B-170771(1), DEC. 10, 1970

B-170771(1): Dec 10, 1970

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THE ONE USED IN THE "BRAND NAME OR EQUAL" DESCRIPTION BECAUSE IT FAILS TO MEET CERTAIN MINIMUM SPECIFICATIONS - 13DB MINIMUM GAIN AND 14DB MINIMUM BACK AND SIDE LOBE SUPPRESSION - SUCH PROTEST WILL BE DENIED WHEN ADMINISTRATIVELY DETERMINED THAT HY-GAIN'S PRODUCT IS EQUAL. 90% OF THE TRANSMISSIONS WILL BE ABOVE THOSE FREQUENCIES WHERE THE GAIN IS LOW. THE ANTENNA WAS FAIRLY RATED AS "EQUAL" WITHIN THE DISCRETION OF THE PROCURING AGENCY. TO ANTENNA PRODUCTS COMPANY: FURTHER REFERENCE IS MADE TO YOUR TELEFAX OF SEPTEMBER 9 AND SUPPLEMENTARY LETTER OF SEPTEMBER 15. THE INVITATION WAS ISSUED AUGUST 10. SOLICITATIONS WERE MAILED TO 10 MANUFACTURERS. FOUR BIDS WERE RECEIVED AS FOLLOWS: BIDDER ITEM 1 ITEM 2 GRANGER ASSOCIATES $5.

B-170771(1), DEC. 10, 1970

BID PROTEST - BIDDER RESPONSIVENESS - BRAND NAME OR EQUAL DENIAL OF PROTEST OF ANTENNA PRODUCTS COMPANY AGAINST THE AWARD OF A CONTRACT FOR ONE HF ROTATABLE LOG PERIODIC ANTENNA ISSUED BY U.S. COAST GUARD TO HY-GAIN ELECTRONICS CORPORATION, LOW BIDDER. WHERE PROTESTANT CLAIMS THAT THE HY-GAIN PRODUCT DOES NOT EQUAL PROTESTANT'S, THE ONE USED IN THE "BRAND NAME OR EQUAL" DESCRIPTION BECAUSE IT FAILS TO MEET CERTAIN MINIMUM SPECIFICATIONS - 13DB MINIMUM GAIN AND 14DB MINIMUM BACK AND SIDE LOBE SUPPRESSION - SUCH PROTEST WILL BE DENIED WHEN ADMINISTRATIVELY DETERMINED THAT HY-GAIN'S PRODUCT IS EQUAL, FOR THE PURPOSES DESIRED, TO PROTESTANT'S. WHILE HY-GAIN'S PRODUCT HAS A FORWARD GAIN OF ONLY 10-13.5 DB OVER THE 4.0 TO 30.0 MHZ FREQUENCY RANGE, 90% OF THE TRANSMISSIONS WILL BE ABOVE THOSE FREQUENCIES WHERE THE GAIN IS LOW, AND, THEREFORE, THE ANTENNA WAS FAIRLY RATED AS "EQUAL" WITHIN THE DISCRETION OF THE PROCURING AGENCY.

TO ANTENNA PRODUCTS COMPANY:

FURTHER REFERENCE IS MADE TO YOUR TELEFAX OF SEPTEMBER 9 AND SUPPLEMENTARY LETTER OF SEPTEMBER 15, 1970, PROTESTING THE AWARD MADE TO HY-GAIN ELECTRONICS CORPORATION OF ITEM 2 UNDER UNITED STATES COAST GUARD SOLICITATION NO. 50-2-71.

THE INVITATION WAS ISSUED AUGUST 10, 1970, FOR BIDS ON ONE HF HORIZONTAL LOG PERIODIC ANTENNA AND ONE HF ROTATABLE LOG PERIODIC ANTENNA. SOLICITATIONS WERE MAILED TO 10 MANUFACTURERS. FOUR BIDS WERE RECEIVED AS FOLLOWS:

BIDDER ITEM 1 ITEM 2

GRANGER ASSOCIATES $5,761 $17,900

TCI 7,638 NO BID

ANTENNA PRODUCTS COMPANY NO BID 19,900

HY-GAIN ELECTRONICS CORPORATION 9,900 13,750

GRANGER ASSOCIATES BID WAS REJECTED AS NONRESPONSIVE FOR EXCEPTIONS TO DELIVERY REQUIREMENTS; TCI SUBMITTED A RESPONSIVE BID FOR ITEM 1 AND A "NO" BID FOR ITEM 2. YOUR COMPANY SUBMITTED A RESPONSIVE BID FOR ITEM 2 AND A "NO" BID FOR ITEM 1. HY-GAIN SUBMITTED RESPONSIVE BIDS ON BOTH ITEMS AND WAS LOW BIDDER ON ITEM 2.

THE INVITATION EMPLOYED A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION SETTING OUT TWO MODELS WHICH WOULD BE ACCEPTABLE. ITEM 1 SPECIFIED TCI MODEL 502-2-N INCLUDING BALUN MODEL 502-N-03 OR EQUAL; ITEM 2 SPECIFIED YOUR MODEL LPH-24C OR EQUAL INCLUDING THE TOWER, BOOM, ELEMENTS, ROTATOR, TORQUE TUBE, CONTROL BOX (LESS CABLE), TRANSMISSION LINE TO ANTENNA, GUYS AND ANCHORS. INSTALLATION, INCLUDING TRANSMISSION LINE FROM TRANSMITTER TO TOWER, WOULD BE ACCOMPLISHED BY OTHERS.

