B-164900, SEPT. 20, 1968

B-164900: Sep 20, 1968

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THE SUBJECT SOLICITATION IS A READVERTISEMENT OF SOLICITATION NO. VEECO'S BID WAS LOW. WAS REJECTED BECAUSE THE FIRM WAS DETERMINED BY THE SMALL BUSINESS ADMINISTRATION TO BE A LARGE BUSINESS CONCERN. YOUR BID WAS ALSO REJECTED BECAUSE IT FAILED TO FURNISH ANY DESCRIPTIVE DATA AS REQUIRED BY THE BRAND NAME OR EQUAL CLAUSE. SINCE NO RESPONSIVE BIDS WERE RECEIVED. WHEN BIDS WERE OPENED AS SCHEDULED ON JUNE 7. THE THREE LOW BIDS WERE FOUND TO BE: CONSOLIDATED ELECTRODYNAMICS CORPORATION $ 6. IT WAS REJECTED AS NONRESPONSIVE. BECAUSE THE CONTRACTING OFFICER DID NOT HAVE SUFFICIENT INFORMATION TO DETERMINE WHETHER THE EQUIPMENT PROPOSED BY AERO VAC SATISFIED THE NEEDS OF THE GOVERNMENT. IT WAS REJECTED AS NONRESPONSIVE.

B-164900, SEPT. 20, 1968

TO AERO VAC CORPORATION:

WE REFER TO YOUR LETTERS OF JULY 5 AND 18, 1968, PROTESTING THE REJECTION OF YOUR BID AS NONRESPONSIVE FOR FAILURE TO FURNISH ADEQUATE DATA TO DEMONSTRATE CONFORMANCE OF YOUR PRODUCT WITH THE LISTED SALIENT CHARACTERISTICS OF THE NAMED BRAND ITEM UNDER ADVERTISED SOLICITATION NO. DAAB07-68-B-A262 ISSUED MAY 24, 1968, BY THE FORT MONMOUTH PROCUREMENT DIVISION, PROCUREMENT AND PRODUCTION DIRECTORATE, UNITED STATES ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY, TO PROCURE ONE RESIDUAL GAS ANALYZER (RACK), VEECO INSTRUMENTS, INCORPORATED, MODEL GA-4 OR EQUAL.

THE SUBJECT SOLICITATION IS A READVERTISEMENT OF SOLICITATION NO. DAAB07- 68-B-A199 ISSUED APRIL 15, 1968, A TOTAL SMALL BUSINESS SET ASIDE. TWO FIRMS, YOU AND VEECO, RESPONDED TO THIS EARLIER SOLICITATION. VEECO'S BID WAS LOW, BUT WAS REJECTED BECAUSE THE FIRM WAS DETERMINED BY THE SMALL BUSINESS ADMINISTRATION TO BE A LARGE BUSINESS CONCERN. YOUR BID WAS ALSO REJECTED BECAUSE IT FAILED TO FURNISH ANY DESCRIPTIVE DATA AS REQUIRED BY THE BRAND NAME OR EQUAL CLAUSE. SINCE NO RESPONSIVE BIDS WERE RECEIVED, THE CONTRACTING OFFICER CANCELED THE SOLICITATION AND READVERTISED, THIS TIME WITHOUT A SMALL BUSINESS SET-ASIDE RESTRICTION.

FIVE FIRMS RESPONDED TO THE SECOND SOLICITATION. WHEN BIDS WERE OPENED AS SCHEDULED ON JUNE 7, 1968, THE THREE LOW BIDS WERE FOUND TO BE:

CONSOLIDATED ELECTRODYNAMICS CORPORATION $ 6,890

AERO VAC CORPORATION 9,900

VEECO INSTRUMENTS, INCORPORATED 10,125

BECAUSE CONSOLIDATED'S LOW BID INCLUDED THE FIRM'S STANDARD QUOTATION FORM CONTAINING PREPRINTED TERMS AND CONDITIONS CONFLICTING WITH THOSE CONTAINED IN THE GOVERNMENT'S SOLICITATION FORM, IT WAS REJECTED AS NONRESPONSIVE. THE CONTRACTING OFFICER ALSO DETERMINED THAT YOUR BID FAILED TO INCLUDE DESCRIPTIVE DATA ADEQUATE TO MEET THE PURPOSES OF THE BRAND NAME OR EQUAL PROVISION ON PAGE 16 OF THE SOLICITATION. BECAUSE THE CONTRACTING OFFICER DID NOT HAVE SUFFICIENT INFORMATION TO DETERMINE WHETHER THE EQUIPMENT PROPOSED BY AERO VAC SATISFIED THE NEEDS OF THE GOVERNMENT, IT WAS REJECTED AS NONRESPONSIVE. THE BID OF THE THIRD LOW BIDDER, VEECO, WAS THEN EXAMINED AND FOUND TO BE RESPONSIVE TO THE TERMS AND CONDITIONS OF THE SOLICITATION. AWARD WAS MADE ACCORDINGLY TO VEECO ON JUNE 29, 1968.

YOUR FIRM PROMPTLY PROTESTED THIS ACTION TO THE CONTRACTING OFFICER AND TO THIS OFFICE. PENDING A RESOLUTION OF THE MATTER, THE CONTRACTING OFFICER ISSUED A STOP WORK ORDER TO VEECO, WHICH WAS ACCEPTED BY VEECO'S LETTER OF JULY 12, 1968. IN AN ATTEMPT TO SETTLE THE ISSUES IN DISPUTE, THE PROCURING ACTIVITY HELD A MEETING ON JULY 12, 1968, WITH REPRESENTATIVES OF YOUR FIRM DURING WHICH THE CASE WAS DISCUSSED, BUT NO AGREEMENT WAS REACHED.

YOU CONTEND THAT AERO VAC'S BID WAS IMPROPERLY REJECTED AND THE SUBSEQUENT AWARD TO VEECO WAS, THEREFORE, IN VIOLATION OF APPLICABLE LAWS AND REGULATIONS. IN PARTICULAR, IT IS YOUR POSITION THAT THE AERO VAC RESIDUAL GAS ANALYZER IS EQUAL, IF NOT SUPERIOR, TO THE VEECO INSTRUMENT IN ALL SIGNIFICANT ASPECTS AND THAT AERO VAC'S BID CONTAINED SUFFICIENT INFORMATION TO DEMONSTRATE THIS EQUIVALENCE. IN SUPPORT OF THIS CONTENTION, YOU POINT TO A TELEPHONE CONVERSATION OF JUNE 18, 1968, BETWEEN A REPRESENTATIVE OF YOUR FIRM AND A MEMBER OF THE ARMY TECHNICAL STAFF ASSIGNED THE DUTY OF EVALUATING THE SUBJECT BIDS. YOU STATE THAT THIS INDIVIDUAL ADVISED YOU THAT AERO VAC'S BID WAS RESPONSIVE TO DATA REQUIREMENTS OF THE SOLICITATION AND THAT, IN FACT, THE AERO VAC MACHINE HAD ADVANTAGES OVER THE VEECO INSTRUMENT. IN ADDITION, YOU REFER TO ASPR 1-1206.1 (A), 1-1206.4 (A) AND 2-202.5 (B) TO SUPPORT THE CONTENTION THAT REJECTION OF YOUR BID WAS IMPROPER.

THE SUBJECT SOLICITATION CONTAINED A "BRAND NAME OR EQUAL" CLAUSE WHICH IN CONFORMANCE WITH ASPR 1-1206.3 ADVISED BIDDERS INTENDING TO OFFER PRODUCTS AS THE EQUAL OF THE SPECIFIED BRAND NAME AND MODEL THAT "THE DETERMINATION AS TO THE EQUALITY OF THE PRODUCT OFFERED * * * 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". THIS INFORMATION, WHICH COULD BE FURNISHED IN THE FORM OF CUTS, ILLUSTRATIONS, DRAWINGS OR OTHER DATA, HAD TO BE SUFFICIENT FOR THE PURCHASING ACTIVITY TO DETERMINE WHETHER "THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE INVITATION FOR BIDS" AND TO ESTABLISH "EXACTLY WHAT THE BIDDER PROPOSED TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD".

