B-170491(2), JAN 8, 1971

B-170491(2): Jan 8, 1971

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INC.: THIS IS IN REPLY TO YOUR LETTER OF OCTOBER 30. THE NAME BRAND KIT ALSO INCLUDES STRUCTURAL FRAME MEMBERS AS WELL AS MEMBRANE REPLACEMENTS AND IT APPEARS YOU WERE AWARE OF THIS FACT. YOU OBJECT TO THE CONTRACTING OFFICER'S DETERMINATION THAT THE RADOME OFFERED BY YOUR FIRM IS NOT AN EQUAL TO THE STATED NAME BRAND. IT IS POSSIBLE TO REPLACE THE MEMBRANE PANELS IN THE SELCO RADOME WITHOUT REPLACING THE STRUCTURAL FRAME. YOU ASSUMED THAT THERE WAS NO NEED FOR SPARE FRAME MEMBERS SINCE YOU HAVE NEVER EXPERIENCED A NEED FOR REPLACEMENT OF ANY FRAME MEMBERS DURING THE GUARANTEED LIFE OF THE RADOME. AMONG WHICH WAS ITS FAILURE TO OFFER SPARE FRAME REPLACEMENTS. THE REPORT STATES THAT THERE IS A NEED FOR SPARE FRAME MEMBERS BECAUSE OF THE POSSIBILITY OF DAMAGE BY SMALL ARMS FIRE OR BOMBS.

B-170491(2), JAN 8, 1971

BID PROTEST - BRAND NAME PRODUCT DENIAL OF PROTEST BY SELCO-U.S., INC., AGAINST PROPOSED REJECTION OF ITS BID INCIDENT TO AN INVITATION SOLICITING BIDS FOR METAL SPACE FRAME RADOMES ISSUED BY FORT MONMOUTH PROCUREMENT DIVISION. AS THE PRODUCT OFFERED BY PROTESTANT DID NOT INCLUDE A SPARE PARTS KIT INCLUDING SPARE STRUCTURAL FRAME MEMBERS DEEMED A SALIENT CHARACTERISTIC OF THE BRAND NAMED PRODUCT IN THE INVITATION, AND THE LACK OF WHICH AFFECTS THE SUITABILITY OF THE PRODUCT FOR ITS INTENDED USE, AN AWARD TO PROTESTANT WOULD NOT BE BASED UPON A BID WHICH CONFORMS WITH THE INVITATION, OR RESULT IN THE MOST ADVANTAGEOUS CONTRACT TO THE GOVERNMENT, AS REQUIRED BY 10 U.S.C. 2305(C) AND THEREFORE THE PROTEST MUST BE DENIED.

TO SELCO-U.S., INC.:

THIS IS IN REPLY TO YOUR LETTER OF OCTOBER 30, 1970, AND ENCLOSURES, PROTESTING THE PROPOSED AWARD OF A CONTRACT TO A HIGHER BIDDER UNDER INVITATION FOR BIDS NO. DAAB07-70-B-0523, ISSUED BY THE FORT MONMOUTH PROCUREMENT DIVISION, FORT MONMOUTH, NEW JERSEY.

THE INVITATION SOLICITED BIDS FOR FIVE METAL SPACE FRAME RADOMES AND ANCILLARY ITEMS. IT SPECIFIED A PARTICULAR MODEL MANUFACTURED BY ELECTRONIC SPACE STRUCTURES CORPORATION (ESSCO), OR AN EQUAL PRODUCT WHICH WOULD MEET CERTAIN SALIENT CHARACTERISTICS DESCRIBED THEREIN.

THE INVITATION REQUIRED, IN PERTINENT PART, THE FURNISHING OF A SPARE PARTS KIT, ESSCO PART NO. 701-71 OR EQUAL, CONSISTING OF 82 SPARE PANELS, REPRESENTING TEN PERCENT OF THE PANEL FREQUENCY IN THE ASSEMBLED RADOMES, WITH A MINIMUM OF AT LEAST ONE OF EACH TYPE. THE NAME BRAND KIT ALSO INCLUDES STRUCTURAL FRAME MEMBERS AS WELL AS MEMBRANE REPLACEMENTS AND IT APPEARS YOU WERE AWARE OF THIS FACT.

ESSENTIALLY, YOU OBJECT TO THE CONTRACTING OFFICER'S DETERMINATION THAT THE RADOME OFFERED BY YOUR FIRM IS NOT AN EQUAL TO THE STATED NAME BRAND.

THE DESCRIPTION OF THE SPARE PARTS KIT SUBMITTED WITH YOUR BID CLEARLY INDICATES THAT YOU DID NOT INTEND TO FURNISH SPARE STRUCTURAL FRAME MEMBERS SINCE, UNLIKE THE ESSCO RADOME, IT IS POSSIBLE TO REPLACE THE MEMBRANE PANELS IN THE SELCO RADOME WITHOUT REPLACING THE STRUCTURAL FRAME. MOREOVER, YOU ASSUMED THAT THERE WAS NO NEED FOR SPARE FRAME MEMBERS SINCE YOU HAVE NEVER EXPERIENCED A NEED FOR REPLACEMENT OF ANY FRAME MEMBERS DURING THE GUARANTEED LIFE OF THE RADOME. IN VIEW OF OUR CONCLUSIONS STATED BELOW IT WOULD APPEAR NECESSARY TO CONSIDER ONLY WHETHER YOUR BID MUST BE REJECTED BECAUSE OF THE SPARE PARTS KIT OFFERED THEREIN.

THE PROCURING ACTIVITY HAS TAKEN THE POSITION THAT YOUR BID MUST BE REJECTED BECAUSE IT FAILED TO MEET CERTAIN SALIENT FEATURES OF THE BRAND NAME PRODUCT, AMONG WHICH WAS ITS FAILURE TO OFFER SPARE FRAME REPLACEMENTS, THE LACK OF WHICH AFFECTS THE SUITABILITY OF THE PRODUCT FOR ITS INTENDED USE. THE REPORT STATES THAT THERE IS A NEED FOR SPARE FRAME MEMBERS BECAUSE OF THE POSSIBILITY OF DAMAGE BY SMALL ARMS FIRE OR BOMBS. IT IS STATED THE GOVERNMENT HAS EXPERIENCED DAMAGE TO FRAME MEMBERS REQUIRING THEIR REPLACEMENT.

WE SEE NO VALID BASIS FOR DISAGREEMENT WITH THE DEPARTMENT'S CONCLUSIONS. ACCORDINGLY, WE MUST CONCLUDE THAT, UNLIKE THE NAME BRAND, THE PRODUCT OFFERED BY YOUR BID DOES NOT MEET THE GOVERNMENT'S MINIMUM NEEDS; THAT YOU DID NOT BID ON THE BASIS OF AN EQUAL PRODUCT; AND THAT AN AWARD TO YOU THEREFORE WOULD NOT BE BASED UPON A BID WHICH CONFORMS WITH THE INVITATION, OR RESULT IN THE MOST ADVANTAGEOUS CONTRACT TO THE GOVERNMENT, AS REQUIRED BY 10 U.S.C. 2305(C). FOR THESE REASONS YOUR PROTEST AGAINST THE PROPOSED REJECTION OF YOUR BID MUST BE DENIED.