B-158144, FEB. 23, 1966

B-158144: Feb 23, 1966

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THE INVITATION NOTED THAT THE TABLES WERE TO SUPPORT F4C AIRCRAFT. FUNCTIONAL AND OTHER CHARACTERISTICS OF THE END ITEM WHICH WERE DEEMED ESSENTIAL TO THE NEEDS OF THE GOVERNMENT IN ACCORDANCE WITH THE REQUIREMENT IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1 1206.2 (B). THE INVITATION INCLUDED THE CLAUSE REQUIRED BY ASPR 1 1206.3 INFORMING BIDDERS THAT THE "BRAND NAME OR EQUAL" DESCRIPTION WAS INTENDED TO BE DESCRIPTIVE BUT NOT RESTRICTIVE. THAT BIDS OFFERING "EQUAL" PRODUCTS WOULD BE CONSIDERED FOR AWARD IF IT WAS DETERMINED THAT SUCH PRODUCTS WERE EQUAL IN ALL "MATERIAL" RESPECTS TO THE BRAND NAME REFERENCED IN THE INVITATION. THREE BIDS WERE RECEIVED AND OPENED ON MAY 20. WERE SCHEDULED AS FOLLOWS IN THE 21 TO 30 QUANTITY INCREMENT: CHART IDEAL AEROSMITH.

B-158144, FEB. 23, 1966

TO THE SECRETARY OF THE AIR FORCE:

BY LETTER DATED JANUARY 25, 1966, THE CHIEF, PROCUREMENT OPERATIONS DIVISION, DIRECTORATE, PROCUREMENT POLICY, DEPUTY CHIEF OF STAFF FOR SYSTEMS AND LOGISTICS, FURNISHED A REPORT ON THE PROTEST OF THE GENISCO TECHNOLOGY CORPORATION AGAINST THE REINSTATEMENT OF CANCELED INVITATION FOR BIDS NO. 41-608-65-880 AND THE AWARD OF A CONTRACT THEREUNDER AFTER REINSTATEMENT TO INLAND CONTROLS, INC.

THE INVITATION ISSUED ON MAY 5, 1965, BY THE SAN ANTONIO AIR MATERIEL AREA (SAAMA), REQUESTED BIDS ON AN INCREMENTAL QUANTITY BASIS FOR "4920- 590-0145 RATE OF TURN TABLE GENISCO, INC. PART NUMBER C181 OR "EQUAL" IN ACCORDANCE WITH PART IV OF SECTION I HEREOF.' THE INVITATION NOTED THAT THE TABLES WERE TO SUPPORT F4C AIRCRAFT. PART IV OF THE INVITATION ENTITLED "PURCHASE DESCRIPTION," LISTED THE 17 PHYSICAL, FUNCTIONAL AND OTHER CHARACTERISTICS OF THE END ITEM WHICH WERE DEEMED ESSENTIAL TO THE NEEDS OF THE GOVERNMENT IN ACCORDANCE WITH THE REQUIREMENT IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1 1206.2 (B). THE INVITATION INCLUDED THE CLAUSE REQUIRED BY ASPR 1 1206.3 INFORMING BIDDERS THAT THE "BRAND NAME OR EQUAL" DESCRIPTION WAS INTENDED TO BE DESCRIPTIVE BUT NOT RESTRICTIVE, AND TO INDICATE THE QUALITY AND CHARACTERISTICS THAT WOULD BE SATISFACTORY IN THE PRODUCT OFFERED, AND THAT BIDS OFFERING "EQUAL" PRODUCTS WOULD BE CONSIDERED FOR AWARD IF IT WAS DETERMINED THAT SUCH PRODUCTS WERE EQUAL IN ALL "MATERIAL" RESPECTS TO THE BRAND NAME REFERENCED IN THE INVITATION. ALSO, THE CLAUSE WARNED BIDDERS THAT MODIFICATIONS PROPOSED AFTER BID OPENING TO MAKE A PRODUCT CONFORM TO THE REFERENCED BRAND NAME WOULD NOT BE CONSIDERED.

THREE BIDS WERE RECEIVED AND OPENED ON MAY 20, 1965, AND WERE SCHEDULED AS FOLLOWS IN THE 21 TO 30 QUANTITY INCREMENT:

CHART

IDEAL AEROSMITH, INC. $5,175.65 EACH

INLAND CONTROLS, INC. 5,725.00 EACH

GENISCO TECHNOLOGY CORPORATION 6,264.37 EACH (*)

(*) LESS 2 1/2 PERCENT DISCOUNT FOR PAYMENT WITHIN 10 DAYS.

IDEAL AND INLAND CONTROLS OFFERED THEIR "EQUAL" COMMERCIAL PRODUCTS AND GENISCO OFFERED ITS BRAND NAME REFERENCED IN THE INVITATION. THESE "EQUAL" BIDS, TOGETHER WITH THEIR ACCOMPANYING DESCRIPTIVE LITERATURE, WERE TECHNICALLY EVALUATED BY THE SYSTEMS ENGINEERING GROUP, RESEARCH AND TECHNOLOGY DIVISION OF THE AIR FORCE SYSTEMS COMMAND, AND SUCH GROUP ADVISED THE CONTRACTING OFFICER ON JUNE 25, 1965, IN PERTINENT PART AS FOLLOWS WITH REFERENCE TO THE INLAND CONTROLS BID:

