B-151586, JUNE 27, 1963, 42 COMP. GEN. 739

B-151586, JUNE 27, 1963, 42 COMP. GEN. 739

CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - BRAND NAME OR EQUAL A LOW BIDDER WHO INSERTED THE WORD "NONE" UNDER A BRAND NAME OR EQUAL PROVISION IN AN INVITATION WHICH UNLIKE SOME INVITATIONS MERELY STATED THAT UNLESS THE BIDDER INDICATES THAT HE IS OFFERING AN EQUAL PRODUCT HIS BID SHALL BE CONSIDERED AS OFFERING A BRAND NAME PRODUCT BUT DID NOT REQUIRE THE BIDDERS TO FURNISH THE BRAND NAME OR EQUAL IS PROPERLY REGARDED AS NOT OFFERING THE EQUAL ITEMS AND THE FACT THAT BIDDER INSERTED PRICES FOR THE ITEMS WOULD ALSO PRECLUDE AN INTERPRETATION THAT HE DID NOT INTEND TO SUPPLY THE REQUIRED ITEMS AND, HENCE, THE LOW BID IS CONSTRUED AS RESPONSIVE TO THE INVITATION.

TO THE MODEL ENGINEERING AND MANUFACTURING CORP., JUNE 27, 1963:

THIS REFERS TO YOUR LETTER OF MAY 16, 1963, AND THE CORRESPONDENCE SUBMITTED ON YOUR BEHALF BY GOODWIN, ROSENBAUM, MEACHAM AND WHITE, COUNSELORS AT LAW, PROTESTING AGAINST THE PROPOSED CONSIDERATION OF A BID SUBMITTED BY STANDARD WINDING COMPANY, UNDER INVITATION FOR BIDS NO. AMC- 11-022-63-1590 (E), ISSUED BY THE CHICAGO PROCUREMENT DISTRICT, U.S. ARMY, ON MARCH 8, 1963.

THE INVITATION REQUESTED BIDS ON VARIOUS QUANTITIES OF AN/PRC-9 (ITEM NO. 1) AND AN/PRC-10 (ITEM NO. 4) RADIO SETS, ANCILLARY ITEMS AND STOCK FUND COMPONENTS. THE BIDDER WAS ASKED TO INSERT A UNIT PRICE FOR GIVEN QUANTITIES OF RADIO SETS, AND IT WAS PROVIDED THAT THE BIDDER MUST INCLUDE THE SUB AND SUB-SUBITEMS LISTED IN THE BID SCHEDULE, WITH EACH RADIO SET, THE COST OF WHICH WAS TO BE INCLUDED IN THE COST OF THE RADIO SET.

AS LISTED IN THE BID SCHEDULE, SUB-SUBITEMS 1-10-4 AND 4-10-4 ARE IDENTICAL COMPONENTS--- 2 EACH LAMP, INCANDESCENT, GE NUMBER 331 OR EQUAL- -- USED IN EACH OF THE RADIO SETS, AND ARE THE ONLY COMPONENTS IN THE INVITATION CALLED FOR BY BRAND NAME OR EQUAL. PROVISION A ON PAGE 37 OF THE INVITATION, ENTITLED "BRAND NAME OR EQUAL" PROVIDES IN PART AS FOLLOWS:

(A) * * * BIDS OFFERING "EQUAL" PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE INVITATION FOR BIDS.

(B) UNLESS THE BIDDER CLEARLY INDICATES IN HIS BID THAT HE IS OFFERING AN "EQUAL" PRODUCT, HIS BID SHALL BE CONSIDERED AS OFFERING A BRAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BIDS.

