B-150436, JUL. 31, 1963

B-150436, JUL. 31, 1963

TO PARADYNAMICS, INCORPORATED:

REFERENCE IS MADE TO YOUR TELEGRAM DATED DECEMBER 10, 1962, AND SUBSEQUENT CORRESPONDENCE CONCERNING YOUR PROTEST OF AN AWARD TO HEWLETT- PACKARD COMPANY UNDER INVITATION FOR BIDS NO. 36-600-63-158, ISSUED AT OLMSTED AIR FORCE BASE.

BIDS TO BE OPENED OCTOBER 15, 1962, WERE REQUESTED ON 75 SIGNAL GENERATORS, DESCRIBED AS FOLLOWS:

"6625-892-2482 GENERATOR SIGNAL: FREQUENCY DATA: 2 TO 4 KMC RANGE, 5 BANDS P/M 1 PCT. ACCURACY OF CALIBRATION. SIGNAL OUTPUT DATA: 10 MW MAX OUTPUT, P/M 6 DS MAX VARIATION THROUGHOUT FREQUENCY RANGE, 50 OHMS OUTPUT IMPEDENCE. MODULATION DATA: INTERNAL, AM, 400 TO 1200 CYCLES PULSE REPETITION FREQUENCY, DEGREE OF MODULATION NOT RATE, EXTERNAL, AM, 300 NC, DEGREE OF MODULATION NOT RATE, EXTERNAL, FM 10 TO 60 CYCLES PULSE REPETITION FREQUENCY, DEGREE OF MODULATION NOT RATED, OPERATING POWER REQUIREMENTS, AC, 115 TO 230 VOLT, 50 TO 60 CYCLES, SINGLE PHASE, STEEL CASE, ENAMELED FINISH, 20 9/16 INCHES L, 12 3/4 INCHES W., 18 INCHES H. CABINET MOUNTED. HEWLETT PACKARD CO. MODEL 683-C OR EQUAL.'

IN ACCORDANCE WITH PARAGRAPH 1-1206.3 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), THE INVITATION FOR BIDS PROVIDED AS FOLLOWS:

"/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 NAMES PRODUCTS REFERENCED 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.

"/2) IF THE BIDDER PROPOSES TO MODIFY A PRODUCT SO AS TO MAKE IT CONFORM TO THE REQUIREMENTS OF THE INVITATION FOR BIDS, HE SHALL (I) INCLUDE IN HIS BID A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS AND (II) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS.

"/3) MODIFICATIONS PROPOSED AFTER BID OPENING TO MAKE A PRODUCT CONFORM TO A BRAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BIDS WILL NOT BE CONSIDERED.'

YOU WERE LOW BIDDER AT A UNIT PRICE OF $1,665 OR A TOTAL OF $124,875, BUT YOUR BID AND THE NEXT TWO LOW BIDS WERE REJECTED AS NONRESPONSIVE AND AWARD WAS MADE ON DECEMBER 4, 1962, TO HEWLETT PACKARD COMPANY IN THE TOTAL AMOUNT OF $195,453.

THE REASONS GIVEN INITIALLY FOR REJECTION OF YOUR BID WERE (1) FAILURE TO FURNISH DATA ON ENVIRONMENTAL SPECIFICATIONS OF YOUR EQUIPMENT AND (2) LACK OF A METERING CIRCUIT TO MONITOR THE CURRENTS IN THE BACKWARD-WAVE OSCILLATOR (BWO) TUBE. YOU PROTESTED THIS REJECTION BY LETTER DATED DECEMBER 7, 1962, FOR THE STATED REASONS THAT NO REQUEST WAS MADE FOR THE SUBMISSION OF DATA PERTAINING TO BECAUSE OF UNIQUE CIRCUIT DESIGN AND VARIOUS PROTECTION DEVICES YOUR TUBE OPERATING PARAMETERS REQUIRE NO EXTERNAL MONITORING OF ANY KIND.

PARAGRAPH 1-1206.2 OF ASPR PROVIDES AS FOLLOWS:

"/A) PURCHASE DESCRIPTIONS WHICH CONTAIN REFERENCES TO ONE OR MORE BRAND NAME PRODUCTS FOLLOWED BY THE WORDS "OR EQUAL" MAY BE USED ONLY WHEN AUTHORIZED BY 1-1202/B) AND IN ACCORDANCE WITH 1-1206.3 AND 1 1206.4. THE TERM "BRAND NAME PRODUCT" MEANS A COMMERCIAL PRODUCT DESCRIBED BY BRAND NAME AND MAKE OR MODEL NUMBER OR OTHER APPROPRIATE NOMENCLATURE BY WHICH SUCH PRODUCT IS OFFERED FOR SALE TO THE PUBLIC BY THE PARTICULAR MANUFACTURER, PRODUCER, OR DISTRIBUTOR. WHERE FEASIBLE, ALL KNOWN ACCEPTABLE BRAND NAME PRODUCTS SHOULD BE REFERENCED. WHERE A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION IS USED, PROSPECTIVE CONTRACTORS MUST BE GIVEN THE OPPORTUNITY TO OFFER PRODUCTS OTHER THAN THOSE SPECIFICALLY REFERENCED BY BRAND NAME

IF SUCH OTHER PRODUCTS WILL MEET THE NEEDS OF THE GOVERNMENT ESSENTIALLY THE SAME MANNER AS THOSE REFERENCED.

