B-142384, APR. 27, 1960

B-142384: Apr 27, 1960

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TO DAYTON AVIATION RADIO AND EQUIPMENT CORP.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 24. THE TRANSMITTERS WERE DESCRIBED IN THE INVITATION AS FOLLOWS: "TRANSMITTER. THE RECEIVERS WERE DESCRIBED AS FOLLOWS: "RECEIVER. THE CONTROL PANELS WERE DESCRIBED AS FOLLOWS: "CONTROL PANEL. THE DUAL SHOCK MOUNTS WERE DESCRIBED AS FOLLOWS: "DUAL SHOCK MOUNT. "CERTAIN SUPPLIES CALLED FOR BY THIS SOLICITATION ARE IDENTIFIED IN THE SCHEDULE BY A BRAND NAME "OR EQUAL" DESCRIPTION. THIS IDENTIFICATION IS DESCRIPTIVE RATHER THAN RESTRICTIVE. BIDS (PROPOSALS) OFFERING "OR EQUAL" SUPPLIES WILL BE CONSIDERED FOR AWARD (ACCEPTANCE) IF SUCH SUPPLIES ARE CLEARLY IDENTIFIED IN THE BIDS (PROPOSALS) AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL TO THE BRAND NAMED SUPPLIES IN ALL MATERIAL RESPECTS.

B-142384, APR. 27, 1960

TO DAYTON AVIATION RADIO AND EQUIPMENT CORP.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 24, 1960, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION NO. IFB-600-1273-60 ISSUED BY THE U.S. NAVY PURCHASING OFFICE, WASHINGTON, D.C.

THE INVITATION, DATED JANUARY 26, 1960 REQUESTED BIDS--- TO BE OPENED FEBRUARY 15, 1960--- FOR FURNISHING 56 ITEMS OF COMMERCIAL VHF COMMUNICATION EQUIPMENT, CONSISTING OF TRANSMITTERS, RECEIVERS, CONTROL PANELS AND DUAL SHOCK MOUNTS. THE TRANSMITTERS WERE DESCRIBED IN THE INVITATION AS FOLLOWS:

"TRANSMITTER, BENDIX TYPE TA-21A, OR COLLINS TYPE 17L-7, OR EQUAL.'

THE RECEIVERS WERE DESCRIBED AS FOLLOWS:

"RECEIVER, BENDIX TYPE RA-21A, OR COLLINS TYPE 51X-2 WITH CRYSTAL COMPLEMENT TO 135.95 MC OR EQUAL.'

THE CONTROL PANELS WERE DESCRIBED AS FOLLOWS:

"CONTROL PANEL, BENDIX TYPE CNA-21C-X, OR EQUAL.'

THE DUAL SHOCK MOUNTS WERE DESCRIBED AS FOLLOWS:

"DUAL SHOCK MOUNT, BENDIX TYPE MTA-21D, COLLINS TYPE 390E-2, OR EQUAL.'

UNDER THE HEADING "BRAND NAME OR EQUAL," THE INVITATION PROVIDED:

"AS USED IN THIS CLAUSE, THE TERM "BRAND NAME" INCLUDES IDENTIFICATION OF SUPPLIES BY MAKE AND MODEL.

"CERTAIN SUPPLIES CALLED FOR BY THIS SOLICITATION ARE IDENTIFIED IN THE SCHEDULE BY A BRAND NAME "OR EQUAL" DESCRIPTION. THIS IDENTIFICATION IS DESCRIPTIVE RATHER THAN RESTRICTIVE. BIDS (PROPOSALS) OFFERING "OR EQUAL" SUPPLIES WILL BE CONSIDERED FOR AWARD (ACCEPTANCE) IF SUCH SUPPLIES ARE CLEARLY IDENTIFIED IN THE BIDS (PROPOSALS) AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL TO THE BRAND NAMED SUPPLIES IN ALL MATERIAL RESPECTS.

"BIDDERS (OFFERORS) MUST CLEARLY INDICATE WHETHER THEIR BIDS (PROPOSALS) ARE BASED ON A BRAND NAME ITEM OR ON AN "OR EQUAL" ITEM BY FURNISHING THE INFORMATION REQUIRED BELOW: IF THE BIDDER (OFFEROR) DOES NOT IDENTIFY THE BRAND NAME OR DESCRIBE IN FULL THE "OR EQUAL"ITEM WHICH IS OFFERED, AS PROVIDED IN (1) AND (2) BELOW, THE BID (PROPOSAL) WILL BE REJECTED.

