B-164517, AUG. 29, 1968

B-164517, AUG. 29, 1968

TO POLARAD ELECTRONICS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 21, 1968, PROTESTING THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO LOT I OF INVITATION FOR BIDS N00156-68-B-0509, ISSUED BY THE NAVAL AIR ENGINEERING CENTER, PHILADELPHIA, PENNSYLVANIA.

THE INVITATION, ISSUED FEBRUARY 28, 1968, SOLICITED BIDS FOR THE PURCHASE OF FOUR SPECTRUM ANALYZERS ON A "BRAND NAME OR EQUAL" BASIS PURSUANT TO THE MINIMUM REQUIREMENTS SPECIFIED IN NAVAL WEAPONS INDUSTRIAL SUPPORT OFFICE REQUIREMENT NOS. 68-332 AND 68-347.

THE INVITATION REQUESTED BIDS, UNDER LOT I, FOR TWO UNITS,"TO BE HEWLETT- PACKARD MODEL 8551B/851B, OR EQUAL," AND UNDER LOT II, FOR TWO UNITS "TO BE TEKTRONIX, INC. TYPE R491, OR UAL.' ATTACHMENT I TO THE SPECIFICATIONS LISTED 18 SALIENT FEATURES OF THE "BRAND NAME" PRODUCT REQUIRED TO BE INCLUDED IN ANY "OR EQUAL" PRODUCTS OFFERED THEREUNDER, INCLUDING A REQUIREMENT FOR "LOCAL OSCILLATOR STABILIZATION: A TUNABLE PHASE LOCK SYSTEM SHALL BE PROVIDED TO STABILIZE THE LOCAL OSCILLATOR.'

IN ADDITION, THE INVITATION CONTAINED THE CLAUSE REQUIRED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1206.3 (B) INFORMING BIDDERS THAT THE "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION WAS INTENDED TO BE DESCRIPTIVE BUT NOT RESTRICTIVE, AND WAS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WOULD BE SATISFACTORY AND THAT BIDS OFFERING "EQUAL" PRODUCTS WOULD BE CONSIDERED FOR AWARD IF IT WAS DETERMINED THAT SUCH PRODUCTS WERE "EQUAL" IN ALL ,MATERIAL" RESPECTS TO THE REFERENCED "BRAND NAME" PRODUCT.

THE LOW UNIT PRICE BID RECEIVED UNDER LOT I OF THE INVITATION WAS SUBMITTED BY TEKTRONIX, INC., IN THE AMOUNT OF $4,510. POLARAD'S UNIT BID OF $9,862.50 WAS SECOND LOW, AND SINGER COMPANY AND HEWLETT-PACKARD COMPANY SUBMITTED THE TWO HIGHEST UNIT BIDS AMOUNTING TO, RESPECTIVELY, $10,389 AND $10,406.97.

THE RECORD INDICATES THAT THE THREE LOW BIDS WERE DETERMINED TO BE TECHNICALLY NONRESPONSIVE TO ONE OR MORE OF THE MINIMUM ESSENTIAL REQUIREMENTS (SALIENT FEATURES) SPECIFIED IN THE INVITATION. WITH RESPECT TO YOUR BID IT WAS DETERMINED BY THE TECHNICAL EVALUATORS THAT THE POLARAD MODEL 2600 SPECTRUM ANALYZER OFFERED AS "EQUAL" TO THE REFERENCED "BRAND NAME" PRODUCT FAILED TO INCLUDE A TUNABLE PHASE LOCK SYSTEM, AS SPECIFIED. THEREFORE, ON MAY 17, 1968, A CONTRACT WAS AWARDED TO HEWLETT- PACKARD, THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER FOR THE ADVERTISED REQUIREMENTS OF LOT I OF THE INVITATION.

