B-168814, MAY 8, 1970

B-168814: May 8, 1970

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DESCRIPTION AVAILABILITY REJECTION OF BID AS NONRESPONSIVE FOR FAILURE TO FURNISH DESCRIPTIVE LITERATURE AS REQUIRED BY INVITATION FOR BIDS BRAND NAME OR EQUAL CLAUSE IS SUSTAINED. SINCE RESPONSIVENESS OF BID SUBMITTED IN RESPONSE TO INVITATION EMPLOYING SUCH PURCHASE DESCRIPTION DEPENDS NOT ON WHETHER BIDDER BELIEVES OR KNOWS THAT HIS PRODUCT IS EQUAL TO BRAND NAME PRODUCT SPECIFIED. THERE WAS NO WAY TO DETERMINE FROM ITS BID EQUALITY OF PRODUCTS OFFERED. WAS FOR ONE LABORATORY CAGE WASHER. THE BIDS WERE OPENED AND FIVE BIDS WERE RECEIVED. WERE REJECTED AS BEING NONRESPONSIVE. AWARD OF THE CONTRACT WAS MADE TO THE NEXT LOWEST BIDDER. WAS INCORPORATED IN THE INVITATION. THE EVALUATION OF BIDS 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 IDENTIFIED IN HIS BID AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY.

B-168814, MAY 8, 1970

CONTRACTS--SPECIFICATIONS--RESTRICTIVE--PARTICULAR MAKE--DESCRIPTION AVAILABILITY REJECTION OF BID AS NONRESPONSIVE FOR FAILURE TO FURNISH DESCRIPTIVE LITERATURE AS REQUIRED BY INVITATION FOR BIDS BRAND NAME OR EQUAL CLAUSE IS SUSTAINED, SINCE RESPONSIVENESS OF BID SUBMITTED IN RESPONSE TO INVITATION EMPLOYING SUCH PURCHASE DESCRIPTION DEPENDS NOT ON WHETHER BIDDER BELIEVES OR KNOWS THAT HIS PRODUCT IS EQUAL TO BRAND NAME PRODUCT SPECIFIED, BUT ON WHETHER PROCURING ACTIVITY CAN SO DETERMINE FROM INFORMATION SUBMITTED WITH BID. SINCE PROTESTANT SUBMITTED NO DESCRIPTIVE LITERATURE ON SALIENT CHARACTERISTICS INVOLVED, THERE WAS NO WAY TO DETERMINE FROM ITS BID EQUALITY OF PRODUCTS OFFERED.

TO TIME RESEARCH LABORATORIES, INC.:

WE REFER TO YOUR LETTERS OF JANUARY 15, 1970, WITH ENCLOSURE, AND APRIL 6, 1970, PROTESTING AGAINST THE AWARD TO ANY OTHER FIRM OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. PROC 709 (D), ISSUED BY THE SUPPLY MANAGEMENT BRANCH (CA-266), FOOD AND DRUG ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE.

THE REFERENCED SOLICITATION, DATED DECEMBER 8, 1969, WAS FOR ONE LABORATORY CAGE WASHER, WITH ACCESSORIES. ON DECEMBER 30, 1969, THE BIDS WERE OPENED AND FIVE BIDS WERE RECEIVED, WITH PRICES RANGING FROM $7,631.20 TO $13,265.00. THE LOWEST BID AND THE NEXT LOWEST BID SUBMITTED BY GIRTON MANUFACTURING COMPANY AND YOUR FIRM, RESPECTIVELY, WERE REJECTED AS BEING NONRESPONSIVE. ON JANUARY 8, 1970, AWARD OF THE CONTRACT WAS MADE TO THE NEXT LOWEST BIDDER, BETTER BUILT MACHINERY CORPORATION.

THE PROCURING ACTIVITY REJECTED YOUR BID PURSUANT TO THE BRAND NAME OR EQUAL CLAUSE (FEDERAL PROCUREMENT REGULATIONS (FPR) 1-1.307-6), WHICH BY PARAGRAPH 13 OF THE SPECIAL CONDITIONS, WAS INCORPORATED IN THE INVITATION. THIS CLAUSE STATES IN PART:

"(C) (I) IF THE BIDDER 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 INVITATION FOR BIDS OR SUCH PRODUCT SHALL BE OTHERWISE CLEARLY IDENTIFIED IN THE BID. THE EVALUATION OF BIDS 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 IDENTIFIED IN HIS BID AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. 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

"(II) DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE INVITATION FOR BIDS AND

"(III) 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 REFERENCE TO INFORMATION PREVIOUSLY FURNISHED OR TO INFORMATION OTHERWISE AVAILABLE TO THE PURCHASING ACTIVITY."

