B-170526, DEC. 1, 1970

B-170526: Dec 1, 1970

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OF MODIFICATION 3 TO THE INVITATION FOR BIDS AND THAT FURTHER DETAILED INFORMATION WAS NOT LISTED BECAUSE THE MODIFICATION DID NOT SPELL OUT WHAT WAS REQUIRED IS ACCURATE. WAS RETAINED (AND NOT MET BY ZERO) AND THAT THE MODIFICATION WAS ADDED TO ALLOW AS MUCH PARTICIPATION AS POSSIBLE. PERMITTING ZERO'S TYPE SYSTEM TO BE EVALUATED IS SUFFICIENT REASON TO REJECT THE BID ON THE BASIS OF INADEQUATE DESCRIPTION. THE INVITATION WAS ISSUED MAY 19. UNDER "SKELETONIZED" SPECIFICATIONS WHICH CONTAINED THE STANDARD ASPR CLAUSE AT 2 202.5(D)(2) ENTITLED "REQUIREMENT FOR DESCRIPTIVE LITERATURE" AND INCLUDED THE FOLLOWING STATEMENT: "THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH. THIS WAS CONFIRMED IN A LETTER DATED JUNE 3.

B-170526, DEC. 1, 1970

BID PROTEST - INADEQUATE PURCHASE DESCRIPTION DENIAL OF PROTEST OF ZERO MANUFACTURING COMPANY, LOW BIDDER, AGAINST THE AWARD OF A CONTRACT FOR ONE (1) GRIT BLASTING SYSTEM TO PRANGHORN DIVISION BY THE DEPARTMENT OF AIR FORCE, HILL AIR FORCE BASE, UTAH. WHILE ZERO'S CLAIM THAT THEIR DRAWING MEETS THE REQUIREMENTS, PARAGRAPH BY PARAGRAPH, OF MODIFICATION 3 TO THE INVITATION FOR BIDS AND THAT FURTHER DETAILED INFORMATION WAS NOT LISTED BECAUSE THE MODIFICATION DID NOT SPELL OUT WHAT WAS REQUIRED IS ACCURATE, THE FACT THAT THE REQUIREMENTS FOR DESCRIPTIVE LITERATURE DESCRIBING PHYSICAL DIMENSIONS, DESIGN, ETC., WAS RETAINED (AND NOT MET BY ZERO) AND THAT THE MODIFICATION WAS ADDED TO ALLOW AS MUCH PARTICIPATION AS POSSIBLE, PERMITTING ZERO'S TYPE SYSTEM TO BE EVALUATED IS SUFFICIENT REASON TO REJECT THE BID ON THE BASIS OF INADEQUATE DESCRIPTION.

TO ZERO MANUFACTURING COMPANY:

WE REFER TO YOUR LETTER DATED AUGUST 10, 1970, WITH ENCLOSURES, PROTESTING THE REJECTION OF YOUR LOW BID UNDER INVITATION FOR BIDS NO. F42650-70-B-5240, ISSUED BY THE DEPARTMENT OF THE AIR FORCE, HILL AIR FORCE BASE, UTAH, FOR ONE (1) GRIT BLASTING SYSTEM.

THE INVITATION WAS ISSUED MAY 19, 1970, UNDER "SKELETONIZED" SPECIFICATIONS WHICH CONTAINED THE STANDARD ASPR CLAUSE AT 2 202.5(D)(2) ENTITLED "REQUIREMENT FOR DESCRIPTIVE LITERATURE" AND INCLUDED THE FOLLOWING STATEMENT:

"THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO ACCURATE PHYSICAL DIMENSIONS, DESIGN, MATERIALS, PERFORMANCE CHARACTERISTICS, AND METHODS OF OPERATION."

BEFORE BID OPENING YOU CONTACTED THE PURCHASING OFFICE FOR THE PURPOSE OF SUGGESTING THAT THE SPECIFICATIONS BE BROADENED TO INCLUDE THE ZERO TYPE OF BLASTING SYSTEM (THE DOWNDRAFT SYSTEM). THIS WAS CONFIRMED IN A LETTER DATED JUNE 3, 1970, IN WHICH YOU ALSO SUGGESTED THE USE OF AN "OR EQUAL" SPECIFICATION IN ORDER TO MAKE THE REQUIREMENTS CLEARER TO BIDDERS. YOU FELT THAT THE SPECIFICATION REQUIREMENTS WERE UNSPECIFIC IN CERTAIN AREAS WHICH YOU LISTED. FINALLY, YOU CITED SEVERAL CONTRACTS WHERE YOU HAD DELIVERED SIMILAR BLAST SYSTEMS TO THE GOVERNMENT, TO INDICATE YOUR EXPERIENCE IN THE AREA.

