B-175292(1), JUN 19, 1972

B-175292(1): Jun 19, 1972

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IT IS THE OPINION OF THE COMP. THAT BIDDERS SHOULD REASONABLY HAVE INTERPRETED THE LISTED REQUIREMENTS AS SALIENT CHARACTERISTICS AND THE UNLISTED FEATURES AS BEYOND THE GOVERNMENT'S MINIMUM NEEDS. TO COHERENT RADIATION LABORATORIES: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 22. INFORMING BIDDERS THAT THE "BRAND NAME OR EQUAL" DESCRIPTION WAS INTENDED TO BE DESCRIPTIVE. THAT BIDS OFFERING "EQUAL" PRODUCTS WOULD BE CONSIDERED IF IT WAS DETERMINED THAT SUCH PRODUCTS WERE EQUAL IN ALL "MATERIAL" RESPECTS TO THE REFERENCED BRAND NAME PRODUCTS. INCLUDED IN THE DESCRIPTIVE INFORMATION WITH SP'S BID WAS THE FOLLOWING STATEMENT: "ALTHOUGH WE HAVE NOT SPECIFICALLY SET UP A MICHELSON INTERFEROMETER WITH A PATH DIFFERENCE AS GREAT AS 40 METERS.

B-175292(1), JUN 19, 1972

BID PROTEST - "BRAND NAME OR EQUAL" - AMBIGUOUS LISTING OF REQUIREMENTS IMPROPER RELIANCE ON POST-OPENING RESPONSIVENESS DECISION DENYING THE PROTEST OF COHERENT RADIATION LABORATORIES AGAINST AWARD OF A "BRAND NAME OR EQUAL" CONTRACT UNDER AN IFB ISSUED BY THE NAVAL WEAPONS LABORATORY. IT IS THE OPINION OF THE COMP. GEN. THAT BIDDERS SHOULD REASONABLY HAVE INTERPRETED THE LISTED REQUIREMENTS AS SALIENT CHARACTERISTICS AND THE UNLISTED FEATURES AS BEYOND THE GOVERNMENT'S MINIMUM NEEDS. HOWEVER, TO AVOID FUTURE MISINTERPRETATION, GAO HAS RECOMMENDED THAT SALIENT CHARACTERISTICS BE EXPRESSLY IDENTIFIED AS SUCH IN SUBSEQUENT "BRAND NAME OR EQUAL" PROCUREMENTS. THE COMP. GEN. DOES CONSIDER AS ERRONEOUS THE AGENCY'S RELIANCE ON THE CONTRACTOR'S STATEMENT, AFTER BID OPENING, OF CONFORMITY WITH THE FRINGE VISIBILITY REQUIREMENT. NEVERTHELESS, SINCE THE ITEM HAS BEEN DELIVERED AND THE REQUIREMENT MET, IT WOULD NOW BE INAPPROPRIATE TO DISTURB THE AWARD.

TO COHERENT RADIATION LABORATORIES:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 22, 1972, CONCERNING YOUR PROTEST UNDER INVITATION FOR BIDS (IFB) N00178-72-B 0056, ISSUED BY THE U.S. NAVAL WEAPONS LABORATORY ON NOVEMBER 11, 1971, FOR AN ARGON-ION LASER SYSTEM, COHERENT RADIATION MODELS 52B-A, 423 INTRA-CAVITY MODE SELECTOR, 433 PRISM WAVELENGTH SELECTOR, 236 LIGHT SAMPLER, OR AN EQUAL TO BE MANUFACTURED IN ACCORDANCE WITH SECTION F, DESCRIPTION/SPECIFICATIONS.

SECTION F, DESCRIPTION/SPECIFICATIONS, OF THE IFB SET FORTH IN CONSIDERABLE DETAIL THE REQUIRED FEATURES FOR THE ABOVE SYSTEM, INCLUDING THE FOLLOWING:

"F.9 FRINGE VISIBILITY MUST BE OBSERVED AT A NUMBER OF POINTS (ARBITRARY AT TEST) OUT TO A PATH DIFFERENCE OF 40 METERS ON A MICHELSON-MORLEY INTERFEROMETER. FRINGES, AS DETECTED BY EYE, MUST BE VISIBLE AT ALL TEST POINTS."

