B-144753, JANUARY 30, 1961, 40 COMP. GEN. 435

B-144753: Jan 30, 1961

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BECAUSE THE "OR EQUAL" ARTICLES OFFERED IN THE BID WERE REFERENCED TO IDENTICAL ITEMS BEING SUPPLIED UNDER A CURRENT CONTRACT HAS NOT SUBMITTED A BID WHICH CANNOT BE ADEQUATELY OR ACCURATELY EVALUATED OR UNDER WHICH ANY DOUBT EXISTS AS TO THE EXACT ARTICLES THE BIDDER WOULD BE BOUND TO FURNISH. 1961: REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 4. IF ARTICLES HAVE BEEN IDENTIFIED IN THIS INVITATION BY A "BRAND NAME OR EQUAL" DESCRIPTION. SUCH REFERENCE IS INTENDED TO BE DESCRIPTIVE. IS FOR THE SOLE PURPOSE OF INDICATING TO PROSPECTIVE BIDDERS A DESCRIPTION OF ARTICLES THAT WILL BE SATISFACTORY. BIDDERS ARE NOT EXPECTED TO FURNISH EXACT DUPLICATES BUT ONLY ARTICLES WHICH ARE EQUAL. INSOFAR AS THE GOVERNMENT'S NEEDS ARE CONCERNED.

B-144753, JANUARY 30, 1961, 40 COMP. GEN. 435

BIDS - FAILURE TO FURNISH DESCRIPTIVE INFORMATION - "OR EQUAL" ARTICLES A LOW BIDDER WHO, IN RESPONSE TO AN INVITATION FOR BRAND NAME "OR EQUAL" ARTICLES, FAILS TO COMPLY WITH THE DESCRIPTIVE DATA REQUIREMENTS, INCLUDING A STATEMENT OF DIFFERENCES BETWEEN ARTICLES OTHER THAN THE BRAND NAMES, BECAUSE THE "OR EQUAL" ARTICLES OFFERED IN THE BID WERE REFERENCED TO IDENTICAL ITEMS BEING SUPPLIED UNDER A CURRENT CONTRACT HAS NOT SUBMITTED A BID WHICH CANNOT BE ADEQUATELY OR ACCURATELY EVALUATED OR UNDER WHICH ANY DOUBT EXISTS AS TO THE EXACT ARTICLES THE BIDDER WOULD BE BOUND TO FURNISH; THEREFORE, THE BID MAY BE CONSIDERED RESPONSIVE TO THE INVITATION AND AN AWARD BASED ON SUCH BID WOULD BE PROPER.

TO J. C. CLARKE, ATOMIC ENERGY COMMISSION, JANUARY 30, 1961:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 4, 1961, REQUESTING OUR OPINION AS TO WHETHER AN AWARD MAY BE MADE TO ATOMIC RESEARCH LABORATORIES DIVISION, ATOMIC RESEARCH CORPORATION OF AMERICA (1ARL), AS LOW BIDDER UNDER IFB NO. NY-19-61-1201.

THE INVITATION IN QUESTION REQUESTED BIDS FOR FURNISHING 560 RADIATION BIOLOGY ACCESSORY KITS, AND DESCRIBED 25 DEVICES AND ARTICLES TO BE INCLUDED IN EACH KIT BY A BRAND NAME, MODEL NUMBER,"OR EQUAL.' IT ALSO ADVISED BIDDERS AS FOLLOWS:

(FOR THE PURPOSE OF THIS CLAUSE REFERENCES TO "BRAND NAME" SHALL MEAN BRAND NAME AND/OR MAKE OR MODEL NUMBER.) IF ARTICLES HAVE BEEN IDENTIFIED IN THIS INVITATION BY A "BRAND NAME OR EQUAL" DESCRIPTION, SUCH REFERENCE IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS FOR THE SOLE PURPOSE OF INDICATING TO PROSPECTIVE BIDDERS A DESCRIPTION OF ARTICLES THAT WILL BE SATISFACTORY. BIDDERS ARE NOT EXPECTED TO FURNISH EXACT DUPLICATES BUT ONLY ARTICLES WHICH ARE EQUAL, INSOFAR AS THE GOVERNMENT'S NEEDS ARE CONCERNED, TO THE REFERENCED BRAND NAME ARTICLES. BIDS OFFERING ARTICLES OTHER THAN BRAND NAME ARTICLES REFERENCED IN THIS INVITATION WILL BE CONSIDERED: PROVIDED, THAT, SUCH OFFERED ARTICLES ARE CLEARLY IDENTIFIED IN THE BIDS AND BIDDERS FURNISH WITH THEIR BIDS (1) DESCRIPTIVE MATERIAL, INCLUDING CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER GRAPHIC MATERIAL, WHICH WILL CLEARLY SHOW THE CHARACTERISTICS OF THE ARTICLES OFFERED, AND (2) A STATEMENT SHOWING IN DETAIL THE DIFFERENCES BETWEEN THE ARTICLES OFFERED AND THOSE REFERENCED IN THE INVITATION. FAILURE TO FURNISH THE INFORMATION REQUIRED BY (2) AND (2) ABOVE WILL REQUIRE REJECTION OF THE BIDS.

