B-167943, NOV. 13, 1969

B-167943: Nov 13, 1969

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ALTHOUGH "BRAND NAME" DESIGNATION IS INTENDED TO BE DESCRIPTIVE. DESCRIPTIVE DATA FAILS TO DEMONSTRATE OFFERED ITEM WILL MEET EACH SPECIFIED CHARACTERISTIC. BID WILL BE REJECTED AS NONRESPONSIVE. IT IS NOT ENOUGH THAT BIDDER BELIEVES ITS PRODUCT IS EQUAL. INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF SEPTEMBER 19. THE INVITATION WAS ISSUED ON AUGUST 18. THE MINIMUM SPECIFIC CHARACTERISTICS REQUIRED FOR THESE ITEMS WERE LISTED IN THE SCHEDULE. THE REASONS ADVANCED FOR THIS REQUIREMENT WERE THAT THE EQUIPMENT IS REQUIRED TO PERFORM SPECIFIC FUNCTIONS IN CONNECTION WITH A PROJECT COVERING LONG TERM STUDIES ON MEASUREMENTS OF SEASONABLE SOLAR VARIATIONS. THAT IT MUST OPERATE IN REMOTE AREAS OF THE WORLD WHERE REPAIR SERVICES ARE NOT IMMEDIATELY AVAILABLE AND REPAIRS CAN ONLY BE MADE BY RETURN OF THE DEFECTIVE EQUIPMENT TO THE UNITED STATES.

B-167943, NOV. 13, 1969

SPECIFICATIONS--RESTRICTIVE--PARTICULAR MAKE--INFORMATION SUFFICIENCY BY BIDDER UNDER INVITATION FOR "BRAND NAME OR EQUAL" ITEMS, REQUIRING SUBMISSION OF PERFORMANCE RECORD ON "EQUAL" EQUIPMENT, LOW BIDDER FOUND NONRESPONSIVE FOR SUBMITTING BROCHURE COVERING MODEL PREVIOUSLY FOUND INADEQUATE RATHER THAN OFFERED MODEL (STILL IN PRODUCTION), OFFERS NO LEGAL BASIS FOR OBJECTION TO CONTRACT AWARD SINCE OFFERS NO LEGAL BASIS FOR OBJECTION TO CONTRACT AWARD SINCE PROTESTANT FAILED TO FURNISH REQUIRED PROOF OF RELIABILITY OF EQUIPMENT, AND ALTHOUGH "BRAND NAME" DESIGNATION IS INTENDED TO BE DESCRIPTIVE, SPECIFICATIONS SPELLING OUT ESSENTIAL CHARACTERISTICS TO MEET GOVERNMENT NEEDS, MUST BE STRICTLY MET. DESCRIPTIVE DATA FAILS TO DEMONSTRATE OFFERED ITEM WILL MEET EACH SPECIFIED CHARACTERISTIC, BID WILL BE REJECTED AS NONRESPONSIVE, AND IT IS NOT ENOUGH THAT BIDDER BELIEVES ITS PRODUCT IS EQUAL.

TO FREQUENCY ELECTRONICS, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF SEPTEMBER 19, 1969, PROTESTING ON BEHALF OF YOUR WHOLLY OWNED SUBSIDIARY, ATOMICHRON, INC., AGAINST AN AWARD TO ANY OTHER BIDDER UNDER DEPARTMENT OF THE ARMY INVITATION FOR BIDS NO. DAAB07-70-B-A002, ISSUED BY THE ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY.

THE INVITATION WAS ISSUED ON AUGUST 18, 1969, AND REQUESTED BIDS ON THREE ITEMS OF EQUIPMENT CONSISTING OF ONE EACH FREQUENCY STANDARD, CESIUM BEAM,"HEWLETT-PACKARD" MODEL NO. 5061A, OR EQUAL; ONE EACH POWER SUPPLY, STANDBY,"HEWLETT-PACKARD" MODEL 5085A, OR EQUAL; AND ONE EACH CABLE, C.'HEWLETT-PACKARD" NO. 103A-16A, OR EQUAL. THE MINIMUM SPECIFIC CHARACTERISTICS REQUIRED FOR THESE ITEMS WERE LISTED IN THE SCHEDULE. THE INVITATION CONTAINED THE STANDARD BRAND NAME OR EQUAL CLAUSE AS PRESCRIBED BY PARAGRAPH 1-1206.3 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

