B-170200, DEC. 10, 1970

B-170200, DEC. 10, 1970

BID PROTEST DENIAL OF PROTEST OF EG & G, INC., AGAINST THE AWARD OF A CONTRACT FOR A SPECTRORADIOMETER ISSUED BY THE ENVIRONMENTAL HEALTH SERVICES, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE TO ANY OTHER BIDDER. WHERE A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION IS USED, IT SHOULD SET FORTH SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT SO THAT BIDDERS OFFERING EQUAL PRODUCTS SHOULD NOT HAVE TO GUESS AT THE ESSENTIAL QUALITIES OF THE BRAND ITEM. IMPOSSIBILITY OF DRAFTING ADEQUATE PERFORMANCE SPECIFICATIONS DOES NOT JUSTIFY "BRAND NAME OR EQUAL" METHOD OF PROCUREMENT BUT SUGGESTS NEGOTIATION IN ACCORDANCE WITH FPR 1 3.210(A)13. IN VIEW OF THE FACT THAT DELIVERY HAS ALREADY BEEN MADE, REMEDIAL ACTION IS IMPOSSIBLE AND, THEREFORE, PROTEST MUST BE DENIED.

TO EG&G, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 30, 1970, AND YOUR LETTER DATED JULY 1, 1970, WITH ATTACHMENTS, PROTESTING THE AWARD OF CONTRACT UNDER INVITATION FOR BIDS NO. 70-38-5-5-70, ISSUED BY THE ENVIRONMENTAL HEALTH SERVICE, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, TO ANY BIDDER OTHER THAN EG&G.

THE SUBJECT SOLICITATION, ISSUED MARCH 26, 1970, CALLED FOR A SPECTRORADIOMETER DESCRIBED ON PAGE 3 OF THE INVITATION AS FOLLOWS:

"SPECTRORADIOMETER, CONSISTING OF THE FOLLOWING:

SPECTRORADIOMETER, ULTRAVIOLET-VISIBLE SYSTEM (S-5) W/DIGITAL READOUT, EG&G MODEL 580/585, OR EQUAL. 1 EA.

INFRARED (S-1) SET INCLUDING GRATING, FILTER AND EG&G 580-23A DETECTOR HEAD, OR EQUAL.

1 SET

VARIABLE SLIT SET (0-6 MM) EG&G MODEL 585-20-24 OR EQUAL. 1 EA.

NARROW BEAM ADAPTER/LASER ATTENUATOR, EG&G MODEL 580-00-11, OR EQUAL.

1 EA.

WAVELENGTH TRANSDUCER, EG&G MODEL 585-11-11, OR EQUAL. 1 EA.

RADIOMETER, MODEL 580 WITH 580-11A INDICATOR UNIT AND 580-22AS-20) DETECTOR HEAD. EG&G, OR EQUAL. 1 EA.

NARROW BEAM ADAPTER LASER BEAM ATTENUATOR, EG&G 580-00-11, OR EQUAL.

1 EA.

POWER SUPPLY FOR LIGHT STANDARD, EG&G 590-11, OR EQUAL. 1 EA." PRECEDING THE ABOVE DESCRIPTION, IN ACCORDANCE WITH THE REQUIREMENTS OF PARAGRAPH 1-1.307-6 OF THE FEDERAL PROCUREMENT REGULATIONS, THE INVITATION STATED:

"NOTE: THE ITEMS CALLED FOR IN THIS INVITATION FOR BIDS HAS BEEN IDENTIFIED 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 A PRODUCT THAT WILL BE SATISFACTORY."

BIDS WERE RECEIVED FROM EG&G AND CINTRA, INCORPORATED. IT IS ADMINISTRATIVELY REPORTED THAT IT WAS DETERMINED AT BID OPENING ON MAY 5, 1970, THAT BOTH OFFERS WERE RESPONSIVE TO THE REQUIREMENTS OF THE SOLICITATION PENDING TECHNICAL EVALUATION. IT IS REPORTED THAT THE TWO OFFERS WERE THEN FORWARDED TO THE SOUTHWESTERN RADIOLOGICAL HEALTH LABORATORY, LAS VEGAS, NEVADA, FOR TECHNICAL EVALUATION. BY LETTERS DATED JUNE 5 AND 17, 1970, THE CONTRACTING OFFICER WAS ADVISED BY LABORATORY PERSONNEL THAT THE CINTRA OFFER MET THE CONTRACT SPECIFICATIONS AND RECOMMENDED ITS ACCEPTANCE.

