B-167016, SEPTEMBER 22, 1969, 49 COMP. GEN. 195

B-167016: Sep 22, 1969

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TECHNICALLY DEFICIENT THE DETERMINATION THAT A BID DID NOT MEET THE SPECIAL DESIGN FEATURES SPECIFIED IN AN INVITATION FOR BIDS ON CARTRIDGE TAPE EQUIPMENT SOLICITED ON A BRAND NAME OR EQUAL BASIS THAT SET FORTH THE SALIENT FEATURES OF THE BRAND NAME PURSUANT TO PARAGRAPH 1-1206.1(A) OF THE ARMED SERVICES PROCUREMENT REGULATION IS WITHIN THE JURISDICTION OF THE PROCURING ACTIVITY RESPONSIBLE FOR DRAFTING SPECIFICATIONS TO MEET THE REQUIREMENTS OF THE GOVERNMENT. A DETERMINATION THAT IS ACCEPTABLE. OR THAT THE ADMINISTRATIVE JUDGMENT IS CLEARLY AND UNMISTAKABLY IN ERROR. WHERE THE EVIDENCE SHOWS THE DESIGN FEATURES USED WERE A MATERIAL REQUIREMENT AND NOT DULY RESTRICTIVE. THE REJECTION OF THE NONCONFORMING BID WAS PROPER.

B-167016, SEPTEMBER 22, 1969, 49 COMP. GEN. 195

CONTRACTS -- SPECIFICATIONS -- RESTRICTIVE -- PARTICULAR MAKE -- TECHNICALLY DEFICIENT THE DETERMINATION THAT A BID DID NOT MEET THE SPECIAL DESIGN FEATURES SPECIFIED IN AN INVITATION FOR BIDS ON CARTRIDGE TAPE EQUIPMENT SOLICITED ON A BRAND NAME OR EQUAL BASIS THAT SET FORTH THE SALIENT FEATURES OF THE BRAND NAME PURSUANT TO PARAGRAPH 1-1206.1(A) OF THE ARMED SERVICES PROCUREMENT REGULATION IS WITHIN THE JURISDICTION OF THE PROCURING ACTIVITY RESPONSIBLE FOR DRAFTING SPECIFICATIONS TO MEET THE REQUIREMENTS OF THE GOVERNMENT, A DETERMINATION THAT IS ACCEPTABLE, NOTWITHSTANDING DIFFERENCES IN EXPERT TECHNICAL OPINIONS, ABSENT EVIDENCE OF THE ABUSE OF DISCRETION, OR THAT THE ADMINISTRATIVE JUDGMENT IS CLEARLY AND UNMISTAKABLY IN ERROR. THEREFORE, WHERE THE EVIDENCE SHOWS THE DESIGN FEATURES USED WERE A MATERIAL REQUIREMENT AND NOT DULY RESTRICTIVE, THE REJECTION OF THE NONCONFORMING BID WAS PROPER. CONTRACTS -- SPECIFICATIONS -- RESTRICTIVE -- PARTICULAR MAKE - SPECIAL DESIGN FEATURES WHERE THE CONTRACTING AGENCY IN A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION GOES BEYOND THE MAKE AND MODEL OF THE BRAND NAME AND SPECIFIES PARTICULAR DESIGN FEATURES, SUCH FEATURES MUST BE PRESUMED TO HAVE BEEN REGARDED AS MATERIAL AND ESSENTIAL TO THE NEEDS OF THE GOVERNMENT, AT LEAST AT THE TIME THE SPECIFICATIONS WERE DRAWN AND THE BIDS SOLICITED. THEREFORE, AS THE ACCEPTANCE OF A BID THAT DID NOT CONFORM TO THE MATERIAL AND ESSENTIAL DESIGN FEATURES SPECIFIED IN THE INVITATION FOR BIDS COULD ONLY BE ACCOMPLISHED BY A WAIVER OF THE ADVERTISED SPECIFICATIONS, THE ADMINISTRATIVE DETERMINATION OF BID NONRESPONSIVENESS TO THE SOLICITATION AND BIDDER INELIGIBILITY FOR AN AWARD WAS PROPER AND WILL NOT BE QUESTIONED. BIDS -- SUBMISSION -- TIME LIMITATION -- BRAND NAME OR EQUAL PROCUREMENT THE BIDDING TIME PROVIDED IN AN INVITATION FOR BIDS SOLICITING BRAND NAME OR EQUAL EQUIPMENT OF 19 CALENDAR DAYS OF 12 WORKING DAYS PURSUANT TO PARAGRAPH 2-202.1 OF THE ARMED SERVICES PROCUREMENT REGULATION THAT SPECIFIES BIDDING TIME OF NOT LESS THAN 15 DAYS FOR STANDARD COMMERCIAL ARTICLES AND NOT LESS THAN 30 CALENDAR DAYS FOR OTHER THAN SUCH ARTICLES, WAS TOO SHORT A PERIOD FOR MANUFACTURERS REQUIRED TO MODIFY THEIR STANDARD EQUIPMENT, AND A 30-DAY BIDDING PERIOD HAS BEEN RECOMMENDED FOR FUTURE USE IN INVITATIONS SOLICITING THE MODIFICATION OF BRAND NAME OR EQUAL EQUIPMENT. HOWEVER, UNDER THE CURRENT PROCUREMENT, THE SHORTER BIDDING PERIOD WAS NOT PREJUDICIAL TO A BIDDER WHO HAD HIS CONTEMPLATED EQUIPMENT MODIFICATION WAS NOT PRECLUDED FROM REQUESTING AN EXTENSION OF TIME.

