B-153678, OCT. 21, 1964

B-153678, OCT. 21, 1964

TO HYPERION INDUSTRIES, INC.:

IN YOUR LETTER OF JUNE 26, 1964, YOU REQUESTED RECONSIDERATION OF OUR DECISION OF JUNE 24, 1964, WHICH UPHELD AN ADMINISTRATIVE DETERMINATION TO AWARD A CONTRACT FOR 75 POWER SUPPLY UNITS TO HEWLETT PACKARD COMPANY.

THE RECORD SHOWS THAT THE SUBJECT INVITATION FOR BIDS (IFB), NO.

AMC/E/-36-039-64-152-A3, ISSUED BY THE U.S. ARMY ELECTRONICS MATERIEL AGENCY, PHILADELPHIA, PENNSYLVANIA, HAD SOLICITED BIDS ON HEWLETT PACKARD UNITS,"OR EQUAL.' YOUR BID OFFERED A PRODUCT MANUFACTURED BY YOUR OWN COMPANY, BUT DID NOT INCLUDE, AS REQUIRED BY THE IFB, ENOUGH INFORMATION TO ESTABLISH ITS EQUALITY IN ALL MATERIAL RESPECTS WITH THE HEWLETT- PACKARD ITEM. THEREFORE, THE CONTRACTING OFFICER CONCLUDED THAT YOUR BID WAS NOT RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION.

IN RESPONSE TO AN ADMINISTRATIVE STATEMENT CITED IN OUR DECISION, YOU ALLEGE THAT YOUR REPRESENTATIVE THOROUGHLY DISCUSSED WITH UNIDENTIFIED GOVERNMENT PERSONNEL THE FACT THAT YOUR UNIT HAD A RIPPLE VOLTAGE OF 1,000 MICROVOLTS INSTEAD OF THE 150 MICROVOLTS ATTAINED BY THE HEWLETT-PACKARD UNIT, AND THAT "IT WAS AGREED AT THAT TIME THAT THIS WAS A SECONDARY CHARACTERISTIC AS FAR AS THE APPLICATION WAS CONCERNED.' THE ADMINISTRATIVE AGENCY DOES NOT CONFIRM ANY DISCUSSION TO THE EFFECT THAT LOW RIPPLE VOLTAGE WAS UNIMPORTANT, AND THE RECORD INDICATES THAT IT WAS CONSIDERED A SIGNIFICANT FACTOR OF THE HEWLETT PACKARD UNIT. HOWEVER, A REVIEW OF THE ADMINISTRATIVE RECORD DOES NOT DISCLOSE A FINDING THAT THE DIFFERENCE IN RIPPLE VOLTAGE BETWEEN YOUR UNIT AND THE HEWLETT-PACKARD UNIT IS SUCH A MATERIAL DIFFERENCE AS TO WARRANT REJECTION OF YOUR BID, AND IT DOES NOT APPEAR THAT THE CONTRACTING OFFICER INCLUDED THIS DEFICIENCY AMONG THE REASONS ORIGINALLY GIVEN FOR THE REJECTION, WHICH WERE THAT YOUR BID DID NOT FURNISH SUFFICIENT DATA TO AFFIRMATIVELY DETERMINE THE EQUIVALENCE OF YOUR ITEM TO THE SPECIFIED BRAND NAME WITH RESPECT TO FRONT PANEL METER AND CURRENT LIMIT TOLERANCES, AND TO TRANSISTORIZATION.

THE PRINCIPAL BASIS OF YOUR COMPLAINT IS THAT THE PROCURING AGENCY HAD NO BASIS OR JUSTIFICATION FOR CONCLUDING THAT YOUR INSTRUMENT WAS NOT TRANSISTORIZED. YOU PROFESS TO BE AMAZED THAT YOUR PRODUCT, OR "THIS PARTICULAR ITEM," COULD HAVE BEEN CONSTRUED BY THE WILDEST STRETCH OF THE IMAGINATION AS A "TUBE SUPPLY.' THE RECORD SHOWS, HOWEVER, THAT THE CONTRACTING OFFICER AND HIS EVALUATION ENGINEER WERE CONCERNED ABOUT THIS MATTER, AND, FAILING TO FIND THE INFORMATION IN YOUR LITERATURE, MADE REASONABLE EFFORTS TO ESTABLISH FROM AVAILABLE PUBLICATIONS WHETHER YOUR UNIT WAS TRANSISTORIZED. THEY CONSULTED A DIRECTORY OF ELECTRONIC EQUIPMENT PUBLISHED BY THE TECHNICAL INFORMATION CORPORATION, A FIRM WHICH SPECIALIZES IN COMPILING AND PUBLISHING TECHNICAL INFORMATION ON VARIOUS ELECTRONIC PRODUCTS. THIS DIRECTORY LISTED 13 DIFFERENT POWER SUPPLIES OF THE TYPE IN QUESTION. THE BRAND NAME ITEM, AS WELL AS EIGHT OTHERS, WERE IDENTIFIED AS BEING TRANSISTORIZED. THE HYPERION ITEM AND THREE OTHER LISTED MODELS BORE NO SUCH NOTATION. THIS LITERATURE ALSO REVEALS THAT ONE FIRM, THE AVTRON COMPANY OF CLEVELAND, OHIO, OFFERS BOTH A TRANSISTORIZED AND A NON-TRANSISTORIZED POWER SUPPLY, AND ADDITIONAL INFORMATION AT THE PROCURING ACTIVITY SHOWS THAT A TUBE TYPE VERSION OF A SIMILAR POWER SUPPLY IS OFFERED BY KEPCO, INC., OF LONG ISLAND, NEW YORK.

