B-174924, MAR 17, 1972

B-174924: Mar 17, 1972

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PROTESTANT'S BLANKET OFFER TO CONFORM WITH THE SPECIFICATIONS AND ITS FAILURE TO COMPLY WITH THE STATED DELIVERY REQUIREMENTS WERE SUFFICIENT TO JUSTIFY THE AGENCY'S DETERMINATION OF NONRESPONSIVENESS. IT IS THE OPINION OF THE COMP. IT IS WELL SETTLED THAT A DETERMINATION AS TO WHETHER THE PUBLIC INTEREST REQUIRES TERMINATION OF A CONTRACT FOR DEFAULT FOR LATE DELIVERY IS SOLELY A MATTER OF ADMINISTRATIVE DISCRETION. IN VIEW OF THE FOREGOING THE PROTEST IS DENIED. TO ARGUS ENGINEERING COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 6. WHICH WAS ISSUED ON AUGUST 23. BIDS WERE OPENED ON SEPTEMBER 29. BECAUSE A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION WAS USED. AWARD WAS MADE TO THE THIRD-LOW BIDDER.

B-174924, MAR 17, 1972

BID PROTEST - NONRESPONSIVENESS - "BRAND NAME OR EQUAL" - COMPLIANCE WITH DELIVERY REQUIREMENT DECISION DENYING PROTEST OF ARGUS ENGINEERING COMPANY AGAINST AWARD OF A "BRAND NAME OR EQUAL" CONTRACT TO RESEARCH, INC., UNDER AN IFB ISSUED BY THE NAVAL AVIONICS FACILITY, INDIANAPOLIS, INDIANA, FOR AN INFRARED REFLOW FUSING SYSTEM. PROTESTANT'S BLANKET OFFER TO CONFORM WITH THE SPECIFICATIONS AND ITS FAILURE TO COMPLY WITH THE STATED DELIVERY REQUIREMENTS WERE SUFFICIENT TO JUSTIFY THE AGENCY'S DETERMINATION OF NONRESPONSIVENESS. B-170697, DECEMBER 8, 1970; B-173956, NOVEMBER 24, 1971. FURTHER, IT IS THE OPINION OF THE COMP. GEN. THAT, PURSUANT TO ASPR 1-1206.2(B), PROSPECTIVE CONTRACTORS MUST BE PROVIDED WITH DETAILED SPECIFICATIONS OF THE GOVERNMENT'S MINIMUM NEEDS IN ORDER TO INSURE THAT THE AGENCY RECEIVES THE BENEFITS OF FULL AND FREE COMPETITION. 40 COMP. GEN. 348 (1960). WITH REGARD TO THE FAILURE OF RESEARCH TO MEET THE DELIVERY REQUIREMENT, IT IS WELL SETTLED THAT A DETERMINATION AS TO WHETHER THE PUBLIC INTEREST REQUIRES TERMINATION OF A CONTRACT FOR DEFAULT FOR LATE DELIVERY IS SOLELY A MATTER OF ADMINISTRATIVE DISCRETION. B-161384, JULY 24, 1967. IN VIEW OF THE FOREGOING THE PROTEST IS DENIED.

TO ARGUS ENGINEERING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 6, 1972, PROTESTING THE AWARD OF A CONTRACT FOR AN INFRARED REFLOW FUSING SYSTEM, ARGUS ENGINEERING COMPANY MODEL PC 4200 MACHINE OR EQUAL, TO RESEARCH INCORPORATED UNDER INVITATION FOR BIDS (IFB) N00163-72-B-0102, ISSUED BY THE U.S. NAVAL AVIONICS FACILITY, INDIANAPOLIS, INDIANA.

SIX BIDDERS RESPONDED TO THE IFB, WHICH WAS ISSUED ON AUGUST 23, 1971, AND BIDS WERE OPENED ON SEPTEMBER 29, 1971. BECAUSE A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION WAS USED, SECTION F OF THE IFB SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL OR OTHER CHARACTERISTICS CONSIDERED TO BE ESSENTIAL TO THE GOVERNMENT'S NEEDS, IN COMPLIANCE WITH SECTION 1- 1206.2(B) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). AWARD WAS MADE TO THE THIRD-LOW BIDDER, RESEARCH, INC., AS THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER ON OCTOBER 20, 1971, IN THE AMOUNT OF $12,969. YOUR LOW BID OF $8,965 AND THE BID OF THE SECOND LOW BIDDER WERE HELD TO BE NONRESPONSIVE AFTER AN EVALUATION BY THE CONTRACTING OFFICER.

