B-136941, NOVEMBER 4, 1958, 38 COMP. GEN. 345

B-136941, NOVEMBER 4, 1958, 38 COMP. GEN. 345

CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE - DESCRIPTIVE LITERATURE AN INVITATION FOR BIDS FOR EQUIPMENT DESCRIBED AS "BRAND NAME OR EQUAL" WHICH DOES NOT SPECIFY THE EXACT REQUIREMENTS OF THE GOVERNMENT BECAUSE OF LACK OF DETAILED SPECIFICATIONS AND CRITICAL NEED FOR EARLY DELIVERY IS NOT SUFFICIENTLY CLEAR TO PERMIT PREPARATION OF BIDS ON COMMON BASIS SO AS TO SATISFY FULL COMPETITION CONTEMPLATED BY THE STATUTES GOVERNING PUBLIC PROCUREMENT AND MUST, THEREFORE, BE REGARDED AS DEFECTIVE; IF READVERTISEMENT MUST BE MADE ON "BRAND OR EQUAL BASIS," PARTICULAR ESSENTIAL FEATURES SHOULD BE NOTED, AND WHERE MINIMUM NEEDS CAN BE MET BY A COMPONENT MATERIALLY LESS EXPENSIVE OR COMPLICATED OR EASIER TO OBTAIN IT SHOULD BE STATED. INVITATION FOR BIDS WHICH PROVIDES THAT ACCEPTANCE OF BID SHALL NOT BE CONSTRUED TO MEAN THAT ITEM DESCRIBED IN DESCRIPTIVE DATA WILL MEET CONTRACT REQUIREMENTS AND THAT IN EVENT OF ANY VARIANCE BETWEEN DESCRIPTIVE DATA SUBMITTED BY BIDDER AND SPECIFICATIONS THE LATTER WILL CONTROL IS PROPER WHERE DETAILED SPECIFICATIONS EXIST, BUT WHERE "BRAND NAME OR EQUAL" DESCRIPTION IS USED WITHOUT SPECIFICATION OF THE PRECISE REQUIREMENTS AN AWARD WOULD CREATE A DOUBT AS TO WHETHER THERE EXISTED A MEETING OF THE MINDS SUFFICIENT TO FORM BASIS OF VALID AND BINDING CONTRACT AS TO WHAT THE CONTRACTOR COULD BE REQUIRED TO FURNISH OR THE GOVERNMENT TO ACCEPT.

TO THE SECRETARY OF COMMERCE, NOVEMBER 4, 1958:

WE REFER TO A LETTER OF SEPTEMBER 2, 1958, WITH ENCLOSURES, SIGNED BY THE ASSISTANT SECRETARY ( ADMINISTRATION) AND A LETTER OF SEPTEMBER 25, 1958, SIGNED BY THE ASSISTANT ADMINISTRATOR, CIVIL AERONAUTICS ADMINISTRATION, IN RESPONSE TO OUR LETTER OF JULY 31, 1958, REQUESTING A REPORT IN CONNECTION WITH A PROTEST FILED BY THE MINNEAPOLIS 1HONEYWELL REGULATOR COMPANY AGAINST THE REJECTION OF ITS BID SUBMITTED PURSUANT TO INVITATION NO. 8-2580B1 ISSUED BY THE CIVIL AERONAUTICS ADMINISTRATION ON JUNE 5, 1958.

THE INVITATION, AS MODIFIED BY AMENDMENT ISSUED JUNE 9, 1958, CALLED FOR BIDS ON A QUANTITY OF MULTI-CHANNEL OSCILLOGRAPH RECORDERS, TO BE "MECHANICALLY AND ELECTRICALLY SIMILAR AND EQUAL TO MINNEAPOLIS 1HONEYWELL MODEL 1012-36," EXCEPT THAT CERTAIN ATTACHED DETAILED SPECIFICATIONS WERE ALSO TO BE MET. FOUR BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION, TWO OF WHICH ARE REPORTED TO HAVE BEEN CLEARLY NONRESPONSIVE, LEAVING TWO FOR CONSIDERATION, AS FOLLOWS:

CHART

BIDDER PRICE PER UNIT MINNEAPOLIS 1HONEYWELL----------------------- $12,932-$12,878.75 MIDWESTERN INSTRUMENTS---------------------- $10,243.96

NOTE: MINNEAPOLIS PRICE VARIES AS INDICATED IN ACCORDANCE WITH

QUANTITY.