UNLESS THE BIDDER CLEARLY INDICATES IN HIS BID THAT HE IS OFFERING A DIFFERENT ARTICLE, HIS BID SHALL BE CONSIDERED AS OFFERING A BRAND NAME ARTICLE REFERENCED IN THE INVITATION.

BIDDERS ARE CAUTIONED THAT IN EVALUATING BIDS OFFERING ARTICLES OTHER THAN THE BRAND NAMES REFERENCED IN THE INVITATION, THE GOVERNMENT WILL CONSIDER THAT THE BIDDER INTENDS TO BIND HIMSELF TO FURNISH ONLY THE ARTICLES DESCRIBED IN HIS BID AND ANY ATTACHED DESCRIPTIVE LITERATURE.

IF A BIDDER OFFERING BRAND NAME ARTICLES WHICH DIFFER FROM THOSE ARTICLES REFERENCED IN THE INVITATION PROPOSES TO MODIFY THE BRAND NAME ARTICLES HE HAS IDENTIFIED IN HIS BID SO AS TO MAKE THE OFFERED ARTICLES EQUAL THOSE REFERENCED INSOFAR AS THE NEEDS OF THE GOVERNMENT ARE CONCERNED, HE SHALL (1) INCLUDE IN HIS BID A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS, OR (2) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS. MODIFICATIONS PROPOSED AFTER BID OPENING WILL NOT BE CONSIDERED.

THE BID SUBMITTED BY ARL WAS ACCOMPANIED BY A "1LIST OF CONTENTS ATOM-KIT NO. 160, SERIAL NO. ---------," WHICH LISTED EACH OF THE DEVICES AND ARTICLES TO BE SUPPLIED IN THE SAME ORDER AS SET OUT IN THE INVITATION, TOGETHER WITH THE QUANTITY AND THE ARL MODEL NUMBER OF EACH. UNDER THE HEADING "1BRAND NAME," THIS LIST INDICATED THAT ARL WAS OFFERING SUBSTITUTE ARTICLES, NAMED THE MANUFACTURER OF SUCH ARTICLES, AND ADVISED THAT THESE ARTICLES WERE THE SAME BRAND SUPPLIED TO YOUR AGENCY IN 1960 BY ARL UNDER CONTRACT NO. AT (30-1) 2522, SAMPLES OF WHICH WERE AVAILABLE ON REQUEST. ON THE REMAINING FOUR ARTICLES THE LIST NAMED MANUFACTURERS OTHER THAN ARL AND SHOWED THE ARL MODEL NUMBER ASSIGNED TO SUCH ARTICLES, BUT FAILED TO REFERENCE SUCH ARTICLES TO THE 1960 CONTRACT.

YOUR LETTER ADVISES THAT CONTRACT NO. AT (30-1/-2522 WAS A PREVIOUS AEC CONTRACT FOR KITS IDENTICAL WITH THOSE TO BE SUPPLIED UNDER THE PRESENT INVITATION. YOU ALSO ADVISE THAT THE KITS FURNISHED BY ARL UNDER THE PRIOR CONTRACT CONSISTED OF THE IDENTICAL ARTICLES AND DEVICES (INCLUDING THE FOUR ARTICLES WHICH WERE IDENTIFIED ONLY BY NAME OF MANUFACTURER AND ARL MODEL NUMBER) AS WERE SET OUT IN THE "1LIST OF CONTENTS" SUBMITTED WITH THE ARL BID, AND THAT ALL ARTICLES AND DEVICES FURNISHED UNDER THE PRIOR CONTRACT WERE FOUND TO BE EQUAL TO THE BRAND NAMES SPECIFIED IN THE INVITATION.

