B-158638, APR. 26, 1966, 45 COMP. GEN. 645

B-158638: Apr 26, 1966

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CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE - INVITATION SUFFICIENCY WHERE UNDER AN INVITATION CONTAINING THE "BRAND NAME OR EQUAL" CLAUSE PRESCRIBED BY PARAGRAPH 1-1.307-6 OF THE FEDERAL PROCUREMENT REGULATIONS EQUAL BIDDERS WERE CONFUSED IN THE INTERPRETATION OF THE MAIN AND REQUIRED CHARACTERISTICS OF THE BRAND NAME DELINEATED IN THE PURCHASE DESCRIPTION. THAT SOME OF THE SPECIFICATIONS WERE RESTRICTIVE WITHOUT BENEFIT TO THE GOVERNMENT. BURLINGAME ALLEGED THAT ONLY THE SYSTRON-DONNER 1037B EQUIPMENT WAS CAPABLE OF MEETING THE REQUIREMENTS OF CRYSTAL STABILITY PRESCRIBED BY PARAGRAPH 3.5.2 OF THE PURCHASE DESCRIPTION WITHIN THE FIRST 24 HOURS OF OPERATION. FOUR BIDS WERE RECEIVED AND OPENED ON DECEMBER 23.

B-158638, APR. 26, 1966, 45 COMP. GEN. 645

CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE - INVITATION SUFFICIENCY WHERE UNDER AN INVITATION CONTAINING THE "BRAND NAME OR EQUAL" CLAUSE PRESCRIBED BY PARAGRAPH 1-1.307-6 OF THE FEDERAL PROCUREMENT REGULATIONS EQUAL BIDDERS WERE CONFUSED IN THE INTERPRETATION OF THE MAIN AND REQUIRED CHARACTERISTICS OF THE BRAND NAME DELINEATED IN THE PURCHASE DESCRIPTION, A DETAILED TECHNICAL EXPLANATION, BY REASON OF THE DESCRIPTION IN THE CATALOGUE OF THE BRAND NAME MANUFACTURER, THE LOW BIDDER, THE CANCELLATION OF THE INVITATION UNDER THE CRITERIA OF PARAGRAPH 1-2.404-1, SHOULD NOT BE OVERTURNED ON THE BASIS OF SUBSEQUENT DOUBTS ENGENDERED AND FOSTERED BY THE BRAND NAME BIDDER, IN VIEW OF THE FACT THAT THE CORRELATION OF THE PURCHASE DESCRIPTION AND THE BRAND NAME CATALOGUE REQUIRED BIDDERS TO SPECULATE ON OR INTERPOLATE THE PURCHASE DESCRIPTION TO ARRIVE AT A BID THAT COULD SUCCESSFULLY WEATHER A TECHNICAL EVALUATION; HOWEVER, THE DISPUTED TECHNICAL ASPECTS OF THE PURCHASE DESCRIPTION SHOULD BE RESOLVED BEFORE READVERTISING THE PROCUREMENT ON A BRAND NAME OR EQUAL BASIS.

TO THE ADMINISTRATOR, FEDERAL AVIATION AGENCY, APRIL 26, 1966:

BY LETTER DATED MARCH 1, 1966, WITH ENCLOSURES, THE DEPUTY GENERAL COUNSEL REQUESTED OUR DECISION REGARDING THE PROPRIETY OF CANCELING INVITATION FOR BIDS NO. WA5M-6-0224B1 DATED NOVEMBER 23, 1965, ON THE BASIS OF AMBIGUITY IN THE PURCHASE DESCRIPTION. THE INVITATION REQUESTED BIDS FOR 437 ELECTRONIC COUNTERS,"HEWLETT PACKARD MODEL 5245L, OR EQUAL AND IN ACCORDANCE WITH PURCHASE DESCRIPTION FAA-P 2224.' PARAGRAPH 3.1 OF THE PURCHASE DESCRIPTION PROVIDED:

EACH INSTRUMENT FURNISHED BY THE CONTRACTOR SHALL BE A HEWLETT PACKARD 5245L, OR EQUAL, SOLID-STATE ELECTRONIC COUNTER, COMPLETE WITH ALL NECESSARY PLUG-IN MODULES AND ATTACHMENTS READY FOR OPERATION, INCLUDING TWO EACH INSTRUCTION BOOKS, IN ACCORDANCE WITH THE MAIN AND REQUIRED CHARACTERISTICS SET FORTH HEREIN.

