B-176468(1), SEP 1, 1972

B-176468(1): Sep 1, 1972

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

SUCH BID SHOULD THEREFORE BE REJECTED IF IT IS DETERMINED THAT THE PRODUCT OFFERED DOES NOT. MODEL OR EQUAL CLAUSE" WHICH REQUIRES THE SUPPLYING OF THE BRAND NAME PRODUCT WHERE THE BIDDER DOES NOT FURNISH THE REQUIRED DOCUMENTATION AS TO THE PROPOSED "EQUAL" IS NOT APPLICABLE HERE. TO KING & KING: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18. AWARD OF A CONTRACT IS BEING WITHHELD PENDING OUR RESOLUTION OF THE PROTEST. THE ARTICLE ON WHICH PROPOSALS ARE SUBMITTED MUST BE OF SUCH CHARACTER OR QUALITY THAT IT WILL SERVE THE PURPOSE FOR WHICH IT IS TO BE USED EQUALLY AS WELL AS THAT SPECIFIED. UNLESS THE BIDDER CLEARLY INDICATES THAT HE IS OFFERING 'AN EQUAL' PRODUCT. FAILURE TO COMPLY WITH THESE REQUIREMENTS WILL OBLIGATE THE BIDDER TO SUPPLY THE MAKE.

B-176468(1), SEP 1, 1972

BID PROTEST - BRAND NAME OF EQUAL - NONRESPONSIVE BID DENIAL OF PROTEST ON BEHALF OF GARDNER CONSTRUCTION CO., AGAINST THE REJECTION OF THEIR BID AS NONRESPONSIVE UNDER AN IFB ISSUED BY THE HINES VETERANS ADMINISTRATION HOSPITAL. A BID WHICH CLEARLY INDICATES AN INTENT TO FURNISH SOMETHING OTHER THAN THE BRAND NAME AND WHICH PROVIDES ALL REQUIRED INFORMATION WITH RESPECT TO THE PROPOSED ALTERNATE PRODUCT MUST LOGICALLY BE INTERPRETED AS OFFERING AN "EQUAL" PRODUCT WHICH MAY OR MAY NOT MEET THE SPECIFIED SALIENT CHARACTERISTICS OF THE BRAND NAME PRODUCT. SUCH BID SHOULD THEREFORE BE REJECTED IF IT IS DETERMINED THAT THE PRODUCT OFFERED DOES NOT, IN FACT, POSSESS THE STATED SALIENT CHARACTERISTICS. SEE B 165928, MAY 27, 1969. THE PORTION OF THE "BRAND NAME, MODEL OR EQUAL CLAUSE" WHICH REQUIRES THE SUPPLYING OF THE BRAND NAME PRODUCT WHERE THE BIDDER DOES NOT FURNISH THE REQUIRED DOCUMENTATION AS TO THE PROPOSED "EQUAL" IS NOT APPLICABLE HERE. ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO KING & KING:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18, 1972, AND PRIOR CORRESPONDENCE FROM GARDNER CONSTRUCTION CO., PROTESTING THE REJECTION OF ITS BID BY THE CONTRACTING OFFICER AS NONRESPONSIVE UNDER THE INVITATION FOR BIDS FOR THE HINES VETERANS ADMINISTRATION HOSPITAL PROJECT NO. 72- 566.

AWARD OF A CONTRACT IS BEING WITHHELD PENDING OUR RESOLUTION OF THE PROTEST.

THE INVITATION REQUESTED BIDS FOR "BUILDING ALTERATIONS AND NEW INCINERATOR INSTALLATION, BUILDING NO. 39," AND REQUIRED THAT THE INCINERATOR TO BE INSTALLED BE THAT MANUFACTURED BY ENVIRONMENTAL CONTROL PRODUCTS, INC., WITH A MINIMUM CAPACITY OF 2,000 POUNDS PER HOUR, OR EQUAL. THE "BRAND NAME, MODEL OR EQUAL CLAUSE" CONTAINED IN THE INVITATION STATED:

"THE USE OF THE NAME OF A MANUFACTURER OR OF ANY PARTICULAR MAKE, MODEL OR BRAND IN DESCRIBING AN ITEM DOES NOT RESTRICT BIDDERS TO THAT MANUFACTURER OR SPECIFIC ARTICLE, THIS MEANS BEING USED SIMPLY TO INDICATE THE CHARACTER OR QUALITY OF THE ARTICLE DESCRIBED; THE ARTICLE ON WHICH PROPOSALS ARE SUBMITTED MUST BE OF SUCH CHARACTER OR QUALITY THAT IT WILL SERVE THE PURPOSE FOR WHICH IT IS TO BE USED EQUALLY AS WELL AS THAT SPECIFIED. UNLESS THE BIDDER CLEARLY INDICATES THAT HE IS OFFERING 'AN EQUAL' PRODUCT, HIS BID SHALL BE CONSIDERED AS OFFERING THE BRAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BIDS. IF BIDDING ON OTHER THAN MAKE, MODEL OR BRAND SPECIFIED, MANUFACTURER'S NAME AND MODEL OR CATALOG NUMBER MUST BE GIVEN AND DESCRIPTIVE CUT FURNISHED, AND FAILURE TO COMPLY WITH THESE REQUIREMENTS WILL OBLIGATE THE BIDDER TO SUPPLY THE MAKE, MODEL OR BRAND SPECIFIED IN THE INVITATION.