BY LETTER DATED DECEMBER 27, 1960, APPARENTLY IN REPLY TO AN INQUIRY BY YOUR AGENCY, ARL HAS EXPRESSED THE OPINION THAT IT HAS COMPLETELY DESCRIBED THE ARTICLES AND DEVICES IT IS OFFERING "BY REFERENCE IN EACH CASE TO IDENTICAL ITEMS SUPPLIED TO THE COMMISSION UNDER THE 1960 CONTRACT, MODELS OF WHICH ARE ON HAND IN YOUR OFFICE.' IN VIEW OF THE FOREGOING, THE QUESTION PRESENTED TO THIS OFFICE IS WHETHER THE LOW BID SUBMITTED BY ARL IS SUFFICIENTLY RESPONSIVE TO THE INVITATION TO JUSTIFY AN AWARD BASED UPON THE BID AS SUBMITTED.

AS A GENERAL RULE A DESCRIPTIVE DATA REQUIREMENT, TOGETHER WITH LANGUAGE MAKING IT MANDATORY UPON THE CONTRACTING OFFICER TO REJECT BIDS WHICH FAIL TO COMPLY WITH SUCH REQUIREMENT, IS TO BE CONSTRUED AND ENFORCED AS WRITTEN. HOWEVER, AS STATED AT 39 COMP. GEN. 595, 597, IT MUST BE RECOGNIZED THAT AN AUTOMATIC REJECTION OF A BID BECAUSE OF A FAILURE TO CONFORM TO A PURELY TECHNICAL OR OVER-LITERAL READING OF THE STATED REQUIREMENTS MAY BE AS ARBITRARY AS THE WAIVER OF NONRESPONSIVENESS TO A MATERIAL AND SUBSTANTIAL REQUIREMENT. IN THAT DECISION WE THEREFORE HELD IT PROPER TO EXAMINE INTO THE QUESTION WHETHER INFORMATION FURNISHED BY A BIDDER IN LIEU OF STRICT COMPLIANCE WITH THE DATE REQUIREMENTS OF THE INVITATION, TOGETHER WITH INFORMATION ALREADY AVAILABLE TO THE CONTRACTING AGENCY, WAS SUFFICIENT TO ACCOMPLISH THE SAME PURPOSES WHICH WOULD BE ACCOMPLISHED BY STRICT COMPLIANCE WITH THE TERMS OF THE INVITATION. STATED IN THAT DECISION, THE PURPOSE OF DATA REQUIRED TO BE SUBMITTED WITH A BID IS TO PERMIT A DETERMINATION BY THE PROCURING AGENCY OF PRECISELY WHAT THE BIDDER PROPOSES, AND WILL BE BOUND, TO FURNISH IF AWARDED THE CONTRACT. A DISTINCTION MUST THEREFORE BE DRAWN BETWEEN A FAILURE TO COMPLY FULLY WITH DATA REQUIREMENTS WHEN SUCH FAILURE RESULTS IN DOUBT AS TO THE PRECISE ARTICLES OFFERED OR THE PERFORMANCE STANDARDS TO WHICH THE BIDDER CAN BE BOUND BY A CONTRACT AWARD, AND A FAILURE TO COMPLY WITH DATA REQUIREMENTS WHICH DOES NOT AFFECT THE ABILITY OF THE CONTRACTING AGENCY TO EVALUATE THE BID AND BIND THE BIDDER TO STRICT COMPLIANCE WITH THE SPECIFICATION REQUIREMENTS BY ACCEPTING THE BID.

