Skip to Highlights
Highlights

SOLICITATION IS NOT RESTRICTIVE OF COMPETITION MERELY BECAUSE AGENCY USES DESIGN SPECIFICATIONS TO DESCRIBE NEEDS. THE IFB'S WERE FOR THE FURNISHING AND INSTALLING OF LAUNDRY SYSTEMS IN THE VA HOSPITALS IN BROCKTON. BRAUN PROTESTED BEFORE THE BID OPENINGS THAT THE SPECIFICATIONS IN THE IFB'S WERE RESTRICTIVE AND IT DID NOT BID. THE CONTRACTING OFFICER SUBSEQUENTLY DETERMINED THAT THE PROCUREMENTS WERE URGENT AND MADE AWARDS UNDER FEDERAL PROCUREMENT REGULATIONS SEC. 1-2.407-8(B) (4) (I) AND (III) (1964 ED. IS RESTRICTIVE OF COMPETITION. IT IS OUR OPINION THAT A SPECIFICATION THAT DICTATES THE MANNER IN WHICH THE GOVERNMENT'S REQUIREMENT BE FULFILLED. IS RESTRICTIVE OF COMPETITION. ***" IN THAT DECISION.

View Decision

B-189563, FEB 1, 1978

SOLICITATION IS NOT RESTRICTIVE OF COMPETITION MERELY BECAUSE AGENCY USES DESIGN SPECIFICATIONS TO DESCRIBE NEEDS.

G.A. BRAUN, INC.:

G.A. BRAUN, INC. (BRAUN), PROTESTED AGAINST THE SPECIFICATIONS IN INVITATIONS FOR BIDS (IFB) M2-33-77 AND M2-36-77 ISSUED BY THE VETERANS ADMINISTRATION (VA). THE IFB'S WERE FOR THE FURNISHING AND INSTALLING OF LAUNDRY SYSTEMS IN THE VA HOSPITALS IN BROCKTON, MASSACHUSETTS, AND BUFFALO, NEW YORK, RESPECTIVELY.

BRAUN PROTESTED BEFORE THE BID OPENINGS THAT THE SPECIFICATIONS IN THE IFB'S WERE RESTRICTIVE AND IT DID NOT BID. THE CONTRACTING OFFICER SUBSEQUENTLY DETERMINED THAT THE PROCUREMENTS WERE URGENT AND MADE AWARDS UNDER FEDERAL PROCUREMENT REGULATIONS SEC. 1-2.407-8(B) (4) (I) AND (III) (1964 ED. AMEND. 68) NOTWITHSTANDING THE PROTEST.

BRAUN CONTENDS THAT THE USE OF DESIGN SPECIFICATIONS, RATHER THAN PERFORMANCE SPECIFICATIONS, IS RESTRICTIVE OF COMPETITION. IT RELIES ON OUR DECISION IN CHARLES J. DISPENZA & ASSOCIATES, ET AL., B-181102, B-180720, AUGUST 15, 1974, 74-2 CPD 101, AS AUTHORITY FOR THIS VIEW. BRAUN QUOTES THE FOLLOWING PASSAGE FROM THE CITED DECISION AND INTERPRETS IT AS PRECLUDING THE USE OF DESIGN SPECIFICATIONS:

"*** IN THAT DECISION, WE AFFIRMED OUR COMMITMENT TO THE PROPOSITION THAT SPECIFICATIONS SHOULD PERMIT THE BROADEST FIELD OF COMPETITION TO FULFILL THE LEGITIMATE NEEDS OF THE GOVENMENT. WITHIN THIS CONCEPT, IT IS OUR OPINION THAT A SPECIFICATION THAT DICTATES THE MANNER IN WHICH THE GOVERNMENT'S REQUIREMENT BE FULFILLED, BEYOND STATING THE GOVERNMENT'S MINIMUM NEED, IS RESTRICTIVE OF COMPETITION. ***"

