B-147036, OCT. 23, 1961

B-147036, OCT. 23, 1961

TO MR. LOUIS A. PEIRES, VIEVLEX, INC.:

FURTHER REFERENCE IS MADE TO LETTERS OF AUGUST 22, 25 AND 28, 1961, PROTESTING THAT THE ISSUANCE AND CONTENTS OF OFFICE OF CIVIL AND DEFENSE MOBILIZATION INVITATION AS-62-7 WERE UNDULY RESTRICTIVE OF COMPETITION.

ESSENTIALLY THE PROTEST IS TRIPARTITE. FIRST, IT IS CONTENDED THAT THE INVITATION WAS RESTRICTIVE IN THAT THE SPECIFICATIONS NAMED A PROPRIETARY MAKE FILMSTRIP PROJECTOR, CARRYING CASE COATING, AND PROJECTION SCREEN. SECOND, IT IS CONTENDED THAT THE 13-DAY INTERVAL BETWEEN ISSUANCE OF THE INVITATION AND THE OPENING OF BIDS WAS TOO SHORT TO PERMIT AMPLE TIME FOR YOUR FIRM TO SUBMIT AN "OR EQUAL" BID. THIRD, IT IS CONTENDED THAT THE INVITATION WAS SO INDEFINITE BECAUSE THE USE OF CERTAIN GENERAL TERMS MADE IT IMPOSSIBLE TO ASCERTAIN THE GOVERNMENT'S REQUIREMENTS.

WHILE THE INVITATION DID NAME CERTAIN PROPRIETARY ITEMS, THE DESIGNATION OF EACH PRODUCT WAS QUALIFIED BY TERMS INDICATING TO BIDDERS THAT THE NAMED BRAND WAS NOT THE ONLY ACCEPTABLE ARTICLE. FOLLOWING THE DESIGNATION OF THE PROPRIETARY PROJECTOR, STANDARD PROJECTOR EQUIPMENT COMPANY MODEL 333, THERE WAS A STATEMENT THAT "IF A BIDDER PROPOSES TO FURNISH A PROJECTOR OTHER THAN THAT INDICATED, HE SHALL SUBMIT A SAMPLE OF THE ITEM BID UPON WITH HIS BID.' WITH RESPECT TO THE CARRYING CASE COATING, THE INVITATION SPECIFIED THAT "IF COATING OTHER THAN INTERCHEMICAL COMPANY 5500 IS TO BE USED, THE BIDDER SHALL INDICATE WHAT HE PROPOSES TO FURNISH AND SHALL SUBMIT A SAMPLE OF SOME WITH BID.' THE FABRIC IN THE PROJECTION SCREEN INCLUDES A REFERENCE TO DA-LITE PATENT NO. 2,983,190, BUT THE PATENT DESCRIPTION IS QUALIFIED BY THE WORDS "OR EQUAL.' THE EFFECT OF THE TERMS FOLLOWING EACH OF THE NAMED ITEMS IS TO INVITE "OR EQUAL" BESIDES NAMED BRAND BIDS.

THE NECESSITY OF PROCURING SUPPLIES AT TIMES ON A NAMED BRAND "OR EQUAL" BASIS HAS BEEN RECOGNIZED. 5 COMP. GEN. 835. UNDER A SOLICITATION FOR A NAMED BRAND "OR EQUAL," AN ACCEPTABLE PRODUCT NEED NOT BE IDENTICAL TO THE NAMED BRAND, BUT NEED ONLY MEET THE SAME STANDARDS OF PERFORMANCE. THAT CONNECTION, IT HAS BEEN REPORTED THAT THE SUCCESSFUL BIDDER SUBMITTED AND THE CONTRACTING OFFICE ACCEPTED A PROJECTION SCREEN EQUIVALENT TO THE NAMED ITEM.

