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Sunday, March 2, 2014

Irrelavance is not specification

It is generally common ground that procurement specifications should not be "unduly" restrictive. See, for instance, ABA Model Procurement Code §4-205d: "All specifications shall seek to promote overall economy for the purposes intended and encourage competition in satisfying the State's needs, and shall not be unduly restrictive."

To me this means that irrelevant procurement requirements are not just "unduly" restrictive, they are by definition totally restrictive; they are not, indeed, what is meant by a "specification". If a specification has nothing whatsoever to do with the functional or performance criteria of that which is being acquired, it is not a proper specification at all. See, for instance, the definition of "specification" in Model Code §4-101: "Specification means any description of the physical or functional characteristics, or of the nature of a supply, service or construction item."

On that basis, I have a hard time justifying the procurement decision rendered in the following story, assuming, of course, that the story is accurate and complete in its material facts. Your should read the whole story at the link.

Computer firm claims Hillsborough changed rules to aid vendor
Michael Banks, president of Form 10 Group Inc., said ... the county eliminated his company from the competition to install and replace computers in county offices.

The county had this requirement: bidders must be authorized to re-sell Hewlett Packard computers. “There is no technical support called for under this contract,” Banks said.

Form 10 was not an HP re-seller; the winning incumbent company, accomtec, was. Form 10 was the lower bid, but the award went to the incumbent.

Banks maintains that the county’s requirement that vendors be HP re-sellers is unnecessary. He said his company has installed and replaced thousands of HP computers for the Florida Department of Highway Safety and Motor Vehicles and for the Hillsborough County Tax Collector.

After Form 10 lost its bid protest, it still had the option to appeal to an independent hearing master. But Banks decided not to exercise that option before the protest period ended Thursday.

“The legal costs,” he said in an email, “far outweigh our chances for any positive outcome on the contract.”
Banks was not the only loser.

Though Guam follows the Model Code provisions mentioned above, Guam procurement law includes a provision (5 GCA § 5268(c)) which would seem to clearly preclude the kind of decision-making in this case: "Purchase descriptions shall describe the salient ... performance characteristics of ... service to be procured without including restrictions which do not significantly affect ... performance characteristics".

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