PARAGRAPH C.27 OF THE IFB CONTAINED THE CLAUSE REQUIRED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1206.3(B), INFORMING BIDDERS THAT THE "BRAND NAME OR EQUAL" DESCRIPTION WAS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND THAT BIDS OFFERING "EQUAL" PRODUCTS WOULD BE CONSIDERED IF IT WAS DETERMINED THAT SUCH PRODUCTS WERE EQUAL IN ALL "MATERIAL" RESPECTS TO THE REFERENCED BRAND NAME PRODUCTS.

YOUR CONCERN AND SPECTRA-PHYSICS, INC. (SP) SUBMITTED THE ONLY BIDS FOR THE REQUIREMENT ON DECEMBER 15, 1971. SP OFFERED ITS ARGON-ION LASER WITH A SINGLE FREQUENCY ETALON, AT A PRICE LOWER THAN YOUR CONCERN PROPOSED FOR THE LISTED BRAND NAME MODELS. SP ALSO ATTACHED DESCRIPTIVE DATA TO ITS BID TO DEMONSTRATE THAT ITS PRODUCTS CONFORMED TO THE REQUIREMENTS FOR THE SYSTEM SET FORTH IN SECTION F OF THE IFB. INCLUDED IN THE DESCRIPTIVE INFORMATION WITH SP'S BID WAS THE FOLLOWING STATEMENT:

"ALTHOUGH WE HAVE NOT SPECIFICALLY SET UP A MICHELSON INTERFEROMETER WITH A PATH DIFFERENCE AS GREAT AS 40 METERS, WE HAVE OBSERVED EXCELLENT FRINGE CONTRAST ON A MICHELSON INTERFEROMETER WITH A 20-METER PATH DIFFERENCE."

SUBSEQUENTLY, YOUR CONCERN ADVISED THE CONTRACTING OFFICER THAT SP'S MODELS DID NOT HAVE ALL THE SIGNIFICANT FEATURES OF YOUR REFERENCED PRODUCTS, AND THAT YOU COULD HAVE OFFERED CHEAPER PRODUCTS MANUFACTURED BY YOUR CONCERN WHICH WERE EQUAL TO SP'S MODELS. YOU STATED THAT SP'S MODELS WERE NOT "TEMPERATURE TUNABLE," DID NOT EFFICIENTLY OPERATE AT GREEN ARGON WAVELENGTHS, AND DID NOT HAVE A WAVELENGTH SELECTOR WHICH PERMITTED CHANGING THE LASER'S LINE OUTPUT WITHOUT REMOVING THE LASER REFLECTORS. ALTHOUGH THESE FEATURES OF YOUR PRODUCTS WERE NOT LISTED IN SECTION F OF THE IFB, YOU MAINTAINED THAT ANY COMPETITIVE PRODUCT COULD NOT BE CONSIDERED EQUAL TO YOUR MODELS IDENTIFIED IN THE IFB WITHOUT POSSESSING THESE CHARACTERISTICS. YOU ALSO STATED THAT SP'S DESCRIPTIVE INFORMATION, QUOTED ABOVE, DID NOT INDICATE COMPLIANCE WITH THE IFB REQUIREMENT FOR OBSERVABLE FRINGE VISIBILITY AT 40 METERS.

SUBSEQUENTLY, THE PROCURING ACTIVITY ASKED SP IF IT FULLY UNDERSTOOD THE REQUIREMENT TO PROVIDE OBSERVABLE FRINGE VISIBILITY AT 40 METERS. RESPONSE TO THIS REQUEST, SP SENT A TELEGRAM TO THE CONTRACTING OFFICER WHICH STATED THAT ITS MODELS WOULD MEET THE FRINGE VISIBILITY SPECIFICATION OF THE IFB. THE CONTRACTING OFFICER STATES THAT THIS ADVICE ADEQUATELY DEMONSTRATED SP'S INTENT TO COMPLY WITH THE FRINGE VISIBILITY REQUIREMENT.

