B-154194, NOV. 24, 1964

B-154194, NOV. 24, 1964

TO MARSDEN, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 12, 1964, PROTESTING, ON BEHALF OF THE INDEX SALES CORPORATION, AGAINST THE ALLEGEDLY RESTRICTIVE SPECIFICATIONS FOR INDEX SHEET SETS CONTAINED IN INVITATION NO. SSP 64-20, ISSUED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, SOCIAL SECURITY ADMINISTRATION, BALTIMORE, MARYLAND.

THE INVITATION PROVIDED THAT THE INDEX SHEET SETS FOR THE LOOSELEAF BINDERS WERE TO BE FURNISHED IN ACCORDANCE WITH FEDERAL SPECIFICATION UU-I -370A DATED NOVEMBER 5, 1962, AND THE EXCEPTIONS AND OPTIONS AS LISTED IN THE INVITATION. AMONG THE DEVIATIONS AND OPTIONS WERE THE FOLLOWING:

"/F) REINFORCEMENT OF TAB EDGE: "DIPCOATED" OR LAMINATED THE ENTIRE 10- 1/4 INCH DIMENSION (ALL TAB POSITIONS); BINDING EDGE NOT TO BE REINFORCED.

" "DIP METHOD,--- A COATING OF CLEAR CELLULOSE ACETATE OR EQUAL ON BOTH SIDES OF THE TAB AND EXTENDED THE ENTIRE TAB EDGE AND INTO THE BASE SHEET APPROXIMATELY 1/2 INCHES.

" "LAMINATED METHOD,--- A SINGLE THICKNESS OF CLEAR MYLAR, PLASTIC CELLULOSE ACETATE OR EQUAL MATERIAL SECURELY BONDED TO EACH SIDE OF THE ENTIRE TAB EDGE. THE COATING TO BE APPROXIMATELY ONE INCH INCLUDING THE TAB. THE OUTER EDGE OF THE TAB MUST BE SMOOTH.'

THE RECORD INDICATES THAT BY TELEGRAM DATED MAY 4, 1964, ADDRESSED TO THE GENERAL SERVICES ADMINISTRATION, YOU QUESTIONED THE ACTION OF THE SOCIAL SECURITY ADMINISTRATION (SSA) IN DEVIATING FROM FEDERAL SPECIFICATION UU-I -370A IN THE PROCUREMENT IN QUESTION. IN A TELEGRAM OF MAY 4, 1964, YOU ADVISED THE SSA AS FOLLOWS: "RE INVITATION SSP 64 20 LOOSE LEAF BINDER INDEXES CURRENT SPECIFICATIONS ARE RESTRICTIVE LIMITING BID TO ONE PROPRIETARY KEYLOID PRODUCT ONLY. CAN OFFER 3Y LB BUFF SULFITE LEDGER EXCEEDING TEAR AND FOLDING QUALITY OF RAG, WITH ACETATE TAB ONLY EXCEEDING TEAR QUALITY OF DIPPED TAB BUT CANNOT COVER ENTIRE 10-1/4 INCHES EDGE. WILL YOU CONSIDER READVERTISING?

BY TELEGRAM DATED MAY 5, 1964, THE SSA ADVISED YOUR FIRM THAT IT WAS UNABLE TO READVERTISE THE PROCUREMENT.

THE FOLLOWING EIGHT BIDS WERE RECEIVED:

R. P. CLARKE COMPANY $16,640.00

ELBE FILE AND BINDER COMPANY 16,642.00

M. S. GINN COMPANY 21,711.00

WOODHOUSE STATIONERY COMPANY 22,117.16

PRICE COMPANY 25,718.00

LUCAS BROTHERS, INC. 25,800.00

CHAS. G. STOTT AND COMPANY, INC. 27,742.04

PHILADELPHIA BINDERY, INC. 31,880.00

IT IS REPORTED THAT THE SAMPLE INDEX SHEETS SUBMITTED BY THE VARIOUS BIDDERS WERE EVALUATED BY THE SSA AND THAT ALL BUT THOSE SUBMITTED BY THE CHARLES G. STOTT COMPANY WERE FOUND TO BE NONRESPONSIVE TO THE INVITATION FOR BIDS IN THAT NONE OF THE NONRESPONSIVE BIDS OFFERED COMPLETE DIPPING OR LAMINATE ON THE ENTIRE TAB EDGE OF THE INDEX SHEETS. ON MAY 7, 1964, AWARD WAS MADE TO THE CHARLES G. STOTT COMPANY.