"* * * INLAND CONTROLS STATES VERY CLEARLY THAT THEY ARE PROPOSING THEIR MODEL 722, AND PROPERLY IDENTIFIED DRAWINGS AND PHOTOGRAPHS OF THIS MODEL ARE SUBMITTED. IN ADDITION, THEY SUBMIT A REASONABLE AMOUNT OF SUPPORTING INFORMATION THAT DEMONSTRATES THEIR ABILITY TO BUILD A UNIT MEETING THE IFB REQUIREMENTS EXCEPT FOR THE COMMENTS IN THE REMAINDER OF THIS PARAGRAPH. INLAND CONTROLS, THE SAME AS IDEAL AEROSMITH, PROPOSES TO COVER THE SPEED RANGE BY USING SOME TYPE OF RANGE CHANGING DEVICE. THIS IS ASSUMED BY SEMTC TO BE ACCEPTABLE. INLAND CONTROLS PROPOSES A WIDER RANGE THAN REQUIRED BY THE IFB. THE LOAD CAPACITY OF THE INLAND UNIT IS 300 LBS., WHICH IS CONSIDERABLY BETTER THAN THE 100 LBS. REQUESTED. STATEMENT IS MADE WITH RESPECT TO THE REQUIREMENT FOR GOLD PALLADIUM BRUSHES. INFORMATION ON THIS REQUIREMENT SHOULD BE OBTAINED FROM INLAND CONTROLS. AS IN THE CASE OF THE OTHER BIDDER, A DC MOTOR DRIVE IS PROPOSED INSTEAD OF THE MECHANICAL DRIVE OF THE GENISCO TABLE; AS STATED PREVIOUSLY THIS SHOULD PROVIDE FULLY EQUAL PERFORMANCE. THE DIMENSIONS OF THE INLAND UNIT, AS TAKEN FROM THE DRAWINGS SUPPLIED, SHOW A TOTAL CUBAGE OF 4.6 CUBIC FT. FOR THE TABLE AND ASSOCIATED CONTROL UNIT. THIS FIGURE IS LESS THAN HALF THE SIZE OF THE PRESENT UNIT AS STATED IN THE IFB. THE TOTAL WEIGHT OF THIS UNIT IS GIVEN AS 130 LBS. INCLUDING ELECTRONICS, WHICH IS CONSIDERABLY BETTER THAN THE 300 LBS. GIVEN IN THE IFB.

"FROM THE FOREGOING COMPARISON IT IS APPARENT THAT NEITHER BIDDER SUPPLIES ENOUGH INFORMATION TO MAKE A CLEAR RESPONSE TO EVERY ITEM OF THE IFB. IDEAL AEROSMITH IS SO VAGUE WITH RESPECT TO THE EXACT MODEL THEY ARE PROPOSING, THAT THEY DO NOT FULFILL THE REQUIREMENT OF THE BID CONCERNING DESCRIPTION OF THE EQUIPMENT TO BE FURNISHED. * * * ALL INFORMATION SUBMITTED BY IDEAL AEROSMITH INDICATES CONSIDERABLE REDESIGN TO REDUCE WEIGHT AND SIZE WOULD BE REQUIRED TO MAKE THEM FULLY RESPONSIVE TO THE IFB REQUIREMENTS.

"INLAND CONTROLS, ALTHOUGH NOT FULLY IN COMPLIANCE ON EVERY REQUIREMENT, COULD BE MADE SO VERY EASILY. THEIR MAIN OMISSION IS THE LACK OF INFORMATION ON BRUSH MATERIAL. WITH RESPECT TO OVERALL RANGE, WEIGHT, SIZE, AND TABLE CAPACITY THEY ARE BETTER THAN THE IFB.

"SINCE THIS PROCUREMENT IS IN DIRECT SUPPORT OF THE F-4 PROGRAM THIS OFFICE HAS REVIEWED THE IFB AND RESPONSES THERETO WITH THE F-4 SYSTEM PROGRAM OFFICE (SPO). THIS REVIEW HAS RESULTED IN THE ESTABLISHMENT OF A PROGRAM OFFICE POSITION WITH RESPECT TO WEIGHT AND PACKAGING OF THE RATE TABLE. BECAUSE OF THE DEPLOYMENT REQUIREMENTS PLACED ON THE F-4, WEIGHT OF AGE TAKES ON A MORE THAN NORMAL SIGNIFICANCE. IT IS FOR THIS REASON THAT THE SPO CONSIDERS AN INCREASE FROM 300 POUNDS TO 600 POUNDS UNACCEPTABLE. THE POSITION WITH REGARD TO PACKAGING DEALS WITH A MINOR CHANGE FROM A TECHNICAL POINT OF VIEW. IT DEALS WITH PACKAGING THE CONTROL ELECTRONICS SO AS TO BE COMPATIBLE WITH EXISTING EQUIPMENT I.E. A WORK BENCH AS OPPOSED TO THE PROPOSED RACK MOUNTING APPROACH. THIS WOULD REQUIRE A MODIFICATION OF THE INLAND CONTROLS UNIT, BUT IT WOULD BE MINOR. IT IS THEREFORE SUGGESTED THAT INLAND CONTROLS BE GIVEN AN OPPORTUNITY TO SUBMIT A NEW PRICE TO INCORPORATE FULLY SELF CONTAINED PACKAGING INSTEAD OF THEIR PRESENT RACK MOUNTED CONFIGURATION AND SPECIFY THE TYPE OF BRUSH MATERIAL TO BE USED.'