CONCERNING THE ALLEGED INABILITY OF SP'S MODELS TO MEET THE UNLISTED FEATURES OF YOUR MODELS IDENTIFIED IN THE IFB, YOU WERE ADVISED THAT TECHNICAL PERSONNEL DETERMINED SUCH FEATURES WERE IN EXCESS OF THE MINIMUM NEEDS OF THE PROCURING ACTIVITY, AND THEREFORE COULD NOT SERVE AS A BASIS FOR REJECTING SP'S BID.

IN VIEW THEREOF, AND INASMUCH AS THE PROCURING ACTIVITY'S ENGINEER DETERMINED THAT SP'S MODELS MET ALL THE REQUIREMENTS SET FORTH IN SECTION F OF THE IFB, THE CONTRACTING OFFICER MADE AN AWARD TO SP ON FEBRUARY 14, 1972. IT IS OUR UNDERSTANDING THAT DELIVERY OF THE ITEM WAS ACCOMPLISHED ON APRIL 4.

IT HAS BEEN THE CONSISTENT POSITION OF THIS OFFICE THAT BIDDERS OFFERING "EQUAL" PRODUCTS SHOULD NOT HAVE TO GUESS AT THE MATERIAL CHARACTERISTICS OR QUALITIES OF THE BRAND NAME ITEMS. 49 COMP. GEN. 274 (1969). PURSUANT TO THE REQUIREMENT SET FORTH IN ASPR 1-1206.2(B), BIDDERS MUST BE ADVISED IN THE INVITATION OF THE SALIENT 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. 49 COMP. GEN. 347 (1969).

IN THIS REGARD, IT IS CLEAR THAT THE PROCURING ACTIVITY INTENDED TO CONVEY, BY THE LIST OF REQUIREMENTS SET FORTH IN SECTION F OF THE IFB, THOSE FEATURES OF YOUR BRAND NAME PRODUCTS WHICH IT DEEMED ESSENTIAL TO ITS NEEDS. ALTHOUGH SECTION F DID NOT EXPRESSLY ADVISE BIDDERS THAT SUCH REQUIREMENTS WERE THE "SALIENT CHARACTERISTICS" OF YOUR MODELS TO WHICH ASPR REFERS, WE BELIEVE BIDDERS SHOULD HAVE REASONABLY INTERPRETED SECTION F IN THIS MANNER. HOWEVER, IN ORDER TO PREVENT ANY FUTURE MISINTERPRETATION WE ARE RECOMMENDING TO THE SECRETARY OF THE NAVY THAT THE LISTING OF SALIENT CHARACTERISTICS OF BRAND NAME PRODUCTS BE EXPRESSLY IDENTIFIED IN ANY "BRAND NAME OR EQUAL" PROCUREMENTS.

ALTHOUGH YOU MAINTAIN THAT CERTAIN OTHER FEATURES OF YOUR BRAND NAME PRODUCTS SHOULD HAVE BEEN CONSIDERED ESSENTIAL TO THE NEEDS OF THE PROCURING ACTIVITY, THE TECHNICAL PERSONNEL OF THE AGENCY, AS NOTED ABOVE, CLEARLY DISAGREE.

IN THIS REGARD, IT IS THE WELL-ESTABLISHED POSITION OF THIS OFFICE THAT THE DRAFTING OF PROPER SPECIFICATIONS, INCLUDING THE USES OF BRAND NAME OR EQUAL PROCEDURE DESCRIPTIONS, IS A MATTER PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING AGENCY. BASED ON OUR REVIEW OF THE RECORD, WE CANNOT CONCLUDE THAT THE AGENCY'S POSITION THAT THE UNLISTED FEATURES OF YOUR PRODUCTS WERE NOT ESSENTIAL TO ITS NEEDS IS IN ERROR.

