B-158226, MAR. 1, 1966

B-158226: Mar 1, 1966

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TO VEECO INSTRUMENTS INC.: REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 21. THE LEAK DETECTOR TO BE FURNISHED BY THE SUCCESSFUL BIDDER WAS DESCRIBED ON PAGE 1 OF THE IFB AS FOLLOWS: "DETECTOR. ON PAGE 4 OF THE INVITATION THE DEFINITION OF "BRAND NAMES" WAS SET FORTH AS FOLLOWS: "/A) IF ARTICLES HAVE BEEN IDENTIFIED IN THIS INVITATION BY A "BRAND NAME OR EQUAL" DESCRIPTION. SUCH REFERENCE IS INTENDED TO BE DESCRIPTIVE. IS FOR THE SOLE PURPOSE OF INDICATING TO PROSPECTIVE BIDDERS A DESCRIPTION OF ARTICLES THAT WILL BE SATISFACTORY. BIDDERS ARE NOT EXPECTED TO FURNISH EXACT DUPLICATES BUT ONLY ARTICLES WHICH ARE EQUAL. INSOFAR AS THE GOVERNMENT'S NEEDS ARE CONCERNED. BIDS OFFERING ARTICLES OTHER THAN BRAND NAME ARTICLES REFERENCED IN THIS INVITATION WILL BE CONSIDERED ONLY IF SUCH OFFERED ARTICLES ARE CLEARLY IDENTIFIED IN THE BIDS AND BIDDERS FURNISH WITH THEIR BIDS (1) DESCRIPTIVE MATERIAL.

B-158226, MAR. 1, 1966

TO VEECO INSTRUMENTS INC.:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 21, 1965, SENT TO THE ENVIRONMENTAL SCIENCE SERVICES ADMINISTRATION (ESSA), UNITED STATES WEATHER BUREAU, PROTESTING THE AWARD OF A CONTRACT TO CONSOLIDATED ELECTRODYNAMICS CORPORATION (CEC) UNDER INVITATION FOR BIDS (IFB) NO. WB019-66 ISSUED OCTOBER 11, 1965, BY ESSA FOR ONE LEAK DETECTOR, HELIUM MASS SPECTROMETER TYPE.

THE LEAK DETECTOR TO BE FURNISHED BY THE SUCCESSFUL BIDDER WAS DESCRIBED ON PAGE 1 OF THE IFB AS FOLLOWS:

"DETECTOR, LEAK; HELIUM MASS SPECTROMETER TYPE; SHALL INCLUDE FOREPUMP, AIR COOLED DIFFUSION PUMP, HIGH VACUUM INLET VALVE UPSTREAM OF THE DIFFUSION PUMP, LIQUID NITROGEN COLD TRAP, SPECTROMETER TUBE WITH ION-GUN, MAGNET, ION-COLLECTOR, ELECTROMETER TUBE PREAMPLIFIER, LEAK INDICATOR WITH METER, AND MANUALLY ADJUSTABLE THROTTLE VALVE FOR CONNECTING TO THE REMAINDER OF THE SYSTEM; SHALL BE VACUUM-ELECTRONICS CORP. MODEL NO. MS- 9AB, OR EQUAL; IN ACCORDANCE WITH THE ATTACHED 3 PAGE WEATHER BUREAU SPECIFICATION DATED OCTOBER 11, 1965.'

ON PAGE 4 OF THE INVITATION THE DEFINITION OF "BRAND NAMES" WAS SET FORTH AS FOLLOWS:

"/A) IF ARTICLES HAVE BEEN IDENTIFIED IN THIS INVITATION BY A "BRAND NAME OR EQUAL" DESCRIPTION, SUCH REFERENCE IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS FOR THE SOLE PURPOSE OF INDICATING TO PROSPECTIVE BIDDERS A DESCRIPTION OF ARTICLES THAT WILL BE SATISFACTORY. BIDDERS ARE NOT EXPECTED TO FURNISH EXACT DUPLICATES BUT ONLY ARTICLES WHICH ARE EQUAL, INSOFAR AS THE GOVERNMENT'S NEEDS ARE CONCERNED, TO THE REFERENCED BRAND NAME ARTICLES. BIDS OFFERING ARTICLES OTHER THAN BRAND NAME ARTICLES REFERENCED IN THIS INVITATION WILL BE CONSIDERED ONLY IF SUCH OFFERED ARTICLES ARE CLEARLY IDENTIFIED IN THE BIDS AND BIDDERS FURNISH WITH THEIR BIDS (1) DESCRIPTIVE MATERIAL, INCLUDING CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER GRAPHIC MATERIAL, WHICH WILL CLEARLY SHOW THE CHARACTERISTICS OF THE ARTICLES OFFERED, AND (2) A STATEMENT SHOWING IN DETAIL THE DIFFERENCES BETWEEN THE ARTICLES OFFERED AND THOSE REFERENCED IN THE INVITATION. FAILURE TO FURNISH THE INFORMATION REQUIRED BY (1) AND (2) ABOVE WILL REQUIRE REJECTION OF THE BIDS.

