B-168867, FEB. 19, 1970

B-168867: Feb 19, 1970

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CHAIRMAN: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 23. CONTENDING THAT IT IS RESTRICTIVE AND THAT IT SPECIFICALLY LIMITS COMPETITION TO THE FURNISHING OF EQUIPMENT MANUFACTURED BY A PARTICULAR JAPANESE CONCERN. WE HAVE BEEN ADVISED BY THE PROTESTING COMPANY THAT THE PROTEST IS BASED ON THE CONTENTION THAT ONLY THE NAMED BRAND MANUFACTURER OF CLOSED TELEVISION EQUIPMENT COULD MEET THE REQUIREMENT IN THE SOLICITATION THAT ALL COMPONENTS BE INTERCHANGEABLE WITH OTHER COMMISSION-OWNED CLOSED CIRCUIT TELEVISION EQUIPMENT. " ARE DESIGNATED IN 7 OF THE ITEM DESCRIPTIONS. THOSE MODELS HAVE BEEN INDICATED TO BE OF JAPANESE MANUFACTURE AND IT APPEARS THAT THE OTHER 9 DESIGNATED MODELS OF EQUIPMENT ARE NOT INVOLVED IN THE PROTEST.

B-168867, FEB. 19, 1970

BID PROTEST--BRAND-NAME OR EQUAL--INTERCHANGEABILITY DECISION TO CIVIL SERVICE COMMISSION DENYING PROTEST OF MULTI MEDIA ENGINEERING, INC; AGAINST SPECIFICATIONS LIMITED TO EQUIPMENT MANUFACTURER BY A PARTICULAR JAPANESE CONCERN. A "BRAND-NAME OR EQUAL" SOLICITATION THAT DOES NOT SPECIFY THE SALIENT CHARACTERISTICS OF THE PRODUCT NEEDED DOES NOT ADVERSELY AFFECT VALIDITY OF A PROCUREMENT REQUIRING THE EQUIPMENT TO BE INTERCHANGEABLE WITH EXISTING EQUIPMENT. THE SPECIFICALLY STATED INTERCHANGEABILITY REQUIREMENT IN EFFECT RENDERS THE BRAND-NAME OR EQUAL PROVISION MEANINGLESS.

TO MR. CHAIRMAN:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 23, 1970, WITH ENCLOSURES, RELATIVE TO THE PROTEST OF MULTI MEDIA ENGINEERING, INCORPORATED, ROCKVILLE, MARYLAND, AGAINST ADVERTISED SOLICITATION NO. CS-IFB-16-70, ISSUED BY THE CIVIL SERVICE COMMISSION, OFFICE SERVICE DIVISION, FOR CLOSED CIRCUIT TELEVISION EQUIPMENT DESIGNED FOR SMALL GROUP TRAINING, RECORDING INDIVIDUAL PANELS, AND LECTURES. BY LETTER DATED DECEMBER 2, 1969, PRIOR TO THE SCHEDULED DATE FOR THE PUBLIC OPENING OF BIDS, MULTI MEDIA ENGINEERING, INCORPORATED, PROTESTED THE SOLICITATION, CONTENDING THAT IT IS RESTRICTIVE AND THAT IT SPECIFICALLY LIMITS COMPETITION TO THE FURNISHING OF EQUIPMENT MANUFACTURED BY A PARTICULAR JAPANESE CONCERN.

THE SOLICITATION DOES NOT SPECIFICALLY LIMIT COMPETITION TO THE FURNISHING OF EQUIPMENT MANUFACTURED BY A PARTICULAR JAPANESE CONCERN. HOWEVER, WE HAVE BEEN ADVISED BY THE PROTESTING COMPANY THAT THE PROTEST IS BASED ON THE CONTENTION THAT ONLY THE NAMED BRAND MANUFACTURER OF CLOSED TELEVISION EQUIPMENT COULD MEET THE REQUIREMENT IN THE SOLICITATION THAT ALL COMPONENTS BE INTERCHANGEABLE WITH OTHER COMMISSION-OWNED CLOSED CIRCUIT TELEVISION EQUIPMENT. IN THAT CONNECTION, THE DESCRIPTIONS OF 16 OF THE 21 ITEMS LISTED IN THE SCHEDULE OF THE SOLICITATION INCLUDE DESIGNATIONS OF PARTICULAR MODELS OF EQUIPMENT WITH AN "OR EQUAL" QUALIFICATION, AND "PANASONIC" MODELS, "OR EQUAL," ARE DESIGNATED IN 7 OF THE ITEM DESCRIPTIONS. THOSE MODELS HAVE BEEN INDICATED TO BE OF JAPANESE MANUFACTURE AND IT APPEARS THAT THE OTHER 9 DESIGNATED MODELS OF EQUIPMENT ARE NOT INVOLVED IN THE PROTEST.

