B-169482(1), SEP. 16, 1970

B-169482(1): Sep 16, 1970

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

FAILURE OF SECOND LOW BIDDER TO FURNISH DESCRIPTIVE LITERATURE SHOWING THAT "OR EQUAL" EQUIPMENT WOULD BE INTERCHANGEABLE WITH THE "BRAND NAME" EQUIPMENT AS REQUIRED IN THE SPECIFICATIONS AND REQUIRES CONCURRENCE WITH THE ADMINISTRATIVE DETERMINATION THAT SUCH BID IS NONRESPONSIVE. THE PROCUREMENT ITEMS ARE SONAR SOUNDING SETS AND ASSOCIATED SOFTWARE. EACH SET WAS TO CONSIST OF ONE TRANSMITTER RECEIVER. THE TRANSDUCER BEAM WIDTH WILL BE 20 DEGREES OR - 2 DEGREES AT -6 DB LEVEL. WHICH IS PRESCRIBED BY PARAGRAPH 1-1.307-6 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR). INCLUDED THE FOLLOWING PERTINENT PROVISIONS: "(A) IF ITEMS CALLED FOR BY THIS INVITATION FOR BIDS HAVE BEEN IDENTIFIED IN THE SCHEDULE BY A 'BRAND NAME OR EQUAL' DESCRIPTION.

B-169482(1), SEP. 16, 1970

BID PROTEST - BRAND-NAME OR EQUAL - DESCRIPTIVE LITERATURE DENIAL OF PROTEST OF SECOND LOW BIDDER AGAINST REJECTION OF BID FOR FURNISHING SONAR SOUNDING EQUIPMENT FOR COAST GUARD ON BASIS THAT DESCRIPTIVE LITERATURE DID NOT INDICATE THAT EQUIPMENT WOULD BE INTERCHANGEABLE. FAILURE OF SECOND LOW BIDDER TO FURNISH DESCRIPTIVE LITERATURE SHOWING THAT "OR EQUAL" EQUIPMENT WOULD BE INTERCHANGEABLE WITH THE "BRAND NAME" EQUIPMENT AS REQUIRED IN THE SPECIFICATIONS AND REQUIRES CONCURRENCE WITH THE ADMINISTRATIVE DETERMINATION THAT SUCH BID IS NONRESPONSIVE.

TO ELECTRONICS & MANUFACTURING CORPORATION:

WE REFER TO YOUR PROTEST BY TELEGRAM DATED APRIL 3, 1970, AS SUPPLEMENTED BY SUBSEQUENT CORRESPONDENCE FROM YOU AND YOUR ATTORNEYS, AGAINST THE REJECTION OF A BID SUBMITTED BY YOU UNDER INVITATION FOR BIDS (IFB) CG- 02,609-A, ISSUED JANUARY 21, 1970, BY THE UNITED STATES COAST GUARD, DEPARTMENT OF TRANSPORTATION. THE PROCUREMENT ITEMS ARE SONAR SOUNDING SETS AND ASSOCIATED SOFTWARE.

THE IFB, WHICH INCLUDED A NOTICE OF A TOTAL SMALL BUSINESS SET ASIDE, DESCRIBED THE EQUIPMENT AS "SONAR SOUNDING SET, ROSS LABORATORIES, INC., MODEL AN/SQN-13 OR EQUAL" AS DELINEATED IN A FOUR PAGE ATTACHMENT TO THE IFB. EACH SET WAS TO CONSIST OF ONE TRANSMITTER RECEIVER, ONE DUAL RANGE INDICATOR WITH 50 FEET OF CABLE, ONE TRANSDUCER WITH 20 FEET OF CABLE, AND TWO COMMERCIAL TYPE TECHNICAL MANUALS.

