B-168805, MAY 5, 1970

B-168805: May 5, 1970

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NOTWITHSTANDING ADMINISTRATIVE DECISION TO EXTEND DELIVERY WAS BASED ON LOSS OF CONTRACTOR'S SOURCES FOR SECURING NEEDED TRANSFORMERS. CONTRACTING OFFICER IS CHARGED WITH INITIAL RESPONSIBILITY OF ADMINISTERING CONTRACT AND GAO IS WITHOUT AUTHORITY TO EXERCISE THAT POWER. LOW BIDDER WHOSE BID WAS REJECTED SINCE CONTRACTING OFFICER COULD NOT ESTABLISH WHAT WAS OFFERED AND WHAT GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE. OFFERS NO BASIS FOR OBJECTION SINCE BID QUOTED BACK LISTED SPECIFICATION CHARACTERISTICS WITHOUT TAKING EXCEPTION INSTEAD OF FURNISHING ADEQUATE DESCRIPTIVE INFORMATION AND ACTIVITY WAS UNABLE TO DETERMINE WHETHER OFFER WAS "EQUAL.". TO ELGAR CORPORATION: REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 13.

B-168805, MAY 5, 1970

CONTRACTS--PERFORMANCE--DELAYED DELIVERY TIME EXTENDED UNSUCCESSFUL BIDDER WHO CONTENDS CONTRACTOR HAS NOT FULFILLED ORIGINAL 30 -DAY DELIVERY REQUIREMENTS AND THAT CONTRACT SHOULD BE TERMINATED, OFFERS NO BASIS FOR OBJECTION, NOTWITHSTANDING ADMINISTRATIVE DECISION TO EXTEND DELIVERY WAS BASED ON LOSS OF CONTRACTOR'S SOURCES FOR SECURING NEEDED TRANSFORMERS, SINCE ASPR 8 602.4 PROVIDES THAT CONTRACTING OFFICER MAY PERMIT CONTRACTOR TO CONTINUE PERFORMANCE UNDER REVISED DELIVERY SCHEDULE IN LIEU OF TERMINATION FOR DEFAULT WHEN IN BEST INTERESTS OF GOVERNMENT; MOREOVER, CONTRACTING OFFICER IS CHARGED WITH INITIAL RESPONSIBILITY OF ADMINISTERING CONTRACT AND GAO IS WITHOUT AUTHORITY TO EXERCISE THAT POWER. SEE COMP. GEN. DECS. CITED. CONTRACTS--SPECIFICATIONS- RESTRICTIVE--PARTICULAR MAKE--INFORMATION SUFFICIENCY BY BIDDER BRAND-NAME-OR-EQUAL INVITATION ADVISED BIDDERS TO FURNISH DESCRIPTIVE MATERIAL FOR "EQUAL" PRODUCT. LOW BIDDER WHOSE BID WAS REJECTED SINCE CONTRACTING OFFICER COULD NOT ESTABLISH WHAT WAS OFFERED AND WHAT GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE, AND WHO CONTENDS BID MET OR EXCEEDED REQUIREMENTS, OFFERS NO BASIS FOR OBJECTION SINCE BID QUOTED BACK LISTED SPECIFICATION CHARACTERISTICS WITHOUT TAKING EXCEPTION INSTEAD OF FURNISHING ADEQUATE DESCRIPTIVE INFORMATION AND ACTIVITY WAS UNABLE TO DETERMINE WHETHER OFFER WAS "EQUAL." GAO HAS HELD THAT DATA OF TYPE FURNISHED DOES NOT COMPLY WITH INFORMATION REQUIRED. SEE COMP. GEN. DECS. CITED.

TO ELGAR CORPORATION:

REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 13, FEBRUARY 17 AND MARCH 10, 1970, AND TELEGRAM OF APRIL 15, 1970, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE DATA ROYAL CORPORATION UNDER INVITATION FOR BIDS NO. N00163-70-B-0701, ISSUED BY THE NAVAL AVIONICS FACILITY, INDIANAPOLIS, INDIANA.

