B-155238, DEC. 14, 1964

B-155238: Dec 14, 1964

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TO CANFIELD TOW BAR COMPANY: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED SEPTEMBER 22. IN SUPPORT OF YOUR PROTEST YOU ALLEGE THAT YOU WERE ADVISED BY PHONE (MR. FOWLER) THAT THE EVALUATION SECTION HAD ADVISED THAT YOU WERE DECLARED "EQUAL. THAT YOU WERE CALLED TO CHICAGO AND QUESTIONED BY THE EVALUATION SECTION AND "FOUND TO BE IN ACCORDANCE WITH SPEC-S.'. INVITATION FOR BIDS AMC (T) -11-184-64-429 (C) JD WAS ISSUED ON MAY 21. BIDS WERE REQUESTED ON A QUANTITY OF 180 OF THE ITEM DESCRIBED AS FOLLOWS: "LIGHT WRECKER EQUIPMENT. SERIES 4X4 POWER WAGON WHICH HAVE POWER TAKEOFF FROM TRANSFER CASE. LIGHT WRECKER MUST HAVE TOWING ATTACHMENT AND BRAKE LOCK. IS NOT RELEVANT TO THE PROTEST.

B-155238, DEC. 14, 1964

TO CANFIELD TOW BAR COMPANY:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED SEPTEMBER 22, AND CONFIRMING LETTER DATED SEPTEMBER 29, 1964, PROTESTING THE AWARD OF A CONTRACT UNDER DEPARTMENT OF THE ARMY INVITATION FOR BIDS NO. AMC (T) 11- 184-64-429 (C) JD TO ERNEST HOLMES COMPANY. IN SUPPORT OF YOUR PROTEST YOU ALLEGE THAT YOU WERE ADVISED BY PHONE (MR. C. R. FOWLER) THAT THE EVALUATION SECTION HAD ADVISED THAT YOU WERE DECLARED "EQUAL; " THAT YOU ADHERED TO THE "BRAND NAME OR EQUAL" CLAUSE AS OUTLINED ON PAGE 12 OF THE INVITATION FOR BIDS; AND THAT YOU WERE CALLED TO CHICAGO AND QUESTIONED BY THE EVALUATION SECTION AND "FOUND TO BE IN ACCORDANCE WITH SPEC-S.'

INVITATION FOR BIDS AMC (T) -11-184-64-429 (C) JD WAS ISSUED ON MAY 21, 1964. BIDS WERE REQUESTED ON A QUANTITY OF 180 OF THE ITEM DESCRIBED AS FOLLOWS:

"LIGHT WRECKER EQUIPMENT, WITH BODY FOR MOUNTING ON BARE DODGE TRUCK CHASSIS, MODEL W 300T, SERIES 4X4 POWER WAGON WHICH HAVE POWER TAKEOFF FROM TRANSFER CASE. LIGHT WRECKER MUST HAVE TOWING ATTACHMENT AND BRAKE LOCK. IN ACCORDANCE WITH GENERAL REQUIREMENTS AS SET FORTH HEREIN. ERNEST HOLMES CO., MODEL 400 RW, 4 TON OR EQUAL. (FSN 2590 B06-0099)"

AMENDMENT NO. 1 TO THE INVITATION, ADDING ITEM 2, LIGHT WRECKER EQUIPMENT FOR JEEP MODEL, IS NOT RELEVANT TO THE PROTEST. AMENDMENT NO. 2 CLARIFIED THE TOWING ATTACHMENTS FOR ITEM 1 TO READ: "ERNEST HOLMES MODEL TS-100, OR EQUAL.' NOTE 6 ON PAGE 3 OF THE INVITATION FOR BIDS A DRAWING OF DODGE POWER WAGON (WM 300) SHOWING POWER TAKE OFF LOCATION AT TRANSMISSION AND SIGNIFICANT DIMENSIONS OF THE UNIT ON WHICH THE WRECKER WAS TO BE MOUNTED.

