B-169835, SEP 18, 1970, 50 COMP GEN 193

B-169835, SEP 18, 1970, 50 COMP GEN 193

CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE - USE LIMITED TO UNAVAILABILITY OF ADEQUATE SPECIFICATIONS WHERE THE TECHNICAL DATA NECESSARY FOR THE DRAFTING OF A PURCHASE DESCRIPTION FOR ELECTRONIC RECEIVERS WAS LACKING, THE USE OF A BRAND NAME OR EQUAL SPECIFICATION, LISTING 47 SALIENT CHARACTERISTICS THAT HAD TO BE MET BY ANY "EQUAL" PRODUCT OFFERED WAS NOT IMPROPER, NOR DID THE EVALUATION OF THE EQUAL PRODUCT ON THE BASIS OF WHETHER THE LONG LIST OF FEATURES WAS MET OPERATE TO MAKE THE SALIENT CHARACTERISTICS THE COMPLETE PURCHASE DESCRIPTION PRESCRIBED BY SECTION 1-1.307-2 OF THE FEDERAL PROCUREMENT REGULATIONS IN THE ABSENCE OF A CLEAR AND ACCURATE DESCRIPTION OF TECHNICAL REQUIREMENTS. THEREFORE, THE INVITATION FOR BIDS NOT CONSTITUTING A SATISFACTORY PURCHASE DESCRIPTION, THE LOW BID THAT COMPLIED WITH ONLY SIX OF THE STATED 47 CHARACTERISTICS AND CONTAINED A STATEMENT THAT SPECIFICATIONS WOULD BE MET WAS PROPERLY REJECTED. CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE - SALIENT CHARACTERISTICS A LOW BIDDER WHO AFTER BID OPENING OBJECTED TO THE USE OF A BRAND NAME OR EQUAL INVITATION WHICH LISTED 47 SALIENT CHARACTERISTICS THAT DID NOT INCLUDE TECHNICAL DATA FOR THE ELECTRONIC RECEIVERS TO BE PURCHASED, ON THE BASIS THE UNLISTED DATA COULD HAVE BEEN QUICKLY SUMMARIZED AND A PURCHASE DESCRIPTION PREPARED THAT WOULD MEET THE REQUIREMENTS OF SECTION 1-1.307-2 OF THE FEDERAL PROCUREMENT REGULATIONS FOR A CLEAR AND ACCURATE DESCRIPTION OF THE TECHNICAL REQUIREMENTS, SHOULD HAVE LODGED HIS COMPLAINT BEFORE BIDS WERE OPENED. THE INVITATION FOR BIDS CLEARLY STATED THE SALIENT CHARACTERISTICS AND OTHER CRITERIA ON WHICH BIDS WERE TO BE EVALUATED, AND THE BIDDER HAVING PARTICIPATED IN THE BRAND NAME OR EQUAL PROCUREMENT TO THE POINT OF BID OPENING IS DEEMED TO HAVE ACQUIESCED IN THE EVALUATION CRITERIA SET OUT IN THE INVITATION. CONTRACTS - SPECIFICATIONS - SAMPLES - PREPRODUCTION SAMPLE REQUIREMENT - BRAND NAME OR EQUAL ITEMS WHEN THE PURPOSE OF A FIRST ARTICLE PROVISION IN A BRAND NAME OR EQUAL INVITATION IS TO ASSURE THAT THE PRODUCT OFFERED WILL PERFORM IN ACCORDANCE WITH THE SALIENT CHARACTERISTICS STATED AND NOT TO REVEAL DEFECTS WHICH COULD BE CORRECTED BY CONVEYING GENERAL DESIGN INFORMATION AS TO HOW A CONFORMING PRODUCT COULD BE CONSTRUCTED, WHETHER A BIDDER PROPOSES TO MANUFACTURE A MODEL WHICH WOULD ATTAIN THE PERFORMANCE CHARACTERISTICS OF THE BRAND NAME PRODUCT IS FOR DETERMINATION BY EVALUATING THE INFORMATION SUBMITTED WITH AN OFFER IN ACCORDANCE WITH THE BRAND NAME OR EQUAL CLAUSE AND NOT FOR DETERMINATION DURING FIRST ARTICLE TESTING. CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE - DESCRIPTION AVAILABILITY DATA CONTAINED IN LITERATURE THAT WAS NOT PREPARED TO QUOTE BACK THE SALIENT FEATURES OF A BRAND NAME MODEL BUT WAS PUBLISHED TO DISSEMINATE THE INFORMATION TO THE PUBLIC DOES NOT CONSTITUTE SUFFICIENT DESCRIPTIVE LITERATURE FOR THE PURPOSE OF DETERMINING WHETHER A PRODUCT EQUALS THE BRAND NAME. FURTHERMORE, AN OFFER TO CONFORM DOES NOT SATISFY THE DESCRIPTIVE LITERATURE REQUIREMENT OF A BRAND NAME OR EQUAL CLAUSE FOR DETAILED INFORMATION, AND THE SUBMISSION OF DATA AFTER BID OPENING MAY NOT BE CONSIDERED UNDER THE FUNDAMENTAL PRINCIPLE OF THE COMPETITIVE BIDDING SYSTEM THAT THE RESPONSIVENESS OF A BID MUST BE DETERMINED FROM THE BID WITHOUT REFERENCE TO EXTRANEOUS AIDS OR EXPLANATION SUBMITTED AFTER BID OPENING, IN FAIRNESS TO THOSE BIDDERS WHOSE OFFERS STRICTLY COMPLIED WITH ALL THE SOLICITATION REQUIREMENTS.