"/B) UNLESS THE BIDDER CLEARLY INDICATES IN HIS BID THAT HE IS OFFERING A DIFFERENT ARTICLE, HIS BID SHALL BE CONSIDERED AS OFFERING A BRAND NAME ARTICLE REFERENCED IN THE INVITATION.

"/C) BIDDERS ARE CAUTIONED THAT IN EVALUATING BIDS OFFERING ARTICLES OTHER THAN THE BRAND NAMES REFERENCED IN THE INVITATION, THE GOVERNMENT WILL CONSIDER THAT THE BIDDER INTENDS TO BIND HIMSELF TO FURNISH ONLY THE ARTICLES DESCRIBED IN HIS BID AND ANY ATTACHED DESCRIPTIVE MATERIAL. IF A BIDDER OFFERING BRAND NAME ARTICLES WHICH DIFFER FROM THOSE ARTICLES REFERENCED IN THE INVITATION PROPOSES TO MODIFY THE BRAND NAME ARTICLES HE HAS IDENTIFIED IN HIS BID SO AS TO MAKE THE OFFERED ARTICLES EQUAL THOSE REFERENCED INSOFAR AS THE NEEDS OF THE GOVERNMENT ARE CONCERNED, HE SHALL (1) INCLUDE IN HIS BID A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS, OR (2) CLEARLY MAKE ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS. MODIFICATIONS PROPOSED AFTER BID OPENING WILL NOT BE CONSIDERED.'

THE SPECIFICATIONS WERE SET OUT IN THE FORM OF APPROXIMATELY 21 SALIENT FEATURES UNDER SEVEN DIFFERENT HEADINGS. YOUR LETTER OF DECEMBER 21, 1965, ASSERTS THAT CEC'S BID, WHICH IS BASED ON FURNISHING A DETECTOR EQUAL TO THE VACUUM-ELECTRONICS CORPORATION, MODEL NO. MS 9AB, VARIED FROM THE SPECIFICATIONS OF OCTOBER 11, 1965, IN THE FOLLOWING 8 FEATURES:

"1. "GENERAL DESCRIPTION" PARAGRAPH 3 CALLS FOR "AUTOMATIC SOLENOID- OPERATED VACUUM VALVES.' CONSOLIDATED ELECTRODYNAMICS CORPORATION DOES NOT HAVE THESE AUTOMATIC SOLENOID-OPERATED VALVES.

"2. "GENERAL DESCRIPTION" PARAGRAPH 4 STATES "ALL EQUIPMENT SHALL BE HOUSED IN A SINGLE COMPACT BENCH-HEIGHT CABINET.' THE CONSOLIDATED ELECTRODYNAMICS CORPORATION LEAK DETECTOR IS NOT MOUNTED IN A CABINET, BUT RATHER ON A STAND.

"3. "DETECTOR COMPONENTS; " PARAGRAPH 2, CALLS FOR FIVE INDEPENDENT AND SEPARATE VALVES. CONSOLIDATED ELECTRODYNAMICS CORPORATION DOES NOT HAVE THESE FIVE VALVES.

"4. PART "B" OF PARAGRAPH 2 UNDER "DETECTOR COMPONENTS" ASKS FOR A THROTTLE VALVE. THIS IS NOT INCLUDED IN THE CONSOLIDATED ELECTRODYNAMICS CORPORATION SYSTEM.

"5. PART "C" OF PARAGRAPH 2 UNDER "DETECTOR COMPONENTS" DISTINCTLY CALLS FOR THREE D.C. SOLENOID-OPERATED VALVES. ONCE AGAIN, CONSOLIDATED ELECTRODYNAMICS CORPORATION DOES NOT COMPLY WITH THIS SPECIFICATION.