TO THE SPARTA ELECTRONIC CORPORATION, SEPTEMBER 22, 1969:

REFERENCE IS MADE TO YOUR LETTERS DATED MAY 19 AND JULY 15, 1969, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. DAAG08-69-B-1421, ISSUED BY THE SACRAMENTO ARMY DEPOT ON FEBRUARY 27, 1969.

THE INVITATION REQUESTED BIDS FOR CARTRIDGE TAPE EQUIPMENT ON A BRAND NAME OR EQUAL BASIS, WHICH THE PROCURING AGENCY REPORTS WAS USED BECAUSE ADEQUATE SPECIFICATIONS WERE NOT AVAILABLE AND THE EQUIPMENT WAS NOT A RECURRING PROCUREMENT ITEM. SALIENT FEATURES OF THE BRAND NAME WERE SET FORTH IN THE SOLICITATION PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1206.1(A). AS YOU ARE AWARE, YOUR BID WAS REJECTED AS NONRESPONSIVE TO THE STATED REQUIREMENT THAT THE EQUIPMENTS' HEAD ASSEMBLIES BE MOUNTED ON MACHINED ALUMINUM CASTINGS, WHEREAS YOUR EQUIPMENT INCORPORATES SHEET METAL HEAD MOUNTING ASSEMBLIES.

ESSENTIALLY, YOUR PROTEST IS BASED ON THE GROUND THAT THE REQUIREMENT FOR A MACHINED ALUMINUM CASTING IS UNNECESSARILY RESTRICTIVE AND PROHIBITS EFFECTIVE COMPETITION.

THE REPORT TO THIS OFFICE BY THE DEPARTMENT OF THE ARMY, A COPY OF WHICH WAS PREVIOUSLY PROVIDED YOUR COMPANY, STATES THAT THE REQUIREMENT FOR A MACHINED ALUMINUM CASTING HAS BEEN DETERMINED TO BE A MINIMUM NEED OF THE GOVERNMENT. IT IS STATED THAT INEXPERIENCED MILITARY PERSONNEL WILL USE THE SUBJECT EQUIPMENT IN THE OPERATIONS OF THE ARMED FORCES RADIO AND TELEVISION (AFRT), AND PAST EXPERIENCE WITH SHEET METAL HEAD MOUNTING ASSEMBLIES IN SUCH HEAVY DUTY BROADCAST APPLICATIONS, HAS DEMONSTRATED THAT CRITICAL HEAD ADJUSTMENTS ARE NOT MAINTAINED FOR ANY PREDICTABLE PERIOD OF TIME. IT IS STATED BY THE CHIEF ENGINEER, AFRT, THAT UPON APPLYING LIGHT PRESSURE WITH ONE'S FINGER, SHEET METAL HEAD MOUNTINGS WILL FLEX CAUSING THE HEAD TO MOVE, AND IN THE DAILY USE OF SUCH EQUIPMENT THE HEADS WILL MOVE OUT OF THE REQUIRED PRECISE ALIGNMENT ORIGINALLY ESTABLISHED. THIS, IN TURN, RESULTS IN POOR FREQUENCY RESPONSE SINCE THE AZIMUTH ADJUSTMENT WILL NOT PERMIT PROPER HIGH FREQUENCY PERFORMANCE. ACCORDINGLY, IT HAS BEEN DETERMINED THAT A COMPLETELY RIGID MOUNT IS ESSENTIAL TO MAINTAIN PRECISE HEAD ADJUSTMENT OVER A LONG PERIOD OF TIME TO INSURE PROFESSIONAL PERFORMANCE ON A DAY-TO-DAY BASIS. IT IS STATED THAT THE HEAD READJUSTMENT PROBLEM HAS NEVER OCCURRED WITH THE SAME INEXPERIENCED PERSONNEL IN USING MACHINED CAST ALUMINUM HEAD MOUNTING ASSEMBLIES AND THAT THIS HAS RESULTED IN CONSIDERABLE SAVING TO THE GOVERNMENT IN MAINTENANCE TIME, LOSS OF RECORDED PROGRAM TIME AND LOSS OF PRE-RECORDED BASE ANNOUNCEMENTS.

