B-147370, MAR. 28, 1962

B-147370, MAR. 28, 1962

TO ARMOUR, HERRICK, KNEIPPLE AND ALLEN:

BY TELEGRAM OF JANUARY 11 AND LETTERS OF JANUARY 16, 22, 29, THE LAST WITH ENCLOSURES, AND MARCH 14, 1962, YOU HAVE ON BEHALF OF THE FRICK- GALLAGHER MANUFACTURING COMPANY PROTESTED THE REJECTION OF THAT FIRM'S BID IN RESPONSE TO INVITATION NO. 13148, ISSUED MAY 22, 1961, BY THE FEDERAL SUPPLY SERVICE, FOR THE PROCUREMENT OF ROTARY BINS AND STORAGE EQUIPMENT.

THE INVITATION, TO RESULT IN A REQUIREMENTS TYPE CONTRACT FOR A PERIOD OF ONE YEAR, CONTAINED TWO SCHEDULES, EACH INCORPORATING THE SAME 46 ITEMS PLUS 12 SUBITEMS. THE FIRST SCHEDULE GROUPED THE ITEMS FOR PURPOSES OF AWARD INTO A NUMBER OF COMBINATIONS. THE SECOND SCHEDULE PROVIDED FOR AWARD ON AN ALL OR NONE BASIS, WITH A QUANTITY DISCOUNT.

ON 19 OF THE ITEMS AND THREE OF THE SUBITEMS THE SUPPLIES TO BE PROCURED WERE IDENTIFIED BY A REFERENCE TO FRICK-GALLAGHER CATALOG NUMBERS IN ADDITION TO INDIVIDUAL ITEM DESCRIPTIONS AND, IN SOME CASES, FEDERAL SPECIFICATIONS. THE FRONTIER MANUFACTURING COMPANY WHICH SUBMITTED THE LOW OVERALL BID ON SCHEDULE 2 OFFERED ARTICLES OF ITS OWN MANUFACTURE IN EACH CASE BUT FAILED TO PROVIDE THE DESCRIPTIVE INFORMATION REQUIRED BY THE TERMS OF THE INVITATION ON THE ITEMS REFERENCED BY BRAND NAME. THE QUESTION OF FRONTIER'S RESPONSIVENESS WITH RESPECT TO THESE ITEMS AND SUBITEMS WAS SUBMITTED TO OUR OFFICE. WE HELD IN OUR DECISION 41 COMP. GEN. - , B-147370, NOVEMBER 29, 1961, THAT THE DESCRIPTIVE DATA REQUIREMENT HAD NOT BEEN MET IN THE FRONTIER BID AND THAT THE FAILURE TO MEET THAT REQUIREMENT MUST BE REGARDED AS FATAL WITH RESPECT TO CONSIDERATION OF THE FRONTIER BID ON THE BRAND NAME OR EQUAL ITEMS UNLESS, AS CONTENDED BY FRONTIER, THE BRAND NAME REFERENCES WERE MERE SURPLUSAGE SERVING TO PROVIDE ONLY DESIRABLE BUT UNNECESSARY PICTORIAL REPRESENTATIONS, IN WHICH CASE THE DESCRIPTIVE DATA REQUIREMENT COULD PROPERLY BE IGNORED.

THE FEDERAL SUPPLY SERVICE, AFTER CAREFUL AND THOROUGH CONSIDERATION OF THE MATTER, DETERMINED THAT THE BRAND NAME REFERENCE WAS UNNECESSARY IN EACH INSTANCE SO THAT IT COULD BE IGNORED PURSUANT TO OUR DECISION WITH RESPECT TO THE ENTIRE PROCUREMENT, AND ON DECEMBER 21, 1961, AWARDED CONTRACT NO. GS-08S-17194 TO FRONTIER. THE JUSTIFICATION FOR AWARD IN THE LIGHT OF OUR DECISION IS STATED AS FOLLOWS IN A LETTER OF MARCH 6, 1962, FROM THE COMMISSIONER, FEDERAL SUPPLY SERVICE:

"* * * IN THOSE CASES WHERE A BRAND NAME WAS USED, SUCH BRAND NAME REFERENCE DID NOT CONTRIBUTE MATERIALLY TO THE DESCRIPTION OF THE ARTICLES, SINCE THE PURCHASE DESCRIPTION CONSTITUTED AN ADEQUATE SPECIFICATION. THE SPECIFICATION IN THE ARTICLES WHERE BRAND NAMES WERE USED CONTAINED ENTIRELY SUITABLE DESCRIPTIONS SO FAR AS DIMENSIONAL REQUIREMENTS WERE CONCERNED. WE BELIEVE THAT THERE CAN BE NO DOUBT OF THIS PROPOSITION. HOWEVER, IT MAY BE ARGUED THAT IN THE ABSENCE OF THE BRAND NAME PORTION OF THE SPECIFICATION, NO PROPER EVALUATION BY AN INSPECTOR OF THE QUALITY OF AN ITEM WAS POSSIBLE. WITH REGARD TO THIS POINT, OUR QUALITY CONTROL DIVISION HAS ADVISED THAT IN SUCH CASES INSPECTION WOULD BE MADE AS TO WHETHER THE EQUIPMENT IN QUESTION CONFORMED TO TRADE PRACTICES AND APPROPRIATE TECHNIQUES SO FAR AS SUCH CONSIDERATIONS AS DURABILITY AND STRENGTH ARE CONCERNED. * * *.'

