Protest Involving Rejection of Bid as Nonresponsive (Best Available Copy)

B-176484(1): Jan 22, 1973

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THE MERE STATEMENT BY AN "EQUAL" BIDDER IN A "BRAND NAME OR EQUAL" SOLICITATION THAT HE WOULD MEET THE IFB'S REQUIREMENTS IS NOT SUFFICIENT INFORMATION TO ENABLE THE PROCURING ACTIVITY TO MAKE ITS DETERMINATION AS TO EXACTLY WHAT THE BIDDER PROPOSED TO FURNISH AND WHETHER THE OFFERED ARTICLES WOULD. THE DRAFTING OF PROPER SPECIFICATIONS AND THE DETERMINATION AS TO WHETHER A PRODUCT OFFERED CONFORMS TO SUCH SPECIFICATIONS IS WITHIN THE PROCURING ACTIVITY'S JURISDICTION AND IN SUCH MATTERS INVOLVING EXPERT TECHNICAL OPINION. GAO WILL ACCEPT THE PROCURING ACTIVITY'S JUDGMENT UNLESS IT IS SHOWN TO BE CLEARLY IN ERROR. 49 COMP. TO ECOLOGIC INSTRUMENT CORPORATION: FURTHER REFERENCE IS MADE TO YOUR REQUEST FOR OUR ADVICE AND INVESTIGATION OF THE CIRCUMSTANCES LEADING TO AN AWARD OF A CONTRACT TO SCHNEIDER INSTRUMENT COMPANY (SCHNEIDER) UNDER INVITATION FOR BIDS (IFB) NIH-72-B-(D)-495.

B-176484(1), JAN 22, 1973

BID PROTEST - BRAND NAME OR EQUAL - TECHNICAL SPECIFICATIONS DECISION DENYING THE PROTEST OF ECOLOGIC INSTRUMENT CORPORATION AGAINST AWARD OF A CONTRACT TO SCHNEIDER INSTRUMENT COMPANY UNDER AN IFB ISSUED BY THE NATIONAL INSTITUTES OF HEALTH FOR TWO AUTOMATIC WATER QUALITY DATA ACQUISITION SYSTEMS. THE MERE STATEMENT BY AN "EQUAL" BIDDER IN A "BRAND NAME OR EQUAL" SOLICITATION THAT HE WOULD MEET THE IFB'S REQUIREMENTS IS NOT SUFFICIENT INFORMATION TO ENABLE THE PROCURING ACTIVITY TO MAKE ITS DETERMINATION AS TO EXACTLY WHAT THE BIDDER PROPOSED TO FURNISH AND WHETHER THE OFFERED ARTICLES WOULD, IN FACT, MEET THE REQUIREMENTS. 50 COMP. GEN. 193 (1970). MOREOVER, THE DRAFTING OF PROPER SPECIFICATIONS AND THE DETERMINATION AS TO WHETHER A PRODUCT OFFERED CONFORMS TO SUCH SPECIFICATIONS IS WITHIN THE PROCURING ACTIVITY'S JURISDICTION AND IN SUCH MATTERS INVOLVING EXPERT TECHNICAL OPINION, GAO WILL ACCEPT THE PROCURING ACTIVITY'S JUDGMENT UNLESS IT IS SHOWN TO BE CLEARLY IN ERROR. 49 COMP. GEN. 195 (1969).

TO ECOLOGIC INSTRUMENT CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR REQUEST FOR OUR ADVICE AND INVESTIGATION OF THE CIRCUMSTANCES LEADING TO AN AWARD OF A CONTRACT TO SCHNEIDER INSTRUMENT COMPANY (SCHNEIDER) UNDER INVITATION FOR BIDS (IFB) NIH-72-B-(D)-495, ISSUED ON MAY 31, 1972, BY THE NATIONAL INSTITUTES OF HEALTH (NIH).

THE SUBJECT IFB REQUESTED BIDS FOR TWO AUTOMATIC WATER QUALITY DATA ACQUISITION SYSTEMS, INCORPORATING SENSORS AND ANALYZERS FOR THE MEASUREMENT OF PARAMETERS AND SPECIFYING SCHNEIDER'S MODEL RM-25D, OR AN EQUAL, TO BE MANUFACTURED IN ACCORDANCE WITH THE SALIENT CHARACTERISTICS SPECIFIED IN THE IFB. BOTH YOUR FIRM AND SCHNEIDER SUBMITTED BIDS BY TIME OF BID OPENING ON JUNE 15, 1972. YOUR FIRM'S BID, BASED UPON SUPPLYING YOUR MODEL 400 WATER QUALITY ANALYZER SYSTEM, WAS THE LOWER.