THE SOLICITATION CONTAINED A DESCRIPTION OF THE PERFORMANCE AND OPERATIONAL CHARACTERISTICS OF THE DESIRED INSTRUMENT, WHICH WAS TO BE A " -VEECO INSTRUMENTS, INC.- MODEL GA-4 (RACK) OR EQUAL". ITEM (4) (B) OF THIS PURCHASE DESCRIPTION CALLS FOR A SCANNING UNIT WITH THE FOLLOWING CHARACTERISTICS:

"/B) SCANNING PEAK SELECTOR THAT PERMITS AUTOMATIC OR MANUAL SEQUENCING TO A SERIES OF ONE TO SIX PRESET POINTS, IN THE 2-300 AMU RANGE. SCANNING OF PEAK SELECTOR TO BE BOTH AUTOMATIC AND MANUAL. DURATION OF AUTOMATIC SCAN TO BE VARIABLE FROM 0-60 SECONDS. SCAN WIDTH AND SCAN SPEED TO BE VARIED BY SEPARATE CONTROLS. SCAN WIDTH AT EACH POINT TO WHICH THE ANALYZER IS INDEXED TO BE VARIABLE FROM ZERO FOR SINGLE PEAK MONITORING TO A WIDTH SUFFICIENT TO OBSERVE SEVERAL MASSES IN REGIONS OF SPECIAL INTEREST. MANUAL MODE TO PERMIT SEQUENCING ONLY BY PUSH BUTTOM COMMAND. PUSH BOTTONS TO OVERRIDE AUTOMATIC CYCLE AT ANY TIME.'

IN RESPONSE TO THE BRAND NAME OR EQUAL PROVISIONS OF THE SOLICITATION, AERO VAC ATTACHED TO ITS BID AN EIGHT PAGE BROCHURE DESCRIBING THE AERO VAC MODEL 610-611 GENERAL PURPOSE MASS SPECTROMETER RESIDUAL GAS ANALYZER, A TWO PAGE LETTER DESCRIBING THE PROPOSED EQUIPMENT IN SUMMARY FORM, AN OUTLINE DRAWING OF THE ENTIRE CONSOLE, AND AN OUTLINE DRAWING OF THE FACE OF THE SCANNING UNIT.

THE CONTRACTING OFFICER REPORTS THAT NEITHER THE WRITTEN DESCRIPTIVE MATERIAL NOR THE DRAWINGS ARE ADEQUATE TO ESTABLISH THE METHOD OF OPERATION OF THE UNIT'S SCANNING PEAK SELECTOR CALLED FOR UNDER ITEM (4) (B) OF THE PURCHASE DESCRIPTION. THE PRINTED BROCHURE MAKES NO MENTION OF THIS PORTION OF THE PROPOSED INSTRUMENT. THE TWO PAGE LETTER STATES THAT THE AERO VAC INSTRUMENT WILL CONTAIN A "SCANNING PEAK SELECTOR WITH AUTOMATIC OR MANUAL SEQUENCING ON ONE TO SIX PRE-SET POINTS". THE DRAWING OF THE OVERALL CONSOLE LABELS A PORTION OF THE FACE PANEL AS "MODEL 620 SEQUENTIAL SCANNER" , AND THE OTHER DRAWING, OF THE MODEL 620 SEQUENTIAL SCANNER ITSELF, SHOWS A RECTANGULAR FACE PANEL WITH WORDS SUCH AS "SELECT" ,"ADJUST" , "SCAN DURATION" AND "STEP" NEAR CIRCLES REPRESENTING CONTROLS OR LIGHTS. THE PORTION OF THE FACE LABELED "CHANNELS" SHOWS WHAT APPEAR TO BE SIX SEPARATE GROUPS OF CONTROLS. NO ENGINEERING DATA, WRITTEN DESCRIPTION OR OTHER INFORMATION IS PRINTED IN THE MARGINS OF THE DRAWING.

