B-145882, JUN. 29, 1961

B-145882: Jun 29, 1961

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OUR CONSIDERATION OF THE MATTER IS CONFINED TO THAT LOT. LOT II IS DESCRIBED IN THE INVITATION AS FOLLOWS: "HOSE ASSEMBLY. "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 NAME 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-145882, JUN. 29, 1961

TO SPACE AERO PRODUCTS CO., INC.:

BY TELEGRAM DATED MAY 17, 1961, YOU PROTESTED AGAINST THE AWARD OF A CONTRACT TO ANY BIDDER OTHER THAN YOUR COMPANY UNDER INVITATION FOR BIDS NO. 156-480-61, ISSUED BY THE NAVAL AIR MATERIAL CENTER ON APRIL 21, 1961, FOR FURNISHING TWO LOTS OF HOSE ASSEMBLY.

SINCE YOUR PROTEST HAS REFERENCE ONLY TO LOT II, OUR CONSIDERATION OF THE MATTER IS CONFINED TO THAT LOT. LOT II IS DESCRIBED IN THE INVITATION AS FOLLOWS:

"HOSE ASSEMBLY--- OXYGEN: SEAT KIT TO MASK MOUNTED REGULATOR, COLOR TO BE WHITE. TO BE IN ACCORDANCE WITH AIR CREW EQUIPMENT LABORATORY DRAWING 33C1141, REVISION A; MILITARY STANDARD MS33677, DATED 23 DEC. 1958, STYLE C; MILITARY SPECIFICATION MIL-H-22489 (WEP), DATED 22 APRIL 1960, EXCEPT TO BE WHITE; AND MILITARY SPECIFICATION MIL-J-641B, SUPPLEMENT 1, TYPE JJ- 026, AND RE DARLING (CODE NO. 83452), PART NO. READAR-B1020, OR EQUAL.

ACEL PART NO. 33C1141"

THE BRAND NAME OR EQUAL PROVISION IN 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 NAME 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 ON 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).'

TWO BIDS WERE RECEIVED AND OPENED AS SCHEDULED ON MAY 5, 1961, AND YOUR BID ON LOT II IN THE AMOUNT OF $12,438.72 WAS THE LOWEST RECEIVED. THE R. E. DARLING COMPANY SUBMITTED A BID IN THE AMOUNT OF $13,449.24. CONNECTION WITH THE BRAND NAME OR EQUAL PROVISION OF THE INVITATION YOU STATED:

"SPACE AERO PRODUCTS CO., INC. PROPOSES TO FURNISH A FITTING ASSEMBLY AS PART OF ITEM NUMBER 2 MANUFACTURED IN ACCORDANCE WITH DOUGLAS AIRCRAFT CO., INC. DRAWING 4666315 REVISION C WITH SPACE AERO PRODUCTS CO. REPLACEABLE PIN ELECTRICAL PIN P/N P10018. THE R. E. DARLING CO. P/N B1020 IS A COPY OF THE DOUGLAS AIRCRAFT P/N 4666315. IT IS OUR UNDERSTANDING THAT THE AIR CREW EQUIPMENT LABORATORY HAS TESTED AND APPROVED THE REPLACEABLE PIN P 10018 INSTALLED IN THE 4666315 FITTING.'

YOUR BID ON LOT II WAS REJECTED BY THE CONTRACTING AGENCY AS NONRESPONSIVE SINCE YOU FAILED TO FURNISH THE DATA REQUIRED BY THE BRAND NAME OR EQUAL CLAUSE SO AS TO ENABLE THE CONTRACTING AGENCY TO DETERMINE THE EQUALITY OF THE PRODUCT YOU OFFERED.

SINCE THE EVALUATION OF YOUR BID WAS BASED ON THE TECHNICAL EXPERTISE OF THE CONTRACTING AGENCY AS TO WHICH WE MUST NECESSARILY GIVE GREAT WEIGHT, THE ADVICES OF THAT AGENCY ARE SET FORTH BELOW FOR YOUR INFORMATION.

"2. LOT II OF THE INVITATION FOR BID CALLS FOR A QUANTITY OF 252 OXYGEN HOSE ASSEMBLIES, ACEL PART NUMBER 33C1141-1. THE HOSE ASSEMBLIES REQUIRED MUST HAVE PERFORMANCE CHARACTERISTICS IDENTICAL TO THOSE BEING PROCURED FOR OTHER APPLICATIONS. THE ESSENTIAL DIFFERENCE BETWEEN THIS REQUIREMENT AND OTHERS WAS THAT THE END USE APPLICATION (THERMAL RADIATION PROTECTION) REQUIRED THE HOSE IN THE ASSEMBLY BE WHITE IN COLOR.