TO SYSTEMS TECHNOLOGY, INC., SEPTEMBER 18, 1970:

REFERENCE IS MADE TO YOUR LETTER OF MAY 19, 1970, AND SUBSEQUENT CORRESPONDENCE CONCERNING YOUR PROTEST UNDER INVITATION FOR BIDS (IFB) NO. CG-03-248-A, WHICH WAS ISSUED ON FEBRUARY 26, 1970, BY THE UNITED STATES COAST GUARD FOR THE PROCUREMENT OF 500 HF FIXED FREQUENCY (STRIP) RECEIVERS, GALAXY ELECTRONICS MODEL FFR-230 OR EQUAL, 350 RACK PANEL ADAPTERS, GALAXY ELECTRONICS MODEL RPA-530, OR EQUAL, AND ASSOCIATED SOFTWARE. THE COAST GUARD STATES THAT THE RECEIVERS IN QUESTION ARE TO BE USED FOR MONITORING THE INTERNATIONAL DISTRESS FREQUENCY AT LOCATIONS THROUGHOUT THE WORLD, FOR MONITORING MILITARY AND CIVIL WORKING FREQUENCIES, FOR SEARCH AND RESCUE OPERATIONS, AND FOR LOGISTICS AND ADMINISTRATIVE PURPOSES AT REMOTE LOCATIONS. THE RECEIVERS ARE CONSIDERED TO BE HIGHLY DEVELOPED, SOPHISTICATED EQUIPMENT AND ARE NOT STOCK ITEMS.

IT IS REPORTED THAT THE COAST GUARD BEGAN COLLECTING INFORMATION ON THE RECEIVERS BASED UPON ANTICIPATED REQUIREMENTS FOR THE DEVICES APPROXIMATELY 2 YEARS PRIOR TO THE SUBJECT PROCUREMENT. HOWEVER, A DEFINITE SPECIFICATION WAS NOT DEVELOPED DURING THIS PERIOD BECAUSE FIRM OPERATIONAL REQUIREMENTS FOR THE RECEIVERS HAD NOT BEEN RECEIVED FROM USING ACTIVITIES. WHEN A FIRM REQUIREMENT WAS RECEIVED IN NOVEMBER 1969 FOR INSTALLATION AND OPERATION OF THE DEVICES BY JANUARY 1, 1971, THE COAST GUARD DETERMINED THAT IT DID NOT HAVE AN ADEQUATE NUMBER OF TECHNICAL PERSONNEL TO USE THE ACCUMULATED RESEARCH DATA ON THE RECEIVERS TO WRITE A COMPREHENSIVE PURCHASE DESCRIPTION IN TIME TO HAVE THE EQUIPMENT IN USE BY THE STATED DATE. ACCORDINGLY, THE RECORD INDICATES THAT ON FEBRUARY 12, 1970, THE COAST GUARD FORMALLY DETERMINED THAT THE BRAND NAME OR EQUAL METHOD OF ADVERTISING SHOULD BE EMPLOYED TO FULFILL THIS REQUIREMENT IN ACCORDANCE WITH THE FOLLOWING PROVISIONS OF FEDERAL PROCUREMENT REGULATIONS (FPR) 1-1.307-5(A)(2):

SEC 1-1.307-5 LIMITATIONS ON USE OF "BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS. "BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS MAY BE USED ONLY UNDER THE CIRCUMSTANCES IN (A) OR (B) OF THIS SEC 1-1.307-5:

(A) WHEN A SUITABLE FORMAL GOVERNMENT SPECIFICATION OR STANDARD OR INDUSTRY STANDARDIZATION DOCUMENT APPROVED FOR AGENCY USE IS NOT AVAILABLE, AND A PURCHASE DESCRIPTION OF THE TYPE REFERRED TO IN SEC 1 1.307-3 IS INADEQUATE OR UNAVAILABLE, AND A PURCHASE DESCRIPTION MEETING THE GENERAL REQUIREMENTS OF SEC 1-1.307-2 CANNOT BE PREPARED BECAUSE -

(2) PUBLIC EXIGENCY OR MILITARY NECESSITY PRECLUDES TIMELY DEVELOPMENT.