IT APPEARS THAT THE FEDERAL SUPPLY SERVICE INTENDED TO RELY, IN ACCEPTING DELIVERIES UNDER THE CONTRACT, ON THE USUAL IMPLIED WARRANTY OF FITNESS FOR THE PURPOSE INTENDED. SEE 4 WILLISTON ON CONTRACTS, REVISED EDITION, SECTION 989. THE INTENDED PURPOSE IS CLEARLY EXPRESSED IN INTERIM FEDERAL SPECIFICATION GGG-B-00351A, DATED NOVEMBER 1, 1960, WHICH PURSUANT TO PAGE 31 OF THE INVITATION GOVERNS ITEMS 1 THROUGH 28 WITHOUT BRAND NAME REFERENCES, AND ITEMS WITHIN THAT GROUPING WITH BRAND NAME REFERENCES INSOFAR AS ITS PROVISIONS APPLY. THE SPECIFICATION STATES AT PARAGRAPH 1.1:

"SCOPE. - THE ROTARY STORAGE AND DISPLAY BINS COVERED BY THIS SPECIFICATION ARE FOR STORAGE AND DISPLAY OF TOOLS AND EQUIPMENT PARTS.

IN ADDITION, PARAGRAPH 6.1 INCLUDES THE FOLLOWING INFORMATION WITH RESPECT TO TYPE I BINS, THE TYPE INCLUDED IN THE PROCUREMENT:

"INTENDED USE. - TYPE I, SIZE A BINS ARE GENERALLY BENCH MOUNTED AND ARE USED FOR EITHER THE STORAGE OR DISPLAY OF TOOLS OR SMALL PARTS. TYPE I, SIZES B AND C BINS ARE GENERALLY FLOOR MOUNTED AND ARE USED FOR EITHER STORAGE OR DISPLAY OF TOOLS AND EQUIPMENT PARTS, IN MAINTENANCE AND OTHER SHOPS. * * *.'

YOU CONTEND, CONTRARY TO THE POSITION TAKEN BY THE CONTRACTING AGENCY, THAT THE BRAND NAME REFERENCES IN THE INVITATION ARE MATERIAL WITH RESPECT TO EACH OF THE 22 ITEMS AND SUBITEMS IN WHICH THEY WERE EMPLOYED. REVIEW OF THE CONTRIBUTION MADE BY THE BRAND NAME REFERENCES IS ATTACHED TO YOUR BRIEF.

ITEMS 1 THROUGH 28 OF THE INVITATION CALL FOR VARIOUS TYPES OF ROTARY STORAGE BINS OR PARTS (INCLUDING BIN DIVIDERS, DRAWERS AND CONTAINERS) EITHER ALONE OR IN COMBINATION WITH STATIONARY SHELVING MOUNTED IN VARIOUS WAYS. THOSE ITEMS COVERING ROTARY BINS OR PARTS ONLY (I.E., WITHOUT THE STATIONARY SHELVING), THE TYPE OF EQUIPMENT DIRECTLY CONTEMPLATED BY THE CITED FEDERAL SPECIFICATION, DO NOT CONTAIN BRAND NAME REFERENCES, PRESUMABLY BECAUSE THE FEDERAL SPECIFICATIONS, TOGETHER WITH THE ITEM DESCRIPTION, IS DEEMED ADEQUATE TO DESCRIBE THE GOVERNMENT'S REQUIREMENTS. IF THIS PRESUMPTION IS CORRECT, AND IT APPEARS TO BE UNCHALLENGED, IT MUST FOLLOW THAT THE SPECIFICATION WITHOUT THE BRAND NAME REFERENCE MUST ALSO BE ADEQUATE WITH RESPECT TO SUCH ROTARY BINS AND PARTS COVERED BY THE FEDERAL SPECIFICATION WHEN USED IN COMBINATION WITH STATIONARY SHELVING AND MOUNTINGS. ACCORDINGLY, WE CONCLUDE THAT AS TO THE ROTARY PORTIONS OF THE PROCUREMENT INCLUDED IN ITEMS 1 THROUGH 28 THE BRAND NAME REFERENCE IS NOT MATERIAL.

THE REMAINDER OF ITEMS 1 THROUGH 28 IS MADE UP OF STATIONARY SHELVING AND MOUNTING. THESE IN EACH CASE INCLUDE BRAND NAME REFERENCES. THE CITED FEDERAL SPECIFICATION WOULD BE APPLICABLE ONLY IN ACCORDANCE WITH THE PROVISION OF THE INVITATION REFERRED TO ABOVE, AND TO THE PROVISIONS GOVERNING WORKMANSHIP AND INTENDED USE. WHILE IT MAY BE ARGUED THAT EVEN THESE PROVISIONS OF THE SPECIFICATION DO NOT APPLY, WE THINK THAT ANY REASONABLY PRUDENT BIDDER WOULD ASSUME THAT THE STATIONARY SHELVING AND MOUNTING, PURCHASED AND USED WITH THE ROTARY EQUIPMENT, WOULD BE SUBJECT TO EQUIVALENT LOADS AND STRESSES AND THAT THE SAME IMPLIED WARRANTY OF FITNESS WOULD APPLY.

