B-171535, APR 8, 1971

B-171535: Apr 8, 1971

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SINCE THE INFORMATION IN PROTESTANT'S BID WAS INSUFFICIENT EVIDENCE THAT ITS DEVELOPER WOULD COMPLY WITH THE TEMPERATURE CONTROL REQUIREMENT. THE DETERMINATION BY THE CONTRACTING OFFICER THAT THE BID WAS NONRESPONSIVE IS JUSTIFIED. THE PROCUREMENT WAS ADVERTISED UNDER INVITATION FOR BIDS (IFB) DACA71-71-B 0017. WAS AWARDED ON NOVEMBER 30. YOU CONTEND THAT THE ITEMS WHICH YOU OFFERED IN YOUR LOW BID IN RESPONSE TO THE IFB WERE EQUAL TO THE KREONITE PRODUCTS CITED IN THE BRAND NAME OR EQUAL PURCHASE DESCRIPTION AND THAT SUCH FACT WAS EVIDENT FROM THE INFORMATION. WITH WHICH YOUR PROTEST IS PRIMARILY CONCERNED. BENEATH THE PURCHASE DESCRIPTION SPACE WAS PROVIDED FOR ENTRY OF THE MANUFACTURER'S NAME.

B-171535, APR 8, 1971

BID PROTEST - BID RESPONSIVENESS - BRAND NAME OR EQUAL DENYING PROTEST OF FOLITRON CORPORATION, LOW BIDDER, AGAINST THE AWARD OF AN ADVERTISED CONTRACT FOR A FILM PROCESSOR ISSUED BY THE U.S. ARMY TOPOGRAPHIC COMMAND TO KREONITE, INC. SINCE THE INFORMATION IN PROTESTANT'S BID WAS INSUFFICIENT EVIDENCE THAT ITS DEVELOPER WOULD COMPLY WITH THE TEMPERATURE CONTROL REQUIREMENT, A BLANKET STATEMENT TO MATCH THE BRAND NAME PRODUCT BEING INADEQUATE, THE DETERMINATION BY THE CONTRACTING OFFICER THAT THE BID WAS NONRESPONSIVE IS JUSTIFIED.

TO FOLITRON CORPORATION:

WE REFER TO YOUR PROTEST BY LETTERS OF DECEMBER 11, 1970, AND FEBRUARY 8, 1971, AGAINST THE AWARD BY THE DEPARTMENT OF THE ARMY OF A CONTRACT TO KREONITE, INC. (KREONITE), FOR THE FURNISHING OF A FILM PROCESSOR, A TRANSPORT HOIST AND A TRANSPORT CLEANER TANK. THE PROCUREMENT WAS ADVERTISED UNDER INVITATION FOR BIDS (IFB) DACA71-71-B 0017, ISSUED OCTOBER 30, 1970, BY THE UNITED STATES ARMY TOPOGRAPHIC COMMAND, CORPS OF ENGINEERS, AND THE CONTRACT, DACA71-71-C-0033, WAS AWARDED ON NOVEMBER 30, 1970.

YOU CONTEND THAT THE ITEMS WHICH YOU OFFERED IN YOUR LOW BID IN RESPONSE TO THE IFB WERE EQUAL TO THE KREONITE PRODUCTS CITED IN THE BRAND NAME OR EQUAL PURCHASE DESCRIPTION AND THAT SUCH FACT WAS EVIDENT FROM THE INFORMATION, WHICH YOU SUPPLIED WITH YOUR BID, CONCERNING COMPLIANCE OF YOUR EQUIPMENT WITH THE SALIENT CHARACTERISTICS OF THE BRAND NAME ITEMS AS SPECIFIED BY THE GOVERNMENT. YOU ACCORDINGLY REQUEST THAT THE CONTRACT WITH KREONITE BE CANCELLED AND THAT AWARD BE MADE TO YOU AS THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER.

