B-143585, OCT. 13, 1960

B-143585: Oct 13, 1960

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WHICH MATTER IS THE SUBJECT OF REPORTS. " IT IS PROVIDED AS FOLLOWS: "BRAND NAME OR EQUAL CLAUSE 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 . IF THE BIDDER DOES NOT IDENTIFY THE BRAND NAME OR DESCRIBE IN FULL THE "OR EQUAL" ITEM WHICH IS OFFERED.

B-143585, OCT. 13, 1960

TO RIHA, PETERSEN AND VAIL:

WE REFER TO YOUR LETTER OF JULY 19, 1960, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER IFB NO. 128-104-60, WHICH MATTER IS THE SUBJECT OF REPORTS, DATED AUGUST 5, 1960, AND SEPTEMBER 30, 1960 (REFERENCE R11.1), FORWARDED TO THIS OFFICE BY THE DEPARTMENT OF THE NAVY.

THE RECORD SHOWS THAT ON MAY 11, 1960, THE UNITED STATES NAVAL SUPPLY DEPOT, GREAT LAKES, ILLINOIS, ISSUED IFB NO. 128-104-60, CALLING FOR BIDS ON ITEM NO. 1, 113 WOODEN ARM CHAIRS, TAYLOR CHAIR COMPANY MODEL NO. 607 OR EQUAL IN ACCORDANCE WITH THE BRAND NAME OR EQUAL CLAUSE OF THE INVITATION. ON PAGE NO. 2 OF THE INVITATION UNDER THE HEADING "BRAND NAME OR EQUAL CLAUSE," IT IS PROVIDED AS FOLLOWS:

"BRAND NAME OR EQUAL CLAUSE

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 BY SEPARATE ATTACHMENTS TO THE BID.)"

THE DETAILED SPECIFICATIONS, ON PAGE NO. 3 OF THE INVITATION, DESCRIBE SALIENT FEATURES REQUIRED IN THE ARM CHAIRS AND BIDDERS WERE ALSO REQUIRED TO INDICATE THE BRAND NAME OFFERED.

BIDS WERE OPENED ON MAY 31, 1960, AND OF FOUR BIDS RECEIVED, THE LOW BID AS TO PRICE WAS SUBMITTED BY RIHA, PETERSEN AND VAIL (A PARTNERSHIP) IN THE AMOUNT OF $6,028.55. ON PAGE NO. 3 OF THE INVITATION, RIHA, PETERSEN AND VAIL INDICATED THAT IT WOULD SUPPLY A BERKEY LEATHER FURNITURE CORPORATION SPECIAL CHAIR. IT INCLUDED A STATEMENT WITH ITS BID, AS FOLLOWS:

"PLEASE BE ADVISED THAT THE CHAIR WE ARE OFFERING WILL BE BUILT IN EXACT ACCORDANCE TO THE SPECIFICATIONS AS DETAILED ON PAGE 3 OF THE ABOVE MENTIONED INVITATION. THE STYLING WILL BE EXACTLY THE SAME AS THE MENTIONED CHAIR.'

RIHA, PETERSEN AND VAIL DID NOT PROVIDE ANY INFORMATION OR DESCRIPTIVE DATA WITH ITS BID OTHER THAN THE ABOVE QUOTED STATEMENT. THE ADMINISTRATIVE OFFICE RESPONSIBLE FOR DRAFTING THE SUBJECT SPECIFICATIONS REPORTS THAT THE DETAILED SPECIFICATIONS ON PAGE NO. 3 OF THE INVITATION DESCRIBE THE SALIENT CHARACTERISTICS OF THE REQUIRED ITEM, BUT THAT ALL THE REMAINING AND UNDESCRIBED CHARACTERISTICS OF THE ITEM HAD TO BE EQUAL TO THE TAYLOR CHAIR, INCLUDING SUCH UNDERSCRIBED FEATURES AS THE METHOD OF FASTENING THE UPHOLSTERY, SEAT AND BACK CONSTRUCTION, AND THE DESIGN OF THE CHAIR. THE ADMINISTRATIVE OFFICE STATES THAT SUCH UNDESCRIBED CHARACTERISTICS AS MENTIONED ARE CONSIDERED ESSENTIAL TO ASSURE THE PROCUREMENT OF A QUALITY CHAIR WHICH WOULD BE ABLE TO ENDURE THE ROUGH USAGE GIVEN TO INSTITUTIONAL FURNITURE. FURTHER, THE DESIGN OF THE CHAIR IS IMPORTANT TO ASSURE THE FITTING OF THE FURNITURE INTO THE GENERAL MOTIF OF THE OTHER FURNITURE AND FURNISHING AS WELL AS THE ARCHITECTURAL STYLE OF THE NEW U.S. NAVAL HOSPITAL AT GREAT LAKES, ILLINOIS.

