B-167648(1), DEC. 17, 1969

B-167648(1): Dec 17, 1969

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IS DENIED PROTEST SINCE FAILURE TO PROVIDE INFORMATION AS TO HOW MODIFICATIONS PROPOSED IN STATEMENT OF COMPLIANCE WERE TO BE ACCOMPLISHED TO MEET CERTAIN SALIENT FEATURE REQUIREMENTS. SINCE RESPONSIBILITY FOR TECHNICAL EVALUATION OF BIDS OR PROPOSALS IS CONSIDERED TO REST PRIMARILY WITH CONTRACTING AGENCY. TO EDO WESTERN CORPORATION: REFERENCE IS MADE TO YOUR LETTER AND TELEGRAM DATED AUGUST 6. UNIT AND TOTAL PRICES WERE TO BE QUOTED ON 93 CLOSED CIRCUIT TELEVISION CAMERAS. THE ITEM DESCRIPTION INCLUDED REFERENCE TO THE 18 SALIENT FEATURES OF THE DESIRED TYPE OF CAMERA WHICH WERE DESCRIBED AT PAGES 5 AND 6 OF THE INVITATION. THE PURCHASING ACTIVITY IS NOT RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH IS NOT IDENTIFIED IN THE BID AND REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY.

B-167648(1), DEC. 17, 1969

SPECIFICATIONS--RESTRICTIVE--PARTICULAR MAKE--TECHNICALLY DEFICIENT UNDER COAST GUARD INVITATION FOR "BRAND NAME OR EQUAL" TV CAMERAS AND PARTS, REJECTED LOW BIDDER WHO FAILED TO SUBMIT ANY EVIDENCE THAT OFFERED EQUIPMENT, AS MODIFIED, WOULD MEET PURCHASE DESCRIPTION, IS DENIED PROTEST SINCE FAILURE TO PROVIDE INFORMATION AS TO HOW MODIFICATIONS PROPOSED IN STATEMENT OF COMPLIANCE WERE TO BE ACCOMPLISHED TO MEET CERTAIN SALIENT FEATURE REQUIREMENTS, RENDERED PROTESTANT'S BID NONRESPONSIVE. SINCE RESPONSIBILITY FOR TECHNICAL EVALUATION OF BIDS OR PROPOSALS IS CONSIDERED TO REST PRIMARILY WITH CONTRACTING AGENCY, ITS DETERMINATION GOVERNS, ABSENT CLEAR SHOWING OF IMPROPRIETY OR GROSS ERROR.

TO EDO WESTERN CORPORATION:

REFERENCE IS MADE TO YOUR LETTER AND TELEGRAM DATED AUGUST 6, 1969, AND TO SUBSEQUENT CORRESPONDENCE, PROTESTING THE REJECTION OF YOUR LOW BID AND THE AWARD OF A CONTRACT ON AUGUST 4, 1969, TO THE LINK DIVISION OF SINGER- GENERAL PRECISION, INCORPORATED, BINGHAMTON, NEW YORK, FOR DELIVERY OF 93 PORTABLE TELEVISION CAMERAS, SPARE PARTS AND MANUALS, PURSUANT TO AN INVITATION FOR BIDS (SOLICITATION NO. CG-93, 840-A), ISSUED ON APRIL 16, 1969, BY THE UNITED STATES COAST GUARD.

UNDER THE BASIC ITEM NO. 1 OF THE INVITATION FOR BIDS, UNIT AND TOTAL PRICES WERE TO BE QUOTED ON 93 CLOSED CIRCUIT TELEVISION CAMERAS, MARYLAND TELECOMMUNICATIONS MODEL VC-21, OR EQUAL. THE ITEM DESCRIPTION INCLUDED REFERENCE TO THE 18 SALIENT FEATURES OF THE DESIRED TYPE OF CAMERA WHICH WERE DESCRIBED AT PAGES 5 AND 6 OF THE INVITATION. AS REQUIRED IN CASES OF SUCH NATURE, THE INVITATION INCORPORATED THE BRAND NAME OR EQUAL CLAUSE SET FORTH IN SECTION 1 1.307-6 (A) OF THE FEDERAL PROCUREMENT REGULATIONS. THE INVITATION ALSO CONTAINED A PROVISION TO THE EFFECT THAT A BID OFFERING A CAMERA, BELIEVED BY THE BIDDER TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE SPECIFIED MODEL VC-21, WOULD BE CONSIDERED NONRESPONSIVE UNLESS ACCOMPANIED BY THE INFORMATION AND DATA REQUIRED UNDER THE BRAND NAME OR EQUAL CLAUSE, WHICH STATES IN PART AS FOLLOWS:

"* * * CAUTION TO BIDDERS. THE PURCHASING ACTIVITY IS NOT RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH IS NOT IDENTIFIED IN THE BID AND REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. ACCORDINGLY, TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE BIDDER MUST FURNISH AS A PART OF HIS BID 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 REQUIREMENTS OF THE INVITATION FOR BIDS AND (II) ESTABLISH EXACTLY WHAT THE BIDDER 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.

