Skip to Highlights
Highlights

RITCHIE: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 23. PARAGRAPH 53 OF THE CITED GENERAL PROVISIONS IS ENTITLED "BRAND NAMES" AND REQUIRES. YOU CONTEND THAT THE PROVISIONS OF PARAGRAPH 53 ARE IN VIOLATION OF ESTABLISHED GOVERNMENT POLICY AND CONTRARY TO PREVIOUS RULINGS OF OUR OFFICE. YOU SUGGEST THAT SOME OF THE ITEMS IDENTIFIED BY BRAND NAME OR EQUAL DESCRIPTIONS COULD HAVE BEEN ADEQUATELY DESCRIBED BY REFERENCES TO FEDERAL SPECIFICATIONS OR BY OTHER APPROPRIATE MEANS. SO THAT ONLY THE SUCCESSFUL BIDDER WOULD HAVE THE BURDEN OF OBTAINING APPROVAL OF MATERIALS INTENDED FOR USE AS EQUAL TO THE BRAND NAME ARTICLES REFERRED TO IN THE INVITATION. THE DRAFTING OF PROPER SPECIFICATIONS IS WITHIN THE PROVINCE OF THE CONTRACTING AGENCY.

View Decision

B-148500, JUN. 11, 1962

TO MR. R. B. RITCHIE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 23, 1962, REQUESTING OUR CONSIDERATION OF PARAGRAPH 53 OF THE GENERAL PROVISIONS MADE APPLICABLE TO AN INVITATION FOR BIDS ISSUED BY THE NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR, COVERING PROPOSED ALTERATIONS AND ADDITION TO THE VISITOR CENTER, HENRY HILL, MANASSAS NATIONAL BATTLEFIELD PARK, VIRGINIA.

PARAGRAPH 53 OF THE CITED GENERAL PROVISIONS IS ENTITLED "BRAND NAMES" AND REQUIRES, FOR BID EVALUATION AND AWARD PURPOSES, THAT BIDDERS SUBMIT WITH THEIR BIDS DETAILED INFORMATION WITH RESPECT TO ANY PROPOSED SUBSTITUTIONS FOR "BRAND NAMES" ARTICLES REFERRED TO IN THE ADVERTISED SPECIFICATIONS FOR THE CONSTRUCTION PROJECT.

YOU CONTEND THAT THE PROVISIONS OF PARAGRAPH 53 ARE IN VIOLATION OF ESTABLISHED GOVERNMENT POLICY AND CONTRARY TO PREVIOUS RULINGS OF OUR OFFICE. YOU SUGGEST THAT SOME OF THE ITEMS IDENTIFIED BY BRAND NAME OR EQUAL DESCRIPTIONS COULD HAVE BEEN ADEQUATELY DESCRIBED BY REFERENCES TO FEDERAL SPECIFICATIONS OR BY OTHER APPROPRIATE MEANS; ALSO, THAT IT WOULD BE MORE PRACTICAL FOR BIDDERS TO DETERMINE FOR THEMSELVES WHETHER THEY COULD MEET ALL OF THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS, SO THAT ONLY THE SUCCESSFUL BIDDER WOULD HAVE THE BURDEN OF OBTAINING APPROVAL OF MATERIALS INTENDED FOR USE AS EQUAL TO THE BRAND NAME ARTICLES REFERRED TO IN THE INVITATION.

THE DRAFTING OF PROPER SPECIFICATIONS IS WITHIN THE PROVINCE OF THE CONTRACTING AGENCY. CONSISTENT WITH SUCH AUTHORITY, OUR OFFICE HAS TAKEN THE POSITION THAT AN INVITATION FOR BIDS MAY REQUIRE BIDDERS TO SUBMIT DESCRIPTIVE LITERATURE SHOWING THAT THEIR PROPOSALS CONFORM TO SPECIFICATIONS WHEN IT APPEARS THAT SUCH A REQUIREMENT IS ESSENTIAL FOR A PROPER DETERMINATION AS TO THE RESPONSIVENESS OF BIDS. SEE 36 COMP. GEN. 415. WE BELIEVE THAT PROVISIONS SIMILAR TO THOSE INCORPORATED IN PARAGRAPH 53 OF THE GENERAL PROVISIONS OF THE INVITATION HERE INVOLVED DO NOT NECESSARILY CONFLICT WITH ESTABLISHED PRINCIPLES GOVERNING THE AWARD OF PUBLIC CONTRACTS UNDER FORMAL ADVERTISING PROCEDURES.

