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B-176693, OCT 18, 1972

B-176693 Oct 18, 1972
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SINCE PROTESTANT CLEARLY INDICATED THAT HE WAS OFFERING AN "EQUAL" PRODUCT. HE WAS REQUIRED TO FURNISH DESCRIPTIVE DATA TO ENABLE THE PURCHASING ACTIVITY TO EVALUATE THE OFFERED PRODUCT AND TO ESTABLISH WHAT THE GOVERNMENT WOULD BE OBLIGATED TO PURCHASE UPON AWARD OF A CONTRACT. INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 2. WAS FOR A VACUUM HOT PRESS SINTERING FURNACE. THE IFB PROVIDED THAT BIDDERS WOULD BE CONSIDERED AS OFFERING THE BRAND NAME PRODUCT UNLESS IT WAS CLEARLY INDICATED THAT AN EQUAL PRODUCT WAS BEING OFFERED. THE PURCHASING ACTIVITY IS NOT RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH IS NOT IDENTIFIED IN THE BID ***. TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE.

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B-176693, OCT 18, 1972

BID PROTEST - BRAND NAME OR EQUAL - DESCRIPTIVE DATA DENIAL OF PROTEST BY INTERNATIONAL VACUUM, INC., AGAINST THE AWARD OF A CONTRACT UNDER AN IFB ISSUED BY THE U.S. NAVY PURCHASING OFFICE, WASHINGTON, D.C. SINCE PROTESTANT CLEARLY INDICATED THAT HE WAS OFFERING AN "EQUAL" PRODUCT, HE WAS REQUIRED TO FURNISH DESCRIPTIVE DATA TO ENABLE THE PURCHASING ACTIVITY TO EVALUATE THE OFFERED PRODUCT AND TO ESTABLISH WHAT THE GOVERNMENT WOULD BE OBLIGATED TO PURCHASE UPON AWARD OF A CONTRACT. THE FAILURE TO PROVIDE THIS DATA RENDERED THE BID NONRESPONSIVE. 50 COMP. GEN. 137 (1970). FURTHER, A BLANKET OFFER TO COMPLY WITH SPECIFICATIONS OR WITH THE SALIENT FEATURES OF A BRAND NAME PRODUCT CANNOT OVERCOME A PROPER REQUIREMENT FOR FURNISHING DESCRIPTIVE DATA. 36 COMP. GEN. 415 (1956).

TO INTERNATIONAL VACUUM, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 2, 1972, PROTESTING AGAINST AWARD OF A CONTRACT UNDER IFB N00600-72-B-0315, ISSUED BY THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON, D.C.

THE SOLICITATION, ISSUED ON JUNE 5, 1972, ON A BRAND NAME OR EQUAL BASIS, WAS FOR A VACUUM HOT PRESS SINTERING FURNACE, 30 TON OPERATION, VACUUM INDUSTRIES, INCORPORATED, MODEL 1-2300 OR EQUAL. THE IFB PROVIDED THAT BIDDERS WOULD BE CONSIDERED AS OFFERING THE BRAND NAME PRODUCT UNLESS IT WAS CLEARLY INDICATED THAT AN EQUAL PRODUCT WAS BEING OFFERED. THE IFB FURTHER PROVIDED:

"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. *** CAUTION TO BIDDERS. THE PURCHASING ACTIVITY IS NOT RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH IS NOT IDENTIFIED IN THE BID ***. ACCORDINGLY, TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE BIDDER MUST FURNISH AS PART OF HIS BID ALL DESCRIPTIVE MATERIAL *** 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. ***"

AT BID OPENING ON JUNE 26, 1972, IT WAS FOUND THAT YOU SUBMITTED THE LOW BID OF $13,640, WHILE THE BRAND NAME MANUFACTURER SUBMITTED THE SECOND LOW BID OF $13,740. YOUR BID STATED THAT YOU WERE BIDDING ON AN EQUAL PRODUCT AND THAT YOU WERE THE MANUFACTURER OF THAT PRODUCT. WHILE YOU SUBMITTED WITH YOUR BID A "GENERAL PURPOSE" BROCHURE DESCRIBING YOUR "MARK-14" PRODUCTS, YOUR COVERING LETTER STATED THAT IT WAS "ONLY INCLUDED TO GIVE YOU AN IDEA OF THE EQUIPMENT WE MANUFACTURE, AND, IN NO WAY, DEFINES EQUIPMENT SUPPLIED WITH THIS QUOTATION. WE ARE BIDDING ON YOUR SPECIFICATIONS AS LAID OUT IN TOTAL." THE CONTRACTING OFFICER THEN REJECTED YOUR BID BECAUSE "IT DID NOT INCLUDE SUFFICIENT INFORMATION TO PERMIT A DETERMINATION AS TO THE EQUALITY OF THE PRODUCT OFFERED TO THE BRAND NAME PRODUCT." AWARD WAS MADE TO THE SECOND LOW BIDDER ON JULY 24, 1972.

IT IS NOT CLEAR FROM YOUR LETTER OF AUGUST 2 WHETHER YOU ARE ALLEGING THAT YOU INTENDED TO BID ON THE BRAND NAME PRODUCT OR AN EQUAL PRODUCT. HOWEVER, WE BELIEVE YOUR BID CLEARLY INDICATED AN OFFER TO FURNISH AN EQUAL PRODUCT OF YOUR OWN MANUFACTURE. UNDER THE TERMS OF THE IFB, THEREFORE, YOU WERE REQUIRED TO FURNISH DESCRIPTIVE DATA TO ENABLE THE PURCHASING ACTIVITY TO EVALUATE YOUR PROPOSED PRODUCT AND TO ESTABLISH WHAT THE GOVERNMENT WOULD BE OBLIGATED TO PURCHASE UPON AWARD OF A CONTRACT TO YOU. YOUR FAILURE TO PROVIDE THIS DATA RENDERED YOUR BID NONRESPONSIVE. 50 COMP. GEN. 137 (1970); 50 ID. 193 (1970).

YOU STATE THAT YOU SPECIFICALLY AGREED TO CONFORM TO THE SPECIFICATIONS AND WERE BIDDING ONLY THEREON. HOWEVER, WE HAVE FREQUENTLY HELD THAT A BLANKET OFFER TO COMPLY WITH SPECIFICATIONS OR WITH THE SALIENT FEATURES OF A BRAND NAME PRODUCT CANNOT OVERCOME A PROPER REQUIREMENT FOR FURNISHING DESCRIPTIVE DATA. 36 COMP. GEN. 415 (1956); 50 ID. 193, 201, SUPRA. THIS IS SO BECAUSE THE PURPOSE OF THE DESCRIPTIVE DATA REQUIREMENT IS TO PERMIT THE AGENCY TO DETERMINE PRECISELY WHAT THE BIDDER PROPOSES AND WOULD BE BOUND TO FURNISH IF AWARDED A CONTRACT. 41 COMP. GEN. 366, 368 (1961). 9 ACCORDINGLY, YOUR PROTEST MUST BE DENIED.

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