B-169210, APR. 22, 1970

B-169210: Apr 22, 1970

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IT CANNOT BE AGREED WITH PROTESTANT THAT SPECIFICATIONS WERE DEFECTIVE OR THAT ACCEPTED MODEL WAS NOT "EQUAL" SINCE "BRAND NAME OR EQUAL" DOES NOT MEAN "IDENTICAL. " AND EQUALITY REQUIREMENT IS MET WHEN OFFERED ITEM IS FOUND EQUALLY CAPABLE OF MEETING GOVERNMENT NEEDS AND CONFORMS TO SALIENT CHARACTERISTICS STATED. DRAFTING OF SPECIFICATIONS FOR GOVERNMENT NEEDS AND DETERMINING CONFORMABILITY OF OFFERED ITEMS THERETO ARE MATTERS PRIMARILY FOR ADMINISTRATIVE DETERMINATION AND WILL NOT BE DISTURBED UNLESS FOUND CAPRICIOUS OR MADE IN BAD FAITH OR WITHOUT SUBSTANTIAL GROUNDS. TO GENERAL RESISTANCE: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE SPECIFICATIONS IN INVITATIONS FOR BIDS NO.

B-169210, APR. 22, 1970

CONTRACTS--SPECIFICATIONS--RESTRICTIVE--PARTICULAR MAKE "OR EQUAL" PRODUCT ACCEPTABILITY UNDER "BRAND NAME OR EQUAL" PROCUREMENT OF VOLTAGE SOURCES, IT CANNOT BE AGREED WITH PROTESTANT THAT SPECIFICATIONS WERE DEFECTIVE OR THAT ACCEPTED MODEL WAS NOT "EQUAL" SINCE "BRAND NAME OR EQUAL" DOES NOT MEAN "IDENTICAL," AND EQUALITY REQUIREMENT IS MET WHEN OFFERED ITEM IS FOUND EQUALLY CAPABLE OF MEETING GOVERNMENT NEEDS AND CONFORMS TO SALIENT CHARACTERISTICS STATED. MOREOVER, DRAFTING OF SPECIFICATIONS FOR GOVERNMENT NEEDS AND DETERMINING CONFORMABILITY OF OFFERED ITEMS THERETO ARE MATTERS PRIMARILY FOR ADMINISTRATIVE DETERMINATION AND WILL NOT BE DISTURBED UNLESS FOUND CAPRICIOUS OR MADE IN BAD FAITH OR WITHOUT SUBSTANTIAL GROUNDS. SEE COMP. GEN. DECS. CITED.

TO GENERAL RESISTANCE:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE SPECIFICATIONS IN INVITATIONS FOR BIDS NO. CC-76-0 AND NO. CC-82-0 ISSUED BY THE JOHN F. KENNEDY SPACE CENTER, AND THE AWARD OF CONTRACTS THEREUNDER TO PRECISION STANDARDS CORPORATION.

BOTH INVITATIONS WERE ISSUED IN JANUARY 1970, SOLICITING BIDS ON STATED QUANTITIES OF PRECISION VOLTAGE SOURCES IN ACCORDANCE WITH GENERAL RESISTANCE MODEL DAS 46, OR EQUAL, AND SPECIFIED SALIENT CHARACTERISTICS OF THE "BRAND NAME" ITEM CONSIDERED ESSENTIAL TO THE NEEDS OF THE PROCURING ACTIVITIES, AS REQUIRED BY NATIONAL AERONAUTICS AND SPACE ADMINISTRATION REGULATION 1.1206-2 (B). THE SALIENT CHARACTERISTICS IN THE TWO INVITATIONS DIFFERED SLIGHTLY TO REFLECT DIFFERING REQUIREMENTS OF THE TWO ACTIVITIES REQUISITIONING THE ITEMS.

PRECISION STANDARDS CORPORATION (PSC), SUBMITTED THE LOW BID UNDER BOTH INVITATIONS, OFFERING ITS MODEL NO. 462A-1. AFTER EVALUATION BY COGNIZANT TECHNICAL PERSONNEL OF THE DESCRIPTIVE LITERATURE SUBMITTED BY PSC PURSUANT TO THE BRAND NAME OR EQUAL CLAUSES OF THE INVITATIONS, CONTRACTS WERE AWARDED TO PSC IN FEBRUARY 1970.