"FAILURE TO FURNISH SAMPLES WHEN REQUIRED BY AN 'OR EQUAL' CLAUSE WILL LIKEWISE OBLIGATE THE BIDDER TO SUPPLY THE NAME, MODEL OR BRAND SPECIFIED."

GARDNER LISTED IN ITS BID AS AN EQUAL PRODUCT AN INCINERATOR MANUFACTURED BY BESSER-WASTECO, MODEL CA 300, AND INCLUDED WITH ITS BID A BROCHURE AND SPECIFICATION SHEET DETAILING VARIOUS INCINERATORS MANUFACTURED BY THAT COMPANY. HOWEVER, SINCE THE INFORMATION SUBMITTED WITH THE GARDNER BID INDICATED THAT THE BESSER-WASTECO MODEL CA 300 HAD A CAPACITY OF ONLY 300 POUNDS PER HOUR, RATHER THAN THE REQUIRED 2,000 POUNDS PER HOUR, THE CONTRACTING OFFICER REJECTED THE BID AS NONRESPONSIVE.

GARDNER MAINTAINS THAT THE LISTING IN THE BID OF THE BESSER-WASTECO MODEL CA 300 WAS AN OBVIOUS CLERICAL ERROR, THE INTENT BEING TO LIST THE BESSER- WASTECO MODEL CA 2000 WHICH HAS THE REQUIRED CAPACITY. AS EVIDENCE OF THIS INTENT TO LIST THE HIGHER CAPACITY MODEL, GARDNER MAINTAINS THAT ITS BID PRICE WOULD HAVE BEEN SOME $70,000 LESS THAN THE AMOUNT STATED IN THE BID HAD THE TRUE INTENT BEEN TO SUBMIT THE LOWER CAPACITY MODEL, THE DIFFERENCE IN ACQUISITION COST AS BETWEEN THE 300 POUND PER HOUR MODEL AS OPPOSED TO THE 2,000-POUND PER HOUR MODEL BEING THAT SUBSTANTIAL.

YOU CONTEND THAT THE "BRAND NAME, MODEL OR EQUAL CLAUSE" READ AS A WHOLE SHOULD BE INTERPRETED AS PROVIDING THAT ANY BID OFFERING AS AN "EQUAL" A PRODUCT NOT IN FACT EQUAL TO THE SPECIFIED BRAND NAME PRODUCT WILL BE CONSIDERED TO BE OFFERING INSTEAD THE SPECIFIED BRAND NAME PRODUCT WITH THE RESULT THAT SUCH BID SHOULD BE CONSIDERED RESPONSIVE. YOU BASE THIS CONTENTION PRIMARILY ON THE SENTENCE OF THE CLAUSE QUOTED ABOVE WHICH STATES THAT BIDS NOT CLEARLY OFFERING "EQUAL" PRODUCTS WILL BE CONSIDERED TO BE OFFERING THE SPECIFIED BRAND NAME. THE DECISION IN 42 COMP. GEN. 739 (1963) WHICH CONSTRUED A "BRAND NAME OR EQUAL" CLAUSE CONTAINING SIMILAR LANGUAGE IS CITED AS PRECEDENT FOR THIS VIEW. YOU ALSO REFER TO THOSE PORTIONS OF THE INSTANT CLAUSE WHICH PROVIDE THAT FAILURE TO STATE THE MANUFACTURER'S NAME, MODEL, OR CATALOG NUMBER; TO FURNISH A DESCRIPTIVE CUT WHERE REQUIRED; OR TO FURNISH SAMPLES WHERE REQUIRED WILL LIKEWISE OBLIGATE THE BIDDER TO FURNISH THE SPECIFIED BRAND NAME AS EVIDENCING AN OVERALL INTENT THAT BIDS NOT BE REJECTED AS NONRESPONSIVE FOR FAILURE TO OFFER A PROPER "EQUAL" PRODUCT.