YOUR BID WAS ACCOMPANIED BY A LETTER DATED JUNE 9, 1972, WHICH ADVISED AS FOLLOWS:

"ENCLOSED HEREWITH IS OUR SUBMITTAL PER THE ABOVE REFERENCED SOLICITATION SET ASIDE FOR SMALL BUSINESS.

"PLEASE NOTE THAT WE HAVE TAKEN NO EXCEPTIONS WHATSOEVER, AND OUR SERIES 400 WATER QUALITY ANALYZER WITH DIGITAL RECORDER MODULE AND 8 CHANNEL PUNCH PAPER TAPE MEETS AND EXCEEDS THE SCHNEIDER INSTRUMENT COMPANY RM-25D ROBOT MONITOR LISTED IN THE SPECIFICATION.

"ECOLOGIC'S SERIES 400 WATER QUALITY ANALYZER WITH DIGITAL RECORDER MODULE ALSO MEETS THE REQUIREMENTS OF THE 'SPECIFICATIONS FOR AN INTEGRATED WATER QUALITY DATA ACQUISITION SYSTEM', EIGHTH EDITION REVISED, ISSUED BY THE ENVIRONMENTAL PROTECTION AGENCY.

"IN ORDER TO COMPLETELY CONFORM TO THE 'OR EQUAL' REQUIREMENTS OF THE SPECIFICATION, WE ARE ENCLOSING COPIES OF OUR BULLETIN NO. 400-6-71 FOR AN AUTOMATIC WATER QUALITY ANALYZER, SERIES 400. WE HAVE CHECKED AND CIRCLED THOSE ITEMS WHICH WOULD BE SUPPLIED AS REQUIRED BY THE SPECIFICATION AND HAVE INCLUDED APPROPRIATE SPECIFICATIONS AND DRAWINGS TO CLEARLY INDICATE THAT ECOLOGIC'S PRODUCT MEETS AND EXCEEDS THAT WHICH WAS SPECIFIED.

"SHOULD YOU HAVE ANY QUESTIONS RELATIVE TO OUR SUBMITTAL, PLEASE CONTACT THE UNDERSIGNED."

IN ACCORDANCE WITH THE "BRAND NAME OR EQUAL" METHOD OF EVALUATION OF BIDS, AS SET FORTH IN PARAGRAPHS 1-1.307-4 THROUGH 1-1.307-7 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), BIDDERS WERE ADVISED AT PARAGRAPH 9 OF THE ADDITIONAL PROVISIONS MADE A PART OF THE IFB 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 FROM THE INFORMATION FORWARDED BY THE BIDDERS, OR IDENTIFIED IN THEIR BIDS AND REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY, THAT SUCH PRODUCTS WERE "EQUAL" IN ALL RESPECTS TO THE REFERENCED BRAND NAME PRODUCT.

CONSEQUENTLY, THE PROCUREMENT OFFICE REQUESTED THE ENVIRONMENTAL SERVICES BRANCH OF NIH TO EVALUATE YOUR LOW BID TO DETERMINE WHETHER IN FACT YOUR FIRM HAD OFFERED AN "EQUAL" PRODUCT. ON JUNE 27 THE EVALUATORS CONCLUDED THAT YOUR BID WAS UNACCEPTABLE SINCE THE INFORMATION SUBMITTED WITH THE BID DID NOT FURNISH SUFFICIENT EVIDENCE TO ESTABLISH WHETHER THE PRODUCT OFFERED MET THE REQUIREMENTS OF THE SOLICITATION. SPECIFICALLY, THE MODEL NUMBERS INSERTED IN THE BID SCHEDULE FOR SUBITEMS 1A, B AND C COULD NOT BE FOUND IN THE LITERATURE ENCLOSED WITH THE BID. ADDITIONALLY, YOUR BID DID NOT IDENTIFY ANY OTHER INFORMATION WHICH WAS REASONABLY AVAILABLE TO THE PROCUREMENT ACTIVITY AND COULD HAVE BEEN USED IN THE EVALUATION OF YOUR BID. WHILE CERTAIN INFORMATION FURNISHED NIH IN YOUR LETTER OF JUNE 19, 1972, DESCRIBED YOUR MODEL 950 DIGITAL DATA SYSTEM, THAT LETTER WAS NOT RECEIVED UNTIL JUNE 27, 1972, SOME 12 DAYS AFTER BID OPENING. IN VIEW THEREOF, AND SINCE MODEL 950 WAS NOT OFFERED IN YOUR BID, SUCH INFORMATION COULD NOT BE CONSIDERED IN EVALUATING YOUR BID. SEE FPR 1 2.305. CONSEQUENTLY, IT WAS DETERMINED THAT YOUR BID MUST BE REJECTED, AND AWARD WAS MADE TO SCHNEIDER ON JUNE 30, 1972.