IN THAT DECISION, WE HAD DETERMINED THAT, UNDER THE FACTS AND CIRCUMSTANCES PRESENTED, THE PROCURING AGENCY HAD NOT PRESENTED SUFFICIENT JUSTIFICATION TO IMPOSE A DESIGN REQUIREMENT BEYOND ITS STATED PERFORMANCE REQUIREMENT. WE DID NOT STATE THAT THE USE OF DESIGN SPECIFICATIONS WAS IMPROPER PER SE. MOREOVER, THE USE OF DESIGN SPECIFICATIONS IS NOT AN AUTOMATIC BASIS FOR DETERMINING A SOLICITATION TO BE UNDULY RESTRICTIVE OF COMPETITION. TO BE UNDULY RESTRICTIVE OF COMPETITION, THE DESIGN REQUIREMENTS MUST BE BEYOND THE GOVERNMENT'S MINIMUM NEEDS.

IN THE INSTANT CASE, THE RECORD INDICATES THAT THE VA RELIED UPON A CONSULTING ENGINEER FOR THE PREPARATION OF THE SPECIFICATIONS. PROPOSING THE BROCKTON EQUIPMENT, THE ENGINEER REPRESENTED THAT "THE SYSTEMS EMPLOY THE LATEST IN LABOR AND ENERGY SAVING TECHNIQUES ***." WITH RESPECT TO THE BUFFALO SPECIFICATIONS, THE ENGINEER STATED THAT "IT IS OUR CONSIDERED OPINION THAT THE PROPOSED EQUIPMENT IS THE MOST ECONOMICAL TO PURCHASE, INSTALL, AND OPERATE WITHIN THE CONFINES OF THE DESIGNATED SPACE." DURING A CONFERENCE IN OUR OFFICE REGARDING THESE PROCUREMENTS AND ANOTHER PROCUREMENT FOR SIMILAR EQUIPMENT FOR THE VA HOSPITAL, SALISBURY, NORTH CAROLINA, WHICH IS PRESENTLY UNDER RECONSIDERATION (GARDNER MACHINERY CORPORATION; G.A. BRAUN, INCORPORATED, B-185418, SEPTEMBER 15, 1976, 76-2 CPD 245), BRAUN CONTENDED THAT ITS LAUNDRY SYSTEM WOULD BE SUBSTANTIALLY CHEAPER AND MORE EFFICIENT AND REQUIRE ONE LESS OPERATING EMPLOYEE THAN THE TYPE OF EQUIPMENT SOLICITED BY THE VA. FOLLOWING THE CONFERENCE, BRAUN FILED A DETAILED WRITTEN STATEMENT IN SUPPORT OF ITS POSITION ON THE SALISBURY PROCUREMENT.

THERE IS NO INDICATION IN THE VA REPORT THAT THE CONSULTING ENGINEER EVALUATED THE BRAUN EQUIPMENT FOR THE BROCKTON AND BUFFALO PROCUREMENTS. HOWEVER, SINCE THE ACCEPTABILITY OF BRAUN'S SYSTEM FOR VA LAUNDRY NEEDS WILL ULTIMATELY BE RESOLVED IN THE SALISBURY CASE AND BRAUN HAS REQUESTED THAT WE CONSIDER THIS PROTEST APART FROM THE SALISBURY PROTEST AND HAS INDICATED THAT THE ESSENTIAL CONTENTION HERE IS THAT DESIGN SPECIFICATIONS ARE AUTOMATICALLY RESTRICTIVE, NO FURTHER ACTION WILL BE TAKEN IN VIEW OF THE CONCLUSION IN THE LATTER REGARD ABOVE. IN THAT CONNECTION, WE NOTE THAT THE BROCKTON AND BUFFALO CONTRACTS ARE SCHEDULED FOR COMPLETION ON FEBRUARY 28, 1978.

FOR THE FOREGOING REASONS, THE PROTEST IS DENIED.

GAO Contacts