B-143084, JUN. 22, 1960

B-143084: Jun 22, 1960

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THE OIL BURNERS TO BE PROCURED ARE DESCRIBED IN THE INVITATION AS FOLLOWS: "BURNER. - - THE BLANKS WERE NOT FILLED IN IN THE LOW BID SUBMITTED BY THE VULCAN-HART CORPORATION. ON PAGE 3 OF THE SCHEDULE IS THE FOLLOWING PROVISION: "BRAND NAME OR EQUAL "AS USED IN THIS CLAUSE. "CERTAIN SUPPLIES CALLED FOR BY THIS INVITATION FOR BIDS ARE IDENTIFIED IN THE SCHEDULE BY A BRAND NAME "OR EQUAL" DESCRIPTION. THIS IDENTIFICATION IS DESCRIPTIVE RATHER THAN RESTRICTIVE. BIDS OFFERING "OR EQUAL" SUPPLIES WILL BE CONSIDERED FOR AWARD IF SUCH SUPPLIES ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL TO THE BRAND NAMED SUPPLIES IN ALL MATERIAL RESPECTS. "BIDDERS MUST CLEARLY INDICATE WHETHER THEIR BIDS ARE BASED ON A BRAND NAME ITEM OR ON AN .

B-143084, JUN. 22, 1960

TO THE SECRETARY OF THE ARMY:

BY LETTER OF JUNE 2, 1960, SIGNED BY THE CHIEF, CONTRACTS BRANCH, PROCUREMENT DIVISION, OUR DETERMINATION HAS BEEN REQUESTED AS TO THE ACCEPTABILITY OF THE LOW BID SUBMITTED BY THE VULCAN-HART CORPORATION IN RESPONSE TO INVITATION FOR BIDS NO. QM-33-031-60-541 ISSUED MARCH 8, 1960, BY THE QUARTERMASTER PURCHASING AGENCY FOR THE PURCHASE OF 22 OIL BURNERS.

THE OIL BURNERS TO BE PROCURED ARE DESCRIBED IN THE INVITATION AS FOLLOWS:

"BURNER, OIL, TYPE RCR, SIZE 00, 230 VOLT, AC, 60 CYCLE, 1 PHASE, 1/12 H.P., RAY OIL BURNER MODEL G-150, PART NO. G-150-230V-60-1, OR EQUAL. FSN 4530-J16-0006 FIA 754"

DIRECTLY BELOW THE DESCRIPTION APPEARS THIS STATEMENT TO BE COMPLETED BY THE BIDDER:

BIDDING ON:

MANUFACTURER'S NAME ----------- BRAND -------------- NO. ----------- -

THE BLANKS WERE NOT FILLED IN IN THE LOW BID SUBMITTED BY THE VULCAN-HART CORPORATION.

ON PAGE 3 OF THE SCHEDULE IS THE FOLLOWING PROVISION:

"BRAND NAME OR EQUAL

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

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

"BIDDERS MUST CLEARLY INDICATE WHETHER THEIR BIDS ARE BASED ON A BRAND NAME ITEM OR ON AN ,EQUAL" ITEM BY FURNISHING THE INFORMATION REQUIRED BELOW. IF THE BIDDER 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 WILL BE REJECTED.

"/1) IF THE BIDDER PROPOSES TO FURNISH A BRAND NAME ITEM SPECIFIED IN THIS INVITATION FOR BIDS, SUCH BRAND NAME SHALL BE INSERTED IN THE SPACE PROVIDED AFTER EACH ITEM SO DESCRIBED.

"/2) IF THE BIDDER PROPOSES TO FURNISH AN "OR EQUAL" ITEM, THE BRAND NAME OF THE ITEM PROPOSED TO BE FURNISHED, IF ANY, SHALL BE INSERTED IN THE SPACE PROVIDED AFTER EACH ITEM SO DESCRIBED, AND IN ADDITION, THE FOLLOWING DESCRIPTIVE DATA MUST BE FURNISHED:

"A FULL DESCRIPTION THEREOF, INCLUDING PERTINENT PHYSICAL, MECHANICAL, ELECTRICAL, AND CHEMICAL DETAILS AND A STATEMENT EXPLAINING THE DIFFERENCE BETWEEN THE ITEM BEING OFFERED AND ANY ONE OF THE CORRESPONDING BRAND NAME ITEMS CALLED FOR BY THIS INVITATION FOR BIDS. (THIS INFORMATION MAY BE SUPPLIED BELOW OR BY SEPARATE ATTACHMENTS TO THE BID.) (ASPR 1-305.6 (C) (2).)"

