B-150436, JUL. 31, 1963

B-150436, JUL. 31, 1963

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO LETTER DATED JUNE 25, 1963, FROM THE CHIEF, PROCUREMENT OPERATIONS DIVISION, DIRECTORATE, PROCUREMENT POLICY, DEPUTY CHIEF OF STAFF (SYSTEMS AND LOGISTICS), REPORTING ON THE BID PROTEST OF PARADYNAMICS, INCORPORATED, UNDER INVITATION FOR BIDS 36-600 63-158.

WITH REFERENCE TO THE STATEMENT THAT THE AIR FORCE DOES NOT FEEL THAT THE GOVERNMENT ALONE SHOULD CARRY THE BURDEN OF ASSURING THE COMPLETENESS OF THE BIDDER'S SUBMISSION, AND THE DEPARTMENT'S REQUEST FOR OUR SUGGESTION FOR FUTURE ACTION IN CASES OF THIS NATURE, WE HAVE NEVER CONSIDERED THAT THE GOVERNMENT SHOULD CARRY THE BURDEN OF ASSURING THE COMPLETENESS OF A BID. IT IS THE GOVERNMENT'S RESPONSIBILITY TO GIVE A CLEAR PICTURE OF WHAT IT NEEDS AND THE BIDDER'S RESPONSIBILITY TO ESTABLISH THAT HIS PRODUCT MEETS THOSE NEEDS.

IN THE PRESENT CASE IT APPEARS THAT, IN ACCORDANCE WITH PARAGRAPH 1 1206.2 (B) OF ASPR, THE INVITATION SHOULD HAVE INCLUDED THE COMPLETE COMMON GENERIC IDENTIFICATION OF THE ITEM, THE APPLICABLE MODEL NUMBER, AND A REFERENCE TO THE HEWLETT-PACKARD CATALOG ON ELECTRONIC TEST INSTRUMENTS AND THE HEWLETT-PACKARD OPERATING AND SERVICE MANUAL FOR THE 683-C SWEEP OSCILLATOR. SINCE IT DOES NOT APPEAR THAT THE ENVIRONMENTAL SPECIFICATIONS WERE IN ANY OFFICIAL PUBLICATIONS OF HEWLETT-PACKARD WHICH COULD HAVE BEEN REFERENCED, THEIR MATERIALITY SHOULD HAVE BEEN MENTIONED IN THE PURCHASE DESCRIPTION AND COPIES MADE AVAILABLE TO BIDDERS UPON REQUEST OR AS A PART OF THE INVITATION.

IN VIEW OF THE GREAT VARIETY OF ITEMS BEING PURCHASED, NO HARD AND FAST RULES FOR IDENTIFICATION OF BRAND NAME PURCHASES CAN BE LAID DOWN. GENERALLY, IT IS BELIEVED THAT THE GREATEST ATTENTION SHOULD BE PAID TO ELIMINATING ANY POSSIBLE AMBIGUITY AS TO THE NATURE OR INTENDED USE OF THE ITEM AND CALLING PARTICULAR ATTENTION TO ANY FEATURES WHICH ARE PECULIARLY ESSENTIAL TO THE GOVERNMENT'S NEEDS AND THE ESSENTIALITY OF WHICH MIGHT BE OVERLOOKED EVEN BY AN EXPERIENCED SUPPLIER OF THE ITEM. IT SEEMS CLEAR THAT THE FIRST SENTENCE OF PARAGRAPH 1-1206.2 (B) OF ASPR DOES NOT CONTEMPLATE A COMPLETE, INDEPENDENT DESCRIPTION OF THE ITEM. PARTICULAR ATTENTION NEED BE CALLED TO ANY SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCTS WHICH WOULD BE ESSENTIAL TO THE NEEDS OF ANY PURCHASER, SINCE THEY WOULD BE RECOGNIZED AS ESSENTIAL BY THE QUALIFIED BIDDERS WHO NORMALLY WOULD BE CIRCULARIZED. ONCE A BRAND NAME OR EQUAL PURCHASE DESCRIPTION IS PROPERLY ISSUED, THE RULES FOR EVALUATION ARE THE SAME AS FOR PURCHASES BASED ON SPECIFICATIONS.

IT IS NOTED THAT THE FILE INCLUDES A LETTER DATED DECEMBER 14, 1962, FROM THE COMMANDER, MIDDLETOWN AIR MATERIEL AREA, TO THE HONORABLE STEVEN B. DEROUNIAN, ADVISING MR. DEROUNIAN THAT THE AWARD COULD NOT BE SET ASIDE FOR FURTHER INVESTIGATION BECAUSE IT HAD BEEN MADE PRIOR TO THE RECEIPT OF PARADYNAMICS' PROTEST. THIS GIVES THE IMPRESSION THAT NO ADMINISTRATIVE ACTION MAY BE TAKEN AFTER AWARD. THIS IS NOT THE CASE IF THERE IS A REASONABLE BASIS FOR BELIEVING THE AWARD MAY HAVE BEEN ILLEGALLY MADE. SEE PRESTEX INC. V. UNITED STATES, CT.CL.NO. 415-61, JULY 12, 1963. THE PROCURING AGENCY CONSIDERS THAT THE PROTEST MAY BE LEGALLY JUSTIFIED, A STOP ORDER CAN BE ISSUED TO THE CONTRACTOR AT LEAST UNTIL AN ADMINISTRATIVE INVESTIGATION AND DETERMINATION CAN BE MADE, AND IF THERE IS STILL DOUBT IN THE MATTER, UNTIL A DETERMINATION CAN BE MADE BY THIS OFFICE. SEE PARAGRAPH 2 407.9 (B) (2) (A) (V) OF THE AIR FORCE PROCUREMENT INSTRUCTION. WHETHER A STOP ORDER IS ISSUED WOULD DEPEND, OF COURSE, ON THE CIRCUMSTANCES OF THE PARTICULAR CASE, INCLUDING THE ACUTENESS OF THE NEED FOR THE ITEM BEING PURCHASED, BUT SHOULD DEPEND PRIMARILY ON WHETHER THE DEPARTMENT CONSIDERS THAT IT WAS ON SOLID GROUND IN MAKING THE AWARD IN THE FIRST INSTANCE.