BY LETTER DATED JUNE 24, 1970, TO THE ENVIRONMENTAL HEALTH SERVICE, EG&G PRESENTED A DETAILED ANALYSIS OF CINTRA'S PROPOSAL CONCLUDING THAT CINTRA'S SYSTEM WAS NOT EQUAL TO THE EG&G SYSTEM SPECIFIED IN THE INVITATION. IT IS REPORTED THAT LABORATORY PERSONNEL THEN CONTACTED CINTRA FOR CLARIFICATION OF THE POINTS MADE BY EG&G. THE ADMINISTRATIVE REPORT CONTAINS A COPY OF A LETTER DATED JUNE 26, 1970, FROM CINTRA TO THE SOUTHWESTERN RADIOLOGICAL HEALTH LABORATORY IN ACCORDANCE WITH THE LABORATORY'S REQUEST. BY MEMORANDUM DATED JUNE 29, 1970, AND LETTER TO THE CONTRACTING OFFICER DATED JUNE 30, 1970, FROM THE TECHNICAL EVALUATORS AT THE SOUTHWESTERN LABORATORY, IT WAS AGAIN CONCLUDED THAT THE CINTRA SYSTEM WAS EQUAL TO THAT OF EG&G.

FPR SEC 1-1.307-4(B) PROVIDES:

"'BRAND NAME OR EQUAL' PURCHASE DESCRIPTIONS SHOULD SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCTS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT *** ." THIS CONNECTION, TWO RECENT DECISIONS OF OUR OFFICE (49 COMP. GEN. 274 (1969) AND 48 COMP. GEN. 441 (1968) HAVE CITED WITH APPROVAL THE FOLLOWING RULE EXPRESSED IN B-157857, JANUARY 26, 1966:

" *** BIDDERS OFFERING 'EQUAL' PRODUCTS SHOULD NOT HAVE TO GUESS AT THE ESSENTIAL QUALITIES OF THE BRAND NAME ITEM. UNDER THE REGULATIONS THEY ARE ENTITLED TO BE ADVISED IN THE INVITATION OF THE PARTICULAR FEATURES OR CHARACTERISTICS OF THE REFERENCED ITEM WHICH THEY ARE REQUIRED TO MEET. AN INVITATION WHICH FAILS TO LIST ALL THE CHARACTERISTICS DEEMED ESSENTIAL OR LISTS CHARACTERISTICS WHICH ARE NOT ESSENTIAL, IS DEFECTIVE. 41 COMP. GEN. 242, 250-51; B-154611, AUGUST 28, 1964. SEE, ALSO, 38 COMP. GEN. 345 AND B-157081, OCTOBER 18, 1965."

AN EXAMINATION OF THE SUBJECT INVITATION REVEALS THAT THE CONTRACTING OFFICER FAILED TO COMPLY WITH THE PROVISIONS OF FPR 1-1.307-4(B) (QUOTED ABOVE) SINCE THE SOLICITATION DID NOT SET FORTH SUCH SALIENT CHARACTERISTICS. THUS, ACCORDING TO THE RULE SET FORTH IN OUR DECISIONS CITED ABOVE, THE INVITATION WAS DEFECTIVE AND NO AWARD SHOULD HAVE BEEN MADE THEREUNDER.