IN ANY EVENT, WE BELIEVE YOU SHOULD HAVE CONFIRMED YOUR POSITION IN THESE MATTERS BY CONSULTING THE PROCURING AGENCY BEFORE SUBMITTING YOUR BID, IF YOU BELIEVED THAT FEATURES IN ADDITION TO THE ONES SET FORTH IN SECTION F OF THE IFB SHOULD HAVE BEEN LISTED AS REQUIREMENTS BY THE PROCURING ACTIVITY, OR THAT THE PROCURING ACTIVITY WOULD EVALUATE "EQUAL" MODELS, INCLUDING CHEAPER MODELS OF YOUR CONCERN, ON THE BASIS OF CHARACTERISTICS OTHER THAN THE LISTED SPECIFICATIONS. IN THIS REGARD, PARAGRAPH 3, EXPLANATION TO OFFERORS, OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS OF THE IFB PROVIDED THAT ANY EXPLANATION DESIRED BY A BIDDER REGARDING THE MEANING OR INTERPRETATION OF THE SPECIFICATIONS MUST BE REQUESTED IN WRITING AND WITH SUFFICIENT TIME ALLOWED FOR A REPLY TO REACH BIDDERS BEFORE THE SUBMISSION OF THEIR BIDS.

WITH RESPECT TO YOUR ALLEGATION THAT SP DID NOT SUFFICIENTLY INDICATE ITS COMPLIANCE WITH THE FRINGE VISIBILITY REQUIREMENT OF THE SPECIFICATIONS, IT IS THE POSITION OF THE CONTRACTING OFFICER, AS NOTED ABOVE, THAT THE INFORMATION SUBMITTED BY THE COMPANY AFTER BID OPENING CLEARLY SHOWED ITS INTENT TO COMPLY WITH THIS REQUIREMENT.

SECTION (C)(1) OF THE "BRAND NAME OR EQUAL" CLAUSE SET FORTH IN THE IFB REQUIRED "EQUAL" BIDDERS TO SUBMIT SUFFICIENT DESCRIPTIVE INFORMATION WITH THEIR BIDS TO ENABLE THE PURCHASING ACTIVITY TO DETERMINE NOT ONLY THAT THE PRODUCTS OFFERED MET THE IFB'S REQUIREMENTS, BUT ALSO TO ESTABLISH EXACTLY WHAT THE BIDDERS PROPOSED TO FURNISH. IN THIS REGARD, WE HAVE HELD THAT A MERE STATEMENT BY AN "EQUAL" BIDDER THAT HE WOULD MEET THE REQUIREMENTS OF THE IFB WAS NOT SUFFICIENT "INFORMATION" TO ENABLE THE PROCURING ACTIVITY TO MAKE ITS OWN INDEPENDENT DETERMINATION AS TO EXACTLY WHAT SUCH BIDDER PROPOSED TO FURNISH AND WHETHER THE ARTICLE WOULD, IN FACT, MEET THE REQUIREMENTS SET OUT IN THE INVITATION. 50 COMP. GEN. 193 (1970).

IN THIS PERSPECTIVE, WE BELIEVE THE PROCURING ACTIVITY'S RELIANCE ON SP'S STATEMENT AFTER BID OPENING, THAT ITS PRODUCT WOULD MEET THE FRINGE VISIBILITY REQUIREMENT OF THE IFB WAS ERRONEOUS. ACCORDINGLY, BY LETTER OF TODAY TO THE SECRETARY OF THE NAVY, WE ARE RECOMMENDING THAT THE DEPARTMENT TAKE REMEDIAL ACTION TO PREVENT A REPETITION OF THE CIRCUMSTANCES IN FUTURE "BRAND NAME OR EQUAL" PROCUREMENTS. HOWEVER, AS THE ITEM WAS ACCEPTED AS MEETING THE FRINGE VISIBILITY REQUIREMENT, AND WAS DELIVERED TO THE ACTIVITY IN APRIL OF THIS YEAR, WE DO NOT BELIEVE IT WOULD NOW BE APPROPRIATE TO DISTURB THE AWARD.

FOR THE REASONS SET FORTH ABOVE, YOUR PROTEST, INSOFAR AS IT REQUESTS CANCELLATION OF THE SUBJECT CONTRACT, MUST BE DENIED.