B-173151, SEP 30, 1971

B-173151: Sep 30, 1971

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AFTER AWARDING THE CONTRACT ON THE BASIS OF FURNISHING A PARTICULAR ITEM (AN EXPLOSIVE WIRE CUTTING DEVICE) WHICH WAS DETERMINED TO BE EQUAL TO THE BRAND NAME. CHRISTY: REFERENCE IS MADE TO YOUR LETTER DATED MAY 5. THE ISSUE ON WHICH YOU REQUEST THE DECISION IS WHETHER THE BOARD WAS ERRONEOUS AS A MATTER OF LAW IN THAT IT FAILED TO INTERPRET PROPERLY THE "BRAND NAME OR EQUAL" CLAUSE OF THE CONTRACT. OUR CONSIDERATION OF THE MATTER WILL BE CONFINED TO THAT PORTION OF THE BOARD'S DECISION INVOLVING THE ABOVE LEGAL ISSUE. THE BRAND NAME OR EQUAL CLAUSE IS AS FOLLOWS: "BRAND NAME OR EQUAL (NEGOTIATED PROCUREMENT) "(AS USED IN THIS CLAUSE. "(A) IF ITEMS CALLED FOR BY THIS SOLICITATION HAVE BEEN IDENTIFIED IN THE SCHEDULE BY A 'BRAND NAME OR EQUAL' DESCRIPTION.

B-173151, SEP 30, 1971

ASBCA DECISION - BRAND NAME OR EQUAL DECISION THAT A VOUCHER IN FAVOR OF ROBERT E. KRUEGER, IN THE SUM OF $8,279.30 REPRESENTING A PROPOSED PARTIAL PAYMENT ON ACCOUNT OF KRUEGER'S TERMINATION CLAIM, INCIDENT TO A DECISION BY THE ARMED SERVICE BOARD OF CONTRACT APPEALS, MAY BE PAID. AFTER AWARDING THE CONTRACT ON THE BASIS OF FURNISHING A PARTICULAR ITEM (AN EXPLOSIVE WIRE CUTTING DEVICE) WHICH WAS DETERMINED TO BE EQUAL TO THE BRAND NAME, THE GOVERNMENT COULD NOT LEGALLY DEFAULT THE CONTRACTOR BY CLAIMING THAT THE ITEM FAILED TO PERFORM IN A MANNER IDENTICAL TO THE BRAND NAME ITEM WHERE THE EQUAL ITEM MET ALL THE DETAILED CHARACTERISTICS OF THE BRAND NAME ITEM SET OUT IN THE SOLICITATION.

TO MR. R. W. CHRISTY:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 5, 1971, F/RWC:IL, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO WHETHER AN ATTACHED VOUCHER IN FAVOR OF ROBERT E. KRUEGER (KRUEGER), IN THE SUM OF $8,279.30 MAY BE PAID.

THE VOUCHER RELATES TO A DECISION BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS (ASBCA) ISSUED ON SEPTEMBER 18, 1970, UNDER DOCKET NOS. 14353 AND 14560, AND REPRESENTS A PROPOSED PARTIAL PAYMENT ON ACCOUNT OF KRUEGER'S TERMINATION CLAIM UNDER CONTRACT NO. N00228-69-C 0994 WHICH HE HELD WITH THE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA.

THE BOARD'S DECISION CONVERTED A DEFAULT TERMINATION UNDER THE SUBJECT CONTRACT INTO A TERMINATION FOR THE CONVENIENCE OF THE GOVERNMENT. AFTER DENIAL OF THE GOVERNMENT'S POSTHEARING MOTIONS FOR RECONSIDERATION AND CORRECTION OF THE RECORD, AND UPON THE ADVICE OF COUNSEL, NAVAL REGIONAL PROCUREMENT OFFICE, YOU TRANSMITTED THE VOUCHER TO OUR OFFICE FOR AN ADVANCE DECISION BY THE COMPTROLLER GENERAL OF THE UNITED STATES. THE ISSUE ON WHICH YOU REQUEST THE DECISION IS WHETHER THE BOARD WAS ERRONEOUS AS A MATTER OF LAW IN THAT IT FAILED TO INTERPRET PROPERLY THE "BRAND NAME OR EQUAL" CLAUSE OF THE CONTRACT. OUR CONSIDERATION OF THE MATTER WILL BE CONFINED TO THAT PORTION OF THE BOARD'S DECISION INVOLVING THE ABOVE LEGAL ISSUE, WHICH GAVE RISE TO THE SUBJECT REQUEST, RATHER THAN EXTENDED TO A REVIEW OF THE ENTIRE MATTER.