SINCE THE EVALUATION ALSO DISCLOSED THAT THE PURCHASE DESCRIPTION DID NOT INCLUDE A SPECIFIC TYPE OF PACKAGING AS AN ESSENTIAL CHARACTERISTIC OF THE PRODUCT DESIRED BY THE GOVERNMENT, THE CONTRACTING OFFICER CANCELED THE INVITATION BY DETERMINATION DATED JULY 15, 1965, WHICH READ AS FOLLOWS:

"1. SUBJECT INVITATION FOR BIDS COVERS AIR FORCE REQUIREMENTS FOR FSN 4920-590-0145, RATE OF TURN TABLES, GENISCO TECHNOLOGY CORP P/N C181 OR "EQUAL.' THESE REQUIREMENTS HAVE BEEN FORMALLY ADVERTISED BY UTILIZING A SAPOTE PREPARED "OR EQUAL" PURCHASE DESCRIPTION. A TOTAL OF 19 SOURCES WERE SOLICITED AND 3 BIDS HAVE BEEN RECEIVED. HOWEVER, SUBSEQUENT TO BID OPENING WRITTEN NOTIFICATION HAS BEEN RECEIVED FROM SAPOTE THAT THE PURCHASE DESCRIPTION UTILIZED IN IFB 41-608-65-880 IS INADEQUATE FOR USE UNDER IFB PROCEDURES.

"2. BASED ON FACTORS CITED IN PARA 1 ABOVE, THE DETERMINATION IS HEREBY MADE TO REJECT ALL BIDS AND CANCEL IFB 41-608-65-880 IN ITS ENTIRETY DUE TO THE USE OF INADEQUATE SPECIFICATIONS IN THIS INVITATION. THIS ACTION IS DEEMED NECESSARY IN ACCORDANCE WITH THE REQUIREMENTS OF ASPR 2-404.1- /B) (I).'

BIDDERS WERE APPROPRIATELY ADVISED ON JULY 16, 1965, OF SUCH DETERMINATION TO CANCEL THE INVITATION. AT THIS POINT, IT IS SIGNIFICANT TO NOTE THAT A CONTRACT FOR 14 RATE OF TURNTABLES WAS AWARDED TO GENISCO ON JULY 23, 1965, AT A UNIT PRICE OF $6,264.37, ON AN EMERGENCY SOLE- SOURCE BASIS.

INLAND CONTROLS PROTESTED TO THE PROCUREMENT ACTIVITY ON AUGUST 13, 1965, AGAINST THE CANCELLATION OF THE INVITATION STATING IN PART:

"AS YOU KNOW, THE EARLIER INVITATION FOR THE SAME RATE OF TURN TABLES WAS CANCELLED AFTER OUR PROTEST TO GAO WHICH WAS BASED UPON INFORMATION RECEIVED FROM YOUR STAFF THAT OUR BID WOULD NOT BE CONSIDERED. AT THAT TIME, IT WAS MADE CLEAR THAT YOUR ACTIVITY HAD ATTEMPTED TO PURCHASE A SOLE-SOURCE PROPRIETARY ITEM BY MEANS OF FORMAL ADVERTISING WHEN IT WAS KNOWN, OR SHOULD HAVE BEEN KNOWN, THAT THE ACTUAL PROGRAM REQUIREMENT COULD BE SATISFIED AT LEAST AS WELL, IF NOT BETTER, BY US AND POSSIBLY OTHERS.

"THE SECOND SOLICITATION, BY IFB 41-608-65-880, WE HOPED WOULD AVOID THIS MISHANDLING OF PUBLIC INTEREST. HOWEVER, NOW WE ARE ADVISED BY YOUR LETTER OF JULY 16, 1965, THAT THE CONTRACTING OFFICER HAS DETERMINED IN WRITING THAT THE SPECIFICATIONS CITED IN THE INVITATION WERE INADEQUATE OR AMBIGUOUS. THE BASIS FOR OUR PRESENT GREAT CONCERN IS THAT THE SPECIFICATIONS ARE NO MORE INADEQUATE OR AMBIGUOUS NOW THAN WHEN THE CONTRACTING OFFICER ORIGINALLY DETERMINED THAT THE SPECIFICATIONS WERE ADEQUATE FOR THE PURPOSES OF FORMAL ADVERTISING. THE DANGER OF PURCHASING ITEMS OF THIS COMPLEXITY ON AN "OR EQUAL" BASIS ARE KNOWN THROUGHOUT THE DEFENSE MARKET AND MUST HAVE BEEN KNOWN TO YOUR STAFF.

"ALTHOUGH THIS PROCUREMENT DIFFICULTY COULD HAVE BEEN AVOIDED BY USE OF A GOOD SPECIFICATION OR OTHER TECHNIQUES IN THE FIRST INSTANCE, WE SINCERELY BELIEVE THAT A FAIR EVALUATION OF BIDS AND THE SELECTION OF LOW RESPONSIVE AND RESPONSIBLE BIDDERS CAN BE MADE IF YOUR ACTIVITY WISHES TO DO SO. WHILE IT IS UNDERSTANDABLY DIFFICULT TO MAKE SUCH AN EVALUATION, NEITHER WE NOR THE PUBLIC SHOULD BE HELD ACCOUNTABLE FOR THIS ADDED, BUT PREDICTABLE DIFFICULTY. CONSEQUENTLY, THE BURDEN OF DETERMINING WHICH BIDS ARE RESPONSIVE MUST ON ALL COUNTS BE YOURS. THE PRACTICE OF SOLICITING REBIDS ON A GIVEN REQUIREMENT IS UNIVERSALLY RECOGNIZED AS UNETHICAL AND IMPROPER, AND CAN IN NO WAY BE JUSTIFIED BY THE FACTS OF THIS SITUATION. THE U.S. GOVERNMENT AND ITS AGENCIES HAVE IN THE PAST MAINTAINED AN EXCELLENT REPUTATION IN PROCUREMENT IN THIS INDUSTRY, AND WE HOPE THAT YOU WILL NOT WISH TO PERMIT INJURY TO IT IN THIS MATTER.