THE PURCHASE DESCRIPTION ON PAGE 13 OF THE IFB DESCRIBED THE FILM PROCESSOR, WITH WHICH YOUR PROTEST IS PRIMARILY CONCERNED, AS FOLLOWS:

"PROCESSOR, FILM, AGI-FLOW CONTINUOUS TONE, INCLUDING CHEMICAL REPLENISHMENT SYSTEM AND ACCESSORY PLUMBING PANEL WITH TEMPERATURE BLENDER, KREONITE, MODEL 5412-31", OR EQUAL, IN ACCORDANCE WITH SALIENT CHARACTERISTICS SET FORTH IN PART II - THE SCHEDULE, SECTION F."

BENEATH THE PURCHASE DESCRIPTION SPACE WAS PROVIDED FOR ENTRY OF THE MANUFACTURER'S NAME, THE BRAND NAME, AND MODEL NUMBER.

AMONG 15 SALIENT CHARACTERISTICS OF THE BRAND NAME FILM PROCESSOR WHICH WERE LISTED ON PAGE 14 OF THE IFB AS ESSENTIAL TO THE NEEDS OF THE GOVERNMENT WAS THE FOLLOWING:

"12. TEMPERATURE CONTROL BETWEEN 65 DEGS F AND 80 DEGS F ACCURATE TO OR - 0.25 DEGS F AT ANY SELECTED TEMPERATURE WITHIN THE DESIGNATED RANGE. MEANS FOR VISUALLY OBSERVING THE TEMPERATURE IN THE DEVELOPING AND DRYING CYCLES."

PAGE 10 OF THE IFB CARRIED THE BRAND NAME OR EQUAL CLAUSE SET FORTH IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1206.3, WHICH INFORMED BIDDERS THAT BIDS OFFERING "EQUAL" PRODUCTS WOULD BE CONSIDERED FOR AWARD IF SUCH PRODUCTS WERE CLEARLY IDENTIFIED IN THE BIDS AND WERE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE IFB. PARAGRAPH (C)(1) OF THE CLAUSE SPECIFICALLY ADVISED BIDDERS THAT THE DETERMINATION AS TO EQUALITY OF A PRODUCT OTHER THAN THE BRAND NAME WOULD BE BASED ON INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY BUT CAUTIONED THAT SUCH ACTIVITY WAS NOT RESPONSIBLE FOR LOCATING OR SECURING INFORMATION NOT IDENTIFIED IN THE BID AND REASONABLY AVAILABLE TO THE ACTIVITY.

ON NOVEMBER 16, 1970, THE THREE BIDS RECEIVED BY THE GOVERNMENT WERE OPENED AS SCHEDULED. YOUR BID WAS LOWEST WITH PRICES OF $28,326 FOR YOUR MODEL FD-31C FILM PROCESSOR, $220 FOR YOUR MODEL 31C10 TRANSPORT HOIST, AND $310 FOR YOUR MODEL 1220 TRANSPORT CLEANER TANK. NEXT TO EACH ITEM YOU HAD INSERTED THE WORD "EQUAL", AND YOU ATTACHED TO YOUR BID A SHEET ENTITLED "SPECIFICATIONS FOLITRON MODEL FD 31 C" GIVING SPECIFIC INFORMATION ON YOUR FILM PROCESSOR. THE FEATURES LISTED AND DESCRIBED ON THE SHEET WERE IN TEN CATEGORIES, I.E., DIMENSIONS, CONSTRUCTION, FILM SIZE, PRODUCTION RATE, DEVELOPER, TEMPERATURE CONTROL, WASH, ELECTRICAL, INSTALLATION, AND OPTIONAL ACCESSORIES. THE INFORMATION RELATING TO THE DEVELOPER AND TEMPERATURE CONTROL READ AS FOLLOWS:

