B-169622, MAY 17, 1971

B-169622, MAY 17, 1971

BID PROTEST - BID RESPONSIVENESS - DEVIATIONS DENIAL OF PROTEST OF AMERICAN MACHINE & FOUNDRY CO., AGAINST THE AWARD OF A CONTRACT TO BRUNSWICK CORPORATION UNDER IFB ISSUED BY THE DEPARTMENT OF THE ARMY FOR INSTALLATION AND LEASING OF BOWLING EQUIPMENT. ADMITTING THAT ITS BID WAS NONRESPONSIVE, PROTESTANT CONTENDS THAT BRUNSWICK'S BID WAS ALSO NONRESPONSIVE AS THE EQUIPMENT IT OFFERED DID NOT CONTAIN ALL THE FEATURES OF THE AMF 82-45 MODEL SPECIFIED IN THE SOLICITATION. WHEN BIDS ARE REQUESTED WITH REFERENCE TO A BRAND NAME ITEM, THE EQUIPMENT NEED NOT BE IDENTICAL. IF THE EQUIPMENT, AS HERE, POSSESSES FEATURES LISTED IN THE INVITATION AS ESSENTIAL THE BID IS RESPONSIVE.

TO ROBERT SHERIFFS MOSS, ESQ.:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 2, 1971, REQUESTING RECONSIDERATION OF OUR DECISION OF JANUARY 4, 1971, DENYING THE PROTEST OF YOUR CLIENT, AMERICAN MACHINE & FOUNDRY COMPANY (AMF), AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM PURSUANT TO INVITATION FOR BIDS (IFB) NO. DAHB01-70-B-A518.

THAT DECISION RELATED TO THE PROCUREMENT BY THE DEPARTMENT OF THE ARMY, ON AN INSTALLATION AND LEASE BASIS, OF 16 AUTOMATIC PIN-SPOTTER MACHINES TO BE DEPLOYED AS REPLACEMENTS FOR THE 16 AMF MODEL 82-30 MACHINES THEN INSTALLED ON THE BOWLING ALLEYS AT THE FORT CLAYTON AND FORT GULICK, CANAL ZONE, BOWLING CENTERS.

THE IFB PROVIDED THAT EACH MACHINE LEASED SHOULD BE NEW, OR REMANUFACTURED TO THE SAME STANDARDS AS A NEW MACHINE, AND MUST BE AUTOMATIC, 10-PINSPOTTING, AMF MODEL 82-45 OR EQUAL. THE IFB ALSO LISTED CERTAIN REQUIRED SALIENT CHARACTERISTICS IN ADDITION TO THE "BASIC UNIT".

YOUR CLIENT OFFERED ITS MODEL 82-70 PINSPOTTER, AND THE ONLY OTHER BIDDER, BRUNSWICK CORPORATION OF CHICAGO, OFFERED ITS MODEL A-500-1-000 PINSPOTTER (A1) AS BEING EQUAL TO THE AMF MODEL 82-45 ON THE REQUIRED FEATURES.

FOLLOWING A FINDING BY THE CONTRACTING OFFICER THAT YOUR CLIENT'S BID WAS NONRESPONSIVE, A TECHNICAL EVALUATION WAS PERFORMED BY THE SPECIAL SERVICES OFFICE WHICH CONCLUDED THAT BRUNSWICK'S MODEL WAS IN FACT EQUAL TO THE AMF 82-45 IN ALL MATERIAL RESPECTS, AND AN AWARD WAS THEREFORE MADE TO BRUNSWICK.

OUR DECISION OF JANUARY 4, 1971, AND THE ADMINISTRATIVE REPORT UPON WHICH IT WAS PARTIALLY PREDICATED, ESTABLISH THAT AMF'S BID WAS REJECTED AS NONRESPONSIVE BECAUSE ITS BID FAILED TO QUOTE RENTAL CHARGES ON A PER-GAME BASIS AS CONTEMPLATED IN THE SCHEDULE OF THE INVITATION FOR BIDS. THIS IS CONCEDED BY YOUR LETTER OF FEBRUARY 2 IN WHICH IT IS ADMITTED THAT AMF "PUT THE NEW MACHINES ON A BASIS DIFFERENT THAN THAT SPECIFIED BY THE INVITATION. THIS, OF COURSE, MADE THE BID NONRESPONSIVE." WHILE YOU CONTEND THAT THE ALLEGEDLY DEFECTIVE BRAND NAME OR EQUAL PURCHASE DESCRIPTION "UNDOUBTEDLY CONTRIBUTED TO THE SUBMISSION OF ITS (AMF'S) NONRESPONSIVE BID" YOU DO NOT ATTEMPT TO ESTABLISH OR OTHERWISE DEFINE THE CAUSAL RELATIONSHIP. IN VIEW THEREOF, AND SINCE WE CAN SEE NO WAY IN WHICH AMF'S FAILURE TO QUOTE RENTAL CHARGES ON A PER-GAME BASIS CAN BE ATTRIBUTED TO THE ALLEGED DEFECT IN THE PURCHASE DESCRIPTION, WE SEE NO MERIT IN THIS PORTION OF YOUR REQUEST FOR RECONSIDERATION.

