B-152059, DEC. 23, 1963

B-152059: Dec 23, 1963

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HANCOCK AND ROTHERT: REFERENCE IS MADE TO YOUR LETTERS DATED JULY 17. THE ITEM DESCRIPTIONS WERE PREFACED WITH THE FOLLOWING NOTICE: "COMMISSARY STORE EQUIPMENT. INCORPORATED IN THE DESCRIPTIONS OF ITEMS 3 THROUGH 8 WERE REFERENCES TO CERTAIN WEBER COMPANY MODEL NUMBERS "OR EQUAL.'. IN PARAGRAPH 7 THAT: "DIMENSIONS ARE FOR DESCRIPTIVE PURPOSES AND NOT MEANT TO BE RESTRICTIVE. REASONABLE VARIATIONS WILL BE CONSIDERED IF OVERALL CAPACITY. UTILIZATION AND APPEARANCE ARE OTHERWISE ACCEPTABLE.'. THE BIDS WERE OPENED JUNE 25. BAKER COMPANY WAS THE APPARENT LOW BIDDER. ALLEGING THAT BAKER'S BID IS NONRESPONSIVE TO THE INVITATION. IT IS ALLEGED THAT EACH ITEM PROPOSED TO BE SUPPLIED BY BAKER DEVIATES MATERIALLY FROM THE DESCRIPTION OF THE ITEM REQUIRED IN THE INVITATION.

B-152059, DEC. 23, 1963

TO CUSHING, CULLINAN, HANCOCK AND ROTHERT:

REFERENCE IS MADE TO YOUR LETTERS DATED JULY 17, 1963, WITH ENCLOSURES, AND SEPTEMBER 19, 1963, PROTESTING IN BEHALF OF THE WEBER SHOWCASE AND FIXTURE COMPANY, INC., THE AWARD OF A CONTRACT TO JAMES S. BAKER COMPANY UNDER INVITATION FOR BIDS SFV-6226-63, ISSUED BY THE SAN FRANCISCO REGIONAL OFFICE, GENERAL SERVICES ADMINISTRATION.

THE RECORD INDICATES THAT THE INVITATION FOR BIDS ISSUED ON JUNE 11, 1963. IT CALLED FOR BIDS ON EIGHT ITEMS OF COMMISSARY STORE EQUIPMENT FOR CLARK AIR FORCE BASE, PHILIPPINES. THE ITEM DESCRIPTIONS WERE PREFACED WITH THE FOLLOWING NOTICE:

"COMMISSARY STORE EQUIPMENT, DESIGN, CONSTRUCTION, AND QUALITY TO BE AS MANUFACTURED BY WEBER SHOWCASE AND FIXTURE CO., INC., 5700 AVALON BLVD., LOS ANGELES, CALIFORNIA, OR EQUAL. * * *.'

INCORPORATED IN THE DESCRIPTIONS OF ITEMS 3 THROUGH 8 WERE REFERENCES TO CERTAIN WEBER COMPANY MODEL NUMBERS "OR EQUAL.' SPECIAL NOTICE NO. 1 TO PROSPECTIVE BIDDERS DATED JUNE 14, 1963, STATED, IN PARAGRAPH 7 THAT:

"DIMENSIONS ARE FOR DESCRIPTIVE PURPOSES AND NOT MEANT TO BE RESTRICTIVE. REASONABLE VARIATIONS WILL BE CONSIDERED IF OVERALL CAPACITY, UTILIZATION AND APPEARANCE ARE OTHERWISE ACCEPTABLE.'

GSA FORM 1424, INCORPORATED IN THE INVITATION BY REFERENCE, CLEARLY OUTLINES THE "BRAND NAME OR EQUAL" PROVISIONS.