"6. PARAGRAPH 2 UNDER "DETECTOR OPERATION" CALLS FOR SEMI-AUTOMATIC OPERATION SHALL BE ACCOMPLISHED BY USE OF THE THREE SOLENOID VALVES ... CONTROLLED BY A SINGLE TWO-POSITION SWITCH LOCATED ON THE FRONT PANEL.' CONSOLIDATED ELECTRODYNAMICS CORPORATION DOES NOT MEET THIS SPECIFICATION.

"7. PARAGRAPH 2 UNDER "CONSTRUCTION AND DESIGN FEATURE" CALLS FOR A SELF- CLEANING TYPE IONIZATION GUN. CONSOLIDATED ELECTRODYNAMICS CORPORATION DOES NOT HAVE THIS.

"8. PARAGRAPH 3 UNDER "CONSTRUCTION AND DESIGN FEATURE" ASKS FOR A HELIUM SCAN CONTROL TO DETUNE ION ACCELERATING VOLTAGE AND SHALL BE MOUNTED ON THE FRONT PANEL. ONCE AGAIN, CONSOLIDATED ELECTRODYNAMICS CORPORATION LEAK DETECTOR DOES NOT INCLUDE THIS.'

OF THE EIGHT VARIATIONS SET OUT ABOVE, FIVE HAVE BEEN SPECIFICALLY DENIED BY THE ESSA REPORT TO THIS OFFICE, AND THE REMAINING THREE ARE SAID TO "RELATE TO DIFFERENCES WHICH ARE SO INSIGNIFICANT AS TO BE NON MATERIAL.' SPECIFICALLY THE FOLLOWING COMMENTS, WHICH ARE PRESENTED AND CONSIDERED IN THE SAME ORDER AND NUMERICAL DESIGNATION AS IN YOUR LETTER OF DECEMBER 21, WERE OFFERED BY ESSA IN ITS REPORT.

1. THE EQUIPMENT OFFERED BY THE SUCCESSFUL CONTRACTOR (CEC) IN ITS MODEL 24-038 TEST PORT HAS THREE AUTOMATIC SOLENOID OPERATED VALVES AS REQUIRED BY PARAGRAPH 3, PAGE 1, GENERAL DESCRIPTION. HENCE, VEECO ALLEGATION IS INCORRECT.

2. THE DIFFERENCE BETWEEN A "BENCH-HEIGHT CABINET" AND A CABINET MOUNTED ON A "BENCH-HEIGHT STAND" IS NOT SIGNIFICANT. THE DETECTOR IS HOUSED IN A CABINET.

3. THE ALLEGATION THAT CEC VACUUM SYSTEM DOES NOT HAVE FIVE VALVES IS INCORRECT AS IT CONTAINS THE FOLLOWING FIVE SEPARATE AND INDEPENDENT VALVES (1) DIFFUSION PUMP ISOLATION VALVE (2) DIATRON ISOLATION VALVES AND THREE AUTOMATICALLY OPERATED SOLENOID VALVES INCLUDING THE THROTTLE VALVE.

4. ON PAGE 13 OF THE CEC BROCHURE THE THROTTLE VALVE IS CLEARLY SHOWN. IN ADDITION, PAGE 4 HAS A DETAILED DESCRIPTION OF THE THROTTLE VALVE; VEECO'S ALLEGATION IS CONSEQUENTLY INCORRECT.

5. THE ASSERTION THAT CEC FAILED TO FOLLOW PART C OF PARAGRAPH 2, PAGE 2, UNDER DETECTOR COMPONENTS OF THE SPECIFICATIONS WHICH REQUIRED THE USE OF THREE D.C. SOLENOID OPERATED VALVES IS INCORRECT. SEE THE ANSWERS TO ALLEGATIONS 1 AND 3 ABOVE.

6. THE REQUIREMENT OF THE SPECIFICATIONS UNDER THE HEADING DETECTOR OPERATION IN NUMBERED PARAGRAPH 2, PAGE 2, THAT "SEMI-AUTOMATIC OPERATION SHALL BE ACCOMPLISHED BY USE OF THE THREE SOLENOID VALVES ... CONTROLLED BY A SINGLE 2-POSITION SWITCH LOCATED ON THE FRONT PANEL" IS FULLY SATISFIED BY CEC'S PRODUCT. IN ACCORDANCE WITH THE SPECIFICATIONS SEMI- AUTOMATIC OPERATION IS CONTROLLED WITH TWO POSITIONS OF A SINGLE SWITCH LOCATED ON THE FRONT PANEL. A THIRD POSITION FOR THIS SWITCH IS FOR MANUAL OPERATION, A FEATURE WHICH ENHANCES THE UNIT. THE DIFFERENCE BETWEEN A TWO-POSITION, RATHER THAN A THREE-POSITION SWITCH IS NOT CONSIDERED TO BE A SIGNIFICANT DEVIATION FROM THE SPECIFICATION.

