B-161122, MAY 11, 1967

B-161122: May 11, 1967

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INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO VISQUEEN DIVISION. THE SUBJECT PROCUREMENT IS FOR TWO ITEMS OF POLYVINYLCHLORIDE OR POLYETHYLENE TRANSPARENT SLEEVES. YOUR TOTAL BID PRICE WAS $3. ONE OF THE CLAUSES SO INCORPORATED WAS THE FOLLOWING FOUND AT ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1206.3 (B): "BRAND NAME OR EQUAL (NOV. 1961) ") AS USED IN THIS CLAUSE. THE TERM "BRAND NAME" INCLUDES IDENTIFICATION OF PRODUCTS BY MAKE AND MODEL.) "/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. IS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WILL BE SATISFACTORY.

B-161122, MAY 11, 1967

TO CHICAGO TRANSPARENT, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO VISQUEEN DIVISION, ETHYL CORPORATION, BY THE PUGET SOUND NAVAL SHIPYARD, UNDER INVITATION FOR BIDS NO. N00251-67-B-0508.

THE SUBJECT PROCUREMENT IS FOR TWO ITEMS OF POLYVINYLCHLORIDE OR POLYETHYLENE TRANSPARENT SLEEVES, VISQUEEN DIVISION, ETHYL CORPORATION, NO. 350 AND NO. 501 OR EQUAL. YOU OFFERED YOUR OWN PRODUCTS, BOND WRAP NOS. FC414Y AND FC414G, AS EQUAL TO THE BRAND NAME PRODUCTS. YOUR TOTAL BID PRICE WAS $3,795 COMPARED TO THE VISQUEEN BID OF $4,400 ON ITS PRODUCTS REFERENCED IN THE INVITATION.

SECTION 6.1 OF THE INVITATION INCORPORATED BY REFERENCE CERTAIN PROVISIONS "WITH THE SAME FORCE AND EFFECT AS IF SET FORTH IN FULL.' ONE OF THE CLAUSES SO INCORPORATED WAS THE FOLLOWING FOUND AT ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1206.3 (B):

"BRAND NAME OR EQUAL (NOV. 1961)

") AS USED IN THIS CLAUSE, THE TERM "BRAND NAME" INCLUDES IDENTIFICATION OF PRODUCTS BY MAKE AND MODEL.)

"/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.

"/B) UNLESS THE BIDDER CLEARLY INDICATES IN HIS BID THAT HE IS OFFERING AN "EQUAL" PRODUCT, HIS BID SHALL BE CONSIDERED AS OFFERING A BAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BIDS.

"/C) (1)IF THE BIDDER PROPOSES TO FURNISH AN "EQUAL" PRODUCT, THE BRAND NAME, IF ANY, OF THE PRODUCT TO BE FURNISHED SHALL BE INSERTED IN THE SPACE PROVIDED IN THE INVITATION FOR BIDS, OR SUCH PRODUCT SHALL BE OTHERWISE CLEARLY IDENTIFIED IN THE BID. THE EVALUATION OF BIDS AND THE DETERMINATION AS TO EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE GOVERNMENT AND WILL BE BASED ON INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN HIS BID, AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO IN HIS BID, AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. CAUTION TO BIDDERS. THE PURCHASING ACTIVITY IS NOT RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH IS NOT IDENTIFIED IN THE BID AND REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. ACCORDINGLY, TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE BIDDER MUST FURNISH AS A PART OF HIS BID ALL DESCRIPTIVE MATERIAL (SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS OR OTHER INFORMATION) NECESSARY FOR THE PURCHASING ACTIVITY TO (I) DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE INVITATION FOR BIDS AND (II) ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. THE INFORMATION FURNISHED MAY INCLUDE SPECIFIC REFERENCE TO INFORMATION PREVIOUSLY FURNISHED OR TO INFORMATION OTHERWISE AVAILABLE TO THE PURCHASING ACTIVITY. * * *"

WE HAVE BEEN ADVISED THAT SINCE YOUR BID DID NOT INCLUDE ANY INFORMATION CONCERNING THE PRODUCTS YOU OFFERED, THE AGENCY WAS UNABLE TO DETERMINE WHETHER THEY WERE EQUAL TO THE BRAND NAME PRODUCTS. THEREFORE AWARD WAS MADE TO VISQUEEN AS THE ONLY RESPONSIVE BIDDER.

IN RESPONDING TO AN INVITATION EMPLOYING A BRAND NAME OR EQUAL PURCHASE DESCRIPTION, THE RESPONSIVENESS OF A BID DEPENDS NOT ON WHETHER THE BIDDER BELIEVES, OR EVEN KNOWS, THAT HIS PRODUCT IS EQUAL TO THE BRAND NAME, BUT WHETHER THE PROCURING ACTIVITY CAN SO DETERMINE FROM THE INFORMATION SUBMITTED WITH THE BID. THE ABOVE-QUOTED CLAUSE INCORPORATED IN THE INVITATION BY REFERENCE, CLEARLY WARNED BIDDERS THAT THE "EQUALITY" OF AN "EQUAL" PRODUCT WOULD BE DETERMINED ON THE BASIS OF INFORMATION FURNISHED BY THE BIDDER. SINCE YOU SUBMITTED NO INFORMATION, THERE WAS NO WAY TO DETERMINE THE EQUALITY OF THE PRODUCT YOU OFFERED.

IN VIEW THEREOF, YOUR BID WAS NONRESPONSIVE AND COULD NOT PROPERLY BE CONSIDERED FOR AWARD.