IN ADDITION, AND MORE SIGNIFICANTLY, ITEM 30 OF THE SCHEDULE IS MADE UP OF COMPONENT PARTS FOR FORMING ADDITIONAL UNITS FOR STATIONARY OVERHEAD STORAGE INCLUDED IN ITEMS 4, 11, 17 AND 18. WITH RESPECT TO THESE ITEMS YOU CONTEND THE BRAND NAME REFERENCE ADDS MATERIAL COMPONENTS SUCH AS BACK AND SIDE PANELS AND LABEL HOLDERS PROVIDING ADDITIONAL UTILITY, AND BRACES AND FLOOR ANGLES PROVIDING ADDITIONAL STRENGTH AND STABILITY. ITEM 30 INCLUDES AS SUBITEMS BACK AND END PANELS, BRACES AND LABEL HOLDERS. OUR VIEW, THE REASONABLY PRUDENT BIDDER IS PUT ON NOTICE BY ITEM 30 THAT STATIONARY UNITS INCLUDED IN OTHER ITEMS MUST CONFORM TO THE SAME STANDARDS AND INCLUDE THE SAME COMPONENTS AS THE GOVERNMENT IS PURCHASING FOR THE ASSEMBLY OF ADDITIONAL UNITS. FLOOR ANGLES, WHILE NOT INCLUDED IN ITEM 30, WOULD OBVIOUSLY BE NEEDED TO INSURE THAT THE ROTATING SHELVES WOULD REVOLVE FREELY AS REQUIRED BY PARAGRAPH 3.2 OF THE FEDERAL SPECIFICATION. IT WOULD SERVE LITTLE PURPOSE TO HAVE THESE SEGMENTS ROTATE FREELY AND THEN PERMIT THE SUPPORTS FOR THE OVERHEAD STATIONARY SHELVES TO BE SO CONSTRUCTED AS TO RESTRICT THE ROTATION.

THERE REMAIN FOR CONSIDERATION ITEMS 11, 22 AND 22 (A), ALL IDENTIFIED BY BRAND NAME OR EQUAL. THESE ITEMS INCLUDE, OR ARE DESIGNED TO INCLUDE, TWO ROTARY BINS UNDER A STEEL COUNTER. IN ADDITION, ITEM 11 REQUIRES SHELVES UNDER THE COUNTER BETWEEN THE ROTARY SECTIONS. YOU CONTEND THAT THE SIDE AND FRONT PANELS ON THE COUNTER AND THE SIDE PANELS ON THE SHELVES, WHICH ARE INTEGRAL PARTS OF THE REFERENCE FRICK-GALLAGHER ITEMS, ARE NOT OTHERWISE REQUIRED. EXCEPT TO THE EXTENT THAT UNITS WOULD OTHERWISE HAVE TO PROVIDE THE NECESSARY DEGREE OF RIGIDITY AND STRENGTH, WE FIND THAT THE SPECIFICATIONS, EXCLUDING THE BRAND NAME REFERENCE, DO NOT PROVIDE FOR SUCH PANELS. HOWEVER, THESE SIDE AND FRONT PANELS ARE IN FACT INCLUDED IN ITEM 30 (ALTHOUGH THE OVERALL DESCRIPTION FOR THAT ITEM DOES NOT APPEAR APPLICABLE). THEREFORE, WE FIND THAT THE REASONABLY PRUDENT BIDDER WOULD ALSO CONSIDER THESE PANELS TO BE REQUIRED IN ITEMS 11, 22 AND 22 (A).

WITH RESPECT TO ITEMS 31 THROUGH 46 THERE IS NO SPECIFICATION REFERENCE EXCEPT FOR WOODEN SHELVING IN ITEM 38, WHICH SHELVING IS NOT AT ISSUE. ITEMS 31 AND 32 ARE DESCRIBED IN THE INVITATION BY SIZE, FUNCTION, GUAGE STEEL AND CAPACITY IN TERMS OF WEIGHT. IN ADDITION, EACH CONTAINS A CATALOG REFERENCE. YOU CONTEND THAT THE CATALOG REFERENCE ADDS A REQUIREMENT FOR BEARINGS WHICH ADD MATERIALLY TO THE UTILITY OF THE ITEMS. THE POSITION TAKEN BY THE CONTRACTING AGENCY IS THAT BEARINGS WOULD BE REQUIRED IN ORDER FOR BIN SECTIONS OF THE CAPACITIES STATED TO ROTATE FREELY WHEN FULLY LOADED AS REQUIRED BY THE TERMS OF THE ITEM DESCRIPTION. SO FAR AS CONCERNS THE ONE-PIECE CONSTRUCTION OF EACH SECTION, THE FLUTED DESIGN AND THE WELDING OF THE DIVIDERS, WHICH ARE ALSO ADDED BY THE CATALOG REFERENCE, THEY ARE NOT DEEMED MATERIAL SO LONG AS THE PERFORMANCE REQUIREMENTS STATED IN THE ITEM DESCRIPTION ARE OTHERWISE MET.

