NOTES OF INTEREST AND GUIDANCE (CONT.)

NMDMB 04-90

COUNSEL'S CORNER

Why Can't I Get What I Want?

However employed within the Navy, each of us needs
and uses specific pieces of equipment to perform the
tasks that make up our individual job. Except for
items of personal convenience and subject to budget
constraints, the equipment we need will be purchased
with the appropriated funds available to the command
to which we are assigned. Most often the need for
new items will first be identified by the user, who,
after securing the approval to obtain the equipment,
will be requested to describe the equipment in a
requisition or procurement request document. To do
this, we obviously call upon our knowledge of the
marketplace. Many times this is limited to our past
experience with a single model of a particular
manufacturer. Since we have used this make and mdel
equipment with success before, we need not worry
about it performing well in the future. Knowing
exactly what we want, we write it up and submit it
to the procurement office for processing. However,
we are often disappointed when the equipment that
arrives is not the brand name item we thought we
ordered. What: went wrong? Did once again the
Government pay attention only to the lowest price
offered? Feeling frustrated, we are inclined to
think “Now I am stuck with something unfamiliar” and
wonder “Why can’t I just get what I really want?”

The answer stems fromthe fact that we are initiating
the purchase of an asset on behalf of the Navy rather
than ourselves. Whether a secretary needing a new
typewriter, a lab technician requiring an upgraded
microscope or a radiologist lacking an adequate CT
scanner, all of us are subject to the legal framework
that govems purchases made with taxpayer funds.
At the center of this structure is the Competition
in Contracting Act of 1984, 10 U.S.C. 2304 and 41
U.S.C. 253, commonly known as “CICA.” This statute
requires that contract solicitations include speci-
fications that permit full and open competition and
contain restrictive provisions only to the extent
necessary to satisfy the actual minimum needs of the
agency. Under the law, the contracting officer mist
ensure that the specifications describe only what
is needed by the Navy, not what may be desired. The
contracting officer simply lacks the authority to
Purchase a Cadillac when a Chevrolet is adequate.

The contracting officer also cannot restrict the
Governmant’s consideration to one particular make
and model of equipment when other suitable products
are available in the commercial market.

This does not mean that we must accept an
unsatisfactory item. If, due to special circum
stances, only the product of a brand name manufac-
turer will do the job at hand, eliminating
competition and purchasing the brand name article
are permissible. There is no legal requirement to
buy something that will not work. However, it mst
be remembered that when competition is restricted
in any manner the Government must be ahle to
demonstrate that it had a reasonable basis for its
determination that this restriction was necessary
to meet its minimm needs. This determination will
be recorded in a document called a “Justification
and Approval” or JéA. Unless this showing can be
made, the acquisition will not withstand a legal
challenge.

When dealing with markets involving commercial
items, including many types of medical equipment,
how can the Government determine which are suitable
and which are not? After all, such items are
commercially designed and each manufacturer’s
design probably differs markedly from its competi-
tors. In addition, there will often be differences
in size, weight, performance capabilities and other
factors. In advance of issuing the solicitation,
the Government mist develop a set of “salient
characteristics.” These are the physical, func-
tional or other features that an item mist have in
order to meet the minimm needs of the Government.
Since the user is the one most familiar with the
basic requirement, it is likely that the contracting
office will call upon him or her to assist in this
effort. A common practice is to draft the “salient
characteristics” so that they are the mirror image
ef the technical specifications listed in the
marketing literature of the brand name item with
which the user is familiar. This practice should
be avoided. As “salient characteristics” are by
their nature restrictive of competition, they too
can be challenged as a violation of CICA. Again,
the contracting agency can defeat such a challenge
only if it can show that all of the restrictions it
imposes are reasonably related to its minimum needs.