THE SALIENT FEATURES OF THE GALAXY MODELS WERE SET FORTH IN 47 SEPARATE ENTRIES IN THE SOLICITATION TOGETHER WITH THE PROVISIONS OF THE "BRAND NAME OR EQUAL" CLAUSE, WHICH IS SET FORTH IN FPR 1-1.307-6 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 NAME 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 BIDDER. 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.

WHEN BIDS WERE OPENED ON APRIL 16, 1970, IT WAS DETERMINED THAT YOUR CONCERN HAD SUBMITTED THE LOWEST BID OF THE FIVE BIDS RECEIVED. FURTHER EXAMINATION OF YOUR BID REVEALED THAT YOU OFFERED YOUR SCR-12 SINGLE CHANNEL SSB RECEIVER AS A PRODUCT EQUAL TO THE REFERENCED BRAND NAME, AND THAT YOU SUBMITTED A DATA SHEET WITH YOUR BID WHICH SET FORTH CERTAIN CHARACTERISTICS OF THAT MODEL. A LETTER DATED MARCH 31, 1970, FROM THE PRESIDENT OF YOUR COMPANY WAS ATTACHED TO THE DATA SHEET AND CONTAINED THE FOLLOWING STATEMENT:

ATTACHED IS A DATA SHEET DESCRIBING THE SYSTEMS TECHNOLOGY, INC. SCR 12 SINGLE CHANNEL SSB RECEIVER. WHILE THE GENERAL DESCRIPTION HERE DOES NOT REPEAT EVERY DETAIL OF THE SPECIFICATION, THE SCR-12 MEETS OR EXCEEDS ALL THE REQUIREMENTS OF THE SPECIFICATION WITHOUT EXCEPTION.

THE COAST GUARD CONCLUDED THAT YOUR DATA SHEET INDICATED THAT THE SCR 12 COMPLIED WITH ONLY SIX OF THE SALIENT CHARACTERISTICS WHICH WERE LISTED IN THE IFB, AND THAT THE STATEMENT CONTAINED IN YOUR LETTER DID NOT CONSTITUTE DESCRIPTIVE LITERATURE FOR THE PURPOSE OF EVALUATING YOUR OFFER WITH RESPECT TO THE OTHER SALIENT FEATURES. IN VIEW THEREOF, AND INASMUCH AS THE COAST GUARD ELECTRONICS BRANCH DID NOT POSSESS ANY OTHER DATA CONCERNING YOUR DEVICE, THE CONTRACTING OFFICER REJECTED YOUR BID AS BEING TECHNICALLY NONRESPONSIVE. THEREAFTER, A CONTRACT WAS AWARDED TO GALAXY ELECTRONICS, INC., AS THE LOWEST RESPONSIVE BIDDER.

AFTER YOU WERE INFORMED OF THE COAST GUARD'S DETERMINATION IN THIS MATTER YOU SUBMITTED ADDITIONAL DESCRIPTIVE LITERATURE AND AN OPERATING MODEL TO DEMONSTRATE THAT YOUR RECEIVER WAS EQUAL TO THE GALAXY MODELS. THE CONTRACTING OFFICER ADVISED YOU THAT CONSIDERATION OF DATA SUBMITTED AFTER BID OPENING WAS PROHIBITED, AND AFFIRMED HIS DETERMINATION THAT YOUR OFFER WAS NONRESPONSIVE AND COULD NOT BE CONSIDERED FOR AWARD. THE CONTRACTING OFFICER ALSO DETERMINED THAT THE BID SUBMITTED BY THE SECOND LOWEST BIDDER, SCIENTIFIC RADIO SYSTEMS, INC., COULD NOT BE CONSIDERED FOR AWARD BECAUSE THAT CONCERN HAD SUBMITTED INADEQUATE DESCRIPTIVE LITERATURE CONCERNING ITS "EQUAL" PRODUCT.

ON JUNE 29, 1970, THE COAST GUARD ADVISED OUR OFFICE THAT IT WAS PROCEEDING WITH AN AWARD ON THAT DATE TO GALAXY ELECTRONICS, INC., THE THIRD LOWEST BIDDER, IN ORDER TO MEET THE REQUIREMENT FOR HAVING THE RECEIVERS IN OPERATION BY JANUARY 1, 1971.

YOU MAINTAIN THAT THE COAST GUARD SHOULD NOT HAVE ADVERTISED THE REQUIREMENT ON A BRAND NAME OR EQUAL BASIS. IN THIS REGARD YOU STATE THAT THE LIST OF SALIENT FEATURES IN THE IFB CONSTITUTED A COMPLETE PERFORMANCE SPECIFICATION WHICH WAS AN ENTIRELY SATISFACTORY PURCHASE DESCRIPTION AND THAT THERE WAS NO NEED TO MENTION THE GALAXY BRAND NAME.