FURTHERMORE, THE CONTRACTING OFFICER JUSTIFIES SOLICITING OFFERS ON A BRAND NAME OR EQUAL BASIS DUE TO AN "IMPOSSIBILITY TO DRAFT ADEQUATE PERFORMANCE SPECIFICATIONS." IN THIS CONNECTION, WE QUOTE FROM THE ADMINISTRATIVE REPORT DATED AUGUST 19, 1970:

" *** IN DEFENSE OF HIS POSITION THE CONTRACTING OFFICER HAS STATED THAT WHERE THE EQUIPMENT TO BE PROCURED IS FOR USE IN PURE RESEARCH, THE COGNIZANT PROGRAM PERSONNEL HAVE NO DEFINITE PARAMETERS AS TO THE PERFORMANCE CAPABILITIES OF THE EQUIPMENT REQUIRED OTHER THAN THAT ITS PERFORMANCE (THE TERM IS NOT FURTHER QUALIFIED) CANNOT BE LESS THAN THAT WHICH THE 'BRAND NAME' EQUIPMENT AFFORDS. IT WOULD APPEAR THAT UNDER THE CIRCUMSTANCES NEGOTIATION IN ACCORDANCE WITH FPR 1 3.210(A)(13) WOULD HAVE BEEN A MORE APPROPRIATE MEANS OF OBTAINING THE DESIRED COMPETITION. *** ." WE AGREE WITH THE ANALYSIS SET FORTH ABOVE IN THAT NEGOTIATION WOULD HAVE BEEN A MORE APPROPRIATE METHOD OF PROCUREMENT. IN THIS REGARD WE STATED IN B-155826, JANUARY 21, 1965, AS FOLLOWS:

"WHILE THE PREPARATION OF SPECIFICATIONS STATING THE MINIMUM NEEDS OF THE GOVERNMENT AND FACTUAL DETERMINATIONS AS TO WHETHER EQUIPMENT OFFERED CONFORM TO THOSE SPECIFICATIONS IS PRIMARILY WITHIN THE DISCRETION OF THE ADMINISTRATIVE AGENCY CONCERNED, THE PUBLIC ADVERTISING STATUTES HAVE CONSISTENTLY BEEN HELD TO REQUIRE THAT EVERY EFFOR SHOULD BE MADE BY THE PROCUREMENT AGENCIES OF THE GOVERNMENT TO STATE SPECIFICATIONS IN TERMS THAT WILL PERMIT THE BROADEST FIELD OF COMPETITION WITHIN THE NEEDS REASONABLY REQUIRED, NOT THE MAXIMUM DESIRED, AND WITHOUT INCLUDING DETAILS BY REASON OF PERSONAL PREFERENCE OR WHICH ARE PECULIAR TO THE PRODUCT OF A SINGLE FIRM. SEE 32 COMP. GEN. 384 AND 41 ID. 348. GENERAL, THE DRAFTING OF SPECIFICATIONS BY SUBSTANTIALLY ADOPTING A MANUFACTURER'S DESCRIPTION OF THE PARTICULAR FEATURES OF ITS PRODUCT PRESENTS SERIOUS PROBLEMS SINCE IT AMOUNTS IN EFFECT TO A REPRESENTATION THAT EACH OF SUCH DETAILS HAVE BEEN DETERMINED BY RESPONSIBLE AUTHORITY TO BE NECESSARY TO MEET THE MINIMUM REQUIREMENTS OF THE GOVERNMENT. IF THAT IS IN FACT THE CASE AND SUCH DETAILS MAY BE FOUND ONLY IN THE PRODUCT OF THE ONE MANUFACTURER, THEN CONSIDERATION OF NEGOTIATION OF THE PROCUREMENT IS INDICATED, OTHERWISE THE PURPOSES OF THE COMPETITIVE BIDDING PROCESS ARE LARGELY DEFEATED AND THE SUSPICION OF PARTIALITY CANNOT BE AVOIDED."

IN VIEW OF THE FACT THAT DELIVERY OF THE EQUIPMENT HAS ALREADY BEEN MADE, NO REMEDIAL ACTION IS NOW POSSIBLE. WE HAVE BEEN ADVISED BY THE AGENCY, HOWEVER, THAT APPROPRIATE STEPS HAVE ALREADY BEEN TAKEN TO AVOID REPETITION OF SUCH ERRORS IN THE CASE OF SIMILAR PROCUREMENTS IN THE FUTURE.