B-165895, DEC. 8, 1969

B-165895: Dec 8, 1969

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INCORPORATED BY REFERENCE IN INVITATION FOR BIDS FOR MOBILE GENERATOR SETS AND ITEMS OFFERED WERE OTHER THAN BRAND NAME BUT ITEMS WERE TO BE IN ACCORDANCE WITH DESIGNATED SPECIFICATIONS AND DRAWINGS. SINCE ADMINISTRATIVE REPORT INDICATED THAT DESIGNATED SPECIFICATIONS AND DRAWINGS WERE IN SUCH DETAIL AS TO MAKE USE OF "OR EQUAL" PROVISION INAPPROPRIATE AND UNDER CIRCUMSTANCES FAILURE TO SUBMIT DESCRIPTIVE DATA DOES NOT JUSTIFY REJECTION OF AN OTHERWISE LOW RESPONSIVE BID FROM A RESPONSIBLE BIDDER. TO PAUL AND GORDON: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 7. THE MOBILE GENERATORS WERE TO BE MANUFACTURED IN ACCORDANCE WITH DRAWINGS 62A85-J-1. ARE ON AN -OR EQUAL- IS.'. SPACES WERE PROVIDED FOR BIDDERS TO IDENTIFY ANY PROPOSED SUBSTITUTIONS OF "EQUAL" ITEMS FOR THE BRAND NAMES CITED.

B-165895, DEC. 8, 1969

SPECIFICATIONS--RESTRICTIVE--PARTICULAR MAKE--DESCRIPTION AVAILABILITY WHERE LOW BID DID NOT INCLUDE DESCRIPTIVE LITERATURE REQUIRED BY BRAND NAME OR EQUAL CLAUSE -- ARMED SERVICES PROCUREMENT REGULATION 1 1206.3 (B) -- INCORPORATED BY REFERENCE IN INVITATION FOR BIDS FOR MOBILE GENERATOR SETS AND ITEMS OFFERED WERE OTHER THAN BRAND NAME BUT ITEMS WERE TO BE IN ACCORDANCE WITH DESIGNATED SPECIFICATIONS AND DRAWINGS, BID MAY BE PROPERLY CONSIDERED FOR AWARD, SINCE ADMINISTRATIVE REPORT INDICATED THAT DESIGNATED SPECIFICATIONS AND DRAWINGS WERE IN SUCH DETAIL AS TO MAKE USE OF "OR EQUAL" PROVISION INAPPROPRIATE AND UNDER CIRCUMSTANCES FAILURE TO SUBMIT DESCRIPTIVE DATA DOES NOT JUSTIFY REJECTION OF AN OTHERWISE LOW RESPONSIVE BID FROM A RESPONSIBLE BIDDER.

TO PAUL AND GORDON:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 7, 1969, ON BEHALF OF THE INET POWER COMPANY, GARDENA, CALIFORNIA, PROTESTING THE AWARD OF CONTRACT NO. N00600-67-C-1235, DATED MAY 17, 1967, TO THE ELECTRO POWER DIVISION OF IRWIN INDUSTRIES, INCORPORATED, GLENDALE, CALIFORNIA, PURSUANT TO ADVERTISED SOLICITATION NO. N00600-67-B-0200, ISSUED ON NOVEMBER 30, 1966, BY THE UNITED STATES NAVY PURCHASING OFFICE, AND AMENDMENTS THERETO OF DECEMBER 21, 1966, AND JANUARY 5, 1967.