"/1) IF THE BIDDERS (OFFERORS) PROPOSE TO FURNISH A BRAND NAME ITEM SPECIFIED IN THIS SOLICITATION, THE ITEM SHOULD BE IDENTIFIED BY BRAND NAME IN THE FOLLOWING SPACE. BRAND NAME: ------------------.

"/2)IF THE BIDDER (OFFEROR) PROPOSES TO FURNISH AN "OR EQUAL" ITEM, THE FOLLOWING DESCRIPTIVE DATA MUST BE FURNISHED:

"BRAND NAME OF THE ITEM PROPOSED TO BE FURNISHED, IF ANY, AND FULL DESCRIPTION THEREOF, INCLUDING PERTINENT PHYSICAL, MECHANICAL,ELECTRICAL, AND CHEMICAL DETAILS AND A STATEMENT EXPLAINING THE DIFFERENCES BETWEEN THE ITEM BEING OFFERED AND ANY ONE OF THE CORRESPONDING BRAND NAME ITEMS CALLED FOR BY THIS SOLICITATION.

"/THIS INFORMATION MAY BE SUPPLIED BY SEPARATE ATTACHMENTS TO THE BID.)

IN RESPONSE TO THE INVITATION, YOU SUBMITTED THE LOW BID IN THE AMOUNT OF $1,178,473. YOU PROPOSED TO FURNISH BENDIX TYPE TA-21A TRANSMITTERS AS DESCRIBED IN THE INVITATION. HOWEVER, YOU PROPOSED TO FURNISH DARE DR-560 RECEIVERS, DARE CD-560, CD-360 OR CDC-560 CONTROL PANELS AND DARE DDM-560 SHOCK MOUNTS INSTEAD OF THE BENDIX OR COLLINS MODELS DESCRIBED IN THE INVITATION. WITH YOUR BID YOU SUBMITTED A LETTER DATED FEBRUARY 11, 1960, FURNISHING SOMEWHAT DETAILED INFORMATION AS TO THE EQUIPMENT WHICH YOU PROPOSED TO FURNISH.

IT IS REPORTED THAT YOUR BID WAS FORWARDED TO THE BUREAU OF WEAPONS FOR TECHNICAL EVALUATION. THE CONCLUSION IS STATED BY THE CONTRACTING OFFICER THAT YOU DID NOT "DESCRIBE IN FULL" THE "OR EQUAL" ITEMS OFFERED NOR FURNISH "A STATEMENT EXPLAINING THE DIFFERENCES" BETWEEN THE ITEMS OFFERED AND THE BRAND NAME ITEMS MENTIONED IN THE INVITATION, WITHIN THE MEANING OF THE ABOVE-QUOTED PROVISIONS RELATIVE TO "BRAND NAME OR EQUAL.' REPORTS ALSO THAT SUCH COMPONENTS AS WERE ADEQUATELY DESCRIBED IN YOUR BID ARE NOT, IN FACT, EQUAL TO THE BRAND NAME ITEMS MENTIONED IN THE INVITATION.

FOR EXAMPLE, IT IS REPORTED THAT THE BENDIX RECEIVER AND BENDIX TRANSMITTER COULD NOT BE USED IN THE MOUNTING WHICH YOU PROPOSED TO FURNISH. IT IS REPORTED ALSO THAT THE DARE DR-560 RECEIVER IS NOT DESIRABLE FOR NAVY AIRCRAFT USE, AS IT WOULD REQUIRE A CHANGE IN WIRING FOR INSTALLATION AND IT WOULD BE DIFFICULT OR IMPOSSIBLE TO USE THIS RECEIVER IN CONNECTION WITH THE NAVY VHF GROUND TRANSMITTERS. IT IS REPORTED FURTHER THAT THE CONTROL PANELS OFFERED IN YOUR BID ARE NOT ELECTRICALLY OR MECHANICALLY EQUAL TO THE BRAND NAME UNITS MENTIONED IN THE INVITATION AND WILL NOT FIT IN MILITARY AIRCRAFT; AND THAT THE DCD-560 CONTROL BOX OFFERED BY YOU HAS NOT BEEN DEVELOPED NOR PRODUCED. AS TO THE DCM-560 SHOCK MOUNT OFFERED BY YOU, IT IS STATED THAT ALTHOUGH IT WILL ACCOMMODATE THE BENDIX TRANSMITTER AND THE DARE RECEIVER, IT WILL NOT ACCOMMODATE THE BENDIX TRANSMITTER AND THE BENDIX RECEIVER AND THEREFORE IS NOT FULLY INTERCHANGEABLE.

