B-155408, JAN. 5, 1965

B-155408: Jan 5, 1965

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 13. THE CONDENSERS UNDER ITEM 1 WERE REQUIRED TO BE "MARLEY "DRI-COOLER" MODEL RA46C. " AND THE ONE UNIT REQUIRED BY ITEM 2 WAS REQUIRED TO BE "MARLEY "DRI-COOLER "MODEL RA38C. THE BRAND NAME OR EQUAL CLAUSE (NOVEMBER 1961) WAS INCLUDED IN THE INVITATION. BIDS WERE RECEIVED FROM ELEVEN BIDDERS OF WHICH WEBSTER ENGINEERING DIVISION OF MIDLAND ROSS CORPORATION SUBMITTED THE LOW BID UNDER ITEM 1 AND THE SECOND LOW BID UNDER ITEM 2. THIS MATTER NEED NOT BE CONSIDERED SINCE THE WEBSTER BID ULTIMATELY WAS REJECTED AS NONRESPONSIVE SINCE IT FAILED TO CONFORM TO THE DELIVERY SCHEDULE STATED IN THE INVITATION. HAS ALSO DETERMINED THAT YOUR BID WAS NONRESPONSIVE TO THE INVITATION AND MAY NOT BE CONSIDERED FOR AWARD SINCE IT OFFERED "EQUAL" PRODUCTS IN LIEU OF THE BRAND NAMES SPECIFIED AND YOU FAILED TO FURNISH DESCRIPTIVE MATERIAL WITH YOUR BID.

B-155408, JAN. 5, 1965

TO INDUSTRIAL DISTRIBUTING COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 13, 1964, WITH ENCLOSURES, SETTING FORTH THE BASIS OF YOUR PROTEST AGAINST AWARD TO THE WEBSTER ENGINEERING COMPANY, UNDER NAVY INVITATION NO. IFB 204 16-65, ISSUED BY THE SUPPLY OFFICER, U.S. NAVAL AIR STATION, PENSACOLA, FLORIDA.

INVITATION NO. IFB 204-16-65, OPENED OCTOBER 2, 1964, REQUESTED BIDS UNDER ITEMS 1 AND 2 FOR FOUR AIR COOLED CONDENSERS. THE CONDENSERS UNDER ITEM 1 WERE REQUIRED TO BE "MARLEY "DRI-COOLER" MODEL RA46C, AS MANUFACTURED BY THE MARLEY COMPANY, KANSAS CITY, MISSOURI, OR EQUAL," AND THE ONE UNIT REQUIRED BY ITEM 2 WAS REQUIRED TO BE "MARLEY "DRI-COOLER "MODEL RA38C, OR EQUAL.' THE BRAND NAME OR EQUAL CLAUSE (NOVEMBER 1961) WAS INCLUDED IN THE INVITATION.

BIDS WERE RECEIVED FROM ELEVEN BIDDERS OF WHICH WEBSTER ENGINEERING DIVISION OF MIDLAND ROSS CORPORATION SUBMITTED THE LOW BID UNDER ITEM 1 AND THE SECOND LOW BID UNDER ITEM 2. WEBSTER OFFERED FOUR DIFFERENT PRODUCTS AT DIFFERENT PRICES UNDER ITEM 1 AND TWO DIFFERENT PRODUCTS AT DIFFERENT PRICES UNDER ITEM TWO. YOU PROTESTED CONSIDERATION OF THE BID SUBMITTED BY WEBSTER ON THE GROUND THAT ITS MULTIPLE BID PRICES RENDERED ITS BID NONRESPONSIVE. HOWEVER, THIS MATTER NEED NOT BE CONSIDERED SINCE THE WEBSTER BID ULTIMATELY WAS REJECTED AS NONRESPONSIVE SINCE IT FAILED TO CONFORM TO THE DELIVERY SCHEDULE STATED IN THE INVITATION.

THE CONTRACTING OFFICER, HOWEVER, HAS ALSO DETERMINED THAT YOUR BID WAS NONRESPONSIVE TO THE INVITATION AND MAY NOT BE CONSIDERED FOR AWARD SINCE IT OFFERED "EQUAL" PRODUCTS IN LIEU OF THE BRAND NAMES SPECIFIED AND YOU FAILED TO FURNISH DESCRIPTIVE MATERIAL WITH YOUR BID. THE CONTRACTING OFFICE CONTEMPLATES AWARD OF ITEMS 1 AND 2 OF THE INVITATION TO THE LOWEST RESPONSIVE BIDDER WHOSE BID CONFORMS TO THE INVITATION FOR BIDS. WE AGREE WITH THE CONTRACTING OFFICER'S DETERMINATION.

THE BRAND NAME OR EQUAL CLAUSE CONTAINED IN THE INVITATION IS DERIVED FROM PARAGRAPH 1-1206.3/B) OF THE ARMED SERVICES PROCUREMENT REGULATION AND, IN PERTINENT PART, 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.'

IN ACCORDANCE WITH THE "BRAND NAMES OR EQUAL" CLAUSE, ABOVE QUOTED, BIDDERS OFFERING "OR EQUAL" PRODUCTS WERE REQUIRED TO FURNISH, AS A PART OF THEIR BIDS, ALL INFORMATION OR DESCRIPTIVE MATERIAL SUFFICENT TO ENABLE THE PURCHASING ACTIVITY TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSED TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. IN VIEW OF THE SPECIFIC REQUIREMENT FOR THE SUBMISSION OF DESCRIPTIVE MATERIAL, YOUR FAILURE TO INCLUDE WITH YOUR BID ALL THE INFORMATION NECESSARY FOR ITS EVALUATION RENDERS YOUR BID NONRESPONSIVE. 40 COMP. GEN. 132; 39 ID. 595; 36 ID. 415.

WE, THEREFORE, SEE NO LEGAL OBJECTION TO THE ADMINISTRATIVE ACTION PROPOSED TO BE TAKEN IN THIS CASE.