YOUR BID CONTAINED YOUR OWN PRODUCT NUMBERS IN THE SPACES PROVIDED FOR THE "EQUAL PRODUCT," BUT NO DESCRIPTIVE LITERATURE ACCOMPANIED THE BID IN REGARD TO THE ACCESSORY ITEMS. FOR THIS REASON THE CONTRACTING OFFICER UNDER THE ABOVE CITED CLAUSE DEEMED YOUR BID NON-RESPONSIVE, IN THAT HE STATES HE HAD NOTHING TO VERIFY WHAT YOU PROPOSED TO FURNISH.

THE CONTRACTING OFFICER, IN FURNISHING THE JUSTIFICATION FOR THE ACCESSORY ITEM SOLICITATION REQUIREMENTS, POINTS OUT THAT ACCESSORY ITEMS A AND C, PAGE 5 OF THE BID CALLED FOR AN AUTOMATIC GAS FIRED COPPER COIL WATER HEATER, A. O. SMITH BURKAY MODEL BC 420-D-1/2 OR EQUAL, AND A STAINLESS STEEL 7 1/2 H.P. PUMP. THE TWO REQUIREMENTS, HE STATES, WERE DEEMED HIGHLY ESSENTIAL MINIMAL SALIENT CHARACTERISTICS BECAUSE IN ORDER TO EFFICIENTLY WASH ANIMAL CAGES, LARGE VOLUMES OF EXTREMELY HOT WATER (180 F OR ABOVE) ARE REQUIRED (SEE PAGE 8, SALIENT CHARACTERISTICS, PAR. 3) AND COMMERCIAL DETERGENTS OF SUFFICIENT CAUSTIC STRENGTH TO PROPERLY CLEAN ANIMAL CAGES, MUST OF NECESSITY CONTAIN VARIOUS DILUTE ACIDS, CONSEQUENTLY THE STAINLESS STEEL PUMP WAS SPECIFIED TO RESIST THE INHERENT CORROSION EFFECT CAUSED BY THE STRON DETERGENTS.

YOU HAVE STATED IN REPLY TO THE ADMINISTRATIVE REPORT:

"A STUDY OF OUR FILE REVEALS THAT TRL IN FACT DID NOT DESCRIBE THE AUTOMATIC GAS FIRED WATER HEATER. HOWEVER, INCLUSION OF THIS ACCESSORY WAS OBVIOUSLY PART OF OUR PROPOSED SYSTEM AND IS EQUAL TO THE BRAND NAME SPECIFIED.

"WE HAVE NO WORDS ADEQUATE TO DESCRIBE THE METAL OF A STAINLESS STEEL 7 1/2 HP PUMP OTHER THAN TO CERTIFY IT TO BE STAINLESS STEEL. ALTHOUGH OUR BID SPECIFICATION DID NOT CONTAIN THE WORDS 'STAINLESS STEEL' OUR TRL W107 -2 IS STAINLESS STEEL."

BY YOUR OWN ADMISSION, THEREFORE, YOU DID NOT DESCRIBE THE TYPE OR CAPACITY OF YOUR AUTOMATIC GAS FIRED WATER HEATER, OTHER THAN YOUR MODEL NUMBER, OR SPECIFY THAT THE PUMP YOU WOULD FURNISH WOULD BE STAINLESS STEEL. 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. SINCE YOU SUBMITTED NO DESCRIPTIVE LITERATURE ON THE SALIENT CHARACTERISTICS DISCUSSED ABOVE, THERE WAS NO WAY TO DETERMINE FROM YOUR BID THE EQUALITY OF THE PRODUCTS YOU OFFERED. IN VIEW THEREOF, YOUR BID WAS PROPERLY DETERMINED TO BE NONRESPONSIVE BY THE CONTRACTING OFFICER, AND THEREFORE COULD NOT BE CONSIDERED FOR AWARD.