B-175009, MAR 28, 1972

B-175009: Mar 28, 1972

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IT IS THE OPINION OF THE COMP. THERE IS NO OBLIGATION ON THE PROCURING ACTIVITY TO SEEK OUT A BIDDER'S DESCRIPTIVE DATA AFTER OPENING. THE ISSUE OF RESPONSIVENESS IS ACADEMIC SINCE THAT COMPANY'S BID IS NO LONGER OPEN FOR CONSIDERATION. SINCE BOONTON HAS OFFERED A BRAND NAME ITEM AND IS CONSIDERED RESPONSIBLE. WOULD HAVE NO OBJECTION TO THE PROPOSED ACTION. SECRETARY: REFERENCE IS MADE TO LETTER ELEX OOC/ER:CMC SER 62-OOC OF FEBRUARY 15. IT IS PROPOSED THAT THE TWO LOW BIDS BE REJECTED ON THE GROUNDS OF NONRESPONSIVENESS AND THAT THE AWARD BE MADE TO BOONTON FOR THE BOONTON MODEL 91H-S7 OFFERED IN ITS BID. THE SALIENT CHARACTERISTICS OF THE BRAND NAME PRODUCT WERE OUTLINED IN SECTION F. ALTERNATE METHODS AND RANGES WILL BE CONSIDERED PROVIDED THE BID IS SUBMITTED WITH COMPLETE INFORMATION WHICH WILL CONCLUSIVELY PROVE TO THE TECHNICAL EVALUATORS THAT THE EQUIPMENT OFFERED CONFORMS TO THE REQUIREMENTS HEREIN AND IS AT LEAST EQUAL TO THE FOLLOWING FOR ALL VALUES.

B-175009, MAR 28, 1972

CONTRACTS - BRAND NAME OR EQUAL - NONRESPONSIVENESS - PROPRIETY OF PROPOSED AWARD CONCERNING WHETHER GAO WOULD BE REQUIRED TO OBJECT TO THE PROPOSED REJECTION OF THE BIDS OF AUL INSTRUMENTS, INC. (AUL), AND MILLIVAC INSTRUMENTS, INC. (MILLIVAC), AND THE PROPOSED AWARD OF THE CONTRACT TO BOONTON ELECTRONICS CORPORATION (BOONTON) IN A "BRAND NAME OR EQUAL" PROCUREMENT UNDER AN IFB ISSUED BY THE NAVAL ELECTRONIC SYSTEMS COMMAND, WASHINGTON, D.C. IT IS THE OPINION OF THE COMP. GEN. THAT THE MILLIVAC BID MAY PROPERLY BE REJECTED AS NONRESPONSIVE. A PROPOSAL CONTAINING UNANNOUNCED MODIFICATIONS OF A BIDDER'S STANDARD EQUIPMENT WOULD AFFORD THE CONTRACTOR AN UNFAIR COMPETITIVE ADVANTAGE BY PROVIDING IT AN OPPORTUNITY TO CONTROL ITS RESPONSIVENESS AFTER BID OPENING. FURTHER, THERE IS NO OBLIGATION ON THE PROCURING ACTIVITY TO SEEK OUT A BIDDER'S DESCRIPTIVE DATA AFTER OPENING. WITH REGARD TO THE AUL PROPOSAL, THE ISSUE OF RESPONSIVENESS IS ACADEMIC SINCE THAT COMPANY'S BID IS NO LONGER OPEN FOR CONSIDERATION. UNDER THE CIRCUMSTANCES OF THIS CASE, AND SINCE BOONTON HAS OFFERED A BRAND NAME ITEM AND IS CONSIDERED RESPONSIBLE, THE COMP. GEN. WOULD HAVE NO OBJECTION TO THE PROPOSED ACTION.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER ELEX OOC/ER:CMC SER 62-OOC OF FEBRUARY 15, 1972, AND PRIOR CORRESPONDENCE FROM THE NAVAL ELECTRONIC SYSTEMS COMMAND (NAVELEX), REQUESTING A DECISION WHETHER OUR OFFICE WOULD OBJECT TO THE PROPOSED REJECTION OF THE BIDS OF AUL INSTRUMENTS, INC. (AUL), AND MILLIVAC INSTRUMENTS, INC. (MILLIVAC), UNDER INVITATION FOR BIDS (IFB) N00039-72-B-0208 ISSUED BY NAVELEX, WASHINGTON, D.C., AND THE PROPOSED AWARD OF THE CONTRACT TO THE BOONTON ELECTRONICS CORPORATION (BOONTON).