WE DISAGREE WITH THIS RATIONALE. AS YOU INDICATE, THE 42 COMP. GEN., SUPRA, DECISION DISTINGUISHED TWO EARLIER DECISIONS WHICH DEALT WITH "BRAND NAME OR EQUAL" CLAUSES REQUIRING REJECTION OF ANY BID NOT AFFIRMATIVELY STATING EITHER THAT IT OFFERED THE SPECIFIED BRAND NAME OR THAT IT OFFERED AN "EQUAL" PRODUCT. HOWEVER, THE DECISION CONCLUDED ONLY THAT A BID CONTAINING NO AFFIRMATIVE STATEMENT, OR, AS WAS THE CASE IN THE BID THERE UNDER CONSIDERATION, THE INSERTION OF THE WORD "NONE" IN THE SPACE PROVIDED FOR INDICATING THAT AN "EQUAL" PRODUCT WAS BEING OFFERED, SHOULD PROPERLY BE CONSTRUED UNDER THE LANGUAGE OF THE CLAUSE AS OFFERING THE BRAND NAME PRODUCT. THIS CONCLUSION SHOULD NOT BE READ TO REQUIRE THAT A BIDDER FURNISH THE SPECIFIED BRAND NAME WHEN THE BID CLEARLY INDICATES AN INTENT TO FURNISH AN ALTERNATE PRODUCT AS AN "EQUAL" AND PROVIDES ALL INFORMATION WITH REGARD TO THE ALTERNATE PRODUCT REQUIRED BY THE INVITATION. NOR DO WE THINK THAT THE CLAUSE IN THIS CASE WARRANTS SUCH AN INTERPRETATION. RATHER, WE BELIEVE THAT THE QUESTIONED LANGUAGE IN THE CLAUSE IS RESTRICTED TO A BID WHICH DOES NOT CLEARLY INDICATE AN INTENT TO OFFER AN ALTERNATE PRODUCT AS AN EQUAL TO THE SPECIFIED BRAND NAME. A BID WHICH CLEARLY INDICATES AN INTENT TO FURNISH SOMETHING OTHER THAN THE BRAND NAME AND WHICH PROVIDES ALL REQUIRED INFORMATION WITH RESPECT TO THE PROPOSED ALTERNATE PRODUCT MUST LOGICALLY BE INTERPRETED AS OFFERING AN ALTERNATE PRODUCT WHICH MAY OR MAY NOT MEET THE SPECIFIED SALIENT CHARACTERISTICS OF THE BRAND NAME PRODUCT. SUCH BID SHOULD THEREFORE BE REJECTED IF IT IS DETERMINED THAT THE PRODUCT OFFERED AS "EQUAL" DOES NOT, IN FACT, POSSESS THE STATED SALIENT CHARACTERISTICS OF THE BRAND NAME. SEE B 165928, MAY 27, 1969, WHEREIN OUR OFFICE SUSTAINED THE REJECTION OF A BID AS NONRESPONSIVE TO A "BRAND NAME OR EQUAL" REQUIREMENT UTILIZING THE STANDARD ARMED SERVICES PROCUREMENT REGULATION CLAUSE WITH LANGUAGE SUCH AS THAT UNDER DISCUSSION HERE WHERE THE BIDDER DID NOT SUFFICIENTLY IDENTIFY HIS OFFERED "EQUAL" ITEMS. SEE, ALSO, B- 174524, JANUARY 26, 1972.

ALTHOUGH WE HAVE SOME DIFFICULTY WITH THAT PORTION OF THE "BRAND NAME, MODEL OR EQUAL CLAUSE" UTILIZED IN THIS INSTANCE WHICH REQUIRES THE SUPPLYING OF THE BRAND NAME PRODUCT WHERE THE BIDDER DOES NOT FURNISH ALL THE DOCUMENTATION REQUESTED AS TO THE PROPOSED "EQUAL," THAT PORTION OF THE CLAUSE HAS NO APPLICABILITY TO THE CASE AT HAND BECAUSE ALL REQUIRED INFORMATION WITH RESPECT TO THE "EQUAL" INCINERATOR OFFERED BY GARDNER WAS, IN FACT, PROVIDED. UNDER THESE CIRCUMSTANCES, THE CONTRACTING OFFICER HAD NO ALTERNATIVE BUT TO INTERPRET THE GARDNER BID AS OFFERING TO PROVIDE AS AN "EQUAL" AN ITEM WHICH CLEARLY DID NOT MEET THE GOVERNMENT'S REQUIREMENTS THEREBY RENDERING THE BID NONRESPONSIVE.

FINALLY, WITH RESPECT TO THE CONTENTION THAT THE LISTING OF A NONCONFORMING MODEL NUMBER WAS A MISTAKE, IT IS WELL SETTLED THAT CORRECTION OF MISTAKES WHICH AFFECT THE RESPONSIVENESS OF BIDS MAY NOT BE ALLOWED BECAUSE THE DETERMINATION OF THE RESPONSIVENESS OF BIDS MAY PROPERLY BE MADE ONLY ON THE BASIS OF THE BID AS SUBMITTED, AND IT IS NOT PROPER TO CONSIDER THE REASON WHY A BID IS NONRESPONSIVE. SEE 38 COMP. GEN. 819 (1959).

IN ACCORDANCE WITH THE ABOVE CONSIDERATIONS, THE PROTEST IS DENIED.