"3. AN IMPORTANT PART OF THIS ASSEMBLY IS A DISCONNECT END PIECE WHICH MUST BE MADE OF STAINLESS STEEL. THE CONFIGURATION IS THAT CALLED OUT FOR IN R. E. DARLING PART NO. REDAR-B1020. BECAUSE AT THE TIME INVITATION WAS ISSUED, THE GOVERNMENT DID NOT HAVE DETAILED DRAWINGS AND OTHER DATA TO INCLUDE WITH THE SPECIFICATIONS, THIS REQUIREMENT WAS CALLED OUT IN THE INVITATION AS A REQUIREMENT FOR R.E. DARLING PART NO. REDAR-B1020 OR EQUAL AND A PROVISION WAS PLACED IN THE INVITATION REQUIRING THAT IF A BIDDER PROPOSED TO FURNISH AN "OR EQUAL" ITEM, HE MUST SUBMIT WITH HIS BID A FULL DESCRIPTION THEREOF AND SUFFICIENT DATA SO THAT THE GOVERNMENT COULD DETERMINE THAT WHAT HE OFFERED TO FURNISH WAS, IN FACT, EQUAL TO THE ITEM REQUIRED. THE STANDARD ASPR CLAUSE, 1-1206, WHICH COVERS THIS SITUATION WAS THE CLAUSE USED IN THIS INVITATION.

"4. SPACE AERO PRODUCTS COMPANY SUBMITTED THE LOW BID UNDER LOT II OF THE INVITATION FOR BID. THE BID WAS REVIEWED TO DETERMINE ITS RESPONSIVENESS TO THE IFB SINCE THIS FIRM BID ON AN "OR EQUAL" ITEM. IT WAS DETERMINED WITH ASSISTANCE OF TECHNICAL PERSONNEL THAT BECAUSE OF THE PAUCITY OF DATA SUBMITTED, IT WAS NOT POSSIBLE TO DETERMINE IF THE END PIECE WAS, IN FACT, EQUAL TO THAT SPECIFIED AND THAT SPACE AERO PRODUCTS COMPANY DID NOT MEET THE REQUIREMENTS OF THE "BRAND NAME OR EQUAL" CLAUSE. THE FACTS SUPPORTING THIS DETERMINATION WERE SUBMITTED TO OFFICE OF COUNSEL, AVIATION SUPPLY OFFICE, WHO UPHELD THE PROPRIETY OF THIS DETERMINATION.

"5. AT THE REQUEST OF SPACE AERO PRODUCTS COMPANY, A CONFERENCE WAS HELD AT THE NAMATCEN PURCHASE DIVISION ON 23 MAY 1961, ATTENDED BY THE COMPANY REPRESENTATIVE, TECHNICAL PERSONNEL FROM BOTH BUWEPS (RAAE) AND ACEL, AND NAMATCEN PURCHASE DIVISION PERSONNEL, FOR PURPOSES OF REVIEWING BOTH THE CONTRACTOR'S AND THE GOVERNMENT'S POSITIONS UNDER THE PROTEST. THE CONTRACTOR WAS ADVISED THAT HIS BID WAS CONSIDERED NON-RESPONSIVE TO REQUIREMENTS OF THE INVITATION SPECIFICALLY TO THE "BRAND NAME OR EQUAL" CLAUSE. THE CONTRACTOR STATED, IN HIS OPINION, THE DOUGLAS AIRCRAFT PART HE OFFERED WAS "OR EQUAL," BUT HE DID NOT REALIZE INSUFFICIENT DATA WAS FURNISHED TO PROPERLY EVALUATE WHAT HE CONSIDERED EQUAL. AT THIS POINT, HE WAS FURTHER ADVISED, FOR INFORMATION ON FUTURE PURCHASE OF THIS ITEM, THAT HAD HE FURNISHED COMPLETE DETAILS OF THE DOUGLAS AIRCRAFT PART, HIS BID STILL MIGHT HAVE BEEN CONSIDERED NON-RESPONSIVE SINCE IT IS UNDERSTOOD THE DOUGLAS AIRCRAFT PART IS MANUFACTURED FROM BERYLLIUM COPPER WHICH ACEL TECHNICAL PERSONNEL DID NOT CONSIDER EQUAL TO STAINLESS STEEL. THIS WAS QUESTIONED BY THE CONTRACTOR WHO ALLEGED THE NAVY WAS CURRENTLY PURCHASING AND ISSUING, TO THE FLEET, HOSE ASSEMBLIES WITH BERYLLIUM COPPER END PIECES.

