B-155626, B-155627, APR. 23, 1965

B-155626,B-155627: Apr 23, 1965

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TO CONSOLIDATED ELECTRODYNAMICS CORPORATION: REFERENCE IS MADE TO YOUR TELEGRAMS OF NOVEMBER 20. IN ACCORDANCE WITH HONEYWELL PARTNUMBER 1012- 36780 WITH STANDARD EQUIPMENT AND THE FOLLOWING ACCESSORIES: ONE (1) LATENSIFIER LAMP HONEYWELL P/N 901729 AND ONE (1) PAPER WIDTH ADAPTER HONEYWELL P/N 901461 "OR EQUAL.'" BIDDERS' ATTENTION WAS SPECIFICALLY DIRECTED TO THE IFS PROVISION ENTITLED "BRAND NAME OR EQUAL" AND THE PROVISION ENTITLED "BID SAMPLES.'. TWO BIDS WERE RECEIVED AND OPENED ON OCTOBER 20. THE BID FORM WAS ACCOMPANIED WITH DESCRIPTIVE LITERATURE AND A LETTER OF TRANSMITTAL. IN SAID LETTER IT IS STATED THAT CEC OFFERS ITS OWN EQUIPMENT AS EQUAL TO THE REFERENCED BRAND NAME. IT IS ALSO STATED THAT IN LIEU OF SUBMITTING A BID SAMPLE.

B-155626, B-155627, APR. 23, 1965

TO CONSOLIDATED ELECTRODYNAMICS CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAMS OF NOVEMBER 20, 1964, YOUR LETTERS OF DECEMBER 11, 1964, AND FEBRUARY 3, 1965, WITH ENCLOSURES, AND COPIES OF OTHER CORRESPONDENCE SUBMITTED HERE, PROTESTING THE AWARD OF CONTRACTS TO A COMPANY OTHER THAN CONSOLIDATED ELECTRODYNAMICS CORPORATION UNDER INVITATION FOR BIDS NOS. 36-600-65 249 AND 36-600-65-349, ISSUED BY THE MIDDLETOWN AIR MATERIEL AREA, OLMSTED AIR FORCE BASE, PENNSYLVANIA.

IFB NO. 36-600-65-249 ISSUED SEPTEMBER 17, 1964, REQUESTED BIDS FOR THREE "/6625-691-6555) VISACORDER, IN ACCORDANCE WITH HONEYWELL PARTNUMBER 1012- 36780 WITH STANDARD EQUIPMENT AND THE FOLLOWING ACCESSORIES: ONE (1) LATENSIFIER LAMP HONEYWELL P/N 901729 AND ONE (1) PAPER WIDTH ADAPTER HONEYWELL P/N 901461 "OR EQUAL.'" BIDDERS' ATTENTION WAS SPECIFICALLY DIRECTED TO THE IFS PROVISION ENTITLED "BRAND NAME OR EQUAL" AND THE PROVISION ENTITLED "BID SAMPLES.' TWO BIDS WERE RECEIVED AND OPENED ON OCTOBER 20, 1964. CEC SUBMITTED THE LOWEST BID AND OFFERED TO FURNISH ITS OWN DATAGRAPH NO. 5-133P4-36HR. THE BID FORM WAS ACCOMPANIED WITH DESCRIPTIVE LITERATURE AND A LETTER OF TRANSMITTAL. IN SAID LETTER IT IS STATED THAT CEC OFFERS ITS OWN EQUIPMENT AS EQUAL TO THE REFERENCED BRAND NAME. IT IS ALSO STATED THAT IN LIEU OF SUBMITTING A BID SAMPLE, ARRANGEMENTS COULD BE MADE THROUGH ITS PHILADELPHIA SALES OFFICE FOR A DEMONSTRATION AT THE AIR FORCE FACILITY, AND FURTHER THAT THIS EQUIPMENT WAS ALREADY IN USE AT TWO OTHER AIR FORCE FACILITIES. HONEYWELL, INCORPORATED, SUBMITTED A HIGHER BID ON THE BRAND NAME SPECIFIED IN THE INVITATION.