THE ATTACHMENT REFERENCED IN THE PURCHASE DESCRIPTION SET FORTH VARIOUS SALIENT CHARACTERISTICS OF THE EQUIPMENT WHICH THE GOVERNMENT DESIRED TO MEET ITS MINIMUM NEEDS. WITH RESPECT TO THE TRANSDUCER, THE ATTACHMENT INCLUDED THE FOLLOWING PROVISIONS:

"TRANSDUCER - THE TRANSDUCER SHALL BE THE CERAMIC CRYSTAL TYPE. RESONANT FREQUENCY SHALL BE NO LESS THAN 50 KHZ AND NOT MORE THAN 150 KHZ. THE TRANSDUCER BEAM WIDTH WILL BE 20 DEGREES OR - 2 DEGREES AT -6 DB LEVEL. THE SIDE LOBE RADIATION SHALL BE SUPPRESSED TO AT LEAST -15 DB LEVEL. THE TRANSDUCER AS A PROJECTOR SHALL PRODUCE A PRESSURE OF AT LEAST 90 DB ABOVE ONE MICROBAR AT 1 YARD FROM THE ACTIVE TRANSDUCER FACE. THE TRANSDUCER SHALL BE CAPABLE OF THRU-HULL MOUNTING IN A STEEL, ALUMINUM, PLASTIC, WOOD OR FIBER GLASS HULL BOAT. THE TRANSDUCER SHALL BE HIGHLY CORROSION RESISTANT TO THE EFFECTS OF SALT WATER. THE TRANSDUCER MUST BE ELECTRICALLY AND MECHANICALLY INTERCHANGEABLE WITH THE ROSS LABORATORIES, INC., MODEL TR-209/SQN-13 TO ALLOW DIRECT REPLACEMENT OF EITHER THE SET OR THE TRANSDUCER WITHOUT CHANGING BOTH AND IN THE CASE OF THE TRANSDUCER WITHOUT ALTERATION TO THE UNDERWATER PORTION OF THE HULL. THEREFORE, THE SONAR SOUNDING SET SUPPLIED MUST BE ELECTRICALLY AND MECHANICALLY IDENTICAL TO THE AN/SQN 13."

PAGE 4 OF THE BID SCHEDULE CARRIED A NOTATION CALLING THE ATTENTION OF BIDDERS TO THE BRAND NAME OR EQUAL CLAUSE INCLUDED IN THE IFB, AND PROVIDED SPACE FOR BIDDERS TO IDENTIFY ANY EQUAL PRODUCTS OFFERED BY MANUFACTURER'S NAME, BRAND, AND NUMBER. THE CLAUSE, WHICH IS PRESCRIBED BY PARAGRAPH 1-1.307-6 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), INCLUDED THE FOLLOWING PERTINENT PROVISIONS:

"(A) IF ITEMS CALLED FOR BY THIS INVITATION FOR BIDS 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. BIDS OFFERING 'EQUAL' PRODUCTS WILL 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 INVITATION FOR BIDS.

"(C)(1) 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 (I) DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE INVITATION FOR BIDS AND (II) 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 REFERENCES TO INFORMATION PREVIOUSLY FURNISHED OR TO INFORMATION OTHERWISE AVAILABLE TO THE PURCHASING ACTIVITY."

OF THE FIVE BIDS WHICH THE COAST GUARD RECEIVED IN RESPONSE TO THE IFB, THE LOWEST WAS FROM HYDRO SPACE SCIENCES, INC. (HYDRO SPACE), OFFERING THE BIDDER'S OWN HYDRO-1000 EQUIPMENT AT NET UNIT PRICES OF $538.27 FOR 275 UNITS (TOTAL $148,024.25) AND $529.94 FOR 300 UNITS (TOTAL $158,982.00). YOUR BID, OFFERING YOUR MODEL 9086 EQUIPMENT AT UNIT PRICES OF $663.67 FOR 275 UNITS (TOTAL $182,509.25) AND $660.00 FOR 300 UNITS (TOTAL $198,000.00) SUBJECT TO A PROMPT PAYMENT DISCOUNT OF 10 PERCENT, 10 OR 20 CALENDAR DAYS, WAS SECOND LOW. THE BID OF ROSS LABORATORIES, INC. (ROSS), OFFERING THE BRAND NAME EQUIPMENT AT A UNIT PRICE OF $647.00 (TOTALS $177,925.00 FOR 275 UNITS AND $194,100.00 FOR 300 UNITS) SUBJECT TO A PROMPT PAYMENT DISCOUNT OF 2 PERCENT 20 DAYS, WAS THIRD LOW.