WHILE BOTH THE PROCUREMENT PERSONNEL AND AFRT ENGINEERS COULD IDENTIFY ONLY ONE BRAND NAME ITEM WHICH WOULD SATISFY THE REQUIREMENT, SOLICITATIONS WERE ISSUED TO ALL KNOWN POSSIBLE SOURCES OF SUPPLY IN AN ATTEMPT TO OBTAIN COMPETITION. IT WAS BELIEVED THAT MANUFACTURERS WILLING TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT AS SPECIFIED IN THE INVITATION COULD HAVE FURNISHED SUCH EQUIPMENT.

THE VALIDITY OF THE DECISION BY THE GOVERNMENT'S ENGINEERS TO INSIST UPON MACHINED ALUMINUM CASTING HAS BEEN CHALLENGED BY YOUR FIRM BECAUSE, YOU STATE, MANY WELL KNOWN CARTRIDGE TAPE EQUIPMENT MANUFACTURERS UTILIZED A HEAD MOUNT THAT IS OTHER THAN A MACHINED ALUMINUM CASTING. YOU QUESTION THE ACCURACY OF THE GOVERNMENT'S STATEMENT REGARDING ITS UNFAVORABLE PAST EXPERIENCES WITH SHEET METAL HEAD MOUNTING ASSEMBLIES IN VIEW OF THE ENGINEERING AND TECHNICAL CAPABILITIES OF THE PERSONS EMPLOYED BY THE MANY FIRMS ENGAGED IN THE BROADCAST INDUSTRY. YOU ALSO POINT OUT THAT THE INSTRUCTION BOOK OF THE SUBJECT BRAND NAME MANUFACTURER STATES THAT "WITH ANY QUALITY TAPE EQUIPMENT, FREQUENT CHECKS OF HEAD ALIGNMENT, CONDITION AND CLEANLINESS ARE IMPERATIVE OF MAXIMUM PERFORMANCE AND TROUBLE-FREE OPERATION."

IN ADDITION, IT IS YOUR POSITION THAT IT IS NOT REASONABLE FOR THE GOVERNMENT TO EXPECT OTHER COMPANIES TO MODIFY THEIR EXISTING EQUIPMENTS OR TO SUPPLY EQUIPMENT WITH A MACHINED ALUMINUM CASTING HEAD MOUNT. YOU STATE THAT SUCH CASTINGS ARE NOT COMMERCIALLY AVAILABLE AND THAT A MANUFACTURER WOULD BE REQUIRED TO SPEND CONSIDERABLE TIME AND EXPENSE IN: (1) ENGINEERING A CAST ALUMINUM HEAD MOUNT; (2) SEEKING QUOTATIONS ON SUCH A DESIGN; (3) INCURRING EXPENSES FOR TOOLING- NORMALLY IN THE $300 TO $500 RANGE; (4) PROCURING A SMALL NUMBER OF SUCH CASTINGS, WHICH IS NOT ECONOMICALLY FEASIBLE.

