B-153531, MAR. 20, 1964

B-153531: Mar 20, 1964

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INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED FEBRUARY 16. THE ABOVE INVITATION WAS ISSUED ON DECEMBER 6. PAGES 3 AND 4 OF THE INVITATION PROVIDED: "/A) IF ITEMS CALLED FOR BY THIS INVITATION FOR BIDS HAVE BEEN IDENTIFIED IN SCHEDULE BY A . SUCH IDENTIFICATION IS INTENDED TO BE DESCRIPTIVE. IS TO INDICATE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WILL BE SATISFACTORY. 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.

B-153531, MAR. 20, 1964

TO WILLIAM B. JOHNSON AND ASSOCIATES, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED FEBRUARY 16, 1964, AND SUBSEQUENT CORRESPONDENCE DATED FEBRUARY 21 AND 24, 1964, PROTESTING THE PROPOSED AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. NY-11-64-3098, ISSUED BY THE NEW YORK OPERATIONS OFFICE, UNITED STATES ATOMIC ENERGY COMMISSION.

THE ABOVE INVITATION WAS ISSUED ON DECEMBER 6, 1963, SOLICITING BIDS FOR 675 RADIATION BIOLOGY ACCESSORY KITS IN ACCORDANCE WITH CERTAIN ATTACHED SPECIFICATIONS. AS TO THOSE BIDS OFFERING ,EQUAL" ITEMS, PAGES 3 AND 4 OF THE INVITATION PROVIDED:

"/A) IF ITEMS CALLED FOR BY THIS INVITATION FOR BIDS HAVE BEEN IDENTIFIED IN SCHEDULE BY A ,BRAND NAME OR EQUAL" DESCRIPTION, SUCH IDENTIFICATION IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS TO INDICATE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WILL BE SATISFACTORY. 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. THE EVALUATION OF BIDS AND THE DETERMINATION AS TO EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE GOVERNMENT AND WILL BE BASED ON INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN HIS BID AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. CAUTION TO BIDDERS. THE PURCHASING ACTIVITY IS NOT RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH IS NOT IDENTIFIED IN THE BID AND REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. ACCORDINGLY, TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE BIDDER MUST FURNISH AS 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 PRODUCTS 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 TO OR INFORMATION OTHERWISE AVAILABLE TO THE PURCHASING ACTIVITY.'

IN THEIR REPORT DATED FEBRUARY 20, 1964, THE ADMINISTRATIVE AGENCY INDICATES THAT YOUR BID WAS ORIGINALLY REJECTED BECAUSE OF VARIOUS DISCREPANCIES BETWEEN THE ITEMS SPECIFIED AND THOSE ITEMS OFFERED IN YOUR BID. HOWEVER, AT THE SUGGESTION OF THIS OFFICE, THE AGENCY RE EVALUATED ITS POSITION IN REGARD TO THE VARIOUS ITEMS IN DISPUTE AND WHILE THEY WILL NOT AGREE THAT THEIR CRITICISM AS TO ONE ITEM MAY NOT HAVE BEEN WELL FOUNDED, THEY STILL MAINTAIN THAT YOUR BID IS NOT RESPONSIVE AS TO ITEM NO. 2.7.3. SPECIFICALLY THEY STATE:

"WITH RESPECT TO 2.7.3 THE BIDDER HAS PROPOSED AN ACCEPTABLE EQUAL IN REFERRING TO "PFEIFFER GLASS" AND SETTING FORTH PFEIFFER CATALOG NUMBERS, 6200 AND 6100. THE CATALOG NUMBERS ARE SUFFICIENT TO IDENTIFY ACCEPTABLE ITEMS. THE BIDDER, HOWEVER, ADDED THE WORDS "OR EQUAL" AFTER ,PFEIFFER GLASS" AND BY SO DOING HAS INDICATED A WILLINGNESS TO FURNISH SOMETHING OTHER THAN THE BRAND NAME ITEM SPECIFIED, SOMETHING OTHER THAN THE "OR EQUAL" ITEM FIRST MENTIONED IN HIS BID, AND SOMETHING WHICH MAY OR MAY NOT BE EQUAL TO THE BRAND NAME ITEM SPECIFIED BUT WHICH IS NOT CLEARLY IDENTIFIED IN THE BID. THE GOVERNMENT IS NOT ABLE TO DETERMINE THE ITEM INTENDED BY THE USE OF THE WORDS "OR EQUAL.'"

IN RESPONSE TO THE ABOVE CONTENTION YOUR LETTER OF FEBRUARY 24, 1964, POINTS OUT THAT PFEIFFER GLASS HAS BEEN SYNONYMOUS WITH PIPETTES FOR 45 YEARS AND THAT YOUR COMPANY HAS EXERCISED ITS BEST JUDGMENT IN ATTEMPTING TO ASSURE THE GOVERNMENT OF YOUR INTENT TO FURNISH THE BEST MICROPIPETTES AVAILABLE.