WITH RESPECT TO YOUR ALTERNATE PROPOSAL, THE CONTRACTING OFFICER STATES:

"DARE, INCORPORATED OFFERED, AS AN ALTERNATE BID, A COMPLETE UNIT CONSISTING OF THE COMPONENTS LISTED ABOVE EXCEPT THAT THE COMPANY PROPOSES TO SUBSTITUTE THE DTX-360 TRANSMITTER AND POWER SUPPLY FOR THE BENDIX TRANSMITTER AND POWER SUPPLY. THE DARE COMPONENTS LISTED IN THE ORIGINAL BID WERE NOT CONSIDERED "OR EQUAL.' FURTHER, THE DTX 360 TRANSMITTER AND POWER SUPPLY IS NOT CONSIDERED ACCEPTABLE SINCE IT HAS NOT BEEN DEVELOPED, PRODUCED, OR TYPE TESTED IN ACCORDANCE WITH THE REQUIREMENTS OF THE INVITATION FOR BID.'

IT IS WELL ESTABLISHED THAT THE DRAFTING OF SPECIFICATIONS DESIGNED TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT AND THE DETERMINATION AS TO WHETHER THE BIDS RECEIVED ARE RESPONSIVE TO SUCH SPECIFICATIONS ARE PRIMARILY A RESPONSIBILITY OF THE ADMINISTRATIVE OFFICE REQUIRING THE MATERIALS, EQUIPMENT AND SERVICES. 21 COMP. GEN. 1132, 1136. IN THE INSTANT MATTER, IT APPEARS THAT THE EQUIPMENT OFFERED BY YOU DID NOT MEET THE REQUIREMENTS OF THE INVITATION, WHICH REQUIREMENTS MAY BE REGARDED AS REASONABLE AND PROPER.

THE CONTENTIONS SET FORTH IN YOUR LETTER OF MARCH 24, 1960, AND THE DECISIONS REFERRED TO THEREIN, DO NOT REQUIRE ANY DIFFERENT CONCLUSION. INVITATIONS BASED ON A BRAND NAME OR EQUAL ARE NOT UNUSUAL AND HAVE BEEN APPROVED BY OUR OFFICE AND THE COURTS AS NOT BEING UNDULY RESTRICTIVE. THE INSTANT MATTER, THE INVITATION PERMITS ACCEPTANCE OF A BID OFFERING "OR EQUAL" EQUIPMENT IF IT IS "DETERMINED BY THE GOVERNMENT TO BE EQUAL TO THE BRAND NAMED SUPPLIES IN ALL MATERIAL RESPECTS.' IT HAS BEEN DETERMINED BY THE ADMINISTRATIVE OFFICE THAT IN SEVERAL RESPECTS THE EQUIPMENT OFFERED BY YOU IS NOT EQUAL TO THE BRAND NAME EQUIPMENT MENTIONED IN THE INVITATION. THE FACT THAT YOU SUBMITTED AN ALTERNATIVE PROPOSAL HAS NOT BEEN REGARDED AS AFFECTING THE QUESTION OF THE RESPONSIVENESS OF YOUR BID BUT THE ADMINISTRATIVE OFFICE REPORTS ITS CONCLUSION THAT NEITHER YOUR PRIMARY BID NOR YOUR ALTERNATE BID IS RESPONSIVE. MOREOVER, THE FACT THAT SOME OF YOUR UNITS HAVE NOT BEEN FULLY DEVELOPED AND TESTED HAS NOT NECESSARILY BEEN CONSIDERED AS A BASIS FOR DETERMINING YOUR BID TO BE NONRESPONSIVE, SINCE THE OTHER REASONS STATED BY THE ADMINISTRATIVE OFFICE HAVE BEEN REGARDED AS SUFFICIENT FOR SUCH DETERMINATION.

IN VIEW OF THE FOREGOING, THERE APPEARS NO PROPER BASIS FOR A DECISION BY THIS OFFICE THAT YOUR BID WAS RESPONSIVE AND FOR CONSIDERATION IN MAKING AN AWARD.