7. PAGE 3 OF THE SPECIFICATIONS UNDER THE HEADING "CONSTRUCTION AND DESIGN FEATURE" IN PARAGRAPH 2 STATES "THE ION GUN SHALL BE OF THE SELF- CLEANING TYPE, TO ENSURE CONSTANT SITIVITY.' THE UNIT OFFERED BY CEC HAS AN ION SOURCE WHICH "ENABLES THE FILAMENT TO UNIFORMLY HEAT THE SOURCE AND ELIMINATES THE NEED FOR ADDITIONAL HEATERS TO ENSURE CONSTANT SENSITIVITY.' ON THIS BASIS, ESSA CONCLUDES "THE ION SOURCES IS SELF CLEANING TO ENSURE CONSTANT SENSITIVITY.'

8. YOUR LAST ASSERTED DEVIATION FROM THE REQUIREMENTS BY CEC IS THAT FOUND IN PARAGRAPH 3, PAGE 3, OF THE SPECIFICATIONS UNDER THE HEADING "CONSTRUCTION AND DESIGN FEATURE," WHEREIN IN PERTINENT PART IT STATES THAT "A HELIUM SCAN CONTROL TO DETUNE ION ACCELERATING VOLTAGE PLUS OR MINUS 10 PERCENT FROM THE HELIUM PEAK ... SHALL BE MOUNTED ON THE FRONT PANEL.' ESSA IN ITS REPORT ASSERTS "THAT THE HELIUM CONTROL IS LOCATED ON THE SIDE PANEL RATHER THAN THE FRONT DOES NOT CONSTITUTE A SIGNIFICANT VARIATION FROM THE SPECIFICATIONS, ESPECIALLY WHEN THE METER DISPLAY IS LOCATED IN FRONT.'

THE "BRAND NAMES" CLAUSE QUOTED ABOVE IS IN SUBSTANTIAL ACCORD WITH THE CLAUSE PRESCRIBED BY THE FEDERAL PROCUREMENT REGULATIONS (FPR) AT SECTION 1-1.307-6 FOR USE IN PROCUREMENTS OF THIS NATURE. AS INDICATED IN FPR 1- 1.307-5 THE CLAUSE MAY BE USED WHEN THERE ARE NO ADEQUATE SPECIFICATIONS AVAILABLE. IT IS NOT INTENDED TO PRECLUDE THE PURCHASE OF PRODUCTS WHICH ARE ,EQUAL" IN ALL MATERIAL RESPECTS TO THE BRAND NAME ITEM. THE 3-PAGE WEATHER BUREAU SPECIFICATION DATED OCTOBER 11, 1965, MUST THEREFORE BE VIEWED AS A LISTING OF CERTAIN SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF A PRODUCT WHICH THEY CONSIDERED EQUAL, AS FAR AS THE NEEDS OF THE GOVERNMENT WERE CONCERNED.

FURTHERMORE, IN EVALUATING BIDS RECEIVED FOR "BRAND NAME OR EQUAL" DESCRIPTIONS THE PROVISIONS OF FPR 1-1.307-7 ARE CONTROLLING. THEREIN, IT IS PROVIDED THAT ALL BIDS ARE TO BE CONSIDERED FOR AWARD WHEN THE CONTRACTING OFFICER DETERMINES THAT THE OFFERED PRODUCTS ARE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCT. BIDS ARE NOT TO BE REJECTED BECAUSE OF MINOR DIFFERENCES IN DESIGN, CONSTRUCTION, OR FEATURES WHICH DO NOT AFFECT THE SUITABILITY OF THE PRODUCTS FOR THEIR INTENDED USE.

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

THE OTHER THREE ALLEGATIONS, NUMBERED 2, 6 AND 8, OF YOUR LETTER ARE NOT SPECIFICALLY DENIED BY THE ADMINISTRATIVE REPORT, HOWEVER, THEY ARE DISMISSED AS NOT BEING SIGNIFICANT. CONSIDERING THEM IN THE ORDER IN WHICH YOU PRESENTED THEM, THE FOLLOWING COMMENTS WERE OFFERED BY ESSA.