(C) (1) IF THE BIDDER PROPOSES TO FURNISH AN "EQUAL" PRODUCT, THE BRAND NAME, IF ANY, OF THE PRODUCT TO BE FURNISHED SHALL BE INSERTED IN THE SPACE PROVIDED IN THE INVITATION FOR BIDS, OR SUCH PRODUCT SHALL BE OTHERWISE CLEARLY IDENTIFIED IN THE BID. * * * ACCORDINGLY, TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE BIDDER MUST FURNISH AS A PART OF HIS BID ALL DESCRIPTIVE MATERIAL (SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER INFORMATION) NECESSARY FOR THE PURCHASING ACTIVITY TO (I) DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE INVITATION FOR BIDS AND (II) ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. THE INFORMATION FURNISHED MAY INCLUDE SPECIFIC REFERENCES TO INFORMATION PREVIOUSLY FURNISHED OR TO INFORMATION OTHERWISE AVAILABLE TO THE PURCHASING ACTIVITY.

BIDS WERE OPENED ON APRIL 15, 1963, AND FOR THE QUANTITIES TO BE ORDERED OF 1,011 EACH AN/PRC-9, AND 11,918 EACH AN/PRC-10, THE BIDS RECEIVED WERE EVALUATED AS FOLLOWS:

TABLE

BIDDERS AND TOTAL CONTRACT PRICES BID:

(1) STANDARD WINDING COMPANY - - - - - - - - - - $3,010,427.30

(2) MODEL ENGINEERING AND MFG. CORP - - - - - - 3,129,486.36

(3) SEM-ONICS INC - - - - - - - - - - - - - - - 3,282,256.31

(4) DAYTON ELECTRONICS PRODUCTS COMPANY - - - - 3,289,304.43

(5) ADMIRAL CORPORATION - - - - - - - - - - - - 3,370,915.01

(6) ELECTRONIC DIVISION BUDD COMPANY - - - - - - 4,246,298.49

(7) VIEWLEX INC - - - - - - - - - - - - - - - -- 5,155,957.72

IT WAS NOTED THAT THE PORTION OF STANDARD WINDING'S BID, COVERING SUB- SUBITEMS 1-10-4 AND 4-10-4, READS AS FOLLOWS:

CHART 6240-228-7130

(1-10-4)2 EACH LAMP, INCANDESCENT .32

(4-10-4) * * * GE NUMBER 331 OR EQUAL BIDDING ON: MANUFACTURER'S NAME NONE BRAND NONE PART NO. NONE

STANDARD WINDING INSERTED UNIT PRICES ON ALL ITS SUB AND SUB SUBITEMS, EVEN THOUGH THIS WAS NOT REQUIRED, AND ANALYSIS REVEALS THAT THE TOTAL OF THE SUBITEM INSERTIONS EQUAL THE BID PRICE QUOTED BY THIS BIDDER FOR THE MAXIMUM QUANTITY OF RADIO SETS LISTED UNDER ITEM NOS. 1 AND 4, NAMELY, $226.90 PER UNIT. AS STATED IN THE BID SCHEDULE, THE SUB-SUBITEMS ARE TO BE INCLUDED WITH SUBITEMS 1-10 AND 4-10: "RECEIVER TRANSMITTER; " BUT THE UNIT PRICES INSERTED BY STANDARD ON THE SUB SUBITEMS DO NOT TOTAL THE PRICE INSERTION FOR ITEM 1-10 AND 4-10, OF $185.00 AND OBVIOUSLY INDICATE ONLY A PARTIAL BREAKDOWN OF THE RECEIVER-TRANSMITTER PRICE.

YOU CONTEND THAT IN FILLING IN ITS BID IN THE MANNER DESCRIBED ABOVE, NAMELY, THE INSERTION OF THE WORD "NONE," AND THE INSERTION OF A UNIT PRICE OF $0.32, STANDARD OFFERED AN "EQUAL" ITEM TO WHICH A BRAND NAME DESCRIPTION IS INAPPROPRIATE; BUT AT THE SAME TIME, FAILED, IN THE WORDS OF PROVISION A, (C) (1), TO ENABLE THE PURCHASING ACTIVITY TO "ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN RD.'