WHILE THE PROVISIONS OF THE INSTANT INVITATION, AS QUOTED ABOVE, ARE PRESCRIBED BY FPR 1-1.307-6 (B), IT IS APPARENT THAT THE ONLY LEGITIMATE PURPOSE TO BE SERVED BY REQUIRING BIDDERS TO SUBMIT DESCRIPTIVE MATERIAL AND A STATEMENT OF DIFFERENCES WITH BIDS OFFERING ARTICLES OTHER THAN THE BRAND NAMES SET OUT IN THE INVITATION IS TO ASSURE THE AVAILABILITY OF SUFFICIENT INFORMATION TO PERMIT THE CONTRACTING OFFICER TO DETERMINE (1) THE EXACT NATURE OF THE ARTICLES OFFERED BY THE BIDDER AND (2) WHETHER SUCH ARTICLES ARE, IN FACT, EQUAL FOR THE GOVERNMENT'S PURPOSES TO THOSE SPECIFIED BY BRAND NAME IN THE INVITATION. IN THE ABSENCE OF ANY DISCLOSURE IN THE BRAND-NAME SPECIFICATION OF THE PARTICULAR CHARACTERISTICS OR FEATURES OF THE NAMED BRANDS WHICH ARE CONSIDERED ESSENTIAL TO THE GOVERNMENT'S NEEDS OR MATERIAL TO THE DETERMINATION OF EQUALITY OF OTHER BRANDS, STRICT AND LITERAL ENFORCEMENT OF THE REQUIREMENT FOR THE "STATEMENT SHOWING IN DETAIL THE DIFFERENCES BETWEEN THE ARTICLES OFFERED AND THOSE REFERENCED IN THE INVITATION" COULD READILY RESULT IN REJECTION OF BIDS OFFERING ARTICLES IN EVERY MATERIAL RESPECT SUITABLE FOR THE GOVERNMENT'S REQUIREMENTS MERELY BECAUSE OF A BIDDER'S FAILURE TO POINT OUT WHOLLY IMMATERIAL DIFFERENCES. WE FEEL ALSO THAT THE IMPERATIVE PHRASING OF THE REQUIREMENT TENDS TO DISCOURAGE THE OFFERING OF ALTERNATIVE BRANDS.

SINCE YOUR TECHNICAL PERSONNEL HAVE DETERMINED THAT THE KIT INVOLVED IN THE INSTANT INVITATION AND THE KIT SUPPLIED BY ATOMIC RESEARCH LABORATORY IN 1960 UNDER CONTRACT NO. AT (30-1/-2522 ARE IDENTICAL AND THAT ALL OF THE SUBSTITUTE ARTICLES IN THE 1960 KIT WERE SATISFACTORY AND EQUAL TO THE BRAND NAME ARTICLES SPECIFIED IN THE INSTANT INVITATION, WE SEE NO BASIS ON WHICH IT MAY BE CONTENDED THAT THE BIDDER'S FAILURE TO COMPLY LITERALLY WITH THE DESCRIPTIVE MATERIAL REQUIREMENTS PRECLUDES AN ADEQUATE OR ACCURATE EVALUATION OF THE BID. NEITHER WOULD IT APPEAR THAT ANY DOUBT WOULD EXIST AS TO THE EXACT ARTICLES THE BIDDER WOULD BE BOUND TO SUPPLY UPON ACCEPTANCE OF ITS BID. SEE IN THIS CONNECTION THE REQUIREMENT IN FPR 1-1.307 (B) THAT NOTICES OF AWARD SHALL IDENTIFY THE SPECIFIC ARTICLES WHICH THE CONTRACTOR HAS OFFERED TO FURNISH. IN VIEW THEREOF, IT IS OUR OPINION THAT THE BID SUBMITTED BY ATOMIC RESEARCH CORPORATION OF AMERICA SHOULD BE CONSIDERED RESPONSIVE TO THE INVITATION AND, IF OTHERWISE CORRECT, AN AWARD BASED UPON SUCH BID WOULD BE PROPER.

ATTENTION IS INVITED TO THE PROVISIONS OF FPR 1-1.307-4, EXPRESSING PREFERENCE FOR USE OF PURCHASE DESCRIPTIONS CONSISTING OF REFERENCES TO MORE THAN ONE COMMERCIAL PRODUCT DESCRIBED BY BRAND NAME AND NUMBER. IS SUGGESTED THAT, IN FUTURE PROCUREMENTS OF ARTICLES PURCHASED ON AN ,OR EQUAL" BASIS, CONSIDERATION BE GIVEN TO INCLUDING SPECIFIC REFERENCE IN THE INVITATION TO ALL ARTICLES PREVIOUSLY PURCHASED AND FOUND SATISFACTORY, SINCE IT WOULD APPEAR THAT NO USEFUL PURPOSE IS SERVED BY REQUIRING THE SUBMISSION OF DETAILED DESCRIPTIVE DATA ON ARTICLES WHICH ARE KNOWN TO MEET THE NEEDS OF YOUR AGENCY.