Skip to main content

B-162073, OCT. 4, 1967

B-162073 Oct 04, 1967
Jump To:
Skip to Highlights

Highlights

LOW BIDDER WHO INSTEAD OF FURNISHING DESCRIPTIVE INFORMATION QUOTED BACK DESCRIPTION IN INVITATION WITHOUT TAKING AN EXCEPTION HAD BID PROPERLY REJECTED AS UNRESPONSIVE ON BASIS THAT CONTRACTING OFFICER WAS UNABLE TO DETERMINE WHETHER OFFER WAS EQUAL TO BRAND NAME. INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 7. FSN KZ 6145-519 2829 AND WAS DESCRIBED AS FOLLOWS: "450. FSN KZ 6145-519-2830 AND WAS DESCRIBED AS FOLLOWS: "300. -" THE BLANK SPACES WERE TO BE FILLED IN BY THE BIDDERS. THE CLAUSE IN SECTION 1-1206.3 (B) OF THE DEFENSE INDUSTRIAL SUPPLY CENTER CONTRACT CLAUSE BOOK AND SUPPLEMENT NUMBER TWO WAS SPECIFICALLY INCORPORATED BY REFERENCE AND MADE APPLICABLE TO ITEM NOS. 1 AND 2.

View Decision

B-162073, OCT. 4, 1967

BIDS - DESCRIPTIVE DATA, ETC. DECISION TO NEW YORK FLUORESCENT MFG. CO., INC., PROTESTING DESCRIPTIVE DATA REQUIREMENT IN BRAND NAME OR EQUAL SPECIFICATION FOR WIRE. LOW BIDDER WHO INSTEAD OF FURNISHING DESCRIPTIVE INFORMATION QUOTED BACK DESCRIPTION IN INVITATION WITHOUT TAKING AN EXCEPTION HAD BID PROPERLY REJECTED AS UNRESPONSIVE ON BASIS THAT CONTRACTING OFFICER WAS UNABLE TO DETERMINE WHETHER OFFER WAS EQUAL TO BRAND NAME. TO PERMIT BIDDER TO SUBMIT DESCRIPTIVE DATA AFTER BID OPENING TO ESTABLISH OBLIGATION WOULD TEND TO COMPROMISE INTEGRITY OF COMPETITIVE BID SYSTEM MAKING IT POSSIBLE FOR BIDDER TO DECIDE AFTER OPENING WHETHER OR NOT TO MAKE BID ACCEPTABLE.

TO NEW YORK FLUORESCENT MANUFACTURING COMPANY, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 7, 1967, WITH ENCLOSURES, IN WHICH YOU PROTEST AGAINST THE REJECTION OF YOUR BID FOR ITEM NOS. 1 AND 2, UNDER INVITATION FOR BIDS NO. DSA-500-67-B-5352, ISSUED BY THE DEFENSE INDUSTRIAL SUPPLY CENTER, DEFENSE SUPPLY AGENCY, ON APRIL 10, 1967.

ITEM NO. 1 COVERED 3,000 FEET OF WIRE, ELECTRICAL, FSN KZ 6145-519 2829 AND WAS DESCRIBED AS FOLLOWS: "450,000 CIR MIL (1100/24), TINNED COPPER INSULATION AND JACKET PER ASSOCIATION OF AMERICAN RAILROADS SPECIFICATION 581.3 600 VOLTS, 1.213 IN DIA..DIESEL AND ELECTRIC LOCOMOTIVE AND CAR CABLE 1500 FT REEL, ONE CONTINUOUS LENGTH "GENERAL ELECTRIC CO. (24457) WIRE AND CABLE DIV..BRIDGEPORT, CONN. PT/NO S1 58215 OR EQUAL"

ITEM NO. 2 COVERED 4,000 FEET WIRE, ELECTRICAL, FSN KZ 6145-519-2830 AND WAS DESCRIBED AS FOLLOWS: "300,000 CIR MILS (775/24), TINNED COPPER INSULATION AND JACKET PER ASSOCIATION OF AMERICAN RAILROADS SPECIFICATION 581.3, 600 VOLTS, 1.07 IN. DIA..DIESEL AND ELECTRIC LOCOMOTIVE AND CAR CABLE 2000 FT REEL, ONE CONTINUOUS LENGTH "GENERAL ELECTRIC CO. (24457) WIRE AND CABLE DIV..BRIDGEPORT, CONN. PT/NO S1 58215 OR EQUAL"

DIRECTLY BENEATH THE PURCHASE DESCRIPTION FOR ITEM NO. 1 AND ALSO BENEATH THE PURCHASE DESCRIPTION FOR ITEM NO. 2, THE PROCURING ACTIVITY REQUESTED THE FOLLOWING INFORMATION:

"BIDDING ON:

"MANUFACTURER---------------------------

"BRAND NAME-----------------------------

"PART NO.-------------------------------" THE BLANK SPACES WERE TO BE FILLED IN BY THE BIDDERS.

