B-146169, OCT. 25, 1961

B-146169: Oct 25, 1961

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 26. WERE REQUESTED ON A DIESEL ENGINE GENERATOR SET. THE INVITATION CALLS ATTENTION TO THE FACT THAT THE SOLICITATION IS ON A BRAND NAME "OR EQUAL" BASIS AND PROVIDES THAT IF A BID IS SUBMITTED ON AN "EQUAL" ITEM. THAT IF THE BIDDER DOES NOT DESCRIBE IN FULL THE ITEM WHICH IS OFFERED. THE BID WILL BE REJECTED. AN AMENDMENT TO THE INVITATION WAS ISSUED MAY 22. 381 AND INDICATED THAT YOU WERE BIDDING ON "S AND S. SINCE NO FURTHER INFORMATION OR LITERATURE WAS FURNISHED WITH YOUR BID. IT WAS REJECTED AS NONRESPONSIVE FOR THE REASON THAT YOU FAILED TO DESCRIBE IN FULL THE "EQUAL" ITEM ON WHICH YOU WERE BIDDING. THE SECOND LOW BID WAS REJECTED AS NONRESPONSIVE BECAUSE IT OFFERED AN UNDERGROUND FUEL TANK IN LIEU OF THE REQUIRED EQUIPMENT MOUNTED TANK.

B-146169, OCT. 25, 1961

TO STEWART AND STEVENSON SERVICES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 26, 1961, PROTESTING AN AWARD TO DARR EQUIPMENT COMPANY UNDER ARMY INVITATION FOR BIDS NO. QM 41- 187-61-15.

BIDS TO BE OPENED JUNE 7, 1961, WERE REQUESTED ON A DIESEL ENGINE GENERATOR SET, AS DESCRIBED, TO BE CUMMINS MODEL HRC4G WITH SIMPLEX CONTROL PANEL C-U1 OR EQUAL. THE INVITATION CALLS ATTENTION TO THE FACT THAT THE SOLICITATION IS ON A BRAND NAME "OR EQUAL" BASIS AND PROVIDES THAT IF A BID IS SUBMITTED ON AN "EQUAL" ITEM, THE BRAND NAME OF THE ITEM PROPOSED TO BE FURNISHED SHALL BE GIVEN, AS WELL AS A FULL DESCRIPTION THEREOF INCLUDING PERTINENT PHYSICAL, MECHANICAL, ELECTRICAL AND CHEMICAL DETAILS, AND A STATEMENT EXPLAINING THE DIFFERENCES BETWEEN THE ITEM BEING OFFERED AND THE BRAND NAME CALLED FOR BY THE INVITATION, AND THAT IF THE BIDDER DOES NOT DESCRIBE IN FULL THE ITEM WHICH IS OFFERED, THE BID WILL BE REJECTED.

AN AMENDMENT TO THE INVITATION WAS ISSUED MAY 22, 1961, WHICH GAVE A MORE COMPLETE DESCRIPTION OF THE ENGINE AND FURNISHED DETAILED INFORMATION AS TO CERTAIN REQUIRED FEATURES OF THE EQUIPMENT. THIS AMENDMENT STATES THAT ALL OTHER TERMS AND CONDITIONS OF THE INVITATION REMAIN UNCHANGED.

YOU SUBMITTED THE LOW BID OF $5,381 AND INDICATED THAT YOU WERE BIDDING ON "S AND S, MODEL 45 GD-53C GENERATOR SET AND CONTROL PANEL. LENGTH - 88 IN., WIDTH - 30 IN., HEIGHT - 60 IN., INCORPORATING MOD. 4 53 G.M. DIESEL AND S AND S CONTROL PANEL.' SINCE NO FURTHER INFORMATION OR LITERATURE WAS FURNISHED WITH YOUR BID, IT WAS REJECTED AS NONRESPONSIVE FOR THE REASON THAT YOU FAILED TO DESCRIBE IN FULL THE "EQUAL" ITEM ON WHICH YOU WERE BIDDING, AS REQUIRED BY THE INVITATION. THE SECOND LOW BID WAS REJECTED AS NONRESPONSIVE BECAUSE IT OFFERED AN UNDERGROUND FUEL TANK IN LIEU OF THE REQUIRED EQUIPMENT MOUNTED TANK, AND AWARD WAS MADE TO DARR EQUIPMENT COMPANY AS THE LOW RESPONSIVE BIDDER IN THE AMOUNT OF $6,130.