ON DECEMBER 13, 1965, OR PRIOR TO THE DATE SCHEDULED FOR BID OPENING, BURLINGAME ASSOCIATES D., REPRESENTING THE SYSTRON-DONNER CORPORATION--- A PROSPECTIVE BIDDER--- ADVISED THE PROCUREMENT ACTIVITY THAT THE APPARENT FLEXIBILITY AND ULTIMATE SPECIFICATIONS OF THE ADVERTISED ELECTRONIC COUNTERS HAD BEEN FAR EXCEEDED BY RELATIVELY NEW COMMERCIAL INSTRUMENTS, AND THAT SOME OF THE SPECIFICATIONS WERE RESTRICTIVE WITHOUT BENEFIT TO THE GOVERNMENT. BURLINGAME ALLEGED THAT ONLY THE SYSTRON-DONNER 1037B EQUIPMENT WAS CAPABLE OF MEETING THE REQUIREMENTS OF CRYSTAL STABILITY PRESCRIBED BY PARAGRAPH 3.5.2 OF THE PURCHASE DESCRIPTION WITHIN THE FIRST 24 HOURS OF OPERATION, AND THAT THE BRAND NAME EQUIPMENT REQUIRED A 72- HOUR WARMUP PERIOD TO PROVIDE THE REQUIRED STABILITY. THAT PARAGRAPH READS IN PERTINENT PART AS FOLLOWS:

3.5.2 STABILITY.--- THE STABILITY SHALL BE AT LEAST PLUS OR MINUS THREE PARTS IN 109 IN ANY TWENTY-FOUR PERIOD WITH A CONSTANT AMBIENT TEMPERATURE AND PROVIDE A LONG TERM (7 DAYS) STABILITY OF NOT LESS THAN PLUS OR MINUS TWO PARTS IN 108. * * *

HOWEVER, THE PROCUREMENT AGENCY ADVISED BURLINGAME ON DECEMBER 20, 1965, THAT "ENGINEERING REVIEW CONFIRMS THAT HEWLETT-PACKARD MEETS ALL REQUIREMENTS OF THE PURCHASE DESCRIPTION.'

FOUR BIDS WERE RECEIVED AND OPENED ON DECEMBER 23, 1965. THESE WERE AS FOLLOWS:

TABLE

BIDDER UNIT PRICE

HEWLETT-PACKARD COMPANY $2,170

SYSTRON-DONNER CORPORATION 2,250

COMPUTER MEASUREMENTS COMPANY 2,265

TRANSISTOR SPECIALTIES INC. 2,765

ON JANUARY 5, 1966, COMPUTER MEASUREMENTS REQUESTED BY TELEGRAM PERMISSION TO SUBMIT A REVISED BID BECAUSE IT HAD INTERPRETED PARAGRAPH 3.5.2 AS REQUIRING THAT THE STABILITY PARAMETERS BE MET IN ANY 24-HOUR PERIOD AND THAT THE COST OF COMPLIANCE WITH THIS REQUIREMENT WAS REFLECTED IN ITS BID. COMPUTER MEASUREMENTS STATED,"WE REQUEST THE OPPORTUNITY TO SUBMIT A REVISED FIXED PRICE BID BASED UPON A CRYSTAL OSCILLATOR WHICH CAN TAKE 72 HOURS TO WARM UP TO YOUR STABILITY QUIREMENT.' IN A SIMILAR VEIN, SYSTRON-DONNER BY TELEGRAM DATED JANUARY 7, 1966, STATED THAT ITS BID INCLUDED A CRYSTAL OSCILLATOR THAT WOULD MEET REQUIRED STABILITY REQUIREMENTS "IN 24 HOUR PERIOD.' THE TELEGRAM WENT ON TO STATE THAT "SYSTRON-DONNER'S PRICE CERTAINLY WOULD HAVE BEEN LOWER WERE WE TO BID ON AN INFERIOR CRYSTAL THAT WOULD MEET THE REQUIREMENTS AFTER 72 HOURS OF OPERATION.' IT THUS APPEARED THAT BOTH THESE BIDDERS INTERPRETED PARAGRAPH 3.5.2 AS REQUIRING A WARMUP PERIOD OF NOT MORE THAN 24 HOURS IN ORDER TO ACHIEVE THE REQUIRED STABILITY "IN ANY TWENTY-FOUR HOUR PERIOD.' THESE BIDDERS ALSO IMPLIED THAT THE BRAND NAME MODEL SPECIFIED WAS NONRESPONSIVE TO PARAGRAPH 3.5.2 SINCE THE HEWLETT-PACKARD LITERATURE SHOWED A 72-HOUR WARMUP PERIOD TO ACHIEVE THE REQUIRED STABILITY.