"SINCE THE DECISION TO CANCEL IS REVOCABLE AND WOULD NOT STAND IN THE WAY OF AN OTHERWISE PROPER AWARD, WE ASK YOUR PERSONAL INTERVENTION TO AVOID THE WASTE OF TIME AND EXPENSE OF FURTHER SOLICITATION. WE STAND READY TO COOPERATE WITH YOU IN ANY WAY THAT WE PROPERLY CAN DO SO. TOWARD THIS END, WE HEREBY EXTEND OUR BID FOR AN ADDITIONAL SIXTY DAYS.'

THEREAFTER, A QUESTION AROSE AS TO THE FEASIBILITY OF AN AWARD TO INLAND CONTROLS IN VIEW OF THE POSSIBLE IMPACT OF INTRODUCING ITS "EQUAL" MODEL INTO THE F4C AIRCRAFT SUPPORT PROGRAM WHICH WAS CURRENTLY EMPLOYING THE GENISCO PRODUCT. ON SEPTEMBER 23, 1965, SAAMA ADVISED THAT THERE WAS NO OBJECTION TO THE USE OF THE INLAND CONTROLS PRODUCT PROVIDED THAT THE CONTROL ELECTRONICS PACKAGES WERE MODIFIED TO MAKE THE UNIT FULLY SELF- CONTAINED. THE PROBABLE INCREASED COSTS TO THE GOVERNMENT TO INCORPORATE THE INLAND CONTROLS PRODUCT INTO THE F4C SUPPORT PROGRAM WERE ESTIMATED BY SAAMA TO BE $37,000. ON OCTOBER 26, 1965, THE PROCUREMENT OPERATIONS DIVISION, DIRECTORATE OF PROCUREMENT POLICY, ADVISED THE AIR FORCE LOGISTICS COMMAND AS FOLLOWS:

"2. THE ENGINEERING EVALUATION SHOWS THAT INLAND CONTROLS OFFERS EQUIPMENT WHICH IS EQUAL TO OR BETTER THAN THE BRAND NAME PRODUCT SPECIFIED, ALTHOUGH IT IS DIFFERENT IN ONE RESPECT.

"3. THE PURCHASE DESCRIPTION IN THE IFB REQUIRES THAT THEY BE MADE WITH BERYLLIUM COPPER LEAVES AND GOLD-PALLADIUM ALLOY CONTACT BUTTONS, WHEREAS THE BID OF INLAND CONTROLS FAILS TO SPECIFY THE TYPE OF MATERIAL PROPOSED TO BE USED. SINCE INLAND AGREED TO SUPPLY THE PRODUCT REQUESTED, HOWEVER, WE INTERPRET ITS SILENCE HERE AS INDICATING ITS INTENT TO COMPLY WITH THE REQUIREMENT.

"4. INLAND DID OFFER EQUIPMENT OF A RACK MOUNTED CONFIGURATION AS OPPOSED TO THE FULLY SELF-CONTAINED PACKAGE OF THE BRAND NAME PRODUCT. THIS DIFFERENCE IS NOT SUFFICIENT, IN OUR OPINION, TO JUSTIFY THE REJECTION OF THE INLAND CONTROLS BID FOR FAILURE TO OFFER A PRODUCT EQUAL TO THE GENISCO MODEL WHICH WAS SPECIFIED BY BRAND NAME. THE METHOD OF PACKAGING IS NOT SPECIFIED BY THE PURCHASE DESCRIPTION AS AN ESSENTIAL CHARACTERISTIC OF THE EQUIPMENT DESIRED. IT IS DIFFICULT THEREFORE TO JUSTIFY REJECTION OF THE BID FOR FAILURE TO MEET A REQUIREMENT WHICH WAS NOT SPECIFICALLY LISTED IN THE IFB PURCHASE DESCRIPTION AS ONE OF THE 17 ESSENTIAL FEATURES OF THE BRAND NAME PRODUCT AND APPARENTLY WAS NOT CONSIDERED ESSENTIAL WHEN THE IFB WAS ISSUED.

"5. ALTHOUGH THERE COULD BE SOME BASIS TO SUPPORT CANCELLATION OF THE IFB AND READVERTISEMENT WITH A MORE PRECISE PURCHASE DESCRIPTION, IN VIEW OF ALL THE CIRCUMSTANCES INVOLVED, INCLUDING THE HISTORY OF THIS PROCUREMENT, WE FIND THAT SUCH CANCELLATION AND READVERTISEMENT IS NEITHER NECESSARY, NOR IN THE BEST INTEREST OF THE GOVERNMENT.

"6. WE CONCUR, THEREFORE, WITH YOUR RECOMMENDATION THAT THE IFB BE REINSTATED, AND THAT A CONTRACT BE AWARDED THEREUNDER TO INLAND CONTROLS, INC.'

NOTICE OF AWARD DATED NOVEMBER 18, 1965, WAS ISSUED TO INLAND CONTROLS FOR 23 RATE OF TURNTABLES, INLAND CONTROLS MODEL NO. 722, WITH ELECTRONIC EQUIPMENT IN BENCH MOUNTED VERSION, IN THE TOTAL AMOUNT OF $131,675. UPON REVIEW OF THE RECORD BEFORE US, WE FEEL THAT THE AWARD THUS MADE WAS NEITHER SANCTIONED BY THE FACTS AND CIRCUMSTANCES INVOLVED NOR BY THE LAW AND REGULATIONS APPLICABLE TO FORMALLY ADVERTISED BRAND NAME OR EQUAL PROCUREMENTS. UNDER THE INVITATION "BRAND NAME OR EQUAL" CLAUSE, A BIDDER OFFERING AN "EQUAL" PRODUCT IS REQUIRED TO FURNISH "AS PART OF HIS BID" ALL DESCRIPTIVE MATERIAL NECESSARY FOR THE GOVERNMENT TO DETERMINE WHETHER THE "EQUAL" PRODUCT MEETS THE INVITATION REQUIREMENTS AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE. ALSO, IF A BIDDER PROPOSES TO MODIFY A PRODUCT TO CONFORM TO THE INVITATION BRAND NAME OR EQUAL REQUIREMENTS, THE CLAUSE REQUIRES THAT HE INCLUDE IN HIS BID A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS AND CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS.

