B-167648(2), DEC. 17, 1969

B-167648(2): Dec 17, 1969

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WAS PROPERLY REJECTED SINCE DATA FURNISHED WITH SUCCESSFUL LOWER BID OFFERING "EQUAL" PRODUCT WAS SUFFICIENT TO ESTABLISH ACCEPTED PRODUCT AS FULLY MEETING SALIENT FEATURE INVITATION REQUIREMENTS. SINCE RESPONSIBILITY FOR TECHNICAL EVALUATION OF BIDS IS CONSIDERED TO REST PRIMARILY WITH CONTRACTING AGENCY. ITS DETERMINATIONS ARE GOVERNING. WHERE INFORMATION FURNISHED BY BIDDER IS SUFFICIENT FOR COMPLETE EVALUATION OF OFFERED PRODUCT. OMISSION OF ADDITIONAL INFORMATION THAT COULD HAVE BEEN FURNISHED. INCORPORATED: REFERENCE IS MADE TO YOUR LETTER 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.

B-167648(2), DEC. 17, 1969

SPECIFICATIONS--RESTRICTIVE--PARTICULAR MAKE--SALIENT CHARACTERISTICS UNDER COAST GUARD INVITATION FOR "BRAND NAME OR EQUAL" CAMERAS, PROTESTANT'S BID, OFFERING BRAND NAME PRODUCT AT 7TH LOWEST PRICE, WAS PROPERLY REJECTED SINCE DATA FURNISHED WITH SUCCESSFUL LOWER BID OFFERING "EQUAL" PRODUCT WAS SUFFICIENT TO ESTABLISH ACCEPTED PRODUCT AS FULLY MEETING SALIENT FEATURE INVITATION REQUIREMENTS. SINCE RESPONSIBILITY FOR TECHNICAL EVALUATION OF BIDS IS CONSIDERED TO REST PRIMARILY WITH CONTRACTING AGENCY, ITS DETERMINATIONS ARE GOVERNING, ABSENT CLEAR SHOWING OF IMPROPRIETY OR GROSS ERROR. MOREOVER, WHERE INFORMATION FURNISHED BY BIDDER IS SUFFICIENT FOR COMPLETE EVALUATION OF OFFERED PRODUCT, OMISSION OF ADDITIONAL INFORMATION THAT COULD HAVE BEEN FURNISHED, DOES NOT REQUIRE BID REJECTION.

TO KMS INDUSTRIES, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 6, 1969, AND TO SUBSEQUENT CORRESPONDENCE PROTESTING 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 BIDDER 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."

PARAGRAPH (C) (1) OF THE CLAUSE ALSO CONTAINS A PROVISION TO THE EFFECT THAT, FOR BID EVALUATION PURPOSES, THE GOVERNMENT WILL CONSIDER NOT ONLY THE INFORMATION FURNISHED BY A BIDDER ON AN "OR EQUAL" PRODUCT BUT, ALSO, "OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY."

FOURTEEN BIDS WERE RECEIVED AS OF THE SCHEDULED TIME FOR OPENING OF BIDS ON MAY 20, 1969. APPARENTLY, WITH THE EXCEPTION OF YOUR COMPANY, THE BIDDERS OFFERED PRODUCTS WHICH THEY BELIEVED TO BE EQUAL TO THE SPECIFIED MARYLAND TELECOMMUNICATIONS MODEL VC-21, ON WHICH YOU QUOTED A UNIT PRICE OF $1,895. THE ITEM NO. 1 UNIT PRICES RANGED FROM $884 TO $3,245 AND YOUR OFFERED PRICE WAS THE SEVENTH LOWEST. THE LOWEST PRICE OF $884 WAS QUOTED BY THE EDO WESTERN CORPORATION, SALT LAKE CITY, UTAH. THAT BID WAS REJECTED ON THE BASIS OF A TECHNICAL EVALUATION THAT THE OFFERED PRODUCT WOULD NOT MEET THE REQUIREMENTS OF THE UNITED STATES COAST GUARD WHEN MODIFIED AS PROPOSED. THE NEXT LOWEST PRICE OF $1,398.47 WAS QUOTED BY THE LINK DIVISION OF SINGER-GENERAL PRECISION, INCORPORATED, ON THE BASIS OF FURNISHING THE SINGER-GENERAL "PRECISION 1000 TELEVISION CAMERA," AS MODIFIED TO COMPLY WITH ALL OF THE STATED SALIENT FEATURE REQUIREMENTS OF THE INVITATION FOR BIDS. THAT MODEL MODIFIED AS PROPOSED WAS FOUND TO MEET THE SPECIFICATION REQUIREMENTS AND WAS THEREFORE ACCEPTED.

