B-153717, JUNE 4, 1964, 43 COMP. GEN. 761

B-153717: Jun 4, 1964

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TO A BIDDER WHO OFFERED AN ITEM THAT DEVIATED FROM ONE OF THE DESCRIPTIVE REQUIREMENTS THAT WAS SUBSEQUENTLY DETERMINED TO BE UNNECESSARY TO THE GOVERNMENT'S NEEDS. WAS NOT PROPER. IN VIEW OF THE FACT THAT THE AWARD WAS MADE IN GOOD FAITH AND THAT THE CONTRACTOR SPENT SUBSTANTIAL SUMS IN PREPARING TO MEET HIS OBLIGATIONS UNDER THE CONTRACT. IN WHICH A CONTRACT WAS CANCELED BECAUSE THE AWARD HAD BEEN MADE ON THE BASIS OF A BID THAT DEVIATED SUBSTANTIALLY FROM THE SPECIFICATIONS TO THE DISADVANTAGE OF OTHER BIDDERS ARE TO BE DISTINGUISHED FROM THE CASE OF AN AWARD TO A BIDDER WHO OFFERED TO FURNISH AN ITEM WHICH WAS IN MANY RESPECTS SUPERIOR TO THE DESCRIPTION IN A BRAND NAME OR EQUAL INVITATION BUT DEVIATED FROM ONE MINOR REQUIREMENT THAT WAS SUBSEQUENTLY DETERMINED TO BE UNNECESSARY TO THE GOVERNMENT'S NEEDS AND.

B-153717, JUNE 4, 1964, 43 COMP. GEN. 761

CONTRACTS - SPECIFICATIONS - DEVIATIONS - INFORMAL V. SUBSTANTIVE - BRAND NAME. CONTRACTS - AWARDS - CANCELLATION - ERRONEOUS AWARDS. CONTRACTS - DELIVERIES - ITEMS OMITTED FROM BIDS. CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE - RESTRICTIVE V. DESCRIPTIVE ALTHOUGH THE AWARD OF A CONTRACT, UNDER A BRAND NAME OR EQUAL INVITATION THAT DID NOT SPECIFY THE SALIENT CHARACTERISTICS NEEDED BY THE GOVERNMENT, TO A BIDDER WHO OFFERED AN ITEM THAT DEVIATED FROM ONE OF THE DESCRIPTIVE REQUIREMENTS THAT WAS SUBSEQUENTLY DETERMINED TO BE UNNECESSARY TO THE GOVERNMENT'S NEEDS, WAS NOT PROPER, IN VIEW OF THE FACT THAT THE AWARD WAS MADE IN GOOD FAITH AND THAT THE CONTRACTOR SPENT SUBSTANTIAL SUMS IN PREPARING TO MEET HIS OBLIGATIONS UNDER THE CONTRACT, CANCELLATION WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT. THE CIRCUMSTANCES IN PRESTEX, INC. V. UNITED STATES, CT.CL. NO. 415 61, DECIDED JULY 12, 1963, IN WHICH A CONTRACT WAS CANCELED BECAUSE THE AWARD HAD BEEN MADE ON THE BASIS OF A BID THAT DEVIATED SUBSTANTIALLY FROM THE SPECIFICATIONS TO THE DISADVANTAGE OF OTHER BIDDERS ARE TO BE DISTINGUISHED FROM THE CASE OF AN AWARD TO A BIDDER WHO OFFERED TO FURNISH AN ITEM WHICH WAS IN MANY RESPECTS SUPERIOR TO THE DESCRIPTION IN A BRAND NAME OR EQUAL INVITATION BUT DEVIATED FROM ONE MINOR REQUIREMENT THAT WAS SUBSEQUENTLY DETERMINED TO BE UNNECESSARY TO THE GOVERNMENT'S NEEDS AND, THEREFORE, IN THE LATTER CASE BECAUSE THE CONTRACT WAS ENTERED INTO IN GOOD FAITH AND THE CONTRACTOR SPENT SUBSTANTIAL SUMS OF MONEY IN PREPARING TO MEET THE OBLIGATIONS OF THE CONTRACT, CANCELLATION WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT. AN AWARD, UNDER PARAGRAPH 1-1206.4 OF THE ARMED SERVICES PROCUREMENT REGULATION REQUIRING BIDDERS TO IDENTIFY SPECIFIC PRODUCTS TO BE FURNISHED AS WELL AS ANY MODIFICATIONS FROM THE BRAND NAME PRODUCTS SPECIFIED IN THE INVITATION, TO A BIDDER WHO SUBMITTED DESCRIPTIVE LITERATURE ON THE EQUIPMENT TO BE FURNISHED THAT DID NOT INCLUDE A PARTICULAR COMPONENT IN THE BRAND NAME PRODUCT SPECIFIED IN THE INVITATION AND WHO DID NOT INDICATE THAT HIS EQUIPMENT CONTAINED ANY MODIFICATIONS OF THE BRAND NAME PRODUCT IS NOT AN AWARD THAT OBLIGATED THE CONTRACTOR TO FURNISH THE COMPONENT WHICH WAS SUBSEQUENTLY DETERMINED TO BE UNNECESSARY TO THE GOVERNMENT'S NEEDS AND, THEREFORE, DELIVERY OF THE EQUIPMENT WITHOUT THE COMPONENT MAY BE ACCEPTED. IN PROCUREMENTS UTILIZING BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS, THE GOVERNMENT'S ACTUAL NEEDS SHOULD BE DETERMINED IN ADVANCE OF THE ISSUANCE OF THE INVITATION AND ONLY SUCH ACTUAL NEEDS SHOULD BE SET FORTH AS SALIENT CHARACTERISTICS AND IF REASONABLE TOLERANCES RESPECTING THE PHYSICAL OR FUNCTIONAL CHARACTERISTICS OF THE EQUIPMENT ARE ACCEPTABLE TO THE PROCURING AGENCY, THE SALIENT CHARACTERISTICS SHOULD BE STATED IN APPROXIMATE TERMS.