THE SOLICITATION, AS AMENDED, REQUESTED BIDS UNDER LOT II ON MOBILE GENERATORS, TYPE MMG-2, INCLUDING 201 PRODUCTION MODELS AND 12 PREPRODUCTION MODELS, TOGETHER WITH SPARE PARTS, DRAWINGS AND PROVISIONING DATA. THE MOBILE GENERATORS WERE TO BE MANUFACTURED IN ACCORDANCE WITH DRAWINGS 62A85-J-1, AND SPECIFICATION XWS-5903, AS MODIFIED ON PAGES 4, 5 AND 6 OF THE SOLICITATION. PAGE 35 OF THE SOLICITATION CONTAINS A STATEMENT THAT THE ASPR (ARMED SERVICES PROCUREMENT REGULATION) CLAUSE, ENTITLED "BRAND NAME OR EQUAL," APPLIES TO THE COMPONENTS IDENTIFIED IN THE APPLICABLE SPECIFICATIONS AND DRAWINGS AS BRAND NAME "OR EQUAL" COMPONENTS, AND FURTHER STATES THAT "ALL VENDOR ITEMS IDENTIFIED ON THE DRAWINGS REFERENCED HEREIN BY BRAND NAME, ARE ON AN -OR EQUAL- IS.' SPACES WERE PROVIDED FOR BIDDERS TO IDENTIFY ANY PROPOSED SUBSTITUTIONS OF "EQUAL" ITEMS FOR THE BRAND NAMES CITED, AND BIDDERS WERE ADVISED THAT THE SALIENT CHARACTERISTICS OF THE "OR EQUAL" ITEMS ARE THAT THEY POSSESS IDENTICAL OR SUPERIOR PERFORMANCE CHARACTERISTICS AND CAN BE INSTALLED WITHOUT REDESIGN OR REWORK AND PROVIDE INTERCHANGEABILITY WITH THE SPECIFIED VENDOR ITEMS.

FOUR BIDS WERE RECEIVED AND OPENED, AS SCHEDULED, ON JANUARY 27, 1967. THE ELECTRO POWER DIVISION OF IRWIN INDUSTRIES, INCORPORATED, SUBMITTED THE LOWEST BID ON LOT II. ON PAGE 35 OF THE SOLICITATION FORM, ELECTRO POWER INDICATED WITH REGARD TO THE BRAND NAME OR EQUAL REQUIREMENTS THAT IT WAS BIDDING ON ELECTRO POWER PARTS NOS. 62A85 D156, 62A85-J70 AND 62A85 -D46, AS SUBSTITUTES RESPECTIVELY FOR AN M/G ASSEMBLY MANUFACTURED BY INET SPRAGUE, PART NO. 62A85-D156, A D.C. POWER SUPPLY MANUFACTURED BY BASSLER ELECTRIC, PART NO. 62A85-J70, AND A VOLTAGE REGULATOR MANUFACTURED BY INET SPRAGUE, PART NO. RT-200.

IN RESPONSE TO OUR REQUEST FOR AN ADMINISTRATIVE REPORT ON THIS PROTEST, THE NAVAL SUPPLY SYSTEMS COMMAND HAS FURNISHED A STATEMENT OF THE CONTRACTING OFFICER WHICH IS, IN PERTINENT PART, AS FOLLOWS:

"A -BRAND NAME OR EQUAL- PURCHASE DESCRIPTION AND THE ASPR -BRAND NAME OR EQUAL- CLAUSE ARE GENERALLY USED IN PROCURING COMMERCIAL ITEMS WHEN NO OTHER ADEQUATE SPECIFICATION OR DETAILED DESCRIPTION IS AVAILABLE (ASPR 1- 1206.1). NORMALLY THE CLAUSE IS APPLICABLE ONLY TO ITEMS OR COMPONENTS SO IDENTIFIED. IN THIS CASE THE THREE COMPONENTS LISTED BY ELECTRO POWER WERE NOT IDENTIFIED IN THE DRAWINGS AS -BRAND NAME OR EQUAL.- HOWEVER, THE DRAWING IDENTIFYING THE POWER SUPPLY, NO. 62A85-J70, IS A -SOURCE CONTROL- DRAWING WHICH LISTS A PARTICULAR VENDOR AS AN -APPROVED SOURCE.- UNDER THE SOURCE CONTROL PROCEDURES, THE CONTRACTOR MAY SUBSTITUTE AN ITEM OF A VENDOR OTHER THAN THE APPROVED SOURCE LISTED ON THE DRAWING ONLY IF QUALIFICATION TESTING IS ACCOMPLISHED AND GOVERNMENT APPROVAL IS OBTAINED. THE DRAWINGS IDENTIFYING THE MOTOR GENERATOR ASSEMBLY, NO. 62A85-D156, AND THE VOLTAGE REGULATOR ASSEMBLY, NO. 62A85-D46, DO NOT LIST APPROVED VENDORS. THEREFORE, AS DRAFTED, THE -BRAND NAME OR EQUAL- PROVISION APPEARS TO BE APPLICABLE TO THE POWER SUPPLY ASSEMBLY, BUT NOT TO THE MOTOR GENERATOR AND VOLTAGE REGULATOR ASSEMBLIES.