IT APPEARS THAT PRIOR TO THE ISSUANCE OF THE INVITATION THE CAA TESTED TWO OSCILLOGRAPH RECORDERS: A MIDWESTERN MODEL 602 WITH SOME HASTY MODIFICATIONS, AND A MINNEAPOLIS-1HONEYWELL INSTRUMENT, SUBSTANTIALLY ITS MODEL 1012-36, BUT NOT IN ALL RESPECTS THE SAME AS IT OFFERED UNDER THAT MODEL NUMBER BY ITS BID AND DESCRIPTIVE LITERATURE. FOLLOWING THE TESTS IT WAS DETERMINED TO ADVERTISE, USING THE LANGUAGE INDICATED ABOVE.

MIDWESTERN, IN ITS BID, PROPOSED TO FURNISH INSTRUMENTS DESIGNATED AS ITS MODEL 602-CAA, WHICH, IT IS CONCEDED, HAD NEVER BEEN PRODUCED AND WAS ESSENTIALLY A "TAILORING" OF ITS MODEL 602 TO MEET THE CAA REQUIREMENTS. APPARENTLY, ON THE BASIS OF THE TESTS CONDUCTED PRIOR TO THE ISSUANCE OF THE INVITATION, IT WAS FIRST CONCLUDED THAT THE MIDWESTERN MODEL TESTED WAS NOT "SIMILAR AND EQUAL" TO THE MINNEAPOLIS PRODUCT IN SEVERAL SIGNIFICANT RESPECTS, AND SINCE NOTHING IN THE MIDWESTERN BID CLEARLY INDICATED THAT THESE DEFICIENCIES WOULD BE OVERCOME IN THE MODEL 602-CAA, THE MIDWESTERN BID WAS REJECTED AND AWARD WAS MADE TO MINNEAPOLIS- 1HONEYWELL BY TELEGRAM OF JULY 2, 1958. THIS ACTION WAS TAKEN DESPITE AN INFORMAL PROTEST ALREADY LODGED BY REPRESENTATIVES OF MIDWESTERN AGAINST REJECTION OF ITS BID. AS A RESULT OF DISCUSSION WITH MIDWESTERN, THE CAA OFFICIALS DETERMINED THAT "THE INVITATION WAS AMBIGUOUS IN THAT IT DID NOT SUFFICIENTLY EMPHASIZE SOME FEATURES OF THE MINNEAPOLIS-1HONEYWELL EQUIPMENT WHICH WERE ESSENTIAL FOR THE INTENDED USE," AND THE AWARD TO MINNEAPOLIS WAS CANCELED BY A SECOND TELEGRAM OF JULY 2. SUBSEQUENT TO THIS CANCELLATION, IT IS STATED THAT MIDWESTERN REPRESENTATIVES TOOK THE POSITION THAT THEY HAD TAKEN NO EXCEPTION TO THE INVITATION AND HAD INTENDED AND WERE PREPARED TO FURNISH EQUIPMENT INCORPORATING ALL FEATURES CONTAINED IN THE MINNEAPOLIS MODEL STIPULATED IN THE INVITATION. MIDWESTERN HAS SINCE CLARIFIED THE REFINEMENTS WHICH IT PROPOSED TO MAKE IN ITS MODEL 602-CAA TO MEET THE SPECIFICATIONS, AND THE FINAL ADMINISTRATIVE CONCLUSION IS THAT THE MIDWESTERN MODEL OFFERED WOULD MEET ALL CAA REQUIREMENTS.

THE FULL COMPETITION CONTEMPLATED BY THE STATUTES GOVERNING PUBLIC PROCUREMENT CANNOT BE ACHIEVED UNLESS INVITATIONS ARE COUCHED IN LANGUAGE SUFFICIENTLY CLEAR TO PERMIT THE PREPARATION OF BIDS ON A COMMON BASIS, AND IT IS THE DUTY OF THE ADMINISTRATIVE OFFICIALS SO TO PREPARE THEIR REQUESTS FOR BIDS AS FAIRLY TO REFLECT THE ACTUAL NEEDS TO BE MET. SEE 17 COMP. GEN. 171.