ITEM 33 CONTAINS AN ITEM DESCRIPTION WHICH APPEARS TO BE ADEQUATE AS TO CONFORMATION AND SIZE BUT CONTAINS NO SPECIFIC DATA SUCH AS USE OR MAXIMUM WEIGHTS TO BE SUPPORTED. YOU CONTEND THAT THE APPLICABLE CATALOG REFERENCE ADDS A REQUIREMENT THAT THE UNIT BE CAPABLE OF HOLDING HEAVY, BULK-TYPE MATERIALS FOR WHICH THE FRICK-GALLAGHER UNIT IS DESIGNED AND THAT BALL THRUST BEARINGS BE USED TO REDUCE FRICTION AND PROVIDE FREE ROTATION UNDER A HEAVY LOAD. WE HAVE EXAMINED CATALOGS 110-D AND 719 WHICH CONTAIN THE REFERENCE AND FIND NO INDICATION THEREIN OF SPECIFICATION CHARACTERISTICS BEYOND THOSE INCLUDED IN THE ITEM DESCRIPTION. WE ASSUME IT TO BE YOUR POSITION, THEREFORE, THAT A UNIT BEARING THE DESCRIPTION MANUFACTURED BY FRICK GALLAGHER WOULD HAVE THE CITED FEATURES.

THE MATTER FOR CONSIDERATION WITH RESPECT TO ITEM 33, THEREFORE, IS WHETHER THE CATALOG REFERENCE IS INTENDED TO APPLY TO THE DESCRIPTION AND ILLUSTRATIONS INCLUDED IN THE CATALOG OR WHETHER THE "OR EQUAL" ITEM MUST CONFORM TO AN ITEM ACTUALLY PRODUCED WHICH BEARS THE SAME IDENTIFICATION NUMBER. TO STATE THE PROBLEM IS TO RESOLVE IT. THERE IS NOTHING WHICH WOULD PREVENT THE MANUFACTURER FROM CHANGING THE ITEM CONSISTENT WITH THE CATALOG REFERENCE AT ANY TIME AND WITHOUT NOTICE. CERTAINLY A PURCHASER FROM THE CATALOG COULD NOT REQUIRE THAT A UNIT CONTAIN NOT ONLY THE CHARACTERISTICS THEREIN DESCRIBED BUT, IN ADDITION, OTHERS WHICH EXIST IN AN ACTUAL UNIT MANUFACTURED AT ONE TIME OR ANOTHER UNDER THE CATALOG NUMBER. SIMILARLY, WE DO NOT THINK THE CATALOG REFERENCE CAN BE EXPENDED TO REQUIRE AN "OR EQUAL" OF SUCH MANUFACTURED ITEM.

ITEM 34 IS A BIN DIVIDER TO BE USED WITH ITEM 33. THE CATALOG REFERENCE ADDS A 3/4-INCH HEM TO THE TOP EDGE AS REINFORCEMENT. THIS IS NOT DEEMED MATERIAL BY THE CONTRACTING AGENCY FOR THE INTENDED USE.

THE NEXT ITEM CONTAINING A CATALOG REFERENCE ALLEGED TO BE MATERIAL IS ITEM 37 WHICH CALLS FOR PAN-TYPE TRAYS. YOU CONTEND THAT THE CATALOG REFERENCE ADDS A TOP EDGE FLANGE FOR STRENGTH AND STIFFNESS AND A TAPERED END TO PERMIT COUPLING. WE DO NOT FIND THAT EITHER OF THE TWO CATALOGS CONTAINING THE REFERENCE, 702 AND 719, INDICATES THE TAPERED END. AS TO THE TOP EDGE FLANGE, ITEM 37 IS DESCRIBED AS FOR USE WITH ITEM 36 WHICH PROVIDES FOR BAR RACKS ON WHICH THE TRAYS ARE TO BE USED. EACH BAR RACK ARM IS REQUIRED TO HAVE A SAFE STORAGE LOAD CAPACITY OF 500 POUNDS. OBVIOUSLY, THE TRAY MUST HAVE AN EQUIVALENT CAPACITY. IT IS THE POSITION OF THE CONTRACTING AGENCY THAT THE NEEDS OF THE GOVERNMENT CAN BE SATISFIED WITHOUT THE FLANGE IF THE STATED LOAD CAPACITY IS MET.

ITEMS 38, 38 (A), 39 AND 39 (A) ARE FOR STORAGE RACKS AND CONTAIN RATHER DETAILED SPECIFICATION DATA. YOU CONTEND THAT THE CATALOG REFERENCE IN EACH CASE ADDS RADIAL CUT-OUTS OF GUSSETS INCREASING THE ACCESS SPACE TO THE STORED MATERIALS. AGAIN THE ALTERNATE, A TRIANGULAR GUSSET, IS CONSIDERED BY THE CONTRACTING AGENCY TO SATISFY THE GOVERNMENT'S REQUIREMENTS. CERTAINLY, IN THIS INSTANCE AT LEAST, THE CONTRIBUTION MADE BY THE CATALOG REFERENCE SEEMS TO BE MINIMAL.

