B-143171, AUG. 9, 1960

B-143171: Aug 9, 1960

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MARSTON: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 9. THE SUBJECT INVITATION IS A RESOLICITATION OF BIDS BECAUSE ALL BIDS (INCLUDING ONE SUBMITTED BY YOUR COMPANY) ON A PREVIOUS INVITATION HAD TO BE REJECTED AS NONRESPONSIVE FOR FAILURE TO COMPLY WITH A "BRAND NAME OR EQUAL" PROVISION. "BIDDERS ARE CAUTIONED TO READ CAREFULLY PROVISION NO. 1 TITLED. "THE FOLLOWING IS HEREBY ADDED TO AND MADE A PART OF NOTE NO. 3. "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.

B-143171, AUG. 9, 1960

TO MR. ROBERT S. MARSTON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 9, 1960, PROTESTING THE AWARD OF A CONTRACT FOR OSCILLOSCOPES TO A HIGHER BIDDER UNDER INVITATION SC-36-039-60-404-A3.

THE SUBJECT INVITATION IS A RESOLICITATION OF BIDS BECAUSE ALL BIDS (INCLUDING ONE SUBMITTED BY YOUR COMPANY) ON A PREVIOUS INVITATION HAD TO BE REJECTED AS NONRESPONSIVE FOR FAILURE TO COMPLY WITH A "BRAND NAME OR EQUAL" PROVISION. THE RESOLICITATION INCLUDES THE SAME "BRAND NAME OR EQUAL" PROVISION CONTAINED IN THE ORIGINAL SOLICITATION FOR BIDS. BUT TO FOCUS MORE ATTENTION AND TO PLACE GREATER EMPHASIS UPON THE PROVISION, NOTE 3 OF THE RESOLICITATION ADVISES,"BIDDERS ARE CAUTIONED TO READ CAREFULLY PROVISION NO. 1 TITLED, BRAND NAME OR EQUAL," AND AMENDMENT NO. 1 OF THE INVITATION STATES,"THE FOLLOWING IS HEREBY ADDED TO AND MADE A PART OF NOTE NO. 3, PAGE 12 OF SUBJECT IFB: "WITH PARTICULAR REFERENCE TO SUB-SUB-ITEMS (1-1-8) THRU (1-1-11); (1 1-16) THRU (1-1-19) AND SUB-ITEMS (1-8) THRU (1-10).'" UNDER THE HEADING "BRAND NAME OR EQUAL" THE INVITATION PROVIDES:

"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 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. A BRAND NAME ITEM AS MANUFACTURED BY OTHER THAN THE INDICATED MANUFACTURER IS CONSIDERED AN "OR EQUAL" ITEM AND MUST BE PROCESSED AS SUCH

"/1) IF THE BIDDER PROPOSES TO FURNISH A BRAND NAME ITEM SPECIFIED IN THIS INVITATION FOR BIDS, THE ITEM SHOULD BE IDENTIFIED BY BRAND NAME IN THE FOLLOWING SPACE. BRAND NAME:

"/2) IF THE BIDDER 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 INVITATION FOR BIDS. (THIS INFORMATION MAY BE SUPPLIED BY SEPARATE ATTACHMENTS TO THE BID.).'

INVITATION SUB-SUB-ITEM 1-1-11 CALLS FOR "/3 EACH) TUBE, ELECTRON R.C.A. TYPE NO. 5642 OR AL.' HOWEVER, DESPITE THE REJECTION OF THE BID OF YOUR COMPANY UNDER THE ORIGINAL SOLICITATION FOR FAILURE TO COMPLY WITH THE "BRAND NAME OR EQUAL" PROVISION AND THE RENEWED USE OF THAT CLAUSE IN THE RESOLICITATION WITH ADDITIONAL ATTENTION BEING CALLED TO IT, IN RESPONDING TO THE INVITATION YOUR COMPANY FAILED TO DESIGNATE IN ITS BID WHETHER IT WOULD COMPLY WITH SUB-SUB-ITEM 1-1-11 BY USING A BRAND NAME OR AN EQUAL PRODUCT. IN VIEW OF THIS OMISSION, IT WAS DETERMINED THAT YOU HAD FAILED TO COMPLY WITH THE REQUIREMENTS QUOTED ABOVE AND YOUR BID WAS REJECTED IN ACCORDANCE WITH THE SPECIFIC TERMS OF THE INVITATION.

SUCH ACTION IS ENTIRELY IN LINE WITH PREVIOUS DECISIONS OF THIS OFFICE. FOR EXAMPLE, 36 COMP. GEN. 415 HELD THAT THE FAILURE OF A BIDDER TO COMPLY WITH AN INVITATION REQUIREMENT, SPECIFICALLY CALLING FOR CERTAIN INFORMATION DEEMED ESSENTIAL TO THE EVALUATION OF BIDS AND REQUIRING REJECTION FOR FAILURE TO CONFORM, COULD NOT BE WAIVED BY THE CONTRACTING OFFICER. FURTHER, IT WAS INDICATED IN OUR DECISION B 139761, JUNE 15, 1959, THAT THE REASON THERE CANNOT BE WAIVED THE FAILURE TO SUBMIT REQUIRED INFORMATION IN ACCORDANCE WITH AN INVITATION PROVISION MAKING THE SUBMITTAL MANDATORY WAS THAT THE OMISSION WENT TO THE "SUBSTANCE" OF THE BID.

ACCORDINGLY, IN THE CIRCUMSTANCES, THERE DOES NOT APPEAR TO BE ANY VALID REASON FOR OBJECTION BY OUR OFFICE TO THE ACTION OF THE CONTRACTING OFFICER IN REJECTING YOUR BID.