THE PURCHASING OFFICE RESPONDED TO YOUR REQUEST TO BROADEN THE SPECIFICATION. BY MODIFICATION 3 THE INVITATION WAS REVISED TO THIS EFFECT. HOWEVER, YOUR SUGGESTION FOR AN "OR EQUAL" TYPE SPECIFICATION WAS NOT ADOPTED, AND THE REQUIREMENT FOR DESCRIPTIVE LITERATURE WAS RETAINED.

BIDS WERE OPENED JULY 15, 1970, AND THE 2 LOWEST OF 6 BIDS RECEIVED WERE AS FOLLOWS:

ZERO MANUFACTURING COMPANY $8,575

PANGHORN DIVISION 8,820 ON AUGUST 4, 1970, AWARD WAS MADE TO PANGHORN; YOUR BID WAS REJECTED BECAUSE OF INADEQUATE DESCRIPTIVE DATA.

YOUR DESCRIPTIVE LITERATURE CONSISTED ONLY OF A DRAWING DEPICTING A PROPOSED SYSTEM WHICH INCLUDED A DUST COLLECTOR/ABRASIVE RECLAIMER, AN ABRASIVE BLAST MACHINE AND AN ABRASIVE PICK-UP UNIT AND IT WAS STATED ON THE DRAWING THAT THE EQUIPMENT SHOWN WAS "IN STRICT ACCORDANCE AS OUTLINED IN MODIFICATION 3." THE AIR FORCE EVALUATION CONCLUDED THAT THE UNIT DESCRIPTION WAS INADEQUATE BECAUSE (1) PHYSICAL DIMENSIONS WERE NOT SHOWN, (2) MATERIALS USED IN VARIOUS COMPONENTS WERE NOT IDENTIFIED, AND (3) PERFORMANCE CHARACTERISTICS WERE NOT SHOWN.

YOU ACKNOWLEDGE THESE OMISSIONS, BUT STATE THAT IF A COMPARISON WERE MADE BETWEEN MODIFICATION 3 AND YOUR DRAWING IT WOULD BE SEEN THAT THE DRAWING CALLS FOR EQUIPMENT IN ACCORDANCE WITH EACH PARAGRAPH OF THE SPECIFICATION AND THAT FURTHER DETAILED INFORMATION WAS NOT LISTED BECAUSE MODIFICATION 3 DID NOT SPELL OUT WHAT WAS REQUIRED IN SUCH AREAS AND THEREFORE YOU WERE NOT IN A POSITION TO "KNOW, JUST EXACTLY, WHAT WOULD HAVE BEEN ACCEPTABLE." YOU REFER TO YOUR PRIOR COMPLAINTS CONCERNING THE INADEQUACY OF THE PURCHASE DESCRIPTION AND TO THE NOTE LISTED ON YOUR DRAWING THAT THE SYSTEM OFFERED MEETS THE REQUIREMENTS OF THE SPECIFICATION, AS SHOWING THAT YOU ATTEMPTED TO SATISFY THE REQUIREMENTS OF THE INVITATION.

YOU ALSO CALL ATTENTION TO MILITARY SPECIFICATION MIL-B-8375A (USAF) DATED AUGUST 29, 1969, WHICH YOU REPORT IS AN AIR FORCE SPECIFICATION FOR BLAST CLEANING MACHINES. YOU CONTEND THAT IF A SPECIFICATION SIMILAR IN DETAIL TO THAT SPECIFICATION WAS WRITTEN FOR USE ON THIS PROCUREMENT, DESCRIPTIVE DATA WOULD NOT HAVE BEEN NEEDED; ALTERNATIVELY, YOU FEEL THAT USE OF A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION WOULD HAVE PROVIDED THE NECESSARY GUIDANCE IN THE CRITICAL AREAS.

THE AIR FORCE REPORTS THAT THE MILITARY SPECIFICATION IN QUESTION WAS NOT USED FOR THIS PROCUREMENT BECAUSE IT WOULD HAVE PROVIDED MORE THAN WAS REQUIRED, PARTICULARLY WITH REGARD TO FURNISHING A PREPRODUCTION SAMPLE FOR INSPECTION AND TESTS. IT WAS DETERMINED THAT A COMMERCIAL SYSTEM WOULD BE ADEQUATE FOR THE GOVERNMENT'S NEEDS IN THIS CASE. UNDER THESE CIRCUMSTANCES WE CANNOT CRITICIZE AIR FORCE FOR NOT USING THE MILITARY SPECIFICATION. ASPR 1-1201(A) STATES THAT SPECIFICATIONS OR PURCHASE DESCRIPTIONS SHOULD STATE ONLY THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT. APPARENTLY, THE MILITARY SPECIFICATION OVERSTATED THESE NEEDS AND FOR THIS REASON THE AIR FORCE USED A PURCHASE DESCRIPTION.