"DEVELOPER

CAPACITY 28 GALLONS

REPLENISHMENT AUTOMATIC MONITORING BY FOLITRON

ELECTRONIC ANALYZER. OVERRIDE

FOR MANUAL CONTROL

"TEMPERATURE CONTROL OR - 1/4 DEG F. THROUGH RANGE

DESIGNATED NORMALLY 68 TO 140

DEGS F. DEVELOPER AND DRYER"

THE OTHER TWO BIDS, ONE FROM KREONITE AND ONE FROM TRECK PHOTOGRAPHIC, INC. (TRECK), OFFERED THE BRAND NAME ITEMS AT IDENTICAL PRICES; I.E., $29,843 FOR THE FILM PROCESSOR, $495 FOR THE TRANSPORT HOIST, AND $2,195 FOR THE TRANSPORT CLEANER TANK.

AFTER THE OPENING OF THE BIDS, THE CONTRACTING OFFICER ALLEGES THAT HE COMMUNICATED WITH YOU BY TELEPHONE BETWEEN NOVEMBER 16 AND 20 IN AN EFFORT (1) TO ASCERTAIN WHETHER A MODEL OF YOUR FILM PROCESSOR WAS AVAILABLE FOR INSPECTION BY THE GOVERNMENT AND (2) TO INQUIRE ABOUT COMPLIANCE OF YOUR EQUIPMENT WITH CERTAIN OF THE SALIENT CHARACTERISTICS OF THE KREONITE EQUIPMENT WHICH THE GOVERNMENT LISTED AS REQUIREMENTS IN THE IFB. IN A LETTER DATED NOVEMBER 20 TO THE CONTRACTING OFFICER, YOU REFERRED TO A TELEPHONE CONVERSATION OF NOVEMBER 19 AND YOU STATED THAT THE SPECIFICATION SHEET SUBMITTED WITH YOUR BID COVERED SEVEN OF THE SALIENT CHARACTERISTICS (THESE YOU IDENTIFIED AS NOS. 1, 2, 3, 4, 8, 9 AND 12); YOU FURNISHED INFORMATION REGARDING COMPLIANCE OF YOUR FILM PROCESSOR WITH THE REMAINING EIGHT SALIENT CHARACTERISTICS; AND YOU DIRECTED THE CONTRACTING OFFICER'S ATTENTION TO THE NOTATION IN YOUR BID THAT YOUR PRODUCT WOULD BE EQUAL (I.E., TO THE KREONITE FILM PROCESSOR).

ON NOVEMBER 20, THE CONTRACTING OFFICER ISSUED A DETERMINATION THAT YOUR BID WAS NOT RESPONSIVE TO THE IFB IN VIEW OF THE FAILURE OF YOUR FILM PROCESSOR TO MEET THE TEMPERATURE CONTROL SPECIFIED BY THE GOVERNMENT; THAT THE EQUAL BIDS OF KREONITE, A SMALL BUSINESS CONCERN LIKE YOU, AND TRECK, A LARGE BUSINESS, WERE BOTH RESPONSIVE; AND THAT UNDER THE PROVISIONS OF ASPR 2-407.6, RELATING TO EQUAL BIDS, KREONITE, AS A SMALL BUSINESS CONCERN, WAS ENTITLED TO AWARD. ON THE SAME DATE, THE CONTRACTING OFFICER ISSUED A DETERMINATION, BASED ON EVIDENCE OF RECORD, THAT KREONITE WAS A RESPONSIBLE PROSPECTIVE CONTRACTOR.

ON NOVEMBER 30, THE PROCURING ACTIVITY BOARD OF AWARD REVIEWED THE BIDS AND OTHER PROCUREMENT DATA AND UNANIMOUSLY RECOMMENDED AWARD TO KREONITE. NOTICE OF AWARD WAS ACCORDINGLY MAILED TO KREONITE, AND APPROPRIATE ADVISORY LETTERS WERE SENT TO YOU AND TO TRECK. IN YOUR LETTER, YOU WERE ALSO INFORMED THAT YOUR BID HAD BEEN REJECTED AS NONRESPONSIVE INASMUCH YOU SPECIFIED "TEMPERATURE CONTROL STARTING AT 68 DEGS F, WHEREAS THE GOVERNMENT REQUIRES TEMPERATURE CONTROL STARTING AT 65 DEGS F."