EXAMINATION OF THE HYDRO SPACE BID DISCLOSED THAT WHILE IT WAS ACCOMPANIED BY A LETTER WHICH INCLUDED A STATEMENT THAT THE HYDRO-1000 IS ELECTRICALLY AND MECHANICALLY IDENTICAL TO THE ROSS AN/SQN-13 UNIT AND THAT THE HYDRO-1000 TRANSDUCER IS ELECTRICALLY AND MECHANICALLY INTERCHANGEABLE WITH THE ROSS TR-209/SQN-13 TRANSDUCER, THE DESCRIPTIVE DATA FURNISHED WITH THE BID WAS NOT ADEQUATE FOR THE COAST GUARD TO MAKE THE DETERMINATION RESPECTING THE INTERCHANGEABILITY OF THE TRANSDUCER. ACCORDINGLY, THE HYDRO SPACE BID WAS REJECTED AS NONRESPONSIVE, AND NOTICE WAS GIVEN TO THE BIDDER BY THE CONTRACTING OFFICER IN A LETTER DATED MARCH 26, 1970.

THE RECORD SHOWS THAT YOUR BID WAS ACCOMPANIED BY A LETTER DATED FEBRUARY 24, 1970, IN WHICH YOU STATED THAT YOU PROPOSED TO FURNISH "OUR MODEL NUMBER 9086 WHICH IS ELECTRICALLY AND MECHANICALLY INTERCHANGEABLE WITH THE ROSS LABORATORIES MODEL AN/SQN-13." WITH REFERENCE TO THE TRANSDUCER, YOU STATED IN YOUR LETTER THAT YOU CONSULTED TRANSDUCER PRODUCTS ON THE PRODUCTION OF THE TRANSDUCERS AND HAD BEEN ASSURED THERE WAS NO PROBLEM IN PRODUCING THE UNITS IN ACCORDANCE WITH THE SPECIFICATIONS.

THE DESCRIPTIVE DATA INCLUDED WITH YOUR BID CONSISTED OF LITERATURE ON YOUR "SEA ECHO" FISH AND DEPTH FINDER, WHICH YOUR LETTER INDICATED HAD BEEN DESIGNED BY A MEMBER OF YOUR STAFF, AND ONE TRANSMITTER RECEIVER SCHEMATIC DIAGRAM, ONE REMOTE INDICATOR LAYOUT, ONE RECEIVER TRANSMITTER LAYOUT, AND ONE BLOCK DIAGRAM LABELED DRAWING NO. 201405. NO REFERENCE TO YOUR MODEL 9086 APPEARED ON ANY OF THE MATERIAL; HOWEVER, THE FINAL PARAGRAPH OF YOUR BID TRANSMITTAL LETTER INDICATED THAT THE LAST FOUR ITEMS RELATED TO THE EQUIPMENT WHICH YOU PROPOSED TO FURNISH UNDER THE IFB.

BY LETTER DATED MARCH 26, 1970, THE CONTRACTING OFFICER NOTIFIED YOU OF THE REJECTION OF YOUR BID. IN THIS CONNECTION, THE LETTER STATED, "YOUR BID WAS NONRESPONSIVE IN THAT YOUR PROPOSAL SPECIFIED A MODEL 9086 UNDER THE BRAND NAME OR EQUAL CLAUSE. THE ONLY DATA SUPPLIED WAS FOR A 'SEA ECHO' WHICH IS A 6-14 VOLT DC, 300 FOOT MAXIMUM SCALE UNIT AND IS NOT COMPARABLE."

IN YOUR PROTEST YOU STATE YOUR BELIEF THAT THE DATA WHICH YOU FURNISHED WITH YOUR BID WAS MISCONSTRUED AND NOT GIVEN PROPER EVALUATION. IN THIS REGARD, YOU STATE THAT THE DATA ON THE "SEA ECHO" WAS INTENDED ONLY TO EVIDENCE THE QUALIFICATIONS OF THE STAFF MEMBER WHO HAD DESIGNED IT AND THAT THE REMAINING DATA, I.E., THE SCHEMATIC, LAYOUT DRAWINGS, AND BLOCK DIAGRAM, RELATED TO YOUR MODEL 9086.

