B-162475, FEB. 12, 1968

B-162475, FEB. 12, 1968

BIDS - "BRAND NAME OR EQUAL" DECISION TO CHICAGO PNEUMATIC TOOL CO. CONCERNING DECISION OF JANUARY 8, 1968, DENYING PROTEST AGAINST REJECTION OF LOW BID BY NAVY. A LOW BIDDER WHO DID NOT FURNISH DESCRIPTIVE DATA SHOWING THAT THE "OR EQUAL" EQUIPMENT OFFERED COMPLIED WITH THE REQUIREMENTS HAD BID REJECTED FOR FAILURE TO MEET SALIENT FEATURE OF INVITATION. IF HOWEVER, INVITATION SHOULD NOT HAVE REQUIRED PARTICULAR SALIENT FEATURE IT WAS NOT PROPER. HOWEVER, SINCE DELIVERY HAS BEEN ACCOMPLISHED NO FURTHER ACTION CAN BE TAKEN. HOWEVER NAVY SHOULD ELIMINATE REQUIREMENT IN FUTURE SIMILAR PROCUREMENTS.

TO CHICAGO PNEUMATIC TOOL COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 16, 1968, WITH ENCLOSURES, STATING OBJECTIONS TO OUR DECISION B-162475 DATED JANUARY 8, 1968, TO YOU, DENYING YOUR PROTEST AGAINST THE REJECTION OF YOUR LOW BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. N00228-68-B 0002, ISSUED BY THE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA.

YOU REFER TO THE FOLLOWING TWO PARAGRAPHS WHICH APPEAR ON PAGES 2 AND 3 OF OUR DECISION:

"INVITATIONS WERE SUBMITTED TO 18 SOURCES OF SUPPLY. THREE BIDS WERE RECEIVED UNDER THE INVITATION. YOUR BID OFFERING YOUR MODEL 31 X 13 TVB AT $13,663 PER UNIT WAS THE LOW BID. THE BID WAS NOT ACCOMPANIED BY ANY DESCRIPTIVE DATA REGARDING THE -OR EQUAL- PRODUCT OFFERED. THE BID DID CONTAIN A STATEMENT -SEE OUR BULLETIN 728 AND 728-B.- THE ONLY LITERATURE AVAILABLE AT THE PROCUREMENT ACTIVITY WAS YOUR -SUPPLEMENT "B-5" -- BULLETIN NO. 728.- THIS SUPPLEMENT SHOWED THAT YOUR PRODUCT DID NOT HAVE A FLYWHEEL AND THERE WAS NOTHING IN THE SUPPLEMENT SHOWING THAT A FLYWHEEL EFFECT WAS PRODUCED BY THE EQUIPMENT. IN THE CIRCUMSTANCES, THE BID FROM YOUR COMPANY WAS REJECTED.

"PARAGRAPH (C) (1) OF THE BRAND NAME OR EQUAL CLAUSE IN THE INVITATION PROVIDES THAT AMONG THE TYPES OF INFORMATION WHICH WILL BE CONSIDERED IN THE EVALUATION OF BIDS IS INFORMATION IDENTIFIED IN BIDS. IN THIS CASE THE AGENCY DID NOT CALL FOR THE BULLETINS CITED IN YOUR BID. HOWEVER, EVEN IF THE AGENCY HAD DONE SO, IT APPARENTLY WOULD HAVE BEEN OF DOUBTFUL VALUE SINCE YOU HAVE INDICATED IN YOUR NOVEMBER 22, 1967, LETTER THAT FLYWHEEL EFFECT IS MEASURED IN TERMS OF MATHEMATICS AND THAT THIS MATHEMATICAL PROJECTION CANNOT BE DETERMINED FROM YOUR SALES TERATURE.'

YOU ALLEGE THAT OUR STATEMENT TO THE EFFECT THAT "THERE WAS NOTHING IN THE SUPPLEMENT SHOWING THAT A FLYWHEEL EFFECT WAS PRODUCED BY THE EQUIPMENT" IS ERRONEOUS BECAUSE ON THE FRONT COVER OF YOUR SUPPLEMENT CATALOG B-5 BULLETIN 728 THERE APPEARS A PICTURE OF YOUR VACUUM PUMP THAT SHOWS A WHEEL CONNECTED TO THE CRANKSHAFT OF THIS VACUUM PUMP. YOU CONTEND THAT THE VERY FACT THAT A WHEEL IS CONNECTED TO A CRANKSHAFT ON ANY RECIPROCATING MACHINE WOULD INDICATE THAT FLYWHEEL EFFECT WAS BUILT IN THAT MACHINE. YOU STATE THAT THE QUESTION AS TO HOW MUCH FLYWHEEL EFFECT THE MACHINE POSSESSES IS A MATHEMATICAL PROJECTION WHICH, YOU STATE, THE INVITATION FOR BIDS DID NOT REQUEST. YOU CONTEND THAT THE INVITATION FOR BIDS REQUIRED ONLY THAT THE VACUUM PUMP BE PROVIDED WITH ADEQUATE FLYWHEEL EFFECT AND THAT THE MACHINE OFFERED BY YOUR FIRM MET THIS REQUIREMENT.