"A REVIEW OF THE SUBJECT SOLICITATION FILE REVEALS THAT ELECTRO POWER DID NOT PROVIDE WITH ITS BID ANY DESCRIPTIVE DATA CONCERNING THE THREE ITEMS LISTED ON PAGE 35 OF ITS BID. IN LISTING ITS FIRM NAME AND THE APPLICABLE GOVERNMENT-FURNISHED DRAWING NUMBER NEXT TO THESE THREE ITEMS, ELECTRO POWER MERELY INDICATED THAT IT WOULD MANUFACTURE THESE THREE ITEMS IN ACCORDANCE WITH THE DRAWINGS PROVIDED. WITH RESPECT TO THESE COMPONENTS, DETAILS OUTLINED IN THE DRAWINGS TOGETHER WITH THE SPECIFIED IN-PROCESS QUALITY ASSURANCE PROCEDURES, PLUS PRE-PRODUCTION AND PRODUCTION TESTING IN ACCORDANCE WITH SPECIFICATION XWS-5903, WERE CONSIDERED TO BE SUFFICIENT TO ASSURE THAT DELIVERED PRODUCTS WOULD MEET THE CONTRACT REQUIREMENTS. THEREFORE, AFTER A DETERMINATION OF RESPONSIBILITY, CONTRACT N00600-67-C-1235 WAS AWARDED TO ELECTRO POWER ON 17 MAY 1967.

"SINCE THE ITEMS IN QUESTION ARE COMMERCIAL ITEMS AND SINCE A DETAILED SPECIFICATION AND DRAWING PACKAGE DESCRIBING THE ITEMS WAS INCORPORATED IN THE SUBJECT SOLICITATION, IT IS THE OPINION OF THE CONTRACTING OFFICER THAT THE -BRAND NAME OR EQUAL- CLAUSE WAS IMPROPERLY APPLIED IN THIS PROCUREMENT. FURTHERMORE, SINCE THE EQUALITY- OF A SUBSTITUTE FOR A SOURCE CONTROL ITEM CAN BE ESTABLISHED ONLY BY QUALIFICATION TESTING, IT WOULD NOT APPEAR THAT ELECTRO POWER, OR ANY SOURCE OTHER THAN THE PREVIOUS PRODUCER, INET SPRAGUE, COULD HAVE FURNISHED ADEQUATE DATA ON THESE ITEMS IN RESPONSE TO THE -BRAND NAME OR EQUAL- CLAUSE. THEREFORE, ENFORCEMENT OF THE -BRAND NAME OR EQUAL- CLAUSE REQUIREMENT IN THIS PROCUREMENT WOULD PROBABLY HAVE RESULTED IN A FINDING THAT THE SOLICITATION WAS UNDULY RESTRICTIVE.'