YOU FURTHER STATE THAT IN A CONVERSATION WITH THE COAST GUARD CONTRACTING OFFICER CONCERN WAS EXPRESSED REGARDING THE INTERCHANGEABILITY OF YOUR MODEL 9086, AND PARTICULARLY THE TRANSDUCER, WITH THE ROSS EQUIPMENT. YOU SAY THAT YOU DO NOT UNDERSTAND THE COAST GUARD'S CONCERN SINCE TRANSDUCER PRODUCTS, YOUR PROPOSED SUPPLIER OF THE UNITS, WHICH WAS MENTIONED IN YOUR LETTER OF FEBRUARY 24 IS ONE OF THE LARGEST MANUFACTURERS OF TRANSDUCERS. YOU SUGGEST THAT, INASMUCH AS YOU ARE LOCATED NEAR THE ISSUING ACTIVITY, THE COAST GUARD SHOULD HAVE COMMUNICATED WITH YOU TO RESOLVE ANY QUESTION REGARDING YOUR BID, PARTICULARLY SINCE THE DIFFERENCE BETWEEN YOUR BID AND THE AMOUNT AT WHICH AWARD WAS MADE TO ROSS IS APPROXIMATELY $14,000. ADDITION, YOU CONTEND THAT THE SUBMISSION OF THE FOUR ITEMS WHICH YOU STATE RELATE TO YOUR MODEL 9086 MADE YOUR BID RESPONSIVE.

THE CONTRACTING OFFICER STATES THAT MECHANICAL TECHNICAL DATA ON THE TRANSDUCER IS REQUISITE TO DETERMINING WHETHER THE TRANSDUCER IS INTERCHANGEABLE WITH THE ROSS TR-209/SQN-13 TRANSDUCER. THE TRANSDUCER IS AN ESSENTIAL COMPONENT OF THE SONAR SETS, AND ELECTRICAL AND MECHANICAL INTERCHANGEABILITY ALLOWS DIRECT REPLACEMENT OF EITHER THE SET OR THE TRANSDUCER WITHOUT CHANGING BOTH AND, IN THE CASE OF THE TRANSDUCER, WITHOUT ALTERATION TO THE UNDERWATER PORTION OF THE HULL. SUCH INTERCHANGEABILITY IS NECESSARY INASMUCH AS THE TRANSDUCER IN THE EQUIPMENT PROCURED MUST BE CAPABLE OF REPLACEMENT AT SEA UNDER COMBAT OR SEARCH AND RESCUE CONDITIONS WITHOUT VIOLATING THE WATERTIGHT INTEGRITY OF THE VESSEL OR REQUIRING A RETURN TO PORT FOR DRY-DOCKING AND INSTALLATION. YOUR BID, THE CONTRACTING OFFICER POINTS OUT, DID NOT INCLUDE ANY CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER INFORMATION ON THE TRANSDUCER FROM WHICH THE TECHNICAL DETERMINATION OF INTERCHANGEABILITY COULD BE MADE.

WHEN A BRAND NAME OR EQUAL PURCHASE DESCRIPTION IS USED IN A SOLICITATION IT MUST SET FORTH THE SALIENT CHARACTERISTICS OF THE REFERENCED ITEMS WHICH ARE NECESSARY TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT, AS REQUIRED BY FPR 1-1.307-4(B), AND INCLUDE THE BRAND NAME OR EQUAL CLAUSE PRESCRIBED BY FPR 1-1.307-6. IT IS INCUMBENT UPON EACH BIDDER OFFERING OTHER THAN THE BRAND NAME ITEMS TO PROVIDE WITH ITS BID SUCH DESCRIPTIVE DATA AS IS NECESSARY TO ENABLE THE CONTRACTING AGENCY TO DETERMINE THAT THE ITEMS OFFERED WILL MEET THE SPECIFIED NEEDS OF THE GOVERNMENT. BLANKET STATEMENT BY A BIDDER OFFERING TO MEET ALL SPECIFICATION REQUIREMENTS DOES NOT SUBSTITUTE OR COMPENSATE FOR INADEQUATE DESCRIPTIVE DATA, AND REJECTION OF THE BID AS NONRESPONSIVE IS THEREFORE REQUIRED. COMP. GEN. 312, 316 (1965); 41 ID. 366 (1961).

