B-170074, AUG 25, 1970, 50 COMP GEN 137

B-170074: Aug 25, 1970

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CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE - DESCRIPTION AVAILABILITY THE LOW BIDDER UNDER A TOTAL SMALL BUSINESS SET-ASIDE FOR A BRAND NAME OR EQUAL PRODUCT WHO SUBMITTED DESCRIPTIVE DATA OF THE "OR EQUAL" ITEM AFTER BID OPENING - DATA NOT PUBLICLY AVAILABLE PRIOR TO BID OPENING - WAS PROPERLY REJECTED AS BEING NONRESPONSIVE ON THE BASIS THAT THE DESCRIPTIVE DATA COULD HAVE BEEN SPECIALLY PREPARED AFTER BID OPENING FOR THE PROCUREMENT. AFTER BIDS ARE OPENED. CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE - DESCRIPTION AVAILABILITY SINCE THE "BRAND NAME OR EQUAL" CLAUSE PERMITS A PURCHASING ACTIVITY TO CONSIDER OTHER INFORMATION REASONABLY AVAILABLE TO IT IN DETERMINING WHETHER AN "OR EQUAL" PRODUCT IS EQUAL TO THE BRAND NAME ITEM.

B-170074, AUG 25, 1970, 50 COMP GEN 137

CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE - DESCRIPTION AVAILABILITY THE LOW BIDDER UNDER A TOTAL SMALL BUSINESS SET-ASIDE FOR A BRAND NAME OR EQUAL PRODUCT WHO SUBMITTED DESCRIPTIVE DATA OF THE "OR EQUAL" ITEM AFTER BID OPENING - DATA NOT PUBLICLY AVAILABLE PRIOR TO BID OPENING - WAS PROPERLY REJECTED AS BEING NONRESPONSIVE ON THE BASIS THAT THE DESCRIPTIVE DATA COULD HAVE BEEN SPECIALLY PREPARED AFTER BID OPENING FOR THE PROCUREMENT, THUS GIVING THE BIDDER CONTROL OVER THE RESPONSIVENESS OF HIS BID AFTER BID OPENING - A SITUATION READILY DISTINGUISHABLE FROM THE ACCEPTABLE ONE OF PERMITTING A BIDDER TO FURNISH, AFTER BIDS ARE OPENED, DESCRIPTIVE MATERIAL IN EXISTENCE AND PUBLICLY AVAILABLE PRIOR TO THE OPENING OF BIDS. CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE - DESCRIPTION AVAILABILITY SINCE THE "BRAND NAME OR EQUAL" CLAUSE PERMITS A PURCHASING ACTIVITY TO CONSIDER OTHER INFORMATION REASONABLY AVAILABLE TO IT IN DETERMINING WHETHER AN "OR EQUAL" PRODUCT IS EQUAL TO THE BRAND NAME ITEM, AND NOTHING IN THE CLAUSE PRECLUDES A BIDDER FROM MAKING DESCRIPTIVE DATA IN EXISTENCE PRIOR TO BID OPENING - SUCH AS A PUBLISHED CATALOG - AVAILABLE TO THE PROCURING ACTIVITY AFTER BID OPENING - USE OF PREEXISTING DATA TO SECURE DETAILS OF THE PRODUCT OFFERED BY A BIDDER OBLIGED TO FURNISH THE MODEL INDICATED IN HIS BID DOES NOT CREATE THE OBJECTIONABLE SITUATION WHERE A BIDDER COULD MAKE A NONRESPONSIVE BID RESPONSIVE AFTER BID OPENING. HOWEVER, THE PROCURING AGENCY HAS NO OBLIGATION TO GO TO THE BIDDER AFTER BID OPENING, OR TO MAKE ANY UNREASONABLE EFFORT TO OBTAIN DESCRIPTIVE DATA. CONTRARY DICTUM IN B 158601, MAY 2, 1966, AND OTHER SIMILAR CASES, IS NOT THE RULE.

TO THE HENDERSON ENGINEERING COMPANY, INCORPORATED, AUGUST 25, 1970:

THIS IS IN REFERENCE TO THE LETTER OF JUNE 15, 1970, ON BEHALF OF HENDERSON ENGINEERING COMPANY, INCORPORATED (HENDERSON), WHICH IS PROTESTING AGAINST THE REJECTION OF ITS BID ON INVITATION FOR BIDS NO. N00189-70-B-0139, ISSUED ON APRIL 17, 1970, BY THE NAVAL SUPPLY CENTER (NSC), PURCHASE DEPARTMENT, NORFOLK, VIRGINIA. THE PROCUREMENT WAS A TOTAL SMALL BUSINESS SET-ASIDE.

