B-162205, NOV. 15, 1967
Highlights
FAILURE TO INCLUDE INFORMATION TO SHOW THAT PRODUCT WAS EQUAL TO BRAND NAME PRODUCT CANNOT BE WAIVED. AN AMENDMENT WHICH INVOLVED A MATERIAL CHANGE IN SALIENT CHARACTERISTICS LISTED SHOULD HAVE BEEN TIMELY ACKNOWLEDGED AND FAILURE TO ACKNOWLEDGE CANNOT BE WAIVED AS MATERIAL DEVIATION. OF THE AIR FORCE PROPRIETY OF INCORPORATING BY REFERENCE CLAUSE REQUIRING BIDDERS NOT OFFERING BRAND NAME PRODUCT TO TAKE AFFIRMATIVE ACTION IS QUESTIONED. SECRETARY: THERE IS ENCLOSED A COPY OF OUR DECISION OF TODAY TO THE WORTHINGTON AIR CONDITIONING COMPANY WITH REFERENCE TO THE PROTEST AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. IT IS THEREFORE OUR SUGGESTION IN ORDER TO FACILITATE FULL AND FREE COMPETITION THAT CONSIDERATION BE GIVEN TO SETTING FORTH SUCH PROVISIONS.
B-162205, NOV. 15, 1967
BIDS - BRAND NAME OR EQUAL DECISION TO WORTHINGTON AIR CONDITIONING CO. DENYING PROTEST AGAINST REJECTION OF BID FOR GENERATOR SYSTEM BY NAVAL AVIONICS FACILITY. LOW BIDDER WHO FAILED TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT AND TO FURNISH DESCRIPTIVE INFORMATION OF "EQUAL" PRODUCT REQUIRED UNDER BRAND NAME OR EQUAL CLAUSE INCORPORATED IN INVITATION BY REFERENCE HAD BID PROPERLY REJECTED. FAILURE TO INCLUDE INFORMATION TO SHOW THAT PRODUCT WAS EQUAL TO BRAND NAME PRODUCT CANNOT BE WAIVED. AN AMENDMENT WHICH INVOLVED A MATERIAL CHANGE IN SALIENT CHARACTERISTICS LISTED SHOULD HAVE BEEN TIMELY ACKNOWLEDGED AND FAILURE TO ACKNOWLEDGE CANNOT BE WAIVED AS MATERIAL DEVIATION. IN LETTER TO SECY. OF THE AIR FORCE PROPRIETY OF INCORPORATING BY REFERENCE CLAUSE REQUIRING BIDDERS NOT OFFERING BRAND NAME PRODUCT TO TAKE AFFIRMATIVE ACTION IS QUESTIONED. HEREAFTER PROVISION SHOULD BE STATED IN FULL.
TO MR. SECRETARY:
THERE IS ENCLOSED A COPY OF OUR DECISION OF TODAY TO THE WORTHINGTON AIR CONDITIONING COMPANY WITH REFERENCE TO THE PROTEST AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. N00163-67-B-0965 TO THE TRANE COMPANY.
WE QUESTION THE PROPRIETY OF INCORPORATING BY REFERENCE A PROVISION REQUIRING BIDDERS NOT OFFERING THE BRAND NAME PRODUCT TO TAKE SPECIFIC AFFIRMATIVE ACTION. IT IS THEREFORE OUR SUGGESTION IN ORDER TO FACILITATE FULL AND FREE COMPETITION THAT CONSIDERATION BE GIVEN TO SETTING FORTH SUCH PROVISIONS, EITHER IN FULL OR IN SUBSTANCE, IN FUTURE INVITATIONS FOR BIDS.
THIS PROTEST WAS THE SUBJECT OF A REPORT DATED SEPTEMBER 12, 1967, FROM THE ACTING DEPUTY COMMANDER, PURCHASING, NAVAL SUPPLY SYSTEMS COMMAND.