TO THE DIRECTOR, DEFENSE SUPPLY AGENCY, JUNE 4, 1964:

WE REFER TO A LETTER DATED APRIL 2, 1964, FROM MR. GEORGE W. SHELHORSE, ASSISTANT COUNSEL, FURNISHING A REPORT AND DOCUMENTS ON THE PROTEST FILED WITH OUR OFFICE BY THE A. DALKIN COMPANY, A DIVISION OF AMERICAN MACHINE AND FOUNDRY COMPANY, AGAINST THE PROPOSED CANCELLATION BY THE DEFENSE GENERAL SUPPLY CENTER OF A CONTRACT AWARDED TO THAT COMPANY FOR BEVERAGE DISPENSERS.

INVITATION FOR BIDS NO. DSA 4-64-1069 WAS ISSUED ON DECEMBER 20, 1963, SOLICITING BIDS FOR FURNISHING 50 BEVERAGE DISPENSERS ON A F.O.B. DESTINATION BASIS. AMENDMENT 1 TO THE INVITATION WAS ISSUED ON DECEMBER 24, 1963, INCREASING THE TOTAL NUMBER OF DISPENSERS TO BE PURCHASED FROM 50 TO 150. THE INVITATION CARRIED THE FOLLOWING PURCHASE DESCRIPTION:

FSN 7320-3726 DISPENSER, BEVERAGE, ELECTRICALLY REFRIGERATED: SINGLE BOWL, TRANSPARENT UNBREAKABLE PLASTIC; 4 GALLON BEVERAGE CAPACITY; APPROX DIMENSIONS OF UNIT 23 IN. HIGH, 17 IN. DEEP, 15 IN. WIDE; FURNISHED 1/6 HP HERMETICALLY SEALED REFRIGERATION UNIT, ADJUSTABLE BEVERAGE TEMP. CONTROL, STERILIZER LAMP, CABINET ACCESS PANELS, DRIP TRAY, 7 FT. (MIN) POWER CORD WITH GROUNDED CONNECTION, PUMP OR STIRRING APPARATUS TO PROVIDE CONTINUOUS BEVERAGE CIRCULATION THROUGH BOWL AND COOLING AREA; ELECTRICAL CHARACTERISTICS 115 VOLTS, AC, 60 CYCLE, SINGLE PHASE; PROOF OF COMPLIANCE WITH UL AND NSF REQUIREMENTS MUST BE FURNISHED; JET SPRAY CORP MODEL NO. JS-6 "OR AL.'

