B-144112, JAN. 13, 1961

B-144112, JAN. 13, 1961

TO LEWIS H. VAN DUSEN, JR., ESQUIRE:

REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 28, NOVEMBER 7, DECEMBER 6 AND 20, 1960, PROTESTING, ON BEHALF OF THE MOLDED INSULATION COMPANY, AGAINST THE PROPOSED REJECTION OF ITS BID SUBMITTED UNDER INVITATION FOR BIDS NO. SC-36-039-60-2592-B4-51.

THE INVITATION REQUESTED BIDS ON 75,500 RADIOSONDE SETS, IN ADDITION TO CERTAIN SUB-SUBITEMS. SUB-SUBITEMS 1-2-4, 1-2-5 AND 1-2-7 WERE AS FOLLOWS:

CHART

"FSNR

(1-2-4) 1 PKG. W/24 EA. OF ITEM NO. (1-2/-

CLEANING TISSUES" SILICONE TREATED;

DOW-CORNING "SIGHT SAVERS" OR EQUAL.

"FSNR

(1-2-5) 1 EA. W/24 EA. OF ITEM (1-2/-

OPENER, CAN, MECHANICAL; VAUGHN NOVELTY

CO., TYPE 170-W, OR EQUAL.

"NFSNR

(1-2-7) 1 EA. W/24 EA. OF ITEM (1-2/-

SILICONE COMPOUND; 4 OZ. TUBE;

DOW-CORNING SILICONE NO. DC-4 OR

EQUAL.'

PAGE 8 OF 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 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. 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, 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 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).'

FIVE BIDS WERE RECEIVED AND OPENED AS SCHEDULED ON JULY 18, 1960, AND IT APPEARED AFTER EVALUATION THAT THE BIDS OF MOLDED INSULATION AND THE BENDIX CORPORATION, FRIEZE INSTRUMENT DIVISION, IN THE AMOUNTS OF $1,566,172 AND $1,568,739, RESPECTIVELY, WERE THE LOWEST BIDS RECEIVED. BOTH BIDDERS INCLUDED IN THEIR BID PRICES FOR THE RADIOSONDES THE COST OF THE ABOVE SUB-SUBITEMS. MOLDED INSULATION'S LOW BID WAS DETERMINED TO BE NONRESPONSIVE BY THE CONTRACTING OFFICER SINCE THE BIDDER FAILED TO INDICATE IN ITS BID WHETHER IT PROPOSED TO FURNISH THE BRAND NAME OR EQUAL AS TO THE SUB-SUBITEMS. IN VIEW THEREOF, IT WAS DETERMINED TO MAKE AWARD TO BENDIX AS THE LOWEST RESPONSIBLE BIDDER. IT IS REPORTED THAT TWO OTHER BIDDERS ALSO FAILED TO INDICATE ON THEIR BIDS EITHER THE BRAND NAMES OR EQUAL AS TO THE SUB-SUBITEMS.

MOLDED INSULATION PROTESTS AGAINST THE REJECTION OF ITS BID ON THE FOLLOWING BASES:

1. THAT NO SPACE WAS PROVIDED FOR INSERTION OF THE BRAND NAMES IN SUB- SUBITEMS 1-2-4, 1-2-5 AND 1-2-7 AS REQUIRED BY SECTION 1-1206 (C) (2) (I) OF THE ASPR;

2. THAT THE COST OF THE SUB-SUBITEMS WHICH IS INCLUDED IN THE BID PRICE OF THE RADIOSONDES IS INSIGNIFICANT IN RELATION TO ITS BID PRICE ON THE RADIOSONDES, AND THAT SUCH SUB-SUBITEMS WERE OFFERED SUBSTANTIALLY AT COST; AND

3. THAT THE "BRAND NAME OR EQUAL" DESCRIPTION OF THE SILICONE CLEANING TISSUE AND SILICONE COMPOUND IS RESTRICTIVE OF COMPETITION.

MOLDED INSULATION CONTENDS THAT IT WOULD BE BOUND TO FURNISH THE SUB- SUBITEMS BY BRAND NAME, AND THAT IT SHOULD BE PERMITTED TO CLARIFY ITS BID BY CORRECTING THE DEVIATION WHICH IT BELIEVES TO BE INFORMAL AND IMMATERIAL.

