B-159178, SEP. 6, 1966

B-159178, SEP. 6, 1966

TO THE VICE PRESIDENT MARKETING, POLARAD ELECTRONIC INSTRUMENTS:

REFERENCE IS MADE TO YOUR LETTER OF MAY 11, 1966, PROTESTING THE REJECTION OF THE BID SUBMITTED BY YOUR COMPANY UNDER NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) INVITATION FOR BIDS WS 66 26, DATED FEBRUARY 2, 1966.

THE INVITATION SOLICITED BIDS FOR A SINGLE ITEM DESCRIBED AS FOLLOWS:

"SPECTRUM ANALYZER, 10 MC TO 10GC; 2 GC DISPERSION; SENSITIVITY - 95DBM; SIGNAL IDENTIFIER ON ALL BANDS. HEWLETT PACKARD 851A/8551A OR EQUAL.'

ONLY TWO BIDS WERE RECEIVED ON FEBRUARY 17, 1966. YOUR COMPANY BID $9,268.50 FOR ITS MODEL 2992A OFFERED AS AN EQUAL TO THE BRAND NAME PRODUCT. HEWLETT-PACKARD/NEELY SALES DIVISION BID $9,523.73 FOR ITS MODEL 851B/8551B REPRESENTED AS SUPERSEDING THE BRAND NAME MODEL. BOTH BIDDERS FURNISHED DESCRIPTIVE LITERATURE ON THEIR MODELS AS REQUIRED BY THE BRAND NAME OR EQUAL CLAUSE IN THE INVITATION WITH RESPECT TO MODELS OFFERED AS EQUALS.

THE DESCRIPTIVE LITERATURE PROVIDED BY YOUR COMPANY WAS TECHNICALLY EVALUATED AND THEREAFTER IT WAS CONCLUDED THAT THE MODEL 2992A WAS NOT CONSIDERED EQUAL TO THE MODEL 851A/8551A DESIGNATED IN THE INVITATION FOR THE FOLLOWING REASONS:

"A. THE LABORATORY USE OF THE ANALYZER REQUIRES THE VISUAL DISPLAY TO PRESENT A DYNAMIC RANGE OF AT LEAST 60 DB FOR A SINGLE SETTING OF THE CONTROLS. A SUBSTITUTION OF ANY SYSTEM WHICH CAN ATTAIN 60 DB DYNAMIC DISPLAY THROUGH ATTENUATION OR GAIN CHANGES IS NOT ACCEPTABLE. THE POLARAD SPECIFICATIONS INDICATE A 60 DB DYNAMIC RANGE; HOWEVER, THERE IS NO STATEMENT THAT INDICATES THAT THIS IS ATTAINABLE WITHOUT INSTRUMENT GAIN OR ATTENUATOR SETTINGS. THE SPECIFICATIONS DO INDICATE THAT POLARAD HAS A 40 DB DYNAMIC DISPLAY RANGE THAT WHEN USED IN CONJUNCTION WITH AN ASSOCIATED 20 DB MANUAL CONTROL CAN GIVE A FULL 60 DB OF DYNAMIC RANGE. THIS IS NOT THE SAME AS THE REQUIRED 60 DB DYNAMIC DISPLAY.

"B. THE LABORATORY REQUIRES AN INSTRUMENT WHOSE SPECTRUM WIDTH IS CONTINUOUSLY ADJUSTABLE DOWN TO 0. THE POLARAD DISPERSION IS FROM 10 KHZ TO 2 GHZ. NO MENTION IS MADE OF DISPERSION FROM 0 TO 10 KHZ.

"C. THE LABORATORY REQUIRES AN INSTRUMENT THAT CAN ACCURATELY DETERMINE AMPLITUDES AND FREQUENCIES OVER ITS ENTIRE OPERATING RANGE. AN ACCURACY OF PLUS OR MINUS 1 DB OR GREATER OVER THE ENTIRE RANGE IS REQUIRED. POLARAD SPECIFIES THAT THEIR IF ATTENUATOR ACCURACY IS PLUS OR MINUS 0.05 DB/DB OVER THE ENTIRE 83 DB RANGE. THIS ADDS UP TO A POSSIBLE PLUS OR MINUS 4 DB ERROR.

"D. THE LABORATORY HAS A SIGNIFICANT INVESTMENT IN DISPLAY PHOTOGRAPHY EQUIPMENT THAT ACCEPTS STANDARD 5 INCH CRT MOUNTS. THE POLARAD DISPLAY CRT IS LARGER THAN THE STANDARD SIZE AND NO MENTION IS MADE OF ANY CAMERA FIXTURES AVAILABLE TO CONVERT IT TO THE STANDARD FIXTURES. THE LABORATORY'S REQUIREMENT IS FOR THE ANALYZER TO ACCEPT THE STANDARD 9 FEET MOUNTS.