BIDS WERE OPENED AS SCHEDULED ON JANUARY 20, 1964. FOUR BIDS WERE RECEIVED AS FOLLOWS:

TABLE

SUB-ITEM 002

SUB-ITEM 001 75 EACH

75 EACH F.O.B. DEFENSE

F.O.B. TRACY GENERAL SUPPLY

BIDDER DEFENSE DEPOT CENTER JET SPRAY CORP. $176.00 (F.O.B. ORIGIN) HEDEMAN PRODUCTS, INC. 199.00 $199.00 PRO-CRAFT ENGINEERING CO. 122.50 122.00 A. DALKIN CO. 175.00 175.00

PRO-CRAFT ENGINEERING COMPANY, THE LOW BIDDER, BID ON ITS "MODEL WC E.' PRO-CRAFT'S BID WAS REJECTED AS NONRESPONSIVE FOR FAILURE TO MEET THE SPECIFIC REQUIREMENTS SET FORTH IN THE PURCHASE DESCRIPTION SINCE THE LITERATURE ATTACHED TO PRO-CRAFT'S BID DESCRIBED THE MODEL WC-3 AS HAVING A THREE GALLON CAPACITY. THE CONTRACTING OFFICER REPORTS THAT PRO-CRAFT ALSO HAD NOT FURNISHED DATA NECESSARY TO DETERMINE THAT THE ITEM COMPLIED WITH UL REQUIREMENTS.

A. DALKIN COMPANY, THE SECOND LOW BIDDER, SUBMITTED A BID ON THE AMERICAN MACHINE AND FOUNDRY COMPANY "SIR CULATOR" MODEL CD-30 AS AN EQUAL ITEM WITH DESCRIPTIVE LITERATURE ATTACHED. THIS LITERATURE INDICATED THAT THE ITEM OFFERED BY A. DALKIN COMPANY WAS A SEVEN GALLON, 1/4 H.P. UNIT, 31 1/4 INCHES HIGH, 16 INCHES WIDE AND 18 3/4 INCHES DEEP. THE SIR CULATOR UNIT WAS A LARGER ITEM WHICH EXCEEDED THE CAPACITY REQUIREMENTS SPECIFIED IN THE INVITATION AND, ACCORDING TO THE CONTRACTING OFFICER, WAS CONSIDERED FROM A TECHNICAL STANDPOINT TO BE A SUPERIOR ITEM. THE CONTRACTING OFFICER REPORTS THAT IT WAS DETERMINED THAT THE SIR CULATOR UNIT WOULD BE SATISFACTORY FOR THE GOVERNMENT'S REQUIREMENTS AND THAT AWARD SHOULD BE MADE TO A. DALKIN. IN THAT CONNECTION, A DOCUMENT ENTITLED "DETERMINATION AND FINDINGS" DATED JANUARY 27, 1964, SIGNED BY THE CONTRACTING OFFICER AND SUBMITTED AS PART OF THE RECORD BEFORE US, RECITES THAT:

2. THIS BID (A. DALKIN) WAS SENT TO DIR, TECHNICAL OPERATIONS FOR EVALUATION, AND THEY SUGGESTED THAT DIR, SUPPLY OPERATIONS BE CONTACTED AS TO THE ACCEPTABILITY OF A LARGER CAPACITY MACHINE.

3. MR. ROBERT RILEY, DIR, SUPPLY OPERATIONS, WAS CONTACTED AND IN TURN SPOKE WITH COLONEL DIBBLE AND AN AGREEMENT WAS REACHED THAT THE LARGER CAPACITY MACHINE WOULD BE SATISFACTORY FOR THE REQUIREMENTS OF THE AIR FORCE (ONLY RECORDED USER).

4. MR. RILEY INITIALED COMMENT NO. 2 FROM DIR, TECHNICAL OPERATIONS, INDICATING ACCEPTANCE OF THE SUGGESTED ITEM.

DETERMINATION

ON THE BASIS OF THE ABOVE INFORMATION, IT IS DETERMINED THAT AN AWARD WILL BE MADE TO THE AMERICAN MACHINE AND FUNDRY COMPANY FOR THE BRAND NAME ITEM SPECIFIED IN THEIR BID.

AWARD OF CONTRACT DSA-4-020650-TP521 WAS MADE TO A. DALKIN COMPANY, A DIVISION OF AMERICAN MACHINE AND FOUNDRY COMPANY, ON JANUARY 31, 1964, FOR 150 UNITS OF ITS SIR CULATOR, MODEL CD-30, AT A UNIT PRICE OF $175.

