B-176468, APR 3, 1973

B-176468: Apr 3, 1973

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DETERMINATIONS AS TO WHETHER BIDS RECEIVED ARE FACTUALLY RESPONSIVE TO THE SPECIFICATIONS ARE PRIMARILY THE RESPONSIBILITY OF THE PARTICULAR AGENCY INVOLVED. GAO WILL NOT QUESTION SUCH DETERMINATIONS UNLESS THEY ARE CLEARLY SHOWN TO BE ARBITRARY OR CAPRICIOUS. INC.: THIS IS IN RESPONSE TO YOUR TELEGRAM OF JANUARY 3. ALTHOUGH YOU WERE PROVIDED WITH A COPY OF THE REPORT ON THE PROTEST FROM THE CONTRACTING AGENCY AND INFORMALLY INDICATED ON FEBRUARY 8. WE ARE DECIDING THE MATTER ON THE BASIS OF THE PRESENT WRITTEN RECORD. INCLUDED IN THE INVITATION FOR BIDS WAS A REQUIREMENT FOR A 2. THERE WAS A REQUIREMENT IN THE INVITATION THAT THE BIDDER LIST THE PRODUCT. THE CONTRACTING ACTIVITY DETERMINED THAT THE BESSER-WASTECO INCINERATOR WAS AN ACCEPTABLE EQUAL TO THE BRAND NAME.

B-176468, APR 3, 1973

BID PROTEST - "BRAND NAME OR EQUAL" - RESPONSIVENESS DENIAL OF PROTEST BY ENVIRONMENTAL CONTROL PRODUCTS, INC., AGAINST THE AWARD OF A CONTRACT TO SIMPSON CONSTRUCTION CO. FOR A PROJECT ISSUED BY THE VA HOSPITAL, HINES, ILL. DETERMINATIONS AS TO WHETHER BIDS RECEIVED ARE FACTUALLY RESPONSIVE TO THE SPECIFICATIONS ARE PRIMARILY THE RESPONSIBILITY OF THE PARTICULAR AGENCY INVOLVED, AND GAO WILL NOT QUESTION SUCH DETERMINATIONS UNLESS THEY ARE CLEARLY SHOWN TO BE ARBITRARY OR CAPRICIOUS, OR NOT BASED ON SUBSTANTIAL EVIDENCE. FURTHER, TO BE ACCEPTABLE AS "EQUAL", A PRODUCT NEED ONLY BE CAPABLE OF MEETING THE SAME STANDARD OF PERFORMANCE AS THE BRAND NAME. 49 COMP. GEN. 347 (1969).

TO ENVIRONMENTAL CONTROL PRODUCTS, INC.:

THIS IS IN RESPONSE TO YOUR TELEGRAM OF JANUARY 3, 1973, AND PRIOR CORRESPONDENCE, PROTESTING THE AWARD TO THE SIMPSON CONSTRUCTION COMPANY OF PROJECT 72-566, ISSUED BY THE VETERANS ADMINISTRATION (VA) HOSPITAL, HINES, ILLINOIS.

ALTHOUGH YOU WERE PROVIDED WITH A COPY OF THE REPORT ON THE PROTEST FROM THE CONTRACTING AGENCY AND INFORMALLY INDICATED ON FEBRUARY 8, 1973, THAT YOU WOULD FURNISH COMMENTS ON THE REPORT SHORTLY THEREAFTER, NO ADDITIONAL CORRESPONDENCE HAS BEEN RECEIVED FROM YOU. THEREFORE, WE ARE DECIDING THE MATTER ON THE BASIS OF THE PRESENT WRITTEN RECORD.

INCLUDED IN THE INVITATION FOR BIDS WAS A REQUIREMENT FOR A 2,000 POUNDS PER HOUR INCINERATOR, ENVIRONMENTAL CONTROL PRODUCTS, INC., OR EQUAL. FURTHER, THERE WAS A REQUIREMENT IN THE INVITATION THAT THE BIDDER LIST THE PRODUCT, NAME OF MANUFACTURER, BRAND NAME AND MODEL NUMBER OF ANY EQUAL INCINERATOR OFFERED. SIMPSON LISTED A BESSER WASTECO CORPORATION CA -2000 INCINERATOR IN ITS BID. THE "BRAND NAME, MODEL OR EQUAL" CLAUSE IN THE INVITATION ADVISED BIDDERS OFFERING OTHER THAN THE SPECIFIED BRAND NAME TO FURNISH DESCRIPTIVE CUTS. BASED ON THE DESCRIPTIVE LITERATURE AND DRAWINGS FURNISHED BY SIMPSON WITH ITS BID, THE CONTRACTING ACTIVITY DETERMINED THAT THE BESSER-WASTECO INCINERATOR WAS AN ACCEPTABLE EQUAL TO THE BRAND NAME.

YOU HAVE CONTENDED THAT THE INFORMATION FURNISHED WAS NOT ADEQUATE FOR THE CONTRACTING ACTIVITY TO DETERMINE THE EQUALITY OF THE PRODUCT OFFERED. IN THAT CONNECTION, YOU HAVE REFERRED TO A PREAWARD MEMORANDUM PREPARED BY THE VA ENGINEERING STAFF WHEREIN IT WAS INDICATED THAT CERTAIN INSTALLATION PRINTS SUBMITTED BY SIMPSON AFTER BID OPENING WERE UNACCEPTABLE. HOWEVER, THE VA REPORT STATES THAT SUCH PRINTS WERE DATA THAT WAS TO BE SUBMITTED BY THE "CONTRACTOR" AS DISTINGUISHED FROM DESCRIPTIVE DATA TO BE TIMELY FURNISHED BY A BIDDER.

OUR OFFICE HAS HELD THAT DETERMINATIONS AS TO WHETHER BIDS RECEIVED ARE FACTUALLY RESPONSIVE TO THE SPECIFICATIONS ARE PRIMARILY THE RESPONSIBILITY OF THE PARTICULAR AGENCY INVOLVED AND OUR OFFICE WILL NOT UPSET SUCH DETERMINATIONS UNLESS THEY ARE CLEARLY SHOWN TO BE ARBITRARY, CAPRICIOUS OR NOT BASED ON SUBSTANTIAL EVIDENCE. 52 COMP. GEN. (B-176394, FEBRUARY 9, 1973). SUCH EVIDENTIARY TEST HAS NOT BEEN MET IN THIS INSTANCE.

YOU HAVE STATED FURTHER THAT THE BRAND NAME EQUIPMENT IS A STANDARD PRODUCT OF PROVEN CAPABILITY AND THAT THE BESSER-WASTECO EQUIPMENT OFFERED IS PROTOTYPE EQUIPMENT AND THEREFORE SHOULD NOT HAVE BEEN CONSIDERED EQUAL TO THE BRAND NAME PRODUCT. HOWEVER, TO BE ACCEPTABLE AS AN "EQUAL," THE PRODUCT NEED ONLY BE CAPABLE OF MEETING THE SAME STANDARD OF PERFORMANCE AS THE BRAND NAME. 49 COMP. GEN. 347 (1969).

FURTHER, THE FACT THAT, AFTER THE AWARD OF A CONTRACT TO IT BY THE VA, SIMPSON MAY HAVE CONTACTED YOUR FIRM FOR A PRICE QUOTATION FOR THE INSTALLATION OF YOUR EQUIPMENT AND LATER DECIDED NOT TO UTILIZE YOUR EQUIPMENT HAS NO BEARING UPON THE VALIDITY OF THE AWARD MADE TO SIMPSON.

FOR THE FOREGOING REASONS, THE PROTEST IS DENIED.