YOU IMPLY THAT "A REALISTIC INVESTIGATION OF THIS PARTICULAR PROCUREMENT BY TECHNICAL PERSONNEL WHO UNDERSTAND THE MEANING OF THE LITERATURE INVOLVED RATHER THAN BY PERSONNEL WHO ARE MERELY COMPARING TWO BRIEFS," WOULD SHOW THAT THE FEATURES OF THE HYPERION MODEL LISTED IN ITS DATA SHEET ARE NOT COMPATIBLE WITH A TUBE-TYPE UNIT. THIS OFFICE HAS PREVIOUSLY ACKNOWLEDGED THAT IT HAS NEITHER AN ENGINEERING STAFF NOR A TESTING LABORATORY TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATIONS. SEE B-139830, DATED AUGUST 19, 1959. OF NECESSITY, WE HAVE ESTABLISHED THE RULE THAT IN FACTUAL DISPUTES INVOLVING TECHNICAL REQUIREMENTS OF SPECIFICATIONS, WE SHALL ORDINARILY ACCEPT THE POSITION TAKEN BY THE ADMINISTRATIVE AGENCY, WHICH PRESUMABLY EMPLOYS PERSONNEL WHO, AS YOU SAY,"UNDERSTAND THE MEANING OF THE LITERATURE INVOLVED.' SEE B-143389, DATED AUGUST 26, 1960, CITING 17 COMP. GEN. 554, 557. THEREFORE, WE DO NOT ACCEDE TO SUGGESTIONS THAT SUCH DISPUTES BE SETTLED BY KNOWLEDGEABLE THIRD PARTIES. SEE B-149183, DATED AUGUST 24, 1962.

WE HAVE FOUND THAT BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS ARE CONTINUING SOURCES OF BID PROTESTS, AND WE HAVE THEREFORE STATED THAT USE OF SUCH DESCRIPTIONS SHOULD BE AVOIDED WHEREVER POSSIBLE. 38 COMP. GEN. 380. PARAGRAPH 1-1206.1 (A) OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) ALSO RECOGNIZES THAT THIS DESCRIPTION TECHNIQUE IS PREGNANT WITH DIFFICULTIES, AND 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, WE RECOGNIZE THAT ITS USE MUST BE RESORTED TO ON OCCASION, AND WHEN IT IS THE PROCURING AGENCY HAS THE PRIMARY RESPONSIBILITY TO DETERMINE WHETHER THE EQUIVALENCE OF GIVEN PRODUCTS IS ESTABLISHED, JUST AS IT HAS TO DETERMINE THE RESPONSIVENESS OF BIDS TO TECHNICAL REQUIREMENTS OF SPECIFICATIONS EMPLOYED IN OTHER TYPES OF PROCUREMENTS. SEE CASES CITED ABOVE. EITHER CASE, WE MAY NOT INTERFERE EXCEPT WHERE IT IS CLEARLY ESTABLISHED THAT CONTRACTING OFFICIALS OF THE GOVERNMENT HAVE ACTED ARBITRARILY OR IN DISREGARD OF APPLICABLE STATUTES OR REGULATIONS.

WHILE THE PROCURING ACTIVITY SHOULD INCLUDE IN AN INVITATION FOR BIDS A SUFFICIENTLY ADEQUATE DESCRIPTION OF THE ARTICLES DESIRED TO ENABLE BIDDERS TO SUBMIT OFFERS WITH REASONABLE UNDERSTANDING OF THE BASIS ON WHICH ITS ACCEPTABILITY WILL BE DETERMINED, IT IS EQUALLY THE OBLIGATION OR BURDEN OF BIDDERS ON A "BRAND-NAME OR EQUAL" SPECIFICATION TO SUBMIT WITH THEIR BIDS A SUFFICIENTLY COMPLETE DESCRIPTION OR STATEMENT OF ALL MATERIAL CHARACTERISTICS OF THE ARTICLE OFFERED TO ENABLE THE PROCURING OFFICIALS TO DETERMINE WHETHER OR NOT IT MEETS THE STATED REQUIREMENTS. IN THIS INSTANCE IT DOES NOT APPEAR THAT THE MATERIAL FURNISHED BY YOU WAS ADEQUATE FOR SUCH PURPOSE, AND IT WAS NEITHER THE DUTY NOR THE RIGHT OF THE PROCURING AGENCY TO REQUEST OR PERMIT THE FURNISHING OF ANY ADDITIONAL INFORMATION BY YOU.

IN THE CIRCUMSTANCES, WE DO NOT FEEL THAT WE WOULD BE JUSTIFIED IN CONCLUDING THAT THE REJECTION OF YOUR BID WAS ARBITRARY OR THAT SUCH REJECTION WAS NOT BASED ON ANY REASONABLE GROUNDS.