B-176184, SEP 22, 1972

B-176184: Sep 22, 1972

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THE USE OF THE "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION WHERE THE ITEM REPRESENTS RELATIVELY NEW TECHNOLOGY AND EXACT SPECIFICATIONS ARE NOT AVAILABLE DOES NOT VIOLATE LIMITATIONS ON SUCH DESCRIPTIONS UNDER FPR 1- 1.307.5. SINCE IT WAS MERELY A MATTER OF PREFERENCE THAT THE INFORMATION AND MONITORING SYSTEMS BE FROM THE SAME SUPPLIER. THE MENNEN-GREATBATCH BID WAS RESPONSIVE. INC.: THIS IS IN REPLY TO YOUR CORRESPONDENCE OF JUNE 8 AND 28. THE REQUIREMENT IS DESCRIBED IN THE SOLICITATION AS A PHYSIOLOGICAL INFORMATION MONITOR. THIS PROCUREMENT WAS INITIATED ON A "BRAND NAME OR EQUAL" BASIS AND THE SOLICITATION LISTED VARIOUS MODEL NUMBERS AND CERTAIN SALIENT CHARACTERISTICS OF HEWLETT- PACKARD EQUIPMENT.

B-176184, SEP 22, 1972

BID PROTEST - BRAND NAME OR EQUAL - NONRESPONSIVENESS DECISION DENYING THE PROTEST OF AUTOMATED MEDICAL SYSTEMS, INC., AGAINST AWARD OF A CONTRACT TO MENNEN-GREATBATCH ELECTRONICS, INC., UNDER A SOLICITATION ISSUED BY THE VA MARKETING CENTER. THE USE OF THE "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION WHERE THE ITEM REPRESENTS RELATIVELY NEW TECHNOLOGY AND EXACT SPECIFICATIONS ARE NOT AVAILABLE DOES NOT VIOLATE LIMITATIONS ON SUCH DESCRIPTIONS UNDER FPR 1- 1.307.5. A BIDDER OFFERING AN "EQUAL" ITEM NEED ONLY MEET THOSE SALIENT CHARACTERISTICS OF THE BRAND NAME ITEM IDENTIFIED IN THE SOLICITATION. SINCE IT WAS MERELY A MATTER OF PREFERENCE THAT THE INFORMATION AND MONITORING SYSTEMS BE FROM THE SAME SUPPLIER, THE MENNEN-GREATBATCH BID WAS RESPONSIVE.

TO AUTOMATED MEDICAL SYSTEMS, INC.:

THIS IS IN REPLY TO YOUR CORRESPONDENCE OF JUNE 8 AND 28, 1972, PROTESTING THE AWARD OF A CONTRACT UNDER VETERANS ADMINISTRATION (VA) MARKETING CENTER SOLICITATION NO. M2-114-72.

THE SOLICITATION REQUESTED BIDS FOR A COMPUTERIZED PATIENT MONITORING SYSTEM TO BE INSTALLED AT THE NEW VA HOSPITAL AT LEXINGTON, KENTUCKY, PRIOR TO ITS OPENING. SPECIFICALLY, THE REQUIREMENT IS DESCRIBED IN THE SOLICITATION AS A PHYSIOLOGICAL INFORMATION MONITOR, STORAGE AND RETRIEVAL SYSTEMS REQUIRED FOR USE IN THE CARDIAC CATHERIZATION LABORATORY, CORONARY CARE UNIT AND SURGICAL INTENSIVE CARE UNIT. THIS PROCUREMENT WAS INITIATED ON A "BRAND NAME OR EQUAL" BASIS AND THE SOLICITATION LISTED VARIOUS MODEL NUMBERS AND CERTAIN SALIENT CHARACTERISTICS OF HEWLETT- PACKARD EQUIPMENT.

INITIALLY, YOU QUESTIONED THE VALIDITY OF THIS METHOD OF PROCUREMENT CLAIMING THAT IN THIS INSTANCE IT WAS TOO RESTRICTIVE AND, IN EFFECT, WOULD RESULT IN A SOLE-SOURCE PROCUREMENT FROM HEWLETT-PACKARD. YOU SUGGESTED THAT "FUNCTIONAL" SPECIFICATIONS WOULD HAVE BEEN MORE APPROPRIATE. HOWEVER, IN REPLYING TO THE CONTRACTING AGENCY'S REPORT IN THIS CASE, WHICH INDICATED THAT CONTRACT AWARD WAS MADE TO MENNEN GREATBATCH ELECTRONICS, INC., RATHER THAN TO THE BRAND NAME MANUFACTURER, YOU HAVE INDICATED THAT THE MERIT OF YOUR PROTEST IS CONTINGENT UPON WHETHER THIS CONTRACTOR HAS, IN FACT, PROMISED TO SUPPLY EQUIPMENT MEETING THE "OR EQUAL" REQUIREMENTS OF THE SPECIFICATIONS.