(A) THE SECOND ASSERTION THAT THE CEC LEAK DETECTOR IS NOT MOUNTED IN A CABINET, BUT RATHER ON A STAND IS EXPLAINED BY STATING THAT THE CEC UNIT OFFERED IS HOUSED IN A SINGLE COMPACT CABINET MOUNTED ON A BENCH-HEIGHT STAND AND THAT "THE DIFFERENCE BETWEEN A BENCH-HEIGHT CABINET AND A CABINET MOUNTED ON A BENCH-HEIGHT STAND IS NOT SIGNIFICANT. THE DETECTOR IS HOUSED IN A CABINET.'

(B) VEECO'S SIXTH ASSERTION, THAT THE CEC PRODUCT DOES NOT MEET THE SPECIFICATIONS CALLING FOR SEMI-AUTOMATIC OPERATION BY MEANS OF THREE SOLENOID VALVES CONTROLLED BY A SINGLE 2-POSITION SWITCH LOCATED ON THE FRONT PANEL, IS DENIED AS FAR AS THE SOLENOID VALVES ARE CONCERNED AND EXPLAINED AS TO THE SWITCH MECHANISM. THE SWITCH MECHANISM CONTROL IS SAID TO BE IN ACCORDANCE WITH THE SPECIFICATION, I.E., SEMI-AUTOMATIC OPERATION CONTROLLED WITH TWO POSITIONS OF A SINGLE SWITCH LOCATED ON THE FRONT PANEL. A THIRD POSITION FOR THE SWITCH NOT EXPLICITLY REQUIRED BY THE SPECIFICATIONS IS SAID TO BE FOR MANUAL OPERATION, A FEATURE WHICH ENHANCES THE UNIT. THE DIFFERENCE BETWEEN A TWO POSITION SWITCH AND A THREE-POSITION SWITCH IS NOT CONSIDERED BY THE CONTRACTING AGENCY TO BE OF ANY MATERIAL SIGNIFICANCE.

(C) YOUR EIGHTH ALLEGATION IS CONCERNED WITH PARAGRAPH 3, PAGE 3, OF THE SPECIFICATIONS UNDER THE HEADING ENTITLED,"CONSTRUCTION AND DESIGN FEATURE.' THEREIN A "HELIUM SCAN CONTROL TO DETERMINE ION ACCELERATING VOLTAGE PLUS OR MINUS 10 PERCENT FROM HELIUM PEAK TO ASSUME POSITIVE HELIUM IDENTIFICATION" IS TO BE MOUNTED ON THE FRONT PANEL. YOU ALLEGE THAT THE CEC PRODUCT DOES NOT INCLUDE THIS FEATURE. IN ITS REPORT ESSA INDICATES, HOWEVER, THAT THE HELIUM CONTROL OF THE CEC PRODUCT IS LOCATED ON THE SIDE PANEL RATHER THAN THE FRONT PANEL, A FACT WHICH IS NOT CONSIDERED CONSTITUTING A SIGNIFICANT VARIATION FROM THE SPECIFICATIONS, ESPECIALLY SINCE THE METER DISPLAY IS LOCATED ON THE FRONT PANEL.

THE RECORD INDICATES THAT THE CONTRACTING AGENCY BELIEVES THE DIFFERENCES BETWEEN THE BRAND NAME CALLED FOR BY THE IFB AND THE PRODUCT OFFERED BY CEC ARE INSIGNIFICANT. THE BASIS FOR THE CONCLUSION APPEARS TO BE THAT THE DESIGN FEATURES OF THE CEC PRODUCT WOULD NOT ADVERSELY AFFECT THE DESIRED FUNCTIONAL CHARACTERISTICS. IT IS PROVIDED IN FPR 1-1.307-7, QUOTED ABOVE, THAT A BID IS NOT TO BE REJECTED MERELY BECAUSE OF MINOR DIFFERENCES IN DESIGN, CONSTRUCTION OR FEATURES WHICH DO NOT AFFECT THE SUITABILITY OF THE PRODUCTS FOR THEIR INTENDED USE. BASED ON THE FOREGOING WE ARE UNABLE TO SAY THAT THE DIFFERENCES BETWEEN CEC'S PRODUCT AND BRAND NAME CALLED FOR BY THE IFB ARE SUFFICIENT TO REQUIRE REJECTION OF ITS BID.