ITEM NO. 1 UNDER SECTION E ON PAGE 6 OF THE INVITATION WAS DESCRIBED AS FOLLOWS:

AIR DRYER, HEATERLESS TYPE, MODEL HPS-60 AS MANUFACTURED BY KAHN & CO., INC. HARTFORD, CONNECTICUT, OR EQUAL.

THE QUANTITY SPECIFIED WAS 2 EACH OF THE UNITS.

SECTION F ON PAGE 6 OF THE INVITATION SETS FORTH THE SALIENT CHARACTERISTICS OF ITEM NO. 1. ALSO UNDER THIS SECTION BIDDERS WERE REQUIRED TO INSERT THE MANUFACTURER'S NAME, BRAND, AND MODEL NUMBER OF THE ITEM WHICH THE BIDDER WAS OFFERING. ON THE BOTTOM OF PAGE 6 BIDDERS WERE WARNED TO COMPLY FULLY WITH THE PROVISIONS SET FORTH IN ARMED SERVICES PROCUREMENT REGULATION (ASPR), CLAUSE 1-1206.3(B), ENTITLED "BRAND NAME OR EQUAL," SHOWN UNDER SECTION C OF THE INVITATION.

PARAGRAPH (C)(1) OF THE "BRAND NAME OR EQUAL" CLAUSE UNDER SECTION C ON PAGE 4 OF THE INVITATION PROVIDED AS FOLLOWS:

(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.

BIDS WERE OPENED ON MAY 7, 1970, AND THE BID FROM HENDERSON WAS LOW AT $7,880. THE BID FROM KAHN AND COMPANY, INCORPORATED, WAS SECOND LOW AT $9,390.

HENDERSON'S BID INDICATED THAT IT WAS OFFERING "SAHARA" MODEL "HL-12 3500" MANUFACTURED BY "HENDERSON ENG. CO." THE REPORT FROM THE CONTRACTING OFFICER STATES THAT HENDERSON'S BID WAS NOT ACCOMPANIED BY ANY DESCRIPTIVE DATA OR INFORMATION. IN THIS CONNECTION, THE CONTRACTING OFFICER HAS FORWARDED A COPY OF HENDERSON'S BID, WHICH WE ARE ADVISED IS THE EXACT BID SUBMITTED BY THAT CONCERN.

IN ACCORDANCE WITH THE "BRAND NAME OR EQUAL" PROVISION, QUOTED ABOVE, THE CONTRACTING OFFICER ATTEMPTED TO ASCERTAIN IF INFORMATION REGARDING THE EQUIPMENT OFFERED WAS REASONABLY AVAILABLE. THE EFFORT TO ASCERTAIN THIS INFORMATION INCLUDED A CHECK OF THE NSC TECHNICAL DEPARTMENT'S LIBRARY OF PUBLISHED COMMERCIAL BROCHURES, WHICH WE ARE ADVISED PRODUCED NEGATIVE RESULTS AND AN INQUIRY TO NSC'S SMALL BUSINESS SPECIALIST (SBS).

A MEMORANDUM PREPARED BY THE SBS DATED JUNE 19, 1970, INDICATES THAT DESCRIPTIVE DATA ON THE EQUIPMENT OFFERED IN HENDERSON'S BID WAS RECEIVED BY THE SBS ON MAY 12, 1970, WHICH WAS AFTER BID OPENING, AND THAT THE SBS FORWARDED THIS INFORMATION TO THE CONTRACTING OFFICER. THIS DESCRIPTIVE INFORMATION WAS SUBMITTED UNDER HENDERSON'S LETTERHEAD AND APPARENTLY WAS PREPARED BY HENDERSON AFTER OPENING SPECIFICALLY FOR THIS PROCUREMENT.

THE CONTRACTING OFFICER REJECTED HENDERSON'S BID AS NONRESPONSIVE SINCE THE BID OFFERED AN "EQUAL" PRODUCT IN LIEU OF THE BRAND NAME PRODUCT AND THE BIDDER FAILED TO FURNISH DESCRIPTIVE MATERIAL WITH THE BID.

IT WAS DETERMINED THAT THE DATA FURNISHED BY HENDERSON AFTER OPENING COULD NOT BE CONSIDERED, AND THE CONTRACTING OFFICER HAS ADVISED THAT WITHOUT DESCRIPTIVE DATA IT COULD NOT BE ESTABLISHED WHETHER THE PRODUCT HENDERSON WAS OFFERING WAS EQUAL TO THE BRAND NAME PRODUCT. AWARD WAS MADE TO KAHN AND COMPANY, INCORPORATED ON JUNE 3, 1970.