THE TOTAL COST OF SUB-SUBITEM 1-2-4 IS REPORTED BY MOLDED INSULATION TO BE BETWEEN $128.35 AND $130 AND ABOUT $2,616 FOR SUB-SUBITEM 1-2 7, OR A TOTAL OF APPROXIMATELY $2,746, $300.63 OF WHICH AMOUNT REPRESENTS OVERHEAD AND PROFIT. WE UNDERSTAND THAT SUB-SUBITEM 1-2-5 WILL BE DELETED FROM THE RESULTING CONTRACT AFTER AWARD SINCE IT HAS BECOME SUPERFLUOUS.

WE CANNOT AGREE WITH THE CONTENTION THAT MOLDED SHOULD BE EXCUSED FOR ITS FAILURE TO SPECIFY BRAND NAME OR EQUAL BECAUSE THE GOVERNMENT FAILED TO INCLUDE BLANK SPACES AFTER THE ITEM DESCRIPTIONS IN THE FORM PRESCRIBED BY ASPR 1-1206 (C) (2) (I). IT IS NOTED THAT ADEQUATE SPACE WAS AVAILABLE AFTER THE ITEM DESCRIPTIONS TO PERMIT COMPLIANCE WITH THE REQUIREMENTS OF THE "BRAND NAME OR EQUAL" CLAUSE. THIS IS BORNE OUT BY THE FACT THAT TWO OF THE BIDDERS (BENDIX AND GENERAL INSTRUMENT CORPORATION) FOUND AMPLE ROOM TO INDICATE THEIR INTENTIONS IN THAT REGARD. THE REQUIREMENTS OF THE "BRAND NAME OR EQUAL" CLAUSE ARE CLEAR AND UNAMBIGUOUS. THE CLAUSE SPECIFICALLY WARNED BIDDERS IN BOLD TYPE THAT BIDS WOULD BE REJECTED FOR FAILURE TO COMPLY WITH ITS REQUIREMENTS. CONSEQUENTLY, WE BELIEVE THAT MOLDED'S FAILURE TO COMPLY WITH THE INVITATION REQUIREMENTS WAS PRIMARILY DUE TO ITS OWN NEGLIGENCE RATHER THAN THE GOVERNMENT'S FAILURE TO INCLUDE BLANK SPACES AFTER THE ITEM DESCRIPTIONS IN THE SPECIFIC FORM PRESCRIBED BY THE ARMED SERVICES PROCUREMENT REGULATION. FOR THE SAME REASON WE CANNOT CONCLUDE THAT THE INVITATION WAS DEFECTIVE BECAUSE OF AMBIGUITY.

REGARDING THE CONTENTION THAT THE VALUE OF THE ITEMS INVOLVED WAS INCONSEQUENTIAL, IT IS NOTED THAT MOLDED'S OWN COST ESTIMATES FOR THE TWO ITEMS AMOUNT TO A TOTAL PRICE OF $2,746. WHILE THE SUM MAY BE SMALL PERCENTAGE-WISE IN RELATION TO THE TOTAL BID PRICE, WE CANNOT AGREE THAT THE AMOUNT IS INCONSEQUENTIAL. THE GENERAL RULE IS THAT IN COMPETITIVE PROCUREMENT ANY DEVIATION AFFECTING PRICE IS MATERIAL BECAUSE EVEN THE SLIGHTEST DIFFERENCE IN PRICES QUOTED CAN AFFECT THE RELATIVE STANDING OF THE BIDDERS. SEE 30 COMP. GEN. 179.