MILLIVAC, AUL AND BOONTON BID $480, $489 AND $686.37 A UNIT, RESPECTIVELY. IT IS PROPOSED THAT THE TWO LOW BIDS BE REJECTED ON THE GROUNDS OF NONRESPONSIVENESS AND THAT THE AWARD BE MADE TO BOONTON FOR THE BOONTON MODEL 91H-S7 OFFERED IN ITS BID. IN THIS REGARD, THE IFB INVITED BIDS FOR 325 EACH, "SENSITIVE RF VOLTMETER BOONTON ELECTRONICS MODEL 91H- S7 OR EQUAL," PLUS AN OPTION FOR ADDITIONAL INCREMENTAL QUANTITIES UP TO 150 EACH. THE SALIENT CHARACTERISTICS OF THE BRAND NAME PRODUCT WERE OUTLINED IN SECTION F, WHICH REQUIRES, IN PERTINENT PART:

"3.1 GENERAL REQUIREMENTS. - EQUIPMENT FURNISHED IN RESPONSE TO THIS REQUEST SHALL BE CAPABLE OF MEETING THE FOLLOWING MINIMUM SALIENT CHARACTERISTICS. ALTERNATE METHODS AND RANGES WILL BE CONSIDERED PROVIDED THE BID IS SUBMITTED WITH COMPLETE INFORMATION WHICH WILL CONCLUSIVELY PROVE TO THE TECHNICAL EVALUATORS THAT THE EQUIPMENT OFFERED CONFORMS TO THE REQUIREMENTS HEREIN AND IS AT LEAST EQUAL TO THE FOLLOWING FOR ALL VALUES.

"ON THE 1.0 MV RANGE:

OR - 5% FROM 150 KHZ TO 100 MHZ

OR - 10% FROM 50 KHZ TO 150 KHZ AND FROM

100 MHZ TO 400 MHZ

OR - 15% FROM 20 KHZ TO 50 KHZ (50 KHZ LOWER LIMIT WHEN

100:1 VOLTAGE DIVIDER IS

USED)

"ON THE 3 MV THROUGH 3 V RANGES:

OR - 3% FROM 150 KHZ TO 100 MHZ

OR - 5% FROM 50 KHZ TO 150 KHZ AND FROM

100 MHZ TO 400 MHZ

OR - 10% FROM 20 KHZ TO 50 KHZ

"3.4.2.3TEMPERATURE INACCURACY. - THERE SHALL BE NO INACCURACY GREATER THAN THE INACCURACY OF PARAGRAPH 3.4.2.1 AT AN AMBIENT ROOM TEMPERATURE OF 25 DEGS OR - 2 DEGS CENTIGRADE (C), RELATIVE HUMIDITY (RH) OF 50% OR - 5%, AND NORMAL SEA LEVEL ATMOSPHERIC PRESSURE OVER THE PREQUENCY RANGE OF 20 KHZ TO 400 MHZ. THERE SHALL BE NO INACCURACY GREATER THAN OR - 5% IN ADDITION TO THE INACCURACY OF PARAGRAPH 3.4.2.1 WITHIN THE TEMPERATURE RANGE OF 15 DEGS C TO 35 DEGS C AT 75% RH OVER A FREQUENCY RANGE OF AT LEAST 1 TO 400 MHZ. WITHIN THE TEMPERATURE RANGE OF 0 DEGS C TO 50 DEGS C AT 90% RH, THE TOTAL INACCURACY SHALL NOT EXCEED OR - 10% IN ADDITION TO THE INACCURACY OF PARAGRAPH 3.4.2.1 OVER A FREQUENCY RANGE OF AT LEAST 1 TO 400 MHZ. WITHIN THE TEMPERATURE RANGE OF 0 DEGS C TO 65 DEGS C AT 95% RH, THE TOTAL INACCURACY SHALL NOT EXCEED OR - 15% IN ADDITION TO THE INACCURACY OF PARAGRAPH 3.4.3.1 OVER A FREQUENCY RANGE OF AT LEAST 1 TO 400 MHZ."