HOWEVER, WE AGREE WITH YOUR CONTENTION THAT BRAND NAME CONSTRUCTION MATERIALS SHOULD NOT BE SPECIFIED IF THE REQUIRED TYPES OF MATERIALS COULD BE ADEQUATELY DESCRIBED WITHOUT REFERENCES TO BRAND NAMES. SEE 41 COMP. GEN. 76 AND 242, INDICATING THAT, IN OUR OPINION, PROCUREMENT ON A BRAND NAME OR EQUAL BASIS IS GENERALLY UNDESIRABLE AND SHOULD BE RESERVED FOR EXCEPTIONAL CASES. ALTHOUGH THE PREPARATION OF SPECIFICATIONS FOR A CONSTRUCTION PROJECT MAY PRESENT A SPECIAL PROBLEM, WE FEEL THAT, IN PROTECTION PARTICULARLY OF THE INTERESTS OF MANUFACTURERS AND THEIR DEALERS, A REASONABLE ATTEMPT SHOULD BE MADE TO SEE THAT THE ADVERTISED SPECIFICATIONS FOR THE PROJECT DO NOT CONTAIN ANY UNNECESSARY RESTRICTIONS WITH RESPECT TO DESCRIPTIONS OF THE DESIRED TYPES OF CONSTRUCTION MATERIALS.

WE DO NOT CONSIDER THE INVITATION FOR BIDS ON THE MANASSAS NATIONAL BATTLEFIELD PROJECT TO HAVE BEEN LEGALLY DEFECTIVE, INASMUCH AS PROSPECTIVE BIDDERS WERE FULLY APPRISED OF THE REQUIREMENTS TO BE MET AND THE RECORD SHOWS THAT FIVE RESPONSIVE BIDS WERE RECEIVED WITH NO INDICATION THAT ANY OF THE FIVE BIDDERS BELIEVED THE SPECIFICATIONS TO BE UNDULY RESTRICTIVE OR CUMBERSOME.

YOUR COMPLAINT IN THE MATTER HAS RESULTED IN THE INITIATION BY THE DEPARTMENT OF THE INTERIOR OF A THOROUGH REVIEW OF CONTRACT PROCEDURES INVOLVING CONSTRUCTION PROJECTS OF THE NATIONAL PARK SERVICE TO INSURE THAT FUTURE INVITATIONS FOR BIDS ON SUCH PROJECTS WILL BE PREPARED IN SUCH MANNER AS TO ELIMINATE ANY UNNECESSARY REFERENCES TO BRAND NAME ARTICLES. ALSO, WE HAVE BEEN ADVISED OF THE PROBABILITY THAT THERE WILL BE ADOPTED YOUR SUGGESTION THAT BIDDERS SHOULD NOT BE REQUIRED TO SUBMIT WITH THEIR BIDS DESCRIPTIVE LITERATURE CONCERNING ANY PROPOSED USE OF SUBSTITUTE ITEMS WHEN AN INVITATION REQUIRES THE USE OF CONSTRUCTION MATERIALS IDENTIFIED BY BRAND NAME OR EQUAL DESCRIPTIONS. WITH THE ELIMINATION OF SUCH A REQUIREMENT, THE QUESTION AS TO THE ACCEPTABILITY OF OTHER THAN BRAND NAME MATERIALS WHICH THE SUCCESSFUL BIDDER MAY PROPOSE TO USE AFTER AWARD OF THE CONTRACT WOULD BE FOR DETERMINATION BY THE CONTRACTING OFFICER IN ACCORDANCE WITH THE MATERIALS AND WORKMANSHIP CLAUSE OF STANDARD FORM 23A, ENTITLED "GENERAL PROVISIONS (CONSTRUCTION CONTRACTS).'

GAO Contacts