THE COAST GUARD REPORTS THAT THE SALIENT FEATURES ALONE DID NOT CONSTITUTE A COMPREHENSIVE PURCHASE DESCRIPTION OF THE NEEDS OF THE GOVERNMENT FOR THE SUBJECT PROCUREMENT AND THAT THE REFERENCE TO THE BRAND NAME WAS INTENDED TO DESCRIBE CERTAIN ADDITIONAL CHARACTERISTICS AS FOLLOWS:

BY CITING THE BRAND NAME, THE GOVERNMENT COMPLETED THE DESCRIPTION OF ITS NEEDS. THE GALAXY MODEL SPECIFIED THE GENERAL DESIGN, CONFIGURATION, AND LEVEL OF QUALITY OF THE RECEIVER, WHICH INCLUDE THE FOLLOWING EXAMPLES:

ELECTRICAL MECHANICAL

QUALITY OF ELECTRONICS PARTS VENTILATION

ELECTRONIC PART VARIABILITY TIME,

COMPONENT FASTENINGS TEMPERATURE,AND HUMIDITY

COMPOSITION OF CHASSIS

FUSING, TYPE AND ACCESSIBILITY TYPE OF METAL/MATERIALS USED

WIRING, TYPE/INSTALLATION/SHIELDING FABRICATION

SOLDERING) TYPE CABLE HARNESSING

POWER CIRCUIT FILTERING CABLES

PASSING THROUGH CHASSIS

LOCATION OF COMPONENTS

RELIABILITY

----------- REACTION TO

SHOCK AND VIBRATION REACTION TO ABNORMAL

VOLTAGE OR TEMPERATURE CONDITIONS

A COMPREHENSIVE PURCHASE DESCRIPTION WOULD ENCOMPASS THE ABOVE ELEMENTS. IN ORDER TO WRITE A COMPREHENSIVE PURCHASE DESCRIPTION, EACH FACET OF OPERATION OF THE ITEM MUST BE RESEARCHED SO THAT DETAILS CAN BE SPECIFIED FOR EACH. A TYPICAL ELECTRICAL DESCRIPTION PROVIDES FOR THE TYPE OF INTERNAL WIRING MATERIAL TO BE USED, THE MIL-SPEC TO BE MET, THE NUMBER OF STRANDS PER WIRE, THE MINIMUM GAGE WIRING AND THE COATING AND SHIELDING OF WIRING. A TYPICAL MECHANICAL DESCRIPTION PROVIDES FOR THE TYPE OF CHASSIS FABRICATION AND THE EXTERNAL AND INTERNAL FASTENINGS WITH ASSOCIATED GAGE AND DIAMETER OF EACH. A TYPICAL RELIABILITY DESCRIPTION PROVIDES FOR THE DEGREE OF SHOCK AND VIBRATION TO BE MET IN ACCORDANCE WITH A MIL-SPEC AND A CERTAIN MEAN TIME BETWEEN FAILURE IN ACCORDANCE WITH A DESIGNATED SPECIFICATION.

IN RESPONSE TO THIS STATEMENT YOU MAINTAIN THAT THE PROCURING ACTIVITY WAS PRECLUDED FROM EVALUATING AN EQUAL PRODUCT ON THE BASIS OF FEATURES WHICH WERE NOT SET FORTH IN THE LIST OF SALIENT FEATURES OF THE GALAXY MODELS; THAT IF THESE ASPECTS WERE IMPORTANT TO THE COAST GUARD IT COULD HAVE SUMMARIZED THESE FEATURES WITHIN A HALF A DAY FOR INCLUSION IN A STANDARD PURCHASE DESCRIPTION; THAT IT COULD HAVE USED THE FIRST ARTICLE TESTING PROCEDURE TO ASSURE THAT AN "EQUAL" PRODUCT WOULD COMPLY WITH ANY REQUIREMENTS WHICH THE GOVERNMENT HAD NOT DESCRIBED ADEQUATELY; AND THAT THESE FEATURES ARE IRRELEVANT SINCE A MEETING OF THE PERFORMANCE REQUIREMENTS SPECIFIED AS SALIENT FEATURES RENDERS THESE OTHER ASPECTS SATISFACTORY EVEN THOUGH THEY MAY BE DIFFERENT FROM THE GALAXY EQUIPMENT.

FPR 1-1.307-5 STATES THAT A BRAND NAME OR EQUAL PURCHASE DESCRIPTION SHALL NOT BE USED UNLESS A SUITABLE FORMAL GOVERNMENT SPECIFICATION OR STANDARD OR INDUSTRY STANDARDIZATION DOCUMENT APPROVED FOR AGENCY USE IS NOT AVAILABLE AND A PURCHASE DESCRIPTION MEETING THE GENERAL REQUIREMENTS OF FPR 1-1.307-2 CANNOT BE PREPARED. FPR 1-1.307-2 PROVIDES AS FOLLOWS:

SEC 1-1.307-2 GENERAL REQUIREMENTS.

