B-157524, OCT. 18, 1965

B-157524: Oct 18, 1965

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO HOUSTON FEARLESS CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 12. THE VARISCAN VIEWER IS A PRODUCT OF THE HOUSTON FEARLESS CORPORATION. THE SECOND ITEM IS FOR THE SERVICES OF TWO QUALIFIED TECHNICIANS TO INSTALL AND CALIBRATE THE EQUIPMENT AND TO TRAIN MAINTENANCE PERSONNEL AT THE ERECTION SITE AT LINDSEY AIR FORCE STATION. THE INVITATION PROVIDES THAT EVALUATION WILL BE MADE ON THE BASIS OF PRICES QUOTED ON THE FIRST ITEM AND THAT THE FAILURE OF A BIDDER TO BID ON THE SECOND ITEM SHALL CAUSE THE ENTIRE BID TO BE REJECTED AS NONRESPONSIVE. THE INVITATION CONTAINS A "BRAND NAME OR EQUAL" CLAUSE AS SET FORTH IN PARAGRAPH 1-1206.3/B) OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH CLAUSE PROVIDES IN PART 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.

B-157524, OCT. 18, 1965

TO HOUSTON FEARLESS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 12, 1965, PROTESTING AGAINST ANY AWARD OF A CONTRACT TO ITEK CORPORATION FOR FILM VIEWERS UNDER INVITATION FOR BIDS NO. (30-638) 66-5 ISSUED BY HEADQUARTERS, 3121ST USAF LOGISTIC CONTROL GROUP (ATLANTIC) AT BROOKLYN, NEW YORK.

THE INVITATION SOLICITED BIDS ON TWO ITEMS. THE FIRST ITEM CALLS FOR FIVE FILM VIEWERS DESCRIBED AS "VIEWER, VARIABLE WIDTH, SCANNING VARISCAN MARK II 50/60 CYCLE 117 VOLTS OR EQUAL.' THE VARISCAN VIEWER IS A PRODUCT OF THE HOUSTON FEARLESS CORPORATION. THE SECOND ITEM IS FOR THE SERVICES OF TWO QUALIFIED TECHNICIANS TO INSTALL AND CALIBRATE THE EQUIPMENT AND TO TRAIN MAINTENANCE PERSONNEL AT THE ERECTION SITE AT LINDSEY AIR FORCE STATION, GERMANY. THE INVITATION PROVIDES THAT EVALUATION WILL BE MADE ON THE BASIS OF PRICES QUOTED ON THE FIRST ITEM AND THAT THE FAILURE OF A BIDDER TO BID ON THE SECOND ITEM SHALL CAUSE THE ENTIRE BID TO BE REJECTED AS NONRESPONSIVE.

THE INVITATION CONTAINS A "BRAND NAME OR EQUAL" CLAUSE AS SET FORTH IN PARAGRAPH 1-1206.3/B) OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH CLAUSE PROVIDES IN PART 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.'

BIDS WERE RECEIVED FROM HOUSTON FEARLESS CORPORATION IN THE AMOUNT OF $117,565 ON THE VIEWER SPECIFIED IN THE INVITATION AND FROM ITEK CORPORATION IN THE AMOUNT OF $120,475 ON A VIEWER OF ITS OWN MANUFACTURER UNDER THE "OR EQUAL" PROVISION OF THE SOLICITATION. THE HOUSTON BID WAS REJECTED AS NONRESPONSIVE FOR FAILURE TO BID ON THE SECOND ITEM AND YOU PROTEST ANY AWARD TO ITEK ON THE BASIS THAT SUCH FIRM'S VIEWER IS NOT EQUAL TO THE VARISCAN MODEL IN THE FOLLOWING FOUR RESPECTS: FILM PLATEN AREA; CAPACITY; SPEED--- SCAN MODE AND SLEW MODE; AND SIDE LOADING.