WITH REGARD TO THE CONTENTION THAT THE USE OF THE "BRAND NAME OR EQUAL" DESCRIPTION WAS RESTRICTIVE, IT IS REPORTED BY THE ADMINISTRATIVE OFFICE THAT THE BRAND NAME ITEMS POSSESS THE MINIMUM ATTRIBUTES NECESSARY TO INSURE ADEQUATE PERFORMANCE OF THE MAIN END ITEM. IT IS ALSO REPORTED THAT SINCE THE PROCURING AGENCY LACKED KNOWLEDGE AS TO WHETHER OTHER PRODUCTS WERE AVAILABLE WITH THE SAME QUALITIES, BIDDERS WERE PERMITTED TO BID ON AN "OR EQUAL" BASIS. WE HAVE CONSISTENTLY TAKEN THE VIEW THAT IN REQUESTING BIDS THE USE OF A TRADE NAME OF A PARTICULAR ARTICLE FOLLOWED BY THE WORDS "OR EQUAL," WHEN USED FOR THE PURPOSE OF INDICATING TO THE BIDDERS WHAT IS REQUIRED, IS NOT UNDULY RESTRICTIVE AND MAY BE REGARDED AS A COMPLIANCE WITH THE STATUTORY REQUIREMENTS GOVERNING COMPETITIVE BIDDING PROCEDURES. SEE 5 COMP. GEN. 825; B-117826, MARCH 29, 1954; B 119471, OCTOBER 12, 1954. WE THEREFORE CANNOT AGREE WITH THE CONTENTION THAT THE SPECIFICATION WAS RESTRICTIVE OF COMPETITION.

DECISIONS OF THIS OFFICE HAVE BEEN UNIFORM IN HOLDING 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, CANNOT BE WAIVED BY THE CONTRACTING OFFICER. 36 COMP. GEN. 415. FURTHER, AS WAS INDICATED IN OUR DECISION B-139761, JUNE 15, 1959, THE REASON THE FAILURE TO SUBMIT SUCH REQUIRED INFORMATION IN ACCORDANCE WITH AN INVITATION PROVISION MAKING THE SUBMITTAL MANDATORY CANNOT BE WAIVED IS THAT THE OMISSION GOES TO THE "SUBSTANCE" OF THE BID. IN THIS REGARD, TO CONSIDER MOLDED'S BID WOULD PLACE THAT COMPANY IN A POSITION OF HAVING THE OPTION AFTER BID OPENING OF EITHER SECURING AN AWARD BY CLARIFICATION OF ITS BID, OR OF SO ACTING AS TO CAUSE REJECTION OF ITS BID IF IMPROVIDENTLY MADE. WE HAVE CONSISTENTLY TAKEN THE VIEW THAT TO GIVE A BIDDER TWO CHANCES AT A PROCUREMENT IN SUCH A MANNER WOULD BE UNFAIR TO OTHER BIDDERS AND CONTRARY TO THE PURPOSES OF THE STATUTES GOVERNING PUBLIC PROCUREMENT. SEE 38 COMP. GEN. 532, 536.

BY LETTER DATED DECEMBER 27, 1960, WITH ENCLOSURE, MR. R. F. HURST, VICE PRESIDENT AND GENERAL MANAGER OF MOLDED, SUBMITTED TO THIS OFFICE AN OFFER TO FURNISH APPROXIMATELY 40,000 RADIOSONDES AT A UNIT COST OF $18.73 PURSUANT TO THE OPTION PROVISION OF MOLDED'S CURRENT CONTRACT NO. DA-36- 039-SC-81787, PROVIDED ALL BIDS ARE REJECTED UNDER THE INSTANT INVITATION AND A NEW INVITATION IS ISSUED FOR THE NUMBER OF ADDITIONAL RADIOSONDES THEN REQUIRED. WE DO NOT THINK THIS OFFER PROPERLY MAY BE ACCEPTED. THE CONTRACT OPTION PROVISION EXPIRED ON JULY 28, 1960, AND CONSIDERATION OF THE OFFER WHICH NECESSARILY CONTEMPLATES NEGOTIATION WITH ONLY ONE OF SEVERAL BIDDERS SUBMITTING BIDS UNDER THE ADVERTISED INVITATION WOULD BE INCOMPATIBLE WITH THE RULES APPLICABLE TO COMPETITIVE BIDDING AND THE PERTINENT PROVISIONS OF THE ARMED SERVICES PROCUREMENT ACT AS CODIFIED IN TITLE 10 OF THE UNITED STATES CODE.

ACCORDINGLY, THE CONTRACTING OFFICER'S DETERMINATION THAT THE BID OF MOLDED INSULATION COMPANY WAS NONRESPONSIVE APPEARS PROPER.

THE CONTRACT FILE SUBMITTED WITH THE LETTER OF DECEMBER 27, 1960, IS RETURNED.