EXCEPT AS OTHERWISE PROVIDED IN SECS 1-1.307-3 AND 1-1.307-4, PURCHASE DESCRIPTIONS SHALL CLEARLY AND ACCURATELY DESCRIBE THE TECHNICAL REQUIREMENTS OR DESIRED PERFORMANCE CHARACTERISTICS OF THE SUPPLIES OR SERVICES TO BE PROCURED; AND, WHEN APPROPRIATE, THE TESTING PROCEDURES WHICH WILL BE USED IN DETERMINING WHETHER SUCH REQUIREMENTS OR CHARACTERISTICS ARE MET. WHEN NECESSARY, PRESERVATION, PACKAGING, PACKING, AND MARKING REQUIREMENTS SHALL BE INCLUDED. PURCHASE DESCRIPTIONS MAY CONTAIN REFERENCES TO FORMAL GOVERNMENT SPECIFICATIONS AND STANDARDS WHICH ARE TO FORM A PORTION OF THE PURCHASE DESCRIPTION."

FPR 1-1.307-4(B) STIPULATES THAT A BRAND NAME OR EQUAL PURCHASE DESCRIPTION SHOULD SET FORTH THOSE SALIENT PHYSICAL FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCTS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT.

SINCE FPR 1-1.307-2 OBVIOUSLY EXCEPTS BRAND NAME OR EQUAL PROCUREMENTS FROM THE REQUIREMENT THAT PURCHASE DESCRIPTIONS SHALL CONTAIN A CLEAR AND ACCURATE DESCRIPTION OF THE TECHNICAL REQUIREMENTS OF THE GOODS TO BE PROCURED, WE MUST CONCLUDE THAT A BRAND NAME OR EQUAL PURCHASE DESCRIPTION WHICH CONSISTS ONLY OF A LISTING OF SALIENT CHARACTERISTICS WILL NOT MEET THE CRITERIA WHICH ARE TO BE MET IN A STANDARD PURCHASE DESCRIPTION.

IN THIS CONNECTION WE NOTE THAT THE UNLISTED FEATURES OF THE BRAND NAME PRODUCT, WHICH THE COAST GUARD BELIEVES SHOULD HAVE BEEN INCLUDED IN A NONBRAND NAME DESCRIPTION OF THEIR NEEDS FOR THIS PROCUREMENT, APPEAR TO SHOW HOW THE VARIOUS COMPONENTS OF THE GALAXY MODELS ARE STRUCTURALLY ARRANGED AND INTERRELATED TO PRODUCE THE PERFORMANCE LEVELS SET FORTH IN THE LIST OF SALIENT FEATURES. CLEARLY, SUCH INFORMATION WOULD CONVEY VITAL ENGINEERING DATA TO THOSE POTENTIAL BIDDERS WHO DESIRED TO KNOW HOW THE SALIENT PERFORMANCE CHARACTERISTICS WERE ATTAINED IN THE GALAXY MODELS IN ORDER TO DESIGN AN "EQUAL" PRODUCT. IT IS DIFFICULT TO PERCEIVE HOW AN ADEQUATE NONBRAND NAME PURCHASE DESCRIPTION, CONFORMING TO THE REQUIREMENTS OF FPR 1-1.307-2, AND PERMITTING THE MAXIMUM NUMBER OF POTENTIAL BIDDERS CONSISTENT WITH THE REQUIREMENT OF FULL AND FAIR COMPETITION, COULD BE WRITTEN WITHOUT SOME REFERENCE TO DESIGN FEATURES OF THE TYPE WHICH THE COAST GUARD MAINTAINS WERE DENOTED BY MERELY REFERENCING THE BRAND NAME.