ONE OF THE SALIENT CHARACTERISTICS, F.1.1, CALLS FOR A SYSTEM WHICH CAN HANDLE 20" WIDE CIRCUIT BOARDS, AND ANOTHER SALIENT CHARACTERISTIC, F.1.2, REQUIRES THAT "HEATING SHALL BE TWO SIDES, TWO ZONES UTILIZING FOCUSED INFRARED." CHARACTERISTIC F.1.3 PROVIDES FOR THE FUSING OF BOTH SIDES OF DOUBLE SIDED BOARDS SIMULTANEOUSLY. YOUR BID WAS HELD NONRESPONSIVE TO THESE CHARACTERISTICS BECAUSE THE DESCRIPTIVE LITERATURE FURNISHED ON THE MODEL OFFERED BY YOU, A PC 4210, DID NOT SHOW THE PC 4210 HEATING AS BEING TWO SIDES AND TWO ZONES, IN THE CASE OF 20" BOARDS, FOR THE SIMULTANEOUS FUSING OF BOTH SIDES OF THE BOARDS. ALTHOUGH YOU STATED IN YOUR REVISED BID OF SEPTEMBER 21, 1971, THAT THE PC 4210 WOULD CONTAIN ALL OF THE FEATURES OUTLINED ON PAGES 18 AND 19 (SECTION F) OF THE IFB, WE HAVE HELD THAT A BLANKET OFFER TO CONFORM TO THE SPECIFICATIONS DOES NOT SATISFY THE REQUIREMENT OF THE BRAND NAME OR EQUAL CLAUSE FOR THE DESCRIPTIVE INFORMATION TO SHOW THAT THE PRODUCT OFFERED MEETS THE IFB REQUIREMENTS. B-170697, DECEMBER 8, 1970; B-169835, NOVEMBER 4, 1970.

YOUR BID WAS ALSO HELD NONRESPONSIVE BECAUSE IT DID NOT COMPLY WITH THE DELIVERY REQUIREMENTS IN THE IFB. THE IFB REQUIRED DELIVERY WITHIN 45 DAYS AFTER THE AWARD DATE OF THE CONTRACT, WHEREAS YOUR REVISED BID OF SEPTEMBER 21 (QUOTATION #1136) OFFERED A SHIPPING DATE OF 45 DAYS AFTER RECEIPT OF ORDER. HENCE, YOUR BID WAS HELD NONRESPONSIVE IN ACCORDANCE WITH THE SPECIFIC PROVISION OF THE TIME OF DELIVERY CLAUSE (H.1) WHICH STATES THAT IF THE DELIVERY DATE OFFERED IS LATER THAN THE DELIVERY DATE REQUIRED IN THE IFB, THE BID WILL BE CONSIDERED AS NONRESPONSIVE AND REJECTED.

IN YOUR PROTEST YOU CONTEND THAT REQUESTING AN ARGUS ENGINEERING COMPANY PC 4200 MACHINE OR EQUAL, AND THEN STATING THE DESIRED DESIGN FEATURES OF THE MACHINE, VIOLATES THE ETHICAL PRACTICES OF GOVERNMENT PROCUREMENTS. YOU CONTEND THAT THE GOVERNMENT SHOULD EITHER LIST IN THE IFB A BRAND NAMED PRODUCT OR THE SALIENT CHARACTERISTICS OF THE ITEM REQUIRED AND THAT WHEN THE GOVERNMENT LISTED BOTH FOR THE PC 4200, WHOSE PRICE IS PUBLISHED, YOUR COMPETITION WAS GIVEN THE MACHINE'S DESIGN PARAMETERS AND WAS TOLD TO BEAT YOUR PRICE. YOU LIKEWISE FEEL IT SHOULD BE LEFT UP TO THE BIDDERS, IN THE INTEREST OF COMPETITION, TO DETERMINE FROM THE IFB WHAT THE NAMED EQUIPMENT IS AND WHAT CONSTITUTES AN EQUIVALENT PRODUCT. YOU SUGGEST THAT THE PROCUREMENT REGULATIONS SHOULD BE CHANGED ACCORDINGLY.

WE CANNOT AGREE WITH YOUR ARGUMENTS OR YOUR SUGGESTION ON THIS MATTER. OUR EXPERIENCE IN THIS AREA DOES NOT REVEAL THAT THE PERTINENT REGULATIONS RESULT IN INEQUITIES FOR THE BRAND NAME BIDDER BUT, TO THE CONTRARY, TO SOLICIT A "BRAND NAME OR EQUAL" PRODUCT WITHOUT LISTING THE SALIENT CHARACTERISTICS OF THE BRAND NAME PRODUCT WHICH ARE ESSENTIAL TO THE GOVERNMENT'S NEEDS WOULD, IN OUR VIEW, BE UNFAIR TO THE PROSPECTIVE BIDDERS ON "EQUAL" PRODUCTS. FURTHERMORE, ASPR 1 1206.2(B) WHICH, AS INDICATED ABOVE, PROVIDES 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, IS CONSISTENT WITH NUMEROUS DECISIONS OF OUR OFFICE ON THIS POINT. SEE B-157857, JANUARY 26, 1966, WHEREIN WE REFERRED TO THE REGULATION AND STATED:

"BIDDERS OFFERING 'EQUAL' PRODUCTS SHOULD NOT HAVE TO GUESS AT THE ESSENTIAL QUALITIES OF THE BRAND NAME ITEM. UNDER THE REGULATIONS THEY ARE ENTITLED TO BE ADVISED IN THE INVITATION OF THE PARTICULAR FEATURES OR CHARACTERISTICS OF THE REFERENCED ITEM WHICH THEY ARE REQUIRED TO MEET. AN INVITATION WHICH FAILS TO LIST ALL THE CHARACTERISTICS DEEMED ESSENTIAL, OR LISTS CHARACTERISTICS WHICH ARE NOT ESSENTIAL IS DEFECTIVE."

