B-170771(2), DEC. 10, 1970

B-170771(2): Dec 10, 1970

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BRAND NAME OR EQUAL CLAUSE - DATA WITH BIDS LETTER SUGGESTING THAT FUTURE INVITATIONS WHICH USE THE BRAND NAME OR EQUAL CLAUSE LIST THE FEATURES OF THE EQUIPMENT CONSIDERED ESSENTIAL TO MEET THE NEEDS OF THE PROCURING ACTIVITY AND DEFINE WITH PARTICULARITY THE EXTENT OF DETAIL DESIRED IN THE DESCRIPTIVE LITERATURE BIDDERS WERE REQUIRED TO SUBMIT. SECRETARY: REFERENCE IS MADE TO THE LETTER OF OCTOBER 13. A COPY OF OUR DECISION OF TODAY TO THE PROTESTANT IS ENCLOSED. OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCTS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT AND ALSO CONTAIN TO THE EXTENT AVAILABLE SUCH OTHER INFORMATION AS IS NECESSARY TO DESCRIBE THE ITEM REQUIRED. IT WAS STATED AS FOLLOWS: " *** BIDDERS OFFERING 'EQUAL' PRODUCTS SHOULD NOT HAVE TO GUESS AT THE ESSENTIAL QUALITIES OF THE BRAND NAME ITEM.

B-170771(2), DEC. 10, 1970

BRAND NAME OR EQUAL CLAUSE - DATA WITH BIDS LETTER SUGGESTING THAT FUTURE INVITATIONS WHICH USE THE BRAND NAME OR EQUAL CLAUSE LIST THE FEATURES OF THE EQUIPMENT CONSIDERED ESSENTIAL TO MEET THE NEEDS OF THE PROCURING ACTIVITY AND DEFINE WITH PARTICULARITY THE EXTENT OF DETAIL DESIRED IN THE DESCRIPTIVE LITERATURE BIDDERS WERE REQUIRED TO SUBMIT.

TO MR. SECRETARY:

REFERENCE IS MADE TO THE LETTER OF OCTOBER 13, 1970, FROM THE COMPTROLLER OF THE COAST GUARD, FURNISHING A REPORT ON THE PROTEST MADE BY ANTENNA PRODUCTS COMPANY AGAINST THE AWARD MADE TO HY-GAIN ELECTRONICS CORPORATION OF ITEM 2 UNDER COAST GUARD INVITATION FOR BIDS NO. 50-2-71, ISSUED BY THE COAST GUARD RADIO STATION, WASHINGTON, D.C. A COPY OF OUR DECISION OF TODAY TO THE PROTESTANT IS ENCLOSED.

SECTION 1-1.307-4(B) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) PROVIDES THAT "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 AND ALSO CONTAIN TO THE EXTENT AVAILABLE SUCH OTHER INFORMATION AS IS NECESSARY TO DESCRIBE THE ITEM REQUIRED.

IN B-157857, JANUARY 26, 1966, IT WAS STATED AS FOLLOWS:

" *** 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." THE INSTANT INVITATION DOES NOT SET FORTH WITH PARTICULARITY THE FEATURES OF THE EQUIPMENT CONSIDERED ESSENTIAL TO MEET THE NEEDS OF THE PROCURING ACTIVITY. FOR THIS REASON ALONE THE INSTANT INVITATION WOULD HAVE TO BE CONSIDERED DEFECTIVE.

THE "DATA WITH BIDS" REQUIREMENT SET FORTH IN ATTACHMENT 7 OF THE INVITATION (DESCRIPTIVE LITERATURE) DOES NOT DEFINE WITH PARTICULARITY THE EXTENT OF DETAIL DESIRED IN THE DESCRIPTIVE LITERATURE BIDDERS WERE REQUIRED TO SUBMIT. IT IS SETTLED THAT SUCH A FAILURE MAY RENDER AN INVITATION DEFECTIVE. SEE 38 COMP. GEN. 59 (1958); 42 COMP. GEN. 598 (1963), AND B-158688, MAY 19, 1966. THE DESCRIPTIVE LITERATURE CLAUSE IN FPR SEC 1-2.202-5(D)(1) PROVIDES THAT THE CONTRACTING OFFICER SHALL INSERT IN THE CLAUSE DETAILS WITH RESPECT TO SIGNIFICANT ELEMENTS SUCH AS DESIGN, MATERIALS, COMPONENTS, OR PERFORMANCE CHARACTERISTICS, OR METHODS OF MANUFACTURE, CONSTRUCTION, ASSEMBLY, OR OPERATIONS, AS APPROPRIATE. SUCH DETAILS WERE INSERTED IN THE CLAUSE IN THE INSTANT INVITATION. ALL THAT WAS INCLUDED WAS THE GENERAL STATEMENT THAT 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 DESIGN, MATERIALS, AND CONSTRUCTION.

FURTHER, FPR SEC 1-2.202-5(C) REQUIRES THAT THE FILE EXPLAIN WHY ACCEPTABLE PRODUCTS CANNOT BE PROCURED WITHOUT THE SUBMISSION OF DESCRIPTIVE LITERATURE. THE JUSTIFICATION FOR THE DESCRIPTIVE LITERATURE REQUIREMENT WAS NOT INCLUDED IN THE ADMINISTRATIVE REPORT TO OUR OFFICE.

FPR SEC 1-2.202-5(D)(2) STATES THAT WHEN BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS ARE USED, THE REQUIREMENTS OF SECTION 1-2.202-5 ARE MET BY INSERTING IN THE INVITATION FOR BIDS THE BRAND NAME PROVISION SET FORTH IN FPR SEC 1-1.307-6. IN VIEW OF THE INCLUSION OF A "BRAND NAME OR EQUAL" CLAUSE, IT WAS UNNECESSARY TO ADD A FURTHER REQUIREMENT FOR "DATA WITH BIDS" CLAUSE.

A COPY OF OUR DECISION OF TODAY TO THE PROTESTANT DENYING ITS PROTEST IS ENCLOSED. AS INDICATED THEREIN, CANCELLATION OF THE INSTANT AWARD WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT SINCE EQUIPMENT MEETING THE ADVERTISED NEEDS OF THE GOVERNMENT HAS BEEN DELIVERED. HOWEVER, IN VIEW OF THE ABOVE DEFECTS IN THE INVITATION, WE RECOMMEND THAT A THOROUGH REVIEW BE MADE OF THIS PROCUREMENT TO PRECLUDE FUTURE IMPROPER INVITATIONS CALLING FOR "BRAND NAME OR EQUAL" PRODUCTS. IT IS SUGGESTED THAT IN THE FUTURE THE USING AGENCY STATE ITS NEEDS WITH PARTICULARITY IN ORDER TO MINIMIZE THE AMOUNT OF DETAILED DATA REQUIRED TO BE FURNISHED BY THE BIDDER.