THE CONTRACTING OFFICER REPORTS THAT BEVERAGE DISPENSERS ARE IN SHORT SUPPLY WITH BACK ORDERS ON HAND. ON FEBRUARY 20, 1964, THE A. DALKIN COMPANY WAS TELEPHONICALLY REQUESTED BY THE PROCURING AGENCY TO ACCELERATE DELIVERY TO THE MAXIMUM EXTENT AT NO COST TO THE GOVERNMENT. ON FEBRUARY 26 AND MARCH 3, 1964, THE A. DALKIN COMPANY ADVISED THAT 75 UNITS WOULD BE SHIPPED ON MARCH 20, 1964, AND 75 ON MARCH 27, 1964. (THE CONTRACT REQUIRES SHIPMENT OF ALL 150 UNITS TO BOTH DESTINATIONS BY JULY 17, 1964.) IT IS REPORTED THAT THE FIRST 75 UNITS ARE PACKED AND READY FOR SHIPMENT WHILE THE REMAINING UNITS ARE READY FOR PACKING. HOWEVER, DUE TO SUBSEQUENT EVENTS, AS DESCRIBED BELOW, NO DELIVERIES HAVE BEEN MADE.

BY LETTER DATED FEBRUARY 11, 1964 TO THE CONTRACTING OFFICER, PRO CRAFT ENGINEERING COMPANY PROTESTED THE REJECTION OF ITS BID CONTENDING THAT, IN ITS OPINION, IT WAS NOT MANDATORY TO BID ON A FOUR GALLON DISPENSER AND IT, THEREFORE, BID ON THE TYPE IT THOUGHT WOULD MEET WITH THE MOST FAVOR IN A "TIGHT-MONEY" BUDGET SITUATION. PRO CRAFT ALLEGED THAT IT MANUFACTURED DISPENSERS IN ALL SIZES FROM 3 GALLONS UP TO AND INCLUDING 12 GALLONS AND THAT HAD IT BEEN AWARE THAT IT WAS MANDATORY TO BID ON A 4 GALLON UNIT IT CERTAINLY WOULD HAVE DONE SO. IN RESPONSE TO PRO-CRAFT'S PROTEST THE PROCUREMENT WAS REVIEWED AND IT WAS AGAIN DETERMINED THAT PRO- CRAFT'S BID WAS NONRESPONSIVE.

IN CONJUNCTION WITH THE REVIEW OF THE REJECTION OF PRO-CRAFT'S BID, THE AWARD TO A. DALKIN COMPANY WAS ALSO REVIEWED. THE CONTRACTING OFFICER REPORTS THAT UPON SUCH REVIEW:

* * * IT WAS DETERMINED THAT THE BID OF A. DALKIN COMPANY WAS NOT RESPONSIVE TO THE SPECIFIC REQUIREMENTS OF 4 GALLONS BEVERAGE CAPACITY, 1/6 H.P. REFRIGERATION UNIT; AND THAT THE BID DID NOT OFFER A STERILIZER LAMP. THE AWARD TO A. DALKIN COMPANY WAS THEREFORE NOT THE CONTRACT ON WHICH BIDS WERE REQUESTED AND WAS AN ILLEGAL AWARD. ON 12 MARCH 1964 A. DALKIN COMPANY WAS NOTIFIED TELEPHONICALLY OF THE GOVERNMENT'S INTENTION TO CANCEL THE AWARD AND THAT NO SHIPMENTS SHOULD BE MADE. THE COMPANY ASSERTED THAT CANCELLATION WILL RESULT IN SUBSTANTIAL COSTS TO THAT FIRM. THESE COSTS ALLEGEDLY WILL RESULT PRIMARILY FROM PACKAGING IN ACCORDANCE WITH REQUIREMENTS SET FORTH ON PAGE 4 OF THE INVITATION FOR BIDS; FROM OVERTIME EXPENDED IN ATTEMPTING TO COMPLY WITH THE GOVERNMENTS'S REQUEST FOR ACCELERATION; FROM INCLUSION OF AN OPTIONALLY AVAILABLE UNBREAKABLE PLASTIC BOWL; AND FROM HOLDING THESE QUANTITIES. * * *

THE CONTRACTING OFFICER CONTENDS THAT THE CONTRACT AWARDED TO A. DALKIN COMPANY CONTAINED MATERIAL VARIANCES FROM THE INVITATION AND WAS NOT THE CONTRACT ON WHICH BIDS WERE REQUESTED. SUCH A CONTRACT, HE STATES, IS INVALID AND CONFERS NO RIGHTS ON THE PURPORTED CONTRACTOR, CITING PRESTEX, INC. V. UNITED STATES, CT.CL. NO. 415-61, DECIDED JULY 12, 1963, 320 F.2D 367. HE FURTHER STATES THAT THE ILLEGALITY OF THE AWARD RESULTS FROM A VIOLATION OF THE REQUIREMENTS OF 10 U.S.C. 2305 (C) WHICH PROVIDES, IN SUBSTANCE, THAT AWARDS SHALL BE MADE TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION FOR BIDS AND WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED. THUS, HE ASSERTS, THE PRESENT CASE IS DISTINGUISHABLE FROM JOHN REINER AND COMPANY V. UNITED STATES, CT.CL. NO. 431-57, DECIDED DECEMBER 13, 1963, 325 F.2D 438, SINCE, UNLIKE THE REINER CASE, THE ILLEGALITY OF THE AWARD HERE RESULTS FROM A VIOLATION OF A STATUTE RATHER THAN A VIOLATION OF ANY HIGHER STANDARD THAN THAT REQUIRED BY THE STATUTE.