THE BRAND NAME OR EQUAL CLAUSE IS AS FOLLOWS:

"BRAND NAME OR EQUAL (NEGOTIATED PROCUREMENT)

"(AS USED IN THIS CLAUSE, THE TERM 'BRAND NAME' INCLUDES IDENTIFICATION OF PRODUCTS BY MAKE AND MODEL.)

"(A) IF ITEMS CALLED FOR BY THIS SOLICITATION HAVE BEEN IDENTIFIED IN THE SCHEDULE BY A 'BRAND NAME OR EQUAL' DESCRIPTION, SUCH IDENTIFICATION IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WILL BE SATISFACTORY. PROPOSALS OFFERING 'EQUAL' PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE PROPOSAL AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE SOLICITATION.

"(B) UNLESS THE OFFEROR CLEARLY INDICATES IN HIS PROPOSAL THAT HE IS OFFERING AN 'EQUAL' PRODUCT, HIS PROPOSAL SHALL BE CONSIDERED AS OFFERING A BRAND NAME PRODUCT REFERENCED IN THE SOLICITATION.

"(C)(1) IF THE OFFEROR PROPOSES TO FURNISH AN 'EQUAL' PRODUCT, THE BRAND NAME, IF ANY, OF THE PRODUCT TO BE FURNISHED SHALL BE INSERTED IN THE SPACE PROVIDED IN THE SOLICITATION, OR SUCH PRODUCT SHALL BE OTHERWISE CLEARLY IDENTIFIED IN THE PROPOSAL. THE EVALUATION OF PROPOSALS AND THE DETERMINATION AS TO EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE GOVERNMENT AND WILL BE BASED ON INFORMATION FURNISHED BY THE OFFEROR OR IDENTIFIED IN HIS PROPOSAL, AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. CAUTION TO OFFERORS. THE PURCHASING ACTIVITY IS NOT RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH IS NOT IDENTIFIED IN THE PROPOSAL AND REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. ACCORDINGLY, TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE OFFEROR MUST FURNISH AS A PART OF HIS PROPOSAL ALL DESCRIPTIVE MATERIAL (SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER INFORMATION) NECESSARY FOR THE PURCHASING ACTIVITY TO (I) DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE SOLICITATION AND (II) ESTABLISH EXACTLY WHAT THE OFFEROR PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. THE INFORMATION FURNISHED MAY INCLUDE SPECIFIC REFERENCES TO INFORMATION PREVIOUSLY FURNISHED OR TO INFORMATION OTHERWISE AVAILABLE TO THE PURCHASING ACTIVITY.

"(2) IF THE OFFEROR PROPOSES TO MODIFY A PRODUCT SO AS TO MAKE IT CONFORM TO THE REQUIREMENTS OF THE SOLICITATION, HE SHALL (I) INCLUDE IN HIS PROPOSAL A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS AND (II) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS.

"(3) UNSOLICITED MODIFICATIONS PROPOSED AFTER PROPOSAL OPENING TO MAKE A PRODUCT CONFORM TO A BRAND NAME PRODUCT REFERENCED IN THE SOLICITATION WILL NOT BE CONSIDERED.