APPARENTLY, IN VIEW OF THE FOREGOING REPRESENTATIONS, THE PROCUREMENT ACTIVITY CANCELED THE INVITATION ON THE BASIS THAT PARAGRAPH 3.5.2 WAS AMBIGUOUS. BIDDERS WERE ADVISED OF SUCH ACTION BY LETTER DATED FEBRUARY 11, 1966. THEREAFTER, HEWLETT-PACKARD PROTESTED THE CANCELLATION IN A LETTER RECEIVED BY THE PROCUREMENT ACTIVITY ON FEBRUARY 16, 1966. HEWLETT -PACKARD DISAGREES WITH THE BASIS FOR REJECTION AND CONTENDS THAT WARMUP TIME AS SUCH WAS NOT SPELLED OUT IN THE PURCHASE DESCRIPTION AS A "MAIN AND REQUIRED CHARACTERISTIC" OF THE END ITEM, AND THAT PARAGRAPH 3.5.2 REQUIRES THAT STABILITY MUST BE OBTAINED IN ANY 24-HOUR PERIOD AFTER A WARMUP PERIOD OF 72 HOURS OF CONTINUOUS OPERATION SPECIFIED IN HEWLETT- PACKARD'S DESCRIPTIVE LITERATURE.

FURTHER INFORMATION RELATIVE TO THE IMPORT OF PARAGRAPH 3.5.2 WAS SOLICITED FROM YOUR AGENCY AND IN THE REPLY DATED APRIL 5, 1966, WE WERE ADVISED THAT:

THERE HAVE BEEN AT LEAST TWO INTERPRETATIONS OF THE PHRASE OF PARAGRAPH 3.5.2 STATED BY THE BIDDERS. IN THE OPINION OF THIS AGENCY'S TECHNICAL PERSONNEL, THE PHRASE "IN ANY TWENTY-FOUR HOUR PERIOD WITH A CONSTANT AMBIENT TEMPERATURE," ASSUMING THAT "AMBIENT TEMPERATURE" REFERS TO THE TEMPERATURE SURROUNDING THE "TIME BASE" OF THE COUNTERS, MEANS ANY TWENTY- FOUR HOUR PERIOD FOLLOWING A WARM-UP PERIOD OF SUFFICIENT DURATION TO PERMIT TEMPERATURE STABILIZATION. THE OTHER INTERPRETATION, WHICH IS SEMANTICALLY POSSIBLE, IS THAT THE REQUISITE STABILITY MUST BE ACHIEVED WHEN THE COUNTER IS TURNED ON WITHOUT MORE THAN A DE MINIMIS WARM-UP PERIOD.