BIDS WERE OPENED ON JUNE 22, 1964. THE FOLLOWING BIDS WERE RECEIVED:

E. F. WEGENER CO. $1,235.50 PER UNIT

ERNEST HOLMES COMPANY 990.35 PER UNIT

CANFIELD TOW BAR COMPANY 879.51 PER UNIT IN YOUR BID YOU OFFERED TO FURNISH THE ,CANFIELD WRECKER," MODEL RW-305, AS AN EQUAL IN LIEU OF THE BRAND NAME SPECIFIED IN THE INVITATION, AND ENCLOSED WITH YOUR BID A 3- PAGE SPECIFICATION SHEET. YOU SUPPLEMENTED AND CHANGED THE DATA FURNISHED WITH YOUR BID, ON JUNE 25, JUNE 29, AND AUGUST 20, 1964. IT WAS ADMINISTRATIVELY DETERMINED THAT THE DATA FURNISHED WITH YOUR BID WAS NOT SUCH AS TO ENABLE THE GOVERNMENT TO DETERMINE THAT YOUR OFFERED UNIT WAS THE EQUAL OF THE HOLMES WRECKER. AWARD WAS THEN MADE ON SEPTEMBER 18, 1964, TO HOLMES FOR 104 UNITS, THE GOVERNMENT'S REDUCED REQUIREMENT.

REGARDING YOUR ALLEGATION THAT THE EVALUATION SECTION HAD DECLARED YOUR OFFERED ITEM "EQUAL," MR. FOWLER, THE PURCHASING AGENT, STATED THAT IN A TELEPHONE CONVERSATION WITH YOU ON SEPTEMBER 21, 1964, AFTER THE SEPTEMBER 18 AWARD HAD ALREADY BEEN ACCOMPLISHED, HE MAY HAVE INDICATED TO YOU THAT YOUR UNIT, AFTER CONSIDERATION OF ALL THE SUPPLEMENTARY DATA AND CHANGES SUBMITTED BY YOU AFTER THE BID OPENING DATE, WAS THE EQUAL OF THE HOLMES WRECKER, BUT THAT THE PRIMARY PURPOSE OF THE CONVERSATION WAS MERELY TO ADVISE YOU THAT THE AWARD HAD BEEN MADE TO HOLMES. THE SIGNIFICANT FACT IN THESE CIRCUMSTANCES IS THAT YOU HAD NOT SUBMITTED WITH YOUR BID DATA FROM WHICH THE GOVERNMENT COULD DETERMINE THAT YOUR OFFERED ITEM WAS THE EQUAL OF HOLMES EQUIPMENT EVALUATED AS OF THE TIME OF THE BID OPENING. SINCE YOU DID NOT SUBMIT WITH YOUR BID ALL DATA NECESSARY TO EVALUATE YOUR BID YOU DID NOT COMPLY WITH THE REQUIREMENTS OF THE "BRAND NAME OR EQUAL" PROVISION AS OUTLINED ON PAGE 12 OF THE INVITATION AS YOU STATE. THAT CLAUSE REQUIRED BIDDERS TO SUBMIT WITH THEIR BIDS ALL DATA NECESSARY TO EVALUATE THEIR BIDS AND IN ADDITION DID NOT PERMIT MODIFICATION OF SUCH DATA AFTER BID OPENING.

WITH RESPECT TO YOUR BEING "CALLED TO CHICAGO AND QUESTIONED BY THE EVALUATION SECTION AND FOUND TO BE IN ACCORDANCE WITH THE SPECIFICATIONS," IT IS REPORTED THAT THESE ACTIONS OR DEVELOPMENTS WERE TAKEN OR AROSE AFTER THE BID OPENING DATE AND WERE NOT FOR CONSIDERATION IN THE EVALUATION OF YOUR BID, YOUR RESPONSIVENESS BEING REQUIRED TO BE DETERMINED AS OF THE TIME OF BID OPENING.

PARAGRAPH 1-1206.3 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) REGARDING THE USE OF THE "BRAND NAME OR EQUAL" DESIGNATION, PROVIDES AS FOLLOWS:

"/A) IF ITEMS 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 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 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.

(3) MODIFICATIONS PROPOSED AFTER BID OPENING TO MAKE A PRODUCT CONFORM TO A BRAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BIDS WILL NOT BE CONSIDERED.'