ASSUMING WHAT YOU SAY IS CORRECT, THE FACT REMAINS THAT THE INVITATION FOR BIDS DID REQUIRE THAT THE VACUUM PUMP BE EQUIPPED WITH A SEPARATE FLYWHEEL. THE PUMP YOUR FIRM OFFERED WAS NOT EQUIPPED WITH A SEPARATE FLYWHEEL AND, THEREFORE, IT FAILED TO MEET ONE OF THE SALIENT CHARACTERISTICS LISTED IN THE INVITATION FOR BIDS FOR THE EQUIPMENT IN QUESTION. WHILE A "BRAND NAME" DESIGNATION IS INTENDED TO BE DESCRIPTIVE AND MUST BE SO INTERPRETED, SPECIFICATIONS SPELLING OUT ESSENTIAL CHARACTERISTICS TO MEET THE NEEDS OF THE GOVERNMENT MUST BE STRICTLY MET. ASPR 1-1206.2 (B).

UNDER THE INVITATION "BRAND NAME OR EQUAL" CLAUSE, A BIDDER OFFERING AN "EQUAL" PRODUCT IS REQUIRED TO FURNISH "AS PART OF HIS BID" ALL DESCRIPTIVE MATERIAL NECESSARY FOR THE GOVERNMENT TO DETERMINE WHETHER THE "EQUAL" PRODUCT MEETS THE INVITATION REQUIREMENTS AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE. YOUR BID WAS NOT ACCOMPANIED BY ANY DESCRIPTIVE DATA REGARDING THE "OR EQUAL" PRODUCT OFFERED. YOUR BID CONTAINED A STATEMENT "SEE OUR BULLETIN 728 AND 728 B.' THE ONLY LITERATURE AVAILABLE AT THE PROCUREMENT ACTIVITY WAS YOUR "SUPPLEMENT -B-5 - -- BULLETIN NO. 728.' THIS SUPPLEMENT SHOWED THAT YOUR PRODUCT DID NOT HAVE A SEPARATE FLYWHEEL. YOU CONTEND THAT WHILE YOUR MACHINE DID NOT HAVE A SEPARATE FLYWHEEL, THE FLYWHEEL EFFECT WAS BUILT IN THE MACHINE. BUT THE PROCUREMENT ACTIVITY DID NOT REQUEST BIDS ON A PUMP HAVING A "FLYWHEEL EFFECT"; INSTEAD, IT SPECIFICALLY ADVERTISED FOR BIDS ON A PUMP HAVING A "SEPARATE" FLYWHEEL. WHILE "FLYWHEEL EFFECT" WAS DESIRED, THE INVITATION PROVIDED THAT THIS COULD BE ACCOMPLISHED ONLY BY A "SEPARATE" FLYWHEEL.

IN VIEW OF YOUR CONTENTION THAT A SEPARATE FLYWHEEL WAS NOT NECESSARY TO OBTAIN THE FLYWHEEL EFFECT, WE HAVE ADVISED THE SECRETARY OF THE NAVY THAT IF FLYWHEEL EFFECT WOULD HAVE BEEN SUFFICIENT, THE INVITATION PURCHASE DESCRIPTION SHOULD NOT HAVE INCLUDED A REQUIREMENT FOR A SEPARATE FLYWHEEL, BUT INSTEAD SHOULD HAVE MERELY REQUIRED THE FLYWHEEL EFFECT. HOWEVER, SINCE DELIVERY OF THE EQUIPMENT HAS ALREADY BEEN ACCOMPLISHED BY THE PENNSYLVANIA PUMP AND COMPRESSOR COMPANY, NO FURTHER ACTION IS CONTEMPLATED BY OUR OFFICE. WE TRUST THAT CORRECTIVE ACTION WILL BE TAKEN BY THE DEPARTMENT OF THE NAVY TO ELIMINATE A REQUIREMENT FOR A SEPARATE FLYWHEEL IN FUTURE INVITATION FOR BIDS FOR THIS TYPE OF EQUIPMENT.