B-171223, MAR 3, 1971

B-171223, MAR 3, 1971

BID PROTEST - NEGOTIATED AWARD DECISION CONCERNING PROTEST OF PROFEXRAY DIVISION, LITTON MEDICAL PRODUCTS, INC., AGAINST THE AWARD OF A NEGOTIATED CONTRACT TO GENERAL ELECTRIC FOR A DIAGNOSTIC X-RAY UNIT SOLICITED BY THE NAVAL AIR STATION, CORPUS CHRISTI, TEXAS. ALTHOUGH THE ADMINISTRATIVE REPORT ACKNOWLEDGES THAT THIS PROCUREMENT WAS MISHANDLED, IT SHOULD BE FURTHER NOTED THAT THE CONTRACTING OFFICER SHOULD HAVE PERMITTED PROTESTANT TO FURNISH THE DESCRIPTIVE LITERATURE REQUIRED FOR THE DETERMINATION THAT THE ITEM OFFERED WAS AN "EQUAL" PRODUCT; ALSO, WHEN THE ONLY OTHER BIDDER TOOK EXCEPTION TO THE DELIVERY DATE, BOTH FIRMS SHOULD HAVE BEEN SOLICITED IN THE NEGOTIATED PROCUREMENT. BUT FOR THE COMPLETED DELIVERY AND INSTALLATION OF THE REQUIRED EQUIPMENT, GAO WOULD RECOMMEND TERMINATION OF THE CONTRACT.

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER DATED DECEMBER 16, 1970, FROM THE DEPUTY COMMANDER, PURCHASING, NAVAL SUPPLY SYSTEMS COMMAND, REFERENCE SUP 0232A, FURNISHING A REPORT ON THE PROTEST OF PROFEXRAY DIVISION, LITTON MEDICAL PRODUCTS, INCORPORATED (PROFEXRAY), WITH REGARD TO INVITATION FOR BIDS NO. N00216-71-B-0021, ISSUED BY THE NAVAL AIR STATION, CORPUS CHRISTI, TEXAS, ON SEPTEMBER 21, 1970.

THE SOLICITATION CALLED FOR A DIAGNOSTIC X-RAY UNIT MADE UP OF NINE COMPONENTS EACH TO BE A DESIGNATED GENERAL ELECTRIC MODEL NUMBER OR EQUAL. THE BID OPENING DATE AS AMENDED WAS OCTOBER 5, 1970. ONLY TWO BIDS WERE RECEIVED ON THAT DATE. PROFEXRAY SUBMITTED THE LOW BID AT $16,490. THE PROFEXRAY BID OFFERED AN "EQUAL" PRODUCT TO THE GENERAL ELECTRIC (GE) BRAND NAME ITEM SPECIFIED IN THE SOLICITATION WITH RESPECT TO EACH OF THE COMPONENTS; HOWEVER, PROFEXRAY FAILED TO FURNISH WITH ITS BID ANY DESCRIPTIVE MATERIAL AS REQUIRED BY PARAGRAPH C. 15 OF THE INVITATION. THE CONTRACTING OFFICER'S OWN EFFORTS TO OBTAIN INFORMATION ON THE "EQUAL" ITEMS OFFERED FROM DEPARTMENT OF THE NAVY SOURCES WERE UNSUCCESSFUL; CONSEQUENTLY, HE DETERMINED THAT THE LOW BID COULD NOT BE EVALUATED BECAUSE OF INSUFFICIENT INFORMATION ON WHICH TO MAKE A DETERMINATION THAT THE PRODUCT OFFERED MET THE REQUIREMENTS OF THE INVITATION. THE ONLY OTHER BID, FROM GENERAL ELECTRIC, TOOK EXCEPTION TO THE DELIVERY DATE. THEREFORE, THE CONTRACTING OFFICER DETERMINED THAT NO AWARD COULD BE MADE UNDER THE SOLICITATION SINCE NO RESPONSIVE BID HAD BEEN RETURNED.

THE ADMINISTRATIVE REPORT CONTINUES AS FOLLOWS:

"USING THE AUTHORITY OF ASPR 3-210.2(III), THE CONTRACTING OFFICER PROCEEDED TO OBTAIN THE REQUIRED SUPPLIES BY CONDUCTING ORAL NEGOTIATIONS WITH GENERAL ELECTRIC COMPANY ONLY. THE CONTRACTING OFFICER DETERMINED THAT BASED ON ORAL COMMENTS FROM THE REQUIRING ACTIVITY, ONLY SUPPLIES PROVIDED BY THE GENERAL ELECTRIC COMPANY WOULD MEET THE REQUIREMENTS OF THE GOVERNMENT. ON OCTOBER 13, 1970 AN AWARD WAS MADE TO GENERAL ELECTRIC COMPANY ON CONTRACT NO. N00216-71-C-0131 FOR $17,029.50.