THE SECOND LOW BID AS TO PRICE WAS SUBMITTED BY REVERE FURNITURE AND EQUIPMENT COMPANY IN AN AMOUNT OF $6,158.50, AND IT OFFERED TO SUPPLY THE NAME BRAND, THE TAYLOR CHAIR, MODEL NO. 607.

THE CONTRACTING OFFICER CONCLUDED THAT THE LOW BIDDER, RIHA, PETERSEN AND VAIL, WAS NONRESPONSIVE TO THE INVITATION IN THAT IT OFFERED TO SUPPLY AN "OR EQUAL" ITEM WITHOUT FURNISHING DESCRIPTIVE DATA. HE DETERMINED THAT THE SECOND LOW BIDDER, WHICH OFFERED THE BRAND NAME ITEM, WAS RESPONSIVE TO THE INVITATION AND WAS A RESPONSIBLE BIDDER. ON JUNE 15, 1960, CONTRACT NO. 128/211/12223 WAS AWARDED TO REVERE FURNITURE AND EQUIPMENT COMPANY.

YOUR PROTEST HERE TO THE AWARD IS ON THE BASIS THAT SINCE YOU OFFERED TO SUPPLY AN EXACT DUPLICATE OF THE BRAND NAME ITEM, YOU COULD NOT FURNISH DESCRIPTIVE DATA SHOWING DIFFERENCES.

IN THOSE SITUATIONS WHERE THE PROCURING AGENCY MAY DEEM THE FURNISHING OF DESCRIPTIVE DATA ESSENTIAL TO A DETERMINATION AS TO WHETHER THE PROPOSED EQUIPMENT MEETS THE REQUIREMENTS OF THE GOVERNMENT, AND TO ENABLE IT TO CONCLUDE INTELLIGENTLY PRECISELY WHAT THE BIDDER PROPOSES TO FURNISH, WE HAVE CONCLUDED THAT THE PROCURING AGENCY MAY CONDITION THE INVITATION TO PROVIDE THAT A FAILURE TO SUBMIT SUCH DATA WITH THE BID OR THE FAILURE OF THE DATA SUBMITTED TO COMPLY STRICTLY WITH THE SPECIFICATION REQUIREMENTS, WILL PRECLUDE CONSIDERATION OF THE BID AS NOT CONFORMING TO THE INVITATION. 36 COMP. GEN. 376. IN VIEW OF THE FOREGOING, A BLANKET OFFER TO COMPLY WITH SPECIFICATIONS CANNOT OVERCOME OR RENDER NUGATORY EITHER THE SPECIFIC REQUIREMENT IN AN INVITATION FOR THE FURNISHING OF DESCRIPTIVE DATA WHICH IS DEEMED MATERIAL, OR THE PROVISIONS THEREOF RELATING TO THE EXTENT TO WHICH SUCH DATA WILL BE CONSIDERED IN THE EVALUATION OF BIDS. 36 COMP. GEN. 415.

YOUR OFFER, STANDING ALONE, TO SUPPLY A CHAIR WHICH WOULD DUPLICATE THE STYLING OF THE NAMED BRAND CHAIR DOES NOT SATISFY THE DESCRIPTIVE DATA REQUIREMENT OF THE INVITATION. BIDDERS OFFERING CHAIRS OTHER THAN THE NAME BRAND ITEM WERE REQUIRED TO FURNISH SUFFICIENT INFORMATION TO ENABLE THE CONTRACTING OFFICER TO DETERMINE FACTUALLY WHETHER THE ITEM OFFERED WAS EQUAL TO THE NAME BRAND ITEM AS TO THOSE ESSENTIAL CHARACTERISTICS NOT DETAILED IN THE SPECIFICATIONS. YOU FAILED TO SUPPLY SUCH INFORMATION AND THE OMISSION MAY NOT BE WAIVED AFTER BID OPENING. CF. 36 COMP. GEN. 415, 419; 35 ID. 98.