THE RECORD BEFORE US ESTABLISHES THAT THE MODEL NO. 722 OFFERED BY INLAND CONTROLS DEVIATED FROM THE INVITATION PURCHASE DESCRIPTION IN AT LEAST THESE RESPECTS:

1. SLIP RINGS HAVING INSTRUMENTATION BRUSHES WITH BERYLLIUM COPPER LEAVES WITH GOLD-PALLADIUM ALLOY CONTACT BUTTONS. INLAND CONTROLS' BID WAS SILENT IN THIS RESPECT.

2. MOTOR. MECHANICAL DRIVE SPECIFIED. INLAND CONTROLS' BID OFFERED A D.C. TORQUE MOTOR, DIRECT DRIVE, SERVO-CONTROLLED.

3. SIZE. INLAND CONTROLS' BID OFFERED A UNIT OF ABOUT ONE-HALF THE SIZE SPECIFIED.

4. WEIGHT. INLAND CONTROLS' BID OFFERED A TOTAL WEIGHT OF 130 POUNDS,INCLUDING ELECTRONICS, WHEREAS, APPROXIMATELY 300 POUNDS WAS SPECIFIED.

5. MOUNTING PLATE. NO STATEMENT OF COMPLIANCE IN INLAND CONTROLS' BID WITH THE SPECIFIED REQUIREMENTS.

THE ADMINISTRATIVE REPORT OF JANUARY 25, 1966, REGARDING THE EVALUATION OF INLAND CONTROLS' BID AND THE JUSTIFICATION FOR AWARD IS AS FOLLOWS:

"4. IDEAL AEROSMITH AND INLAND CONTROLS OFFERED TO FURNISH PRODUCTS OF THEIR OWN MANUFACTURE AS EQUAL TO THE GENISCO MODEL. THE DESCRIPTIVE DATA WITH THEIR BIDS WAS EVALUATED BY THE COGNIZANT AIR FORCE ENGINEERS, IN ACCORDANCE WITH THE TERMS OF THE INVITATION, TO DETERMINE WHETHER THE PRODUCTS OFFERED AS "EQUAL" TO THE GENISCO MODEL WERE IN FACT EQUAL. THE ENGINEERS DETERMINED THAT IDEAL AEROSMITH'S PRODUCT REQUIRED CONSIDERABLE REDESIGN TO REDUCE WEIGHT AND SIZE TO MAKE IT RESPONSIVE TO TO THE IFB REQUIREMENTS. WITH RESPECT TO THE BID OF INLAND CONTROLS, THE ENGINEERS DECIDED THAT THE MAIN PROBLEM WITH THIS BID WAS LACK OF INFORMATION AS TO THE BRUSH MATERIAL PROPOSED TO BE USED. THEY DETERMINED FURTHER THAT WITH RESPECT TO OVERALL RANGE, WEIGHT, SIZE AND TABLE CAPACITY, THE INLAND PRODUCT WAS BETTER THAN REQUIRED BY THE IFB. THEY ALSO NOTED THAT THE PRODUCT OF INLAND CONTROLS DIFFERED FROM THE BRAND NAME PRODUCT IN PACKAGING CONFIGURATION, SINCE ITS CONTROL ELECTRONICS WERE RACK MOUNTED AS OPPOSED TO THE SELF-CONTAINED PACKAGE OF THE GENISCO MODEL. THEY DECIDED THAT THIS WOULD REQUIRE A MODIFICATION OF THE INLAND CONTROLS UNIT TO MAKE IT COMPATIBLE WITH THE GENISCO EQUIPMENT BEING USED BY THE AIR FORCE FOR THE F-4C AIRCRAFT, BUT THAT THE MODIFICATION WOULD BE A MINOR MATTER.

"5. THE EVALUATION OF THE BIDS FURTHER DISCLOSED THAT THE PURCHASE DESCRIPTION DID NOT LIST A SPECIFIC TYPE OF PACKAGING AS AN IMPORTANT OR ESSENTIAL CHARACTERISTIC OF THE PRODUCT DESIRED BY THE GOVERNMENT. * * *

"7. IN ACCORDANCE WITH ASPR 1-1206.2 (B) THE PURCHASE DESCRIPTION USED WITH THIS INVITATION LISTED SEVENTEEN CHARACTERISTICS OF THE EQUIPMENT WHICH WERE CONSIDERED ESSENTIAL TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT. THE PRODUCT OFFERED BY INLAND CONTROLS MET ALL THESE CHARACTERISTICS. HOWEVER, IT WAS DISCOVERED DURING THE EVALUATION OF THE BIDS THAT TO ASSURE COMPATIBILITY OF ANY OTHER COMPANY'S PRODUCT WITH THE GENISCO EQUIPMENT BEING USED BY THE AIR FORCE, THE CONTROL ELECTRONICS MUST BE PACKAGED IN A CERTAIN MANNER. HAD THIS PACKAGING REQUIREMENT BEEN INCLUDED IN THE PURCHASE DESCRIPTION, THERE IS NO QUESTION THAT INLAND CONTROLS WOULD HAVE COMPLIED WITH IT. IN FACT, UNDER THE CONTRACT AWARDED TO IT, INLAND CONTROLS IS FURNISHING EQUIPMENT PACKAGED IN COMPLIANCE WITH THIS REQUIREMENT AT NO INCREASE IN CONTRACT PRICE. THIS SUPPORTS THE DETERMINATION OF THE AIR FORCE ENGINEERS THAT THIS CHANGE IN PACKAGING, ALTHOUGH REQUIRED BY THE AIR FORCE, WAS OF A MINOR NATURE AND COULD BE EASILY ACCOMPLISHED. WITH RESPECT TO THE LACK OF INFORMATION AS TO THE BRUSH MATERIAL, SINCE INLAND AGREED TO SUPPLY THE PRODUCT REQUESTED IN THE PURCHASE DESCRIPTION, WE INTERPRETED ITS SILENCE WITH RESPECT TO THE BRUSHES AS INDICATING ITS INTENT TO COMPLY WITH THE GOVERNMENT'S REQUIREMENTS.