WITH YOUR LETTER OF DECEMBER 11, 1970, YOU FURNISHED TO OUR OFFICE A COPY OF A SPECIFICATION SHEET FOR YOUR MODEL FD-31C FILM PROCESSOR, WHICH, YOU STATED, HAD BEEN ATTACHED TO YOUR BID. THIS SHEET INCLUDES THE FOLLOWING PERTINENT INFORMATION REGARDING THE DEVELOPER:

"DEVELOPER

CAPACITY 28 GAL.

REPLINISHMENT AUTOMATIC MONITORING BY FOLITRON

ELECTRONIC ANALYZER

OVERRIDE FOR MANUAL CONTROL

TEMPERATURE CONTROL OR - .25 DEGREE F. THROUGH RANGE

AS DESIGNATED. NORMALLY 68 TO

85 DEGREES"

NEXT TO THE WORD, "DRYER", YOU ENTERED THE NOTATION, "ADJUSTABLE 80 TO 140 DEGREES F."

AS SUPPORT FOR THE PROPOSITION THAT YOUR BID WAS RESPONSIVE TO THE IFB, YOU STATE THAT THE WORDS "THROUGH RANGE DESIGNATED" ON YOUR SPECIFICATION SHEET HAD REFERENCE TO THE RANGE OF 65 TO 80 DEGREES FARENHEIT SPECIFIED IN THE IFB; THAT ALL OF YOUR MODEL FD-31C FILM PROCESSORS ARE EQUIPPED WITH RHEOSTATS HAVING A TEMPERATURE RANGE OF 60 TO 90 DEGREES FARENHEIT; AND THAT THE PHRASE "NORMALLY 68 TO 85 DEGREES" WAS MERELY A RECOMMENDED RANGE APPROVED BY ALL MAJOR FILM MANUFACTURERS.

IN YOUR LETTER OF FEBRUARY 8, 1971, YOU ASSERT THAT YOU COMPLIED WITH THE IFB REQUIREMENTS WHEN YOU NOTED IN YOUR BID THAT ALL THREE ITEMS WOULD BE EQUAL TO THE BRAND NAME ITEMS. YOU ALSO ASSERT THAT THE KREONITE EQUIPMENT HAS THE SAME TEMPERATURE RANGES AS YOUR EQUIPMENT FOR THE DEVELOPER AND DRYER AND THAT A SIMILAR PROCESSOR MANUFACTURED BY LOGETRONICS, WHO IS SAID TO BE THE LARGEST MANUFACTURER IN THE INDUSTRY, HAS A DEVELOPER TEMPERATURE RANGE OF 68 DEGS F TO 86 DEGS F AND A DRYER TEMPERATURE RANGE OF 80 DEGS F 140 DEGS F.