THE CASE OF BAYHA V. PUBLIC UTILITY DISTRICT NO. 1 OF GRAY'S HARBOR, 97 P 2D 614, 620, IS CITED IN YOUR BEHALF AS ILLUSTRATING THAT THE WORD "NONE" IS A DEMONSTRATIVE PRONOUN, WHICH, IN CORRECT USAGE, MUST HAVE AN ANTECEDENT TO WHICH IT REFERS. IT IS CONTENDED THAT, AS IT APPEARS IN THE STANDARD WINDING BID, THE WORD "NONE" REFERS, RESPECTIVELY, TO "MANUFACTURER'S NAME," "BRAND," AND "PART NO.; " HENCE STANDARD WINDING HAS OFFERED TO SUPPLY AN EQUAL ITEM WITHOUT A MANUFACTURER'S NAME, BRAND OR PART NUMBER.

IN SUPPORT OF THIS CONCLUSION YOU REFER TO PARAGRAPH (C) (1) OF PROVISION A, BRAND NAME OR EQUAL, WHICH STATES THAT:

IF THE BIDDER PROPOSES TO FURNISH AN EQUAL PRODUCT, THE BRAND NAME, IF ANY, OF THE PRODUCT TO BE FURNISHED SHALL BE INSERTED IN THE SPACE PROVIDED * * *.

IT IS YOUR CONTENTION THAT BIDDERS ARE NOT OBLIGED TO OFFER BRAND NAME PRODUCTS AS "EQUAL" ITEMS; AND WHERE AN "EQUAL" ITEM IS BEING OFFERED TO WHICH A BRAND NAME DESCRIPTION IS INAPPROPRIATE, THE BIDDER MAY DO SO BY INSERTING THE WORD "NONE.' YOU CONCLUDE THAT THE LOW BID IS NONRESPONSIVE IN ACCORDANCE WITH THE HOLDING AND PRINCIPLES STATED IN OUR PRIOR DECISIONS B-144112, JANUARY 13, 1961, AND B-144902, FEBRUARY 8, 1961.

EACH OF THE CITED CASES INVOLVED A BID WHERE THE BIDDER LEFT BLANK THE SPACE PROVIDED AFTER SUBITEM DESCRIPTIONS WHICH INCLUDED BRAND NAME OR EQUAL. THE "BRAND NAME OR EQUAL" PROVISION FOUND IN THOSE INVITATIONS PROVIDED, IN PART, THAT BIDDERS WERE REQUIRED TO INDICATE CLEARLY WHETHER THEY WERE FURNISHING THE BRAND NAME OR AN EQUAL ITEM; AND IN BOTH DECISIONS, BY FAILING TO INDICATE EITHER A BRAND NAME OR AN EQUAL, THE BIDDER WAS IN THE POSITION OF NOT BEING OBLIGATED TO FURNISH THE SUBITEM AND THUS HAD AN OPTION AFTER BID OPENING OF EITHER SECURING AN AWARD BY CLARIFICATION OF ITS BID, OR OF SO ACTING AS TO CAUSE REJECTION OF ITS BID, IF IT WISHED. WE STATED THAT SUCH AN OPTION WOULD BE PREJUDICIAL TO THE OTHER BIDDERS AND INCONSISTENT WITH THE PRINCIPLES OF COMPETITIVE BIDDING; AND WE CONCLUDED THAT THESE BIDS WERE NONRESPONSIVE. (AS YOU HAVE NOTED, IT WAS YOUR BID THAT WAS REJECTED IN B-144912, SUPRA.)

IN REACHING THE CONCLUSION THAT STANDARD WINDING'S BID IS RESPONSIVE, THE CONTRACTING OFFICER AND HIS LEGAL COUNSEL POINT OUT THAT THE "BRAND NAME OR EQUAL" CLAUSE FOUND IN THIS INVITATION DOES NOT STATE, AS DID THE CLAUSE IN THE PRIOR CASES, THAT THE BIDDER MUST CLEARLY SPECIFY WHETHER HIS BID WAS BASED ON THE BRAND NAME OR ON AN EQUAL. THEY CITE PARAGRAPH (B) OF THE PRESENT CLAUSE WHICH STATES THAT UNLESS THE BIDDER CLEARLY INDICATES IN HIS BID THAT HE IS OFFERING AN EQUAL PRODUCT, HIS BID SHALL BE CONSIDERED AS OFFERING THE BRAND NAME PRODUCT; AND THEY CONCLUDE THAT THE USE OF THE WORD "NONE" IN STANDARD WINDING'S BID "SIMPLY MANIFESTS THE BIDDER'S INTENT NOT TO OFFER AN EQUIVALENT ITEM OF ANOTHER MANUFACTURER.'