"/B) "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. FOR EXAMPLE, WHERE INTERCHANGEABILITY OF PARTS IS REQUIRED, SUCH REQUIREMENT SHOULD BE SPECIFIED. PURCHASE DESCRIPTIONS SHOULD CONTAIN THE FOLLOWING INFORMATION TO THE EXTENT AVAILABLE, AND INCLUDE SUCH OTHER INFORMATION AS IS NECESSARY TO DESCRIBE THE ITEM REQUIRED:

(I) COMPLETE COMMON GENERIC IDENTIFICATION OF THE ITEM REQUIRED;

(II) APPLICABLE MODEL, MAKE, OR CATALOG NUMBER FOR EACH BRAND NAME PRODUCT REFERENCED, AND IDENTITY OF THE COMMERCIAL CATALOG IN WHICH IT APPEARS; AND

(III) NAME OF MANUFACTURER, PRODUCER, OR DISTRIBUTOR OF EACH BRAND NAME PRODUCT REFERENCED (AND ADDRESS IF COMPANY IS NOT WELL KNOWN).

"/C) WHEN NECESSARY TO DESCRIBE ADEQUATELY THE ITEM REQUIRED, AN APPLICABLE COMMERCIAL CATALOG DESCRIPTION, OR PERTINENT EXTRACTS THEREFROM, MAY BE USED IF SUCH DESCRIPTION IS IDENTIFIED IN THE INVITATION FOR BIDS OR REQUEST FOR PROPOSALS AS BEING THAT OF THE PARTICULAR NAMED MANUFACTURER, PRODUCER, OR DISTRIBUTOR. THE CONTRACTING OFFICER WILL INSURE THAT A COPY OF ANY CATALOGS REFERENCED (EXCEPT PARTS CATALOGS) IS AVAILABLE ON REQUEST FOR REVIEW BY BIDDERS AT THE PURCHASING OFFICE.'

THE FILE FORWARDED TO THIS OFFICE BY THE AIR FORCE INCLUDED ENVIRONMENTAL SPECIFICATIONS AND ENVIRONMENTAL TEST SPECIFICATIONS FOR THE HEWLETT- PACKARD MODEL 683-C, BUT SINCE IT DOES NOT APPEAR THAT THEY ARE PART OF ANY OFFICIAL PUBLICATION OF THE MANUFACTURER, AND SINCE THEIR MATERIALITY WAS NOT SET FORTH IN THE INVITATION FOR BIDS, YOUR FAILURE TO FURNISH SIMILAR INFORMATION ON YOUR EQUIPMENT WOULD NOT APPEAR TO BE GROUNDS FOR REJECTION OF YOUR BID. THE AIR FORCE AGREES THAT SUCH IS THE CASE AND INDICATES THAT IT WOULD HAVE BEEN A MORE PROPER COURSE TO HAVE QUERIED YOU ON SAME. HOWEVER, WHERE A MATERIAL FEATURE IS NOT DESCRIBED OR REFERENCED IN THE INVITATION, THE PROPER ACTION WOULD APPEAR TO BE CANCELLATION AND READVERTISEMENT, UNLESS THE BID IS CONSIDERED TO BE NONRESPONSIVE FOR OTHER REASONS.

NO REFERENCE TO CURRENT MONITORS IS FOUND IN THE INVITATION, BUT SECTION 213 OF THE HEWLETT-PACKARD OPERATING AND SERVICE MANUAL FOR THE 683-C SWEEP OSCILLATOR STATES THAT "BWO TUBE CURRENTS ARE MONITORED WITH BUILT- IN METERING CIRCUITS, WHICH PROVIDE A POSITIVE CHECK THAT THE BWO TUBE IS BEING OPERATED IN A SAFE MANNER.' YOU RECOGNIZED THIS FEATURE OF THE BRAND NAME PRODUCT IN PARAGRAPH 5.2.2 OF YOUR LETTER OF OCTOBER 2, 1962, ACCOMPANYING YOUR BID, WHICH READS AS FOLLOWS:

"TUBE CURRENT MONITOR: BECAUSE OF UNIQUE CIRCUIT DESIGN AND VARIOUS PROTECTION DEVICES, THE TUBE (MICROWAVE OSCILLATOR) OPERATING PARAMETERS REQUIRE ABSOLUTELY NO EXTERNAL MONITORING OF ANY KIND.'