YOU INSERTED THE FOLLOWING INFORMATION IN THE BLANK SPACES UNDER ITEM NO. 1:

"450,000 DIESEL AND ELECTRIC CAR CABLE EQUAL TO S1-58215-C1100 STRS) 24

"BIDDING ON:

"MANUFACTURER EASTERN ELECTRIC WIRE AND CABLE CO.

"BRAND NAME SEE ABOVE

"PART NO.-------------------------------

IN THE BLANK SPACES PROVIDED UNDER ITEM NO. 2, YOU INSERTED THE FOLLOWING INFORMATION:

"300,000 DIESEL ELECTRIC CAR CABLE EQUAL TO S1 58215 (775 STRS) 24

"BIDDING ON:

"MANUFACTURER EASTERN ELECTRIC WIRE AND CABLE CO.

"BRAND NAME SEE ABOVE

"PART NO.-------------------------------

ON PAGE 9 OF THE INVITATION, THE CLAUSE IN SECTION 1-1206.3 (B) OF THE DEFENSE INDUSTRIAL SUPPLY CENTER CONTRACT CLAUSE BOOK AND SUPPLEMENT NUMBER TWO WAS SPECIFICALLY INCORPORATED BY REFERENCE AND MADE APPLICABLE TO ITEM NOS. 1 AND 2. THIS CLAUSE IS SUBSTANTIALLY THE SAME AS THE CLAUSE IN SECTION 1-1206.3 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION AND IT PROVIDES AS FOLLOWS:

"1-1206.3 (B) BRAND NAME OR EQUAL (NOV. 1961) "AS USED IN THIS CLAUSE, THE TERM -BRAND NAME- INCLUDES IDENTIFICATION OF PRODUCTS BY MAKE AND MODEL. "/A) IF ITEMS CALLED FOR BY THIS INVITATION FOR BIDS HAVE BEEN IDENTIFIED IN THE SCHEDULE BY A -BRAND NAME OR EQUAL- DESCRIPTION, SUCH IDENTIFICATION IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WILL BE SATISFACTORY. BIDS OFFERING -EQUAL- PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCES IN THE INVITATION FOR BIDS. "/B) UNLESS THE BIDDER CLEARLY INDICATES IN HIS BID THAT HE IS OFFERING AN -EQUAL- PRODUCT, HIS BID SHALL BE CONSIDERED AS OFFERING A BRAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BIDS. "/C) (1) IF THE BIDDER PROPOSES TO FURNISH AN EQUAL- PRODUCT, THE BRAND NAME, IF ANY, OF THE PRODUCT TO BE FURNISHED SHALL BE INSERTED IN THE SPACE PROVIDED IN THE INVITATION FOR BIDS, OR SUCH PRODUCT SHALL BE OTHERWISE CLEARLY IDENTIFIED IN THE BID. THE EVALUATION OF BIDS AND THE DETERMINATION AS TO EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE GOVERNMENT AND WILL BE BASED ON INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN HIS BID, AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. CAUTION TO BIDDERS. THE PURCHASING ACTIVITY IS NOT RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH IS NOT IDENTIFIED IN THE BID AND REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. ACCORDINGLY, TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE BIDDER MUST FURNISH AS A PART OF HIS BID ALL DESCRIPTIVE MATERIAL (SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER INFORMATION) NECESSARY FOR THE PURCHASING ACTIVITY TO (I) DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE INVITATION FOR BIDS AND (II) ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. THE INFORMATION FURNISHED MAY INCLUDE SPECIFIC REFERENCES TO INFORMATION PREVIOUSLY FURNISHED OR TO INFORMATION OTHERWISE AVAILABLE TO THE PURCHASING ACTIVITY. * * *"

