B-173455, NOV 19, 1971

B-173455, NOV 19, 1971

BID PROTEST - NONRESPONSIVE BID - "BRAND NAME OR EQUAL" DENIAL OF PROTEST BY TECHNOLOGY, INC., AGAINST THE REJECTION OF THEIR BID AS NONRESPONSIVE TO AN IFB ISSUED BY THE ENVIRONMENTAL PROTECTION AGENCY FOR PROCUREMENT OF MASS FLOWMETERS. IN ACCORDANCE WITH A "BRAND NAME OR EQUAL" CLAUSE, BIDDERS OFFERING "OR EQUAL" PRODUCTS ARE REQUIRED TO FURNISH, AS PART OF THEIR BIDS, INFORMATION OR DESCRIPTIVE MATERIAL SUFFICIENT TO ENABLE THE PURCHASING ACTIVITY TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. FAILURE TO INCLUDE WITH THE BID ALL THE INFORMATION NECESSARY FOR ITS EVALUATION RENDERED THE BID NONRESPONSIVE.

TO TECHNOLOGY INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 30, 1971, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE REJECTION OF YOUR BID AS NONRESPONSIVE TO INVITATION FOR BIDS (IFB) 71B-36605 ISSUED BY THE ENVIRONMENTAL PROTECTION AGENCY CONTRACT OPERATIONS OFFICE, DURHAM, NORTH CAROLINA.

THE IFB, ISSUED ON MAY 18, 1971, SOLICITED BIDS FOR FURNISHING MASS FLOWMETERS COMPRISED OF 6 ITEMS, 10 EACH, HASTINGS-RAYDIST, INC., OR EQUAL. INCLUDED IN THE PURCHASE DESCRIPTION WAS A LIST OF 11 SALIENT CHARACTERISTICS.

PURSUANT TO FEDERAL PROCUREMENT REGULATION 1-1.307-6(A)(2), A "BRAND NAME OR EQUAL" CLAUSE WAS INCLUDED IN THE IFB AS FOLLOWS:

"(A) IF ITEMS CALLED FOR BY THIS INVITATION FOR BIDS 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. BIDS OFFERING 'EQUAL PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE INVITATION FOR BIDS.

"(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 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 OFFEROR OR IDENTIFIED IN HIS BID 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 BID AND REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. ACCORDINGLY, TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE OFFEROR 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 OFFEROR PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. ***

"(2) IF THE OFFEROR 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."

FOUR BIDS WERE RECEIVED BY THE SCHEDULED OPENING DATE OF JUNE 17, 1971, AND IT WAS DETERMINED THAT THE BID OF YOUR FIRM WAS NONRESPONSIVE BECAUSE IT FAILED TO INDICATE COMPLIANCE WITH SALIENT CHARACTERISTIC 11; THE DESCRIPTIVE DATA SUBMITTED DID NOT DESCRIBE THE MODEL BID UPON; AND THE DESCRIPTIVE DATA PROVIDED FOR "SCFM" READING WHEREAS SALIENT CHARACTERISTIC 9 REQUIRED THE "METER TO READ DIRECTLY IN SCCM." AWARD WAS MADE TO HASTINGS-RAYDIST, THE REMAINING BIDDER, ON JUNE 30, 1971.

YOU HAVE STATED THAT THE DESCRIPTIVE LITERATURE SUBMITTED WITH YOUR BID WAS FOR GENERAL INFORMATION ONLY AND WAS NOT INTENDED TO SUPERSEDE THE GOVERNMENT REQUIREMENTS. YOU ADVISE THAT THE PART NUMBER QUOTED IN YOUR BID SPECIFIED ITEMS WHICH WOULD SATISFY THE NEEDS OF THE GOVERNMENT. YOU, THEREFORE, CONTEND THAT THE BID FROM YOUR COMPANY SHOULD NOT HAVE BEEN REJECTED. HOWEVER, OUR OFFICE HAS HELD THAT IN ACCORDANCE WITH THE "BRAND NAME OR EQUAL" CLAUSE, BIDDERS OFFERING "OR EQUAL" PRODUCTS ARE REQUIRED TO FURNISH, AS A PART OF THEIR BIDS, ALL INFORMATION OR DESCRIPTIVE MATERIAL SUFFICIENT TO ENABLE THE PURCHASING ACTIVITY TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD AND THAT, IN VIEW OF THE SPECIFIC REQUIREMENT FOR THE SUBMISSION OF DESCRIPTIVE MATERIAL, THE FAILURE TO INCLUDE WITH THE BID ALL THE INFORMATION NECESSARY FOR ITS EVALUATION RENDERS THE BID NONRESPONSIVE. B-155408, JANUARY 5, 1965, AND DECISIONS CITED THEREIN.

YOU HAVE CONTENDED FURTHER THAT THERE WAS NO NEED TO FURNISH LITERATURE WITH THE BID SINCE CLAUSE 33 OF THE IFB, "BIDDER-SPECIFIED BRAND NAMES", PROVIDED THAT BIDS SUBMITTED WITHOUT EXCEPTION TO THE SPECIFICATIONS "WILL *** BE UNDERSTOOD TO MEAN THAT THE ARTICLES SO OFFERED FULLY COMPLY WITH THE SPECIFICATION REQUIREMENTS." HOWEVER, THAT CLAUSE IS NOT RELEVANT TO THE PRESENT SITUATION SINCE IT STATES THAT IT IS APPLICABLE "WHERE DETAILED SPECIFICATIONS ARE SHOWN OR REFERRED TO IN THE INVITATION FOR BIDS" AND THAT IS NOT THE SITUATION HERE.

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.