WITH RESPECT TO USE OF THE "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION IN THIS INSTANCE, THE AGENCY REPORT STATES THAT COMPUTERIZED PATIENT MONITORING SYSTEMS REPRESENT A RELATIVELY NEW TECHNOLOGY AND THAT SPECIFICATIONS ARE NOT AVAILABLE AT THIS TIME. IT IS STATED THAT WHILE THE VA IS WORKING WITH THE AMERICAN NATIONAL STANDARDS COMMITTEE TO PREPARE "COMPETENT REALISTIC SPECIFICATIONS," IT IS PRESENTLY COMMON PRACTICE TO USE "BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS. IN VIEW OF THESE CIRCUMSTANCES, PARTICULARLY THE TECHNICAL COMPLEXITIES INVOLVED, WE ARE UNABLE TO CONCLUDE THAT THE USE OF THE "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION IN THIS INSTANCE VIOLATES THE REGULATORY LIMITATIONS ON THE USES OF SUCH DESCRIPTIONS AS PROVIDED IN FEDERAL PROCUREMENT REGULATIONS 1 -1.307-5.

AS TO WHETHER MENNEN-GREATBATCH OFFERED ITEMS WHICH ARE EQUAL TO THE SPECIFIED HEWLETT-PACKARD MODELS, THE RULE IS SETTLED THAT A BIDDER OFFERING AN "EQUAL" ITEM NEED ONLY MEET THOSE SALIENT CHARACTERISTICS OF THE BRAND NAME ITEM WHICH ARE IDENTIFIED AND SET OUT IN THE SOLICITATION. THE AGENCY HAS ADVISED THAT MENNEN-GREATBATCH CERTIFIED THAT THE MODELS OFFERED WERE THE EQUALS OF THE HEWLETT-PACKARD MODELS LISTED AND THAT ALL SALIENT CHARACTERISTICS WOULD BE MET. WE ARE ALSO ADVISED THAT THE AGENCY'S MARKETING DIVISION FOR MEDICAL EQUIPMENT AND PROFESSIONAL PERSONNEL AT THE STATION INVOLVED HAVE REVIEWED MENNEN GRATBATCH'S LITERATURE SUBMITTED FOR EACH MODEL, AND THAT THESE REVIEWS SUBSTANTIATED THE CERTIFICATION. IN ADDITION, PROFESSIONAL PERSONNEL MADE A SITE VISIT TO AN INSTALLATION WHERE THE ENTIRE SYSTEM WAS BEING USED IN AN ACTUAL CLINICAL SETTING AND CONCLUDED THAT THE SYSTEM WAS EXCELLENT AND MET THE SPECIFICATIONS IN THE INSTANT PROCUREMENT.

FINALLY, YOU HAVE NOTED THAT MENNEN-GREATBATCH OFFERED THE BRAND NAME MODEL LISTED FOR ITEM 48 (ANALOG INSTRUMENTATION MAGNETIC TAPE RECORDER/REPRODUCER SYSTEM 1/2" TAPE, 10 1/2" REELS, 7 FM DATA TRACKS, 1 VOICE CHANNEL) RATHER THAN ITS OWN MODEL, AND YOU HAVE QUESTIONED WHETHER THIS COMPLIES WITH THE REQUIREMENT IN SPECIAL NOTE 1 OF THE SOLICITATION THAT "ALL MONITORING EQUIPMENT MUST BE FROM THE SAME MANUFACTURER TO INSURE COMPATIBILITY OF COMPONENTS AND LEND MODULARITY." THE VA HAS ADVISED THAT ITEM 48 IS NOT CONSIDERED MONITORING EQUIPMENT BUT, RATHER, IS A PART OF THE INFORMATION SYSTEM. IN THIS CONNECTION, THE SOLICITATION PROVIDES IN SPECIAL NOTE 2 THAT "BOTH THE INFORMATION SYSTEM AND THE MONITORING SYSTEM SHOULD BE SECURED FROM A SINGLE VENDOR TO ELIMINATE INTERFACE AND MATCHING PROBLEMS." IT WOULD APPEAR, THEREFORE, THAT EVEN THOUGH MENNEN GREATBATCH DID NOT OFFER ITS OWN MODEL UNDER ITEM 48 IT WAS NOT NONRESPONSIVE TO THE SOLICITATION, SINCE THE PROVISION IN SPECIAL NOTE 2 MERELY EXPRESSED THE GOVERNMENT'S PREFERENCE AND WAS NOT A MANDATORY REQUIREMENT.

SINCE WE FIND NO BASIS FOR CONCLUDING THAT MENNEN-GREATBATCH'S BID WAS NONRESPONSIVE, YOUR PROTEST MUST BE DENIED.