IN RESPONSE, MILLIVAC PROPOSED TO FURNISH ITS MODEL MV 828A AND SUBMITTED ITS DESCRIPTION AND SPECIFICATION SHEET AND INSTRUCTION MANUAL APPLICABLE TO THE MV 828A, FOR THE PURPOSE OF DETERMINING THE EQUIVALENCY OF ITS UNIT IN ACCORDANCE WITH SECTION C, PARAGRAPH 17, OF THE "BRAND NAME OR EQUAL" CLAUSE. IN PERTINENT PART, THIS CLAUSE PROVIDES:

"(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. OFFERS OFFERING 'EQUAL' PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE OFFERS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS 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 OFFER. THE EVALUATION OF OFFERS 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 OFFER, 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 OFFER AND REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. ACCORDINGLY, TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE OFFEROR MUST FURNISH AS A PART OF HIS OFFER 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 OFFER A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS AND (II) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS.

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

NAVELEX REPORTS THAT SINCE THE LITERATURE SUBMITTED WITH MILLIVAC'S BID DID NOT INDICATE COMPLIANCE WITH SALIENT CHARACTERISTIC 3.4.2.3, PURSUANT TO PARAGRAPH (C)(1) OF THE "BRAND NAME OR EQUAL" CLAUSE, IT REFERRED TO SECTION II-5, RELATIVE TO THE MILLIVAC MODEL 828A OF THE REPORT ENTITLED "TECHNICAL EVALUATION OF RF VOLTMETERS," DATED JANUARY 7, 1970, CONDUCTED BY THE NAVAL ELECTRONIC SYSTEMS TEST AND EVALUATION FACILITY (NESTEF). THE REPORT CONCLUDED THAT THE INSTRUMENT WAS UNUSABLE WITHIN THE TEMPERATURE/HUMIDITY CYCLING RANGES REQUIRED IN SALIENT CHARACTERISTIC 3.4.2.3. BASED UPON THIS INFORMATION NAVELEX PROPOSES TO REJECT MILLIVAC'S BID AS NONRESPONSIVE.

BY LETTER G/55-72 DATED FEBRUARY 3, 1972, MILLIVAC CONTENDS THAT THE NESTEF REPORT SHOULD NOT HAVE BEEN USED TO DETERMINE THE EQUIVALENCY OF ITS MODEL 828A BECAUSE MILLIVAC INTENDED TO MODIFY ITS MODEL 828A TO CONFORM TO THE SPECIFICATIONS OF THE IFB. MILLIVAC ALSO CONTENDS THAT IF NAVELEX HAD ANY QUESTIONS CONCERNING THE OFFERED MODEL, IT SHOULD HAVE CONTACTED MILLIVAC FOR FURTHER INFORMATION TO CLARIFY ITS BID, AS DONE BY NAVELEX ON A PREVIOUS PROCUREMENT, PURSUANT TO SECTION (C)(1) OF THE "BRAND NAME OR EQUAL" CLAUSE.