THE INVITATION, ISSUED ON DECEMBER 11, 1969, SOLICITED BIDS FOR FURNISHING THREE AC POWER SOURCES WITH PLUG-IN OSCILLATORS ON A "BRAND NAME OR EQUAL" BASIS. THE BRAND NAME ITEM WAS IDENTIFIED AS "AC POWER SOURCE, DATA ROYAL CORP. MODEL G530A, OR EQUAL, WITH PLUG-IN OSCILLATOR, DATA ROYAL CORP. MODEL G620A, OR EQUAL." SALIENT CHARACTERISTICS OF THE ITEM REQUIRED WERE LISTED AND SHOWN IN SECTION 2 OF THE INVITATION. BIDDERS WERE ADVISED BY THE "BRAND NAME OR EQUAL" CLAUSE TO FURNISH DESCRIPTIVE MATERIAL AS PART OF THEIR BIDS IF THEY PROPOSED TO FURNISH AN "EQUAL" PRODUCT.

BIDS WERE RECEIVED FROM TWO FIRMS BY THE OPENING DATE OF DECEMBER 29, 1969, WITH THE FOLLOWING COMPARATIVE PRICES:

UNIT PRICE TOTAL AMOUNT

ELGAR CORPORATION $ 985 $2,955

DATA ROYAL CORPORATION 1,065 3,195 WHILE ELGAR'S BID WAS LOW, IT IS REPORTED THAT IT WAS REJECTED AS NONRESPONSIVE SINCE THE CONTRACTING OFFICER COULD NOT ESTABLISH FROM ITS BID EXACTLY WHAT WAS OFFERED AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD TO ELGAR. ACCORDINGLY, AWARD WAS MADE TO DATA ROYAL ON JANUARY 7, 1970.

YOU HAVE PROTESTED AGAINST THE AWARD TO DATA ROYAL ON THE BASIS THAT YOUR LOW BID WAS RESPONSIVE TO THE TERMS OF THE INVITATION AND MET OR EXCEEDED THE SPECIFICATION REQUIREMENTS. SECONDLY, YOU CONTEND THAT DATA ROYAL, DURING ITS CONTRACT PERFORMANCE, HAS NOT FULFILLED THE ORIGINAL 30-DAY DELIVERY REQUIREMENTS OF THE CONTRACT AND, THEREFORE, SUCH CONTRACT SHOULD BE TERMINATED BY THE PROCURING ACTIVITY.

WITH REGARD TO YOUR FIRST CONTENTION, SECTION 8.3 OF THE INVITATION, AT PAGE 30, 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:

"8.3 - 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."

ON PAGE 6 OF YOUR BID FORM, YOU OFFERED ELGAR MODEL 201-126 AC POWER SOURCE WITH PLUG-IN OSCILLATOR MODEL 401-V.THIS PAGE HAS A NOTATION "SEE ATTACHED COVER LETTER WHICH IS SUBMITTED AS PART OF THIS QUOTATION." THE ATTACHED COVER LETTER STATES THE MODEL NUMBERS FOR THE PRODUCTS OFFERED AND THAT THE MODEL 201-126 IS A MODIFIED VERSION OF ELGAR MODEL 201. THIS LETTER ALSO STATES THAT "INFORMATION ON THE MODEL 201 (PAGE 3 OF ATTACHED CATALOG) IS ENCLOSED FOR THE PURPOSE OF SHOWING FEASIBILITY ONLY AND IS IN NO WAY SUBMITTED AS PART OF THE ABOVE IFB." THE CATALOG ATTACHED HAD A RED LEGEND READING "REFERENCE & FEASIBILITY ONLY. NOT PART OF ANY QUOTATION." ALSO, ON PAGE 2 OF YOUR COVER LETTER YOU STATED THE SALIENT CHARACTERISTICS LISTED IN SECTION 2 OF THE INVITATION AND OFFERED TO MEET OR EXCEED THESE REQUIREMENTS. BASED ON THE FOREGOING, YOU CONTEND THAT YOUR BID SHOULD NOT HAVE BEEN REJECTED AS NONRESPONSIVE.