THE CONTRACT, DATED NOVEMBER 21, 1968, WAS AWARDED TO KRUEGER AS A RESULT OF HIS LOW OFFER FOR FURNISHING HIS OWN EXPLOSIVE WIRE-CUTTING DEVICE AS AN EQUAL TO THE BRAND NAME ITEM. THE SOLE PRODUCT SPECIFICATION, AS CONTAINED IN THE SOLICITATION, IS IN PERTINENT PART AS FOLLOWS:

" *** SHALL HAVE CAPACITY TO CUT 1", 7/8", 3/4" AND 1/2" WIRE ROPE *** . CUTTING FORCE SHALL BE SUPPLIED BY AN EXPLOSIVE CHARGE ONLY. THE EXPLOSIVE CHARGE SHALL BE DETONATED BY THE FORCE APPLIED THROUGH A 12 FT. (PLUS 1" MINUS 0") POLE HANDLE ONLY; NOT BY A LANYARD, ELECTRIC FIRING CABLE OR ANY OTHER DEVICE. *** REQUIRED FOR EMERGENCY CUTTING OF WIRE ROPE LINES BETWEEN SHIPS. EQUAL TO MODEL EAP-500-1000. (PART NUMBER B- 96727) AS MANUFACTURED BY MINE SAFETY APPLIANCE."

THE ONLY TEST PROCEDURES CONTAINED IN THE SOLICITATION ARE FOR FIRST ARTICLE TESTING WHICH STATE:

"OPERATIONAL TESTS TO BE CONDUCTED:

"A. THE COMPLETE CUTTER SHALL BE CAPABLE OF PERFORMING TWENTY NORMAL CUTTING OPERATIONS WITH STANDARD RELOADING PROCEDURES WITHOUT MALFUNCTION. THESE WILL BE PERFORMED ON 1/2" (THE CORRECT DIAMETER SHOULD HAVE BEEN 1") DIAMETER IWRC ROPE."

A TEST JIG WAS DEVISED WHICH CONSISTED OF STANDARDS APPROXIMATELY THREE FEET APART WITH PROJECTING ARMS. THREE FOOT LENGTHS OF 1" CABLE WERE PREPARED WITH 4" TO 5" LONG ALUMINUM SHEATHING NEAR THE ENDS, THUS LEAVING ABOUT TWO FEET OF THE TEST CABLE SUSPENDED BETWEEN THE TEST JIG ARMS. WEDGES WERE POUNDED IN AROUND THE CABLE AT THE POINTS WHERE THE SWAGED SHEATHES RESTED UPON THE ARMS OF THE JIG RESULTING IN SOME TENSION ON THE CABLE.

THE PARTIES AGREED TO A COMPARISON TEST ON JUNE 4, 1969, BETWEEN THE BRAND NAME MANUFACTURER'S CUTTER AND KRUEGER'S "OR EQUAL" ITEM. IN SIX FIRINGS (5 WITHOUT INSERTION OF THE WEDGES), THE BRAND NAME ITEM COMPLETELY SEVERED ALL THE CABLE WIRES (259) IN THE 1" CABLE ON A SINGLE SHOT. KRUEGER'S CUTTER SEVERED 257 OF THE 259 WIRES IN THE TEST CABLE ON EIGHT OF NINE SHOTS, AND 256 ON THE NINTH SHOT, HOWEVER, THE UNCUT WIRES UNDER EACH SHOT WERE NICKED. MR. KRUEGER TESTIFIED THAT HIS CUTTER WAS INTENTIONALLY CONSTRUCTED TO OBTAIN SUCH RESULTS SO AS TO AVOID A BACKLASH OF THE CABLE IN OPERATIONAL USE, SINCE THIS WOULD HELP PREVENT INJURY TO PERSONNEL ON THE DECK OF THE SHIP. HE FURTHER TESTIFIED THAT THE NICKED WIRES WOULD PART WITH A TENSION OF ABOUT 100 200 POUNDS, WHICH WOULD BE PROVIDED BY THE PULL OF THE CABLE UNDER THE CONDITIONS FOR WHICH THE CUTTER WAS INTENDED TO BE USED.

AS A CONSEQUENCE OF THE FAILURE OF KRUEGER'S CUTTER TO COMPLETELY SEVER THE 1" WIRE ROPE ON ANY OF THE FIRINGS, AS WAS ACCOMPLISHED ON EACH OF THE SHOTS FOR THE BRAND NAME ITEM, THE CONTRACTING OFFICER TERMINATED THE CONTRACT FOR DEFAULT ON JUNE 23, 1969, UNDER THE FIRST ARTICLE PROVISIONS.