YOUR BID QUOTING A PRICE PER FOOT OF $1.435 FOR ITEM NO. 1 AND $1.034 FOR ITEM NO. 2 WITH A DISCOUNT OF 2 PERCENT WAS LOW FOR THESE ITEMS. NATIONAL GOVERNMENT SALES, GENERAL ELECTRIC SUPPLY COMPANY, QUOTING A PRICE PER FOOT OF $1.704 FOR ITEM NO. 1 AND $1.23055 FOR ITEM NO. 2 WITH A DISCOUNT OF 2 PERCENT SUBMITTED THE SECOND LOW BID FOR THESE ITEMS. THE CONTRACTING OFFICER DETERMINED THAT ON THE BASIS OF THE INFORMATION IN YOUR BID HE COULD NOT DETERMINE EXACTLY WHAT YOU PROPOSED TO FURNISH AND A DETERMINATION COULD NOT BE MADE WHETHER THE ITEMS YOU PROPOSED TO FURNISH WERE EQUAL TO THE BRAND NAME SPECIFIED. CONSEQUENTLY, YOUR BID WAS CONSIDERED TO BE NONRESPONSIVE AND WAS REJECTED. ON JUNE 21, 1967, A CONTRACT FOR ITEM NOS. 1 AND 2 WAS AWARDED TO NATIONAL GOVERNMENT SALES. YOU HAVE PROTESTED AGAINST THE DETERMINATION THAT YOUR BID WAS NONRESPONSIVE AND YOU ALLEGE THAT YOUR BID DOES NOT OMIT ANYTHING OF ANY IMPORTANCE. YOU CONTEND THAT IN VIEW OF THE DIFFERENCE IN THE PRICES IN YOUR BID AND THE NEXT LOW BID, YOU SHOULD HAVE BEEN GIVEN AN OPPORTUNITY AFTER BID OPENING TO FURNISH ANY INFORMATION WHICH MAY HAVE BEEN NECESSARY TO EVALUATE YOUR BID.

IN THE INSTANT CASE, INSTEAD OF FURNISHING DESCRIPTIVE INFORMATION,YOUR BID QUOTED BACK THE DESCRIPTIVE INFORMATION IN THE SPECIFICATIONS WITHOUT TAKING AN EXCEPTION. HOWEVER, YOU DID NOT FURNISH ANY PART NUMBER OR OTHER DATA WITH YOUR BID FROM WHICH THE PROCURING ACTIVITY COULD EVALUATE THE ITEM OFFERED BY YOU. THE DESCRIPTIVE DATA REQUIREMENT IN THE "BRAND NAME OR EQUAL" CLAUSE IS A MATERIAL REQUIREMENT WHICH CANNOT BE WAIVED. MERELY QUOTING BACK THE DESCRIPTION IN THE SPECIFICATIONS WITHOUT EXCEPTION WOULD NOT IN ITSELF FULFILL THE DESCRIPTIVE DATA REQUIREMENT OF THE "BRAND NAME OR EQUAL" CLAUSE. SEE 41 COMP. GEN. 366. AFTER CONSIDERING THE DESCRIPTIVE INFORMATION IN YOUR BID, THE PROCURING ACTIVITY WAS UNABLE TO DETERMINE WHETHER YOUR OFFER WAS EQUAL TO THE BRAND NAME. OUR REVIEW INDICATES THIS CONCLUSION WAS FULLY JUSTIFIED. IN THESE CIRCUMSTANCES WE FIND NO BASIS TO YOUR CONTENTION THAT YOU DID NOT OMIT ANYTHING OF IMPORTANCE IN YOUR BID.

IN OUR DECISION, B-161122, MAY 11, 1967, WE CONSIDERED A SITUATION WHERE THE INVITATION CONTAINED A "BRAND NAME OR EQUAL" CLAUSE WHICH WAS SUBSTANTIALLY THE SAME AS THE "BRAND NAME OR EQUAL" CLAUSE IN THE INSTANT INVITATION. THE LOW BIDDER IN THAT CASE OFFERED HIS OWN PRODUCT AS EQUAL TO THE BRAND NAME SPECIFIED; HOWEVER, THE BIDDER DID NOT FURNISH ANY INFORMATION WITH RESPECT TO THE PRODUCT HE OFFERED. CONSEQUENTLY, THE PROCURING ACTIVITY WAS UNABLE TO DETERMINE WHETHER THE LOW BIDDER'S PRODUCTS WERE EQUAL TO THE BRAND NAME PRODUCTS. WE COMMENTED AS FOLLOWS WITH RESPECT TO THE QUESTION WHETHER SUCH A BID WAS RESPONSIVE:

"IN RESPONDING TO AN INVITATION EMPLOYING A BRAND NAME OR EQUAL PURCHASE DESCRIPTION, THE RESPONSIVENESS OF A BID DEPENDS NOT ON WHETHER THE BIDDER BELIEVES, OR EVEN KNOWS, THAT HIS PRODUCT IS EQUAL TO THE BRAND NAME, BUT WHETHER THE PROCURING ACTIVITY CAN SO DETERMINE FROM THE INFORMATION SUBMITTED WITH THE BID. THE ABOVE-QUOTED CLAUSE, INCORPORATED IN THE INVITATION BY REFERENCE, CLEARLY WARNED BIDDERS THAT THE -EQUALITY- OF AN -EQUAL- PRODUCT WOULD BE DETERMINED ON THE BASIS OF INFORMATION FURNISHED BY THE BIDDER. SINCE YOU SUBMITTED NO INFORMATION, THERE WAS NO WAY TO DETERMINE THE EQUALITY OF THE PRODUCT YOU OFFERED.

"IN VIEW THEREOF, YOUR BID WAS NONRESPONSIVE AND COULD NOT PROPERLY BE CONSIDERED FOR AWARD.' THESE COMMENTS WOULD BE EQUALLY APPLICABLE HERE; CONSEQUENTLY, WE FIND YOUR BID WAS PROPERLY REJECTED AS BEING NONRESPONSIVE.

THERE IS NOTHING ON THE FACE OF YOUR BID WHICH WOULD ESTABLISH WHAT YOU WERE OFFERING TO FURNISH. TO PERMIT YOU TO SUBMIT DESCRIPTIVE DATA AFTER BID OPENING IN ORDER THAT YOU MIGHT ESTABLISH THE OBLIGATION IN YOUR BID WOULD TEND TO COMPROMISE THE INTEGRITY OF THE COMPETITIVE BID SYSTEM BY MAKING IT POSSIBLE FOR YOU TO DECIDE AFTER OPENING WHETHER OR NOT TO MAKE YOUR BID ACCEPTABLE. WE HAVE FREQUENTLY STATED THAT THE MAINTENANCE OF THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM IS INFINITELY MORE IN THE PUBLIC INTEREST THAN A FINANCIAL SAVING IN ANY INDIVIDUAL CASE. SEE 17 COMP. GEN. 554; 38 COMP. GEN. 532; 44 COMP. GEN. 495. IT WAS THEREFORE PROPER FOR THE PROCURING ACTIVITY TO EVALUATE YOUR BID WITHOUT CONSIDERING THE INFORMATION YOU FURNISHED AFTER BID OPENING.

WHILE THE FOLLOWING MATTERS ARE NOT CONTROLLING ON THE ISSUES AT HAND WE BRING THEM TO YOUR ATTENTION FOR YOUR INFORMATION. THE CONTRACTING OFFICER HAS ADVISED THAT HE WAS UNABLE TO IDENTIFY ANY FIRM BY THE NAME OF EASTERN ELECTRIC WIRE AND CABLE COMPANY AS A "MANUFACTURER" OF ELECTRIC WIRE. A FIRM BY THAT NAME DOES EXIST IN PHILADELPHIA, WHICH IS A REGULAR DEALER IN BUT NOT A MANUFACTURER OF ELECTRIC WIRE. THE FOLLOWING INFORMATION HAS ALSO BEEN FURNISHED BY THE CONTRACTING OFFICER: "11. IS OF INTEREST TO NOTE THAT BY LETTER DATED 3 JULY 1967 (AFTER THE DATE AWARD WAS MADE) N.Y. FLUORESCENT FORWARDED WHAT IT DESCRIBED AS THE - SPECIFICATIONS' OF THE WIRE IT OFFERED. THESE -SPECIFICATIONS' APPEAR TO BE A PRICE LIST FOR WIRE MANUFACTURED BY PARANITE WIRE AND CABLE DIVISION OF ESSEX WIRE CORPORATION. THIS IS THE FIRST INDICATION RECEIVED FROM N.Y. FLUORESCENT THAT IT WAS OFFERING SUPPLIES MANUFACTURED BY THIS FIRM. IN THIS RESPECT, IT IS NOTED THAT THE ESSEX WIRE CORPORATION IS A LARGE BUSINESS CONCERN AND THAT N.Y. FLUORESCENT IN ITS OFFER REPRESENTED THAT THE SUPPLIES WILL BE MANUFACTURED BY A SMALL BUSINESS CONCERN.'

GAO Contacts

Office of Public Affairs