"8.IN THE CIRCUMSTANCES, CANCELLATION OF THE INVITATION AND READVERTISEMENT WOULD HAVE BEEN UNFAIR TO INLAND AND OF NO ADVANTAGE TO THE GOVERNMENT. ASPR 1-1206.2 (B) PROVIDES THAT "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.' INLAND'S PRODUCT MET ALL THE REQUIREMENTS OF THE PURCHASE DESCRIPTION AND IN SOME RESPECTS WAS BETTER THAN THE BRAND NAME ITEM. MOST IMPORTANT, THAT THE PURCHASE DESCRIPTION WAS IMPERFECT DID NOT BENEFIT INLAND SINCE INLAND PROVIDED THE GOVERNMENT WITH WHAT THE GOVERNMENT DESIRED AT NO INCREASE IN INLAND'S QUOTED PRICE. FURTHERMORE, THE ACTION TAKEN WAS IN KEEPING WITH THE POLICY OF MAINTAINING THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM BY AVOIDING, WHERE FEASIBLE, THE RESOLICITATION OF BIDS AFTER BID PRICES HAVE BEEN DISCLOSED. THE ONLY REASON GENISCO WOULD HAVE LOWERED ITS BID PRICE IN RESPONSE TO A NEW IFB WOULD HAVE BEEN BECAUSE IT HAD ALREADY SEEN INLAND'S BID. WEIGHING ALL THE EQUITIES, WE CONCLUDED THAT IT WAS PREFERABLE TO PROCEED WITH AN AWARD UNDER THIS INVITATION RATHER THAN CANCEL ONCE MORE AND COMMENCE THE PROCUREMENT OF THIS EQUIPMENT FOR THE THIRD TIME. IN THIS REGARD, SEE YOUR RECENT DECISION, B-157081, 18 OCTOBER 1965.

"9. IT IS OUR POSITION THAT INLAND CONTROLS OFFERED A PRODUCT WHICH IS EQUAL TO OR BETTER THAN THE GENISCO PRODUCT SPECIFIED BY THE IFB, WHICH PRODUCT, WITH A MINOR MODIFICATION NOT AFFECTING PRICE, MEETS FULLY THE NEEDS OF THE GOVERNMENT. IT IS OUR FURTHER POSITION THAT, IN VIEW OF THE PAST HISTORY OF THIS PROCUREMENT, IT WAS NOT NECESSARY TO CANCEL THE INVITATION AND COMMENCE A NEW PROCUREMENT ACTION BECAUSE OF THE MINOR MODIFICATION REQUIRED IN THE LOW BIDDER'S EQUIPMENT. WE THEREFORE RECOMMEND THAT THE PROTEST OF GENISCO TECHNOLOGY CORPORATION BE DENIED AND THAT THE AWARD TO INLAND CONTROLS BE ALLOWED TO STAND UNDISTURBED.'

THE NOTICE OF AWARD TO INLAND CONTROLS CONSTITUTED AN ACCEPTANCE OF A BID WHICH CLEARLY WAS NONRESPONSIVE TO THE TERMS AND CONDITIONS OF THE INVITATION. CONTRARY TO THE STATEMENT IN PARAGRAPH 7, ABOVE, THE AWARD TO INLAND CONTROLS SPECIFICALLY PROVIDED FOR THE FURNISHING OF A PRODUCT WHICH WAS NOT IN "ALL MATERIAL RESPECTS" EQUAL TO THE BRAND NAME REFERENCED. THE SO-CALLED "EQUAL" BID OF INLAND CONTROLS DEVIATED IN SEVERAL RESPECTS FROM THE SALIENT CHARACTERISTICS OF THE BRAND NAME LISTED IN THE PURCHASE DESCRIPTION. WHILE THE DEVIATIONS APPEARING IN INLAND CONTROLS' SUPPORTING DESCRIPTIVE LITERATURE MAY HAVE BEEN DETERMINED, AFTER BID OPENING, TO HAVE BEEN MINOR IN RELATION TO THE GOVERNMENT'S ACTUAL REQUIREMENTS, THE FACT REMAINS THAT UNDER THE BRAND NAME OR EQUAL CLAUSE OF THE INVITATION AND ASPR 1 1206.2 (B), THERE WAS NO AUTHORITY TO MAKE AN AWARD TO A BIDDER WHO DID NOT OFFER TO MEET THOSE ADVERTISED REQUIREMENTS WHICH THE GOVERNMENT HAD DETERMINED TO BE "ESSENTIAL" TO ITS NEEDS. WE THUS CANNOT AGREE THAT THE DEVIATIONS OFFERED BY INLAND CONTROLS TO THE PURCHASE DESCRIPTION WERE MINOR, ESPECIALLY SINCE THESE REQUIREMENTS WERE LISTED AS "ESSENTIAL" IN THE INVITATION. 44 COMP. GEN. 302; B 157743 DATED DECEMBER 7, 1965, 45 COMP. GEN. -------.

