B-137691, SEP. 14, 1960

B-137691, SEP. 14, 1960

TO S. J. MEEKS' SON, GOVERNMENT DIVISION:

WE REFER AGAIN TO YOUR LETTERS OF MAY 13 AND 17, 1960, PROTESTING IN BEHALF OF A PRODUCT YOU REPRESENT THE REMOVAL OF THAT PRODUCT AS A NAMED BRAND FROM THE SPECIFICATIONS APPLYING TO TWO INVITATIONS ISSUED BY THE GENERAL SERVICES ADMINISTRATION FOR TRUCKS.

YOU NOTE THAT UNDER INVITATION NO. FN-3M-22695-A-5-5-60, PURSUANT TO YOUR REQUEST, THE SPECIFICATION WAS AMENDED TO CALL FOR MORRISON MODEL 1058SC OR EQUAL BODY BUT THAT THE MODEL NAME AND NUMBER WERE WITHDRAWN FROM THE SPECIFICATION BY A LATER AMENDMENT. FURTHER, YOU STATE THAT THE SPECIFICATION INCLUDED IN INVITATION NO. FN-3A-30140-A-5-13-60 REQUIRED THAT THE VEHICLE BE FURNISHED WITH A BODY "MCCABE POWERS SERIES 350-104 OR EQUAL" OR "MORRISON SERIES 1044-105 WITH EQUAL EQUIPMENT AND ACCESSORIES," BUT THAT AN AMENDMENT WAS ISSUED TO THE INVITATION DELETING ALL REFERENCE TO THE MORRISON EQUIPMENT.

FINALLY, YOU STATE THAT WHILE YOU WERE ADVISED BY THE FEDERAL SUPPLY SERVICE THAT BRAND NAME OR EQUAL SPECIFICATIONS WERE USED BECAUSE THE BUYERS DID NOT HAVE TIME TO WRITE OUT DETAILED SPECIFICATIONS, INVITATIONS FOR THE SAME TYPES OF EQUIPMENT ISSUED BY THE DEPARTMENTS OF THE ARMY, NAVY AND AIR FORCE INCLUDE COMPLETE DETAILED SPECIFICATIONS.

CONCERNING THE INCLUSION AND REMOVAL OF THE MORRISON BRAND NAME FROM THE TWO SPECIFICATIONS, WE HAVE BEEN ADVISED BY LETTER OF AUGUST 22, 1960, FROM THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, AS FOLLOWS:

"WITH REGARD TO THAT PORTION OF THE PROTEST REFERRING TO INVITATION FOR BID FN-3M-22695-A-5-5-60, IMMEDIATELY FOLLOWING THE ISSUANCE OF THE INVITATION, A MEEKS' REPRESENTATIVE ADVISED THE NATIONAL BUYING DIVISION THAT THE MORRISON 1058SC BODY WAS EQUAL TO MCCABE POWERS AMERICAN 22-104 BODY. UPON RECEIPT OF THIS ADVICE, SPECIAL NOTICE NO. 1 WAS ISSUED TO INFORM PROSPECTIVE BIDDERS THAT EITHER OF THE ABOVE BODIES WAS ACCEPTABLE.

"SUBSEQUENTLY, THE DESCRIPTIVE LITERATURE OF THE MORRISON 1058SC BODY WAS COMPARED WITH THAT OF THE MCCABE POWERS-AMERICAN 22-104 BODY AND IT WAS THEN LEARNED THAT THE TWO BODIES DIFFERED MATERIALLY AS TO COMPARTMENTATION. THEREFORE, THE BRAND NAME OF MORRISON 1058SC WAS REMOVED FROM THE INVITATION FOR BID BY SPECIAL NOTICE NO. 2.

"THE SECOND PART OF THE PROTEST INVOLVED ITEM 9B OF INVITATION FN 3A- 30140-A-5-13-60. THIS ITEM WAS PREVIOUSLY ADVERTISED UNDER INVITATION FN- 3N-24770, SHOWING BOTH THE MCCABE MODEL 350-104, AND THE MORRISON MODEL 1044-105 BRAND NAMES AS ACCEPTABLE. LATER A SPECIAL NOTICE WAS ISSUED TO DELETE THE MORRISON BRAND NAME FROM INVITATION FN 3N-24770.