IN THE PAST OUR OFFICE HAS HAD OCCASION TO CONSIDER SIMILAR PROTESTS AND WE HAVE OBSERVED THAT THE DRAFTING OF PROPER SPECIFICATIONS, INCLUDING THE USE OF "BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS, TO MEET THE REQUIREMENTS OF THE GOVERNMENT, AND THE FACTUAL DETERMINATION AS TO WHETHER ANY PRODUCT OFFERED THEREUNDER CONFORMS TO THE SPECIFICATIONS, ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING ACTIVITY. COMP. GEN. 409 (1968) AND B-165131, OCTOBER 9, 1968. WE DO NOT UNDERTAKE TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE AGENCY IN THE ABSENCE OF A CLEAR SHOWING OF ABUSE OF THE DESCRETION PERMITTED IT, AND AS A MATTER OF POLICY, WE WILL ACCEPT THE JUDGMENT OF THE TECHNICAL PERSONNEL OF THE AGENCY INVOLVED WHERE THERE IS A DIFFERENCE OF EXPERT TECHNICAL OPINION, UNLESS SUCH JUDGMENT IS SHOWN TO BE CLEARLY AND UNMISTAKABLY IN ERROR. COMP. GEN. 35 (1960) AND 48 COMP. GEN. 62 (1968).

WITH RESPECT TO BRAND NAME OR EQUAL PROCUREMENTS, ARMED SERVICES PROCUREMENT REGULATION 1-1206.1(A), PROVIDES, IN PERTINENT PART, THAT PURCHASE DESCRIPTIONS SHALL NOT BE WRITTEN SO AS TO SPECIFY A PRODUCT, OR A PARTICULAR FEATURE OF A PRODUCT, PECULIAR TO ONE MANUFACTURER AND THEREBY PRECLUDE CONSIDERATION OF A PRODUCT MANUFACTURED BY ANOTHER COMPANY, UNLESS IT IS DETERMINED THAT THE PARTICULAR FEATURE IS ESSENTIAL TO THE GOVERNMENT'S REQUIREMENTS, AND THAT SIMILAR PRODUCTS OF OTHER COMPANIES LACKING THE PARTICULAR FEATURE WOULD NOT MEET THE MINIMUM REQUIREMENTS FOR THE ITEM. WHILE, GENERALLY, THE MINIMUM ACCEPTABLE PURCHASE DESCRIPTION IS THE IDENTIFICATION OF A REQUIREMENT BY USE OF BRAND NAME FOLLOWED BY THE WORDS "OR EQUAL," ASPR 1-1206.1(B) PROVIDES IN PERTINENT PART, THAT THE WORDS "OR EQUAL" SHOULD NOT BE ADDED WHEN IT HAS BEEN DETERMINED THAT ONLY A PARTICULAR PRODUCT MEETS THE ESSENTIAL REQUIREMENTS OF THE GOVERNMENT.

IN THE PRESENT CASE WE ARE UNABLE TO SAY THAT THE AGENCY'S REQUIREMENT FOR A MACHINED ALUMINUM CASTING WAS ERRONEOUS SINCE, BASED UPON REPORTED ACTUAL PAST EXPERIENCE WITH EQUIPMENTS INCORPORATING THIS FEATURE, AS WELL AS OTHERS HAVING THE FEATURES OFFERED IN YOUR EQUIPMENT, THERE APPEARS TO BE A REASONABLE BASIS FOR THE REQUIREMENT. WE THEREFORE CONCLUDE THAT THE REQUIREMENT WAS MATERIAL AND NOT UNDULY RESTRICTIVE. MOREOVER, SINCE IT WAS BELIEVED THAT MANUFACTURERS WILLING TO MEET THIS REQUIREMENT COULD HAVE FURNISHED COMPLYING EQUIPMENT AND THERE IS NO EVIDENCE TO SUGGEST THE POSSESSION OF CONTRARY INFORMATION BY THE PROCURING ACTIVITY, WE HAVE NO OBJECTION TO THE ATTEMPT TO OBTAIN COMPETITION EVEN THOUGH, IN THE FINAL ANALYSIS, IT WAS A FUTILE ATTEMPT.