SUBSEQUENT TO THE ISSUANCE OF THE INVITATION, THE PROJECT ENGINEER REQUESTED THE CONTRACTING OFFICER TO AMEND THE INVITATION'S SPECIFIC CHARACTERISTIC LISTING TO REQUIRE PERFORMANCE RECORDS OF THE RELIABILITY OF THE EQUIPMENT OFFERED. THE ENGINEER REQUESTED THAT THE RELIABILITY FEATURE SHOULD BE COVERED BY REQUIRING BIDDERS TO FURNISH PERFORMANCE RECORDS FOR PROOF OF RELIABILITY OF THE EQUIPMENT FOR A PERIOD OF 25,000 HOURS OR BETTER. THE REASONS ADVANCED FOR THIS REQUIREMENT WERE THAT THE EQUIPMENT IS REQUIRED TO PERFORM SPECIFIC FUNCTIONS IN CONNECTION WITH A PROJECT COVERING LONG TERM STUDIES ON MEASUREMENTS OF SEASONABLE SOLAR VARIATIONS; THAT IT MUST OPERATE IN REMOTE AREAS OF THE WORLD WHERE REPAIR SERVICES ARE NOT IMMEDIATELY AVAILABLE AND REPAIRS CAN ONLY BE MADE BY RETURN OF THE DEFECTIVE EQUIPMENT TO THE UNITED STATES, WHICH WOULD BE COSTLY IN BOTH TIME AND MONEY; AND THAT THE TIME LOST IN TRANSPORTING AND REPAIRING THE EQUIPMENT WOULD SERIOUSLY AFFECT THE SUCCESS OF THE STUDY. THE AMENDMENT WAS ACCORDINGLY ISSUED ON AUGUST 27, 1969, ADDING A SPECIFIC CHARACTERISTIC READING AS FOLLOWS:

"N. RELIABILITY: MEAN TIME BETWEEN FAILURE RATE MUST BE GUARANTEED AND BACKED UP BY PERFORMANCE RECORDS TO BE 25,000 HOURS OR BETTER.'

BIDS WERE OPENED ON SEPTEMBER 8, 1969, AS SCHEDULED. OF THE 14 FIRMS SOLICITED, THREE BIDS WERE RECEIVED RANGING IN TOTAL AMOUNTS FROM $16,032 TO $16,547.17. ATOMICHRON SUBMITTED TWO LOW BIDS IN THE AMOUNTS OF $16,032 AND $16,214, AND PROPOSED IN EACH BID TO FURNISH EQUIPMENT EQUAL TO THE BRAND NAME SPECIFIED IN ITEM 1 IDENTIFIED AS ITS MODEL 3702. THE THIRD LOW BID WAS SUBMITTED BY HEWLETT-PACKARD COMPANY ON THE BRAND NAME ITEMS SPECIFIED IN THE TOTAL AMOUNT OF $16,547.17.

THE CONTRACTING OFFICER, ON SEPTEMBER 10, 1969, FORWARDED ATOMICHRON'S TWO BIDS TO THE PROJECT ENGINEER FOR TECHNICAL EVALUATION. THIS EVALUATION REVEALED THAT BOTH ATOMICHRON BIDS WERE UNACCEPTABLE SINCE IT FAILED TO SUBMIT PROOF OF RELIABILITY OF THE "EQUAL" EQUIPMENT OFFERED AS REQUIRED BY THE INVITATION, AS AMENDED. WHILE ATOMICHRON SUBMITTED BROCHURES AND DATA WITH ITS BIDS, NO PERFORMANCE RECORD WAS RECEIVED ON MODEL NO. 3702, THE EQUIPMENT PROPOSED TO BE FURNISHED. THE BROCHURE SUBMITTED COVERED ITS MODEL NO. 3501 AND NOT THE MODEL NO. 3702 SPECIFIED IN ITS BID. WITH REGARD TO MODEL NO. 3501, THE GOVERNMENT HAD SIX OF THESE MODELS ON HAND AND LABORATORY EXPERIENCES WITH THIS MODEL INDICATED THAT THEIR PERFORMANCE RATING WAS APPROXIMATELY 3,000 HOURS MEAN TIME BETWEEN FAILURE. ATOMICHRON'S REPRESENTATIVE EXPLAINED THAT ITS MODEL NO. 3702 WAS PRESENTLY IN PRODUCTION AND HE INDICATED, VERBALLY, THAT THE ATOMICHRON MODEL NO. 3702 COULD MEET THE REQUIRED RELIABILITY CHARACTERISTICS, HOWEVER, NO ACTUAL PERFORMANCE RECORDS WERE MADE AVAILABLE TO SUBSTANTIATE HIS STATEMENT.

