B-145335, JUL. 6, 1961

B-145335: Jul 6, 1961

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TO HOGENTOGLER AND COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 16. WHICH WAS ISSUED ON NOVEMBER 2. IT APPEARS FURTHER THAT NINE BIDS WERE RECEIVED AND THAT YOU WERE THE LOW BIDDER ON ITEMS NOS. 5. 23 THAN THE BID WHICH WAS ACCEPTED FOR THESE ITEMS. THAT YOUR BID WAS NONRESPONSIVE AND. IT WAS REJECTED. NO AWARD WAS MADE ON ITEMS NOS. 1 AND 3. ON ALL ITEMS UPON WHICH YOUR BID WAS LOW. AS FOLLOWS: "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. THE BID WILL BE REJECTED. "/1) IF THE BIDDER PROPOSES TO FURNISH A BRAND NAME ITEM SPECIFIED IN THIS INVITATION FOR BIDS.

B-145335, JUL. 6, 1961

TO HOGENTOGLER AND COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 16, 1961, PROTESTING THE AWARD ACTION TAKEN BY THE AIR FORCE SPECIAL WEAPONS CENTER, KIRTLAND AIR FORCE BASE, NEW MEXICO, UNDER INVITATION NO. 29 601-61-48.

IN RESPONSE TO THE INVITATION, WHICH WAS ISSUED ON NOVEMBER 2, 1960, BY THE AIR FORCE SPECIAL WEAPONS CENTER, IT APPEARS THAT YOU SUBMITTED A BID OFFERING TO FURNISH 23 ITEMS--- 27 ITEMS ADVERTISED--- OF SOIL TESTING EQUIPMENT AND SUPPLIES FOR A TOTAL PRICE OF $13,438.50. IT APPEARS FURTHER THAT NINE BIDS WERE RECEIVED AND THAT YOU WERE THE LOW BIDDER ON ITEMS NOS. 5, 6, 9, 12, 13, 18, AND 24 THROUGH 27; ALSO, THAT YOU HAD SUBMITTED A LOWER BID ON ITEMS NOS. 4, 22, AND 23 THAN THE BID WHICH WAS ACCEPTED FOR THESE ITEMS. UPON THE EVALUATION OF ALL BIDS RECEIVED, THE DEPARTMENT OF THE AIR FORCE DETERMINED, AMONG OTHERS, THAT YOUR BID WAS NONRESPONSIVE AND, THEREFORE, IT WAS REJECTED. THERE FOLLOWED AN AWARD OF CONTRACT ON JANUARY 18, 1961, UNDER INVITATION NO. 29-601-61-48 OF ITEMS NOS. 2, AND 4 THROUGH 27 TO SOILTEST, INC., CHICAGO, ILLINOIS. NO AWARD WAS MADE ON ITEMS NOS. 1 AND 3. YOU PROTESTED THE AWARD TO SOILTEST, INC., ON ALL ITEMS UPON WHICH YOUR BID WAS LOW, ON THE GROUNDS THAT YOU HAD OFFERED TO FURNISH IDENTICAL, SIMILAR OR EQUAL EQUIPMENT.

INVITATION NO. 29-601-61-48 IDENTIFIED THE 27 ITEMS OF SOIL TESTING EQUIPMENT AND SUPPLIES REQUIRED AS SOILTEST, INC., MODELS,"OR EQUAL," AND SET FORTH THE SALIENT CHARACTERISTICS OF EACH ITEM ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. IN ADDITION, THE INVITATION UNDER THE CLAUSE ENTITLED "BRAND NAME OR EQUAL," PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"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 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.)"

