B-163918, APR. 25, 1968

B-163918, APR. 25, 1968

TO MR. SECRETRAY:

REFERENCE IS MADE TO LETTER DATED MARCH 29, 1968, FROM THE DEPUTY ASSISTANT SECRETARY CONCERNING A PROTEST OF FEBRUARY 23, 1968, WHICH THE BUREAU OF RECLAMATION HAS RECEIVED FROM THIEM-TRANSREX, INC. (THIEM), AGAINST THE AWARD OF A CONTRACT MADE TO THE MULTI-AMP CORPORATION UNDER INVITATION FOR BIDS NO. YT600-21,994, ISSUED BY REGION 6, BUREAU OF RECLAMATION.

THE INVITATION, ISSUED ON JANUARY 22, 1968, CALLED FOR THE FURNISHING OF A PORTABLE HIGH-CURRENT TEST SET, TWO-PIECE UNIT, FOR POWER CIRCUIT BREAKERS FOR USE ON THE YELLOWTAIL UNIT, MISSOURI RIVER BASIN PROJECT, MONTANA. THE SPECIFICATIONS REQUIRED THAT THE TEST SET "SHALL BE SIMILAR OR EQUAL TO MODEL NO. CB-150, MANUFACTURED BY THE MULTI-AMP CORPORATION.' THE SPECIFICATIONS, IN ADDITION TO THE INFORMATION CONTAINED IN THE ITEM DESCRIPTION, SPECIFICALLY REQUIRED THAT THE UNIT "SHALL BE A PORTABLE 2- PIECE UNIT.' THREE BIDS WERE RECEIVED AND OPENED ON FEBRUARY 13, 1968, AND IT IS REPORTED THAT THE LOWEST BID WAS SUBMITTED BY THIEM IN AN AMOUNT OF $5,300 AND THE SECOND LOW BID WAS SUBMITTED BY THE MULTI-AMP CORPORATION IN THE AMOUNT OF $5,380.16. THE CONTRACTING OFFICER REJECTED THE BID OF THIEM BECAUSE THE EQUIPMENT OFFERED BY THAT FIRM DID NOT MEET SPECIFICATION REQUIREMENTS IN THAT IT OFFERED A ONE-PIECE UNIT. AN AWARD WAS SUBSEQUENTLY MADE TO THE NEXT LOW BIDDER, MULTI-AMP CORPORATION, WHOSE BID MET SPECIFICATION REQUIREMENTS.

ON PAGE 5 OF THE SOLICITATION, THIEM STATED THAT IT IS THE MANUFACTURER OF THE ITEM IDENTIFIED AS "CATALOG NO. TRE 15.' THIEM STATED ON PAGE 6 OF THE INVITATION THAT THE EQUIPMENT OFFERED VARIED FROM THE REQUIREMENTS OF THE INVITATION "ONLY TO THE EXTENT SUBSTITUTION FOR BRAND NAME EQUIPMENT IS INDICATED UNDER -BRAND NAME EQUIPMENT.-" HOWEVER, IMMEDIATELY BELOW THE QUOTED STATEMENT, THIEM INSERTED "SEE ATTACHED BULLETIN NO. CBT-67 FOR GENERAL DESCRIPTION.' THAT BULLETIN CONTAINED AN ILLUSTRATION OF THE THIEM MODEL TRE-15, WHICH IS CLEARLY A ONE-PIECE UNIT. THIEM DID NOT SUBMIT ANY OTHER INFORMATION TO INDICATE THAT THE EQUIPMENT PROPOSED TO BE FURNISHED IN ANY WAY DIFFERED FROM THE SUBMITTED BULLETIN DESCRIPTION OF THE MODEL TRE-15. ACCORDINGLY, THE CONTRACTING OFFICER CONCLUDED, AND PROPERLY, THAT THIEM ACTUALLY INTENDED TO FURNISH A ONE-PIECE UNIT CONTRARY TO THE ADVERTISED SPECIFICATIONS.

IN ITS LETTER OF FEBRUARY 23, 1968, TO THE BUREAU OF RECLAMATION, THIEM PROTESTS AGAINST THE AWARD STATING THAT "WE FEEL THAT THE LITERATURE WE SUPPLIED SHOULD NOT HAVE MISLED YOU SINCE IT WAS SPECIFICALLY DESCRIBED AS -A GENERAL DESCRIPTION- AND WE BID WITHOUT EXCEPTION ON THE SPECIFICATIONS.'

THE INVITATION CONTAINED A BRAND NAME OR EQUAL CLAUSE WHICH WAS APPLICABLE TO BIDDERS, SUCH AS THIEM, WHO ELECTED TO FURNISH "OR EQUAL" EQUIPMENT. THE CLAUSE ADVISED SUCH BIDDERS THAT EVALUATION WOULD BE BASED ON INFORMATION FURNISHED BY THE BIDDER AND THAT A BIDDER OFFERING AN ,EQUAL" PRODUCT WILL BE CONSIDERED FOR AWARD IF DETERMINED TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME REFERENCED.

WHILE THIEM HAS STATED THAT IT TOOK NO EXCEPTION TO THE SPECIFICATIONS, ITS DESCRIPTIVE LITERATURE CLEARLY DEVIATED FROM A SALIENT CHARACTERISTIC OF THE BRAND NAME IN THAT THIEM OFFERED A ONE PIECE UNIT, WHEREAS, A TWO- PIECE UNIT WAS SPECIFICALLY ADVERTISED. WE CANNOT AGREE THAT SUCH LITERATURE WAS GENERAL IN NATURE; RATHER, IT CLEARLY SHOWED THAT THE SO- CALLED "OR EQUAL" PRODUCT WAS NOT IN FACT EQUAL TO THE REFERENCED BRAND NAME PRODUCT. THE CONTRACTING OFFICER WAS OBLIGED TO EVALUATE THE THIEM BID AS OFFERING A PRODUCT WHICH, AS DESCRIBED, DEVIATED FROM THE GOVERNMENT'S EXPRESSED REQUIREMENT.

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 BRAND NAME OR EQUAL CLAUSE CLEARLY WARNED BIDDERS THAT THE "EQUALITY" OF THE OFFERED "EQUAL" PRODUCT WOULD BE DETERMINED ON THE BASIS OF INFORMATION FURNISHED BY THE BIDDER. MOREOVER, FPR SEC. 1 2.404-2 (A) PROVIDES AS FOLLOWS:

"/A) ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS, SUCH AS SPECIFICATIONS, DELIVERY SCHEDULE, OR PERMISSIBLE ALTERNATES THERETO, SHALL BE REJECTED AS NONRESPONSIVE.'

IN VIEW OF THE FOREGOING, WE CONCLUDE THAT THE REJECTION OF THE THIEM BID WAS IN ACCORDANCE WITH THE PROCUREMENT REGULATIONS AND THE PROVISIONS OF THE INVITATION RESPECTING THE EVALUATION OF BRAND NAME OR EQUAL BIDS. SEE B-162120 DATED SEPTEMBER 18, 1967. THE PROTEST SHOULD THEREFORE BE DENIED.