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 PROVISIONS OF ASPR 1-1206.3 (B), QUOTED ABOVE, 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. IN THIS RESPECT, IT SHOULD BE NOTED THAT THE CATALOG SUBMITTED WITH YOUR BID FOR "REFERENCE AND FEASIBILITY ONLY" DID NOT RENDER YOUR BID NONRESPONSIVE. YOUR BID WAS REJECTED AS NONRESPONSIVE BY THE CONTRACTING OFFICER BECAUSE HE COULD NOT ESTABLISH FROM THE INFORMATION SUBMITTED EXACTLY WHAT WAS OFFERED AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD ON THE TERMS OF YOUR BID. THE CASES CITED BY THE SMALL BUSINESS ADMINISTRATION IN ITS REPORT ON YOUR BEHALF SUPPORT THE CONCLUSION THAT YOUR COVER LETTER AND CATALOG DID NOT QUALIFY YOUR BID. HOWEVER, AS NOTED ABOVE, THOSE ATTACHMENTS TO YOUR BID DID NOT CAUSE THE REJECTION OF YOUR BID.

IN THE INSTANT CASE, INSTEAD OF FURNISHING ADEQUATE DESCRIPTIVE INFORMATION, YOUR BID QUOTED BACK THE LISTED SALIENT CHARACTERISTICS OF THE SPECIFICATIONS WITHOUT TAKING AN EXCEPTION. OUR OFFICE HAS HELD THAT DATA OF THIS NATURE DOES NOT COMPLY WITH THE INFORMATION REQUIRED UNDER THE "BRAND NAME OR EQUAL" CLAUSE. 41 COMP. GEN. 366 (1961); B 167757, OCTOBER 24, 1969; B-162073, OCTOBER 4, 1967. AFTER CONSIDERING THE DESCRIPTIVE INFORMATION IN YOUR BID, THE PROCURING ACTIVITY WAS UNABLE TO DETERMINE WHETHER YOUR OFFER WAS EQUAL TO THE BRAND NAME. WE FIND NO LEGAL BASIS TO OBJECT TO THIS CONCLUSION.

YOUR SECOND CONTENTION IS THAT DATA ROYAL HAS NOT FULFILLED THE 30 DAY DELIVERY REQUIREMENTS OF THE CONTRACT AND THEREFORE SUCH CONTRACT SHOULD BE TERMINATED BY THE PROCURING ACTIVITY. IN THIS RESPECT, IT IS ADMINISTRATIVELY REPORTED THAT AWARD WAS MADE TO DATA ROYAL ON JANUARY 7, 1970, WITH DELIVERY IN 30 DAYS AFTER AWARD OF CONTRACT. THE ADMINISTRATIVE DECISION TO EXTEND DELIVERY TIME TO APRIL 15, 1970, WAS BASED ON THE LOSS OF DATA ROYAL'S SOURCES FOR SECURING NEEDED TRANSFORMERS. SEE, IN THIS REGARD, ASPR 8-602.3. IN THIS CONNECTION, ASPR 8-602.4 PROVIDES THAT THE CONTRACTING OFFICER MAY PERMIT THE CONTRACTOR TO CONTINUE PERFORMANCE OF THE CONTRACT UNDER A REVISED DELIVERY SCHEDULE IN LIEU OF TERMINATION FOR DEFAULT WHEN IT IS IN THE BEST INTEREST OF THE GOVERNMENT TO DO SO. WE HAVE BEEN ADVISED BY THE NAVY, IN RESPONSE TO YOUR TELEGRAM OF APRIL 15, 1970, THAT DELIVERY WAS COMPLETED AS OF APRIL 16, 1970.

IN ANY EVENT, THE CONTRACTING OFFICER IS CHARGED WITH THE INITIAL RESPONSIBILITY OF ADMINISTERING THE CONTRACT AND OUR OFFICE IS WITHOUT AUTHORITY TO EXERCISE THAT POWER. B-167574, AUGUST 8, 1969.