TWO PROTESTS WERE RECEIVED BY OUR OFFICE IN REGARD TO THE AWARD WHICH WAS MADE TO THE SECOND LOWEST BIDDER, ONE FROM THE EDO WESTERN CORPORATION AND THE OTHER FROM YOUR COMPANY. THE CONTRACTING OFFICER'S REPORT ON YOUR PROTEST WAS DISCUSSED WITH YOUR REPRESENTATIVES AT A CONFERENCE HELD IN OUR OFFICE ON OCTOBER 28, 1969. YOUR REPRESENTATIVES WERE FURNISHED AT SUCH TIME A COPY OF THE CONTRACTING OFFICER'S REPORT AND IT WAS UNDERSTOOD THAT ANY WRITTEN COMMENTS YOU CARED TO MAKE WOULD BE SUBMITTED WITHIN A REASONABLE TIME. HOWEVER, WE HAVE NOT RECEIVED ANY FURTHER COMMUNICATION FROM YOUR COMPANY IN REGARD TO THE MATTER.

WITH RESPECT TO THE PROTEST OF MARYLAND COMMUNICATIONS, THE CONTRACTING OFFICER EXPRESSED THE OPINION THAT THE BID SUBMITTED BY THE LINK DIVISION OF SINGER-GENERAL PRECISION, INCORPORATED, WAS PROPERLY INTERPRETED AS INCLUDING THE OPTIONAL CONFIGURATIONS PERTAINING TO THE PARTICULAR SALIENT FEATURE REQUIREMENTS OF THE INVITATION FOR BIDS. HE STATES THAT THE DATA SUBMITTED BY THE LINK DIVISION, TOGETHER WITH OTHER DATA ON HAND CONCERNING THE OFFERED PRODUCT, WAS SUFFICIENT TO SHOW THE ABILITY OF THE PRODUCT TO MEET THE SALIENT FEATURE REQUIREMENTS, AND THE NATURE, SCOPE AND ACCEPTABILITY OF NECESSARY MODIFICATIONS TO THE STOCK MODEL; AND HE CONCLUDES THAT THERE IS NO REASONABLE BASIS FOR THE CONTENTION OF MARYLAND COMMUNICATIONS THAT THE DATA FURNISHED WITH THE SUCCESSFUL BID WAS INSUFFICIENT TO ESTABLISH THAT THE PRODUCT OFFERED WOULD MEET SALIENT FEATURE REQUIREMENTS NOS. 4, 7, 12 AND 17.

THE MODIFICATION OFFERED TO MEET SALIENT FEATURE REQUIREMENT NO. 12, WHICH RELATES TO VIDICON PROTECTION, WAS FOUND TO BE AN ACCEPTABLE SOLUTION ALTHOUGH NOT THE SAME THAT MARYLAND TELECOMMUNICATIONS RESORTED TO. IN REGARD TO SALIENT FEATURE REQUIREMENT NO. 4, WHICH RELATES TO HORIZONTAL RESOLUTION, IT WAS NOTED THAT THE RESOLUTIONS OFFERED WERE NOT LESS THAN 1,000 LINES, THAT THIS WOULD EXCEED THE MINIMUM REQUIREMENT OF 750 LINES AT THE CENTER AND THAT, ON THE BASIS OF ENGINEERING EXPERIENCE, THE MINIMUM REQUIREMENT OF 600 LINES IN THE CORNERS WOULD ALSO BE MET BY THE OFFERED PRODUCT. IN REGARD TO SALIENT FEATURE REQUIREMENTS NOS. 7 AND 17, WHICH CONCERN THE MATTERS OF SENSITIVITY AND LIGHT COMPENSATION, THE CONTRACTING OFFICER STATED THAT THE LINK DIVISION HAD PROPOSED NO MODIFICATIONS AND THAT THOSE REQUIREMENTS ARE FULLY MET BY THE PRODUCT OFFERED.

THE LONG-STANDING POSITION OF OUR OFFICE IS THAT THE RESPONSIBILITY FOR TECHNICAL EVALUATIONS 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 THE MODIFIED PRODUCT OF SINGER- GENERAL PRECISION WOULD MEET THE SALIENT FEATURE REQUIREMENTS AND OTHERWISE QUALIFY AS AN ACCEPTABLE PRODUCT UNDER THE SOLICITATION.

SO FAR AS CONCERNS YOUR CONTENTION THAT THE SECOND LOWEST BID SHOULD HAVE BEEN REJECT AS NONRESPONSIVE BECAUSE A REFERENCED "ATTACHMENT C" WAS NOT INCLUDED AMONG THE BIDDING DOCUMENTS, IT IS OUR OPINION THAT THE OMISSION OF A PART OF THE INFORMATION WHICH A BIDDER ON AN "EQUAL" PRODUCT COULD HAVE FURNISHED IN ACCORDANCE WITH THE PROVISIONS OF THE BRAND NAME OR EQUAL CLAUSE OF AN INVITATION FOR BIDS DOES NOT REQUIRE THE REJECTION OF THE PARTICULAR BID WHERE, AS HERE, ACCORDING TO THE CONTRACTING OFFICER'S REPORT ON YOUR PROTEST, THE INFORMATION FURNISHED BY THE BIDDER, WHEN CONSIDERED IN CONJUNCTION WITH OTHER DATA ALREADY AVAILABLE TO THE GOVERNMENT AGENCY, IS SUFFICIENT FOR A COMPLETE EVALUATION OF THE PRODUCT OFFERED.