YOU PROTEST THIS AWARD ON THE GROUNDS THAT (1) AMENDMENT NO. 1, TOGETHER WITH CLAUSE NO. 13 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, CHANGED THE PROCUREMENT FROM A "BRAND NAME OR EQUAL" PROCUREMENT TO ONE BASED UPON THE DETAILED SPECIFICATIONS SET FORTH IN THE AMENDMENT, (2) THE STEWART AND STEVENSON BID ADEQUATELY DESCRIBED THE EQUIPMENT TO BE SUPPLIED SO THAT A DETERMINATION COULD BE MADE BY THE CONTRACTING OFFICER AS TO WHETHER IT WAS EQUAL TO THAT CALLED FOR IN THE SCHEDULE, AND (3) THE DESCRIPTIVE LITERATURE SUBMITTED BY THE BIDDER TO WHOM THE AWARD WAS MADE DID NOT DESCRIBE A GENERATOR SET MEETING THE SPECIFICATIONS.

CLAUSE NO. 13, REFERRED TO ABOVE, READS AS FOLLOWS:

"CITATION OF SPECIFICATION: WHERE DETAILED SPECIFICATIONS ARE SHOWN IN THE SOLICITATION, ANY REFERENCE BY BIDDER TO BRAND OR TRADE NAMES OR MODEL NUMBERS WILL BE ASSUMED TO MEAN THAT THE ITEM SO REFERENCED CONFORMS TO SPECIFICATIONS OR WILL BE MODIFIED TO CONFORM TO SPECIFICATIONS. DELIVERIES UNDER ANY CONTRACT AWARDED WILL BE REQUIRED IN ACCORDANCE WITH GOVERNMENT SPECIFICATIONS CITED IN THE SOLICITATION. (QMCPI 7-105.50).'

THE REFERENCE TO SPECIFICATIONS IN THE ABOVE QUOTATION IS CONSIDERED AS REFERRING TO PUBLISHED MILITARY SPECIFICATIONS AND STANDARDS. EVEN ASSUMING THAT IT INCLUDES SPECIFICATIONS WHICH ARE SPECIALLY WRITTEN FOR A PARTICULAR PROCUREMENT, IT SEEMS CLEAR THAT AMENDMENT NO. 1 WAS NOT A STATEMENT OF NEW DETAILED SPECIFICATIONS WHICH CHANGED THE NATURE OF THE PROCUREMENT, BUT WAS IN STRICT ACCORD WITH PARAGRAPH 1-1206 (C) (1) OF THE ARMED SERVICES PROCUREMENT REGULATION, WHICH PROVIDES THAT A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION SHOULD SPECIFICALLY SET FORTH THOSE SALIENT CHARACTERISTICS OF THE NAMED SUPPLIES WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT.

THE CUMMINS' BULLETIN USED IN THE REQUISITIONING OF THIS EQUIPMENT WAS NOT NO. 950189, AS MENTIONED IN YOUR LETTER OF PROTEST, BUT NO. 950189-A. THIS BULLETIN INCLUDES MODEL HRC-4-G AND LISTS SOME OF THE FEATURES INCLUDED IN THE AMENDMENT AS STANDARD EQUIPMENT AND SOME AS OPTIONAL EQUIPMENT, AND IT WAS THEREFORE NECESSARY TO ISSUE THE AMENDMENT SO THAT PROSPECTIVE BIDDERS WOULD KNOW EXACTLY WHAT TO FURNISH.