ALTHOUGH, AS ABOVE INDICATED, THE CONTRACTING OFFICER BELIEVES THAT THE AWARD TO A. DALKIN COMPANY WAS ILLEGAL HE, NEVERTHELESS, RECOMMENDS THAT AFTER THE AWARD IS CANCELED HE BE AUTHORIZED TO ACCEPT DELIVERY OF THE 150 UNITS WITHOUT STERILIZER LAMPS AND TO PAY A REASONABLE PRICE THEREFOR NOT TO EXCEED THE CONTRACT PRICE. HE NOTES, IN JUSTIFICATION FOR SUCH PROCEDURE, THAT THE FIRM HAS PRODUCED IN GOOD FAITH AND IN FACT HAS ACCELERATED PRODUCTION AT THE GOVERNMENT'S REQUEST. HE ALSO POINTS OUT THAT THE CONTRACTOR HAS OFFERED TO INSTALL A STERILIZER LAMP AT NO COST TO THE GOVERNMENT.

IN HIS LETTER OF APRIL 2, 1964, THE ASSISTANT COUNSEL STATES, IN PART, THAT:

* * * THE DALKIN DIVISION BID WAS NOT DETERMINED TO BE NON RESPONSIVE ON THE QUESTION OF WHETHER IT OFFERED AN ITEM EQUAL TO THE JET SPRAY MODEL. IT WAS DETERMINED TO BE NON-RESPONSIVE BECAUSE IT DID NOT MEET ALL THE SPECIFIC MINIMUM REQUIREMENTS SET FORTH IN THE PURCHASE DESCRIPTION, EVEN THOUGH IN SOME RESPECTS IT EXCEEDED THOSE REQUIREMENTS. A COMPARISON OF THE LOW BID AND THAT OF THE DALKIN DIVISION WITH EACH OF THE SPECIFIC REQUIREMENTS IS ALSO ATTACHED. WHILE THE COSTS OF SOME OF THE SPECIFIC REQUIREMENTS, SUCH AS THE STERILIZER LAMP, MAY BE RELATIVELY MINOR, THEY ARE NEVERTHELESS SPECIFIC REQUIREMENTS. IF THE SPECIFIC REQUIREMENTS ARE NOT REGARDED AS MINIMUM REQUIREMENTS THEN THE LOW BID OF PRO-CRAFT ENGINEERING COMPANY COULD ALSO HAVE BEEN CONSIDERED RESPONSIVE AND THE AWARD TO THE DALKIN DIVISION WOULD HAVE BEEN TO OTHER THAN THE LOW BIDDER.

THE INFORMATION CONTAINED IN THE REPORT INDICATES THAT ALL OF THESE REQUIREMENTS MAY NOT ACTUALLY BE NECESSARY TO SERVE THE GOVERNMENT'S NEEDS, WHICH WOULD MAKE THE PROCUREMENT OBJECTIONABLE ON THE GROUND THAT IT DID NOT PERMIT FULL AND FREE COMPETITION. THIS FACT ALONE MIGHT NOT REQUIRE A DETERMINATION THAT THE AWARD IS ILLEGAL. HOWEVER, AN AWARD ON A BID WHICH IS NON-RESPONSIVE TO THE STATED TERMS OF THE INVITATION HAS NO VALIDITY AND CONFERS NO RIGHTS ON THE PURPORTED CONTRACTOR.