BY LETTER DATED MAY 12, 1964, ADDRESSED TO OUR OFFICE, YOU PROTESTED AGAINST THE ALLEGEDLY RESTRICTIVE SPECIFICATIONS FOR INDEX SHEET SETS CONTAINED IN INVITATION NO. SSP 64-20. YOU CONTEND---

1. THAT THE SSA IN ITS BID INVITATION SSP 64-20 MADE TWO IMPORTANT DEVIATIONS FROM FEDERAL SPECIFICATION UU-I-370A WHICH WOULD APPEAR TO MAKE REFERENCE TO THAT SPECIFICATION IN THE INVITATION FOR BID MEANINGLESS. SPECIFIC ALLEGED DEVIATIONS FOOM THE SPECIFICATION WERE:

A. THE PAPER STOCK SPECIFIED; AND

B. THE SPECIFICATION OF A DIP OR LAMINATE COATING EXTENDING OVER THE ENTIRE TAB EDGE OF THE INDEX SHEETS SPECIFIED.

2. THAT THE SSA ATTEMPTED TO MAKE ITS INVITATION FOR BIDS APPEAR TO BE COMPETITIVE BY PERMITTING THE ENTIRE TAB EDGE TO BE LAMINATED OR COVERED BY A SINGLE THICKNESS OF MYLAR WHEN THE INDEX SALES CORPORATION COULD NOT LAMINATE THE ENTIRE TAB EDGE WITH ITS EQUIPMENT AND THE ONLY ALLEGED COMPANY OFFERING A MYLAR TAB EDGE HAD DISCONTINUED OFFERING THIS METHOD.

3. THAT THE SSA DID NOT, IN ACCORDANCE WITH THE FEDERAL PROCUREMENT REGULATION,"FORMALLY NOTIFY THE GENERAL SERVICES ADMINISTRATION OF THE DEVIATIONS WHICH THEY PROPOSED, AND DID TAKE, TO THE FEDERAL SPECIFICATION, AND THIS BID WAS ISSUED WITHOUT ANY KNOWLEDGE ON THE PART OF THE FEDERAL SUPPLY SERVICE.'

IN REGARD TO THE ALLEGED RESTRICTIVE SPECIFICATIONS FOR INDEX SHEETS CONTAINED IN THE INVITATION, THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE STATES IN ITS LETTER TO US THAT IT IS ITS BELIEF THAT ADMINISTRATIVE ERROR DID OCCUR IN EFFECTING THE PROCUREMENT AT ISSUE; THAT SPECIFICALLY, THE SSA SHOULD HAVE SOUGHT AUTHORITY TO DEVIATE FROM FEDERAL SPECIFICATION UU-I-370A WITH RESPECT TO (A) THE PAPER STOCK SPECIFIED, AND (B) THE EXTENT OF THE TREATED EDGE OF THE TAB SIDE OF THE INDEX SHEETS IN QUESTION. WE AGREE WITH THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE THAT THE SSA SHOULD HAVE SOUGHT AUTHORITY TO DEVIATE FROM THE FEDERAL SPECIFICATION INVOLVED.

IN YOUR LETTER YOU REFERRED TO A PREVIOUS DECISION OF OUR OFFICE, B 149733, DATED OCTOBER 4, 1962, TO THE PUBLIC PRINTER. IN THAT DECISION WE AGREED WITH THE CONTENTION MADE BY YOUR FIRM THAT THE SPECIFICATIONS USED BY THE GOVERNMENT PRINTING OFFICE IN INVITING BIDS ON INDEX TAB DIVIDERS REQUISITIONED BY THE PUBLIC HEALTH SERVICE WERE UNDULY RESTRICTIVE OF COMPETITION, AND WE SUGGESTED THEREIN THAT ANOTHER INVITATION BASED UPON REQUISITIONS OF THE SSA WERE SIMILARLY DEFECTIVE. IN THAT DECISION WE ALSO STATED THAT THE SPECIFICATIONS SHOULD HAVE PERMITTED BIDDING ON LAMINATED-REINFORCED DIVIDERS AS WELL AS ON DIVIDERS PRODUCED BY THE SO- CALLED DIP-STRIP METHOD. IT IS NOTED THAT THE PRESENT INVITATION DOES NOT PERMIT BIDDING ON LAMINATED REINFORCED DIVIDERS AS WELL AS ON DIVIDERS PRODUCED BY THE SO-CALLED DIP-STRIP METHOD. HOWEVER, YOU NOW PROTEST THE REQUIREMENT OF THE SPECIFICATIONS THAT THE DIP OR LAMINATED COATING EXTEND OVER THE ENTIRE TAB EDGE OF THE INDEX SHEETS.