THE REMAINING CONTENTION OF YOUR LETTER OF FEBRUARY 2, SUMMARIZED IN ESSENCE, IS THAT BRUNSWICK'S MACHINE SHOULD ALSO BE CONSIDERED NONRESPONSIVE SINCE THE AMF 82-45 MODEL EMBODIED OTHER CHARACTERISTICS THAN THOSE LISTED AMONG THE SALIENT CHARACTERISTICS, AND THEREFORE THE SPECIFICATION "REQUIRED BIDDERS WHO WOULD FURNISH THE AMF MODEL 82-45, TO BID ON SOMETHING DIFFERENT THAN BRUNSWICK DID, IN FACT, BID ON *** ."

IN THIS CONNECTION, YOUR ATTENTION IS DIRECTED TO THE LAST PARAGRAPH OF PAGE 6 AND THE FIRST PARAGRAPH OF PAGE 7 OF OUR DECISION OF JANUARY 4, 1971, WHERE WE DECLARED THAT UNDER THE ARMED SERVICES PROCUREMENT REGULATION AND THE DECISIONS OF OUR OFFICE, BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS ARE REQUIRED TO SET FORTH ONLY THOSE SALIENT PHYSICAL, FUNCTIONAL AND OTHER CHARACTERISTICS OF THE REFERENCED PRODUCTS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT; HENCE, THERE IS NO REQUIREMENT FOR THE LISTING OF ALL OF THE FEATURES OF THE BRAND NAME ITSELF, BUT ONLY AN IDENTIFICATION OF THE ESSENTIAL, REQUIRED CHARACTERISTICS OF THE ITEM SOLICITED. ACCORDINGLY, WE STATED, A PRODUCT OFFERED AS "EQUAL", NEED ONLY INCLUDE A BASIC UNIT, NOT NECESSARILY INCORPORATING ALL THE FEATURES OF THE AMF MODEL 82-45 (WHICH WOULD RENDER THE OFFERED PRODUCT IDENTICAL RATHER THAN EQUAL), BUT INCLUDING ONLY THOSE REQUIRED SALIENT FEATURES DETERMINED TO BE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. THESE REQUIRED SALIENT CHARACTERISTICS, NINE IN NUMBER, WERE SET FORTH IN THE INVITATION.

WHILE WE FEEL THAT OUR DECISION OF JANUARY 4 ADDRESSED ITSELF TO THIS PARTICULAR CONTENTION RAISED IN YOUR LETTER OF FEBRUARY 2, WE AVAIL OURSELVES OF THIS OPPORTUNITY TO AMPLIFY OUR VIEWS ON THIS ISSUE.

IN B-169835, SEPTEMBER 18, 1970, 50 COMP. GEN. , OUR OFFICE ENDORSED THE CONCEPT THAT AN OFFERED PRODUCT COULD NOT BE REJECTED FOR FAILING TO SHOW STRICT COMPLIANCE WITH THE UNLISTED FEATURES OF A BRAND NAME PRODUCT. HOWEVER, WE ALSO ACKNOWLEDGED THE DIFFICULTY OF EVALUATING AN "EQUAL" PRODUCT SOLELY FROM THE STANDPOINT THAT THE SALIENT CHARACTERISTICS LISTED CONSTITUTED A COMPLETE PURCHASE DESCRIPTION WITHOUT A PASSING ALLUSION TO THE GENERAL DESIGN FEATURES OF THE ITEM. THIS, WE DECLARED, IS SATISFIED BY MERELY REFERENCING THE BRAND NAME.

ACCORDINGLY, WE HOLD THE VIEW, ENTIRELY CONSISTENT WITH THE FOREGOING, THAT THE SPECIFICATION IN THE INSTANT PROCUREMENT MERELY DENOTED "AN AUTOMATIC 10 PINSPOTTING MACHINE" WHICH INCLUDED THE NINE LISTED SALIENT, REQUIRED CHARACTERISTICS. THE TECHNICAL EVALUATION ESTABLISHED THAT THE BRUNSWICK MACHINE WAS SUCH A PRODUCT, AND WE MUST THEREFORE CONCUR THAT BRUNSWICK'S PRODUCT WAS "EQUAL", AND ITS BID WAS RESPONSIVE, TO THE SPECIFICATION SET FORTH IN THE IFB.

