B-167057, JUL. 23, 1969

B-167057: Jul 23, 1969

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DETERMINATION THAT PROTESTANT'S "OR EQUAL" PRODUCT DID NOT CONFORM TO THE SPECIFICATIONS IS WITHIN PROVINCE OF ADMINISTRATIVE AGENCY. A BIDDER WHO HAS BID DETERMINED NONRESPONSIVE ON BASIS OF INFORMATION SUBMITTED WITH BID SHOULD NOT HAVE BEEN REQUESTED TO FURNISH CLARIFYING INFORMATION. TO TELESCIENCES INC.: REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 27 AND LETTERS OF MAY 29 AND JUNE 26. THE BRAND NAME ITEM WAS IDENTIFIED AS THE DIT-MCO MODEL 660. SALIENT CHARACTERISTICS OF THE CIRCUIT ANALYZER SYSTEM REQUIRED WERE LISTED AND SHOWN IN SECTION 2 OF THE INVITATION. BIDDERS WERE ADVISED BY THE "BRAND NAME OR EQUAL" CLAUSE TO FURNISH DESCRIPTIVE LITERATURE AS PART OF THEIR BIDS IF THEY PROPOSE TO FURNISH AN "EQUAL" PRODUCT.

B-167057, JUL. 23, 1969

BID PROTEST - BRAND NAME OR EQUAL DECISION TO TELESCIENCES, INC., DENYING PROTEST AGAINST REJECTION OF BID AS NONRESPONSIVE AND AWARD TO HUGHES AIRCRAFT CO. FOR FURNISHING CIRCUIT ANALYZER SYSTEM FOR NAVY AVIONICS FACILITY UNDER "BRAND NAME OR EQUAL" INVITATION. DETERMINATION THAT PROTESTANT'S "OR EQUAL" PRODUCT DID NOT CONFORM TO THE SPECIFICATIONS IS WITHIN PROVINCE OF ADMINISTRATIVE AGENCY. A BIDDER WHO HAS BID DETERMINED NONRESPONSIVE ON BASIS OF INFORMATION SUBMITTED WITH BID SHOULD NOT HAVE BEEN REQUESTED TO FURNISH CLARIFYING INFORMATION.

TO TELESCIENCES INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 27 AND LETTERS OF MAY 29 AND JUNE 26, 1969, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE HUGHES AIRCRAFT COMPANY UNDER INVITATION FOR BIDS NO. N00163-69-B-0629, ISSUED BY THE NAVAL AVIONICS FACILITY, INDIANAPOLIS, INDIANA.

THE INVITATION, ISSUED ON FEBRUARY 27, 1969, WITH SUBSEQUENT AMENDMENTS, SOLICITED BIDS FOR THE FURNISHING OF ONE CIRCUIT ANALYZER SYSTEM (ITEM NO. 1) ON A "BRAND NAME OR EQUAL" BASIS, INCLUDING VENDOR ASSISTANCE IN PERFORMANCE OF ACCEPTANCE TESTING. THE BRAND NAME ITEM WAS IDENTIFIED AS THE DIT-MCO MODEL 660, OR EQUAL. ITEM NO. 2 OF THE INVITATION CALLED FOR A TRAINING CLASS ON ITEM NO. 1. SALIENT CHARACTERISTICS OF THE CIRCUIT ANALYZER SYSTEM REQUIRED WERE LISTED AND SHOWN IN SECTION 2 OF THE INVITATION. BIDDERS WERE ADVISED BY THE "BRAND NAME OR EQUAL" CLAUSE TO FURNISH DESCRIPTIVE LITERATURE AS PART OF THEIR BIDS IF THEY PROPOSE TO FURNISH AN "EQUAL" PRODUCT.

BIDS WERE RECEIVED FROM FIVE FIRMS BY THE OPENING DATE OF APRIL 23, 1969, WITH THE FOLLOWING COMPARATIVE PRICES:

ITEM

BIDDER 1 2 TOTAL

ELECTRONIC SYSTEMS AND

PROGRAMMING, INC. $119,500 NC $119,500

TELESCIENCES INC. 128,000 NC 128,000

HUGHES AIRCRAFT COMPANY 133,000 NC 133,000

DIT-MCO INTERNATIONAL,

DIV. OF XEBEC CORP. 138,345 NO 138,345

MICRO METRICS, INC. 192,950 NO 192,950

IT IS REPORTED THAT THE BID OF ELECTRONIC SYSTEMS WAS NONRESPONSIVE SINCE IT COULD NOT BE DETERMINED BY TECHNICAL REVIEW OF THE LITERATURE SUBMITTED WITH ITS BID WHETHER THE PRODUCT OFFERED WAS EQUAL TO THE BRAND NAME MODEL SPECIFIED AND PARTICULARLY THE STATED SALIENT CHARACTERISTICS. IT IS FURTHER REPORTED THAT AWARD WAS NOT MADE TO YOUR FIRM SINCE YOUR OFFERED PRODUCT, THE OMNI-TESTER MODEL 1100, DID NOT CONFORM TO THE INVITATION SPECIFICATIONS. ACCORDINGLY, THE CONTRACTING OFFICER REJECTED YOUR BID AS NONRESPONSIVE TO THE INVITATION AND AWARDED THE CONTRACT TO THE HUGHES AIRCRAFT COMPANY ON MAY 20, 1969.

