B-169482(2), SEP. 16, 1970

B-169482(2): Sep 16, 1970

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FAILURE OF LOW BIDDER TO FURNISH DESCRIPTIVE DATA FOR HIS ELECTRONIC EQUIPMENT AS REQUIRED UNDER A "BRAND NAME OR EQUAL" INVITATION TO SHOW THAT EQUIPMENT WAS INTERCHANGEABLE REQUIRES REJECTION OF BID AS NONRESPONSIVE. TO DETERMINE WHETHER BIDDER'S TRANSDUCER WAS MECHANICALLY AND ELECTRICALLY INTERCHANGEABLE WITH THE ROSS TRANSDUCER. WHICH WAS OF A "BRAND NAME" ALSO CONTRACTING OFFICER WAS UNABLE TO OBTAIN INFORMATION FROM ANY REASONABLY AVAILABLE SOURCE. THEREFORE BID WAS DETERMINED NONRESPONSIVE. EACH SET WAS REQUIRED TO INCLUDE 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).

B-169482(2), SEP. 16, 1970

BID PROTEST - BRAND NAME OR EQUAL - DESCRIPTIVE LITERATURE DENIAL OF PROTEST OF HYDRO SPACE SCIENCES, INC., LOW BIDDER, AGAINST THE REJECTION OF BID AND AWARD OF CONTRACT TO ROSS LABORATORIES, THIRD LOW BIDDER AND "BRAND NAME" MANUFACTURER FOR SONAR SOUNDING SETS AND ASSOCIATED SOFTWARE UNDER IFB, BY U.S. COAST GUARD, DEPT. OF TRANSPORTATION ON BASIS OF NONRESPONSIVENESS. FAILURE OF LOW BIDDER TO FURNISH DESCRIPTIVE DATA FOR HIS ELECTRONIC EQUIPMENT AS REQUIRED UNDER A "BRAND NAME OR EQUAL" INVITATION TO SHOW THAT EQUIPMENT WAS INTERCHANGEABLE REQUIRES REJECTION OF BID AS NONRESPONSIVE, SINCE EXAMINATION OF DESCRIPTIVE DATA ONLY FURNISHED INFORMATION AS TO BEAM AND WIDTH, FREQUENCY AND OTHER SPECIFICATIONS, BUT NO ELECTRICAL OR MECHANICAL CUTS, ILLUSTRATIONS OR DRAWINGS OR OTHER INFORMATION, TO DETERMINE WHETHER BIDDER'S TRANSDUCER WAS MECHANICALLY AND ELECTRICALLY INTERCHANGEABLE WITH THE ROSS TRANSDUCER, WHICH WAS OF A "BRAND NAME" ALSO CONTRACTING OFFICER WAS UNABLE TO OBTAIN INFORMATION FROM ANY REASONABLY AVAILABLE SOURCE, THEREFORE BID WAS DETERMINED NONRESPONSIVE.

TO HYDRO SPACE SCIENCES INC.:

WE REFER TO YOUR PROTEST, BY LETTER DATED APRIL 17, 1970, AGAINST THE REJECTION OF YOUR BID AND AWARD TO ANOTHER BIDDER OF A CONTRACT FOR THE FURNISHING OF SONAR SOUNDING SETS AND ASSOCIATED SOFTWARE UNDER INVITATION FOR BIDS (IFB) CG-02,609-A, ISSUED JANUARY 21, 1970, BY THE UNITED STATES COAST GUARD, DEPARTMENT OF TRANSPORTATION.

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 REQUIRED TO INCLUDE ONE TRANSMITTER RECEIVER, ONE DUAL RANGE INDICATOR WITH 50 FEET OF CABLE ATTACHED, ONE TRANSDUCER WITH 20 FEET OF CABLE ATTACHED, AND TWO COMMERCIAL TYPE TECHNICAL MANUALS.

THE ATTACHMENT REFERENCED IN THE PURCHASE DESCRIPTION SET FORTH VARIOUS SALIENT CHARACTERISTICS OF THE ROSS EQUIPMENT WHICH THE COAST GUARD DESIRED. 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 THE 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 BY MANUFACTURER'S NAME, BRAND, AND NUMBER ANY EQUAL PRODUCTS OFFERED. 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, YOUR BID OFFERING EQUIPMENT OF YOUR OWN MANUFACTURE, IDENTIFIED AS HYDRO- 1000, AT NET UNIT PRICES OF $538.27 FOR 275 UNITS (TOTAL $148,024.25) AND $529.94 FOR 300 UNITS (TOTAL $158,982.00) WAS LOWEST. THE SECOND LOW BID, BY ELECTRONICS AND MANUFACTURING CORPORATION (EMC), OFFERED EMC'S 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. THE THIRD LOW BID, BY ROSS LABORATORIES, INCORPORATED (ROSS), OFFERED THE BRAND NAME EQUIPMENT SPECIFIED IN THE PURCHASE DESCRIPTION AT A UNIT PRICE OF $647.00 (TOTALS $177,925 FOR 275 UNITS AND $194,100.00 FOR 300 UNITS) SUBJECT TO A PROMPT PAYMENT DISCOUNT OF 2 PERCENT 20 DAYS.