YOU STATED IN YOUR LETTER OF AUGUST 7, 1969, THAT YOU HAD BEEN ADVISED BY A FORMER EMPLOYEE OF ELECTRO POWER THAT, MORE THAN 6 MONTHS AFTER CONTRACT NO. N00600-67-C-1235 HAD BEEN AWARDED TO ELECTRO POWER, THE FIRM HAD NO DRAWINGS, DATA OR MATERIALS SUFFICIENT TO BUILD THE STATED "EQUAL" COMPONENTS WHICH WERE DESIGNATED AS SUBSTITUTES FOR INET SPRAGUE PARTS NOS. 62A85-D156 AND RT-200, AND BASSLER ELECTRIC PART NO. 62A85-J70. YOU SUGGESTED THE POSSIBILITY THAT AFTER CONTRACT AWARD THE GOVERNMENT HAD FURNISHED TO ELECTRO POWER A MOBILE GENERATOR, TYPE MMG 2, WHICH ELECTRO POWER ATTEMPTED TO USE TO REVERSE ENGINEER THE "OR EQUAL" COMPONENTS WHICH IT WAS COMMITTED BY ITS BID TO SUPPLY. YOU STATED THAT THIS RAISES A VERY STRONG SUSPICION THAT ELECTRO POWER FAILED TO COMPLY WITH THE BRAND NAME OR EQUAL CLAUSE CONTAINED IN ASPR 1-1206.3 (B) WHICH WAS INCORPORATED BY REFERENCE AT PAGE 32 OF THE SOLICITATION. THAT CLAUSE REQUIRES THE FURNISHING OF DESCRIPTIVE MATERIAL NECESSARY FOR THE PURCHASING ACTIVITY TO DETERMINE WHETHER AN "OR EQUAL" PRODUCT MEETS THE REQUIREMENTS OF AN INVITATION FOR BIDS AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO URNISH; AND YOU CITED TWO OF OUR DECISIONS (B-157743, DECEMBER 7, 1965, AND B-161122, MAY 11, 1967), TO THE EFFECT THAT A BID OFFERING TO FURNISH AN "OR EQUAL" PRODUCT WOULD NOT BE RESPONSIVE UNLESS ACCOMPANIED BY SUCH REQUIRED DESCRIPTIVE MATERIAL.

AS NOTED, THE MOBILE GENERATORS WERE TO BE IN ACCORDANCE WITH DESIGNATED SPECIFICATIONS AND DRAWINGS WHICH THE ADMINISTRATIVE REPORT INDICATES WERE IN SUCH DETAIL AS TO MAKE THE USE OF THE ,OR EQUAL" PROVISION INAPPROPRIATE. WHILE WE ARE NOT IN A POSITION TO FULLY EVALUATE THE DRAWINGS AND SPECIFICATIONS FROM A TECHNICAL STANDPOINT, THE DRAWINGS PARTICULARLY APPEAR TO BE QUITE COMPLETE. WE HAVE TAKEN THE POSITION THAT WHERE THE SPECIFICATIONS ARE SO COMPREHENSIVE THAT THE ,OR EQUAL" PROVISION IS MERE SURPLUSAGE, IT MAY PROPERLY BE IGNORED. ACCORDINGLY, WE HAVE HELD IN SUCH CIRCUMSTANCES THAT THE FAILURE TO SUBMIT THE DESCRIPTIVE DATA IN CONNECTION WITH THE "OR QUAL" PROVISION DOES NOT JUSTIFY REJECTION OF THE OTHERWISE LOW RESPONSIVE BID FROM A RESPONSIBLE BIDDER. 41 COMP. GEN. 366, 370 (1961). THE SAME CONCLUSION APPLIES IN THIS CASE.

MR. GORDON WAS FURNISHED A COPY OF THE CONTRACTING OFFICER'S STATEMENT ON OCTOBER 16, 1969, AND IT WAS UNDERSTOOD AT SUCH TIME THAT ANY COMMENTS THAT YOU WISHED TO SUBMIT WITH RESPECT TO SUCH STATEMENT WOULD BE PRESENTED WITHIN A REASONABLE TIME. HOWEVER, WE HAVE NOT RECEIVED ANY FURTHER PRESENTATION FROM YOUR FIRM IN REGARD TO THE PROTEST, AND IT DOES NOT APPEAR FROM THE EXISTING RECORD THAT WE WOULD BE WARRANTED IN TAKING EXCEPTION TO THE CONTRACT WHICH WAS AWARDED TO THE ELECTRO POWER DIVISION OF IRWIN INDUSTRIES, INCORPORATED, ON THE BASIS THAT ITS BID WAS NOT RESPONSIVE.

ACCORDINGLY, THE PROTEST MADE ON BEHALF OF THE INET POWER COMPANY IS DENIED.