THE FACTS AND CIRCUMSTANCES OUTLINED ABOVE FAIRLY SUPPORT A CONCLUSION THAT THE SIR CULATOR MODEL OFFERED BY A. DALKIN IS, IN NEARLY ALL MATERIAL RESPECTS, EQUAL TO THE BRAND NAME SPECIFIED AND, IN SOME RESPECTS, EXCEEDS THE MINIMUM REQUIREMENTS OF THE PURCHASE DESCRIPTION. IN THAT CONNECTION IT IS NOTED THAT THE ASSISTANT COUNSEL'S LETTER CONCEDES THAT A. DALKIN'S BID WAS DETERMINED TO BE NONRESPONSIVE BECAUSE IT FAILED TO MEET ALL OF THE SPECIFIC MINIMUM REQUIREMENTS SET FORTH IN THE PURCHASE DESCRIPTION, AND NOT BECAUSE IT WAS NOT EQUAL TO THE BRAND NAME SPECIFIED.

IN HIS REPORT THE CONTRACTING OFFICER CITES THREE REQUIREMENTS IN THE PURCHASE DESCRIPTION WHICH HE HAS DETERMINED WERE NOT MET BY A. DALKIN'S BID: 4 GALLONS BEVERAGE CAPACITY, 1/6 HORSEPOWER REFRIGERATION UNIT, AND STERILIZER LAMP. WHILE IT IS TRUE THAT THE SIR CULATOR UNIT DEVIATES FROM THESE CITED REQUIREMENTS, THE DEVIATIONS AS TO BEVERAGE CAPACITY AND HORSEPOWER OF THE REFRIGERATION UNIT EXCEED THE MINIMUM STANDARDS AND, INSOFAR AS THESE FEATURES ARE CONCERNED, IT WOULD APPEAR THAT THE SIR CULATOR MODEL IS TECHNICALLY SUPERIOR TO THE BRAND NAME SPECIFIED. MOREOVER, IT WAS EXPRESSLY DETERMINED THAT THE LARGER CAPACITY MACHINE WOULD BE SATISFACTORY FOR THE REQUIREMENTS OF THE USING ACTIVITY.

WITH REGARD TO THE STERILIZER LAMP WE UNDERSTAND THAT THIS LAMP IS ATTACHED TO THE BASE OF THE MACHINE FOR THE PURPOSE OF REPELLING VERMIN. THE MACHINE ITSELF RESTS ON A COUNTER. ACCORDING TO THE CONTRACTOR ITS TESTS HAVE SHOWN THAT THE LAMP BULBS HAVE AN AVERAGE LIFE OF APPROXIMATELY FOUR HOURS AND ITS FIELD INFORMATION INDICATES THAT THEY ARE RARELY REPLACED. THE CONTRACTOR ALSO STATES THAT THE EXACT INSTALLED COST TO IT FOR THE BULB AND SOCKET IS $4.30 ($2.80 FOR MATERIAL AND $1.50 FOR LABOR AND OVERHEAD). WHILE WE HAVE BEEN INFORMALLY ADVISED BY PERSONNEL OF YOUR AGENCY THAT THEY HAVE FOUND THE LIGHT BULBS INVOLVED TO HAVE A LIFE OF SEVERAL MONTHS THEY RECOGNIZE THAT THEY ARE SELDOM REPLACED. THE ASSISTANT COUNSEL'S LETTER CONCEDES THAT THE COST OF THE STERILIZER LAMP "MAY BE RELATIVELY MINOR" AND ALSO INDICATES THAT THE REQUIREMENT FOR THE LAMP, ALONG WITH OTHER SPECIFIC REQUIREMENTS, MAY NOT ACTUALLY BE NECESSARY TO SERVE THE GOVERNMENT'S NEEDS. THIS IS FURTHER CONFIRMED BY THE CONTRACTING OFFICER'S RECOMMENDATION THAT HE BE AUTHORIZED TO ACCEPT DELIVERY OF ALL 150 UNITS WITHOUT STERILIZER LAMPS. IN VIEW OF THESE CIRCUMSTANCES, IT IS APPARENT THAT, WHILE A. DALKIN'S BID WAS NOT RESPONSIVE TO THE STERILIZER LAMP REQUIREMENT, ITS FAILURE TO CONFORM WITH THAT PORTION OF THE PURCHASE DESCRIPTION IS NOT ONE OF MAJOR PROPORTIONS.