YOU PROTEST THAT THE HY-GAIN PRODUCT IS NOT THE EQUAL OF YOUR BRAND NAME PRODUCT SINCE YOUR PRODUCT CONTAINS CERTAIN MINIMUM SPECIFICATIONS WHICH THE PRODUCT OF HY-GAIN IS NOT ADVERTISED TO MEET, INCLUDING:

(1) 13 DB MINIMUM GAIN

(2) 14 DB MINIMUM BACK AND SIDE LOBE SUPPRESSION. YOU STATE THAT PARAGRAPH (B) OF "DATA WITH BIDS" REQUIRED REJECTION OF BIDS FOR FAILURE TO SUBMIT WITH THE BID DESCRIPTIVE LITERATURE WHICH SHOWS THAT THE PRODUCT OFFERED CONFORMS WITH THE SPECIFICATION OF YOUR BRAND NAME PRODUCT.

ATTACHMENT 7 TO THE INVITATION CONTAINED THE BRAND NAME OR EQUAL CLAUSE ALONG WITH THE DATA FOR BIDS CLAUSE. THIS LATTER CLAUSE PROVIDED THAT THE BIDDER MUST SUBMIT WITH ITS BID ALL DESCRIPTIVE MATERIAL NECESSARY TO DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE INVITATION AND THAT FAILURE OF THE DATA TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS WILL REQUIRE REJECTION OF THE BID. HY- GAIN'S BID INCLUDED ALL THE REQUIRED DESCRIPTIVE LITERATURE AND SPECIFICATIONS NECESSARY FOR THE EVALUATION OF ITS BID.

IT IS ADMINISTRATIVELY REPORTED THAT DATA FURNISHED WITH HY-GAIN'S BID SHOWS ITS MODEL 5002 ANTENNA TO HAVE A FORWARD GAIN OF 10-13.5 DB OVER THE 4.0 TO 30.0 MHZ FREQUENCY RANGE, AND A 14 DB FRONT TO BACK RATIO. SIDE LOBE SUPPRESSION WAS NOT LISTED BECAUSE UNDER TESTS THE ANTENNA SHOWED LITTLE OR NO SIDE LOBE ENERGY DEPENDING ON THE FREQUENCY OF TRANSMISSION. IT IS STATED THAT WHILE THE FORWARD GAIN OF LESS THAN 13 DB MIGHT BE UNDESIRABLE IN THE LOWER FREQUENCIES, IT IS NOT PERTINENT TO THE REQUIREMENTS OF THIS ANTENNA INASMUCH AS 90 PERCENT OF THE TRANSMISSIONS FROM THE USING STATION WILL BE ABOVE THE 10 MHZ FREQUENCY RANGE. IT IS FURTHER REPORTED THAT THE DATA SHEET ON YOUR MODEL LPH-24C WAS FURNISHED WITH THE INVITATION FOR INFORMATIONAL PURPOSES ONLY AND WAS NOT INTENDED TO REPRESENT THE MINIMUM OR MAXIMUM SPECIFICATIONS REQUIRED.

UNDER THE BRAND NAME OR EQUAL CLAUSE, PROSPECTIVE BIDDERS ARE ADVISED THAT IDENTIFICATION OF ITEMS BY "BRAND NAME OR EQUAL" DESCRIPTIONS IS NOT INTENDED TO BE RESTRICTIVE AND THAT BIDS OFFERING "EQUAL" PRODUCTS WOULD 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 ADVERTISEMENT FOR BIDS. UPON RECOMMENDATIONS BY ELECTRONICS ENGINEERING PERSONNEL, THE CONTRACTING OFFICER DETERMINED THAT THE HY GAIN ANTENNA WAS EQUAL IN ALL MATERIAL RESPECTS TO THE ANTENNA PRODUCTS COMPANY ANTENNA REFERENCED AND MADE THE AWARD OF ITEM 2 TO HY-GAIN.

THERE ARE SOME QUESTIONS REGARDING THE FAILURE TO LIST THE ESSENTIAL CHARACTERISTICS OF THE ITEMS DESIRED AND THE PROPRIETY OF INCLUDING A "DATA WITH BIDS" CLAUSE AS SET FORTH IN THE ATTACHMENT 7 TO THE INVITATION. THESE MATTERS ARE CONSIDERED IN OUR LETTER OF TODAY TO THE SECRETARY OF TRANSPORTATION, COPY ENCLOSED. HOWEVER, WE HAVE HELD THAT EVEN IF AN INVITATION DOES NOT DEFINE THE EXTENT OF DETAIL DESIRED IN THE DESCRIPTIVE LITERATURE REQUIREMENT, SUCH A DEFECT DOES NOT NECESSARILY REQUIRE THE CANCELLATION OF A CONTRACT AWARDED TO A BIDDER OFFERING EQUIPMENT WHICH MEETS THE NEEDS OF THE PROCURING ACTIVITY. 42 COMP. GEN. 737 (1963). THE SAME RATIONALE APPLIES TO THE LACK OF A LISTING OF SALIENT CHARACTERISTICS IN THE INVITATION. 43 COMP. GEN. 761 (1964).

WE HAVE BEEN FURNISHED WITH INFORMATION WHICH WOULD ESTABLISH THAT THE CONTRACT WAS AWARDED TO A BIDDER OFFERING EQUIPMENT WHICH MET THE NEEDS OF THE GOVERNMENT. ALSO, WE HAVE BEEN ADVISED THAT THE COMPONENTS HAVE BEEN DELIVERED. IN THE CIRCUMSTANCES, IT IS OUR VIEW THAT THE AWARD SHOULD NOT BE DISTURBED.

ACCORDINGLY, YOUR PROTEST IS DENIED.