YOU PROTEST THE REJECTION OF POLARAD'S BID AND THE AWARD TO HEWLETT PACKARD ON THE BASIS THAT THE POLARAD MODEL 2600 SPECTRUM ANALYZER IS COMPLETELY RESPONSIVE TO THE ADVERTISED SPECIFICATIONS AND IS, IN FACT, SUPERIOR IN SEVERAL RESPECTS TO THE "BRAND NAME" PRODUCT SINCE THE MODEL 2600 IS THE LATEST STATE-OF-THE-ART SPECTRUM ANALYZER AND DOES NOT NEED A TUNABLE PHASE LOCK SYSTEM TO PROVIDE LOCAL OSCILLATOR STABILIZATION TO MEET THE PERFORMANCE REQUIREMENTS. IN ADDITION, YOU CONTEND THAT THE USE OF THE "BRAND NAME OR EQUAL" TYPE PURCHASE DESCRIPTION IS RESTRICTIVE OF THE COMPETITIVE BIDDING SYSTEM BECAUSE IT "FREEZES DESIGN, BUILDS IN MEDIOCRITY, DISCOURAGES TECHNICAL IMPROVEMENTS AND IS DELETERIOUS TO THE SMALL BUSINESSES WHICH PROVIDE AN IMPORTANT AND INDISPENSABLE SEGMENT OF OUR NATIONAL DEFENSE CAPABILITIES * * *.'

THE GOVERNING PROCUREMENT STATUTE, 10 U.S.C. 2305, PROVIDES WITH REGARD TO ADVERTISED PROCUREMENTS THAT SPECIFICATIONS AND INVITATIONS FOR BIDS SHALL PERMIT SUCH FULL AND FREE COMPETITION AS IS CONSISTENT WITH THE PROCUREMENT NECESSARY TO MEET THE REQUIREMENTS OF THE PROCURING AGENCY, AND THAT AWARD SHALL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.

CONSISTENT WITH THE CITED STATUTORY PROVISIONS, ASPR 1-1206.1 REQUIRES THAT PURCHASE DESCRIPTIONS CLEARLY AND ACCURATELY SET FORTH THE TECHNICAL REQUIREMENTS OF THE ITEM TO BE PROCURED, AND ASPR 2-301 (A) PROVIDES THAT TO BE CONSIDERED FOR AWARD, A BID MUST COMPLY IN ALL MATERIAL REQUIREMENTS WITH THE INVITATION FOR BIDS SO THAT, AS TO THE SUBSTANCE OF ANY RESULTING CONTRACTS ALL BIDDERS MAY STAND ON AN "EQUAL" FOOTING AND THE INTEGRITY OF THE FORMAL ADVERTISING SYSTEM MAY BE MAINTAINED.

WITH RESPECT TO "BRAND NAME OR EQUAL" PROCUREMENTS, ASPR 1-1206.2 (B) PROVIDES THAT SUCH PURCHASE DESCRIPTIONS SHALL SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCTS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT, AND ASPR 1-1206.4 PROVIDES THAT BIDS OFFERING PRODUCTS WHICH DIFFER FROM THE REFERENCED BRAND SHALL BE CONSIDERED FOR AWARD WHERE THE CONTRACTING OFFICER DETERMINES IN ACCORDANCE WITH THE TERMS OF THE CLAUSE IN ASPR 1-1206.3 THAT THE OFFERED PRODUCTS ARE EQUAL IN ALL MATERIAL RESPECTS TO THE PRODUCTS REFERENCED AND THAT BIDS SHALL NOT BE REJECTED BECAUSE OF "MINOR DIFFERENCES IN DESIGN, CONSTRUCTION, OR FEATURES WHICH DO NOT AFFECT THE SUITABILITY OF THE PRODUCTS FOR THEIR INTENDED USE.' HOWEVER, WHERE, AS HERE, THE CONTRACTING AGENCY, IN A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION, GOES BEYOND THE MAKE AND MODEL OF THE BRAND NAME AND SPECIFIES PARTICULAR DESIGN FEATURES, WE HAVE HELD THAT SUCH FEATURES MUST BE PRESUMED TO HAVE BEEN REGARDED AS MATERIAL AND ESSENTIAL TO THE NEEDS OF THE GOVERNMENT, AT LEAST AT THE TIME THE SPECIFICATIONS WERE DRAWN AND BIDS SOLICITED, AND THEREFORE A PRODUCT WHICH DOES NOT CONFORM TO THE PARTICULAR DESIGN FEATURES SPECIFIED IS NOT "EQUAL IN ALL MATERIAL RESPECTS" TO THE REFERENCED BRAND NAME PRODUCT, NOTWITHSTANDING IT MIGHT BE FOUND SUITABLE FOR THE INTENDED USE.