FIRST, SECTION (C)(2) OF THE "BRAND NAME OR EQUAL" CLAUSE REQUIRES A BIDDER TO CLEARLY INDICATE ANY PROPOSED MODIFICATIONS TO ITS STANDARD EQUIPMENT AND CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS. TO PERMIT A BIDDER TO SUBMIT INFORMATION RELATIVE TO ITS EQUIPMENT, WHICH WAS NOT IN EXISTENCE AND PUBLICLY AVAILABLE PRIOR TO BID OPENING, WOULD CONFER AN UNFAIR COMPETITIVE ADVANTAGE UPON THE BIDDER BY AFFORDING IT THE OPPORTUNITY TO CONTROL THE RESPONSIVENESS OF ITS BID AFTER BID OPENING. THEREFORE, IT IS OUR VIEW THAT UNLESS THE PROPOSED MODIFICATIONS ARE CONTAINED IN LITERATURE WHICH WAS IN EXISTENCE AND PUBLICLY AVAILABLE PRIOR TO BID OPENING, NAVELEX CANNOT CONSIDER THE PROPOSED MODIFICATIONS. 50 COMP. GEN. 137 (1970).

WITH RESPECT TO MILLIVAC'S CONTENTION THAT NAVELEX SHOULD HAVE CONTACTED MILLIVAC TO CLARIFY ITS BID, NAVELEX REPORTS THAT THIS METHOD WAS PREVIOUSLY EMPLOYED BECAUSE, BASED ON TECHNICAL INFORMATION AVAILABLE TO IT FROM AN ANTECEDENT PROCUREMENT OF THE SAME ITEM, THE OFFERED MILLIVAC MODEL DID SATISFY THE SALIENT CHARACTERISTICS, EVEN THOUGH THE DESCRIPTIVE LITERATURE SUBMITTED WITH THE BID FAILED TO SUPPORT COMPLIANCE WITH SOME OF THE SALIENT CHARACTERISTICS. IN THAT INSTANCE, MILLIVAC WAS REQUESTED TO CONFIRM COMPLIANCE WITH ALL SALIENT CHARACTERISTICS AS SHOWN ON LITERATURE ALREADY IN THE GOVERNMENT'S POSSESSION. REGARDING THE PROCURING ACTIVITY'S OBLIGATION TO CONTACT A BIDDER, ONCE THE BIDS HAVE BEEN OPENED, ON QUESTIONS CONCERNING AN ITEM'S EQUIVALENCY TO THE SPECIFICATIONS, WE STATED IN 50 ID. 137, 140 (1970):

" *** THIS *** IS NOT MEANT TO INDICATE THAT THE PROCURING ACTIVITY HAS ANY OBLIGATION TO GO TO THE BIDDER AFTER OPENING TO OBTAIN DESCRIPTIVE DATA ON AN 'OR EQUAL' PRODUCT OR TO EXPEND OTHER UNREASONABLE EFFORTS TO OBTAIN THE DATA. *** "

WITH RESPECT TO THE AUL BID, OUR OFFICE WAS ADVISED BY LETTER OF JANUARY 27, 1972, FROM AUL THAT IT DID NOT EXTEND THE BID ACCEPTANCE PERIOD BEYOND DECEMBER 15, 1971, AND THAT ITS BID IS NOT OPEN FOR CONSIDERATION. VIEW THEREOF, THE QUESTION OF WHETHER THE AUL BID IS RESPONSIVE IS ACADEMIC AND NEED NOT BE CONSIDERED.

IN THE CIRCUMSTANCES, SINCE THE BOONTON BID HAS OFFERED THE BRAND NAME PRODUCT DESIGNATED IN THE IFB AND IT HAS BEEN INDICATED THAT IT IS CONSIDERED TO BE A RESPONSIBLE BIDDER, OUR OFFICE WOULD HAVE NO OBJECTION IF AN AWARD WERE MADE TO BOONTON AS THE LOWEST RESPONSIVE BIDDER UNDER THE IFB.