THE BOARD CONCLUDED THAT THE CONTRACTOR'S ITEM, WHILE NOT PERFORMING IDENTICALLY TO THE BRAND NAME ITEM, WAS SUITABLE FOR THE INTENDED USE; THAT THE TEST RIG WAS NOT SUITABLE FOR HIS CUTTER; THAT THE CONDITIONS WERE NOT REPRESENTATIVE OF OPERATIONAL USE; AND THAT THE FAILURE OF HIS CUTTER ON THE JUNE 4 TEST SHOULD NOT HAVE RESULTED IN A TERMINATION FOR DEFAULT. CONSEQUENTLY, KRUEGER'S APPEAL WAS SUSTAINED.

THE ASBCA'S DECISION INTERPRETS THE BRAND NAME OR EQUAL CLAUSE OF THE CONTRACT BY HOLDING AT PAGE 7 THEREOF:

"'BRAND NAME OR EQUAL' PROCUREMENTS ARE TROUBLESOME AT THE VERY LEAST. THEY ARE DOUBLY SO WHEN THE GOVERNMENT DOES NOT DETAIL THOSE CHARACTERISTICS OF THE BRAND NAME ITEM WHICH ARE CONSIDERED TO BE SIGNIFICANT, AS REQUIRED BY PROCUREMENT REGULATIONS (ASPR 1 1206.2(B)). THE SUBJECT CONTRACT DID NOT DETAIL SUCH CHARACTERISTICS. IT REQUIRED ONLY THAT THE APPELLANT'S CUTTER BE THE EQUAL OF THE DESIGNATED BRAND NAME CUTTER. IT WAS NOT REQUIRED THAT APPELLANT FURNISH A CUTTER IDENTICAL IN ALL RESPECTS WITH THE DESIGNATED BRAND NAME CUTTER. TO SO INTERPRET THE CONTRACT WOULD BE TO READ OUT THE WORDS 'OR EQUAL.'

"GENERALLY, EQUALITY OF A SUBSTITUTE FOR THE BRAND NAME ITEM IS, AND SHOULD BE, DETERMINED BEFORE AWARD. THEREAFTER, THE SUBSTITUTED ARTICLE IS SUBSTITUTED IN THE AWARD FOR THE BRAND NAME ITEM, AND THE FORMER BECOMES THE SPECIFICATION OF THE CONTRACT - EXCEPT TO THE EXTENT THAT SPECIFIC CHARACTERISTICS HAVE BEEN SET OUT OR THE PARTIES HAVE SPECIFICALLY AGREED (SEE ASPR 1-1206.4(B)).

"OF COURSE, THE FOREGOING DOES NOT IMPLY THAT THE SUBSTITUTE ARTICLE NEED NOT CONFORM TO PERFORMANCE CRITERIA EITHER SET OUT OR IMPLIED IN THE CONTRACT. HENCE, WE REJECT THE NAVY'S CONTENTION THAT APPELLANT'S CUTTER HAD TO PERFORM ITS FUNCTION IN PRECISELY THE IDENTICAL MANNER AS DID THE BRAND NAME ITEM. *** "