ON VARIOUS OCCASIONS, THIS OFFICE HAS HAD AN OPPORTUNITY TO CONSIDER CASES SIMILAR TO THAT UNDER DISCUSSION. IN B-143084, DATED JUNE 22, 1960, WE HELD THAT WHERE A BIDDER FAILED TO SUFFICIENTLY IDENTIFY THE ITEM OFFERED IN A "BRAND NAME OR EQUAL" SITUATION HIS BID COULD NOT BE CONSIDERED RESPONSIVE BECAUSE IT FAILED TO COMPLY WITH A NECESSARY AND MATERIAL REQUIREMENT OF THE INVITATION IN THAT THERE WAS NOTHING TO INDICATE WHAT THE BIDDER WAS OFFERING. IN THE PRESENT CASE, WHILE YOU PROPOSED AN ACCEPTABLE ITEM WHEN YOU REFERRED TO PFEIFFER GLASS, THE ADDITIONAL WORDS "OR EQUAL" IMMEDIATELY THEREAFTER CERTAINLY INDICATED THAT YOU AT LEAST CONTEMPLATED THE POSSIBILITY OF FURNISHING SOMETHING OTHER THAN PFEIFFER GLASS WITHOUT INDICATING WHAT THAT OTHER PRODUCT WOULD BE. WE THINK THAT THE PRESENT CASE IS SIMILAR TO THAT DESCRIBED IN 41 COMP. GEN. 366 WHEREIN WE HELD THAT WHEN A BIDDER PROPOSES TO FURNISH AN ARTICLE OTHER THAN THE BRAND NAME ARTICLE SPECIFIED IN THE INVITATION, HIS BID MAY NOT BE INTERPRETED TO INCLUDE THE CHARACTERISTICS OF THE REQUIRED ITEM UNLESS HE CLEARLY IDENTIFIES THE PROPOSED ARTICLE AS REQUIRED.

WHILE IT MAY BE ARGUED THAT THE PROCURING AGENCY--- AFTER AWARD--- COULD HAVE REFUSED TO ACCEPT ANY PRODUCT THAT IT DID NOT CONSIDER EQUAL TO PFEIFFER, YOU WILL CERTAINLY AGREE THAT THE QUESTION OF WHAT IS "EQUAL" IS PURELY SUBJECTIVE IN NATURE AND AS SUCH IS NOT READILY ASCERTAINABLE AT THE TIME AWARD IS MADE. FOR THIS VERY REASON BIDDERS ARE CAUTIONED TO CLEARLY IDENTIFY THE ITEM INTENDED AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. SEE 41 COMP. GEN. 366, 368, WHEREIN WE STATED:

"A BID IS AN OFFER WHICH UPON PROPER ACCEPTANCE RIPENS INTO A CONTRACT BINDING UPON THE PARTIES. TO BE VALID AN OFFER MUST BE SUFFICIENTLY CERTAIN TO ENABLE A COURT TO UNDERSTAND WHAT THE PROMISOR UNDERTAKES AND WHAT HE AGREES TO ACCEPT IN RETURN IF THE OFFER IS ACCEPTED. 1 WILLISTON ON CONTRACTS, 3D EDITION, SEC. 24. SEE ALSO THE RESTATEMENT OF CONTRACTS, SEC. 32. THE PURPOSE OF REQUIRING DATA TO BE SUBMITTED WITH A BID IN A CASE SUCH AS THIS IS TO PERMIT A DETERMINATION BY THE PROCURING AGENCY OF PRECISELY WHAT THE BIDDER PROPOSES, AND WILL BE BOUND, TO FURNISH IF AWARDED THE CONTRACT. 39 COMP. GEN. 595, 598. IN EFFECT, THE DESCRIPTIVE DATA REQUIREMENT IS IN PART A DEVICE TO INSURE THE RECEIPT OF AN OFFER SUFFICIENTLY DEFINITE IN SUBJECT MATTER AS TO RESULT IN A BINDING CONTRACT UPON ACCEPTANCE. FROM THE FOREGOING WE BELIEVE IT IS FAIR TO STATE THAT A BID WHICH DOES NOT CONFORM TO A PROPERLY UTILIZED DESCRIPTIVE DATA REQUIREMENT IS DEFECTIVE NOT ONLY BECAUSE IT FAILS TO COMPLY WITH A MATERIAL PROVISION OF THE INVITATION BUT, GENERALLY, BECAUSE AS AN OFFER IT IS TOO INDEFINITE TO MEET THE STATED TEST.'

CONSEQUENTLY, WE FIND NO PROPER BASIS FOR CONCLUDING THAT REJECTION OF YOUR BID WAS IMPROPER.