MOREOVER, WE CANNOT AGREE WITH THE ASSISTANT COUNSEL'S OBSERVATION THAT "IF THE SPECIFIC REQUIREMENTS ARE NOT REGARDED AS MINIMUM REQUIREMENTS THEN THE LOW BID OF PRO-CRAFT ENGINEERING COMPANY COULD ALSO HAVE BEEN CONSIDERED RESPONSIVE * * *.' A COMPARISON OF PRO CRAFT'S BID WITH THE SPECIFIC PURCHASE DESCRIPTION REQUIREMENTS SHOWS THAT ITS BID FAILED TO CONFORM TO THE REQUIREMENTS FOR: (1) 4 GALLONS BEVERAGE CAPACITY, (2) STERILIZER LAMP, (3) 7 FT. (MIN) POWER CORD WITH GROUNDED CONNECTION, AND (4) PROOF OF COMPLIANCE WITH U.L. REQUIREMENTS. THESE DEVIATIONS IN PRO- CRAFT'S BID, AND ESPECIALLY THE 3, RATHER THAN 4, GALLON BEVERAGE CAPACITY DEVIATION, CONSTITUTE A MUCH MORE SERIOUS FAILURE TO CONFORM TO THE SPECIFIC REQUIREMENTS THAN DOES A. DALKIN'S BID WHICH, AS WE HAVE SEEN, FAILED ONLY IN REGARD TO THE STERILIZER LAMP. WE HAVE CONSTRUED THE WORDS "OR EQUAL" WHEN USED IN CONJUNCTION WITH A BRAND NAME PURCHASE DESCRIPTION, TO MEAN THAT AN ALTERNATE ITEM MUST BE EQUAL TO THE PRODUCT SPECIFIED, INSOFAR AS THE NEEDS OF THE PROCURING AGENCY ARE CONCERNED, BUT NO NECESSARILY AN EXACT DUPLICATE THEREOF IN DETAIL OR PERFORMANCE. COMP. GEN. 291, AND DECISIONS CITED THEREIN. SEE, ALSO, PARAGRAPH 1- 1206.4 (A) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WHICH STATES, IN PART, THAT BIDS SHALL NOT BE REJECTED BECAUSE OF MINOR DIFFERENCES IN DESIGN, CONSTRUCTION, OR FEATURES WHICH DO NOT AFFECT THE SUITABILITY OF THE PRODUCTS FOR THEIR INTENDED USE. HAD THE PURCHASE DESCRIPTION IN THIS CASE CONTAINED, IN ADDITION TO THE BRAND NAME OR EQUAL DESCRIPTION, ONLY THOSE SALIENT CHARACTERISTICS WHICH WERE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT IN ACCORDANCE WITH ASPR 1-1206.2 (B), A. DALKIN'S BID WOULD CLEARLY HAVE BEEN RESPONSIVE TO THE INVITATION FOR BIDS. HOWEVER, THE FACT REMAINS THAT, THE BID OF A. DALKIN COMPANY WAS NOT COMPLETELY RESPONSIVE TO THE TERMS OF THE INVITATION FOR BIDS IN THAT IT FAILED TO OFFER A STERILIZER LAMP. HAD THIS MATTER BEEN BROUGHT TO OUR ATTENTION PRIOR TO AWARD OF THE CONTRACT IT SEEMS CLEAR THAT THE BEST INTERESTS OF THE UNITED STATES WOULD HAVE REQUIRED CANCELLATION OF THE INVITATION AND A READVERTISEMENT OF THE GOVERNMENT'S NEEDS. HOWEVER, THE DEVIATION IN THE BID WAS, CONCEDEDLY, A DEVIATION TO A REQUIREMENT IN THE PURCHASE DESCRIPTION WHICH IS ACTUALLY UNNECESSARY TO THE GOVERNMENT'S NEEDS. WE ALSO NOTE THAT THE AWARD WAS MADE IN GOOD FAITH AND THAT THE CONTRACTOR, AT THE EXPRESS REQUEST OF THE GOVERNMENT TO EXPEDITE DELIVERIES, HAS EXPENDED SUBSTANTIAL SUMS OF MONEY IN PREPARING TO MEET ITS OBLIGATIONS UNDER THE CONTRACT. IN VIEW OF THE FOREGOING IT IS OUR OPINION THAT THE BEST INTEREST OF THE GOVERNMENT WOULD NOT BE SERVED BY CANCELING THE CONTRACT AWARDED TO A. DALKIN COMPANY.