CONCERNING YOUR CONTENTIONS, THE AIR FORCE HAS REPORTED THAT FOR A TIME PRIOR TO THE SUBJECT INVITATION REAR PROJECTION VIEWERS HAD BEEN PROCURED BY THAT AGENCY ON A SOLE SOURCE BASIS FROM HOUSTON FEARLESS. HOWEVER, UPON INVESTIGATING THE FIELD THOROUGHLY IT WAS DETERMINED THAT ITEK COULD PROPERLY QUOTE ON AN "OR EQUAL" MODEL THUS ELIMINATING THE NEED FOR PROCUREMENT OF SUCH EQUIPMENT ON A SOLE SOURCE BASIS AND THEREBY AFFORDING AN OPPORTUNITY FOR COMPETITIVE BIDDING ON THE GOVERNMENT'S NEEDS FOR THE ITEM. IT WAS FURTHER DISCLOSED, AFTER MANY AND VARIOUS TESTS OF THE MODEL PRODUCED BY ITEK BOTH DURING PRODUCTION AND AFTER ACCEPTANCE BY AIR FORCE, THAT SUCH MODEL EQUALS IN ALL ESSENTIAL RESPECTS THE PERFORMANCE OF THE THERETOFORE PROCURED VARISCAN MARK II MODEL AND FROM THE OPERATOR'S STANDPOINT THERE ARE NO MATERIAL DIFFERENCES BETWEEN THE TWO MODELS. IS FURTHER REPORTED THAT THE ITEK MODEL IS SUITABLE FOR FILM LOADING FROM EITHER SIDE; CAN ACCOMMODATE FILM IN ROLLS UP TO 1000 FEET IN WIDTHS FROM 35 MILLIMETERS TO 9.5 INCHES; AND THAT THE DIFFERENCE IN SPEED OF BOTH THE SCAN AND SLEW MODES BETWEEN THE TWO MODELS ARE INSIGNIFICANT TO THE USER.

PARAGRAPH (A) OF ASPR 1-1206.4 PROVIDES:

"BIDS OFFERING PRODUCTS WHICH DIFFER FROM BRAND NAME PRODUCTS REFERENCED IN A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION SHALL BE CONSIDERED FOR AWARD WHERE THE CONTRACTING OFFICER DETERMINES IN ACCORDANCE WITH THE TERMS OF THE CLAUSE IN 1-1206.3/B) THAT THE OFFERED PRODUCTS ARE EQUAL IN ALL MATERIAL RESPECTS TO THE PRODUCTS REFERENCED. 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.'

PURSUANT TO THE SPECIFIC PROVISIONS OF THE ABOVE PARAGRAPH AND OF THE"BRAND NAME OR EQUAL" CLAUSE CONTAINED IN THE INVITATION THE CONTRACTING OFFICER HAS DETERMINED IN THE PRESENT CASE THAT THE ITEK MODEL IS EQUAL IN ALL MATERIAL RESPECTS TO THE VARISCAN MODEL FOR THE INTENDED USE TO BE MADE THEREOF. SUCH ABOVE-QUOTED PROVISION OF ASPR IS IN ACCORDANCE WITH DECISIONS OF THIS OFFICE IN WHICH WE HAVE CONSTRUED THE WORDS "OR EQUAL" WHEN USED IN CONJUNCTION WITH THE BRAND NAME PURCHASE DESCRIPTION, TO MEAN THAT AN ALTERNATE ITEM MUST BE EQUAL TO THE PRODUCT SPECIFIED INSOFAR AS THE ESSENTIAL NEEDS OF THE PROCURING AGENCY ARE CONCERNED, BUT NOT NECESSARILY AN EXACT DUPLICATE THEREOF IN DETAIL OR PERFORMANCE. 38 COMP. GEN. 291; 43 ID. 761, 766. WHEN A "BRAND NAME OR EQUAL" DESCRIPTION IS UTILIZED, AS IN OTHER TYPES OF PROCUREMENT, IT IS PRIMARILY THE FUNCTION OF THE PROCURING AGENCY TO DETERMINE WHETHER THE PRODUCTS OFFERED BY BIDDERS MEET THE SPECIFICATION REQUIREMENTS. 17 COMP. GEN. 554. WE WILL NOT INTERFERE WITH SUCH DETERMINATIONS EXCEPT WHERE IT IS CLEARLY ESTABLISHED THAT CONTRACTING OFFICIALS OF THE GOVERNMENT HAVE ABUSED THEIR AUTHORITY BY ACTING IN BAD FAITH, OR WITHOUT A REASONABLE FACTUAL BASIS OR IN DISREGARD OF APPLICABLE STATUTES OR REGULATIONS. SINCE IT APPEARS THAT THE CONTRACTING OFFICER'S DETERMINATION WAS MADE IN GOOD FAITH AND IN THE EXERCISE OF HIS BEST INDEPENDENT JUDGMENT, WHICH IS NOT CONTROVERTED BY THE FACTS, WE FIND NO LEGAL BASIS TO OBJECT TO THE PROPOSED AWARD TO ITEK CORPORATION.