THEREFORE, IT NOW APPEARS THAT THE PROCUREMENT ACTIVITY IS AT LEAST DOUBTFUL WHETHER PARAGRAPH 3.5.2 WAS SO TECHNICALLY AMBIGUOUS AS TO HAVE WARRANTED CANCELLATION OF THE INVITATION. WE, OF COURSE, DO NOT HAVE ANY IN-HOUSE CAPABILITY TO WEIGH THE RESPECTIVE TECHNICAL MERITS OF THE TWO VARYING POSITIONS ADVANCED. IN SUCH SITUATIONS, WE LOOK TO THE TECHNICAL EXPERTNESS OF THE PROCUREMENT ACTIVITY TO PROVIDE THE NECESSARY INFORMATION AND TECHNICAL BASES UPON WHICH WE WOULD BE ABLE TO FORM AN OPINION. THE INVITATION CONTAINS THE USUAL "BRAND NAME OR EQUAL" CLAUSE PRESCRIBED BY 1-1.307-6, FEDERAL PROCUREMENT REGULATIONS (FPR). UNDER THE INVITATION, AN EQUAL BIDDER TO BE RESPONSIVE WOULD HAVE TO OFFER ITS EQUIVALENT PRODUCT WHICH ALSO HAD TO DUPLICATE THE MAIN AND REQUIRED CHARACTERISTICS OF THE REFERENCED BRAND NAME MODEL WHICH WERE DELINEATED IN THE PURCHASE DESCRIPTION. WHILE EQUALITY TO THE BRAND NAME MODEL WAS REQUIRED, THE INVITATION ALSO REQUIRED THAT AN "EQUAL" MODEL HAD TO BE IDENTICAL IN CERTAIN FEATURES TO THE BRAND NAME. SINCE WE UNDERSTAND INFORMALLY THAT THE PURCHASE DESCRIPTION IS A DETAILED TECHNICAL EXPLANATION OF THE BRAND NAME AND THAT THE BRAND NAME REFERENCED IS ADEQUATELY DESCRIBED IN THE HEWLETT-PACKARD CATALOG AVAILABLE TO ALL INTERESTED BIDDERS, WE FAIL TO SEE THE NECESSITY FOR THE DETAILED PURCHASE DESCRIPTION. IT WAS AT LEAST CONFUSING FOR THE EQUAL BIDDERS TO CORRELATE THE HEWLETT-PACKARD CATALOG TO THE PURCHASE DESCRIPTION: IT IS SUFFICIENT TO REFER TO THE CATALOG SPECIFICATION FOR STABILITY WHEREIN IT STATES THAT THE AGING RATE IS LESS THAN 3 PARTS IN 109 PER 24 HOURS (AFTER 72 HOURS OF CONTINUOUS OPERATION). WE DO NOT BELIEVE THAT EQUAL BIDDERS SHOULD HAVE HAD TO SPECULATE ON OR INTERPOLATE THE PURCHASE DESCRIPTION TO ARRIVE AT A BID WHICH COULD SUCCESSFULLY WEATHER A TECHNICAL EVALUATION. THE RECORD IS SUFFICIENTLY CLEAR TO ESTABLISH THAT THE CONTRACTING OFFICER HAD A REASONABLE BASIS TO CANCEL THE INVITATION UNDER THE CRITERIA OF FPR SEC. 1 -2.404-1. WE ARE REQUIRED TO LOOK TO THE FACTS AND CIRCUMSTANCES THAT WERE PRESENT AT THE TIME THE CONTRACTING OFFICER MADE THAT DETERMINATION. AND IF SUCH DETERMINATION WAS REASONABLY PROPER WITHOUT TAINT OF IRREGULARITY OR OVERRIDING CONDUCT, WE DO NOT FEEL THAT THE DETERMINATION SHOULD BE OVERTURNED SOLELY ON THE BASIS OF DOUBTS SUBSEQUENTLY ENGENDERED AND FOSTERED BY THE BRAND NAME BIDDER. WE VIEW THESE DOUBTS NOW EXPRESSED BY THE PROCUREMENT ACTIVITY, AND REINFORCED BY REPRESENTATIONS MADE BY THE BRAND NAME BIDDER, AS INCONCLUSIVE IN ESTABLISHING THE IMPROPRIETY OF THE CANCELLATION ACTION PREVIOUSLY TAKEN.

WITHOUT EXPRESSING ANY OPINION ON THE TECHNICAL VALIDITY OF HEWLETT PACKARD'S POSITION, WE FEEL THAT THE RECORD BEFORE US, AS SUPPLEMENTED AND INFORMALLY AMPLIFIED, ADEQUATELY SUPPORTS THE CANCELLATION ACTION EFFECTED. IN VIEW OF THE LAPSE OF TIME SINCE THAT ACTION WAS TAKEN, AND IN THE INTEREST OF SUBSERVING THE COMPETITIVE CHARACTER OF THE PROCUREMENT, WE BELIEVE THAT SUCH ACTION SHOULD NOT BE DISTURBED. WOULD SUGGEST THAT THE DISPUTED TECHNICAL ASPECTS OF THE PURCHASE DESCRIPTION SHOULD BE FINALLY RESOLVED BEFORE ANY READVERTISEMENT OF THE PROCUREMENT IS EFFECTED ON A BRAND NAME OR EQUAL BASIS.