BY TELEGRAM DATED MAY 27 AND LETTER OF MAY 29, 1969, TO OUR OFFICE, YOU PROTESTED THE REJECTION OF YOUR BID ON THE BASIS THAT YOUR OMNI TESTER MODEL 1100 IS EQUIVALENT OR SUPERIOR TO THE DIT-MCO 660 MODEL. YOU ALSO REQUESTED TO BE ADVISED OF THE SPECIFIC REASONS FOR THE REJECTION OF YOUR PROPOSED EQUIPMENT. ALSO, IN YOUR LETTER OF JUNE 26, 1969, YOU CONTEND THAT THE CONTRACTING OFFICER SHOULD HAVE CONTACTED YOU AFTER BID OPENING FOR ANY INFORMATION NEEDED TO EVALUATE YOUR BID. YOU REFER TO AN EXCERPT FROM A LETTER DATED MARCH 13, 1969, ACCOMPANYING YOUR BID, READING AS FOLLOWS:

"WE WISH TO EMPHASIZE THAT OUR BID IS INTENDED TO BE ENTIRELY RESPONSIVE TO THE IFB. SHOULD THERE BE ANY QUESTIONS, OR NEED FOR CLARIFICATION, WE WOULD BE PLEASED TO FURNISH ADDITIONAL INFORMATION.' BASED ON THE FOREGOING, YOU REQUEST THAT THE CONTRACT AWARDED TO HUGHES BE CANCELED AND PLACED WITH YOUR FIRM.

WITH REGARD TO YOUR FIRST CONTENTION, OUR OFFICE FURNISHED YOU WITH A COPY OF THE PROCURING AGENCY'S TECHNICAL EVALUATION WHICH WAS THE BASIS OF THE NONRESPONSIVENESS DETERMINATION. THE EVALUATION SHOWED THAT YOUR "EQUAL" PRODUCT DID NOT CONFORM TO THE SPECIFICATIONS STATED IN THE INVITATION. WHILE YOU DISAGREE WITH THE TECHNICAL ASPECTS OF THE EVALUATION, WE MAY NOT CONCLUDE THAT THE REJECTION OF YOUR BID WAS IMPROPER. IN THIS REGARD, IN OUR DECISION B-139830, AUGUST 19, 1959, WE MADE THE FOLLOWING OBSERVATION:

"THIS OFFICE HAS NEITHER AN ENGINEERING STAFF NOR A TESTING LABORATORY TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATIONS. MOREOVER, IN DISPUTES OF FACT BETWEEN A PROTESTANT AND A GOVERNMENT AGENCY, WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT. WHETHER A PARTICULAR BID IS RESPONSIVE TO THE TECHNICAL DETAILS OF THE SPECIFICATIONS IS NOT A MATTER, ORDINARILY, FOR OUR DETERMINATION. * * *" ALSO, IN DECISION B-143389, AUGUST 26, 1960, WE STATED THAT:

"THE QUESTION AS TO THE ACTION, IF ANY, WHICH OUR OFFICE SHOULD TAKE IN CASES INVOLVING THE EVALUATION OF TECHNICAL REQUIREMENTS OF SPECIFICATIONS, ETC., HAS BEEN THE SUBJECT OF A NUMBER OF DECISIONS BY OUR OFFICE. YOUR PROTEST IS BASED UPON SUCH AN EVALUATION. OF NECESSITY, OUR OFFICE HAS ESTABLISHED A RULE GOVERNING SUCH SITUATIONS. IN A DECISION DATED JANUARY 8, 1938, TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, PUBLISHED AT 17 COMP. GEN. 554, 557, WE SET FORTH THE FOLLOWING RULE WHICH WE CONSIDER TO BE CONTROLLING IN THE INSTANT MATTER:

"-IT IS IN THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THOSE SPECIFICATIONS. * * *- WE FEEL THAT THE FOREGOING IS EQUALLY APPLICABLE HERE. SEE 45 COMP. GEN. 815.