"6. ACEL DRAWING 33C1141 ORIGINALLY PERMITTED THE END PIECES ON THE HOSE ASSEMBLY TO BE REDAR PART NO. A-1020 (BERYLLIUM COPPER), OR REDAR PART NO. B-1020 (STAINLESS STEEL), OR EQUIVALENT. THESE TWO PARTS ARE IDENTICAL EXCEPT FOR MATERIAL USED IN THEIR MANUFACTURE.

"7. THE SPECIFICATIONS IN THE INVITATION FOR BID INCLUDED IN THE LATEST REVISION OF THE ACEL DRAWING 33C1141; I.E., REVISION A, DATED 20 MARCH 1961 WHICH MODIFIED THE ORIGINAL DRAWING BY ELIMINATING THE REFERENCE TO REDAR PART A-1020 (BERYLLIUM COPPER), THEREBY REQUIRING THAT THE END PIECE BE MADE ONLY OF STAINLESS STEEL. AT THE TIME THE INVITATION FOR BID WAS ISSUED, BEST ADVICE AVAILABLE INDICATED THAT THE INVITATION FOR BID CALLED FOR MATERIAL REPRESENTING THE MINIMUM REQUIREMENTS OF THE GOVERNMENT.

"8. THE AIR CREW EQUIPMENT LABORATORY (ACEL), WHO IS THE TECHNICAL AGENT OF THE BUREAU OF NAVAL WEAPONS FOR THIS MATERIAL, CONDUCTED EVALUATIONS OF DIFFERENT MATERIALS FOR THE END PIECE IN QUESTION AND IN FEBRUARY 1959 RECOMMENDED TO THE BUWEPS THAT THE STAINLESS STEEL PART ONLY BE USED. ALTHOUGH THE ACEL SUBSEQUENTLY ISSUED REVISION A TO ACEL DRAWING 33C1141 ON 20 MARCH 1961 SPECIFYING THAT ONLY STAINLESS STEEL END PIECES WOULD BE ACCEPTABLE IN THE HOSE ASSEMBLIES, APPARENTLY, NO ACTION HAS BEEN TAKEN BY THE BUWEPS FOR STANDARDIZING ON THIS REQUIREMENT THROUGHOUT THE NAVY. FACT, IT IS KNOWN THAT THE AVIATION SUPPLY OFFICE CONTRACTED FOR A QUANTITY OF 4643 OF THESE HOSE ASSEMBLIES IN JANUARY 1961. IT IS UNDERSTOOD THESE HOSE ASSEMBLIES INCLUDED BERYLLIUM COPPER END PIECES AND ARE PRESENTLY IN STOCK AND BEING SUPPLIED TO THE FLEET. ADDITIONALLY, THE BUWEPS (RAAE) ADVISED THAT NO ACTION HAS BEEN TAKEN OR IS CONTEMPLATED TO MODIFY EXISTING DOUGLAS AIRCRAFT CONTRACTS UNDER WHICH THIS HOSE ASSEMBLY WILL BE FURNISHED AS CONTRACTOR FURNISHED EQUIPMENT.

"9. INVESTIGATIONS SUBSEQUENT TO THE SPACE AERO PRODUCTS COMPANY'S PROTEST INDICATE THAT THERE ARE UNRESOLVED DIFFERENCES BETWEEN THE BUREAU OF NAVAL WEAPONS AND ITS TECHNICAL AGENCY, THE AIR CREW EQUIPMENT LABORATORY, AS TO WHAT REPRESENTS THE MINIMUM REQUIREMENTS OF THE GOVERNMENT FOR THIS MATERIAL. IT IS PROPOSED TO CANCEL LOT II UNDER THE INVITATION FOR BIDS, SEEK RESOLUTION OF THESE DIFFERENCES AND RE-ADVERTISE THE REQUIREMENT UNDER APPROPRIATE SPECIFICATIONS.'

IN VIEW OF THE FOREGOING, TOGETHER WITH THE FACT THAT LOT II WILL BE READVERTISED UNDER SPECIFICATIONS SETTING FORTH THE MINIMUM NEEDS OF THE GOVERNMENT, WE FIND NO LEGAL BASIS TO OBJECT TO THE ADMINISTRATIVE ACTIONS TAKEN WITH RESPECT TO LOT II. ..END :