"WHEN INVITATION FN-3A-30140 WAS PREPARED, THE PREVIOUS INVITATION WAS USED AS A GUIDE AND THE CONTENTS OF THE PREVIOUS AMENDMENT WERE NOT RECOGNIZED. THUS BOTH BRAND NAMES APPEARED IN THE RE ADVERTISEMENT. SOON AS THIS SITUATION WAS RECOGNIZED, IMMEDIATE ACTION WAS TAKEN TO REMOVE THE LISTING OF THE MORRISON 1044-105 MODEL AS BEING ACCEPTABLE FOR THIS PARTICULAR REQUIREMENT.

"THESE TWO BODIES ARE SIMILAR AS TO COMPARTMENTATIONS; HOWEVER, THE MORRISON BODY IS MORE COMPARABLE TO THE MCCABE 44-104 WHICH SELLS FOR APPROXIMATELY $300.00 LESS. THE MCCABE 350-104 IS CONSTRUCTED WITH A DERRICK MOUNTED ON TOP OF THE COMPARTMENTS LEAVING THE FLOOR OF THE BODY CLEAR AND UNOBSTRUCTED. SINCE THE MORRISON CATALOG DESCRIBING MODEL 1044- 105 DOES NOT SHOW THE METHOD OF MOUNTING THE DERRICK, AN INQUIRY WAS MADE OF S. J. MEEKS' SON AS TO WHERE THE DERRICK WOULD BE MOUNTED. IT WAS STATED THAT THE DERRICK WOULD BE MOUNTED ON THE FLOOR THUS OBSTRUCTING THE LOADING SPACE. IT WAS FOR THIS REASON THE MORRISON 1044-105 BRAND NAME COULD NOT BE RESTORED TO THE INVITATION FOR BID, AS AN EQUAL TO THE MCCABE 350-104.'

WE ARE ALSO ADVISED IN THE LETTER THAT THE SPECIFICATIONS FOR TRUCK BODIES PREPARED BY THE MILITARY SERVICES WILL BE CONSIDERED FOR USE BY THE GENERAL SERVICES ADMINISTRATION WHENEVER THEIR REQUIREMENTS CAN THEREBY BE MET.

AS YOU WERE ADVISED IN OUR LETTER OF APRIL 14, 1960, THE DRAFTING OF PROPER SPECIFICATIONS TO MEET THE REQUIREMENTS OF THE GOVERNMENT AND THE FACTUAL DETERMINATION AS TO WHETHER A GIVEN PRODUCT CONFORMS TO THOSE SPECIFICATIONS ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE ADMINISTRATIVE AGENCY CONCERNED. 17 COMP. GEN. 554. THE RECORD SHOWS AS TO BOTH INVITATIONS THAT THE CHARACTERISTICS OF THE PRODUCT REPRESENTED BY YOU DIFFERED IN A MATERIAL, DEMONSTRABLE FASHION FROM THE GOVERNMENT'S REQUIREMENTS AND FROM THE OTHER NAMED BRANDS. UNDER THOSE CIRCUMSTANCES WE SEE NO BASIS FOR CONCLUDING THAT THE ACTION OF THE FEDERAL SUPPLY SERVICE IN REMOVING THE PARTICULAR MORRISON MODEL AS A NAMED BRAND WAS IMPROPER.

AS WE ALSO ADVISED YOU IN OUR EARLIER LETTER, WE HAVE FOUND THAT BRAND NAME OR EQUAL SPECIFICATIONS ENGENDER MORE BID PROTESTS AND GREATER ADMINISTRATIVE DIFFICULTIES THAN PROCUREMENTS ON ANOTHER BASIS. FURTHER, WE HAVE STATED THAT THE USE OF THIS TYPE OF SPECIFICATIONS SHOULD BE AVOIDED WHEREVER POSSIBLE. 38 COMP. GEN. 380. THEREFORE, WE AGREE THAT DETAILED SPECIFICATIONS, WHERE AVAILABLE, SHOULD BE USED IN PREFERENCE TO BRAND NAME OR EQUAL SPECIFICATIONS. HOWEVER, AS TO WHETHER THE DETAILED SPECIFICATIONS EMPLOYED BY THE MILITARY SERVICES MEET THE REQUIREMENTS OF THE GENERAL SERVICES ADMINISTRATION, THAT AGAIN IS A FACTUAL MATTER PRIMARILY WITHIN THE PROVINCE OF THAT AGENCY.

WE THINK IT WOULD BE APPROPRIATE FOR YOU TO POINT OUT TO THE FEDERAL SUPPLY SERVICE THE EXISTENCE OF DETAILED SPECIFICATIONS WHICH IN YOUR VIEW WOULD MEET THE GOVERNMENT'S REQUIREMENTS RELATING TO PROCUREMENTS BEING ADVERTISED BY THE SERVICE ON A BRAND NAME OR EQUAL BASIS.