THUS, IT IS CLEAR THAT ALL BIDDERS WERE FULLY APPRISED OF THE MATERIAL, INFORMATION, ETC., THAT WAS REQUIRED BY THE DEPARTMENT OF THE AIR FORCE TO PROPERLY EVALUATE THE BIDS PROPOSING TO FURNISH EITHER A "BRAND NAME" OR AN "OR EQUAL" PRODUCT. AN EXAMINATION OF YOUR BID, HOWEVER, SHOWS THAT NOTWITHSTANDING THESE EXPLICIT REQUIREMENTS YOU INSERTED ONLY "G6145" IN THE FIRST LINE OF THE DESCRIPTION FOR ITEM NO. 18, AND IN THE SPACE PROVIDED FOR THE "MANUFACTURER'S BRAND," YOU ENTERED "QUOTE ON MODERN LAB 155SR WITH SOME VARIATIONS AND DIMENSIONS.' YOUR BID FURTHER SHOWS THAT ON THE REMAINING ITEMS ON WHICH YOU SUBMITTED THE LOW BID, YOU IDENTIFIED THE EQUIPMENT YOU PROPOSED TO FURNISH BY A BRAND NAME OTHER THAN THE ONE SET OUT IN THE INVITATION AND MERELY PLACED A NUMBER IN THE ITEM DESCRIPTION. THE DEPARTMENT OF THE AIR FORCE REPORTS THAT YOU DID NOT FURNISH ANY DESCRIPTIVE MATERIAL THAT WOULD INDICATE THE APPROPRIATE DETAILS OF THE EQUIPMENT THAT YOU PROPOSED TO FURNISH OR THAT WOULD SHOW THE DIFFERENCES BETWEEN THAT EQUIPMENT AND THE CORRESPONDING BRAND NAME SPECIFIED IN THE INVITATION. THUS, IT MUST BE CONCLUDED THAT YOU FAILED TO FURNISH THE DESCRIPTIVE MATERIAL EXPRESSLY REQUIRED BY THE FOREGOING PROVISIONS OF THE INVITATION AND THAT BY REASON OF SUCH FAILURE THE AIR FORCE WAS UNABLE TO DETERMINE WHETHER THE EQUIPMENT BEING OFFERED BY YOU WAS EQUAL IN ALL MATERIAL RESPECTS TO THAT ON WHICH THE BIDS WERE SOLICITED. UNDER SUCH CIRCUMSTANCES, THE ACTION OF THE AIR FORCE IN REJECTING YOUR BID AS BEING NONRESPONSIVE WAS PROPER. YOU WERE NOT REQUESTED TO FURNISH ADDITIONAL IDENTIFICATION AND DESCRIPTIVE INFORMATION AFTER THE BIDS HAD BEEN OPENED BUT BEFORE AWARD, SINCE SUCH A REQUEST WOULD HAVE BEEN PREJUDICIAL TO THE RIGHTS OF OTHER RESPONSIVE BIDDERS.

IT IS, OF COURSE, NOT WITHIN THE PROVINCE OF OUR OFFICE TO DRAFT SPECIFICATIONS FOR THE CONTRACTUAL NEEDS OF ADMINISTRATIVE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT OR TO FORMULATE BASES UPON WHICH BID PRICES PROPERLY WILL BE CONSIDERED AND EVALUATED UNDER GIVEN INVITATIONS. THESE MATTERS FALL SQUARELY WITHIN THE FUNCTIONS OF THE DEPARTMENTS AND AGENCIES CONCERNED AND WHEN A SPECIFICATION LENDS ITSELF TO OPEN COMPETITION, AS REQUIRED BY APPLICABLE STATUTES, AND IT IS SHOWN THAT THE GOVERNMENT'S INTERESTS ARE FULLY PROTECTED OUR OFFICE WILL NOT INTERVENE. IN THIS REGARD, WE FIND NO ABUSE OF THE DEPARTMENT OF THE AIR FORCE'S AUTHORITY IN SPECIFYING THE PARTICULAR BID EVALUATION BASIS IN THIS CASE.

ACCORDINGLY, WE MUST CONCLUDE THAT THE AWARD ACTION TAKEN BY THE DEPARTMENT OF THE AIR FORCE IN THE MATTER IS NOT SUBJECT TO LEGAL OBJECTION.