IT WAS PROPOSED TO MAKE AN AWARD IN THE AGGREGATE AND IT APPEARS THAT THE MAJOR SCHEDULE ITEMS DESIGNATING "PANASONIC" MODELS, "OR EQUAL," ARE ITEMS NOS. 1, 2 AND 7, WHICH LIST QUANTITIES OF 8, 9 AND 9, RESPECTIVELY, FOR ONE-HALF INCH VIDEO TAPE RECORDERS, TELEVISION CAMERAS WITH CABLES, AND 23 -INCH TELEVISION RECEIVER/MONITORS. THE SOLICITATION REQUIRES DELIVERY OF ONE TAPE RECORDER, ONE TELEVISION CAMERA AND ONE RECEIVER/MONITOR TO EACH OF SIX FIELD OFFICES AND DELIVERIES OF THE REMAINING UNITS OF ITEMS NOS. 1, 2 AND 7 ARE REQUIRED TO BE MADE TO THE WASHINGTON, D. C; OFFICE OF THE CIVIL SERVICE COMMISSION.

AS REQUIRED IN CASES OF THIS NATURE, THE SOLICITATION INCORPORATES THE BRAND NAME OR EQUAL CLAUSE SET FORTH IN SECTION 1-1.307-6 (A) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR). UNDER THAT CLAUSE, PROSPECTIVE BIDDERS ARE ADVISED THAT IDENTIFICATION OF ITEMS BY "BRAND NAME OR EQUAL" DESCRIPTIONS IS NOT INTENDED TO BE RESTRICTIVE AND THAT BIDS OFFERING "EQUAL" PRODUCTS WOULD BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE ADVERTISEMENT FOR BIDS. PROSPECTIVE BIDDERS ARE ALSO ADVISED TO THE EFFECT THAT PROPOSED MODIFICATIONS TO CURRENT MODELS OF EQUIPMENT IN ORDER TO MAKE THEM CONFORM TO THE REQUIREMENTS OF THE ADVERTISEMENT FOR BIDS WOULD BE CONSIDERED IN DETERMINATIONS WHETHER BIDDERS HAVE OFFERED PRODUCTS EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE ADVERTISEMENT FOR BIDS.

IT IS REPORTED THAT BIDS WERE OPENED ON DECEMBER 5, 1969, THAT FIVE BIDS WERE RECEIVED AND NONE WAS RECEIVED FROM MULTI MEDIA ENGINEERING, INCORPORATED, THAT AN AWARD HAS NOT BEEN MADE AND THAT, IN EVALUATING THE BIDS RECEIVED, THE COMMISSION WILL, IN ACCORDANCE WITH SECTION 1 6.104-4, FPR, ADD TO A FOREIGN BID 6 PERCENT OF THAT BID FOR EVALUATION PURPOSES. IT IS ALSO REPORTED THAT IT WAS PRACTICALLY IMPOSSIBLE TO PREPARE APPROPRIATE PURCHASE DESCRIPTIONS AND THAT, ALTHOUGH "BRAND NAME OR EQUAL" DESCRIPTIONS WERE USED, THE INTENT WAS TO BE DESCRIPTIVE, NOT RESTRICTIVE. WITH RESPECT TO THE INTERCHANGEABILITY AND COMPATIBILITY REQUIREMENTS OF THE SOLICITATION, IT IS STATED THAT THE CENTRAL OFFICE, THREE REGIONAL OFFICES AND THE FEDERAL EXECUTIVE INSTITUTE ALREADY HAVE CLOSED CIRCUIT TELEVISION EQUIPMENT PREVIOUSLY PURCHASED ON A COMPETITIVE BASIS, THAT IT IS YOUR OBJECTIVE TO FILL THE NEW REQUIREMENTS BY PURCHASING COMPATIBLE EQUIPMENT AND THAT EXPERIENCE WITH THE JAPANESE "PANASONIC" ITEMS NOW OWNED BY THE COMMISSION HAS BEEN EXCELLENT.