THE BIDS WERE OPENED JUNE 25, 1963, AND THE JAMES A. BAKER COMPANY WAS THE APPARENT LOW BIDDER. THE BAKER COMPANY PROPOSED TO FURNISH THE ITEMS REQUIRED AS MANUFACTURED BY COMPANIES OTHER THAN THE WEBER COMPANY, BUT OF EQUAL QUALITY, AND FURNISHED COMMERCIAL DESCRIPTIVE LITERATURE WITH ITS BID.

THE WEBER COMPANY IN ITS LETTER OF JULY 5, 1963, TO THE SAN FRANCISCO OFFICE, FEDERAL SUPPLY SERVICE, AND IN YOUR LETTER OF JULY 17, 1963, PROTESTS THE CONTRACT AWARD TO THE BAKER COMPANY, ALLEGING THAT BAKER'S BID IS NONRESPONSIVE TO THE INVITATION. IT IS ALLEGED THAT EACH ITEM PROPOSED TO BE SUPPLIED BY BAKER DEVIATES MATERIALLY FROM THE DESCRIPTION OF THE ITEM REQUIRED IN THE INVITATION. SPECIFICALLY IT IS ALLEGED THAT THE BAKER COMPANY PROFERRED A WALK-IN COOLER WITH BUT 3 5/8-INCH WALLS RATHER THAN THE 6-INCH WALLS CALLED FOR IN THE INVITATION; THAT GENERALLY THEY WERE OFFERING BAKED ENAMEL FINISHES WHERE PORCELAIN ENAMEL WAS SPECIFIED; THAT, WHERE REQUIRED, CONCEALED ROTARY LOCK FASTENERS WERE OFFERED INSTEAD OF CONCEALED LOCK FASTENERS; AND THAT MANY ITEMS REQUIRED IN THE INVITATION AS INCLUDED AT NO EXTRA COST WERE DESCRIBED IN THE LITERATURE FURNISHED WITH BAKER'S BID AS BEING EXTRA-COST PARTS.

IN GENERAL IT APPEARS TO BE YOUR CONTENTION THAT THE BID OF THE JAMES S. BAKER COMPANY FAILS TO RESPOND LITERALLY TO THE DESCRIPTION OF THE ITEMS REQUIRED IN THE INVITATION FOR BIDS. YOU FURTHER CONTEND THAT BAKER IS NOT A QUALIFIED BIDDER BECAUSE IT IS NOT A MANUFACTURER OR PRODUCER OF THE ARTICLES LISTED IN THE INVITATION TO BID AND IS NOT A REGULAR DEALER IN SUCH ARTICLES.

IT IS REPORTED THAT THE JAMES S. BAKER COMPANY IS AN EXPORT-IMPORT FIRMAND HAS FURNISHED REFRIGERATED EQUIPMENT FOR OFFSHORE CONSIGNEES; THAT IT HAS ITS OWN WAREHOUSE AND IN ADDITION LEASES WAREHOUSE AND EXPORT PACKING FACILITIES FROM A COMMERCIAL PACKER IN THE SAN FRANCISCO AREA; AND THAT IT HAD FOR MANY YEARS DEALT WITH THE PARENT COMPANY OF THE COMPANY MANUFACTURING THE FIXTURES IT PROPOSED TO FURNISH IF AWARDED THE CONTRACT, AND NOW FEATURES SUCH FIXTURES AS A PART OF ITS REGULAR LINE. IT THUS APPEARS THAT THE BAKER COMPANY IS A REGULAR DEALER IN THE ARTICLES REQUIRED.

IT IS FURTHER REPORTED THAT THE ITEMS OFFERED BY BAKER WERE NOT ALTERNATIVE TO THE SPECIFICATIONS BUT ALTERNATIVE TO THE WEBER PRODUCTS; THAT THE PARTS AND ACCESSORIES DESCRIBED AS ,EXTRAS" IN THE LITERATURE ACCOMPANYING BAKER'S BID WERE INCLUDED IN THE BID AT NO ADDITIONAL COST TO THE GOVERNMENT; AND THAT THE OTHER VARIATIONS FROM THE SPECIFICATIONS OF ARTICLES TO BE FURNISHED WERE CONSIDERED TO BE MINOR AND NOT AFFECTING THE EQUALITY OF THE ITEMS OFFERED IN MEETING THE NEEDS OF THE GOVERNMENT IN ESSENTIALLY THE SAME MANNER AS THOSE SPECIFIED.