SECTION 253 (A) OF TITLE 41, U.S.C. PROVIDES THAT WHENEVER ADVERTISING IS REQUIRED THE SPECIFICATIONS AND INVITATIONS FOR BIDS SHALL PERMIT SUCH FULL AND FREE COMPETITION AS IS CONSISTENT WITH THE PROCUREMENT OF TYPES OF PROPERTY AND SERVICES NECESSARY TO MEET THE REQUIREMENTS OF THE AGENCY CONCERNED. CONSISTENT WITH SUCH PROVISION OF LAW AND 40 U.S.C. 487, THE GENERAL SERVICES ADMINISTRATION HAS FROM TIME TO TIME PROMULGATED FORMAL SPECIFICATIONS OF BOTH A FINAL AND TEMPORARY NATURE WITH A VIEW TOWARD ELIMINATING ANY UNNECESSARY TECHNICAL REQUIREMENT FOR SUPPLIES OF A TYPE WHICH ARE MANUFACTURED BY VARIOUS CONCERNS BUT WHICH MAY DIFFER IN CERTAIN MATERIAL RESPECTS. ALSO, SECTION 1-1.307-1/B) OF THE FEDERAL PROCUREMENT REGULATIONS, WHICH WERE ISSUED BY THE GENERAL SERVICES ADMINISTRATION, PROVIDES THAT:

"PURCHASE DESCRIPTIONS USED IN COMPETITIVE PROCUREMENTS SHALL NOT SPECIFY A PRODUCT HAVING FEATURES WHICH ARE PECULIAR TO THE PRODUCE OF ONE MANUFACTURER, PRODUCER, OR DISTRIBUTOR, AND THEREBY PRECLUDE CONSIDERATION OF A PRODUCT OF ANOTHER COMPANY, UNLESS IT HAS BEEN DETERMINED THAT THOSE PARTICULAR FEATURES ARE ESSENTIAL TO THE GOVERNMENT'S REQUIREMENTS AND THAT SIMILAR PRODUCTS OF OTHER COMPANIES LACKING THOSE FEATURES WOULD NOT MEET THE MINIMUM REQUIREMENTS FOR THE ITEM.'

HAVING REGARD FOR THE ABOVE-CITED REGULATIONS IT IS CLEAR THAT AN AGENCY MAY PURCHASE A SPECIFIC PRODUCT WHEN IT DETERMINES THAT THE FEATURES OF THAT PRODUCT ARE ESSENTIAL TO ITS REQUIREMENTS. THEREFORE, THE SOLE QUESTION FOR DETERMINATION IS WHETHER THE SSA HAS JUSTIFIED ITS ACTION IN DETERMINING THAT ONLY AN INDEX SHEET WHICH HAS LAMINATION THAT EXTENDS THE FULL LENGTH OF THE TAB EDGE OF SUCH SHEET WILL MEET ITS NEEDS. THIS OFFICE HAS NO WAY OF DETERMINING, EXCEPT FROM THE ADMINISTRATIVE REPORTS, WHETHER THE PARTICULAR FEATURE OF AN ARTICLE SUCH AS IS INVOLVED HERE WILL REASONABLY MEET THE NEEDS. WE FEEL THAT THE SSA HAS FURNISHED NO SUBSTANTIAL FACTS AS A BASIS FOR THE DETERMINATION THAT ONLY AN INDEX SHEET WHICH IS LAMINATED THE FULL LENGTH OF THE TAB EDGE OF SUCH SHEET IS CAPABLE OF SATISFYING THE REQUIREMENTS. ACCORDINGLY, SINCE SEVEN OF THE EIGHT BIDS RECEIVED FAILED TO MEET THE REQUIREMENTS OF THE SPECIFICATIONS, IT IS OUR VIEW THAT THE SSA SPECIFICATIONS DID NOT "PERMIT SUCH FULL AND FREE COMPETITION AS IS * * * NECESSARY TO MEET THE REQUIREMENTS" OF THE SSA WITHIN THE PURVIEW OF 41 U.S.C. 253/A). HOWEVER, SINCE WE NOTE FROM THE RECORD THAT THE CHARLES G. STOTT COMPANY HAS EFFECTED DELIVERY OF THE INDEX SHEETS AND RECEIVED PAYMENT THEREFOR, WE ARE OF THE OPINION THAT IT WOULD NOT BE IN THE INTEREST OF THE GOVERNMENT TO DISTURB THE AWARD.