B-154611, AUG. 28, 1964

B-154611: Aug 28, 1964

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TWO BIDS WERE RECEIVED AND OPENED ON JUNE 25. IT WAS ADMINISTRATIVELY DETERMINED THAT C AND M'S LOW BID DID NOT MEET THE ADVERTISED SPECIFICATIONS AND IT WAS THEREFORE REJECTED AS NONRESPONSIVE. AWARD WAS ACCORDINGLY MADE TO RAYMOND FOR ITS BRAND NAME PRODUCT. THE TERM "BRAND NAME" INCLUDES IDENTIFICATION OF PRODUCTS BY MAKE AND MODEL). "/A) IF TERMS CALLED FOR BY THIS INVITATION FOR BIDS HAVE BEEN IDENTIFIED IN THE SCHEDULE BY A "BRAND NAME OR EQUAL" DESCRIPTION. SUCH IDENTIFICATION IS INTENDED TO BE DESCRIPTIVE. IS TO INDICATE THE 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 NAMES 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 THE BRAND NAME PRODUCT REFERENCES IN THIS INVITATION FOR BIDS.

B-154611, AUG. 28, 1964

TO THE HONORABLE PHILIP N. BROWNSTEIN, COMMISSIONER, FEDERAL HOUSING ADMINISTRATION:

BY LETTER DATED JULY 31, 1964, WITH ENCLOSURES, YOU FURNISHED THE INFORMATION WE HAD REQUESTED WITH RESPECT TO THE PROTEST OF C AND M INDUSTRIAL ASSOCIATES, INC., AGAINST THE AWARD MADE BY THE FEDERAL HOUSING ADMINISTRATION ON JUNE 30, 1964, TO THE RAYMOND CORPORATION, UNDER INVITATION FOR BIDS NO. 7007.

THE INVITATION DATED JUNE 18, 1964, REQUESTED BIDS FOR ONE "STACKER, RIDER-TYPE, NARROW AISLE REACH FORK, 3000-LB. CAPACITY, 42 INCH ELEVATING FORK COLLAPSED HEIGHT 83 INCHES, ELEVATED HEIGHT 126 INCHES, RAYMOND MODEL E3RT, OR EQUAL (WITH BATTERY); WITH CHARGER, 720 AMP. HR. CAPACITY, BERG- GIBSON NO. LE-24-C4N, OR EQUAL.' TWO BIDS WERE RECEIVED AND OPENED ON JUNE 25, 1964. C AND M INDUSTRIAL ASSOCIATES, INC. SUBMITTED THE LOWEST NET BID AND OFFERED TO FURNISH THE MOTO-TRUC STACKER, MODEL X-TEND-R-3000, AND THE BRAND NAME CHARGER. THE RAYMOND CORPORATION SUBMITTED A HIGHER NET BID ON THE BRAND NAMES SPECIFIED IN THE INVITATION. BOTH BIDDERS SUBMITTED DESCRIPTIVE BROCHURES OF THEIR PRODUCTS AS REQUIRED BY THE INVITATION.

ON THE BASIS OF BID EVALUATION, IT WAS ADMINISTRATIVELY DETERMINED THAT C AND M'S LOW BID DID NOT MEET THE ADVERTISED SPECIFICATIONS AND IT WAS THEREFORE REJECTED AS NONRESPONSIVE. AWARD WAS ACCORDINGLY MADE TO RAYMOND FOR ITS BRAND NAME PRODUCT.

PAGE 5 OF THE INVITATION CONTAINED THE FOLLOWING "BRAND NAME OR EQUAL" CLAUSE:

"/AS USED IN THIS CLAUSE, THE TERM "BRAND NAME" INCLUDES IDENTIFICATION OF PRODUCTS BY MAKE AND MODEL).

"/A) IF TERMS CALLED FOR BY THIS INVITATION FOR BIDS HAVE BEEN IDENTIFIED IN THE SCHEDULE BY A "BRAND NAME OR EQUAL" DESCRIPTION, SUCH IDENTIFICATION IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS TO INDICATE THE 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 NAMES 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 THE BRAND NAME PRODUCT REFERENCES IN THIS 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, WHICH IS NOT IDENTIFIED IN THE BID AND 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 BY THE BIDDER. 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.

"/2) IF THE BIDDER PROPOSES TO MODIFY A PRODUCT SO AS TO MAKE IT CONFORM TO THE REQUIREMENTS OF THE INVITATION FOR BIDS, HE SHALL (I) INCLUDE IN HIS BID A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS AND (II) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS.'

HOWEVER, PURSUANT TO FPR 1-1.307-6, THE CLAUSE SHOULD HAVE CONTAINED THE FURTHER PROVISION THAT MODIFICATIONS PROPOSED AFTER BID OPENING TO MAKE A PRODUCT CONFORM TO THE BRAND NAME PRODUCT WOULD NOT BE CONSIDERED. FPR 1- 1.307-4 (B) AND (C) PROVIDE THAT:

"/B) "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, CONTAIN THE FOLLOWING INFORMATION TO THE EXTENT AVAILABLE, AND INCLUDE SUCH OTHER INFORMATION AS IS NECESSARY TO DESCRIBE THE ITEM REQUIRED:

"/1) COMPLETE COMMON GENERIC IDENTIFICATION OF THE ITEM REQUIRED.

"/2) APPLICABLE MODEL, MAKE, OR CATALOG NUMBER FOR EACH BRAND NAME PRODUCT REFERENCED, AND IDENTITY OF THE COMMERCIAL CATALOG IN WHICH IT APPEARS.