IN REACHING THIS CONCLUSION WE ARE NOT UNMINDFUL OF THE HOLDING IN THE PRESTEX CASE, WHICH WAS CITED BY THE CONTRACTING OFFICER AS AUTHORITY FOR CANCELLATION OF THE CONTRACT. WHILE WE THINK THAT PRESTEX CORRECTLY EXPRESSES THE LAW ON QUESTIONS OF BID RESPONSIVENESS TO GOVERNMENT INVITATIONS WE ARE OF THE OPINION THAT THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE ARE CLEARLY DISTINGUISHABLE FROM THOSE INVOLVED IN PRESTEX. THE COURT OF CLAIMS NOTED IN PRESTEX THAT THE DEVIATIONS IN THE PLAINTIFF'S BID TO THE SPECIFIC REQUIREMENTS OF THE SPECIFICATIONS WERE SUBSTANTIAL AND THE AWARD TO THE PLAINTIFF OPERATED TO THE UNQUESTIONED DISADVANTAGE OF THE OTHER BIDDERS. ALSO OF SIGNIFICANCE IS THE FACT THAT THE UNIFORM CLOTH SUBMITTED BY THE PLAINTIFF WAS FOUND BY THE GOVERNMENT TO BE INFERIOR AND UNUSABLE FOR ITS INTENDED PURPOSE. IN THE INSTANT CASE, AS WE HAVE PREVIOUSLY STATED, A. DALKIN'S BID OFFERED TO FURNISH AN ITEM WHICH IN MANY RESPECTS IS SUPERIOR TO THAT DESCRIBED IN THE INVITATION; THE DEVIATION WAS MINOR AND, IN FACT, THE ITEM REQUIREMENT TO WHICH THE DEVIATION WAS MADE IS UNNECESSARY TO THE GOVERNMENT'S NEEDS.

WITH RESPECT TO THE REINER CASE, WHICH WAS ALSO CITED BY THE CONTRACTING OFFICER, NO MORE NEED BE SAID THAN THAT WE ARE IN COMPLETE DISAGREEMENT WITH THE PHILOSOPHY THAT THIS OFFICE APPLIES HIGHER OR DIFFERENT STANDARDS THAN ARE APPLIED BY THE COURTS IN DETERMINING WHETHER A CONTRACT AWARD IS ILLEGAL.

THE AWARD IN THIS CASE WAS MADE TO A. DALKIN ON THE BASIS OF FURNISHING ITS SIR CULATOR MODEL CD-30 IN ACCORDANCE WITH ASPR 1 1206.4, WHICH PROVIDES THAT AWARD DOCUMENTS SHALL IDENTIFY, OR INCORPORATE BY REFERENCE AN IDENTIFICATION OF, THE SPECIFIC PRODUCTS WHICH THE CONTRACTOR IS TO FURNISH AND SUCH IDENTIFICATION IS TO INCLUDE ANY BRAND NAME AND MAKE OR MODEL NUMBER, DESCRIPTIVE MATERIAL, AND ANY MODIFICATIONS OF BRAND NAME PRODUCTS SPECIFIED IN THE BID. SINCE A. DALKIN'S DESCRIPTIVE LITERATURE DID NOT DESCRIBE A STERILIZER LAMP AND ITS BID DID NOT MODIFY THE BRAND NAME PRODUCT SPECIFIED TO INCLUDE THE LAMP, A. DALKIN DID NOT OFFER TO FURNISH THE LAMP AND AWARD OF THE CONTRACT DID NOT OBLIGATE IT TO DO SO.THEREFORE, OUR OFFICE WILL NOT OBJECT TO DELIVERY OF ALL UNITS UNDER THE CONTRACT WITHOUT THE ATTACHED STERILIZER LAMP.

THIS PROCUREMENT IS AN EXAMPLE OF THE DIFFICULTIES ALL TOO FREQUENTLY ENCOUNTERED IN PROCUREMENT UTILIZING BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS. IN FUTURE PROCUREMENTS INVOLVING SUCH PURCHASE DESCRIPTIONS THE GOVERNMENT'S ACTUAL NEEDS SHOULD BE DETERMINED IN ADVANCE OF THE ISSUANCE OF THE INVITATION FOR BIDS AND ONLY SUCH ACTUAL NEEDS SHOULD BE SET FORTH AS SALIENT CHARACTERISTICS. SEE, IN THAT CONNECTION ASPR 1- 1206.2 (B) WHICH SPECIFIES THAT "BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS SHOULD SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCTS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT.' ALSO, IN THE FUTURE, IF REASONABLE TOLERANCES RESPECTING THE PHYSICAL OR FUNCTIONAL CHARACTERISTICS OF EQUIPMENT ARE GENERALLY ACCEPTABLE TO YOUR AGENCY (AS APPEARS TO BE THE CASE IN THE INSTANT PROCUREMENT), THE SALIENT CHARACTERISTICS IN THE PURCHASE DESCRIPTION SHOULD BE STATED IN APPROXIMATE TERMS. SEE B-136574, AUGUST 14, 1958.