WE REACH THE SAME CONCLUSION AS THE CONTRACTING OFFICER. AS YOU POINT OUT (WE REFER TO PAGE NO. 2 OF THE MEMORANDUM OF LAW, DATED JUNE 14, 1963, SUBMITTED IN YOUR BEHALF BY GOODWIN, ROSENBAUM, MEACHAM AND WHITE, ESQUIRES), THE PRICE NOTATIONS APPEARING NEXT TO THE DISPUTED SUB- SUBITEMS, 1-10-4 AND 4-10-4 OF STANDARD WINDING'S BID, RULE AGAINST AN INTERPRETATION UNDER WHICH STANDARD WOULD BE OFFERING TO SUPPLY NONE OF THE REFERENCED ITEMS. ALTHOUGH THE PRICE INSERTIONS OF $0.32 ARE NOT OFFERED AS BIDS, THE INSERTION OF A PRICE FIGURE BY THE BIDDER INDICATES A CLEAR INTENT TO FURNISH THE REFERENCED ITEMS.

IT IS POSSIBLE, AS YOU SAY, THAT A BIDDER MIGHT OFFER AN INCANDESCENT LAMP LACKING A BRAND NAME OR PART NUMBER, AS AN EQUAL TO THE GE NUMBER 331 LAMP. WE CANNOT UNDERSTAND, HOWEVER, WHY SUCH A LAMP COULD NOT BE REFERENCED TO ITS MANUFACTURER. SURELY THE BIDDER WOULD KNOW WHO MANUFACTURED THE LAMP IT WAS OFFERING, AND PRESUMABLY IT WOULD FURNISH THIS INFORMATION IN ITS BID, INSTEAD OF INSERTING THE WORD "NONE" NEXT TO THE PHRASE "NAME OF MANUFACTURER," IF IT INTENDED TO OFFER AN EQUAL ITEM.

IT APPEARS TO US THAT BY INSERTING THE WORD "NONE" AS IT DID, THE BIDDER INTENDED TO INDICATE THAT IT WAS NOT OFFERING AN EQUAL ITEM IN PLACE OF THE BRAND NAME ITEM. UNDER THE "BRAND NAME OR EQUAL" CLAUSE CONSIDERED IN B-144112 AND B-144912, SUPRA, BIDDERS WERE REQUIRED TO STATE AFFIRMATIVELY WHETHER THEY PROPOSED TO OFFER THE BRAND NAME OR AN EQUAL, AND THE ABSENCE OF ANY INSERTION BY THE BIDDER IN EACH CASE INDICATED THAT THE BIDDER DID NOT INTEND TO FURNISH THE ITEM AT ALL. IN THIS CASE, PARAGRAPH (B) OF THE "BRAND NAME OR EQUAL"CLAUSE PROVIDES THAT THE BIDDER WILL BE CONSIDERED TO HAVE OFFERED THE BRAND NAME UNLESS HE CLEARLY INDICATES THAT HE IS FURNISHING AN EQUAL ITEM. AS WE HAVE NOTED, THE STANDARD WINDING BID SHOWS THAT THE BIDDER DOES INTEND TO FURNISH THE REQUIRED ITEMS, BUT WE DO NOT UNDERSTAND THE WORD "NONE" TO MEAN THAT THE BIDDER IS OFFERING AN EQUAL ITEM. THE LANGUAGE USED BY THE BIDDER IS NOT INCONSISTENT WITH AN INTENTION TO FURNISH THE BRAND NAME, AND WE BELIEVE THIS IS THE INTERPRETATION A COURT WOULD PLACE ON THE LANGUAGE.

ACCORDINGLY, WE DO NOT FIND THAT THE STANDARD WINDING BID IS NONRESPONSIVE, AND YOUR PROTEST IS THEREFORE DENIED.