B-161343, JUN. 30, 1967

B-161343: Jun 30, 1967

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

" WAS INCORPORATED INTO THE INVITATION BY REFERENCE: "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. 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.

B-161343, JUN. 30, 1967

TO WHITE PLAINS ELECTRICAL SUPPLY CO., INC.

WE REFER TO YOUR LETTER OF APRIL 21, 1967, WITH ENCLOSURES, PROTESTING AGAINST THE REJECTION OF YOUR LOW BID SUBMITTED UNDER INVITATION FOR BIDS NO. N00600-67-B-0480, ISSUED ON DECEMBER 14, 1966, BY THE U.S. NAVY PURCHASING OFFICE, WASHINGTON NAVY YARD, WASHINGTON, D.C., FOR 200 INDUSTRIAL LIGHTING FIXTURES.

THE INVITATION REQUESTED BIDS UNDER A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION, CITING MODERN MODEL NO. 2-304 OR EQUAL. THE FOLLOWING CLAUSE PRESCRIBED BY ARMED SERVICES PROCUREMENT REGULATIONS (ASPR) 1 1206.3 (B), ENTITLED "BRAND NAME OR EQUAL," WAS INCORPORATED INTO THE INVITATION BY REFERENCE:

"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 NO 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 BRAND 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 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 REFERENCES TO INFORMATION PREVIOUSLY FURNISHED OR TO INFORMATION OTHERWISE AVAILABLE TO THE PURCHASING ACTIVITY.'

SALIENT CHARACTERISTICS REPRESENTING THE MINIMUM REQUIREMENTS OF THE GOVERNMENT WERE SET FORTH IN THE INVITATION SCHEDULE UNDER SECTION B,"DESCRIPTION OR SPECIFICATIONS.'

"SPECIFICATIONS:

"THE FOLLOWING ARE THE SALIENT CHARACTERISTICS OF THE BRAND NAME REFERENCED, THAT MUST BE MET IN ORDER TO SATISFY THE MINIMUM REQUIREMENTS OF THE GOVERNMENT:

"2. CONSTRUCTION SHALL BE ONE SINGLE TUBE BALLAST AND ONE 2 TUBE BALLAST, RAPID START, WITH THERMAL PROTECTION AND HIGH POWER FACTOR.'

YOUR BID, OFFERING HASCO ELECTRIC CORPORATION MODEL NO. 152-2340 AS AN EQUAL ITEM WAS LOW. IN IDENTIFYING THE OFFERED PRODUCT IN YOUR BID, YOU TYPED IN THE WORDS "PER SPACE BELOW, SEE DATA ATTACHED.' THE DESCRIPTIVE DATA WAS ANALYZED BY THE TECHNICAL STAFF AND WAS FOUND TO BE DEFICIENT IN THAT IT DID NOT DEMONSTRATE COMPLIANCE WITH PARAGRAPH 2 OF THE SPECIFICATION. NO INFORMATION CONCERNING THE HASCO MODEL WAS AVAILABLE TO THE PROCUREMENT OFFICE TO DETERMINE CONFORMANCE. THE CONTRACTING OFFICER DETERMINED THAT THE BLANKET STATEMENT "PER SPECS BELOW" DID NOT MEET THE REQUIREMENTS IN PARAGRAPH 2 OR COMPLY WITH THE BRAND NAME OR EQUAL CLAUSE SINCE THE NECESSARY DESCRIPTIVE INFORMATION CONCERNING PARAGRAPH 2 WAS LACKING.

AN OFFER OF BLANKET COMPLIANCE WITH THE ADVERTISED SALIENT CHARACTERISTICS OF A REFERENCED BRAND NAME PRODUCT IS NOT AN ACCEPTABLE SUBSTITUTE FOR REQUIRED DESCRIPTIVE DATA ON THE "EQUAL" PRODUCT. SEE 41 COMP. GEN. 366; 45 ID. 312. IN RESPONDING TO AN INVITATION EMPLOYING A BRAND NAME OR EQUAL PURCHASE DESCRIPTION, THE RESPONSIVENESS OF AN "EQUAL" BID IS DEPENDENT UPON THE COMPLETENESS AND SUFFICIENCY OF THE DESCRIPTIVE INFORMATION SUBMITTED WITH THE BID. SEE B-161122 DATED MAY 11, 1967. THE CLAUSE QUOTED ABOVE CLEARLY WARNED BIDDERS THAT THE "EQUALITY" OF THE OFFERED "EQUAL" PRODUCT WOULD BE DETERMINED ON THE BASIS OF INFORMATION FURNISHED BY THE BIDDER. SINCE YOU FAILED TO SUBMIT SUFFICIENT INFORMATION TO ENABLE THE PROCUREMENT AGENCY TO EVALUATE YOUR OFFERED "EQUAL" PRODUCT AGAINST THE BRAND NAME REFERENCED, THE REJECTION OF YOUR BID WAS PROPER.