IN RETROSPECT, WE THINK THE CANCELLATION ACTION EFFECTED WAS NOT ONLY JUSTIFIED BUT WAS REQUIRED UNDER THE CIRCUMSTANCES. WE BELIEVE THAT THE REPORT OF TECHNICAL EVALUATION, TOGETHER WITH SUPPORTING PAPERS, ESTABLISHED BOTH THE INADEQUACY OF THE SPECIFICATIONS AND THE FAILURE OF THE SO-CALLED "EQUAL" BIDDERS TO MEET THE ADVERTISED ESSENTIAL REQUIREMENTS. SEE B-157081 DATED OCTOBER 18, 1965, WHERE WE HELD IN PART:

"ASPR 1-1206.2 (B) PROVIDES THAT: " "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. * * *" THE TECHNICAL EVALUATION REPORT STATES THAT THE REFERENCED BRAND NAME MODEL INCLUDES AN ELECTRICAL SWITCHING ARRANGEMENT AND GASKETS WHICH ARE MADE OF GOLD, WHILE THE AVA1 MODEL USES COPPER GASKETS AND CONTAINS A MANUAL SWITCHING ARRANGEMENT AND THAT THE AVA1 MODEL IS INFERIOR TO THE BRAND NAME MODEL BECAUSE OF THESE DIFFERENCES. YET THE INVITATION NEITHER LISTED ELECTRICAL SWITCHING AS AN ESSENTIAL REQUIREMENT NOR SPECIFIED GOLD AS NECESSARY MATERIAL FOR THE GASKETS. IF THESE TWO CHARACTERISTICS OF THE BRAND NAME ITEM ARE ESSENTIAL TO YOUR NEEDS, THE INVITATION SHOULD LIST THESE FEATURES UNDER THE "ESSENTIAL REQUIREMENTS.' BIDDERS OFFERING "EQUAL" PRODUCTS SHOULD NOT HAVE TO GUESS AT THE ESSENTIAL QUALITIES OF THE BRAND NAME ITEM. UNDER THE REGULATION THEY ARE ENTITLED TO BE ADVISED IN THE INVITATION OF THE PARTICULAR FEATURES OR CHARACTERISTICS OF THE REFERENCED ITEM WHICH THEY ARE REQUIRED TO MEET. AN INVITATION WHICH FAILS TO LIST ALL THE CHARACTERISTICS DEEMED ESSENTIAL, OR LISTS CHARACTERISTICS WHICH ARE NOT ESSENTIAL, IS DEFECTIVE. 41 COMP. GEN. 242, 250-51; B-154611, AUGUST 28, 1964; SEE ALSO 38 COMP. GEN. 345.'

THE JANUARY 25 REPORT TREATS THE LACK OF INFORMATION IN INLAND CONTROLS' BID AS TO BRUSHES (SEE ITEM 2 ABOVE DEALING WITH THE ESSENTIAL REQUIREMENTS OF THE PURCHASE DESCRIPTION) AS INDICATIVE OF AN INTENT TO COMPLY WITH THAT REQUIREMENT. WE DISAGREE SINCE EQUALITY UNDER BRAND NAME OR EQUAL ADVERTISED PROCUREMENTS MUST BE DETERMINED ON THE BASIS OF DESCRIPTIVE INFORMATION SUBMITTED WITH THE BID. PARTICULARLY PERTINENT HERE IS THE FOLLOWING STATEMENT WE MADE IN B 157743, SUPRA:

"* * * IT IS OUR VIEW THAT THE BID SUBMITTED BY BIDDLE, INCLUDING THE LETTER OF AUGUST 9 CONTAINING THE BLANKET OFFER TO MEET ALL OF THE SPECIFICATIONS, WAS NOT RESPONSIVE TO THE IFB IN THAT IT FAILED TO INDICATE THAT IT WOULD MEET ALL OF THE SALIENT REQUIREMENTS OF THE BRAND NAME ITEM AS SET FORTH IN THE IFB DESCRIPTION. IF AS THE TECHNICAL EVALUATOR ASSUMED, BIDDLE INTENDED TO MODIFY THE ITEM DESCRIBED IN ITS BID LITERATURE TO MEET THE SPECIFIED REQUIREMENTS, IT WAS REQUIRED BY THE TERMS OF PARAGRAPH 34 (C) (2) OF THE TERMS AND CONDITIONS OF THE INVITATION TO INCLUDE IN ITS BID A CLEAR DESCRIPTION OF THE PROPOSED MODIFICATIONS AND TO CLEARLY MARK DESCRIPTIVE DATA SHOWING SUCH MODIFICATIONS. THIS, BIDDLE FAILED TO DO. * * *"

TO ACCEPT AND ALLOW A BIDDER TO SUBMIT INFORMATION REGARDING THE ESSENTIAL REQUIREMENTS OF A BRAND NAME OR EQUAL SPECIFICATION AFTER BID OPENING WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO CHANGE HIS BID CONTRARY TO THE ESTABLISHED PRINCIPLES GOVERNING COMPETITIVE PROCUREMENTS. 38 COMP. GEN. 532, 536; 43 ID. 761. ADDITIONALLY, WE FEEL THAT INLAND CONTROLS' SILENCE ON SEVERAL ASPECTS OF THE ESSENTIAL REQUIREMENTS LISTED IN THE INVITATION MORE REASONABLY CAN BE INTERPRETED AS GIVING THAT BIDDER AN OPTION EITHER TO PERFORM IN ACCORDANCE WITH THOSE REQUIREMENTS OR TO PERFORM STRICTLY IN ACCORDANCE WITH ITS BID WHICH DEVIATED FROM THOSE REQUIREMENTS. MOREOVER, 10 U.S.C. 2305 (C) PROVIDES IN MANDATORY TERMS THAT AWARDS SHALL BE MADE TO THE RESPONSIBLE BIDDER ,WHOSE BID CONFORMS TO THE INVITATION.'