THE ONLY PRODUCT IDENTIFICATION IN THE LOW BID IS THE INFORMATION ON PAGE 4 OF THE SCHEDULE THAT THE SUPPLIES WOULD BE MANUFACTURED BY THE RAY OIL BURNER COMPANY AT THEIR PLANT AT 1301 SAN JOSE AVENUE, SAN FRANCISCO, CALIFORNIA. IN THIS REGARD, THE REPORT OF THE CONTRACTING OFFICER INDICATES THAT THE RAY OIL BURNER COMPANY MANUFACTURES SOME 50TYPES OF BURNERS, ONLY ONE OF WHICH WILL MEET THE SPECIFICATIONS.

THE CLEAR LANGUAGE OF THE INVITATION REQUIRES REJECTION OF THE BID FOR FAILURE TO COMPLETE THE BLANKS DIRECTLY UNDER THE ITEM DESCRIPTION. THE BID SUBMITTED IN RESPONSE TO AN INVITATION IS AN OFFER WHICH RIPENS INTO A CONTRACT UPON ACCEPTANCE BY THE CONTRACTING AGENCY. THE PURPOSE OF REQUIRING THE BIDDERS TO FURNISH DESCRIPTIONS OF THE ITEMS PROPOSED IS TO ENABLE THE CONTRACTING OFFICER TO ASCERTAIN EXACTLY WHAT IS BEING OFFERED AND WHETHER IT MEETS THE NEEDS OF THE GOVERNMENT AS SPECIFIED IN THE INVITATION. IN THIS CASE, THERE IS NOTHING TO INDICATE WHAT THE LOW BIDDER IS OFFERING EXCEPT THAT IT IS A PRODUCT OF THE RAY OIL BURNER COMPANY; HOWEVER, AS NOTED ABOVE, ONLY ONE OF THE MORE THAN 50 TYPES OF BURNERS PRODUCED BY THAT FIRM WILL MEET THE REQUIREMENTS OF THE INVITATION.

IT MAY BE ARGUED THAT THE BIDDER, NOTWITHSTANDING HIS FAILURE TO IDENTIFY THE ITEM OFFERED, WOULD, UPON ACCEPTANCE OF HIS BID, BE OBLIGATED TO FURNISH THE ITEM DESCRIBED OR ITS EQUAL. UNFORTUNATELY, WHAT IS EQUAL IS IN SUBSTANTIAL MEASURE A MATTER FOR SUBJECTIVE DETERMINATION UPON WHICH DIFFERENCES MAY WELL ARISE UNLESS IT IS DEFINED IN DETAIL BEFORE AWARD OR THE DECISION IS TURNED OVER BY THE TERMS OF THE CONTRACT TO A THIRD PARTY SUCH AS AN ARCHITECT. SEE 38 COMP. GEN. 345. NEITHER OF THE LATTER SITUATIONS WOULD APPLY IN THIS CASE.

IT MAY ALSO BE ARGUED THAT THE EXACT ITEM OFFERED MAY BE ESTABLISHED BY REQUESTING CLARIFICATION OF THE BID OR BY SPECIFYING THE NAMED BRAND AND MODEL IN THE ACCEPTANCE. THE FIRST OF THESE ALTERNATIVES WOULD GIVE THE BIDDER THE OPTION TO DECIDE AFTER OPENING WHETHER TO ACCEPT AWARD AND IS THEREFORE OBJECTIONABLE (SEE 38 COMP. GEN. 532); THE SECOND WOULD NOT CREATE A VALID CONTRACT SINCE THE ACCEPTANCE WOULD, IN EFFECT, QUALIFY THE TERMS OF THE OFFER. SEE 1 WILLISTON ON CONTRACTS (THIRD EDITION) SECTION 73.

WE ARE ACCORDINGLY IN AGREEMENT WITH THE VIEW OF THE CONTRACTING OFFICER THAT THE LOW BID IS NOT RESPONSIVE BECAUSE IT FAILED TO COMPLY WITH A NECESSARY AND MATERIAL REQUIREMENT OF THE INVITATION AND, THEREFORE, SHOULD BE REJECTED AS EXPRESSLY PROVIDED BY THE INVITATION.