A PRINCIPAL PURPOSE OF THE COMPETITIVE BIDDING STATUTES IS TO OBTAIN FOR THE GOVERNMENT THE BENEFITS OF FULL AND FREE COMPETITION. 40 COMP. GEN. 348 (1960). THIS REQUIRES THAT THE PROCUREMENT BE ADVERTISED ON AS BROAD A BASIS AS POSSIBLE CONSISTENT WITH THE LEGITIMATE NEEDS OF THE USING AGENCY. IN ORDER TO BID INTELLIGENTLY ON SUPPLYING THOSE NEEDS, BIDDERS OFFERING "EQUAL" PRODUCTS MUST BE INFORMED OF THE PARTICULAR CHARACTERISTICS OF THE BRAND NAME PRODUCT ON WHICH THE RESPONSIVENESS OF THEIR BIDS WILL BE DETERMINED. AN INVITATION FOR BIDS WHICH IS DRAWN SO AS TO PLACE BIDDERS ON "EQUAL" PRODUCTS IN A DISADVANTAGEOUS POSITION IN THIS RESPECT CANNOT BE SAID TO BE SUFFICIENTLY DESCRIPTIVE TO PERMIT FREE AND FULL COMPETITION. 41 COMP. GEN. 242 (1961).

YOU INSIST THAT THE PROVISION IN YOUR REVISED BID, PROPOSING SHIPMENT 45 DAYS AFTER RECEIPT OF ORDER (ARO) INSTEAD OF DELIVERY WITHIN 45 DAYS AFTER THE AWARD DATE OF THE CONTRACT WAS A MINOR DEVIATION. YOU CONTEND THE GOVERNMENT DID NOT SPECIFY THAT TIME WAS OF THE ESSENCE AND THAT YOU COULD HAVE OFFERED 21 OR 30 DAYS FOR DELIVERY AND HAVE MET THE DELIVERY WITH EASE. THE ABSENCE OF A SPECIFIC STATEMENT BY THE GOVERNMENT THAT TIME WAS OF THE ESSENCE, FOR PURPOSES OF DELIVERY, IS NOT CONSIDERED TO BE MATERIAL, SEE 36 COMP. GEN. 181 (1956). IN ADDITION, THE IFB EXPLICITLY CALLED FOR DELIVERY WITHIN 45 DAYS AFTER THE AWARD DATE OF THE CONTRACT AND CLEARLY WARNED PROSPECTIVE BIDDERS THAT BIDS OFFERING DELIVERY OUTSIDE THE SPECIFIED DELIVERY PERIOD WOULD BE CONSIDERED NONRESPONSIVE AND WOULD BE REJECTED. ASPR 2-404.2(C) ALSO REQUIRES REJECTION OF BIDS WHICH FAIL TO CONFORM TO THE DELIVERY SCHEDULE PROVIDED IN THE INVITATION. CONTENTIONS SIMILAR TO THOSE ADVANCED BY YOU WITH REGARD TO DELIVERY REQUIREMENTS HAVE BEEN PREVIOUSLY CONSIDERED BY THIS OFFICE, AND WE HAVE HELD THAT WHERE A BID DEVIATES IN RESPONSE TO AN INVITATION WHICH REQUIRES DELIVERY WITHIN A SPECIFIED TIME "AFTER DATE OF CONTRACT" THE BID SHOULD BE REJECTED AS NONRESPONSIVE. SEE OUR DECISIONS B-161921, SEPTEMBER 15, 1971, AND B 173956, NOVEMBER 24, 1971.

AS TO YOUR DEMAND THAT THE CONTRACT WITH RESEARCH, INC., BE CANCELLED FOR DEFAULT, SINCE THE CONTRACTOR DID NOT MEET THE GOVERNMENT'S 45-DAY DELIVERY REQUIREMENT, YOU ARE ADVISED THAT DETERMINATIONS AS TO WHETHER THE PUBLIC INTEREST REQUIRES TERMINATION OF A CONTRACT FOR DEFAULT FOR LATE DELIVERY IS A MATTER FOR ADMINISTRATIVE DECISION AND DOES NOT REST WITH THIS OFFICE. 18 COMP. GEN. 826 (1939); B-161384, JULY 24, 1967. THE INSTANT CASE, THE CONTRACTING OFFICER DETERMINED IT WAS IN THE GOVERNMENT'S INTEREST THAT THE CONTRACTOR BE ALLOWED TO CONTINUE PERFORMANCE, AND THE UNIT HAS NOW BEEN DELIVERED AND ACCEPTED.

IN VIEW OF THE FOREGOING, YOUR PROTEST IS DENIED.