ALTHOUGH THE INVITATION FOR THE PROJECTOR KITS WAS ISSUED FORMALLY ON AUGUST 10, 1961, AND THE OPENING OF BIDS WAS SET FOR AUGUST 23, 1961, IT HAS BEEN REPORTED THAT THE SPECIFICATIONS FOR THE IMMEDIATE PROCUREMENT HAD BEEN DEVISED BY JUNE 30, 1961, AND THAT YOUR COMPANY SUBMITTED A PROTOTYPE PROJECTOR AS A COMPONENT OF THE KIT AND WAS ADVISED ON OR BEFORE JULY 14, 1961, OF THE DEFICIENCIES IN THE PROTOTYPE AND THE GENERAL NATURE OF MODIFICATIONS NECESSARY TO MEET THE GOVERNMENT'S REQUIREMENTS AND THAT ON OR BEFORE AUGUST 2, 1961, YOUR COMPANY WAS SUPPLIED WITH DETAILED SPECIFICATIONS FOR THE PROJECTOR KITS. THEREFORE, WHILE IT MAY BE THAT THE 13 DAYS BETWEEN ISSUANCE OF THE INVITATION AND OPENING OF BIDS MIGHT NOT ORDINARILY AFFORD SUFFICIENT TIME FOR A BIDDER TO DEVELOP AND SUBMIT A SAMPLE OF AN "OR EQUAL" ITEM UPON WHICH HE IS BIDDING, IT APPEARS HERE THAT YOU HAD SUFFICIENT ADVANCE NOTICE OF THE NEEDS OF THE OFFICE OF CIVIL AND DEFENSE MOBILIZATION BEFORE THE INVITATION WAS ISSUED TO PLACE YOURSELF IN A POSITION WHERE PRODUCTION OF A SAMPLE WOULD HAVE BEEN FEASIBLE WITHIN THE STIPULATED TIME. FURTHERMORE IT IS REPORTED THAT THREE BIDS RESPONSIVE TO THE INVITATION WERE RECEIVED FROM RESPONSIBLE BIDDERS PRIOR TO THE SCHEDULED OPENING DATE. NONE OF THE BIDS SUBMITTED CONTAINED ANY EXCEPTIONS OR PROTESTS TO THE INVITATION AND NO REQUESTS FROM ANY INTERESTED BIDDER FOR AN EXTENSION OF TIME OR CLARIFICATION OF THE INVITATION WERE RECEIVED PRIOR TO BID OPENING. IN ANY EVENT, THE DETERMINATION OF THE INTERVAL THAT SHALL BE MADE AVAILABLE FOR BIDDERS BETWEEN THE ISSUANCE OF AN INVITATION FOR BIDS AND THE OPENING OF BIDS IS AN ADMINISTRATIVE PREROGATIVE, DEPENDING UPON THE EXIGENCIES OF THE PROCUREMENT PROGRAM. THEREFORE, WE HAVE HELD THAT AN AWARD IS VALID EVEN THOUGH THE INVITATION PURSUANT TO WHICH IT WAS MADE PERMITTED SO SHORT A PERIOD BETWEEN ISSUANCE AND BID OPENING THAT SOME BIDDERS WERE UNABLE TO SUBMIT BIDS WITHIN THE TIME ALLOWED. B-94494, MAY 24, 1950.

THE INVITATION DOES EMPLOY CERTAIN GENERAL TERMS IN THE DESCRIPTION OF VARIOUS PARTICULARS. FOR EXAMPLE, PAGE 5 OF THE INVITATION INDICATES THAT TRANSPORTATION COSTS FOR CERTAIN MATERIALS WILL BE BORNE BY THE CONTRACTOR. IT IS SUGGESTED BY YOUR REPRESENTATIVE THAT THE MEANING OF ,TRANSPORTATION COSTS" IS NOT CLEAR. HOWEVER, THE TRANSPORTATION COSTS CLAUSE IS SPECIFIC THAT THE TERMS REFER ONLY TO "FREIGHT OR EXPRESS BILLS.' ALSO, ON PAGE 7 OF THE INVITATION, THE PROJECTION BULB IS DESCRIBED AS "COLOR CORRECTED.' YOUR REPRESENTATIVE QUESTIONS THE MEANING OF THE TERMS. WE BELIEVE THAT THESE ARE TRADE TERMS THAT COULD BE ASCERTAINED FROM COMPETENT PERSONS IN THE INDUSTRY IN WHICH THEY ARE IN COMMON USAGE. ON PAGE 12 OF THE INVITATION, IT STATES UNDER THE HEADING "QUALITY" THAT "ALL WORK PERFORMED UNDER THE CONTRACT SHALL MEET ACCEPTED STANDARDS OF THE FILMSTRIP AND MOTION PICTURE INDUSTRY.' YOUR REPRESENTATIVE QUESTIONS THE MEANING OF THOSE TERMS. WHILE THE QUALITY STANDARD IS NOT PRECISE IT IS CAPABLE OF ASCERTAINMENT SINCE A SPECIFIC POINT OF REFERENCE EXISTS IN THE REFERENCE TO THE INDUSTRY. IN THE EVENT THERE IS ANY DISPUTE UNDER THE CONTRACT AWARDED, THE QUALITY STANDARD COULD BE ESTABLISHED BY EVIDENCE FROM QUALIFIED MEMBERS OF THE INDUSTRY. WHILE THE INVITATION MAY HAVE EMPLOYED THESE AND OTHER SIMILAR GENERAL TERMS, A REASONABLE DEGREE OF DEFINITENESS WAS PRODUCED BY THE INVITATION. HOWEVER, IF YOUR FIRM WAS CONFUSED BY THE TERMS AND PROVISIONS EMPLOYED IN THE SPECIFICATIONS, CLARIFICATION COULD HAVE BEEN SOUGHT FROM THE CONTRACTING OFFICE IMMEDIATELY AFTER THE SPECIFICATIONS WERE RECEIVED INSTEAD OF WAITING TO WRITE A LETTER OUTLINING THE SPECIFIC QUESTIONS AT SO LATE A DATE THAT IT WAS NOT RECEIVED UNTIL AFTER THE OPENING OF BIDS.

UPON REVIEW OF THE MATTER, WE FIND NO BASIS TO OBJECT TO THE INSTANT PROCUREMENT.