WITH REFERENCE TO YOUR CONTENTION THAT YOUR BID ADEQUATELY DESCRIBED THE EQUIPMENT TO BE SUPPLIED SO THAT THE CONTRACTING OFFICER COULD DETERMINE WHETHER IT WAS EQUAL TO THAT CALLED FOR IN THE SCHEDULE, WE REFER YOU TO THE DESCRIPTION QUOTED IN THE FOURTH PARAGRAPH OF THIS LETTER WHICH WAS THE ONLY ONE FURNISHED. THIS OBVIOUSLY DOES NOT MEET THE REQUIREMENT FOR A FULL DESCRIPTION, INCLUDING PERTINENT PHYSICAL, MECHANICAL, ELECTRICAL AND CHEMICAL DETAILS, AND A STATEMENT EXPLAINING THE DIFFERENCES BETWEEN THE ITEM OFFERED AND THE BRAND NAME. NO STATEMENT WAS MADE THAT NO MATERIAL DIFFERENCES EXISTED AND NO DETAILED DESCRIPTION WAS FURNISHED BY SUBMITTING LITERATURE OR OTHERWISE. WE HAVE CONSISTENTLY HELD THAT FAILURE TO FURNISH MATERIAL INFORMATION REQUIRED BY THE INVITATION AND NECESSARY FOR EVALUATION OF THE BID MAY NOT BE WAIVED AS A MINOR INFORMALITY.

AS TO YOUR STATEMENT THAT THE LITERATURE SUBMITTED BY THE SUCCESSFUL BIDDER DID NOT DESCRIBE A GENERATOR SET MEETING SPECIFICATIONS, YOU ARE ADVISED THAT THE LITERATURE ACCOMPANYING THE BID OF DARR EQUIPMENT COMPANY DESCRIBES A CATERPILLAR D320 SERIES "A" ENGINE RATHER THAN A D320-T AS STATED IN YOUR LETTER, AND LISTS A WATER-COOLED SYSTEM WITH RADIATOR. FOR PRACTICAL PURPOSES THE PICTURE SHOWS AN OPEN-TYPE UNIT WHICH MAY BE ADAPTED TO MEET ANY USE. THE UNIT MAY BE MOUNTED AS SHOWN IN THE BULLETIN ON A CONCRETE BASE AS A STATIONARY UNIT, OR SKID MOUNTED AND ENCLOSED AS A PORTABLE UNIT, AS REQUIRED BY AMENDMENT NO. 1. THE 50 KW. RATING OF THE CATERPILLAR D320-A IS A STANDBY RATING, AS STATED BY YOU, BUT THE INVITATION DOES NOT SPECIFY WHETHER THE 50 KW. RATING REFERRED TO THEREIN IS CONTINUOUS OR STANDBY, AND CUMMINS BULLETIN NO. 950189-A SHOWS UNITS WITH BOTH 40 AND 50 KW. CONTINUOUS RATINGS UNDER MODEL HRC-4-G. IN THIS CONNECTION WE HAVE BEEN INFORMALLY ADVISED BY CUMMINS ENGINE COMPANY THAT THEIR 40 AND 50 KW. UNITS ARE SUBSTANTIALLY THE SAME AND THAT THE TWO UNITS HAVE AN IDENTICAL STANDBY RATING.

IN CONCLUSION, THE DEPARTMENT OF THE ARMY REPORTS THAT THE UNIT FURNISHED BY DARR EQUIPMENT COMPANY DOES MEET THE BRAND NAME "OR EQUAL" REQUIREMENT OF THE INVITATION, THAT IT HAS ALL OF THE FEATURES DESCRIBED IN AMENDMENT NO. 1, AND THAT ITS PERFORMANCE IS HIGHLY SATISFACTORY. ACCORDINGLY, WE FIND NO LEGAL BASIS FOR DISTURBING THE AWARD AS MADE.