WHERE, AS HERE, THE CONTRACTING AGENCY, IN A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION, GOES BEYOND THE MAKE AND MODEL OF THE BRAND NAME AND SPECIFIES PARTICULAR DESIGN FEATURES, WE HAVE HELD THAT SUCH FEATURES MUST BE PRESUMED TO HAVE BEEN REGARDED AS MATERIAL AND ESSENTIAL TO THE NEEDS OF THE GOVERNMENT, AT LEAST AT THE TIME THE SPECIFICATIONS WERE DRAWN AND BIDS SOLICITED. IN THIS INSTANCE IT IS NOT MERELY A PRESUMPTION BUT AN UNQUALIFIED ADMINISTRATIVE DETERMINATION. SINCE THE EQUIPMENT OFFERED IN YOUR BID DID NOT CONFORM TO A DESIGN FEATURE SPECIFIED TO BE MATERIAL AND ESSENTIAL, IT WAS NOT EQUAL IN ALL MATERIAL RESPECTS AND THE ACCEPTANCE OF YOUR BID COULD ONLY HAVE BEEN ACCOMPLISHED BY A WAIVER OF THE ADVERTISED SPECIFICATIONS. SINCE THIS ACTION WOULD HAVE BEEN PATENTLY IMPROPER UNDER LONG ESTABLISHED RULES GOVERNING THE ADVERTISED PROCUREMENT OF SUPPLIES, WE ARE OF THE OPINION THAT THE CONTRACTING OFFICER'S DETERMINATION THAT YOUR BID WAS NOT RESPONSIVE TO THE SOLICITATION--AND WAS THEREFORE INELIGIBLE FOR AWARD--WAS PROPER, AND NOT SUBJECT TO QUESTION BY OUR OFFICE.

WE ALSO NOTE THAT YOUR LETTER OF JULY 15, 1969, TAKES THE POSITION THAT THE PERIOD OF TIME BETWEEN THE DATE OF DISTRIBUTION OF THE SOLICITATION AND THE DATE SET FOR OPENING OF BIDS, THAT IS, THE BIDDING TIME, WAS INSUFFICIENT FOR PREPARING A BID WHICH REQUIRED A MODIFICATION TO STANDARD EQUIPMENT.

THE BIDDING TIME PROVIDED IN THE SUBJECT SOLICITATION WAS 19 CALENDAR DAYS OR 12 WORKING DAYS. IN THIS REGARD ASPR 2-202.1 PROVIDES THAT, AS A GENERAL RULE, BIDDING TIME SHALL NOT BE LESS THAN 15 CALENDAR DAYS WHEN PROCURING STANDARD COMMERCIAL ARTICLES AND NOT LESS THAN 30 CALENDAR DAYS WHEN PROCURING OTHER THAN STANDARD COMMERCIAL ARTICLES. INASMUCH AS THE ARMY ATTEMPTED TO OBTAIN COMPETITION FROM MANUFACTURES WHO MIGHT HAVE BEEN REQUIRED TO MODIFY THEIR STANDARD EQUIPMENT, WE BELIEVE A 30-DAY BIDDING TIME SHOULD HAVE BEEN ALLOWED HERE. NEVERTHELESS, WE DO NOT FEEL YOU WERE PREJUDICED BY THE SHORTENED BIDDING TIME SINCE YOU DID NOT CONSIDER THE EXPRESSLY REQUIRED MODIFICATION TO YOUR STANDARD EQUIPMENT TO BE ECONOMICALLY FEASIBLE FOR THE SMALL NUMBER OF UNITS INVOLVED. ADDITION, WE KNOW OF NO REASON WHICH WOULD HAVE PRECLUDED YOU FROM REQUESTING A TIME EXTENSION FROM THE CONTRACTING OFFICER IF YOU INTENDED TO UNDERTAKE THE REQUIRED MODIFICATION. IN THIS REGARD, HOWEVER, WE HAVE RECOMMENDED TO THE SECRETARY OF THE ARMY BY LETTER OF TODAY THAT HE TAKE APPROPRIATE ACTION TO INSURE A MINIMUM 30-DAY BIDDING PERIOD IN FUTURE BRAND NAME OR EQUAL PROCUREMENTS WHEREIN MODIFICATIONS TO MANUFACTURER'S STANDARD EQUIPMENT MAY BE REQUIRED TO MEET SPECIFICATION REQUIREMENTS.

FOR THE REASONS STATED, YOUR PROTEST MUST BE DENIED.