B-173305, SEP 29, 1971

B-173305: Sep 29, 1971

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PROTESTANT'S BID FOR AN EQUAL PRODUCT INCLUDED DESCRIPTIVE LITERATURE PROVIDING FOR "HOUSING WATER COOLED" WHICH PROTESTANT ASSERTS IS EQUIVALENT TO THE IFB REQUIREMENT THAT THE UNIT "SHALL BE HOUSED IN A WEATHER-PROOF ENCLOSURE WITH ACCESS PANELS". IT IS THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY TO DRAFT PROPER SPECIFICATIONS AND DETERMINE RESPONSIVENESS THERETO. THERE WAS NO AFFIRMATIVE OBLIGATION ON THE CONTRACTING OFFICER TO CONFER WITH PROTESTANT PRIOR TO THE REJECTION OF THE BID. TO EMPIRE GENERATOR CORPORATION: REFERENCE IS MADE TO YOUR LETTER DATED JUNE 14. THE IFB WAS ISSUED APRIL 23. 1961) WAS INCLUDED IN THE IFB PROVIDING: "(C)(1) IF THE BIDDER PROPOSES TO FURNISH AN 'EQUAL' PRODUCT.

B-173305, SEP 29, 1971

BID PROTEST - BID RESPONSIVENESS - BRAND NAME OR EQUAL DECISION DENYING PROTEST BY LOW BIDDER AGAINST AWARD OF A CONTRACT TO BLALOCK MACHINE AND EQUIPMENT CO., INC., FIFTH LOW BIDDER, FOR A TRAILER MOUNTED ELECTRIC GENERATOR UNDER AN IFB ISSUED BY THE MARINE CORPS SUPPLY CENTER, ALBANY, GEORGIA. THE FIRST THROUGH FOURTH LOW BIDDERS SUBMITTED NONRESPONSIVE BIDS. PROTESTANT'S BID FOR AN EQUAL PRODUCT INCLUDED DESCRIPTIVE LITERATURE PROVIDING FOR "HOUSING WATER COOLED" WHICH PROTESTANT ASSERTS IS EQUIVALENT TO THE IFB REQUIREMENT THAT THE UNIT "SHALL BE HOUSED IN A WEATHER-PROOF ENCLOSURE WITH ACCESS PANELS". IT IS THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY TO DRAFT PROPER SPECIFICATIONS AND DETERMINE RESPONSIVENESS THERETO. FROM A REVIEW OF THE RECORD THE COMP. GEN. BELIEVES THAT THE CONTRACTING OFFICER ACTED REASONABLY IN REJECTING PROTESTANT'S BID AS NONRESPONSIVE. FURTHER, THERE WAS NO AFFIRMATIVE OBLIGATION ON THE CONTRACTING OFFICER TO CONFER WITH PROTESTANT PRIOR TO THE REJECTION OF THE BID.

TO EMPIRE GENERATOR CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 14, 1971, WITH ENCLOSURE, PROTESTING AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS (IFB) M67004-71-B-0029, ISSUED BY THE MARINE CORPS SUPPLY CENTER, ALBANY, GEORGIA.

THE IFB WAS ISSUED APRIL 23, 1971, SOLICITING BIDS FOR ONE "GENERATOR, ELECTRIC, TRAILER MOUNTED TO BE OMAN MODEL #115 WA-3R OR EQUAL", FOLLOWED BY A DETAILED LIST OF SALIENT CHARACTERISTICS INCLUDING, "UNIT SHALL BE HOUSED IN A WEATHER PROOF ENCLOSURE WITH ACCESS PANELS."

PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION 1-1206.3(B), THE CLAUSE ENTITLED "BRAND NAME OR EQUAL" (NOVEMBER, 1961) WAS INCLUDED IN THE IFB PROVIDING:

"(C)(1) IF THE BIDDER 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 INVITATION FOR BIDS, OR SUCH PRODUCT SHALL BE OTHERWISE CLEARLY IDENTIFIED IN THE BID. THE EVALUATION OF BIDS 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 BIDDER OR IDENTIFIED IN HIS BID, AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. CAUTION TO BIDDERS. THE PURCHASING ACTIVITY IS NOT RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH IS NOT IDENTIFIED IN THE BID AND REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. ACCORDINGLY, TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE BIDDER MUST FURNISH AS A PART OF HIS BID 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 INVITATION FOR BIDS AND (II) ESTABLISH EXACTLY WHAT THE BIDDER 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 BIDDER PROPOSES TO MODIFY A PRODUCT SO AS TO MAKE IT CONFORM TO THE REQUIREMENTS OF THE INVITATION FOR BIDS, HE SHALL (I) INCLUDE IN HIS BID A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS AND (II) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS.

"(3) MODIFICATIONS PROPOSED AFTER BID OPENING TO MAKE A PRODUCT CONFORM TO A BRAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BIDS WILL NOT BE CONSIDERED."