IN ORDER TO COMPLY WITH THE 60-DAY BID ACCEPTANCE PERIOD SPECIFIED IN THE SOLICITATION, AN AWARD WAS REQUIRED TO BE MADE ON OR BEFORE FEBRUARY 3, 1970. HOWEVER, WE WERE ADVISED INFORMALLY THAT THE FIVE BIDDERS HAVE BEEN REQUESTED TO EXTEND THE TIME FOR ACCEPTANCE OF THEIR BIDS. WE HAD FURNISHED THE PROTESTING COMPANY A COPY OF YOUR LETTER AND IT WAS CONTEMPLATED THAT THE COMPANY SHOULD BE AFFORDED A REASONABLE OPPORTUNITY TO SUBMIT ITS WRITTEN COMMENTS ON THE REPORTED FACTS AND CIRCUMSTANCES OF THE CASE BEFORE WE RENDERED A DECISION ON THE PROTEST INVOLVED. WE HAVE RECEIVED A LETTER DATED FEBRUARY 6, 1970, FROM THE PROTESTING COMPANY, CONTENDING THAT ONLY EQUIPMENT MANUFACTURED BY THE PRODUCER OF THE "PANASONIC" MODELS, ALSO MARKETED UNDER THE CONCORD NAME, IS INTERCHANGEABLE WITH THE EQUIPMENT SPECIFIED IN THE SOLICITATION.

IN CONNECTION WITH THE UTILIZATION OF BRAND NAME OR EQUAL DESCRIPTIONS IN ADVERTISEMENTS FOR BIDS, THE APPLICABLE REGULATIONS REQUIRE THE INVITATION TO SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCT WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. FEDERAL PROCUREMENT REGULATIONS, SECTION 1-1.307-4 (B). SEE ALSO 43 COMP. GEN. 761 (1964), AND B 167944, NOVEMBER 24, 1969, 49 COMP. GEN. .

THE SCHEDULE IN THIS CASE DOES NOT LIST THE ESSENTIAL CHARACTERISTICS OF CERTAIN OF THE ITEMS OF DESIRED TYPES OF CLOSED CIRCUIT TELEVISION EQUIPMENT. ORDINARILY, THIS WOULD RESULT IN INVALIDATING THE PROCUREMENT. HOWEVER, NOTWITHSTANDING THE GENERAL RULE CITED ABOVE, WE DO NOT BELIEVE THAT THE FAILURE TO LIST THE SALIENT CHARACTERISTICS IN THIS CASE SHOULD ADVERSELY AFFECT THE VALIDITY OF THE PROCUREMENT IN VIEW OF THE CLEAR REQUIREMENT IN THE INVITATION, WHICH APPEARS JUSTIFIABLE IN THE CIRCUMSTANCES, THAT ALL OF THE EQUIPMENT TO BE PURCHASED UNDER THE PROPOSED CONTRACT SHOULD BE INTERCHANGEABLE WITH OTHER COMMISSION-OWNED CLOSED CIRCUIT TELEVISION EQUIPMENT. THE SPECIFICALLY STATED INTERCHANGEABILITY FEATURE, SINCE IT IS A MORE STRINGENT REQUIREMENT, IN EFFECT RENDERS THE BRAND NAME OR EQUAL PROVISION MEANINGLESS. THEREFORE, THE FAILURE TO LIST THE SALIENT CHARACTERISTICS IN THIS CASE IS NOT MATERIAL.

THE REQUIREMENT FOR INTERCHANGEABILITY MAY BE RESTRICTIVE OF COMPETITION. HOWEVER, THAT REQUIREMENT OF THE SOLICITATION COULD NOT BE HELD IN THE PARTICULAR CIRCUMSTANCES TO HAVE MADE THE SOLICITATION MORE RESTRICTIVE THAN NECESSARY, OR VIOLATIVE OF THE INTENT AND PURPOSES OF SECTION 253 (A) OF TITLE 41, UNITED STATES CODE, WHICH PROVIDES IN PART THAT SPECIFICATIONS AND INVITATIONS FOR BIDS SHALL PERMIT SUCH FULL AND FREE COMPETITION "AS IS CONSISTENT WITH THE PROCUREMENT OF TYPES OF PROPERTY AND SERVICES NECESSARY TO MEET THE REQUIREMENTS OF THE AGENCY CONCERNED."

IN REGARD TO THAT PRINCIPLE OF COMPETITIVE BIDDING UNDER FORMALLY ADVERTISED PROCUREMENTS BY AGENCIES OF THE GOVERNMENT, WE STATED IN 36 COMP. GEN. 251 (1956), THAT THE GOVERNMENT IS NOT REQUIRED TO PURCHASE EQUIPMENT WITHOUT INTELLIGENT REFERNCE TO THE PARTICULAR NEEDS TO BE SERVED OR 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.

IN THE CIRCUMSTANCES, WE FIND THAT AWARD PROPERLY MAY BE MADE PURSUANT TO THE SOLICITATION.

A COPY OF THIS DECISION IS BEING MAILED TO THE PROTESTING COMPANY.