"E. IT IS DESIRED THAT THE INSTRUMENT PURCHASED HAS THE CAPABILITY OF AUTOMATICALLY SELECTING THE BANDWIDTH FOR BEST CW RESOLUTION. EVEN THOUGH THIS IS NOT A STRINGENT REQUIREMENT IT MUST BE A CONSIDERATION. POLARAD GIVES NO INFORMATION CONCERNING THIS PARAMETER.

"F. THE PURCHASED INSTRUMENT WILL BE USED FOR CALIBRATION PURPOSES. THEREFORE, A PARALLAX FREE DISPLAY IS REQUIRED. POLARAD ANALYZERS NORMALLY USE AN EXTERNAL GRATICULE THAT HAS PARALLAX. THERE IS NO INFORMATION IN THE SPECIFICATIONS STATING THE TYPE OF DISPLAY GRATICULE USED.

"G. THE LABORATORY REQUIRES THAT THE REFERENCE OSCILLATOR AUTOMATICALLY TRACK WITH THE TUNE CONTROL OVER THE LOCAL OSCILLATOR RANGER. THE POLARAD SPECIFICATIONS DO NOT MENTION PHASE LOCK TUNING CAPABILITY FOR THEIR INSTRUMENT.'

THE DESCRIPTIVE LITERATURE FURNISHED BY HEWLETT-PACKARD ALSO WAS EVALUATED AND ITS MODEL 851B-8551B WAS DETERMINED TO BE EQUAL TO THE MODEL 851A/8551A. THEREFORE, ON THE BASIS OF THE FOREGOING, A CONTRACT WAS AWARDED TO HEWLETT-PACKARD ON APRIL 28, 1966.

WHETHER A PRODUCT OFFERED AS EQUAL TO A BRAND NAME PRODUCT IS, IN FACT, EQUAL IS A MATTER FOR DETERMINATION BY THE PROCURING AGENCY. 17 COMP. GEN. 554, 557. HOWEVER, WHILE CONTINUING IN THE VIEW THAT YOUR MODEL 2992A IS NOT AN EQUAL TO THE BRAND NAME MODEL, THE AGENCY HAS RECOMMENDED CANCELLING THE CONTRACT AWARDED TO HEWLETT-PACKARD ON THE BASIS THAT THE INVITATION WAS DEFECTIVE IN THAT YOUR COMPANY'S MODEL WAS FOUND TO BE NOT EQUAL TO THE BRAND NAME MODEL ON THE BASIS OF CHARACTERISTICS WHICH WERE ESSENTIAL TO THE GOVERNMENT'S NEEDS BUT WHICH WERE NOT IDENTIFIED IN THE INVITATION FOR BIDS AS SALIENT CHARACTERISTICS. IN THAT CONNECTION, IN DECISION B-157857 OF JANUARY 26, 1966, OUR OFFICE CONSIDERED ANOTHER CASE WHERE THERE WAS A BRAND NAME OR EQUAL PURCHASE DESCRIPTION WHICH DID NOT INCLUDE ALL THE CHARACTERISTICS OF THE BRAND NAME ITEM WHICH WERE CONSIDERED ESSENTIAL TO THE GOVERNMENT'S NEEDS. IN THAT DECISION, IT WAS STATED:

"* * * BIDDERS OFFERING "EQUAL" PRODUCTS SHOULD NOT HAVE TO GUESS AT THE ESSENTIAL QUALITIES OF THE BRAND NAME ITEM. UNDER THE REGULATIONS 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 AND B-157081, OCTOBER 18, 1965.' THE DECISION CONCLUDED THAT SINCE A STOPWORK ORDER HAD BEEN ISSUED AND THE INVITATION WAS DEFECTIVE, THE AWARD MADE TO THE BRAND NAME COMPANY, RATHER THAN TO THE "OR EQUAL" BIDDER WHOSE EQUIPMENT DID NOT MEET ALL THE CHARACTERISTICS OF THE BRAND NAME ARTICLE, SHOULD BE CANCELLED AND THE REQUIREMENT READVERTISED UNDER A SPECIFICATION WHICH FULLY ADVISED ALL BIDDERS OF ALL THE ESSENTIAL REQUIREMENTS OF THE ITEM. SEE, ALSO, B-157295, MARCH 23, 1966.

