B-175292(3), JUN 19, 1972

B-175292(3): Jun 19, 1972

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IT IS RECOMMENDED THAT SECTION (A) OF THE "BRAND NAME OR EQUAL" CLAUSE IN ASPR 1-1206.3(B). WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS MEET THE SALIENT CHARACTERISTICS REFERENCED IN THE IFB. SECRETARY: THIS IS TO RECOMMEND THAT CONSIDERATION BE GIVEN TO A MODIFICATION OF THE PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION CONCERNING THE INFORMATION FURNISHED TO BIDDERS IN "BRAND NAME OR EQUAL" PROCUREMENTS. ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO COHERENT RADIATION LABORATORIES WHICH. ALLEGED THAT THE "EQUAL" PRODUCT DID NOT HAVE ALL THE SIGNIFICANT FEATURES OF THE REFERENCED BRAND NAME PRODUCT. THIS MANUFACTURER ALSO INSISTED THAT HE COULD HAVE PROPOSED A CHEAPER "EQUAL" MODEL.

B-175292(3), JUN 19, 1972

BID PROTEST - "BRAND NAME OR EQUAL" - RECOMMENDATION FOR REVISION OF REGULATIONS CONCERNING THE PROTEST OF COHERENT RADIATION LABORATORIES AGAINST AWARD OF A "BRAND NAME OR EQUAL" CONTRACT UNDER AN IFB ISSUED BY THE NAVAL WEAPONS LABORATORY. IN VIEW OF THE ENCLOSED PROTEST, IT IS RECOMMENDED THAT SECTION (A) OF THE "BRAND NAME OR EQUAL" CLAUSE IN ASPR 1-1206.3(B), BE REVISED TO CLEARLY ADVISE THAT BIDS OFFERING "EQUAL" PRODUCTS, INCLUDING OTHER PRODUCTS OF THE BRAND NAME MANUFACTURER, WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS MEET THE SALIENT CHARACTERISTICS REFERENCED IN THE IFB.

TO MR. SECRETARY:

THIS IS TO RECOMMEND THAT CONSIDERATION BE GIVEN TO A MODIFICATION OF THE PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION CONCERNING THE INFORMATION FURNISHED TO BIDDERS IN "BRAND NAME OR EQUAL" PROCUREMENTS.

ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO COHERENT RADIATION LABORATORIES WHICH, WE BELIEVE, SHOWS THE DESIRABILITY OF SOME REVISIONS OF THE REGULATIONS. IN THIS "BRAND NAME OR EQUAL" PROCUREMENT, THE BRAND NAME MANUFACTURER PROTESTED THE PROPOSED AWARD TO AN "EQUAL" BIDDER, AND ALLEGED THAT THE "EQUAL" PRODUCT DID NOT HAVE ALL THE SIGNIFICANT FEATURES OF THE REFERENCED BRAND NAME PRODUCT. THIS MANUFACTURER ALSO INSISTED THAT HE COULD HAVE PROPOSED A CHEAPER "EQUAL" MODEL, IF HE HAD KNOWN THAT THE PURCHASING ACTIVITY DID NOT WANT A MODEL WITH ALL THE SALIENT FEATURES OF HIS REFERENCED "BRAND NAME" PRODUCTS. THE PROCURING ACTIVITY INSISTED THAT ALL FEATURES DEEMED ESSENTIAL TO ITS MINIMUM NEEDS FOR THE REQUIREMENT WERE STATED IN THE SOLICITATION AND THAT THE EQUAL MODEL MET THOSE FEATURES.

THE BRAND NAME MANUFACTURER BELIEVED THAT "EQUAL" PRODUCTS WOULD ALSO BE EXAMINED FOR COMPLIANCE WITH FEATURES OTHER THAN THOSE DESCRIBED AS "SPECIFICATIONS," I.E; "SALIENT CHARACTERISTICS," OF THE REFERENCED BRAND NAME PRODUCTS IN THE SUBJECT IFB. THIS ERRONEOUS UNDERSTANDING HAS ALSO BEEN DEMONSTRATED BY AN "EQUAL" BIDDER IN ANOTHER RECENT DECISION, B- 175253, APRIL 25, 1972, COPY ENCLOSED.

