AND NUTS, SPRINGS, SCREWS AND WHEELS OR OTHER MANUALLY OPERATED OR APPLIED DEVICES. THE HEEL ROD SHALL BE FORMED FROM ONE PIECE OF 1/2 INCH DIAMETER WROUGHT IRON PIPE OR EQUIVALENT SIZE STEEL TUBING. THE ROD SHALL BE ATTACHED TO THE OUTER PEDESTAL TUBING AS SHOWN WITH SUITABLE HEAVY METAL CLAMPS FASTENED WITH BOLTS HAVING ELASTIC NUTS. ENDS OF BOLTS SHALL BE FLUSH WITH NUTS.

YOUR REPORT CONFIRMS THE PROTESTANT'S OPINION THAT, ALTHOUGH THE DESCRIPTION OF THE ADJUSTING MECHANISM DOES NOT SO STATE, THE USE OF A PATENTED ADJUSTING MECHANISM OBTAINABLE ONLY FROM THE AJUSTO EQUIPMENT COMPANY, TOLEDO, OHIO, WILL BE REQUIRED TO COMPLY WITH THE SPECIFICATIONS. IN THAT CONNECTION, IT IS STATED THAT WHILE THE DEPARTMENT IS AWARE THAT SPECIFICATIONS SHOULD BE DRAWN SO AS TO PERMIT THE BROADEST FIELD OF COMPETITION TO MEET THE MINIMUM NEEDS REQUIRED, NOT THE MAXIMUM, IT IS QUESTIONABLE WHETHER THE MEETING OF MINIMUM NEEDS SHOULD BE THE STANDARD APPLICABLE TO THE DEPARTMENT'S PURCHASES OF EQUIPMENT IN VIEW OF THE AUTHORITY GRANTED UNDER THE ACT OF AUGUST 16, 1949, 63 STAT. 608, 39 U.S. 847, 847 (A) TO CONDUCT A RESEARCH AND DEVELOPMENT PROGRAM. THE OPINION IS EXPRESSED THAT CONGRESS INTENDED BY THAT ACT "THAT THE METHODS, EQUIPMENT, SUPPLIES, C., WHICH WOULD BE ADOPTED AS A RESULT OF THE PROGRAM SHOULD BE THOSE WHICH MEET, NOT THE DEPARTMENT'S MINIMUM NEEDS, BUT WOULD BE THOSE WHICH MOST EFFICIENTLY AND ECONOMICALLY MEET THE NEEDS OF THE SERVICE.'

I PERCEIVE NO CONFLICT BETWEEN THE AUTHORIZATION FOR YOUR DEPARTMENT TO CONDUCT A RESEARCH AND DEVELOPMENT PROGRAM FOR THE PURPOSE OF INTRODUCING NEW TYPES OF EQUIPMENT, ETC., IN ORDER THAT ITS FUNCTIONS MAY BE MORE EFFICIENTLY AND ECONOMICALLY PERFORMED AND THE REQUIREMENT THAT GOVERNMENT INVITATIONS BE SO DRAFTED AS TO PERMIT THE MAXIMUM COMPETITION AVAILABLE IN THE CIRCUMSTANCES. NEITHER THE ACT OF AUGUST 16, 1949, NOR ITS LEGISLATIVE HISTORY, INDICATES ANY INTENTION TO PROVIDE AN EXCEPTION TO THE GOVERNMENT ADVERTISING STATUTES WHICH CONSISTENTLY HAVE BEEN HELD TO REQUIRE PROCUREMENT AGENCIES OF THE GOVERNMENT TO STATE ADVERTISED SPECIFICATIONS IN TERMS THAT WILL PERMIT THE BROADEST FIELD OF COMPETITION WITHIN THE MINIMUM NEEDS REQUIRED. 32 COMP. GEN. 384.

YOU STATE THAT, AS A RESULT OF EXPERIMENTS AND TESTS CONDUCTED UNDER THE RESEARCH AND DEVELOPMENT PROGRAM, IT WAS DETERMINED THAT AN EASILY OPERATED MECHANISM PROVIDING CLOSE HEIGHT ADJUSTMENTS WAS ESSENTIAL TO A STOOL SUITABLE FOR DISTRIBUTION NEEDS AND THAT THE PATENTED ADJUSTING MECHANISM DESCRIBED IN THE SECOND PARAGRAPH OF REQUIREMENT 2.5 OF THE SPECIFICATIONS WAS THE ONE WHICH SATISFACTORILY MET THE DEPARTMENT'S NEEDS. IN ADDITION, THE MEMORANDUM OF THE OFFICE OF THE CHIEF INDUSTRIAL ENGINEER STATES AS FOLLOWS:

HEIGHT ADJUSTMENT FOR A MAJORITY IN ALL OUR STUDIES WAS DIFFICULT TO OBTAIN. HERE AGAIN EXPERIENCE WITH PINS, PEGS, BOLTS, ETC., POINTED UP THE NEED FOR A POSITIVE, PIN-POINT, TAMPER-PROOF DEVICE TO MEET THE NEEDS OF EMPLOYEES OF ALL HEIGHTS. IT WAS FOUND THROUGH EXPERIMENTS WHAT WAS NEEDED AND THE PERFORMANCE REQUIRED WAS WRITTEN INTO THE SPECIFICATION THUS, ON PAGE 3, SECTION 2.5: " THIS SHALL ENABLE SEAT ADJUSTMENT TO BE ACCOMPLISHED AT ANY POINT WITHIN THE MINIMUM AND MAXIMUM SHOWN WITHOUT USE OF PINS, BOLTS AND NUTS, SPRINGS, SCREWS AND WHEELS OR OTHER MANUALLY OPERATED OR APPLIED DEVICES.'

THE QUESTION PRESENTED, HOWEVER, IS NOT WHETHER THE DETERMINATION AS TO THE FUNCTIONAL REQUIREMENTS OF THE STOOL IS OBJECTIONABLE BUT WHETHER THE SUBJECT SPECIFICATIONS ARE UNDULY RESTRICTIVE OF COMPETITION. DEPARTMENT'S DETERMINATION THAT A PARTICULAR PATENTED MECHANISM COMPLIES WITH ALL ITS REQUIREMENTS DOES NOT JUSTIFY WRITING SPECIFICATIONS WHICH GO BEYOND ITS NECESSARY FUNCTIONAL REQUIREMENTS. ALTHOUGH THE PATENTED DEVICE HERE IN QUESTION MAY BE THE ONLY DEVICE NOW KNOWN TO YOUR DEPARTMENT WHICH WOULD COMPLY WITH ITS NEEDS, THE EXCLUSION OF ANY OTHER SUITABLE DEVICE THAT POSSIBLY MIGHT EXIST, NECESSARILY IS RESTRICTIVE OF COMPETITION. THIS OFFICE HAS CONSISTENTLY HELD THAT INVITATIONS TO BID SHOULD NOT BE DRAWN AROUND OR NAME PARTICULAR MAKES OR BRANDS UNLESS AN OPPORTUNITY IS ALSO AFFORDED OTHER BIDDERS TO OFFER SUBSTITUTE "OR EQUAL" ITEMS AND THAT FAILURE TO DO THIS CANNOT BE JUSTIFIED ON THE BASIS THAT NO OTHER SATISFACTORY ITEM EXISTS SINCE THE ONLY WAY IT CAN BE DEFINITELY DETERMINED THAT SUCH IS THE CASE WHERE AN ADVERTISED PROCUREMENT IS INVOLVED IS BY ADVERTISING APPROPRIATE SPECIFICATIONS.

IT IS STATED THAT THE SPECIFICATIONS IN THIS CASE SHOULD NOT BE CONSIDERED RESTRICTIVE INASMUCH AS THE PATENTED DEVICE IS ONLY ONE PART OF THE STOOL. THIS OFFICE HAS BEEN INFORMALLY ADVISED THAT YOUR DEPARTMENT ESTIMATES THE COST OF THAT DEVICE TO BIDDERS TO BE BETWEEN 10 AND 12 PERCENTUM OF THE TOTAL COST OF THE STOOLS. ALSO, IT IS UNDERSTOOD THAT THE HOLDER OF THE PATENT IS WILLING TO MAKE THE MANUFACTURED MECHANISM AVAILABLE TO OTHER BIDDERS AT A STATED PRICE. IT CAN HARDLY BE DOUBTED, HOWEVER, THAT ANY LIMITATION PLACED UPON FULL AND FREE COMPETITION IN BIDDING TENDS TO INCREASE THE COST OF THE PROCUREMENT AND UNDER THE LAW MUST BE AVOIDED IF IT IS AT ALL POSSIBLE TO DO SO.

THE CONCLUSION IS THEREFORE REQUIRED THAT, SINCE A PATENTED DEVICE WAS SPECIFIED AND THE SUBMISSION OF ALTERNATE BIDS WAS NOT PERMITTED, THE INVITATION TO BID ADVERTISED IN THIS CASE IS LEGALLY DEFECTIVE, AND NO AWARD PROPERLY MAY BE MADE THEREUNDER.