THE "BRAND NAME OR EQUAL" CLAUSE PERMITS THE PURCHASING ACTIVITY TO CONSIDER "OTHER INFORMATION REASONABLY AVAILABLE" TO IT IN DETERMINING AN "OR EQUAL" PRODUCT IS EQUAL TO THE BRAND NAME ITEM. THERE IS NOTHING IN THE "BRAND NAME OR EQUAL" CLAUSE WHICH WOULD PRECLUDE A BIDDER FROM MAKING DESCRIPTIVE DATA WHICH WAS IN EXISTENCE PRIOR TO BID OPENING, SUCH AS A PUBLISHED CATALOG, "AVAILABLE" TO THE PROCURING ACTIVITY AFTER BID OPENING. THE BIDDER ALREADY IS OBLIGATED TO FURNISH THE MODEL INDICATED IN HIS BID AND THE PRE-EXISTING DESCRIPTIVE MATERIAL MERELY GIVES THE DETAILS OF THE PRODUCT OFFERED; THEREFORE, THIS IS NOT A SITUATION WHERE A BIDDER IS PERMITTED TO MAKE A NONRESPONSIVE BID RESPONSIVE AFTER BID OPENING. IF THE CATALOG IS ONE WHICH IS PUBLICLY AVAILABLE PRIOR TO BID OPENING, THE BIDDER MERELY BECOMES AN INSTRUMENT FOR FURNISHING THE PRE- EXISTING DATA TO THE PROCURING ACTIVITY, AND IT DOES NOT SEEM MATERIAL TO US WHETHER THE DESCRIPTIVE MATERIAL IS FURNISHED TO THE PROCURING ACTIVITY BY THE BIDDER OR IS OTHERWISE OBTAINED BY THE PROCURING ACTIVITY. THIS, HOWEVER, IS NOT MEANT TO INDICATE THAT THE PROCURING ACTIVITY HAS ANY OBLIGATION TO GO TO THE BIDDER AFTER OPENING TO OBTAIN DESCRIPTIVE DATA ON AN "OR EQUAL" PRODUCT OR TO EXPEND OTHER UNREASONABLE EFFORTS TO OBTAIN THE DATA. TO THE EXTENT THAT THE DICTUM IN B-158601, MAY 2, 1966, AND THE DICTUM IN OTHER SIMILAR CASES IS INCONSISTENT WITH THIS VIEW, SUCH DICTUM SHOULD NOT BE CONSIDERED AS THE RULE REGARDING WHETHER THE PROCURING ACTIVITY MAY CONSIDER DESCRIPTIVE INFORMATION ON AN "OR EQUAL" PRODUCT FURNISHED BY A BIDDER AFTER OPENING.

IN THE INSTANT CASE WE MUST AGREE WITH THE PROCURING ACTIVITY'S DECISION THAT HENDERSON'S DESCRIPTIVE DATA FURNISHED BY THIS BIDDER AFTER OPENING SHOULD NOT BE CONSIDERED. IN THIS REGARD IT WAS NOT SHOWN TO THE PROCURING ACTIVITY THAT THE DESCRIPTIVE MATERIAL FURNISHED BY HENDERSON AFTER OPENING WAS DESCRIPTIVE DATA WHICH WAS PUBLICLY AVAILABLE PRIOR TO BID OPENING, AND THERE IS NOTHING TO SHOW THAT THE DESCRIPTIVE MATERIAL FURNISHED BY HENDERSON AFTER OPENING WAS NOT SPECIALLY PREPARED BY THIS BIDDER AFTER OPENING FOR THIS SPECIFIC PROCUREMENT. THIS SITUATION IS READILY DISTINGUISHABLE FROM THE ONE WHERE A BIDDER FURNISHES DESCRIPTIVE MATERIAL WHICH WAS IN EXISTENCE AND PUBLICLY AVAILABLE PRIOR TO BID OPENING. IF A BIDDER WERE PERMITTED TO FURNISH OTHER THAN PRE-EXISTING PUBLICLY AVAILABLE DESCRIPTIVE DATA, THE BIDDER WOULD HAVE CONTROL OVER THE RESPONSIVENESS OF HIS BID AFTER BID OPENING. IN VIEW OF THE FACT THAT WITHOUT THE DESCRIPTIVE DATA FURNISHED BY HENDERSON AFTER OPENING IT COULD NOT BE DETERMINED WHETHER HENDERSON'S OFFER WAS EQUAL TO THE BRAND NAME ITEM, WE FIND NO BASIS TO QUESTION THE REJECTION OF HENDERSON'S BID.

FOR THESE REASONS HENDERSON'S PROTEST IS DENIED.