"(2) IF THE BIDDER PROPOSES TO MODIFY A PRODUCT SO AS TO MAKE IT CONFORM TO THE REQUIREMENTS OF THE INVITATION FOR BIDS, HE SHALL (I) INCLUDE IN HIS BID A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS AND (II) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS.

"(3) MODIFICATIONS PROPOSED AFTER BID OPENING TO MAKE A PRODUCT CONFORM TO A BRAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BIDS WILL NOT BE CONSIDERED."

FOURTEEN BIDS WERE RECEIVED AND OPENED, AS SCHEDULED, ON MAY 20, 1969. THE ITEM NO. 1 UNIT PRICE QUOTATIONS RANGED FROM $884 TO $3,245 AND THE LOWEST PRICE WAS QUOTED BY YOUR COMPANY. THE NEXT LOWEST PRICE OF $1,398.47 WAS QUOTED BY THE LINK DIVISION OF SINGER-GENERAL PRECISION, INCORPORATED, AND THE SEVENTH LOWEST PRICE OF $1,895 WAS QUOTED BY THE MARYLAND TELECOMMUNICATIONS DIVISION OF KMS INDUSTRIES, INCORPORATED, COCKEYSVILLE, MARYLAND, BASED ON THE FURNISHING OF THE SPECIFIED MODEL VC- 21 MANUFACTURED BY THAT COMPANY. YOUR BID WAS BASED ON FURNISHING YOUR "REMOTE CONTROL INDUSTRIAL T. V. CAMERA, MODEL 9111." THE LINK DIVISION OF SINGER-GENERAL PRECISION OFFERED THE SINGER-GENERAL "PRECISION 1000 TELEVISION CAMERA." IN BOTH OF THE LATTER CASES THE BIDDERS PROPOSED TO MODIFY THE PRODUCTS OFFERED TO COMPLY WITH ALL OF THE 18 SALIENT FEATURE REQUIREMENTS OF THE INVITATION FOR BIDS.

MARYLAND COMMUNICATIONS ALSO PROTESTED THE AWARD TO THE LINK DIVISION AND WE RECEIVED A REPORT DATED OCTOBER 23, 1969, FROM THE UNITED STATES COAST GUARD, EXPRESSING CONCURRENCE WITH THE POSITION TAKEN BY THE CONTRACTING OFFICER IN HIS SEPARATE REPORTS REGARDING THE PROTESTS OF MARYLAND COMMUNICATIONS AND YOUR COMPANY.

THE CONTRACTING OFFICER'S REPORT ON YOUR PROTEST STATES THAT THE BASIS FOR REJECTION OF YOUR BID IS AS FOLLOWS:

"(A) THE BLUE PRINTED FOLDER ENTITLED 'INTEGRATED INDUSTRIAL TELEVISION' DOES NOT PERTAIN TO THE DESIRED PRODUCT.

"(B) THE 'SPEC SHEET' TC-1 PERTAINS TO THEIR MODEL 9100 WHICH WOULD NOT MEET THE SALIENT FEATURES WITHOUT EXCESSIVE MODIFICATION.

"(C)THE STATEMENT OF COMPLIANCE WITH SALIENT FEATURES REQUIREMENT (SQ 8885) INDICATES THAT MODIFICATIONS WOULD BE MADE TO MEET REQUIREMENTS NO. 4, 7, 8, AND 17; HOWEVER, NO DESCRIPTION OF THE NECESSARY MODIFICATIONS WAS PROVIDED FOR EVALUATION.

"(D)THERE WAS NO DATA SUBMITTED AS EVIDENCE TO ENABLE A TECHNICAL EVALUATION TO BE MADE THAT THE EQUIPMENT AS MODIFIED WOULD MEET THE REQUIREMENTS OF THE PURCHASE DESCRIPTION.

"(E) THE NECESSARY MODIFICATIONS WOULD HAVE BEEN SO EXTENSIVE THAT ACHIEVEMENT OF UNCHANGED PARAMETERS WOULD BE VERY QUESTIONABLE.