AT THE TIME THE BIDS WERE BEING EVALUATED, AIR FORCE TECHNICAL PERSONNEL WERE UNABLE TO DETERMINE DEFINITELY THAT YOUR EQUIPMENT WOULD OPERATE SATISFACTORILY WITHOUT THE MONITOR. ASSUMING, AS ALLEGED BY YOU, AND IN VIEW OF INFORMATION SUBSEQUENTLY FURNISHED, THAT YOUR BWO TUBE WITH PERMANENT MAGNET REQUIRES NO MONITORING, THE FACT REMAINS THAT THE RESPONSIVENESS OF YOUR BID DEPENDS NOT ON WHETHER YOU BELIEVE, OR MAY EVEN KNOW, THAT YOUR PRODUCT IS EQUAL TO THE BRAND NAME, BUT WHETHER THE CONTRACTING OFFICER, FROM AVAILABLE INFORMATION, CAN SO DETERMINE.

THE COMPLETENESS OF YOUR BID IN DETAILING YOUR OWN SPECIFICATIONS AND MODIFICATIONS THEREOF, AS WELL AS DIFFERENCES BETWEEN YOUR MODEL S850A-1S AND THE MODEL 683-C, INDICATES THAT YOU HAD FULL ACCESS TO SPECIFICATIONS FOR THE BRAND NAME PRODUCT. HOWEVER, YOU FAILED TO FURNISH INFORMATION ON SWEEP LINEARITY AND RESIDUAL AMPLITUDE MODULATION, BOTH OF WHICH ARE CONSIDERED MATERIAL, AS AFFECTING THE QUALITY AND PERFORMANCE OF THE PRODUCT. WHEN A BID IS SILENT OR AMBIGUOUS ON A MATTER WHICH GOES TO THE SUBSTANCE OF THE BID, THE BIDDER MAY NOT BE REQUESTED OR PERMITTED TO COMPLETE OR CLARIFY HIS BID AFTER THE BID OPENING, SINCE THIS WOULD GIVE HIM THE ELECTION OF MAKING HIS BID RESPONSIVE OR NOT AS HE CHOSE.

IN ACCORDANCE WITH THE TERMS OF THE INVITATION QUOTED ABOVE, IT WAS THE RESPONSIBILITY OF THE GOVERNMENT TO EVALUATE THE BIDS AND DETERMINE WHETHER YOUR PRODUCT WAS EQUAL TO THE BRAND NAME IN ALL MATERIAL RESPECTS, BASED ON INFORMATION FURNISHED BY YOU. WITH REFERENCE TO THE PROVISION IN PARAGRAPH 1-1206.2 (B) OF ASPR THAT 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, THIS DOES NOT APPEAR TO CONTEMPLATE A COMPLETE INDEPENDENT DESCRIPTION OF ALL MATERIAL ASPECTS OF ALL BRAND NAME "PRODUCTS" REFERENCED. IT APPEARS THAT THE PURPOSE OF THE REQUIREMENT AS TO SETTING FORTH SALIENT CHARACTERISTICS WOULD BE TO MAKE CLEAR THE ESSENTIALLY OF ANY CHARACTERISTICS WHICH MIGHT NOT OTHERWISE BE APPARENT, SUCH AS THE ENVIRONMENTAL SPECIFICATIONS IN THIS CASE. HOWEVER, WHERE, AS HERE, A COMPLEX PIECE OF ELECTRONIC EQUIPMENT IS BEING PROCURED, THE BEST IDENTIFICATION WOULD APPEAR TO BE A REFERENCE TO THE MODEL NUMBER AND TO ANY CATALOG OR OTHER OFFICIAL PUBLICATION OF THE BRAND NAME MANUFACTURER, WHICH WOULD INCLUDE A COMPLETE DESCRIPTION AND SPECIFICATIONS FOR THE ITEM. AN EXPERIENCED SUPPLIER SUCH AS YOUR FIRM SHOULD RECOGNIZE THE MATERIAL ASPECTS OF THE EQUIPMENT. IT SEEMS CLEAR THAT THE FURNISHING OF FREQUENCY DATA, SIGNAL OUTPUT DATA, ETC., IN THE INVITATION FOR BIDS WAS NOT INTENDED TO BE A COMPLETE DESCRIPTION OF ALL MATERIAL REQUIREMENTS AND WAS NOT CONSIDERED AS SUCH BY YOU.