FIVE BIDS WERE RECEIVED BY THE CLOSING DATE OF MAY 12, 1971:

1. EMPIRE GENERATOR CORPORATION $ 8,085.00

2. KURZ & ROOT COMPANY 8,690.00

3. AEROCEANIC MOTORS CORPORATION 9,227.00

4. GEORGIA ENGINE AND GENERATOR COMPANY 9,992.00

5. BLALOCK MACHINE AND EQUIPMENT CO., INC. 10,747.00

EMPIRE GENERATOR CORPORATION (EMPIRE) WAS DETERMINED TO BE NONRESPONSIVE FOR ITS FAILURE TO INDICATE THE INCLUSION OF WEATHER PROOF HOUSING. THE KURZ & ROOT COMPANY BID WAS REJECTED BECAUSE IT DID NOT INDICATE THAT ITS OFFER CONTAINED TRAILER MOUNTING, BATTERY, OVER SPEED SHUTDOWN AND SIGNAL, MANUAL RESET OVERLOAD PROTECTION FREQUENCY METER, AC AMMETER WITH PHONE SELECTOR SWITCH, RUNNING TIME METER, MUFFLER, FUEL TANK AND WEATHER-PROOF ENCLOSURE. AEROCEANIC MOTORS CORP. WAS DECLARED NONRESPONSIVE FOR NOT QUOTING A FIRM DELIVERY DATE. GEORGIA ENGINE AND GENERATOR COMPANY DID NOT INCLUDE MANUAL RESET OVERLOAD PROTECTION. CONSEQUENTLY, AWARD WAS MADE ON JUNE 9, 1971, TO BLALOCK MACHINE AND EQUIPMENT CO., INC.

IT IS YOUR CONTENTION THAT EMPIRE'S BID WAS RESPONSIVE SINCE THE DESCRIPTIVE DATA ATTACHED TO YOUR BID AND MADE A PART THEREOF PROVIDED FOR "HOUSING WATER COOLED". YOU ASSERT THAT THE ABOVE LANGUAGE IS EQUIVALENT TO THAT OF THE IFB. WE HAVE CONSISTENTLY HELD THAT THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT AND DETERMINING FACTUALLY WHETHER ARTICLES OFFERED BY BIDDERS MEET THESE SPECIFICATIONS IS PRIMARILY FOR THE ADMINISTRATIVE AGENCY. COMP. GEN. 251 (1956). ABSENT A SHOWING OF ARBITRARINESS OR CAPRICIOUSNESS, OUR OFFICE IS CONSTRAINED TO DEFER TO THE TECHNICAL EXPERTISE OF THE PURCHASING ACTIVITY IN MATTERS PERTAINING TO TECHNICAL EVALUATION. 49 COMP. GEN. 156 (1969). IN THIS CONNECTION, WE HAVE BEEN INFORMED THAT THE GENERATOR IS TO BE USED OUTDOORS TO PROVIDE EMERGENCY POWER. IN DETERMINING THE RESPONSIVENESS OF EMPIRE'S BID THE DEPUTY QUARTERMASTER GENERAL, MARINE CORPS, STATES IN HIS REPORT DATED JULY 21, 1971:

"THE CONTRACTING OFFICER STATED THAT THIS HOUSING WATER COOLED WAS NOT INTERPRETED AS WEATHER-PROOF HOUSING AND NOWHERE IN EMPIRE'S DESCRIPTIVE LITERATURE IS THERE ANY REFERENCE TO WEATHER-PROOF HOUSING. IN ADDITION, THE DESCRIPTIVE LITERATURE SUBMITTED BY THE BIDDER INCLUDED A PICTURE OF THEIR GENERATOR WHICH CLEARLY DID NOT INCLUDE EITHER HOUSING OR ACCESS PANELS. NO COMMENTS WERE MADE IN THIS LITERATURE TO INDICATE THAT EITHER WEATHER-PROOFING OR ACCESS PANELS WERE OFFERED."

FROM OUR REVIEW OF THE RECORD WE CONCLUDE THE CONTRACTING OFFICER ACTED REASONABLY IN DETERMINING YOUR BID NONRESPONSIVE.

YOU ALSO CONTEND THAT THE CONTRACTING OFFICER WAS OBLIGATED TO CONTACT YOU REGARDING ANY QUESTIONS CONCERNING THE RESPONSIVENESS OF YOUR BID. HOWEVER, 10 U.S.C. 2305(C) PROVIDES THAT AWARDS SHALL BE MADE TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE IFB AND WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED. FURTHER, THE "BRAND NAME OR EQUAL" CLAUSE IN THE IFB STATES THAT THE EVALUATION OF BIDS WAS THE RESPONSIBILITY OF THE GOVERNMENT "BASED ON THE INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN HIS BID" AND OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. THEREFORE, THE REJECTION OF YOUR NONRESPONSIVE BID WITHOUT CONFERRING WITH YOU WAS PROPER.

FINALLY, YOU ALLEGE THAT THE IFB WAS DEFECTIVE WITH RESPECT TO SECTION I, INSPECTION AND ACCEPTANCE, WHICH PROVIDES "TO BE MADE BY CONSIGNEE AT DESTINATION". YOU REFER TO ASPR 14-305.2 CONCERNING CONTRACTS REQUIRING CONTRACTORS TO ESTABLISH QUALITY ASSURANCE PROGRAMS AT THE SOURCE OF MANUFACTURE. HOWEVER, ASPR 14-305.1 PROVIDES "EACH CONTRACT SHALL DESIGNATE THE PLACE OR PLACES WHERE THE GOVERNMENT RESERVES THE RIGHT TO PERFORM THOSE PROCUREMENT QUALITY ASSURANCE ACTIONS THAT IT CONSIDERS NECESSARY TO DETERMINE THAT SUPPLIES AND SERVICES CONFORM TO CONTRACT REQUIREMENTS." FURTHER, WE BELIEVE THE TIME TO QUESTION THE PROPRIETY OF SUCH A PROVISION IS BEFORE BIDDING.

THEREFORE, THE PROTEST IS DENIED.