B-171872, APR 1, 1971

B-171872: Apr 1, 1971

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IT IS DEFECTIVE. BIDDER'S OFFERING "EQUAL" PRODUCTS SHOULD NOT HAVE TO GUESS WHICH QUALITIES OF A BRAND NAME ARE ESSENTIAL TO THE GOVERNMENT'S NEEDS. SECRETARY: REFERENCE IS MADE TO A LETTER. AWARD IS BEING HELD IN ABEYANCE PENDING OUR DECISION IN THE MATTER. THE THRESHOLD QUESTION PRESENTED IS WHETHER THE IFB IS DEFECTIVE SO AS TO WARRANT ITS CANCELLATION. THE SOLICITATION WAS FOR 20 KNOCKDOWN TYPE PORTABLE BUILDINGS ON A BRAND NAME OR EQUAL BASIS. PORTA-KAMP'S BASIC "S" SERIES BUILDING WAS REFERENCED AS THE BRAND NAME ITEM. ALLOWABLE ERECTION AND TEARDOWN TIME FOR THE BUILDINGS WERE STATED IN THE SPECIFICATIONS AND BIDDERS WERE FURTHER ADVISED THAT "OR EQUAL" BUILDINGS WOULD BE CONSIDERED PROVIDED.

B-171872, APR 1, 1971

BID PROTEST - DEFECTIVE SOLICITATION - BRAND NAME OR EQUAL CONCERNING PROTEST BY PORTA-KAMP MFG. CO., INC., AGAINST AWARD OF CONTRACT TO ATLANTIC MOBILE CORP., FOR 20 KNOCKDOWN TYPE PORTABLE BUILDINGS ON A BRAND NAME OR EQUAL BASIS UNDER AN IFB ISSUED BY PROCUREMENT DIVISION, FORT HOOD, TEXAS. BECAUSE THE IFB DOES NOT LIST THE SALIENT CHARACTERISTICS OF THE REFERENCED BRAND NAME, "PORTA-KEMP'S BASIC "S" SERIES BUILDING", IT IS DEFECTIVE. BIDDER'S OFFERING "EQUAL" PRODUCTS SHOULD NOT HAVE TO GUESS WHICH QUALITIES OF A BRAND NAME ARE ESSENTIAL TO THE GOVERNMENT'S NEEDS. NO AWARD MAY BE MADE UNDER THE IFB AND IT SHOULD BE CANCELLED.

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER, WITH ENCLOSURE, DATED MARCH 12, 1971, FROM THE ASSISTANT DEPUTY FOR PROCUREMENT, OFFICE OF THE ASSISTANT SECRETARY, RELATIVE TO THE PROTEST OF PORTA-KAMP MFG. CO., INC. (PORTA KAMP), AGAINST THE AWARD OF A CONTRACT TO ATLANTIC MOBILE CORP. (ATLANTIC) UNDER INVITATION FOR BIDS (IFB) NO. DABD09-71-B-0025, ISSUED BY THE PROCUREMENT DIVISION, FORT HOOD, TEXAS. AWARD IS BEING HELD IN ABEYANCE PENDING OUR DECISION IN THE MATTER.

THE THRESHOLD QUESTION PRESENTED IS WHETHER THE IFB IS DEFECTIVE SO AS TO WARRANT ITS CANCELLATION. THE SOLICITATION WAS FOR 20 KNOCKDOWN TYPE PORTABLE BUILDINGS ON A BRAND NAME OR EQUAL BASIS. PORTA-KAMP'S BASIC "S" SERIES BUILDING WAS REFERENCED AS THE BRAND NAME ITEM. THE LENGTH, WIDTH, CEILING HEIGHT, MAXIMUM WEIGHT, AND ALLOWABLE ERECTION AND TEARDOWN TIME FOR THE BUILDINGS WERE STATED IN THE SPECIFICATIONS AND BIDDERS WERE FURTHER ADVISED THAT "OR EQUAL" BUILDINGS WOULD BE CONSIDERED PROVIDED, INTER ALIA, THEIR COMPONENTS WERE "FUNCTIONALLY EQUAL" TO THOSE OF THE BRAND NAME PRODUCT. NOWHERE IS IT STATED, HOWEVER, WHAT COMPONENTS ARE INVOLVED OR WHAT CRITERIA THE COMPONENTS MUST MEET FOR FUNCTIONAL EQUALITY.

PARAGRAPH 1-1206.2(B) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) REQUIRES THAT BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS STATE THE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE BRAND NAME PRODUCT WHICH ARE ESSENTIAL TO THE GOVERNMENT'S NEEDS. HOWEVER, A LITERAL READING OF THE IFB COULD LEAD TO THE CONCLUSION THAT EACH AND EVERY COMPONENT, DOWN TO THE LAST AND SMALLEST SCREW OR NAIL, OF THE BRAND NAME PRODUCT IS ESSENTIAL TO THE GOVERNMENT'S MINIMUM NEEDS. BIDDERS OFFERING "EQUAL" PRODUCTS SHOULD NOT HAVE TO GUESS WHICH QUALITIES OF A BRAND NAME ITEM ARE ESSENTIAL TO THE GOVERNMENT'S NEEDS. IN THIS REGARD, WE HAVE HELD THAT AN IFB, SUCH AS HERE, WHICH DOES NOT LIST THE SALIENT CHARACTERISTICS OF THE REFERENCED BRAND NAME ITEM, OR WHICH LISTS NONESSENTIAL ITEMS, IS DEFECTIVE. SEE 49 COMP. GEN. 347 (1969); B-157857, JANUARY 26, 1966; B- 167947, DECEMBER 31, 1969. THUS, NO AWARD MAY BE MADE UNDER THE IFB AND WE AGREE WITH THE ASSISTANT DEPUTY FOR PROCUREMENT THAT THE IFB SHOULD BE CANCELED.

IN VIEW OF THE FOREGOING, THE QUESTION OF THE RESPONSIVENESS OF ATLANTIC'S BID DOES NOT REQUIRE OUR CONSIDERATION. SUFFICE TO SAY, THE ASPR "BRAND NAME OR EQUAL" CLAUSE REQUIRES THE FURNISHING OF DESCRIPTIVE LITERATURE ON THE "EQUAL" PRODUCT OFFERED AND BLANKET OFFERS TO MEET ALL SPECIFICATIONS DO NOT SATISFY THE DATA REQUIREMENTS OF THE CLAUSE. SEE B- 169835, SEPTEMBER 18, 1970, 50 COMP. GEN. ; B 168805, MAY 5, 1970.