WE ARE NOT PREPARED TO CONCLUDE THAT MODIFICATION 3 WAS AN INADEQUATE PURCHASE DESCRIPTION. ASPR 1-1206.1(A) STATES THAT A PURCHASE DESCRIPTION SHOULD SET FORTH THE ESSENTIAL PHYSICAL AND FUNCTIONAL CHARACTERISTICS OF THE MATERIALS REQUIRED, AS FOR EXAMPLE, KIND OF MATERIAL, DIMENSIONS, AND PRINCIPLES OF OPERATION. WE NOTE THAT SOME OF THESE CHARACTERISTICS WERE NOT DEFINED IN MODIFICATION 3. BUT THE REGULATION GOES ON TO STATE THAT A PURCHASE DESCRIPTION SHOULD NOT BE WRITTEN SO AS TO SPECIFY A PRODUCT, OR A PARTICULAR FEATURE OF A PRODUCT, PECULIAR TO ONE MANUFACTURER AND THEREBY PRECLUDE CONSIDERATION OF AN OTHERWISE ACCEPTABLE PRODUCT MANUFACTURED BY ANOTHER COMPANY. THE CONTRACTING OFFICER STATES THAT THE SPECIFICATIONS WERE WRITTEN TO ALLOW AS MUCH PARTICIPATION AS POSSIBLE. HE CITES THE REVISION TO THE SPECIFICATIONS (MODIFICATION 3) WHICH PERMITTED THE ZERO TYPE SYSTEM TO BE BID.

IT MAY BE AS YOU SUGGEST, THAT MORE EFFECTIVE COMPETITION COULD HAVE BEEN OBTAINED BY USE OF A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION. GENERALLY, HOWEVER, THIS TYPE OF SPECIFICATION IS NOT PREFERRED BECAUSE IT TENDS TO BE RESTRICTIVE OF COMPETITION. ASPR 1-1206.1(A) STATES THAT A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION SHOULD ONLY BE USED WHEN AN ADEQUATE SPECIFICATION OR MORE DETAILED DESCRIPTION IS NOT AVAILABLE. ANY CASE, IT APPEARS THAT ADEQUATE COMPETITION WAS OBTAINED ON THIS PROCUREMENT.

AS INDICATED, THE CONTRACTING OFFICER PURPOSELY MADE THE SPECIFICATIONS GENERAL IN NATURE IN ORDER TO ALLOW BIDDERS THE OPPORTUNITY TO DEMONSTRATE THROUGH DESCRIPTIVE DATA THEIR METHODS OF MEETING THE SPECIFICATIONS. BIDDERS WERE INSTRUCTED TO SUBMIT DETAILS OF THEIR EQUIPMENT AS TO PHYSICAL DIMENSIONS, MATERIALS, AND THE LIKE, AND THE INVITATION STATED THAT FAILURE TO COMPLY WITH THE DATA REQUIREMENT WOULD CAUSE THE BID TO BE REJECTED. IT IS OBVIOUS THAT SUCH A DATA REQUIREMENT CANNOT BE SATISFIED BY A MERE RECITATION IN THE BID OF THE INVITATION PURCHASE DESCRIPTION OR BY A BLANKET OFFER TO COMPLY WITH ALL THE SPECIFICATIONS, SUCH AS WAS CONTAINED ON THE DRAWING FURNISHED WITH YOUR BID. SEE 40 COMP. GEN. 132 (1960). THE DATA MUST BE DETAILED ENOUGH TO SHOW EXACTLY WHAT THE BIDDER IS PROPOSING TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE IN THE EVENT OF A CONTRACT. 36 COMP. GEN. 415 (1956).

YOUR DESCRIPTIVE DATA WAS LACKING IN VITAL INFORMATION. AS A RESULT THE AIR FORCE EVALUATORS WERE UNABLE TO DETERMINE EXACTLY WHAT YOU WERE PROPOSING TO FURNISH. THE FACT THAT YOUR FIRM HAD SUPPLIED SIMILAR EQUIPMENT TO THE GOVERNMENT IN THE PAST DID NOT ALTER THIS SITUATION.

WE CONCLUDE THAT YOUR BID WAS PROPERLY REJECTED. ACCORDINGLY, YOUR PROTEST IS DENIED.