IFB NO. 36-600-65-349 ISSUED OCTOBER 14, 1964, REQUESTED BIDS FOR SIX "/6625-821-6783) OSCILLOGRAPH IN ACCORDANCE WITH NEILAND DIV OF MINNEAPOLIS-HONEYWELL REGULATOR CO., P/N 1108-206780HK OR EQUAL.' THREE BIDS WERE RECEIVED AND OPENED ON OCTOBER 29, 1964. CEC SUBMITTED THE LOWEST BID AND OFFERED TO FURNISH ITS OWN DATAGRAPH NO. 5-124 P4 18, A RECORDING OSCILLOGRAPH, INCLUDING A TAKE-UP REEL ASSEMBLY, A TRACE NUMBERING KIT, A MAGNETIC BLOCK HEATER KIT AND AN ELECTRONIC FLASH TIMER. THIS BID FORM ALSO WAS ACCOMPANIED BY A TRANSMITTAL LETTER STATING, AS IN THE CASE OF THE HONEYWELL VISACORDER ABOVE, THAT IT WAS OFFERING ITS OWN EQUIPMENT AS EQUAL TO THE REFERENCED BRAND NAME; THAT IN LIEU OF SUBMITTING A BID SAMPLE, ARRANGEMENTS COULD BE MADE THROUGH ITS PHILADELPHIA SALES OFFICE FOR A DEMONSTRATION AT THE AIR FORCE FACILITY; AND THAT THIS EQUIPMENT WAS ALREADY IN USE AT TWO OTHER AIR FORCE FACILITIES. HONEYWELL, INCORPORATED, SUBMITTED A HIGH BID ON THE BRAND NAME SPECIFIED IN THE INVITATION. THE THIRD BIDDER OFFERED AN ,OR EQUAL" ITEM AT AN INTERMEDIATE PRICE, AND ITS BID WAS NOT ACCOMPANIED BY A BID SAMPLE.

PROVISION "V" OF IFB 36-600-65-249 AND PROVISION "AA" OF IFB 36-600 65- 349 ARE IDENTICAL AND PROVIDE AS FOLLOWS:

"BID SAMPLES.

"/A) BID SAMPLES IN THE QUANTITY OF 1 EACH OF ITEM NUMBER 1 MUST BE FURNISHED AS A PART OF THIS BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR RECEIVING THE BID. SAMPLES WILL BE EVALUATED TO DETERMINE COMPLIANCE WITH THE SPECIFICATIONS OR OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS, AND MUST BE REPRESENTATIVE OF MANUFACTURERS PRODUCTION RUN.

"/B) FAILURE OF SAMPLES TO CONFORM TO THE REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH SAMPLES BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID EXCEPT THAT A LATE SAMPLE TRANSMITTED BY MAIL MAY BE CONSIDERED UNDER THE PROVISIONS FOR CONSIDERING LATE BIDS AS SET FORTH ELSEWHERE IN THE INVITATION FOR BIDS.

"/C) PRODUCTS DELIVERED UNDER ANY RESULTANT CONTRACT SHALL CONFORM TO THE APPROVED SAMPLE AS TO THE CHARACTERISTICS FOR WHICH THE SAMPLE WAS REQUIRED AND SHALL CONFORM TO THE SPECIFICATIONS AS TO ALL OTHER CHARACTERISTICS.

"/D) BIDDERS WHO ARE OFFERING THE "BRAND NAME" SPECIFIED IN THIS INVITATION FOR BIDS SHALL NOT BE REQUIRED TO FURNISH A BID SAMPLE.'

FOLLOWING THE OPENING OF BIDS ON BOTH INVITATIONS, MAAMA ENGINEERING SERVICES DIVISION WAS REQUESTED TO EVALUATE THE CEC DATAGRAPH NO. 5 133P4- 36HR FROM DESCRIPTIVE LITERATURE FURNISHED, AND ALSO THE OSCILLOGRAPH COMPONENTS OFFERED BY BRUSH INSTRUMENTS. THESE INSTRUMENTS WERE CONSIDERED UNACCEPTABLE BY THE EVALUATING GROUP FOR THE REASONS THAT BRUSH INSTRUMENTS FURNISHED NO BID SAMPLE, AND CEC'S DATAGRAPH, BECAUSE ITS LITERATURE SHOWED IT TO BE NOT EQUAL TO THE BRAND NAME INSTRUMENT. THE CEC OSCILLOGRAPH WAS CONSIDERED UNACCEPTABLE BASED ON A BID SAMPLE FURNISHED ON A PRIOR PROCUREMENT FOR THE IDENTICAL ITEM. IT MAY BE OBSERVED AT THIS POINT THAT THE ADMINISTRATIVE OFFICE FILE REVEALS THAT ON AN EVALUATION BASIS CEC'S DATAGRAPH NO. 5-133P4-36HR WAS CONSIDERED NOT THE EQUAL OF THE BRAND NAME SPECIFIED IN THE FOLLOWING RESPECTS:

(1) DOES NOT HAVE 24 ACTIVE CHANNELS.

(2) NO REVERSE DIRECTION.

(3) NO "TAKE UP" ROLL.

SIMILARLY THE CEC OSCILLOGRAPH WAS NOT THE EQUAL OF THE BRAND NAME SPECIFIED, AS FOLLOWS:

(1) CEC TYPE 5-133 HAS 12 RECORDING SPEEDS IN LIEU OF 15 SPEEDS AVAILABLE ON BRAND NAME.

(2) CEC TYPE DOES NOT HAVE "REVERSE" (10 SPEEDS) AND "FORWARD NON RECORD" FUNCTIONS.

(3) CEC TYPE REQUIRES USE OF DUMMY GALVANOMETERS IN GALVANOMETER BLOCKS IF ALL CHANNELS ARE NOT BEING USED.

(4) CEC IS NOT FURNISHING A PAPER WIDTH ADAPTER.