WHILE WE AGREE WITH YOUR POSITION THAT AN OFFERED PRODUCT COULD NOT BE REJECTED FOR FAILING TO SHOW STRICT COMPLIANCE WITH THE UNLISTED FEATURES OF THE BRAND NAME PRODUCT, WE ARE UNABLE TO ACCEPT YOUR CONCLUSION THAT AN EVALUATION OF AN EQUAL PRODUCT ON THE BASIS OF WHETHER THAT PRODUCT MEETS THE SALIENT CHARACTERISTICS NECESSARILY OPERATES TO MAKE THE SALIENT CHARACTERISTICS A COMPLETE PURCHASE DESCRIPTION IN ACCORDANCE WITH THE REQUIREMENTS OF FPR 1-1.307-2, OR TO RENDER USE OF A BRAND NAME PURCHASE DESCRIPTION IMPROPER. WE PERCEIVE NO LOGICAL RELATIONSHIP BETWEEN THESE STATEMENTS. WHETHER A LIST OF SALIENT CHARACTERISTICS CONSTITUTES A COMPLETE PURCHASE DESCRIPTION IS NOT DETERMINED BY THE METHOD OF EVALUATION OF AN "EQUAL" PRODUCT BUT WHETHER THE LIST IS A CLEAR AND ACCURATE DESCRIPTION OF THE TECHNICAL REQUIREMENTS FOR THE SUPPLIES. NOTED ABOVE, THE COAST GUARD MAINTAINS THAT THE SUBJECT LIST OF SALIENT CHARACTERISTICS IS NOT AS COMPLETE A DESCRIPTION OF THE ITEMS AS WOULD HAVE BEEN PREPARED HAD SUFFICIENT TIME BEEN AVAILABLE TO PREPARE A PURCHASE DESCRIPTION IN ACCORDANCE WITH FPR 1-1307.2; AND THE HISTORY OF THE DEVELOPMENT OF BRAND NAME OR EQUAL PROCUREMENTS CLEARLY INDICATES THAT THE PROCEDURE WAS INTENDED FOR USE IN SUCH CASE. IN THIS REGARD IT IS THE WELL ESTABLISHED POSITION OF THIS OFFICE THAT THE DRAFTING OF PROPER SPECIFICATIONS, INCLUDING THE USE OF BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS, AND THE FACTUAL DETERMINATION OF WHETHER A PRODUCT OFFERED THEREUNDER CONFORMS TO THOSE SPECIFICATIONS, ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING AGENCY. IN SUCH MATTERS INVOLVING A DIFFERENCE OF EXPERT TECHNICAL OPINION WE WILL ACCEPT THE JUDGMENT OF THE TECHNICAL PERSONNEL OF THE AGENCY INVOLVED UNLESS SUCH JUDGMENT IS SHOWN TO BE CLEARLY IN ERROR. 49 COMP. GEN. 195(1969). BASED ON OUR EXAMINATION OF THE RECORD WE CANNOT CONCLUDE THAT THE COAST GUARD'S TECHNICAL DETERMINATION THAT A COMPREHENSIVE PURCHASE DESCRIPTION FOR THE RECEIVER WOULD INCLUDE PARTICULAR ENGINEERING AND MATERIAL REQUIREMENTS, OR THAT ITS DECISION TO FOLLOW BRAND NAME OR EQUAL PROCEDURES BECAUSE THE LIST OF SALIENT FEATURES OF THE GALAXY MODELS LACKED THE DETAILS NEEDED FOR A COMPLETE PURCHASE DESCRIPTION, IS CLEARLY AND UNMISTAKABLY IN ERROR.

YOU ALSO RELY ON OUR HOLDING IN 49 COMP. GEN. 274 (OCTOBER 27, 1969) FOR THE PROPOSITION THAT OUR OFFICE CONSIDERS IT IMPROPER TO USE A BRAND NAME OR EQUAL PURCHASE DESCRIPTION WHEN A DETAILED DESCRIPTION OF AN AGENCY'S NEEDS IS LISTED IN THE SOLICITATION. YOU CONTEND THAT THIS CONCLUSION SHOULD BE APPLIED TO THE PRESENT CASE SINCE THE SALIENT FEATURES OF THE GALAXY MODEL ENCOMPASS NEARLY FOUR PAGES OF THE SCHEDULE. HOWEVER, AN EXAMINATION OF THE INVITATION IN THE CITED CASE REVEALS THAT THERE WAS NO FORMAL LISTING OF SALIENT FEATURES AS IN THE INSTANT SOLICITATION, AND THAT THE DESCRIPTION OF TECHNICAL REQUIREMENTS WAS SET FORTH IN 36 PAGES WHICH INCLUDED SEVERAL REFERENCES TO FEDERAL AND MILITARY SPECIFICATIONS. SUCH DESCRIPTION APPEARED TO CONSTITUTE A COMPLETE STATEMENT OF ALL PERTINENT DESIGN AND PERFORMANCE CRITERIA WHICH WOULD BE NEEDED FOR FULL AND FAIR COMPETITION. SINCE THE DESCRIPTION OF AGENCY NEEDS IN THE INSTANT CASE DID NOT COVER THE GENERAL DETAILS OF THE DEVICES OR CONTAIN REFERENCES TO FEDERAL SPECIFICATIONS, WE BELIEVE THE CITED CASE IS READILY DISTINGUISHABLE FROM THE INSTANT PROCUREMENT.