WE THINK THE CURRENT WORDING OF THE CLAUSE IN ASPR 1-1206.3(B) MAY CONTRIBUTE TO THIS MISUNDERSTANDING SINCE SECTION (A) OF THAT PROVISION STATES THAT BIDS OFFERING "EQUAL" PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE DETERMINED TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE REFERENCED BRAND NAME PRODUCTS. SUCH LANGUAGE MAY LEAD BOTH "BRAND NAME" AND "EQUAL" BIDDERS TO BELIEVE THAT "EQUAL" PRODUCTS WILL BE EVALUATED BY DETERMINING THEIR COMPLIANCE WITH ALL FEATURES OF THE BRAND NAME PRODUCT WHICH ARE CONSIDERED ESSENTIAL BY THE BIDDERS, RATHER THAN ONLY THOSE FEATURES OF THE PRODUCT DEEMED ESSENTIAL BY THE PROCURING ACTIVITY, AS EXPRESSED IN THE LIST OF SALIENT CHARACTERISTICS IN THE SOLICITATION.

ACCORDINGLY, WE SUGGEST THAT CONSIDERATION BE GIVEN TO REVISING SECTION (A) OF THE "BRAND NAME OR EQUAL" CLAUSE IN ASPR 1-1206.3(B), SO AS TO CLEARLY ADVISE THAT BIDS OFFERING "EQUAL" PRODUCTS, INCLUDING OTHER PRODUCTS OF THE BRAND NAME MANUFACTURER, WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS MEET THE SALIENT CHARACTERISTICS OF THE BRAND NAME PRODUCTS REFERENCED IN THE INVITATION FOR BIDS. IN LINE WITH THIS SUGGESTION, WE ALSO RECOMMEND THAT SECTION C(1)(I) OF THE SAME CLAUSE BE REVISED TO PROVIDE THAT AN "EQUAL" BIDDER MUST FURNISH SUFFICIENT INFORMATION TO DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE SALIENT CHARACTERISTICS OF THE BRAND NAME PRODUCT.

WE BELIEVE THAT THESE CHANGES WOULD AID BIDDERS IN THE INTELLIGENT PREPARATION OF THEIR BIDS SO THAT THE MAXIMUM COMPETITION POSSIBLE IN BRAND NAME OR EQUAL PROCUREMENTS IS OBTAINED.

A COPY OF THIS LETTER HAS BEEN SENT TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, WITH THE REQUEST THAT CONSIDERATION BE GIVEN TO MODIFYING A SIMILAR PROVISION IN THE FPR.

SINCE THIS LETTER CONTAINS A RECOMMENDATION FOR CORRECTIVE ACTION TO BE TAKEN BY YOUR DEPARTMENT, YOUR ATTENTION IS DIRECTED TO SECTION 236 OF THE LEGISLATIVE REORGANIZATION ACT OF 1970, 84 STAT. 1140, 1171, WHICH REQUIRES THAT YOU SUBMIT WRITTEN STATEMENTS TO CERTAIN COMMITTEES OF THE CONGRESS AS TO THE ACTION TAKEN BY YOUR DEPARTMENT WITH RESPECT TO OUR RECOMMENDATION.

THE STATEMENTS ARE TO BE SENT TO THE COMMITTEES ON GOVERNMENT OPERATIONS OF BOTH HOUSES NOT LATER THAN 60 DAYS AFTER THE DATE OF THE REFERENCED DECISION, AND TO THE COMMITTEES ON APPROPRIATIONS IN CONNECTION WITH THE FIRST REQUEST OF APPROPRIATIONS MADE BY YOUR AGENCY MORE THAN 60 DAYS AFTER THE DATE OF THE DECISIONS.

OUR OFFICE WOULD ALSO APPRECIATE BEING ADVISED AS TO THE ACTION TAKEN WITH RESPECT TO THESE MATTERS. PERHAPS THIS CAN BE ACCOMPLISHED BY SENDING US A COPY OF YOUR REPORT TO THE COMMITTEES NOTED ABOVE.