HEWLETT-PACKARD COMPANY SUBMITTED A RESPONSIVE BID COMPLYING WITH ALL TERMS AND CONDITIONS OF THE INVITATION AND FURNISHED SUFFICIENT PROOF OF RELIABILITY AS REQUIRED. THE EVALUATION OF HEWLETT-PACKARD'S BID BY GOVERNMENT TECHNICAL PERSONNEL INDICATED THE EQUIPMENT OFFERED FOR THIS PROCUREMENT IS TECHNICALLY ACCEPTABLE.

IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT ATOMICHRON'S TWO BIDS ARE NONRESPONSIVE AND THEREFORE UNACCEPTABLE. A COMPLETE AND THOROUGH EVALUATION BY TECHNICALLY QUALIFIED GOVERNMENT PERSONNEL RESULTED IN THE DETERMINATION THAT ATOMICHRON FAILED TO COMPLY WITH THE ESSENTIAL REQUIREMENTS OF THE INVITATION AND THAT, THEREFORE, ITS BIDS MUST BE REJECTED PURSUANT TO ASPR 2-404.2 (A). THE LITERATURE SUBMITTED BY ATOMICHRON FAILED TO SHOW THE REQUIRED RELIABILITY BACKED UP BY PERFORMANCE RECORDS REQUIRED TO SUPPORT THE ACCEPTABILITY OF EQUIPMENT REPRESENTED TO BE EQUAL TO THE BRAND NAME SPECIFIED.

THE INVITATION CONTAINS ASPR PROVISION 1-1206.3 (B), WHICH INFORMED BIDDERS THAT BIDS OFFERING ,EQUAL" PRODUCTS WILL BE CONSIDERED FOR AWARD IF THE PRODUCT IS DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME REFERENCED. BIDDERS ARE INFORMED THAT IF THEY OFFER AN "EQUAL" PRODUCT, THEY MUST FURNISH AS PART OF THE BID ALL DESCRIPTIVE MATERIAL SO THAT THE GOVERNMENT CAN DETERMINE WHETHER THE PRODUCT IT OFFERS MEETS THE ADVERTISED REQUIREMENTS AND ESTABLISHES EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH. ALSO, BIDDERS ARE ADVISED THAT THE GOVERNMENT WILL CONSIDER THE INFORMATION SUBMITTED AS WELL AS OTHER INFORMATION AVAILABLE TO IT.

IT HAS BEEN DETERMINED FROM THE RECORD THAT THERE COULD NOT HAVE BEEN A PERFORMANCE RECORD ESTABLISHED WITH RESPECT TO MODEL 3702 BECAUSE ATOMICHRON HAS HAD NO FIELD EXPERIENCE WITH THIS EQUIPMENT WHICH IS IN FIRST PRODUCTION. WHILE THE GOVERNMENT HAS HAD EXPERIENCE WITH ITS MODEL 3501, THAT EXPERIENCE HAS BEEN INADEQUATE INSOFAR AS THE PRESENT STANDARD IS CONCERNED AND NO PERFORMANCE RECORDS WERE FURNISHED FOR THIS MODEL.

WHILE A "BRAND NAME" DESIGNATION IS INTENDED TO BE DESCRIPTIVE AND MUST BE SO INTERPRETED, SPECIFICATIONS SPELLING OUT ESSENTIAL CHARACTERISTICS TO MEET THE NEEDS OF THE GOVERNMENT MUST BE STRICTLY MET. ASPR 1-1206.2 (B); 45 COMP. GEN. 312 (1965). IT IS THE BIDDER'S RESPONSIBILITY TO SUBMIT SUCH INFORMATION AS WILL PERMIT THE GOVERNMENT TO DETERMINE WHETHER THE PRODUCT OFFERED IS EQUAL TO THE BRAND NAME. IT IS NOT ENOUGH THAT THE BIDDER BELIEVES THAT ITS PRODUCT IS EQUAL; THE GOVERNMENT MUST BE ABLE TO DETERMINE EQUALITY. IF THE DESCRIPTIVE DATA FURNISHED DOES NOT DEMONSTRATE THAT THE ITEM OFFERED WILL MEET EACH OF THE SPECIFIC LISTED CHARACTERISTICS, THE BID WILL BE REJECTED AS NONRESPONSIVE. ASPR 2-404.2 (A). FURTHER, THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED, NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEED. 36 COMP. GEN. 251, 252 (1956); B-152861, APRIL 10, 1964.

ON THE RECORD BEFORE US, WE FIND NO LEGAL BASIS TO OBJECT TO THE REJECTION OF ATOMICHRON'S BIDS NOR WOULD WE OBJECT TO AN AWARD TO HEWLETT- PACKARD, IF OTHERWISE PROPER.