THE RECORD SHOWS THAT YOUR BID WAS ACCOMPANIED BY A LETTER STATING THAT YOU WERE ENCLOSING AS YOUR DESCRIPTIVE LITERATURE ON THE HYDRO 1000 MATERIAL WHICH HAD BEEN REPRODUCED FROM YOUR CATALOG. THE LETTER ALSO INCLUDED THE STATEMENT, "THE UNIT IS ELECTRICALLY AND MECHANICALLY IDENTICAL TO THE AN/SQN-13 UNIT; OUR TRANSDUCER IS ELECTRICALLY AND MECHANICALLY INTERCHANGEABLE WITH THE ROSS LABORATORIES MODEL TR 209/SQN- 13."

EXAMINATION OF YOUR DESCRIPTIVE DATA DISCLOSED THAT WHILE YOU FURNISHED SPECIFIC INFORMATION AS TO BEAM WIDTH, FREQUENCY AND OTHER SPECIFICATIONS FOR YOUR TRANSDUCER, NO ELECTRICAL OR MECHANICAL CUTS, ILLUSTRATIONS OR DRAWINGS OR OTHER INFORMATION WAS FURNISHED BY YOU FROM WHICH THE COAST GUARD COULD DETERMINE WHETHER YOUR TRANSDUCER WAS MECHANICALLY AND ELECTRICALLY INTERCHANGEABLE WITH THE ROSS TRANSDUCER. ACCORDINGLY, AND SINCE THE COAST GUARD WAS UNABLE TO OBTAIN SUCH INFORMATION FROM SOURCES REASONABLY AVAILABLE TO IT YOUR BID WAS DETERMINED TO BE NONRESPONSIVE. YOU WERE ADVISED OF THIS DETERMINATION BY THE CONTRACTING OFFICER'S LETTER OF MARCH 26. EMC'S BID WAS ALSO REJECTED AS NONRESPONSIVE, AND AWARD WAS MADE TO ROSS FOR THE BRAND NAME EQUIPMENT ON MARCH 30 AS THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER.

YOU PROTEST THAT YOUR BID WAS IMPROPERLY REJECTED. IN THIS CONNECTION, YOU ASSERT THAT SINCE YOU FURNISHED DESCRIPTIVE DATA WITH THE BID YOU WERE RESPONSIVE TO THE BRAND NAME OR EQUAL CLAUSE. IN ADDITION, YOU ASSERT THAT SUCH DATA WAS FULLY DESCRIPTIVE, AND YOU QUESTION WHY, IN VIEW OF THE PRICE VARIANCE BETWEEN YOUR BID AND THE NEXT LOW BID, THE COAST GUARD DID NOT MENTION THE DESCRIPTIVE DATA FACTOR WHEN IT COMMUNICATED WITH YOU. TO THE INTERCHANGEABILITY REQUIREMENT, YOU REFER TO THE RELATED STATEMENT QUOTED ABOVE FROM YOUR BID TRANSMITTAL LETTER, APPARENTLY IN THE BELIEF THAT SUCH STATEMENT WAS SUFFICIENT TO SATISFY THE RELATED DATA REQUIREMENT OF THE IFB.

THE COAST GUARD REPORTS THAT MECHANICAL AND ELECTRICAL INTERCHANGEABILITY OF THE TRANSDUCER WITH THE ROSS TRANSDUCER IS AN ESSENTIAL REQUIREMENT, AND THAT THE TECHNICAL DATA ON THE TRANSDUCER IS REQUIRED TO DETERMINE SUCH INTERCHANGEABILITY. THE TRANSDUCER IS A REQUISITE 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 PARTICULARLY IMPORTANT UNDER COMBAT OR SEARCH AND RESCUE CONDITIONS WHEN TRANSDUCERS MUST BE CAPABLE OF BEING REPLACED AT SEA WITHOUT VIOLATING THE WATERTIGHT INTEGRITY OF THE VESSEL AND TO ALLOW THE VESSEL TO CONTINUE OPERATIONS WITHOUT NEED FOR RETURN TO PORT FOR DRY-DOCKING AND INSTALLATION.

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 YOUR HYDRO-1000 EQUIPMENT WOULD MEET THE COAST GUARD'S REQUIREMENT FOR INTERCHANGEABILITY WITH THE ROSS EQUIPMENT, THE DATA FURNISHED WITH YOUR BID DID NOT ESTABLISH THAT FACT AND THE NECESSARY DATA WAS NOT OBTAINABLE FROM OTHER SOURCES REASONABLY AVAILABLE TO THE COAST GUARD. ALTHOUGH YOU SUGGEST THAT IN VIEW OF PRICE DIFFERENTIAL BETWEEN YOUR BID AND THE ROSS BID THE COAST GUARD SHOULD HAVE MADE FURTHER INVESTIGATION OR INQUIRY CONCERNING THE SUITABILITY OF YOUR EQUIPMENT, THE RESPONSIBILITY FOR FURNISHING ADEQUATE DATA WAS CLEARLY PLACED UPON THE BIDDER BY THE BRAND NAME OR EQUAL CLAUSE. WE HAVE NOT INTERPRETED THAT CLAUSE AS PLACING ANY OBLIGATION ON THE PROCURING ACTIVITY TO GO TO THE BIDDER AFTER BID OPENING TO OBTAIN DESCRIPTIVE DATA ON AN "EQUAL" PRODUCT. SEE B 170074, AUGUST 25, 1970.

IN THE CIRCUMSTANCES, WE SEE 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. ACCORDINGLY, YOUR PROTEST IS DENIED.