IN THE OPINION OF THE CONTRACTING OFFICER, THE INFORMATION REGARDING THE SCANNING MODE CONTAINED IN THE TWO PAGE LETTER MERELY RESTATES THE SPECIFICATION REQUIREMENTS, RATHER THAN SUPPLYING ANY INFORMATION ON THE OPERATIONAL AND PERFORMANCE CHARACTERISTICS OF THE SUBSYSTEM. WITH RESPECT TO THE DRAWING, THE CONTRACTING OFFICER STATES "THE SKETCH WAS SO VAGUE THAT IT WAS IMPOSSIBLE TO DETERMINE ITS METHOD OF OPERATION OR THE PURPOSE OF THE INDICATED HOLES AS TO WHETHER THEY ARE INTENDED TO BE CONTROLS, LIGHTS, LEVERS, SWITCHES, KNOBS OR WHAT".

THE CONTRACTING OFFICER POINTS OUT THAT THE SCANNING SUBSYSTEM IS AN IMPORTANT COMPONENT OF THE COMPLETE INSTRUMENT, WHICH REPRESENTS A SUBSTANTIAL PORTION OF THE MACHINE'S TOTAL COST. SHE THEREFORE CONCLUDES THAT SHE IS UNABLE TO DETERMINE WHETHER AERO VAC'S INSTRUMENT IS EQUAL TO THE SPECIFIED VEECO INSTRUMENT WITHOUT INFORMATION REGARDING THE SCANNING SELECTOR'S METHOD OF OPERATION AND PERFORMANCE CHARACTERISTICS.

THE TECHNICAL PERSONNEL ASSIGNED TO EVALUATING EQUIPMENT OFFERED UNDER THIS SOLICITATION STATE THAT THEY EXPECTED A GENERAL DESCRIPTION OF THE PRINCIPLE OF OPERATION OF THE PROPOSED EQUIPMENT AND A DESCRIPTION OF ITS MAJOR ELECTRICAL ASSEMBLIES. IN THEIR OPINION, EXCEPT FOR THE SCANNER UNIT, THE INFORMATION SUPPLIED IN THE AERO VAC BROCHURE AND LETTER MET THESE CRITERIA. THIS OPINION WAS RELAYED TO YOU IN THE TELEPHONE CONVERSATION OF JUNE 19, 1968, TO WHICH YOU MAKE REFERENCE. HOWEVER, THAT CALL WAS INITIATED BY THE PROCURING ACTIVITY TECHNICAL PERSONNEL IN AN ATTEMPT TO SECURE FURTHER INFORMATION REGARDING THE SCANNING UNIT. THIS TIME IT WAS LEARNED THAT NO BROCHURE COMPARABLE TO THAT DESCRIBING THE AERO VAC MODEL 610-611 GAS ANALYZER WAS AVAILABLE FOR THE MODEL 620 SEQUENTIAL SCANNER BECAUSE THE SCANNER HAD NEVER BEEN MANUFACTURED. FACT, WHEN THE TECHNICAL PERSONNEL REQUESTED AN OPPORTUNITY TO EXAMINE A SCANNER OF THE TYPE PROPOSED, THEY WERE TOLD IT WOULD BE IMPOSSIBLE BECAUSE THE ONLY SCANNER YET ASSEMBLED WAS A PROTOTYPE MACHINE WHICH WAS NOT CONSTRUCTED IN THE COMPACT CONFIGURATION OF THE PROPOSED MODEL 620.