IN REGARD TO YOUR STATEMENT THAT ANY UNLISTED DATA OF THE GALAXY MODELS CONSIDERED IMPORTANT BY THE COAST GUARD COULD HAVE BEEN QUICKLY SUMMARIZED AND INCLUDED IN A STANDARD PURCHASE DESCRIPTION, WE MUST ACCEPT THE COAST GUARD'S DETERMINATION THAT A COMPREHENSIVE PURCHASE DESCRIPTION SETTING FORTH THE AGENCY'S COMPLETE NEEDS WOULD ENCOMPASS VARIOUS DETAILS RELATING TO DESIGN, CONFIGURATION, MATERIALS, AND QUALITY WHICH COULD NOT BE PREPARED IN THE TIME AVAILABLE. WHETHER THESE CHARACTERISTICS COULD HAVE BEEN QUICKLY SUMMARIZED FOR INCLUSION IN THE LIST OF SALIENT CHARACTERISTICS IN THE MATTER YOU ALLEGE IS PROBLEMATICAL. IN THIS REGARD IT WOULD SEEM TO BE THE POSITION OF THE COAST GUARD THAT SUCH FEATURES WERE NOT ESSENTIAL TO ITS NEEDS, GIVEN THE LIMITED TIME AVAILABLE FOR PROCUREMENT OF THE ITEMS.

IN ANY EVENT IT IS OUR OPINION THAT QUESTIONS OF THIS NATURE MUST BE RAISED PRIOR TO BID OPENING IF THEY ARE TO BE CONSIDERED ON THEIR MERITS BY THIS OFFICE. HERE THE INVITATION FOR BIDS CLEARLY STATED THE SALIENT CHARACTERISTICS AND OTHER CRITERIA ON WHICH BIDS WERE TO BE EVALUATED. UNDER SUCH CIRCUMSTANCES, IT IS OUR OPINION THAT A BIDDER WHO PARTICIPATES IN A BRAND NAME OR EQUAL PROCUREMENT TO THE POINT OF BID OPENING MUST BE DEEMED TO HAVE ACQUIESCED IN THE EVALUATION OF HIS BID, ALONG WITH ALL OTHERS, UNDER THE CRITERIA SET OUT IN THE INVITATION. ACCORDINGLY, THAT PORTION OF YOUR PROTEST WHICH ASKS THAT THE CONTRACT AWARDED TO GALAXY ELECTRONICS, INC., BE CANCELED BECAUSE USE OF THE BRAND NAME OR EQUAL METHOD OF PROCUREMENT WAS IMPROPER MUST BE DENIED.

CONCERNING YOUR ALLEGATION THAT THE COAST GUARD COULD HAVE USED THE FIRST ARTICLE APPROVAL PROVISION TO CORRECT THE EQUIPMENT IN ANY RESPECT IN WHICH THE PURCHASE DESCRIPTION FAILED TO STATE THE GOVERNMENT'S REQUIREMENTS ADEQUATELY, THE COAST GUARD MAINTAINS THAT THE PURPOSE OF THE FIRST ARTICLE TEST WAS TO ASSURE THAT THE ARTICLE PERFORMED IN ACCORDANCE WITH THE SALIENT FEATURES, AND NOT FOR THE PURPOSE OF REVEALING DEFECTS WHICH COULD THEN BE CORRECTED BY CONVEYING GENERAL DESIGN INFORMATION AS TO HOW A CONFORMING PRODUCT COULD BE CONSTRUCTED. WE CONCUR WITH THIS POSITION. WHETHER A BIDDER PROPOSED TO MANUFACTURE A MODEL WHICH WOULD ATTAIN THE PERFORMANCE CHARACTERISTICS OF THE BRAND NAME PRODUCT WAS TO BE DETERMINED BY EVALUATING THE INFORMATION SUBMITTED WITH HIS OFFER IN ACCORDANCE WITH THE BRAND NAME OR EQUAL CLAUSE, AND NOT DURING FIRST ARTICLE TESTING. TO ACCEPT YOUR POSITION IN THIS MATTER WOULD RENDER MEANINGLESS THE DESCRIPTIVE DATA REQUIREMENTS OF THE CLAUSE.

YOU ALSO ALLEGE THAT THE DATA YOU SUBMITTED WITH YOUR OFFER WAS SUFFICIENT TO PERMIT THE COAST GUARD TO ASCERTAIN THAT YOUR PRODUCT WAS THE EQUAL OF THE REFERENCED GALAXY MODELS, AND THAT REJECTION OF YOUR BID WAS THEREFORE IMPROPER UNDER THE BRAND NAME OR EQUAL METHOD OF BID EVALUATION. YOU STATE THAT THE CONTRACTING OFFICER FOUND YOUR MODEL WAS RESPONSIVE TO SIX OF THE SALIENT CHARACTERISTICS BY MERELY ACCEPTING A POINT-BY-POINT REPETITION OF THOSE CHARACTERISTICS IN YOUR DATA SHEET. ACCORDINGLY, YOU MAINTAIN THAT YOUR UNCONDITIONAL PROMISE TO CONFORM TO ALL OTHER SALIENT CHARACTERISTICS SHOULD BE CONSIDERED A POINT-BY-POINT REPETITION OF THOSE FEATURES, AND THEREFORE SUFFICIENT TO COMPLY WITH THE DESCRIPTIVE DATA REQUIREMENTS OF THE INVITATION.