IN B-157857, JANUARY 26, 1966, OUR OFFICE REJECTED THE VIEW THAT A COMPETITOR'S PRODUCT WAS INFERIOR TO THE BRAND NAME MODEL BECAUSE IT LACKED THE UNLISTED FEATURES OF THE BRAND NAME ITEM WHERE THE IFB DID NOT LIST THESE FEATURES AS ESSENTIAL REQUIREMENTS:

" *** AN INVITATION WHICH FAILS TO LIST ALL THE CHARACTERISTICS DEEMED ESSENTIAL, OR LISTS CHARACTERISTICS WHICH ARE NOT ESSENTIAL, IS DEFECTIVE."

IN B-169210, APRIL 22, 1970, WE HELD THAT A "BRAND NAME OR EQUAL" SPECIFICATION IS NOT CONSTRUED TO MEAN "IDENTICAL", AND THAT TO READ SUCH A REQUIREMENT INTO THE SPECIFICATION WOULD BE TANTAMOUNT TO OMITTING THE "OR EQUAL", THEREBY RENDERING THE SPECIFICATION UNDULY RESTRICTIVE. YET THIS IS PRECISELY HOW THE SPECIFICATION WOULD BE CONSTRUED IF WE WERE TO ADOPT THE INTERPRETATION WHICH YOU ATTEMPT TO GIVE TO THE WORDS "BASIC UNIT" IN THE LAST SENTENCE ON PAGE ONE AND THE FIRST PARAGRAPH ON PAGE TWO OF YOUR LETTER OF FEBRUARY 2, 1971.

IN VIEW THEREOF, THE SPECIFICATION WOULD HAVE BEEN DEFECTIVE HAD IT LISTED AND REQUIRED A PRODUCT OFFERED AS AN "EQUAL" TO INCLUDE SUCH ATTRIBUTES AS THE ELECTRO-MECHANICAL FEATURES, THE FOOL-PROOF BALL EXIT, THE FASTER BALL RETURN TIME, AUTOMATIC FOUL RECYCLING DEVICE AND INSTRUCTOMAT, ALL OF WHICH WOULD APPEAR TO BE CONSIDERED UNESSENTIAL TO THE GOVERNMENT'S NEEDS. WHILE WE CAN SEE THAT DESIGNATION OF THE AMF MODEL 82-45 MAY HAVE LED AMF TO BELIEVE THAT IT MUST OFFER EITHER THAT MODEL OR A SUPERIOR MODEL, THE FACT REMAINS THAT AN AMF 82-30 WOULD HAVE BEEN ACCEPTABLE UNDER THE PURCHASE DESCRIPTION IF THAT MODEL, AS OFFERED, DID IN FACT CONTAIN ALL OF THE SALIENT CHARACTERISTICS SET OUT IN THE PURCHASE DESCRIPTION.

WITH RESPECT TO WHETHER THE PURCHASE DESCRIPTION MIGHT MORE PROPERLY HAVE REQUESTED MODEL 82-30 OR EQUAL, WE NOTE THAT AMF ELECTED TO OFFER EQUIPMENT WHICH WAS SUPERIOR TO THE MODEL 82-45 SET OUT IN THE DESCRIPTION, AND WE SEE NO REASON TO BELIEVE IT WOULD NOT ALSO HAVE OFFERED EQUIPMENT SUPERIOR TO THE MODEL 82-30 IF THAT MODEL HAD BEEN DESIGNATED IN THE DESCRIPTION.

WE CERTAINLY AGREE THAT THE NONRESPONSIVENESS OF AMF'S BID DOES NOT, UNDER THE CIRCUMSTANCES HERE INVOLVED, PRECLUDE IT FROM RAISING OR BEING ENTITLED TO A DECISION ON THE MERITS OF THE ISSUE WHETHER OR NOT BRUNSWICK'S BID WAS RESPONSIVE, AND THE LAST PARAGRAPH OF OUR DECISION OF JANUARY 4, 1971, WAS NOT INTENDED TO SO IMPLY.

IT IS OUR OPINION THAT THE ANALYSIS OF THIS ISSUE APPEARING AT THE BOTTOM OF PAGE 6 AND THE BEGINNING OF PAGE 7 OF THAT DECISION, AS AMPLIFIED BY THE DISCUSSION PRESENTED IN THIS LETTER, INDICATES A FULL CONSIDERATION OF THE MERITS OF THE PROTEST. SINCE OUR PRESENT ANALYSIS FAILS TO REVEAL ANY CONSIDERATION WHICH WOULD JUSTIFY OR REQUIRE US TO ALTER THE CONCLUSIONS SET FORTH IN THAT DECISION, IT MUST BE AFFIRMED.