B-172233, JUL 6, 1971

B-172233: Jul 6, 1971

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ALTHOUGH THE IFB WAS DEFECTIVE IN THAT IT FAILED TO SET OUT THE SALIENT CHARACTERISTICS DESIRED IN THE BRAND NAME. NO CORRECTIVE ACTION IS NOW POSSIBLE. INC.: REFERENCE IS MADE TO YOUR LETTER OF MARCH 17. AWARD WAS MADE TO THE FOURTH LOWEST BIDDER SINCE THE FIRST AND THIRD LOWEST BIDDERS WERE REJECTED FOR REASONS NOT HERE PERTINENT AND YOUR FIRM (AEC). WAS REJECTED BECAUSE THE WEIGHT PRINTER SPECIFIED IN YOUR BID WAS ALLEGED TO HAVE REQUIRED A CARBON BACKED TICKET WHEREAS A FORM WITHOUT CARBON WAS TO BE USED. THE ADMINISTRATIVE REPORT RECEIVED BY OUR OFFICE RELATIVE TO THE PROTEST OBSERVES THAT IN VIEW OF THE ABOVE ADVICE "IT WOULD APPEAR THAT COMPATIBILITY OF THE WEIGHT PRINTER WITH THE APPROVED FORM IS ESSENTIAL TO THE NEEDS OF THE GOVERNMENT AND THEREFORE IT IS A 'SALIENT CHARACTERISTIC.'" THE REPORT THEN NOTES THAT THE ONLY REFERENCE TO THE WEIGHT PRINTER FOUND IN THAT SECTION OF THE IFB WHICH SET OUT THE SALIENT CHARACTERISTICS OF THE EQUIPMENT DESIRED IS A REFERENCE TO THE SIZE AND THICKNESS OF FORMS WHICH IT HAD TO ACCOMMODATE.

B-172233, JUL 6, 1971

BID PROTEST - BRAND NAME PROCUREMENT - SALIENT CHARACTERISTICS DECISION CONCERNING PROTEST BY SECOND LOW BIDDER AGAINST AWARD OF A CONTRACT UNDER AN IFB ISSUED BY THE PUBLIC HEALTH SERVICE FOR BRAND NAME OR EQUAL PORTABLE SCALES. ALTHOUGH THE IFB WAS DEFECTIVE IN THAT IT FAILED TO SET OUT THE SALIENT CHARACTERISTICS DESIRED IN THE BRAND NAME, NO CORRECTIVE ACTION IS NOW POSSIBLE, THE CONTRACT HAVING BEEN COMPLETED.

TO ADVANCED EQUIPMENT COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 17, 1971, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. IFB-PL-71-9, ISSUED BY THE PROCUREMENT BRANCH, PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE.

THE IFB SOLICITED BIDS ON A QUANTITY OF "BRAND NAME OR EQUAL" PORTABLE WEIGHING SCALES. AWARD WAS MADE TO THE FOURTH LOWEST BIDDER SINCE THE FIRST AND THIRD LOWEST BIDDERS WERE REJECTED FOR REASONS NOT HERE PERTINENT AND YOUR FIRM (AEC), THE SECOND LOW BIDDER, WAS REJECTED BECAUSE THE WEIGHT PRINTER SPECIFIED IN YOUR BID WAS ALLEGED TO HAVE REQUIRED A CARBON BACKED TICKET WHEREAS A FORM WITHOUT CARBON WAS TO BE USED. THE LETTER WHICH ADVISED AEC OF ITS REJECTION ALSO ADVISED THAT THE REQUIRED FORM HAD BEEN APPROVED BY THE BUREAU OF THE BUDGET AND THAT APPROXIMATELY 20,000 COPIES HAD BEEN ORDERED AND PRINTED.

THE ADMINISTRATIVE REPORT RECEIVED BY OUR OFFICE RELATIVE TO THE PROTEST OBSERVES THAT IN VIEW OF THE ABOVE ADVICE "IT WOULD APPEAR THAT COMPATIBILITY OF THE WEIGHT PRINTER WITH THE APPROVED FORM IS ESSENTIAL TO THE NEEDS OF THE GOVERNMENT AND THEREFORE IT IS A 'SALIENT CHARACTERISTIC.'" THE REPORT THEN NOTES THAT THE ONLY REFERENCE TO THE WEIGHT PRINTER FOUND IN THAT SECTION OF THE IFB WHICH SET OUT THE SALIENT CHARACTERISTICS OF THE EQUIPMENT DESIRED IS A REFERENCE TO THE SIZE AND THICKNESS OF FORMS WHICH IT HAD TO ACCOMMODATE. THE CONCLUSION OF THE REPORT IS THAT THE FAILURE OF THE IFB TO STATE THAT THE WEIGHT PRINTER HAD TO ACCOMMODATE A CARBONLESS FORM MAKES ANY AWARD UNDER THE IFB IMPROPER IN THAT IT VIOLATES THE REQUIREMENT OF SECTION 1 1.307-4(B) OF THE FEDERAL PROCUREMENT REGULATIONS WHICH STATES 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 *** ."

WE AGREE WITH THE OBSERVATIONS AND CONCLUSION OF THE ADMINISTRATIVE REPORT. WE HAVE CONSISTENTLY HELD THAT THE FAILURE TO LIST THE SALIENT CHARACTERISTICS OF A BRAND NAME PRODUCT RENDERS A "BRAND NAME OR EQUAL" SOLICITATION DEFECTIVE. B-171872, APRIL 1, 1971, AND DECISIONS CITED THEREIN. THERE IS, THEREFORE, MERIT IN YOUR PROTEST.

HOWEVER, THE ADMINISTRATIVE REPORT ADVISES THAT THE CONTRACT WAS COMPLETED ON MARCH 18, 1971. THEREFORE, WE ARE UNABLE TO TAKE ANY CORRECTIVE ACTION AT THIS TIME.