IT WAS STATED IN THE JANUARY 25 ADMINISTRATIVE REPORT--- ATTRIBUTABLE TO AIR FORCE ENGINEERS--- THAT INLAND CONTROLS' PRODUCT WAS "BETTER" THAN THAT REQUIRED BY THE INVITATION INSOFAR AS OVERALL RANGE, WEIGHT, SIZE AND TABLE CAPACITY WERE CONCERNED. WHILE IT IS INDICATED IN YOUR DEPARTMENT'S REPORT THAT INLAND CONTROLS' PRODUCT WAS "BETTER" THAN THE BRAND NAME REFERENCED, IF THE "BETTER" FEATURES OR CHARACTERISTICS REFERRED TO REFLECTED THE GOVERNMENT'S MINIMUM NEEDS, THE SALIENT PHYSICAL CHARACTERISTICS OF THE BRAND NAME PRODUCT SHOULD HAVE BEEN STATED TO PERMIT BIDDERS TO OFFER "OR EQUAL" PRODUCTS WHICH WERE SIMILAR IN PERFORMANCE TO THE BRAND NAME AND WHICH ALSO CONFORMED TO SPECIFIED MINIMUM OR MAXIMUM TOLERANCES FROM THE EXACT PHYSICAL CHARACTERISTICS OF THE BRAND NAME REFERENCED. HAD THIS BEEN DONE, INLAND CONTROLS' BID PROBABLY WOULD HAVE BEEN FULLY RESPONSIVE AND MIGHT WELL HAVE ENCOURAGED OTHER QUALIFIED SUPPLIERS TO OFFER THEIR "OR QUAL" COMMERCIAL PRODUCTS EVEN THOUGH SUCH PRODUCTS DEVIATED FROM CERTAIN OF THE LISTED SALIENT PHYSICAL CHARACTERISTICS OF THE BRAND NAME REFERENCED.

THE AWARD WAS MADE TO INLAND CONTROLS ON THE BASIS OF FURNISHING ITS MODEL 722 RATE OF TURNTABLE APPARENTLY IN ACCORDANCE WITH ASPR 1 1206.4 WHICH PROVIDES THAT AWARD DOCUMENTS SHALL IDENTIFY, OR INCORPORATE BY REFERENCE, AN IDENTIFICATION OF THE SPECIFIC PRODUCTS WHICH THE CONTRACTOR IS TO FURNISH AND SUCH IDENTIFICATION IS TO INCLUDE ANY BRAND NAME AND MAKE OR MODEL NUMBER, DESCRIPTIVE MATERIAL AND ANY MODIFICATIONS OF BRAND NAME PRODUCTS SPECIFIED IN THE BID. BUT THE NOTICE STATED THAT THE BID OF INLAND CONTROLS "IS ACCEPTED WITHOUT QUALIFICATION" AND NO REFERENCE WAS MADE TO BRAND NAME MODIFICATIONS OR TO DESCRIPTIVE MATERIAL. HENCE, INLAND CONTROLS WAS NOT OBLIGATED UNDER THAT NOTICE OF AWARD TO FURNISH A RATE OF TURNTABLE EQUAL IN ALL MATERIAL RESPECTS TO THE REFERENCED BRAND NAME.

THE PROCUREMENT ACTIVITY WAS AWARE, AFTER THE INVITATION WAS CANCELED, THAT THE GOVERNMENT WOULD INCUR INCREASED ESTIMATED COSTS OF $37,000 IN INTRODUCING THE INLAND CONTROLS' MODEL INTO THE F4C SUPPORT SYSTEM. WHILE THE INVITATION DID NOT PROVIDE FOR "REAL COST" EVALUATION (CF. ASPR 2- 407.5), THE $37,000 ADDITIONAL "REAL COST" FACTOR SHOULD HAVE BEEN CAREFULLY WEIGHED IN DETERMINING WHETHER THE INVITATION SHOULD BE REINSTATED FOR THE PURPOSE OF MAKING AN AWARD THEREUNDER TO INLAND CONTROLS WHEN ONLY A $12,405.51 COST DIFFERENCE EXISTED BETWEEN INLAND CONTROLS' BID AND THAT OF GENISCO. AS STATED ABOVE, WE BELIEVE THAT THE CANCELLATION OF THE INVITATION WAS PROPER AND THAT ITS REINSTATEMENT FOR THE PURPOSE OF AN AWARD TO INLAND CONTROLS WAS NOT AUTHORIZED UNDER THE REPORTED FACTS AND CIRCUMSTANCES. HOWEVER, WE RECOGNIZE THAT THE AWARD WAS MADE IN GOOD FAITH WITH THE EXPECTATION THAT A PRODUCT EQUAL TO OR BETTER THAN THE BRAND NAME PRODUCT SPECIFIED WOULD BE FURNISHED TO THE GOVERNMENT AT A COMPETITIVE PRICE. WE ALSO NOTE THAT INLAND CONTROLS IS WELL INTO PERFORMANCE OF THE CONTRACT AND HAS INCURRED COSTS IN RELIANCE THEREON. IN VIEW OF THE FOREGOING, IT IS OUR OPINION THAT THE BEST INTERESTS OF THE GOVERNMENT WOULD NOT BE SERVED BY CANCELING THE CONTRACT AT THIS LATE DATE. CF. 43 COMP. GEN. 761.

WE SUGGEST, HOWEVER, THAT THIS DECISION BE BROUGHT TO THE ATTENTION OF COGNIZABLE PROCUREMENT PERSONNEL IN ORDER TO PREVENT A RECURRENCE OF THIS SITUATION.