WITH REGARD TO YOUR SECOND CONTENTION PRESENTED IN YOUR LETTER OF JUNE 26, 1969, THE INVITATION, AT PAGE 34, CONTAINED THE STANDARD "BRAND NAME OR EQUAL" CLAUSE PRESCRIBED BY PARAGRAPH 1-1206.3 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS: "8.4 - BRAND NAME OR EQUAL - ASPR 1-1206.3 (B) (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, REQUEST FOR PROPOSALS AND/OR REQUEST FOR QUOTATIONS HAVE BEEN IDENTIFIED IN THE SCHEDULE BY A -BRAND NAME OR EQUAL- DESCRIPTION, SUCH IDENTIFICATION IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WILL BE SATISFACTORY. IFB/RFP/RFQ OFFERING -EQUAL- PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE IFB/RFP/RFQ AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE IFB/RFP/RFQ.

"/C) (1) IF THE BIDDER OR OFFEROR 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 IFB/RFP/RFQ, OR SUCH PRODUCT SHALL BE OTHERWISE CLEARLY IDENTIFIED IN THE IFB/RFP/RFQ. THE EVALUATION OF THE IFB/RFP/RFQ 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 OFFEROR OR IDENTIFIED IN HIS IFB/RFP/RFQ, AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. CAUTION TO BIDDERS OR OFFERORS. THE PURCHASING ACTIVITY IS NOT RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH IS NOT IDENTIFIED IN THE IFB/RFP/RFQ AND REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. ACCORDINGLY, TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE BIDDER OR OFFEROR MUST FURNISH AS A PART OF HIS IFB/RFP/RFQ 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 REQUIREMENT OF THE IFB/RFP/RFQ; AND (II) ESTABLISH EXACTLY WHAT THE BIDDER OR OFFEROR 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.'

IN RESPONDING TO AN INVITATION EMPLOYING A BRAND NAME OR EQUAL PURCHASE DESCRIPTION, THE RESPONSIVENESS OF A BID DEPENDS NOT ON WHETHER THE BIDDER BELIEVES, OR EVEN KNOWS, THAT HIS PRODUCT IS EQUAL TO THE BRAND NAME, BUT WHETHER THE PROCURING ACTIVITY CAN SO DETERMINE FROM THE INFORMATION SUBMITTED WITH THE BID. THE ABOVE-QUOTED CLAUSE CLEARLY WARNED BIDDERS THAT THE ,EQUALITY" OF AN "EQUAL" PRODUCT WOULD BE DETERMINED ON THE BASIS OF INFORMATION FURNISHED BY THE BIDDER WITH ITS BID. YOUR BID WAS DETERMINED NONRESPONSIVE ON THE BASIS OF THE INFORMATION SUBMITTED WITH YOUR BID. WITH REGARD TO THOSE AREAS WHERE YOU FEEL THAT YOU SHOULD HAVE BEEN REQUESTED TO FURNISH CLARIFYING INFORMATION AFTER BID OPENING, THE WELL-ESTABLISHED RULE IS TO THE EFFECT THAT BIDS MUST BE EVALUATED SOLELY ON THE BASIS OF THEIR CONTENT AT THE TIME OF BID OPENING; OTHERWISE, THE COMPETITIVE BIDDING SYSTEM WOULD SOON LOSE ITS INTEGRITY BECAUSE, CONTRARY TO THE PURPOSES OF THE ADVERTISING STATUTE, THE EFFECT WOULD BE THAT BIDS COULD BE VARIED AFTER OPENING AND PRIOR TO AWARD. SEE UNITED STATES V BROOKRIDGE FARM, 111 F.2D 461; 40 COMP. GEN. 132, 134-135.

FINALLY, YOU APPEAR TO BELIEVE THAT YOUR STATEMENT IN THE COVER LETTER ACCOMPANYING YOUR BID THAT "WE WISH TO EMPHASIZE THAT OUR BID IS INTENDED TO BE ENTIRELY RESPONSIVE TO THE IFB" SHOULD BE TREATED AS AN OVERALL OFFER TO COMPLY WITH THE SPECIFICATION REQUIREMENTS SO AS TO OVERCOME ANY INADEQUACIES IN YOUR DESCRIPTIVE INFORMATION. WE THINK THAT THE QUOTED STATEMENT SHOULD BE REGARDED AS THE ASSERTION OF A CONCLUSION RATHER THAN AN OFFER TO PERFORM IN STRICT ACCORDANCE WITH THE SPECIFICATIONS NOTWITHSTANDING ANY OMISSIONS OR VARIANCES IN THE BID DATA. IN ANY EVENT, SUCH STATEMENT CANNOT OVERCOME THE FACT THAT THE OMNITESTER MODEL 1100 WAS DETERMINED TO BE NONRESPONSIVE TO THE INVITATION REQUIREMENTS AND AS NOT EQUAL TO THE BRAND NAME ITEM. 40 COMP. GEN. 132, 135.