YOU CONTEND THAT THE ITEM DESCRIPTIONS USED IN THE INVITATIONS ARE AMBIGUOUS, MISLEADING AND INDICATE THAT THE PURCHASING ACTIVITIES DO NOT HAVE A CLEAR UNDERSTANDING OF THE HARDWARE REQUIRED. IN ADDITION, YOU CONTEND THAT PSC'S MODEL NO. 462A-1 IS NOT EQUAL TO THE BRAND NAME ITEM IN QUALITY, HUMAN ENGINEERING CHARACTERISTICS, PORTABILITY, MAINTAINABILITY, PHYSICAL SIZE AND USEFUL SERVICE LIFE; AND THAT IT LACKS EQUALITY IN THE FOLLOWING SPECIFIC AREAS:

1. HUMAN ENGINEERED THUMB WHEEL SWITCH DIAL AND DISPLAY.

2. EXTREME PORTABILITY.

3.A FOUR-YEAR HISTORY OF UNEQUALLED PERFORMANCE AND MAINTAINABILITY AT NASA FACILITIES.

4. PROVEN OUTPUT STABILITY AS SPECIFIED IN IFB NO. CC-82-0.

AS NOTED ABOVE, AWARD WAS MADE TO PSC AFTER COGNIZANT TECHNICAL PERSONNEL EVALUATED THE DESCRIPTIVE LITERATURE SUBMITTED WITH PSC'S BIDS AND CONCLUDED THAT ITS EQUIPMENT WAS IN CONFORMANCE WITH THE SPECIFICATIONS. THE ADMINISTRATIVE REPORT FURNISHED OUR OFFICE INCLUDES COPIES OF THE MEMORANDA FROM THE CHIEF, INSTALLATION AND SURVEILLANCE SECTION, AND FROM THE CHIEF, LABORATORY BRANCH, RESPECTIVELY, ADVISING THAT PSC'S MODEL NO. 462A-1 CONFORMS IN ALL RESPECTS WITH THE SPECIFICATIONS OF THE RESPECTIVE INVITATIONS. AFTER RECEIPT OF YOUR PROTEST, THE ABOVE ACTIVITIES WERE ASKED TO REVIEW (1) SELECTION OF THE SALIENT CHARACTERISTICS SET FORTH IN THE INVITATIONS, AND (2) THEIR TECHNICAL EVALUATION OF PSC'S BIDS. RESPONSE THERETO, BOTH ACTIVITIES STATED THAT THE SALIENT CHARACTERISTICS WERE NECESSARY TO MEET THEIR MINIMUM REQUIREMENTS, AND CONFIRMED THEIR EARLIER TECHNICAL EVALUATIONS. IN ADDITION, IT IS POINTED OUT THAT EXCEPT FOR THE REQUIREMENT FOR OUTPUT STABILITY NONE OF THE SPECIFIC CHARACTERISTICS YOU MENTION WERE SET FORTH AS SALIENT CHARACTERISTICS. WITH RESPECT TO OUTPUT STABILITY, THE CHIEF, INSTALLATION SURVEILLANCE SECTION, STATES THAT PSC'S EQUIPMENT CONFORMS TO THAT REQUIREMENT OF IFB NO. CC-82-0.

THE RESPONSIBILITY FOR DRAFTING SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT, AND THE FACTUAL DETERMINATION WHETHER THE ITEMS OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS, ARE MATTERS PRIMARILY WITHIN THE PROVINCE OF THE ADMINISTRATIVE AGENCIES. 17 COMP. GEN. 554 (1938). THE ABSENCE OF EVIDENCE THAT SUCH DETERMINATIONS WERE ARBITRARY, CAPRICIOUS, IN BAD FAITH, OR WITHOUT SUBSTANTIAL GROUNDS, THERE IS NO BASIS FOR OUR OFFICE TO TAKE EXCEPTION.

WE HAVE HELD THAT A "BRAND NAME OR EQUAL" SPECIFICATION DOES NOT MEAN "IDENTICAL". 38 COMP. GEN. 291 (1958). TO READ SUCH A REQUIREMENT INTO THE SPECIFICATION WOULD BE PRACTICALLY THE SAME AS OMITTING THE "OR EQUAL", WHICH WOULD MAKE THE SPECIFICATION UNDULY RESTRICTIVE. ALL THAT IS REQUIRED IS A DETERMINATION THAT THE ITEM OFFERED AS EQUAL TO THE BRAND NAME ITEM IS EQUALLY CAPABLE OF MEETING THE ACTUAL NEEDS OF THE GOVERNMENT AND CONFORMS TO THE SALIENT CHARACTERISTICS STATED. B 153452, MARCH 26, 1964; B-166031, MAY 8, 1969.

ON THE BASIS OF THE RECORD BEFORE US, WE CANNOT SAY THAT THE SPECIFICATION WAS DEFECTIVE OR THAT PSC'S MODEL NO. 462A-1 IS NOT "EQUAL" AS YOU CONTEND. ACCORDINGLY, YOUR PROTEST IS DENIED.

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