IT IS STATED IN THE LETTER OF SEPTEMBER 2, THAT THE BRAND NAME OR EQUAL DESCRIPTION WAS USED IN THIS INSTANCE BECAUSE OF THE LACK OF SPECIFICATIONS SETTING FORTH THE GOVERNMENT'S PRECISE REQUIREMENTS AND BECAUSE THE CRITICAL NEED FOR EARLY DELIVERY PRECLUDED THE PREPARATION OF SUCH SPECIFICATIONS.

BUT EVEN IF IT IS ASSUMED THAT THE TYPE OF SPECIFICATION UNDER CONSIDERATION COULD PROPERLY HAVE BEEN USED UNDER THE CIRCUMSTANCES, THERE IS ALSO FOR CONSIDERATION THE EFFECT OF ARTICLE VII OF THE INVITATION IN THE EVENT OF AN AWARD TO A BIDDER OFFERING OTHER THAN THE NAMED PRODUCT. THE ARTICLE PROVIDES THAT "THE ACCEPTANCE OF A BID SHALL NOT BE CONSTRUED TO MEAN THAT THE ITEM DESCRIBED IN THE DESCRIPTIVE DATA WILL MEET THE CONTRACT REQUIREMENT," THAT SUCH DETERMINATION WILL BE MADE AT THE TIME OF INSPECTION, AND THAT IN THE EVENT OF ANY VARIANCE BETWEEN DESCRIPTIVE DATA SUBMITTED BY A BIDDER AND THE SPECIFICATIONS, THE LATTER WILL CONTROL. THIS PROVISION WOULD GENERALLY NOT BE SUBJECT TO QUESTION IF THE EXACT NATURE OF THE ITEM TO BE FURNISHED WAS KNOWN, SUCH AS WHERE DETAILED SPECIFICATIONS EXISTED OR THE ARTICLE HAD ALREADY BEEN MANUFACTURED OR BLUEPRINTED. WHERE, HOWEVER, AS IN THIS CASE, THE SPECIFIC NATURE OF THE PRODUCT TO BE FURNISHED HAS NOT BEEN ADEQUATELY SPECIFIED, AWARD UNDER SUCH PROVISION WOULD CREATE A SERIOUS DOUBT AS TO WHETHER THERE EXISTED A MEETING OF THE MINDS BETWEEN THE PARTIES SUFFICIENT TO FORM THE BASIS OF A VALID AND BINDING CONTRACT SINCE IT WOULD BE VIRTUALLY IMPOSSIBLE TO DETERMINE EXACTLY WHAT THE CONTRACTOR COULD BE REQUIRED TO FURNISH OR THE GOVERNMENT TO ACCEPT. WE SUGGEST THAT WHERE BRAND NAME "OR EQUAL" SPECIFICATIONS ARE USED IN THE FUTURE, ANY BIDDER OFFERING OTHER THAN THE NAMED BRAND AND MODEL SHOULD BE REQUIRED TO SUPPLY WITH HIS BID AN EXACT AND DETAILED DESCRIPTION OF WHAT HE PROPOSES TO FURNISH AND THAT SUCH DESCRIPTION SHOULD BECOME PART OF THE CONTRACT. SEE IN THIS CONNECTION 36 COMP. GEN. 376.

FOR THE REASONS STATED ABOVE, WE MUST REGARD THE INVITATION HERE IN QUESTION AS DEFECTIVE. IF IT IS DETERMINED THAT A READVERTISEMENT MUST BE MADE ON A BRAND NAME "OR EQUAL" BASIS, THE PARTICULAR FEATURES OF THE REFERENCED ARTICLE DEEMED ESSENTIAL SHOULD BE NOTED, AND ANY INSTANCE WHERE THE MINIMUM NEEDS OF THE GOVERNMENT CAN BE MET BY A COMPONENT MATERIALLY LESS EXPENSIVE OR COMPLICATED OR EASIER TO OBTAIN SHOULD BE POINTED OUT IN THE INVITATION.

PERTINENT PAPERS FURNISHED IN CONNECTION WITH REGARD TO THE MATTER ARE RETURNED AS REQUESTED.