IT CONSISTENTLY HAS BEEN HELD THAT IT IS THE PROVINCE OF THE ADMINISTRATIVE AGENCY TO DRAFT SPECIFICATIONS SETTING FORTH ITS ACTUAL NEEDS AND TO DETERMINE WHETHER ARTICLES OFFERED MEET THE SPECIFICATION REQUIREMENTS.

THERE IS NO RULE THAT ONLY AN EXACT DUPLICATE IN PHYSICAL CHARACTERISTICS OR PERFORMANCE OF A NAMED BRAND MAY BE REGARDED AS RESPONSIVE. RATHER, THE "OR EQUAL" PROVISION HAS BEEN CONSTRUED TO MEAN THAT ANY ALTERNATE ITEM OFFERED MUST EQUAL THE SPECIFIED PRODUCT WITH RESPECT TO SUITABILITY FOR THE PURPOSE INTENDED. 38 COMP. GEN. 291, 294; B-136389, JULY 23, 1958. THE BIDDERS WERE SPECIFICALLY ADVISED OF THIS POSITION BY THE LANGUAGE OF THE INVITATION QUOTED ABOVE.

CONSIDERATION HAS BEEN GIVEN TO THE DECISIONS CITED IN YOUR LETTER AND WE FIND THEM INAPPLICABLE TO THE PRESENT CIRCUMSTANCES. THE DECISION OF NOVEMBER 8, 1950, B-94518, 30 COMP. GEN. 179, WAS NOT CONCERNED WITH "BRAND NAME OR EQUAL" INVITATION FOR BIDS, BUT UPON DEVIATIONS IN A BID FOR FURNISHING CERTAIN ITEMS OF ELECTRICAL EQUIPMENT TO BE IN ACCORDANCE WITH THE GOVERNMENT SPECIFICATIONS THEREFOR. THE SECOND DECISION, B- 143526, OCTOBER 24, 1960, WAS CONCERNED WITH AN INVITATION TO BID ON THE FURNISHING OF DIFFERENT QUANTITIES OF A SPECIFIED ITEM, INCLUDING VARIOUS QUANTITIES OF RUNNING SPARE PARTS AND OTHER RELATED ITEMS LISTED THEREIN. IN THIS CASE IT WAS DETERMINED THAT PROTESTANT'S BID OMITTED CERTAIN SPARE PARTS AND MADE NO MENTION OF THE COST THEREOF, AND HENCE DID NOT REFLECT THE COMPLETE COST OF THE EQUIPMENT, INCLUDING SPARE PARTS, AND WAS NONRESPONSIVE TO THE INVITATION. IT IS INDICATED HEREINABOVE THAT, ALTHOUGH THE COMMERCIAL LITERATURE SUBMITTED WITH BAKER'S BID INDICATED CERTAIN PARTS TO BE EXTRA COST ACCESSORIES, IT WAS DETERMINED THAT SUCH EXTRA ITEMS WERE NOT SO INDICATED IN THE BID, AND, THEREFORE, WERE INCLUDED IN THE BID PRICE IN ACCORDANCE WITH THE INVITATION.

SINCE IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT THE COMMISSARY STORE EQUIPMENT OFFERED BY THE JAMES S. BAKER COMPANY WILL PROVIDE THE SERVICE AND APPEARANCE REQUIRED BY THE GOVERNMENT, AND EQUAL TO THAT OF THE WEBER COMPANY EQUIPMENT, WE FIND NO LEGAL BASIS TO OBJECT TO THE PROPOSED AWARD TO THE JAMES S. BAKER COMPANY.