ITEMS 40 AND 41 CALL FOR BULK STORAGE RACKS, EACH SHELF HAVING A STATED MINIMUM LOAD CAPACITY. IT IS CONTENDED THAT THE CATALOG REFERENCES ADD SIDE CROSS-SWAY BRACES TO THE UNITS TO PROVIDE NECESSARY STRENGTH AND STABILITY. AGAIN, IT IS THE FEDERAL SUPPLY SERVICE POSITION THAT UNITS MEETING THE ITEM DESCRIPTION REQUIREMENTS ARE ACCEPTABLE FOR THE GOVERNMENT'S PURPOSES. ITEM 44 IS DESCRIBED AS A PORTABLE STEEL RACK FOR STORAGE AND TRANSPORT OF LARGE AIRCRAFT TIRES. YOU CONTEND THAT THE CATALOG REFERENCE ADDS THE ATTACHMENT OF INNER VERTICAL FRAME MEMBERS TO THE SHELF AS WELL AS CROSS MEMBERS, WHICH IS SAID TO PROVIDE NECESSARY STRENGTH AND STABILITY ESPECIALLY NEEDED SINCE THE RACKS MAY BE STACKED, AND BOX CONSTRUCTED CHANNEL GUIDES, ADDING STRENGTH AND ASSURANCE OF STABILITY IF FORK LIFT EQUIPMENT IS NOT COMPLETELY INSERTED. THE METHOD OF ATTACHMENT OF THE INNER FRAME MEMBERS IS NOT SPECIFIED IN THE ITEM DESCRIPTION AND, AGAIN, IS NOT DEEMED MATERIAL BY THE CONTRACTING AGENCY SO LONG AS THE STATED PURPOSES CAN PROPERLY BE SERVED. AS TO THE CHANNEL GUIDES, THE CATALOG DATA DO NOT SHOW BOX CONSTRUCTION, E., CHANNELS HAVING FOUR SIDES. IN ANY CASE, THE ITEM DESCRIPTION SPECIFICALLY REQUIRES THAT THE UNIT "HAVE TWO STEEL CHANNEL GUIDES ATTACHED THAT WILL PERMIT HANDLING OF LOADED RACKS BY FORK TRUCK WITHOUT DANGER OF TIPPING.'

FINALLY, ITEMS 45 AND 46, AUTO TIRE AND WHEEL STORAGE RACKS, INCORPORATE CATALOG REFERENCES WHICH ARE SAID TO BE MATERIAL BECAUSE THEY ADD SIDE CROSS-SWAY BRACES AND END TIE BARS AT THE BASE TO PROVIDE THE NECESSARY STRENGTH AND STABILITY. THE ITEM DESCRIPTIONS DO NOT SPECIFY THESE CHARACTERISTICS; THEY DO, HOWEVER, ESTABLISH CAPACITY LOAD REQUIREMENTS. AGAIN, IT IS THE POSITION OF THE CONTRACTING AGENCY THAT UNITS MEETING THE ITEM DESCRIPTION REQUIREMENTS ARE ACCEPTABLE FOR THE GOVERNMENT'S PURPOSES SO LONG AS THE LOAD CAPACITIES ARE OTHERWISE PROPERLY MET.

IN SUMMARY, IT MAY BE SAID THAT THE CATALOG REFERENCES, IN SOME INSTANCES, PROVIDE CERTAIN DETAILS OF CONSTRUCTION ON WHICH THE SPECIFICATIONS ARE SILENT. CONCEIVABLY THE PROCURING AGENCY MIGHT HAVE INTENDED THAT THESE CONSTRUCTION DETAILS BE DUPLICATED TO INSURE THE USEFULNESS OF THE PRODUCTS FOR THE PURPOSES INTENDED. IN THIS CASE, HOWEVER, THE FEDERAL SUPPLY SERVICE HAS APPARENTLY CONCLUDED THAT FOR ITS PURPOSES THE PARTICULAR DETAILS ARE NOT NECESSARY AND THE REQUIREMENT COULD BE SATISFIED BY ANY ALTERNATE CONSTRUCTION WHICH WOULD MEET THE IMPLIED WARRANTY OF FITNESS AND CONFORM TO THE STATED CAPACITIES. AS AN ADDED ASSURANCE OF COMPLIANCE THERE IS FOR APPLICATION THE GUARANTEE WHICH APPEARS AT PAGE 5 OF THE INVITATION, READING AS FOLLOWS:

"SERVICE GUARANTEE: THE CONTRACTOR (SUCCESSFUL BIDDER) GUARANTEES THE EQUIPMENT AGAINST DEFECTIVE MATERIAL, WORKMANSHIP, AND PERFORMANCE FOR A PERIOD OF ONE (1) YEAR, SAID GUARANTEE TO RUN FROM DATE OF ACCEPTANCE OF THE EQUIPMENT BY THE GOVERNMENT. THE CONTRACTOR AGREES TO FURNISH, WITHOUT COST TO THE GOVERNMENT, REPLACEMENT OF ALL PARTS AND MATERIAL WHICH ARE FOUND TO BE DEFECTIVE DURING THE GUARANTEE PERIOD. REPLACEMENT MATERIAL AND PARTS SHALL BE FURNISHED TO THE GOVERNMENT AT POINT OF INSTALLATION. COST OF INSTALLATION OF REPLACEMENT MATERIAL AND PARTS SHALL BE BORNE BY THE GOVERNMENT.'