THE CONTRACTING FACILITY HAS REPORTED THAT IT HAS NEVER HAD ANY PUBLISHED LITERATURE OR INFORMATION ON THE CANFIELD MODEL RW-305, KNOWS OF NONE, AND EXCEPT FOR THE SPECIFICATION SHEETS SUBMITTED WITH YOUR BID, THAT YOU MADE NO REFERENCE TO SUCH INFORMATION OR LITERATURE. THE ONLY DATA CONCERNING THIS OFFERED UNIT THAT WAS THEREFORE AVAILABLE TO THE GOVERNMENT FOR EVALUATION OF YOUR EQUIPMENT IN DETERMINING WHETHER IT WAS THE EQUAL OF THE HOLMES 400 RW UNIT WAS THE 3-PAGE "SPECIFICATION SHEET," FURNISHED WITH YOUR BID. ON THIS SHEET THE HEADING "WRECKER FRAME ASSEMBLY" SPECIFIED A FRAME WIDTH OF 36 INCHES. THE HOLMES WRECKER HAS A FRAME WIDTH OF 48 INCHES. YOU DID NOT SUBMIT WITH YOUR BID ANY DATA AS TO HOW YOUR UNIT'S FRAME WOULD OR COULD BE MOUNTED ON THE DODGE TRUCK CHASSIS OR WHY THE 36 INCH FRAME IF SO MOUNTED WOULD BE AS CAPABLE OF WITHSTANDING THE REQUIRED STRESSES AS THE HOLMES 48-INCH FRAME. YOUR LATER SUBMISSIONS CHANGING YOUR UNIT'S WIDTH TO 44 INCHES AND THEN TO 46 INCHES TENDS TO ESTABLISH THAT THE 36-INCH FRAME WAS NOT CONSIDERED BY YOU TO BE THE EQUAL OF THE HOLMES FRAME OR SUITABLE FOR THE INTENDED PURPOSE. THE DEPARTMENT ALSO REPORTS THAT AN IMPORTANT OMISSION FROM YOUR BID WAS INFORMATION AS TO WHETHER YOUR WRECKER'S BOOM WAS EXTENDIBLE AND AS TO WHAT TYPE OF SLING WOULD BE FURNISHED. IN ADDITION, IT WAS DETERMINED THAT WHEREAS YOUR BID DATA INDICATED THAT A 3/16-INCH STAY CHAIN CONNECTED FROM THE OUTRIGGER TO THE FRAME, THE HOLMES UNIT IS FURNISHED WITH A 5/16-INCH STAY CHAIN WHICH WOULD HAVE MORE STRENGTH.

IT IS FURTHER DISCLOSED BY THE ADMINISTRATIVE REPORT THAT THE SUBJECT WRECKERS WERE PURCHASED FOR SHIPMENT TO INDIA TO BE THERE MOUNTED ON THE DODGE CHASSIS. FOR THIS REASON IT WAS ESSENTIAL THAT IT BE DETERMINED AT TIME OF BID OPENING THAT THE OFFERED EQUIPMENT WOULD WITHOUT QUESTION BE THE EQUAL OF THE HOLMES WRECKER AND WOULD BE SUITABLE FOR THE INTENDED PURPOSE UPON ARRIVAL IN INDIA.

IN THIS CASE, IT APPEARS THAT, IN ACCORDANCE WITH ASPR 1-1206.3 (B), YOUR OFFERED PRODUCT SHOULD HAVE BEEN CLEARLY IDENTIFIED IN THE BID, AND TO INSURE THAT SUFFICIENT INFORMATION WAS AVAILABLE YOU WERE REQUIRED TO FURNISH AS A PART OF YOUR BID ALL DESCRIPTIVE MATERIAL NECESSARY FOR THE PURCHASING ACTIVITY TO (1) DETERMINE WHETHER THE PRODUCT OFFERED MET THE REQUIREMENTS OF THE INVITATION AND (2) ESTABLISH EXACTLY WHAT YOU PROPOSED TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. 39 COMP. GEN. 595; 36 COMP. GEN. 415. IN VIEW OF THE SPECIFIC REQUIREMENT FOR THE SUBMISSION OF DESCRIPTIVE LITERATURE YOUR FAILURE TO INCLUDE WITH YOUR BID ALL THE INFORMATION NECESSARY FOR ITS EVALUATION MAY NOT BE CONSIDERED AN INFORMALITY WHICH MAY BE WAIVED.

OBVIOUSLY, TO ACCEPT AND CONSIDER DATA FURNISHED SUBSEQUENT TO BID OPENING WOULD BE TANTAMOUNT TO CHANGING A BID WHICH IS, OF COURSE, UNAUTHORIZED. 37 COMP. GEN. 763; 40 ID. 132.