AS TO YOUR CONTENTION THAT "BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS ARE RESTRICTIVE OF COMPETITION, WE NOTED IN 38 COMP. GEN. 380 THAT ALTHOUGH THE PRACTICE SHOULD BE AVOIDED, IN THOSE SITUATIONS WHERE IT IS NOT POSSIBLE TO STATE DETAILED SPECIFICATIONS TO DESCRIBE THE PRODUCT WHICH WILL MEET THE MINIMUM REQUIREMENTS OF THE GOVERNMENT AND WHERE THERE IS IN EXISTENCE A COMMERCIAL PRODUCT WHICH MEETS THE GOVERNMENT'S MINIMUM REQUIREMENTS, THE PROCUREMENT MAY BE ADVERTISED ON THE BASIS OF THE KNOWN PRODUCT QUALIFIED BY SUCH WORDS AS "SIMILAR" OR "OR EQUAL.' 5 COMP. GEN. 835; B-96279, MARCH 26, 1951. IN B 154656, NOVEMBER 9, 1964, WE STATED THAT "A BRAND NAME OR EQUAL PURCHASE DESCRIPTION IS RESORTED TO WHEN AN ADEQUATE SPECIFICATION OR MORE DETAILED DESCRIPTION CANNOT FEASIBLY BE MADE AVAILABLE IN TIME FOR THE PROCUREMENT UNDER CONSIDERATION.' IN OTHER WORDS, A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION IS NOT IN AND OF ITSELF SO RESTRICTIVE OF COMPETITION AS TO VIOLATE THE CITED RULES AND REGULATIONS REQUIRING SUCH FULL AND FREE COMPETITION AS IS NECESSARY TO MEET THE MINIMUM NEEDS OF THE AGENCY.

FOR YOUR INFORMATION WE HAVE ADVISED THE SECRETARY OF THE NAVY THAT IN FUTURE PROCUREMENTS OF THIS ITEM IF STABILIZATION OF THE LOCAL OSCILLATOR CAN BE ACCOMPLISHED THROUGH A MEANS OTHER THAN BY INCORPORATION OF A TUNABLE PHASE LOCK SYSTEM, CONSIDERATION SHOULD BE GIVEN TO SPECIFYING ONLY THE DESIRED END RESULT SO AS NOT TO EXCLUDE FROM COMPETITION, STATE- OF-THE-ART ADVANCES, AS EXEMPLIFIED IN THE POLARAD MODEL 2600 SPECTRUM ANALYZER.

UNDER THE CIRCUMSTANCES DESCRIBED ABOVE, WE ARE OF THE OPINION THAT THE REJECTION OF YOUR BID BECAUSE OF THE FAILURE OF THE MODEL 2600 TO MEET THE REQUIREMENTS OF THE SPECIFICATION WAS A PROPER EXERCISE OF PROCUREMENT RESPONSIBILITY VESTED IN THE AGENCY BY ASPR 2-301 (A) DEALING WITH THE MANDATORY REQUIREMENT THAT BIDS MUST BE RESPONSIVE IN ALL MATERIAL RESPECTS TO BE CONSIDERED FOR AWARD. ACCORDINGLY, YOUR PROTEST IS DENIED.