BY A TELEPHONE CONVERSATION OF JUNE 30, 1972, AND A LETTER OF THE SAME DATE, YOU REQUESTED NIH TO GIVE YOU A FULL HEARING AND REVIEW OF THIS MATTER. YOU POINTED OUT IN YOUR LETTER THAT YOUR BID "TOOK NO EXCEPTIONS WHATSOEVER, AND YOUR SUPPORTING LITERATURE, DRAWINGS AND SPECIFICATIONS COMPLETELY CONFORMED TO THE INVITATION." THE FOREGOING REASONS ALSO FORM THE BASIS OF YOUR COMPLAINT BEFORE US. WHILE THE RECORD REVEALS THAT NIH WAS WILLING AS LATE AS JULY 12, 1972, TO AFFORD YOU THE REQUESTED HEARING, IT WAS NEVER SCHEDULED BECAUSE OF YOUR INQUIRY TO OUR OFFICE ON JULY 7, 1972.

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 BIDDER 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 THE BIDDER PROPOSED TO FURNISH AND WHETHER THE ARTICLES WOULD, IN FACT, MEET THE REQUIREMENTS SET OUT IN THE INVITATION. 50 COMP. GEN. 193 (1970).

IT IS ALSO THE POSITION OF THIS OFFICE THAT THE DRAFTING OF PROPER SPECIFICATIONS, INCLUDING THE USE OF BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS, AND THE FACTUAL DETERMINATION OF WHETHER A PRODUCT OFFERED THEREUNDER CONFORMS TO THOSE SPECIFICATIONS, ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING ACTIVITY. IN SUCH MATTERS INVOLVING A DIFFERENCE OF EXPERT TECHNICAL OPINION WE WILL ACCEPT THE JUDGMENT OF THE TECHNICAL PERSONNEL OF THE AGENCY INVOLVED UNLESS SUCH JUDGMENT IS SHOWN TO BE CLEARLY IN ERROR. 49 COMP. GEN. 195 (1969).

BASED ON OUR REVIEW OF THE RECORD, WE CANNOT CONCLUDE THAT THE PROCURING ACTIVITY WAS IN ERROR IN DETERMINING THAT IT COULD NOT ASCERTAIN, FROM ANY DESCRIPTIVE INFORMATION FURNISHED WITH YOUR BID OR OTHERWISE IDENTIFIED IN YOUR BID, WHETHER THE PRODUCTS YOU OFFERED FOR ITEMS 1A THROUGH C WERE EQUAL TO THE BRAND NAME REQUIREMENT. ADDITIONALLY, IT DOES NOT APPEAR THAT SUCH DESCRIPTIVE INFORMATION WAS OTHERWISE REASONABLY AVAILABLE TO THE ACTIVITY. CONSEQUENTLY, THERE IS NO LEGAL BASIS TO QUESTION THE AWARD TO SCHNEIDER, OR TO REVIEW FAVORABLY YOUR REQUEST THAT AWARD BE MADE TO YOUR COMPANY.

CONCERNING YOUR REQUEST FOR OUR ADVICE AS TO WHAT FURTHER ACTION CAN BE TAKEN BY YOUR FIRM IN REFERENCE TO THIS SPECIFIC PROGRAM, WE FEEL THAT YOU SHOULD ACCEPT NIH'S OFFER TO MEET WITH YOUR REPRESENTATIVES AND DISCUSS THE PROPER PREPARATION OF FUTURE BIDS FOR SIMILAR ITEMS.

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  • Daekee Global Company, Ltd.
    We dismiss the protest because the protester has not established that it is an interested party.
    B-414899,B-414899.2

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