AS A RESULT OF THE PROTEST, THE CONTRACTING OFFICER REEXAMINED THE BID SUBMITTED BY HEWLETT-PACKARD. HE CONCLUDED THAT IT WAS NONRESPONSIVE FOR TWO REASONS. FIRST, THE INVITATION FOR BIDS CONTAINED A REQUIRED DELIVERY SCHEDULE OF 60 DAYS AFTER DATE OF AWARD AND STATED THAT BIDS OFFERING DELIVERY UNDER SUCH TERMS OR CONDITIONS THAT DELIVERY WOULD NOT CLEARLY FALL WITHIN THE APPLICABLE REQUIRED DELIVERY PERIOD SPECIFIED WOULD BE CONSIDERED NONRESPONSIVE AND WOULD BE REJECTED. HOWEVER, THE HEWLETT- PACKARD BID PROVIDED FOR DELIVERY 45 DAYS AFTER RECEIPT OF CONTRACT. SECOND, THE DESCRIPTIVE LITERATURE FURNISHED BY HEWLETT-PACKARD AS A PART OF THE BID STATED,"DATA SUBJECT TO CHANGE WITHOUT NOTICE.'

WITH REGARD TO THE FIRST POINT, IN VIEW OF THE 15-DAY SPREAD BETWEEN THE REQUIRED NUMBER OF DAYS FOR DELIVERY AND THE OFFERED NUMBER OF DAYS FOR DELIVERY, IT SEEMS CLEAR THAT THE BID OFFERED PERFORMANCE WELL WITHIN THE REQUIRED DELIVERY SCHEDULE. IN THAT CONNECTION, THE INVITATION FAILED TO INCLUDE THE CLAUSE REQUIRED BY SECTION 1-305-3/C) OF THE NASA PROCUREMENT REGULATIONS WHICH PROVIDES THAT A BID OFFERING DELIVERY BASED ON THE DATE OF RECEIPT BY THE CONTRACTOR OF THE CONTRACT OF NOTICE OF AWARD (RATHER THAN THE CONTRACT DATE) WILL BE EVALUATED BY ADDING THE MAXIMUM NUMBER OF DAYS NORMALLY REQUIRED FOR DELIVERY THEREOF THROUGH THE ORDINARY MAILS TO DETERMINE WHETHER THE BID IS RESPONSIVE. ALSO, SEE SECTION 1-305-3/F). IT THEREFORE APPEARS THAT, WHILE THE INVITATION DID NOT CONTAIN THE REQUIRED DELIVERY EVALUATION CLAUSE, THE BID, THOUGH STATING THE DELIVERY IN DIFFERENT TERMS THAN SET FORTH IN THE INVITATION, WAS OFFERING DELIVERY WELL WITHIN THE REQUIRED SCHEDULE AND COULD BE CONSIDERED RESPONSIVE.

WITH REGARD TO THE LEGEND APPEARING IN THE DESCRIPTIVE LITERATURE, OUR OFFICE HAS HELD THAT SUCH LANGUAGE PROVIDES A BIDDER WITH AN OPTION TO DEVIATE FROM THE ADVERTISED REQUIREMENTS AFTER AWARD AND IS A MATERIAL DEVIATION RENDERING THE BID NONRESPONSIVE. B-158809, JUNE 2, 1966.

HAD THIS CASE BEEN BROUGHT TO OUR ATTENTION PRIOR TO AWARD OR HAD A STOPORDER BEEN ISSUED SHORTLY THEREAFTER, OUR OFFICE WOULD HAVE CONCURRED IN THE RECOMMENDATION BY NASA THAT THE CONTRACT AWARDED TO HEWLETT-PACKARD BE CANCELLED. HOWEVER, NASA HAS REPORTED TO US THAT THE SPECTRUM ANALYZER HAS BEEN DELIVERED AND IS BEING STORED WITHOUT INSPECTION OR ACCEPTANCE PENDING THIS DECISION. IN THE CIRCUMSTANCES, AND CONSIDERING THAT THE AWARD WAS MADE IN GOOD FAITH, WE DO NOT BELIEVE THAT THE BEST INTERESTS OF THE GOVERNMENT WOULD BE SERVED BY CANCELLING THE CONTRACT AT THIS TIME. CF. 43 COMP. GEN. 761 AND 40 ID. 160. WE ARE, HOWEVER, SUGGESTING TO NASA THAT APPROPRIATE STEPS BE TAKEN TO PREVENT RECURRENCE OF THIS SITUATION IN THE FUTURE.