IN THE EXERCISE OF ITS RESPONSIBILITY FOR DETERMINING ITS MINIMUM NEEDS, THE COAST GUARD DETERMINED THAT THE TRANSDUCER USED IN THE SONAR SOUNDING EQUIPMENT TO BE PROCURED UNDER THE IFB SHOULD BE INTERCHANGEABLE WITH THE TRANSDUCER USED IN THE ROSS EQUIPMENT. THE LANGUAGE INCORPORATED IN THE IFB CLEARLY SETS FORTH THIS REQUIREMENT. FURTHER, THE STATEMENTS IN THE CONTRACTING OFFICER'S REPORT RESPECTING THE NEED FOR SUCH FEATURE UNDER COMBAT AND RESCUE CONDITIONS, IN OUR OPINION, AFFORD NO QUESTION AS TO THE JUSTIFICATION FOR THIS REQUIREMENT.

WHILE IT MAY BE THAT THE TRANSDUCER WHICH YOU INTENDED TO FURNISH MEETS THE COAST GUARD'S REQUIREMENT FOR INTERCHANGEABILITY WITH THE ROSS EQUIPMENT, THE DATA FURNISHED WITH YOUR BID NEITHER ESTABLISHED THAT FACT NOR CLEARLY IDENTIFIED THE TRANSDUCER WHICH YOU WOULD PROVIDE. ACCORDINGLY, WE CONCUR WITH THE POSITION OF THE COAST GUARD THAT YOUR BID WAS NONRESPONSIVE TO THE REQUIREMENTS OF THE BRAND NAME OR EQUAL CLAUSE.

FURTHER, FOR THE COAST GUARD TO HAVE PERMITTED YOU, AS YOU HAVE SUGGESTED, TO SUPPLY AFTER BID OPENING WHATEVER DATA WAS NECESSARY TO EVIDENCE COMPLIANCE OF YOUR UNIDENTIFIED TRANSDUCER WITH THE IFB'S TRANSDUCER REQUIREMENTS WOULD HAVE CONSTITUTED A VIOLATION OF THE RULES OF COMPETITIVE BIDDING SINCE IT WOULD HAVE BEEN TANTAMOUNT TO CHANGING YOUR BID AFTER OPENING. 36 COMP. GEN. 416, 419 (1956). ADDITIONALLY, THE DIFFERENTIAL OF $14,000 BETWEEN YOUR BID AND THE LOWEST RESPONSIVE BID SUBMITTED BY ROSS DOES NOT JUSTIFY A DEPARTURE FROM SUCH RULES SINCE IT IS MORE IN THE PUBLIC'S INTEREST TO PRESERVE THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM THAN TO REALIZE A PECUNIARY ADVANTAGE IN A PARTICULAR CASE. 41 COMP. GEN. 412, 416 (1961).

WE ARE MINDFUL THAT THE CONTRACTING OFFICER'S LETTER OF MARCH 26 NOTIFIED YOU OF A DIFFERENT BASIS FOR HOLDING YOUR BID TO BE NONRESPONSIVE, WHICH APPEARS TO BE QUESTIONABLE IN THAT IT REFLECTED THE ASSUMPTION BY THE COAST GUARD THAT ALL OF THE DESCRIPTIVE DATA SUBMITTED WITH YOUR BID RELATED TO THE "SEA ECHO". HOWEVER, IN VIEW OF THE INADEQUACY OF THE DATA SUBMITTED WITH YOUR BID, AS DISCUSSED ABOVE, WE MUST AGREE THAT YOUR BID WAS NOT RESPONSIVE TO THE INVITATION.

IN VIEW OF THE FOREGOING WE FIND NO LEGAL BASIS TO QUESTION THE ACTIONS OF THE COAST GUARD IN REJECTING YOUR BID AND IN MAKING AWARD TO ROSS AS THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER. YOUR PROTEST IS THEREFORE DENIED.