THE CONTRACTING OFFICER MAKES NOTE OF THE FACT THAT THE SPECIFICATION SHEET WHICH ACCOMPANIED YOUR BID DIFFERS FROM THE SPECIFICATION SHEET SUBMITTED WITH YOUR PROTEST TO OUR OFFICE. IN THIS CONNECTION, THE CONTRACTING OFFICER POINTS OUT THAT THE SHEET ATTACHED TO THE BID SHOWED A TEMPERATURE RANGE OF 68 TO 140 DEGREES FARENHEIT FOR BOTH DEVELOPER AND DRYER WHEREAS THE SHEET SUBMITTED WITH YOUR PROTEST SHOWS SEPARATE RANGES. FURTHER, THE CONTRACTING OFFICER STATES, YOUR LETTER OF NOVEMBER 20, 1970, CONFIRMED THE INFORMATION SUBMITTED WITH THE BID ON THE TEMPERATURE CONTROL FEATURE. IN ADDITION, THE CONTRACTING OFFICER OBSERVES, THE WORDS "OVERRIDE FOR MANUAL CONTROL" ON THE SPECIFICATION SHEET ENCLOSED WITH YOUR BID APPLIED TO THE DEVELOPER WHEREAS ON THE SECOND SPECIFICATION SHEET THESE WORDS ARE APPLIED BY YOU TO THE TEMPERATURE CONTROL THUS GIVING THE WORDS AN ENTIRELY DIFFERENT MEANING. HOWEVER, THE CONTRACTING OFFICER OBSERVES, THE REJECTION OF THE BID WAS BASED SOLELY ON NONCOMPLIANCE WITH THE TEMPERATURE CONTROL SPECIFIED IN THE IFB.

WHEN A BRAND NAME OR EQUAL PURCHASE DESCRIPTION IS USED IN A SOLICITATION, IT MUST SET FORTH THE SALIENT CHARACTERISTICS OF THE REFERENCED ITEMS WHICH ARE NECESSARY TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT, AS REQUIRED BY ASPR 1-1206.2(B), AND INCLUDE THE BRAND NAME OR EQUAL CLAUSE PRESCRIBED BY ASPR 1-1206.3(B). IT IS INCUMBENT UPON EACH BIDDER OFFERING OTHER THAN THE BRAND NAME ITEMS TO PROVIDE WITH ITS BID SUCH DESCRIPTIVE DATA AS IS NECESSARY TO ENABLE THE CONTRACTING AGENCY TO DETERMINE THAT THE ITEMS OFFERED WILL MEET THE SPECIFIED NEEDS OF THE GOVERNMENT. A BLANKET STATEMENT BY A BIDDER OFFERING TO MEET ALL SPECIFICATION REQUIREMENTS DOES NOT SUBSTITUTE OR COMPENSATE FOR INADEQUATE DESCRIPTIVE DATA, AND REJECTION OF SUCH A BID AS NONRESPONSIVE IS THEREFORE REQUIRED. 45 COMP. GEN. 312, 316 (1965); 41 ID. 366 (1961).

IN LINE WITH THE FOREGOING, SINCE THE INFORMATION WHICH YOU SUBMITTED WITH YOUR BID WAS NOT SUFFICIENT TO EVIDENCE THAT YOUR DEVELOPER WOULD COMPLY WITH THE TEMPERATURE CONTROL REQUIREMENT, AS WELL AS OTHER SALIENT CHARACTERISTICS, LISTED IN THE IFB, AND SINCE THE ADDITIONAL INFORMATION ESSENTIAL TO PROVE THE EQUALITY OF YOUR EQUIPMENT WITH THE BRAND NAME ITEMS WAS NOT OTHERWISE REASONABLY AVAILABLE TO THE PROCURING ACTIVITY, WE MUST CONCUR WITH THE DETERMINATION OF THE CONTRACTING OFFICER THAT YOUR BID WAS NOT RESPONSIVE TO THE IFB. ACCORDINGLY, EVEN THOUGH YOUR EQUIPMENT MAY HAVE INCLUDED ALL OF THE SALIENT CHARACTERISTICS OF THE BRAND NAME EQUIPMENT WHICH THE GOVERNMENT STATED AS A MINIMUM REQUIREMENT IN THE IFB, YOUR BID WAS PROPERLY REJECTED. IN ADDITION, SINCE KREONITE OFFERED THE BRAND NAME EQUIPMENT AND WAS DETERMINED TO BE A RESPONSIBLE PROSPECTIVE CONTRACTOR, WE SEE NO LEGAL BASIS FOR OBJECTION TO THE AWARD TO KREONITE. YOUR PROTEST IS THEREFORE DENIED.