THE CONTRACTING OFFICER STATES THAT HIS FINDING THAT YOUR DEVICE WAS IN COMPLIANCE WITH SIX OF THE SALIENT CHARACTERISTICS WAS NOT BASED UPON A REPETITION OF THOSE CHARACTERISTICS IN YOUR DATA SHEET, AND THAT THE DATA WAS NOT PREPARED FOR THIS PROCUREMENT BUT WAS IN THE FORM OF PUBLISHED LITERATURE DISSEMINATED TO THE PUBLIC. A CLOSE EXAMINATION OF YOUR LITERATURE INDICATES THAT IT SHOWS ONLY SALIENT FEATURES 1.3.2 IN THE MANNER YOU ALLEGE. WITH RESPECT TO THE FIVE OTHER SALIENT FEATURES IN QUESTION, YOUR DATA SHEET DOES NOT CONTAIN A PRECISE REPETITION OF THE SALIENT FEATURES BUT INDICATES PERFORMANCE LEVELS FROM WHICH COMPLIANCE WITH THE SALIENT FEATURES MAY BE DETERMINED. FOR PURPOSES OF ILLUSTRATION, SALIENT FEATURE 1.3.19, IMAGE REJECTION, AND THE DATA CONTAINED IN YOUR LITERATURE SHEET FOR IMAGE REJECTION, ARE QUOTED AS FOLLOWS:

1.3.19 IMAGE REJECTION: 60 DB OR GREATER, 2-16

MHZ: 38 DB OR GREATER, 16-30 MHZ.

SCR-12 IMAGE REJECTION

BETTER THAN 60 DB, 2-17 MHZ

BETTER THAN 40 DB, 17-30 MHZ

IN THIS PERSPECTIVE WE CANNOT CONCLUDE THAT THE DATA CONTAINED IN YOUR LITERATURE WAS PREPARED FOR THE PURPOSE OF REPEATING SALIENT FEATURES OF THIS PROCUREMENT. IN THIS CONNECTION IT SHOULD BE NOTED THAT OUR OFFICE HAS HELD THAT A DATA SHEET WHICH WAS PREPARED TO MERELY QUOTE BACK ALL THE SALIENT FEATURES OF A BRAND NAME MODEL WOULD NOT CONSTITUTE SUFFICIENT DESCRIPTIVE LITERATURE FOR THE PURPOSE OF DETERMINING WHETHER A PRODUCT WAS EQUAL TO THE BRAND NAME UNDER A BRAND NAME OR EQUAL CLAUSE. B-168805, MAY 5, 1970; B-167757, OCTOBER 24, 1969. ALTHOUGH YOU CONTEND THAT YOUR PROMISE TO CONFORM SHOULD BE ACCEPTED AS SUFFICIENT INFORMATION TO SHOW COMPLIANCE WITH THE FEATURES OF THE REFERENCED BRAND NAME, SUCH AN OFFER DOES NOT SATISFY THE DESCRIPTIVE LITERATURE REQUIREMENT OF THE BRAND NAME OR EQUAL CLAUSE. SEE B-161343, JUNE 30, 1967; 41 COMP. GEN. 366 (1961). IN THIS CONNECTION IT SHOULD BE NOTED THAT THE BRAND NAME OR EQUAL CLAUSE REFERENCES CUTS, ILLUSTRATIONS, DRAWINGS, AND OTHER "INFORMATION" AS THE TYPES OF DESCRIPTIVE MATERIAL TO BE FURNISHED IN CONNECTION WITH THE EVALUATION OF AN "EQUAL" PRODUCT. ACCORDINGLY, WE DO NOT BELIEVE THAT A MERE PROMISE TO CONFORM MAY LOGICALLY BE REGARDED AS CONSTITUTING "INFORMATION" WITHIN THE CONTEMPLATION OF THAT CLAUSE.

REGARDING YOUR CONTENTION THAT THE DESCRIPTIVE DATA AND OPERATING MODEL WHICH YOU SUBMITTED AFTER BID OPENING SHOULD HAVE BEEN CONSIDERED, IT IS A FUNDAMENTAL PRINCIPLE OF THE COMPETITIVE BIDDING SYSTEM THAT THE RESPONSIVENESS OF A BID MUST BE DETERMINED FROM THE CONTENTS OF THE BID ITSELF, WITHOUT REFERENCE TO EXTRANEOUS AIDS OR EXPLANATIONS SUBMITTED AFTER BID OPENING, IN FAIRNESS TO THOSE BIDDERS WHOSE OFFERS STRICTLY COMPLIED WITH ALL THE SOLICITATION REQUIREMENTS. 45 COMP. GEN. 221 (1965).

FOR THE REASONS SET FORTH ABOVE YOUR PROTEST MUST BE DENIED.