YOU INDICATED IN YOUR LETTER OF AUGUST 6, 1969, THAT YOU HAD RECEIVED AWARDS OF THREE NAVY CONTRACTS WHERE NOTHING MORE THAN STATEMENTS OF COMPLIANCE SIMILAR TO THE ONE HERE INVOLVED WERE SUBMITTED WITH YOUR BIDS ON PRODUCTS WHICH YOU CONSIDERED TO BE EQUAL TO THE SPECIFIED "BRAND NAME" ITEMS OF EQUIPMENT. YOU ALSO INDICATED YOUR ASSUMPTION THAT, IF THE UNITED STATES COAST GUARD BELIEVED THE MATERIAL SUBMITTED WITH YOUR BID WAS INADEQUATE TO DETERMINE THE QUESTION OF EQUALITY, A REQUEST WOULD BE MADE FOR CLARIFICATION OF THE TECHNICAL ASPECTS OF YOUR BID.

THE NAVY CONTRACTING OFFICERS MAY HAVE BEEN IN A POSITION MORE READILY TO DETERMINE THE ACCEPTABILITY OF YOUR OFFERED PRODUCTS BECAUSE OF INFORMATION ALREADY AVAILABLE TO THEM CONCERNING SUCH PRODUCTS. IN ANY EVENT, IT IS THE RESPONSIBILITY OF EACH GOVERNMENT CONTRACTING AGENCY TO DETERMINE FOR ITSELF WHETHER AN OFFERED PRODUCT WILL MEET ITS PARTICULAR NEEDS AND, WHEN A BIDDER HAS SUBMITTED WHAT APPEARS TO BE AN UNRESPONSIVE BID, A REQUEST FOR VERIFICATION THEREOF IN ANY MATERIAL RESPECT WOULD BE CONTRARY TO ONE OF THE ESTABLISHED PRINCIPLES OF COMPETITIVE BIDDING ON PUBLIC CONTRACTS THAT A BID MAY NOT BE CHANGED AFTER PUBLIC OPENING. SEE 17 COMP. GEN. 554, 558, 559 (1938).

NO SPECIFIC INFORMATION OR DATA REGARDING YOUR OFFERED MODEL NO. 9111 WAS SUBMITTED WITH YOUR BID OTHER THAN CERTAIN DETAILS INCLUDED IN THE SPECIFICATION SHEET REGARDING YOUR MODEL NO. 9100 AND THE BRIEF DESCRIPTION OF YOUR MODEL NO. 9111, WHICH APPEARS AT THE SECOND PAGE OF THE BLUE PRINTED FOLDER, ENTITLED "INTEGRATED INDUSTRIAL TELEVISION." THE MODEL NO. 9111 IS THERE DESCRIBED AS A SHORT VERSION OF YOUR MODEL NO. 9100, SPECIFICALLY DESIGNED FOR AREAS VERSION OF YOUR MODEL NO. 9100, SPECIFICALLY DESIGNED FOR AREAS WHERE SPACE IS AT A PREMIUM, AND THE CONTRACTING OFFICER CONSIDERED THAT THE MODEL NO. 9100 WOULD NOT MEET THE SPECIFIED SALIENT FEATURE REQUIREMENTS WITHOUT SUBSTANTIAL MODIFICATION. YOU PROPOSED IN YOUR STATEMENT OF COMPLIANCE TO MODIFY THE MODEL NO. 9111 TO MEET SALIENT FEATURE REQUIREMENTS NOS. 4, 7, 8 AND 17, INVOLVING THE FACTORS OF HORIZONTAL RESOLUTION, SENSITIVITY, SWEEP LINEARITY AND AUTOMATIC LIGHT COMPENSATION, BUT NO DETAILS WERE FURNISHED AS TO HOW SUCH MODIFICATIONS WERE TO BE ACCOMPLISHED. THE FAILURE TO PROVIDE SUCH INFORMATION WAS CONTRARY TO THE PROVISIONS OF THE BRAND NAME OR EQUAL CLAUSE ALREADY QUOTED AND RENDERED YOUR BID NONRESPONSIVE.

IT HAS BEEN THE POSITION OF OUR OFFICE THAT THE RESPONSIBILITY FOR TECHNICAL EVALUATION OF BIDS OR PROPOSALS RESTS PRIMARILY WITH THE CONTRACTING AGENCY AND SUCH DETERMINATIONS GOVERN IN THE ABSENCE OF A CLEAR SHOWING OF IMPROPRIETY OR GROSS ERROR. THE RECORD OF THIS CASE CONTAINS NOTHING TO INDICATE THAT THE CONTRACTING OFFICER DID NOT EXERCISE REASONABLE JUDGMENT IN DETERMINING THAT YOUR BID SHOULD BE REJECTED, AND IN DETERMINING THAT THE OFFERED MODIFIED PRODUCT OF SINGER-GENERAL PRECISION, INCORPORATED, WOULD MEET THE SALIENT FEATURE REQUIREMENTS AND OTHERWISE QUALIFY AS AN ACCEPTABLE PRODUCT SO FAR AS THE PARTICULAR NEEDS OF THE UNITED STATES COAST GUARD WERE CONCERNED.