THERE IS NO RULE THAT ONLY AN EXACT DUPLICATE IN PHYSICAL CHARACTERISTICS OR PERFORMANCE OF A NAMED BRAND MAY BE REGARDED AS RESPONSIVE. RATHER THE "OR EQUAL" PROVISION HAS BEEN CONSTRUED TO MEAN THAT ANY ALTERNATE ITEM OFFERED MUST EQUAL THE SPECIFIED PRODUCT WITH RESPECT TO SUITABILITY FOR THE PURPOSE INTENDED. 38 COMP. GEN. 291, 294; B-136389, JULY 23, 1958. SEE ALSO FPR 1-1.307-7 (A), TO THE SAME EFFECT. THE BIDDERS WERE SPECIFICALLY ADVISED OF THIS POSITION BY LANGUAGE AT PAGE 3.1 OF THE INVITATION, AS FOLLOWS:

"/A) IF ARTICLES HAVE BEEN IDENTIFIED IN THIS INVITATION BY A "BRAND NAME OR EQUAL" DESCRIPTION, SUCH REFERENCE IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS FOR THE SOLE PURPOSE OF INDICATING TO PROSPECTIVE BIDDERS A DESCRIPTION OF ARTICLES THAT WILL BE SATISFACTORY. BIDDERS ARE NOT EXPECTED TO FURNISH EXACT DUPLICATES BUT ONLY ARTICLES WHICH ARE EQUAL, INSOFAR AS THE GOVERNMENT'S NEEDS ARE CONCERNED, TO THE REFERENCED BRAND NAME ARTICLES. * * *.'

THEREFORE, EVEN IF THE BRAND NAME REFERENCES ARE REGARDED AS MATERIAL, AN ACCEPTABLE PRODUCT WOULD NOT NECESSARILY HAVE TO INCORPORATE THE CITED CONSTRUCTION DETAILS. IN FACT, IF IT WAS INTENDED THAT SUCH DETAILS BE INCLUDED, THE REQUIREMENT SHOULD HAVE BEEN EXPLICITLY SET OUT IN THE INVITATION PURSUANT TO FPR 1-1.307-4 (B), STATING IN PART AS FOLLOWS:

" "BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS SHOULD SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCTS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT, * * *.'

WE HAVE FREQUENTLY STATED, AND GOVERNMENT PROCUREMENT REGULATIONS GENERALLY PROVIDE, THAT PROCUREMENTS ON A BRAND NAME OR EQUAL BASIS SHOULD BE AVOIDED WHEN POSSIBLE. PART OF THE RELUCTANCE TO AUTHORIZE THE UTILIZATION OF THIS KIND OF PRODUCT IDENTIFICATION RESULTS FROM THE INHERENT UNCERTAINTY IN THE DESCRIPTION SINCE WHAT IS EQUAL MAY NOT BE DECIDED UNTIL AFTER THE BIDS HAVE BEEN OPENED. IN ANY CASE, IN OUR VIEW THE FOREGOING ESTABLISHES THAT CONSTRUCTION DETAILS PROVIDED BY THE BRAND NAME REFERENCES ARE NOT NECESSARILY MATERIAL AND THE CONTRACTING AGENCY'S POSITION THAT THE GOVERNMENT'S INTERESTS ARE PROTECTED WITHOUT USE OF THE CATALOG REFERENCES BY THE WARRANTY OF FITNESS, THE SPECIFIED PERFORMANCE REQUIREMENTS, AND THE ONE-YEAR GUARANTEE IS NOT UNREASONABLE. IN THE CIRCUMSTANCES, WHILE IT IS REGRETTABLE THAT BRAND NAME REFERENCES WERE EMPLOYED, WE CONCLUDE THAT THEIR INCLUSION PROVIDED NOTHING OF SUCH MATERIALITY AS TO REQUIRE REJECTION OF THE FRONTIER BID UNDER OUR EARLIER DECISION.

YOU CONTEND ALSO THAT THE FRONTIER BID SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE SINCE THE DESCRIPTIVE DATA CLEARLY REQUIRED BY THE TERMS OF THE INVITATION WERE NOT FURNISHED. YOU CITE OUR DECISION AT 40 COMP. GEN. 132, 135, TO THE EFFECT THAT LANGUAGE IN AN INVITATION REQUIRING THAT DATA BE SUBMITTED WITH A BID MUST BE REGARDED AS MATERIAL AND THE FAILURE TO COMPLY THEREWITH AS FATAL TO THE BID.

