B-148605, JUN 22, 1962

B-148605, JUN 22, 1962

TO THE HICKOK ELECTRICAL INSTRUMENT COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 28, 1962, ADDRESSED TO OUR AIR FORCE AUDIT GROUP AT WRIGHT-PATTERSON AIR FORCE BASE, PROTESTING THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 33- 604-62-152-G ISSUED BY THE WRIGHT-PATTERSON AIR FORCE BASE ON DECEMBER 5, 1961.

THE INVITATION SOLICITED BIDS FOR FURNISHING 58 GENERATOR-SIGNALS, TYPE TS-421/U, HEWLETT-PACKARD MODEL 205AG, OR EQUAL. ARTICLE N OF THE SCHEDULE, PAGE 14 OF THE INVITATION PROVIDED AS FOLLOWS:

"N. BRAND NAME OR EQUAL:

"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 NAMED 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.

"/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.)

ON PAGE 4 OF THE BID FORM YOU STATED THAT YOU WERE BIDDING ON THE HICKOK MODEL NO. 2975M, MANUFACTURED BY STARK ELECTRONIC INSTRUMENTS, LTD., AND YOUR BID BORE THE NOTATION "SEE LETTER ATTACHED.' THE LETTER ATTACHED TO YOUR BID WAS DATED JANUARY 11, 1962, AND IS, IN PERTINENT PART, AS FOLLOWS:

"IN RESPONSE TO SUBJECT INVITATION WE ARE BIDDING ON OUR MODEL 2975M AUDIO SIGNAL GENERATOR WHICH IS EQUAL TO THE HEWLETT-PACKARD 205AG.

"WE HAVE SUPPLIED THIS PARTICULAR UNIT AS THE TS-5008 (TR-1), WHICH WAS SOLD TO THE CANADIAN ARMY, NAVY AND AIR FORCE UNDER THIS NOMENCLATURE. THIS PARTICULAR TS-5008 SUPERSEDES THE TS-421/U AND WE HAVE BUILT A QUANTITY OF 106 UNITS. WE HAVE OUR SAMPLE READY TO BE SUBMITTED FOR EVALUATION SHOULD WE BE THE SUCCESSFUL BIDDER.

"ENCLOSED IS A COPY OF THE TS-421/U INSTRUCTION MANUAL. PLEASE NOTE THAT ON THE TS-5008, THE BOOK WAS PRINTED BY THE CANADIAN GOVERNMENT, BUT WE DO HAVE AN INSTRUCTION BOOK THAT WILL ACCOMMODATE THE MODEL 2975M.

"WE WILL ADHERE TO ALL SPECIFICATIONS AS OUTLINED IN YOUR INVITATION AND SHOULD HAVE NO PROBLEM WHATSOEVER IN CONFORMING TO SAME.'

IN YOUR LETTER OF MARCH 28, 1962, YOU CONTEND THAT YOU COMPLIED WITH THE PROVISIONS OF ARTICLE N, QUOTED ABOVE, BY IDENTIFYING THE BRAND NAME OFFERED (MODEL 2975M) AND DESCRIBING THE ITEM OFFERED BY ENCLOSING BOOKLET TS-421/U WITH YOUR LETTER OF JANUARY 11, 1962. YOU STATE THAT BY THE SECOND PARAGRAPH OF YOUR LETTER OF JANUARY 11 YOU "HAVE TIED THESE TWO NUMBERS TOGETHER" (TS-421/U AND 2975M) AS ONE AND THE SAME EQUIPMENT. THE INSTRUCTION MANUAL TS-421/U IS A WAR DEPARTMENT TECHNICAL MANUAL PUBLISHED IN OCTOBER 1945 AND PAGE 1 OF THE MANUAL SHOWS THAT AUDIO OSCILLATOR TS- 421/U IS THE HEWLETT-PACKARD MODEL 205AG. IN YOUR LETTER OF JANUARY 11, 1962, YOU STATE THAT YOUR MODEL 2975M AUDIO SIGNAL GENERATOR (AUDIO OSCILLATOR) IS "EQUAL TO THE HEWLETT-PACKARD 205AG.' YOU STATED THAT YOU HAD SUPPLIED MODEL 2975M AS TS-5008 (TR-1) TO THE CANADIAN ARMED FORCES AND THAT THE TS-5008 MODEL SUPERSEDES THE TS-421/U MODEL. IT WAS NOT STATED THAT THESE THREE MODELS WERE IDENTICAL, AS YOU NOW ALLEGE, SINCE YOU MERELY STATED THAT MODEL 2975M WAS EQUAL TO THE HEWLETT-PACKARD MODEL 205AG. ALSO, YOU STATED THAT YOU HAD "AN INSTRUCTION BOOK THAT WILL ACCOMMODATE THE MODEL 2975M" BUT YOU DID NOT FURNISH IT. PRESUMABLY THIS INSTRUCTION BOOK WOULD HAVE SET OUT ALL THE DETAILS OF THE MODEL YOU OFFERED.

THE STATEMENTS IN YOUR COVER LETTER OF JANUARY 11, 1962, WERE NOT CLEAR AND THE CONTRACTING OFFICER WAS JUSTIFIED IN CONCLUDING THAT YOU HAD FAILED TO FURNISH COMPLETE DESCRIPTIVE DATA OUTLINED ON SUBPARAGRAPH (2) OF CLAUSE N ON AN "OR EQUAL ITEM" SINCE YOU STATED THAT YOU HAD AN INSTRUCTION BOOK FOR MODEL 2975M AND YOU HAD INDICATED THAT THIS MODEL WAS AN "OR EQUAL" ITEM. SINCE YOU WERE FULLY ADVISED IN THAT CLAUSE THAT IF YOU FAILED TO DESCRIBE IN FULL THE "OR EQUAL" ITEM YOUR BID WOULD BE REJECTED, THE CONTRACTING OFFICER FELT THAT HE HAD NO ALTERNATIVE IN THE MATTER.

IT HAS BEEN CONSISTENTLY HELD BY OUR OFFICE THAT WHERE AN INVITATION MAKES IT CLEAR THAT DATA REQUIRED TO BE FURNISHED WILL BE USED IN EVALUATING BIDS AND THAT FAILURE TO FURNISH SUCH DATA WILL RESULT IN REJECTION OF A BID SUCH PROVISION MUST BE STRICTLY ENFORCED. 40 COMP. GEN. 132; 37 ID. 763; 36 ID. 415; AND B-146168, JUNE 30, 1961.