"/3) NAME OF MANUFACTURER, PRODUCER, OR DISTRIBUTOR OF EACH BRAND NAME PRODUCT REFERENCED (AND ADDRESS IF COMPANY IS NOT WELL KNOWN).

"/C) WHEN NECESSARY TO DESCRIBE ADEQUATELY THE ITEM REQUIRED, AN APPLICABLE COMMERCIAL CATALOG DESCRIPTION, OR PERTINENT EXTRACTS THEREFROM, MAY BE USED IF SUCH DESCRIPTION IS IDENTIFIED IN THE INVITATION FOR BIDS OR REQUEST FOR PROPOSALS AS BEING THAT OF THE PARTICULAR NAMED MANUFACTURER, PRODUCER, OR DISTRIBUTOR.'

THE RESPECTIVE PRODUCTS OFFERED BY EACH BIDDER WERE EVALUATED AS FOLLOWS:

TABLE

RAYMOND MOTO CAPACITY 3000 3000 OVERALL COLLAPSED HEIGHT83 INCHES 83 INCHES ELEVATED HEIGHT 126 INCHES 126 INCHES SAFETY PLATE MAST QUART

YES NO VOLTAGE 24 24 DRIVE UNIT

2.2 HP 2 HP STEERING

BACK LASH SAFETY YES NO

RECESSED SPINNER KNOB YES NO OPERATORS COMPARTMENT ACCEPTABLE ACCEPTABLE KNUCKLE GUARD YES NO HEEL PLATE YES NO "PLUGGING" (GOING FROM FORWARD

TO REVERSE WITHOUT STOPPING) YES NO BUILT-IN OVERLOAD BYPASS 500 LB. NONE LIFT PUMP MOTOR BLOWERSYES NO ABILITY TO LIFT WHILE MOVING YES NO BRAKES ACCEPTABLE ACCEPTABLE TURNING RADIUS 200 DEGREES UNKNOWN

IT IS APPARENT FROM THE FOREGOING THAT THE MOTO-TRUC MODEL MET THE PHYSICAL CHARACTERISTICS OF THE "BRAND NAME OR EQUAL" DESCRIPTION SPECIFIED IN THE INVITATION, INCLUDING THE REQUIREMENT FOR A 42 INCH ELEVATING FORK. IN OUR JUDGMENT, THE INFORMATION MADE AVAILABLE IN THE INVITATION WAS INSUFFICIENT TO ENABLE BIDDERS TO DETERMINE ALL OF THE MATERIAL CHARACTERISTICS OF THE BRAND NAME MODEL REQUIRED BY THE GOVERNMENT. APPARENTLY, THE ABOVE EVALUATION CONSIDERED QUALITIES ESSENTIAL TO THE NEEDS OF THE GOVERNMENT BUT THE BIDDERS WERE INFORMED ONLY AS TO A FEW OF THEM. THEY WERE LEFT, THEREFORE, WITH THE ALTERNATIVE OF OFFERING THE BRAND NAME OR OF DIVINING THE ESSENTIAL AND SALIENT QUALITIES OF THE BRAND NAME BY MEANS NOT CONTEMPLATED BY THE INVITATION. IN SUCH A CASE, THE "OR EQUAL" PROVISION SERVES NO USEFUL PURPOSE AND APPEARS TO HAVE BEEN INCLUDED IN AN ATTEMPT TO MEET THE LANGUAGE OF THE COMPETITIVE BID REQUIREMENT WHILE DISREGARDING ITS SPIRIT. 41 COMP. GEN. 76; ID. 242; CF. 38 ID. 636; B-153452, MARCH 26, 1964.

WE HAVE FREQUENTLY HELD THAT UNDER A "BRAND NAME OR EQUAL"INVITATION, THE PHRASE "OR EQUAL" DOES NOT MEAN "IDENTICAL; "IN FACT, TO READ SUCH A REQUIREMENT INTO IT WOULD BE PRACTICALLY THE SAME AS OMITTING THE "OR EQUAL" REQUIREMENT, WHICH, OF COURSE, WOULD MAKE THE SPECIFICATIONS UNDULY RESTRICTIVE. 38 COMP. GEN. 291. WE FEEL, THEREFORE, THAT THIS INVITATION DID NOT MEET THE REQUIREMENT OF THE FORMAL ADVERTISING STATUTE THAT EVERY EFFORT SHOULD BE MADE TO STATE SPECIFICATIONS IN TERMS THAT WILL PERMIT THE BROADEST FIELD OF COMPETITION WITHIN THE NEEDS REASONABLY REQUIRED, NOT THE MAXIMUM DESIRED. 32 COMP. GEN. 384.

HOWEVER, CONSIDERING THAT DELIVERY WAS REQUIRED TO BE MADE WITHIN 35-40 DAYS AFTER RECEIPT OF ORDER UNDER THE CONTRACT AWARDED ON JUNE 30, 1964, WE DO NOT BELIEVE THAT IT WOULD BE IN THE INTEREST OF THE GOVERNMENT AT THIS TIME TO CANCEL THE AWARD MADE TO RAYMOND. WE SUGGEST THAT IN FUTURE BRAND NAME OR EQUAL PROCUREMENTS, PROPER STEPS BE TAKEN BY YOUR AGENCY TO INSURE THAT THE INVITATION WILL CONTAIN THE NECESSARY INFORMATION TO ALLOW RESPONSIVE, INTELLIGENT BIDS FROM BIDDERS OFFERING TO FURNISH AN ITEM OTHER THAN THE BRAND NAME SPECIFIED.