WHILE WE MUST CONCEDE THE STATEMENT AT 40 COMP. GEN. 132, 135, THERE IS ALSO FOR CONSIDERATION THE LANGUAGE OF OUR DECISION 39 COMP. GEN. 595, 597, AS FOLLOWS:

"IT MUST BE RECOGNIZED, HOWEVER, THAT AN AUTOMATIC REJECTION OF A BID BECAUSE OF A FAILURE TO CONFORM TO A PURELY TECHNICAL OR OVERLITERAL READING OF THE STATED REQUIREMENTS MAY BE AS ARBITRARY AS A WAIVER OF NON- RESPONSIVENESS TO A MATERIAL AND SUBSTANTIAL REQUIREMENT. IT IS TO BE PRESUMED THAT DESCRIPTIVE MATERIAL OR DATA REQUIRED TO BE FURNISHED BY BIDDERS WITH THEIR BIDS IS NEEDED FOR SOME PURPOSE RELEVANT TO THE PROPER EVALUATION OF THE BIDS; IF THE PURPOSE IS REASONABLY CLEAR AND APPEARS TO BE SUBSTANTIALLY MET BY THE MATERIAL FURNISHED, WE DO NOT BELIEF THAT THE INTEREST OF THE GOVERNMENT OR OF COMPETING BIDDERS REQUIRE THAT A BID BE REJECTED BECAUSE OF DEFICIENCIES MERELY OF FORM.'

SEE ALSO, TO THE SAME EFFECT, 39 COMP. GEN. 881. THE RULE PRESENTED IN THE DECISION WHICH YOU CITED INFERENTIALLY INCLUDES AN ADDITIONAL CONDITION LIMITING ITS APPLICATION TO THOSE INSTANCES IN WHICH THE INFORMATION REQUIRED HAS SOME VALID PURPOSE REASONABLY RELATED TO THE PROCUREMENT. IF, AS HAS BEEN DETERMINED BY THE CONTRACTING AGENCY (WHICH HAS THE PRIME RESPONSIBILITY IN THIS AREA), THE BRAND NAME REFERENCES ADD NOTHING TO THE ITEM DESCRIPTION, WE CANNOT AGREE THAT FAILURE TO COMPLY WITH THE DATA PROVISION REQUIRES THAT THE FRONTIER BID BE REJECTED.

YOU NEXT TAKE THE POSITION THAT EITHER THE BRAND NAME REFERENCE DUPLICATES SOME ASPECT OF THE ITEM DESCRIPTION CONTRARY TO FPR 1-1.305 1 (AS INDICATED IN OUR EARLIER DECISION), OR THE DECISION THAT THE BRAND NAME IS SURPLUSAGE REPRESENTS A CHANGE IN SPECIFICATIONS AFTER OPENING. IN EITHER CASE, YOU CONTEND, THE INVITATION IS IMPROPER AND NO VALID CONTRACT MAY RESULT FROM IT.

UNDER THE WELL RECOGNIZED RULE, AS YOU HAVE NOTED, GOVERNMENT PROCUREMENTS SHOULD BE ADVERTISED TO SET OUT THE NEEDS OF THE AGENCY ON AS BROAD A BASIS AS POSSIBLE IN ORDER TO ACHIEVE THE MAXIMUM COMPETITION CONTEMPLATED BY THE STATUTES. WE AGREE THAT THE INCLUSION OF A BRAND NAME OR EQUAL PROVISION WITHOUT PURPOSE COULD, IN GENERAL,BE CONSIDERED TO UNNECESSARILY NARROW THE AVAILABLE COMPETITIVE BASE. WHERE BECAUSE OF A DEFECT IN THE INVITATION AN ADEQUATE COMPETITIVE BASE HAS NOT BEEN ACHIEVED, WE HAVE OFTEN, AS YOU POINT OUT, REQUIRED THE REJECTION OF ALL BIDS AND THE READVERTISEMENT OF THE PROCUREMENT. THE REASON FOR SUCH ACTION IS THAT PROSPECTIVE BIDDERS MAY HAVE BEEN DISCOURAGED FROM PARTICIPATING IN THE COMPETITION BY INCLUSION OF THE INAPPROPRIATE OR DEFECTIVE PROVISION IN THE INVITATION, OR A BIDDER MAY HAVE BEEN MISLED THEREBY INTO SUBMITTING A LESS COMPETITIVE BID. IN OTHER INSTANCES WHERE NEITHER OF THESE RESULTS WOULD OBTAIN WE HAVE, INSTEAD OF REQUIRING THAT THE PROCUREMENT BE READVERTISED, PERMITTED AWARD UNDER THE INVITATION WITH THE OMISSION OR CORRECTION OF THE PROVISION WHICH WOULD OTHERWISE RENDER THE AWARD INVALID. 40 COMP. GEN. 561, 563; 39 COMP. GEN. 834; ID. 563; B- 145771, OCTOBER 17, 1961; AND B-139673, JUNE 26, 1959.