WITH REFERENCE TO YOUR STATEMENT THAT HEWLETT-PACKARD HAS JUST INTRODUCED ITS NEW LINE OF INSTRUMENTS USING PERMANENT MAGNET FOCUSED BWO TUBES, OUR LAST REPORT INDICATED IT HAD NOT GONE INTO PRODUCTION ON SAME. NOR DOES IT APPEAR THAT AT THE TIME THESE BIDS WERE BEING EVALUATED IT WAS UNIVERSALLY ACKNOWLEDGED AS A TECHNICAL FACT THAT THE PERMANENT MAGNET BWO TUBE WAS THE FUNCTIONAL EQUAL OF THE SOLENOID FOCUSED ELECTROMAGNETIC TUBE. THE BWO TUBE IS APPARENTLY THE HEART OF THE INSTRUMENT AND THE AIR FORCE WAS UNABLE TO AFFIRM DEFINITELY THE EQUALITY OF YOUR TUBE WITH THE BRAND NAME.

AS TO YOUR FAILURE TO COMPREHEND THE SIGNIFICANCE OF THE STATEMENT THAT "AIR FORCE TECHNICAL AND PROCUREMENT PERSONNEL HAVE ESTABLISHED THAT THERE ARE AT LEAST TWO OTHER BIDDERS, HUGGINS LABORATORIES, INC., AND ALFRED ELECTRONICS, WHICH OFFERED TO FURNISH EQUIPMENT EQUAL IN ALL MATERIAL RESPECTS TO THAT SPECIFIED IN THE INVITATION," IT APPEARS THAT THIS WAS TO INDICATE THAT AWARD WAS NOT MADE TO HEWLETT-PACKARD BECAUSE OF A PREFERENCE FOR ITS PRODUCT, BUT BECAUSE IT WAS DETERMINED TO BE THE LOWEST RESPONSIVE BIDDER, AND THAT AWARD WOULD HAVE BEEN MADE TO ONE OF THE NAMED FIRMS IF ITS BID HAD BEEN LOWER THAN HEWLETT PACKARD-S. YOU ARE FURTHER ADVISED, IN RESPONSE TO YOUR QUERY, THAT THE BID OF HUGGINS LABORATORIES WAS, IN FACT, HIGHER THAN HEWLETT PACKARD, SINCE NEITHER OFFERED A DISCOUNT.

WE HAVE FOUND THAT A BRAND NAME OR EQUAL PURCHASE DESCRIPTION IS A VERY FRUITFUL SOURCE OF BID PROTESTS AND THAT DIFFICULTIES MAY REGULARLY BE EXPECTED IN CONNECTION WITH ITS USE. WE HAVE THEREFORE STATED THAT IT SHOULD BE AVOIDED WHEREVER POSSIBLE. 38 COMP. GEN. 380. THIS PROBLEM IS ALSO RECOGNIZED IN PARAGRAPH 1-1206.1 (A) OF ASPR WHICH PROVIDES THAT THIS TECHNIQUE SHOULD BE USED ONLY AS A LAST RESORT WHEN AN ADEQUATE SPECIFICATION OR MORE DETAILED DESCRIPTION CANNOT FEASIBLY BE MADE AVAILABLE IN TIME FOR THE PROCUREMENT UNDER CONSIDERATION. HOWEVER, IT MUST BE RESORTED TO ON OCCASION AND WHEN IT IS, AS IN OTHER TYPES OF PROCUREMENT, IT IS PRIMARILY THE FUNCTION OF THE PROCURING AGENCY TO DETERMINE WHETHER A PRODUCT OFFERED AS EQUAL IS, IN FACT, EQUAL TO THE BRAND NAME PRODUCT. 17 COMP. GEN. 554. WE MAY NOT INTERFERE EXCEPT WHERE IT IS CLEARLY ESTABLISHED THAT CONTRACTING OFFICIALS OF THE GOVERNMENT HAVE ABUSED THEIR AUTHORITY BY ACTING IN BAD FAITH OR IN DISREGARD OF APPLICABLE STATUTES OR REGULATIONS. SINCE IT APPEARS THAT THE AWARD WAS MADE BY THE CONTRACTING OFFICER IN GOOD FAITH AND IN THE EXERCISE OF HIS BEST INDEPENDENT JUDGMENT, WHICH IS NOT CONTROVERTED BY THE FACTS, WE WOULD NOT BE JUSTIFIED IN HOLDING THAT THE CONTRACT, WHICH IS REPORTED TO HAVE BEEN COMPLETED ON SCHEDULE, WAS ILLEGALLY AWARDED. SEE 36 COMP. GEN. 376; 35 ID. 174 AND CASES CITED.

THE AIR FORCE HAS REPORTED THAT IT IS PRESENTLY IN THE PROCESS OF DEVELOPING A SPECIFICATION FOR USE IN FUTURE PROCUREMENTS OF THIS EQUIPMENT AND THAT THE COMMAND HAVING JURISDICTION OVER THE PROCURING ACTIVITY IS BEING REQUESTED TO ASSURE THAT YOUR MODEL S850A-1S IS CONSIDERED IN THE DEVELOPMENT OF THE SPECIFICATION.