(5) BID DOES NOT INDICATE LATENSIFIER LAMP ASSEMBLY IS INCLUDED.

HOWEVER, THE REASON FOR REJECTION OF CEC'S BIDS AND THE BRUSH INSTRUMENT BID IS STATED AS BEING BASED ON THEIR FAILURE TO SUBMIT REQUESTED BID SAMPLES. A CONTRACT WAS AWARDED PURSUANT TO EACH INVITATION, TO HONEYWELL, INCORPORATED, ON DECEMBER 3, 1964, FOR DELIVERY WITHIN 90 DAYS, IN EACH INSTANCE.

IN YOUR LETTER OF FEBRUARY 3, 1965, IT IS STATED THAT:

"IT IS OUR CONSIDERED BELIEF THAT THE REQUIREMENT FOR BID SAMPLES, IN THE TWO IFB'S UNDER PROTEST, CANNOT BE JUSTIFIED IN LIGHT OF THE POLICY STATED IN ASPR 2-202.4 (B). THIS POLICY STATES THAT BID SAMPLES MAY BE REQUIRED WHEN IT IS NOT POSSIBLE TO ADEQUATELY DESCRIBE CERTAIN CHARACTERISTICS OF THE PRODUCT. IN THE INSTANT CASES THE BUYER APPEARS TO HAVE MADE NO ATTEMPT TO DESCRIBE ANY SALIENT FEATURES OR CHARACTERISTICS DESIRED IN THE PRODUCT AS REQUIRED BY ASPR 1-1206.2. WE RESPECTFULLY SUBMIT THAT IF THERE WERE ANY SUCH CHARACTERISTICS THAT COULD NOT BE DESCRIBED IN A PRODUCT SUCH AS THAT BEING PROCURED BY THESE IFB-S, THEIR ACCEPTABILITY COULD HAVE BEEN DETERMINED BY A REVIEW OF DESCRIPTIVE LITERATURE.

"* * * WE SOLICIT YOUR ASSISTANCE IN HALTING THIS PROCUREMENT PRACTICE WHICH FOSTERS A SOLE SOURCE OF SUPPLY AND DISCOURAGES COMPETITION AT THE COST OF THE GOVERNMENT.'

IT WOULD APPEAR FROM THE FOREGOING THAT EVEN IF THE UNSUCCESSFUL BIDDERS HAD FURNISHED BID SAMPLES, THEIR BIDS WOULD HAVE BEEN REJECTED AS UNACCEPTABLE. IN OUR OPINION, THE INFORMATION MADE AVAILABLE IN THE INVITATIONS WAS INSUFFICIENT TO ENABLE BIDDERS TO DETERMINE ALL OF THE MATERIAL CHARACTERISTICS OF THE BRAND NAME MODEL WHICH WERE REQUIRED BY THE GOVERNMENT. APPARENTLY THE EVALUATIONS CONSIDERED QUALITIES ESSENTIAL TO THE NEEDS OF THE GOVERNMENT BUT THE BIDDERS WERE INFORMED ONLY AS TO A FEW OF THEM, CONTRARY TO ASPR 1-1206.2 (B). THEY WERE LEFT 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 CASE, THE "OR EQUAL" PROVISION SERVED NO USEFUL PURPOSE AND APPEARS TO HAVE BEEN INCLUDED IN AN ATTEMPT TO MEET THE LANGUAGE OF THE COMPETITIVE BID REQUIREMENTS WHILE DISREGARDING ITS SPIRIT. 41 COMP. GEN. 76; ID. 242; CF. 38 ID. 636; B 153452.

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 THAT THESE INVITATIONS 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 THE INVITATIONS REQUIRED DELIVERY TO BE MADE WITHIN 120 DAYS AFTER RECEIPT OF ORDER, THAT THE CONTRACTS WERE AWARDED ON DECEMBER 3, 1964; THAT HONEYWELL AGREED TO MAKE DELIVERY WITHIN 90 DAYS, AND THAT PERIOD OF TIME HAS ALREADY ELAPSED, WE DO NOT BELIEVE THAT IT WOULD BE IN THE INTEREST OF THE GOVERNMENT AT THIS TIME TO CANCEL THE AWARDS MADE TO HONEYWELL.

YOU ALSO MAY BE ADVISED THAT IN ITS REPORT DATED MARCH 22, 1965, THE DEPARTMENT OF THE AIR FORCE STATED THAT:

"SINCE THESE PROCUREMENTS, THE PROCURING ACTIVITY HAS CONCLUDED THAT FUTURE PROCUREMENTS OF HIGH DOLLAR LOW QUANTITY BUYS OF THIS TYPE OF EQUIPMENT SHOULD BE ACCOMPLISHED BY TWO-STEP FORMAL ADVERTISING OR BY USE OF A DESCRIPTIVE LITERATURE CLAUSE GIVING THE GOVERNMENT THE UNILATERAL RIGHT TO WITNESS OPERATION OF THE EQUIPMENT AT THE PROPOSED CONTRACTOR'S FACILITY PRIOR TO AWARD.'