WE HAVE BEEN ADVISED THAT THE PRODUCTS COVERED BY THE INSTANT PROCUREMENT WERE ALSO PROCURED UNDER TWO EARLIER CONTRACTS. THE RECORD SHOWS THAT UNDER THE FIRST INVITATION, WHICH RESULTED IN AN AWARD OF A CONTRACT IN MARCH 1959, THE ONLY BIDDER WAS FRICK GALLAGHER. TWO BIDDERS, INCLUDING FRICK-GALLAGHER, SUBMITTED BIDS UNDER AN INVITATION RESULTING IN AN AWARD TO FRICK-GALLAGHER IN JUNE 1960. WITH RESPECT TO THE INSTANT PROCUREMENT, FIVE BIDS WERE RECEIVED. OF THESE FIVE, TWO REFUSED TO EXTEND THEIR BIDS WHEN THE AWARD WAS DELAYED, AND ONLY FRICK-GALLAGHER AND FRONTIER SUBMITTED BIDS ON SCHEDULE 2. THE FOREGOING CHRONOLOGY, WE BELIEVE, INDICATES THAT AT BEST THE SOURCES FOR THE ITEMS ON THE PROCUREMENT ARE LIMITED AND THAT AN INCREASE IN COMPETITION UPON READVERTISEMENT IS UNLIKELY. THIS ALSO, WE HAVE BEEN INFORMALLY ADVISED, IS THE VIEW OF THE RESPONSIBLE PROCURING OFFICERS IN THE FEDERAL SUPPLY SERVICE.

THE FACT THAT ONLY FRICK-GALLAGHER AND FRONTIER SUBMITTED BIDS ON SCHEDULE 2, REPRESENTING AN ALL OR NONE OPTION, IS ESPECIALLY SIGNIFICANT SINCE IN ADDITION TO THE USUAL ADVANTAGE OF REDUCING THE NUMBER OF CONTRACTORS TO BE DEALT WITH THERE IS IN THIS CASE AN ADDITIONAL REASON FOR PREFERRING AN AWARD ON SCHEDULE 2--- THE ADDITIONAL QUANTITY DISCOUNTS OFFERED BASED ON TOTAL DOLLAR VALUE OF ORDERS PLACED IN ANY ONE MONTH. THESE DISCOUNTS FOR THE TWO BIDDERS IN QUESTION WERE AS FOLLOWS:

TABLE

DOLLAR VOLUME DISCOUNT

PER MONTH FRICK-GALLAGHER FRONTIER

------------- --------------- --------- $10,000.00 TO $19,999.99

1 PERCENT 2 PERCENT

20,000.00 TO 29,999.99 2 PERCENT 3 PERCENT

30,000.00 TO 39,999.99 2 PERCENT 4 PERCENT

40,000.00 TO49,999.99 3 PERCENT 6 PERCENT

50,000.00 TO 74,999.99 3 PERCENT 8 PERCENT

75,000.00 TO 99,999.99 4 PERCENT 10 PERCENT 100,000.00 AND OVER

5 PERCENT 12 PERCENT

AS WE NOTED IN OUR EARLIER DECISION, THE FRONTIER BID WAS APPROXIMATELY 13 PERCENT LOWER THAN THE FRICK-GALLAGHER BID ON EACH ITEM. BASED ON PREVIOUS EXPERIENCE, IT WAS INDICATED AT PAGE 7 OF THE INVITATION THAT THE POTENTIAL DOLLAR VOLUME OF THE CONTRACT IS $750,000. ASSUMING THAT VOLUME EVENLY DISTRIBUTED OVER A 12-MONTH PERIOD, THE MONTHLY DOLLAR VALUE OF ORDERS WOULD BE $62,500. AT THIS LEVEL THE ADDITIONAL QUANTITY DISCOUNT OFFERED BY FRONTIER IS 5 PERCENT HIGHER THAN THAT OFFERED BY FRICK- GALLAGHER.

IT MAY WELL BE THAT IF THE BRAND NAME REFERENCES NOW DETERMINED TO BE SURPLUSAGE HAD NOT BEEN INCLUDED IN THE INVITATION, FRICK-GALLAGHER WOULD HAVE BEEN IN A POSITION TO ELIMINATE OR MODIFY CERTAIN OF THE COMPONENTS WITH A CONCOMITANT DECREASE IN PRICE. THAT SUCH DECREASE COULD BE SUFFICIENT TO AFFECT THE RELATIVE STANDING OF THE BIDDERS APPEARS, IN VIEW OF THE PRICE AND DISCOUNT DISCREPANCIES, MOST DOUBTFUL. FURTHER, EVEN CONCEDING THAT FRICK-GALLAGHER WAS PREJUDICED BY THE UNNECESSARY INCLUSION OF ITS CATALOG REFERENCES, THE MOST FAVORABLE POSSIBLE RESULT TO THAT FIRM WOULD BE A DECISION THAT ALL BIDS SHOULD BE REJECTED AND THE PROCUREMENT READVERTISED. THE INCREASE IN COMPETITION TO BE ACHIEVED BY SUCH ACTION MUST BE BALANCED AGAINST THE DISADVANTAGE SUSTAINED BY THE COMPETITIVE BID SYSTEM WHEN ALL BIDS ARE REJECTED AFTER OPENING. 39 COMP. GEN. 563, 565. WEIGHING THE REAL DETRIMENT TO THE SYSTEM AGAINST THE REMOTE POSSIBILITY THAT BUT FOR THE BRAND NAME REFERENCES THE LOW BID WOULD HAVE BEEN DISPLACED, AND HAVING IN MIND THE CONTRACTING AGENCY'S DISCRETION IN THESE MATTERS, WE FIND NO BASIS FOR DISTURBING THE AWARD TO FRONTIER.