WE FIND NO BASIS TO DISAGREE WITH THE BOARD'S CONCLUSION THAT A COMPARISON OF THE BRAND NAME ITEM IN A BRAND NAME OR EQUAL SOLICITATION (AS DISTINGUISHED FROM STATED REQUIREMENTS FOR SPECIFIED CHARACTERISTICS OF THAT ITEM) IS GENERALLY CONFINED TO THE PREAWARD EVALUATION OF THE "EQUAL" ITEM. A COMPARISON AT THAT TIME IS ESSENTIAL TO DETERMINE WHETHER THE "EQUAL" ITEM IS, IN FACT, EQUAL IN MATERIAL RESPECTS TO THE BRAND NAME ITEM WHICH MEETS THE REQUIREMENTS OF THE GOVERNMENT, AND THAT AN AWARD MAY BE PROPERLY MADE FOR THE PROCUREMENT OF THE "EQUAL" ITEM. THE PURPOSE OF THE PREAWARD COMPARISON AND DETERMINATION BY THE GOVERNMENT IS CLEARLY SHOWN ABOVE IN THE UNDERLINED PORTION OF PARAGRAPH (A) OF THE CLAUSE, AND BY THAT PORTION OF PARAGRAPH (C)(1) WHICH INDICATES THAT THE OFFEROR MUST FURNISH SUFFICIENT INFORMATION WITH HIS BID TO PERMIT THE GOVERNMENT TO "ESTABLISH EXACTLY WHAT THE OFFEROR PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD." INDICATED IN THE BOARD'S DECISION, THE SOLICITATION WAS DEFECTIVE IN NOT DETAILING THOSE CHARACTERISTICS OF THE BRAND NAME ITEM WHICH WERE CONSIDERED TO BE SIGNIFICANT, AND A DIFFERENT CONCLUSION WOULD BE PROPER IF THE SOLICITATION HAD DETAILED SUCH CHARACTERISTICS AND THE ARTICLE DELIVERED, UNLIKE THE INFORMATION FURNISHED WITH THE PROPOSAL, FAILED TO INCLUDE SUCH CHARACTERISTICS. HOWEVER, AFTER AWARDING THE CONTRACT ON THE BASIS OF FURNISHING A PARTICULAR ITEM WHICH WAS DETERMINED TO BE EQUAL, THE GOVERNMENT COULD NOT LEGALLY DEFAULT THE CONTRACTOR, WHEN HE ATTEMPTED TO DELIVER THAT ITEM, BY CLAIMING THAT THE ITEM FAILED TO PERFORM IN A MANNER IDENTICAL TO THE BRAND NAME ITEM. THE DETERMINATION, PRIOR TO AWARD, AS TO THE EQUALITY OF "EQUAL" PRODUCTS OFFERED IS THE RESPONSIBILITY OF THE GOVERNMENT, AND WE HAVE STATED IN THIS CONNECTION:

"WHETHER A BIDDER PROPOSED TO MANUFACTURE A MODEL WHICH WOULD ATTAIN THE PERFORMANCE CHARACTERISTICS OF THE BRAND NAME PRODUCT WAS TO BE DETERMINED BY EVALUATING THE INFORMATION SUBMITTED WITH HIS OFFER IN ACCORDANCE WITH THE BRAND NAME OR EQUAL CLAUSE, AND NOT DURING FIRST ARTICLE TESTING." COMP. GEN. 193, 200 (1970).

CONCERNING COUNSEL'S ARGUMENT THAT THE BOARD'S DECISION IS NOT BASED UPON SUBSTANTIAL EVIDENCE RELATIVE TO THE NUMBER OF WIRES CUT BY KRUEGER'S CUTTER IN ALL FIRINGS, WE ARE UNABLE TO CONCLUDE THAT THE FACTUAL FINDINGS BY THE BOARD WERE NOT BASED UPON SUBSTANTIAL EVIDENCE. ADDITIONALLY, IN VIEW OF THE FACT THAT THE FIRST 11 TEST SHOTS WERE ACCOMPLISHED WITHOUT THE CONTRACTOR'S KNOWLEDGE HIS CUTTER WAS EXPECTED TO COMPLETELY SEVER ALL 259 WIRES, WE CANNOT CONCLUDE THAT THE BOARD ACTED ARBITRARILY OR CAPRICIOUSLY IN CONCLUDING THAT ONLY THE THIRD TEST WAS SIGNIFICANT, FOR WHICH TEST THE RECORD IS CLEAR THAT THE DECISION IS CORRECT IN ITS ENUMERATION OF THE NUMBER OF WIRES CUT OR NICKED BY KRUEGER.

ACCORDINGLY, YOU ARE ADVISED THAT THE VOUCHER RETURNED HEREIN MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT. REFERENCE TO THIS DECISION SHOULD BE MADE ON THE PAID VOUCHER.