IT APPEARS THAT NO INFORMATION WAS FURNISHED DESCRIBING SUCH CRITICAL ASPECTS OF AERO VAC'S PROPOSED MODEL 620 SEQUENTIAL SCANNER AS ITS PRINCIPLE OF OPERATION, ITS MAJOR ELECTRICAL SUBASSEMBLIES, ITS CIRCUITRY OR ITS PERFORMANCE CHARACTERISTICS. ACCORDINGLY, WE ARE IN AGREEMENT WITH THE CONTRACTING OFFICER THAT A MERE SKETCH OF A CONTROL PANEL, INADEQUATELY LABELED, TOGETHER WITH A REITERATION OF THE WORDS OF THE PURCHASE DESCRIPTION, DOES NOT CONSTITUTE SATISFACTORY BASIS FOR MAKING THE DETERMINATION OF EQUALITY CALLED FOR UNDER THE BRAND NAME OR EQUAL PROVISION.

WITH RESPECT TO THE TELEPHONE CONVERSATION OF JUNE 18, 1968, THE TECHNICAL ADVISOR STATES THAT HE EXPRESSED SATISFACTION ONLY WITH THE BASIC GAS ANALYZER, NOT WITH THE SEQUENTIAL SCANNER. HE REMAINS OF THE OPINION THAT AERO VAC FAILED TO FURNISH ADEQUATE DESCRIPTIVE DATA WITH ITS BID RELATING TO THE SEQUENTIAL SCANNER. IN ANY CASE, THE QUESTION OF DETERMINING THE ACCEPTABILITY OF BIDS IS PRIMARILY THE FUNCTION OF THE CONTRACTING OFFICER, AND SHE FOUND YOUR BID NONRESPONSIVE. THE TECHNICAL ADVISOR'S INFORMAL ORAL COMMENTS ARE, THEREFORE, NOT DECISIVE.

BOTH ASPR 1-1206.1 (A) AND 1-1206.4 (A) PROHIBIT THE USE OF SPECIFICATIONS WHICH UNNECESSARILY FAVOR THE PRODUCT OF ONE MANUFACTURER OVER THAT OF ANOTHER. SINCE THE PURCHASE DESCRIPTION IN THE INSTANT SOLICITATION WAS FOR THE MOST PART PERFORMANCE ORIENTED, SUCH FAVORITISM WOULD APPEAR UNLIKELY. FURTHERMORE, AS THE CONTRACTING OFFICER POINTS OUT, NEITHER YOUR FIRM, NOR ANY OF THE OTHER FIRMS INVOLVED IN THIS PROCUREMENT HAVE EVEN ALLEGED THAT ANY PARTICULAR ASPECT OF THE SUBJECT PURCHASE DESCRIPTION ARBITRARILY FAVORED THE PRODUCT OF ONE MANUFACTURER OVER THE PRODUCT OF ANOTHER.

WITH RESPECT TO ASPR 2-202.5, WHICH CONCERNS THE GENERAL PROCEDURES APPLICABLE TO DESCRIPTIVE LITERATURE REQUIREMENTS, ASPR 2-202.5 (C) (3) PROVIDES THAT IN THE CASE OF BRAND NAME OR EQUAL PROCUREMENTS, THE SOLICITATION NEED ONLY SATISFY THE REQUIREMENTS OF ASPR 1-1206. THIS SECTION GOVERNING BRAND NAME OR EQUAL PROCUREMENTS CLEARLY ESTABLISHES A REQUIREMENT FOR THE SUBMISSION OF DESCRIPTIVE DATA NEEDED TO DETERMINE EQUALITY BETWEEN THE OFFERED PRODUCT AND THE NAMED PRODUCT.

WE HAVE CAREFULLY EXAMINED THE HISTORY OF THIS PROCUREMENT AND WE FIND NO BASIS FOR QUESTIONING EITHER THE REJECTION OF YOUR FIRM'S BID OR TO THE SUBSEQUENT AWARD TO VEECO INSTRUMENTS, INCORPORATED. ACCORDINGLY, YOUR PROTEST IS DENIED.