"IT IS NOTED THAT THE CONTRACTING OFFICER DID NOT OBTAIN AN APPROPRIATE WRITTEN DETERMINATION JUSTIFYING NEGOTIATION ON A SOLE SOURCE BASIS. THE PURCHASING ACTIVITY HAS BEEN INSTRUCTED THAT, PRIOR TO ANY FUTURE SOLE SOURCE NEGOTIATIONS, A WRITTEN DETERMINATION MUST BE MADE JUSTIFYING THE NECESSITY OF LIMITING COMPETITION. IT IS NOTED THAT THE IFB INVITED BIDS ON A 'BRAND NAME OR EQUAL' BASIS BUT FAILED TO CITE ANY SALIENT CHARACTERISTICS OF THE SUPPLIES REQUIRED BY THE GOVERNMENT. THE PURCHASING ACTIVITY HAS BEEN INSTRUCTED TO CAREFULLY REVIEW AND IMPLEMENT THE PROCEDURES FOR PREPARING A BRAND NAME OR EQUAL PURCHASE DESCRIPTION AS SET FORTH IN ASPR 1-1206.2(A) THRU (C) ON FUTURE REQUIREMENTS OF THIS NATURE. FURTHER, THE ACTIVITY HAS BEEN INSTRUCTED THAT WHERE NEGOTIATIONS ARE CONDUCTED ON A BRAND NAME OR EQUAL BASIS, EACH OFFEROR MUST BE GIVEN THE OPPORTUNITY THROUGH DISCUSSIONS TO MAKE HIS PROPOSAL ACCEPTABLE IN RESPONSE TO THE REQUIREMENTS OF THE SOLICITATION."

AS INDICATED IN THE ADMINISTRATIVE REPORT, THIS PROCUREMENT WAS MISHANDLED. YOUR DEPARTMENT RECOGNIZES THAT THE INVITATION SHOULD HAVE LISTED THE SALIENT CHARACTERISTICS OF THE "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION. SEE ASPR 1-1206.2(B). BUT THE ADMINISTRATIVE REPORT STATES THAT SINCE THE LOW BIDDER FAILED TO FURNISH ANY DESCRIPTIVE MATERIAL WITH THE BID, THE CONTRACTING OFFICER WAS UNABLE TO IDENTIFY THE PRODUCT OFFERED, AND THE BID WAS DETERMINED TO BE NON RESPONSIVE. IN THIS REGARD IT IS REPORTED THAT VARIOUS NAVAL HOSPITALS WERE CONTACTED IN AN ATTEMPT TO IDENTIFY THE EQUIPMENT OFFERED BY THE LOW BIDDER. HOWEVER, PROFEXRAY REPORTS THAT THE FAILURE TO FURNISH THE INFORMATION WITH ITS BID WAS INADVERTENT, AND THAT UPON BEING ADVISED BY THE CONTRACTING OFFICER CONCERNING THE LACK OF BROCHURES, THE BIDDER OFFERED TO SUPPLY THE REQUIRED MATERIAL IMMEDIATELY BUT WAS ADVISED THAT THE INVITATION WOULD BE CANCELLED.

THE CONTRACTING OFFICER SHOULD HAVE PERMITTED THE BIDDER THE OPPORTUNITY TO FURNISH THE MISSING BROCHURES PRIOR TO DETERMINING THAT THE BID WAS NONRESPONSIVE. THE "BRAND NAME OR EQUAL" CLAUSE PERMITS THE CONTRACTING OFFICER TO CONSIDER OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY IN DETERMINING WHETHER AN "EQUAL" PRODUCT IS ACCEPTABLE. WE HAVE HELD THAT UNDER THIS CLAUSE A BIDDER IS NOT PRECLUDED FROM FURNISHING DESCRIPTIVE DATA TO THE PURCHASING ACTIVITY AFTER BID OPENING, PROVIDED THAT THE INFORMATION FURNISHED WAS IN EXISTENCE AND PUBLICLY AVAILABLE PRIOR TO BID OPENING. B-170074, AUGUST 25, 1970 (50 COMP. GEN. ). AS EXPLAINED IN THAT DECISION, IF THE INFORMATION WAS PUBLICLY AVAILABLE PRIOR TO BID OPENING, IT DOES NOT SEEM MATERIAL WHETHER THE INFORMATION IS FURNISHED TO THE CONTRACTING OFFICER BY THE BIDDER OR IS OTHERWISE OBTAINED BY THE CONTRACTING OFFICER. IN ANY CASE, THE FAILURE TO LIST THE SALIENT CHARACTERISTICS RENDERED THE INVITATION DEFECTIVE AND NO VALID AWARD COULD BE MADE UNDER IT.

YOUR DEPARTMENT RECOGNIZES THAT PROFEXRAY SHOULD HAVE BEEN SOLICITED IN THE NEGOTIATED PROCUREMENT AND GIVEN THE OPPORTUNITY TO MAKE ITS PROPOSAL ACCEPTABLE. A SOLE SOURCE AWARD WAS MADE TO GENERAL ELECTRIC WITHOUT ANY WRITTEN DETERMINATION (D & F) TO JUSTIFY SUCH AN AWARD. WE HAVE BEEN INFORMED BY OFFICIALS OF YOUR DEPARTMENT THAT THE GENERAL ELECTRIC EQUIPMENT HAS BEEN DELIVERED AND INSTALLED. THEREFORE, IT IS NOT PRACTICAL TO TAKE ANY ACTION IN REGARD TO THIS AWARD. HOWEVER, IF DELIVERY HAD NOT BEEN ACCOMPLISHED, WE WOULD HAVE RECOMMENDED TERMINATION OF THE CONTRACT.

WE ASSUME THAT THE RECOMMENDATIONS TO THE PURCHASING ACTIVITY INDICATED IN THE ADMINISTRATIVE REPORT WILL BE IMPLEMENTED.