B-176864, DEC 21, 1972

B-176864, DEC 21, 1972

BID PROTEST - BRAND NAME OR EQUAL - SIMILAR CHARACTERISTICS DECISION CONCERNING THE DENIAL OF A PROTEST BY OLIVETTI CORPORATION AGAINST THE AWARD OF A CONTRACT TO PAILLARD, INC., UNDER A SOLICITATION ISSUED BY THE FEDERAL SUPPLY SERVICE, GSA, FOR 75 ELECTRIC TYPEWRITERS. THE REQUIREMENT OF A "BRAND NAME OR EQUAL" PURCHASE IS NOT MET IF THE "EQUAL" PRODUCT DOES NOT HAVE THE SALIENT CHARACTERISTICS OF THE BRAND NAME PRODUCT DEEMED ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. THUS, IT WAS NOT NECESSARY FOR THE PAILLARD TYPEWRITER TO HAVE FEATURES OF THE OLIVETTI MODEL NOT CITED AS SALIENT CHARACTERISTICS IN ORDER FOR IT TO BE CONSIDERED FOR AWARD. SINCE THE AWARD TO PAILLARD WAS PROPER, OLIVETTI'S PROTEST IS DENIED.

TO OLIVETTI CORPORATION:

REFERENCE IS MADE TO YOUR LETTERS DATED SEPTEMBER 4, AND AUGUST 30, 1972, PROTESTING AGAINST THE AWARD OF CONTRACT TO PAILLARD, INCORPORATED (PAILLARD), UNDER SOLICITATION NO. 3FP-B3-N-B30877-8-25 72, ISSUED BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION (GSA), FOR 75 ELECTRIC TYPEWRITERS.

IT IS REPORTED THAT THE SUBJECT REQUIREMENT WAS RECEIVED BY GSA ON AUGUST 23, 1972, IN THE FORM OF A REQUISITION DATED AUGUST 20, 1972, FROM THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT CALLING FOR 75 ELECTRIC TYPEWRITERS FOR USE IN THE RECENT FLOOD DISASTER AREA OF WILKES BARRE, PENNSYLVANIA. DELIVERY OF THESE TYPEWRITERS WAS REQUIRED IN WILKES BARRE NO LATER THAN AUGUST 29, 1972, IN ORDER NOT TO DELAY THE PROCESSES OF THE GOVERNMENT EMERGENCY RELIEF OPERATIONS. IN VIEW OF THE CIRCUMSTANCES, GSA REPORTS THAT THE REQUIREMENTS WERE GIVEN VERBALLY TO PROSPECTIVE OFFERORS, INCLUDING OLIVETTI, ON AUGUST 25, 1972, AS FOLLOWS:

TYPEWRITER, ELECTRIC, CARBON RIBBON, 13" CARRIAGE, STANDARD ELITE TYPE, HEAVY DUTY, OLIVETTI EDITOR 4 OR EQUAL.

THREE OFFERS WERE RECEIVED ON THAT DATE. PAILLARD WAS LOW, OFFERING A HERMES AMBASSADOR AT $255.95 EACH AS AN EQUAL PRODUCT TO THE OLIVETTI EDITOR 4. YOU OFFERED YOUR EDITOR 4 MODEL AT $325 AND YOUR EDITOR 3 MODEL AT $247 EACH; HOWEVER, THE EDITOR 3 MODEL WAS NOT CONSIDERED EQUAL TO YOUR EDITOR 4 MODEL. A THIRD OFFER WAS SUBMITTED BY OLYMPIA AT $319.70 EACH. SINCE THE PAILLARD MODELS (HERMES AMBASSADOR) WERE MANUFACTURED IN SWITZERLAND, A 12 PERCENT "BUY AMERICAN" BID EVALUATION FACTOR WAS ADDED TO THE PAILLARD OFFER IN ACCORDANCE WITH FPR 1-6.104 4, THEREBY INCREASING THE EVALUATED PRICE TO $286.64 EACH, WHICH PRICE WAS STILL LOWER THAN THE OTHER PRICES RECEIVED. AWARD WAS MADE TO PAILLARD ON AUGUST 25, 1972, AND DELIVERY WAS MADE ON OR BEFORE AUGUST 29, 1972.

YOU ALLEGE THAT THE HERMES AMBASSADOR OFFERED BY PAILLARD DOES NOT EQUAL THE OLIVETTI EDITOR 4 AS REQUIRED BY GSA. YOU NOTE THAT THE HERMES AMBASSADOR LACKS A NUMBER OF FEATURES THAT ARE PROVIDED AS STANDARD EQUIPMENT ON THE OLIVETTI EDITOR 4. THESE FEATURES INCLUDE A SPECIAL MEMORY FEATURE, MULTIPLE PLATEN POSITION SETTINGS, EXPRESS MARGIN KEY, SPECIAL SKIP TABULATION, AUTOMATIC MARGIN BY-PASS KEY, HORIZONTAL HALF SPACE KEY, AUTOMATIC TITLE CENTERING, A REVERSE UNDERSCORE FEATURE, SPECIAL PAGE END INDICATOR AND SPECIAL ELECTRICALLY SET MARGINS. ALSO, YOU ALLEGE THAT THE PROCURING ACTIVITY SHOULD HAVE ACCEPTED YOUR ALTERNATE OFFER OF $247 EACH FOR THE OLIVETTI EDITOR 3 WHICH YOU BELIEVE IS EQUAL TO THE EDITOR 4. FINALLY, YOU BELIEVE THE GOVERNMENT HAS EXPRESSED A PREFERENCE FOR UNITED STATES PRODUCTS AND YOU NOTE THAT THE HERMES AMBASSADOR IS MANUFACTURED IN SWITZERLAND.

AS GSA POINTS OUT, THE FEATURES YOU CITE WERE NOT CITED AS SALIENT CHARACTERISTICS OF THE BRAND NAME PURCHASE DESCRIPTION. IN THIS REGARD, FPR 1-1.307-4(B) PROVIDES THAT "BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS SHOULD SET FORTH THOSE SALIENT CHARACTERISTICS OF THE BRAND NAME PRODUCT WHICH ARE DEEMED ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. AN "EQUAL" PRODUCT WHICH CONFORMS TO THE SALIENT CHARACTERISTICS LISTED IN THE SOLICITATION IS RESPONSIVE TO THE "BRAND NAME OR EQUAL" REQUIREMENT. 169210, APRIL 22, 1970. CONSEQUENTLY, IT WAS NOT NECESSARY FOR THE HERMES AMBASSADOR MACHINE TO HAVE FEATURES OF YOUR MACHINE WHICH WERE NOT CITED AS SALIENT CHARACTERISTICS IN ORDER TO BE CONSIDERED FOR THE AWARD.

YOUR ALTERNATE BID OF $247 EACH FOR THE OLIVETTI EDITOR 3 WAS REJECTED BECAUSE IT DID NOT MEET THE REQUIREMENT OF BEING A "HEAVY DUTY" MODEL. HAVE BEEN ADVISED THAT THE EDITOR 4 IS OF HEAVIER CONSTRUCTION, HAVING SUBSTANTIALLY THICKER AND SLIGHTLY LARGER MACHINE PARTS (THE EDITOR 4 WEIGHS APPROXIMATELY 46.2 LBS., WHILE THE EDITOR 3 WEIGHS APPROXIMATELY 32.4 LBS.). IN THIS REGARD, OUR DECISION TO YOUR FIRM, B-176385, DECEMBER 11, 1972, ALSO NOTES THAT THE EDITOR 3 IS CONSIDERED A LIGHT DUTY TYPEWRITER AND THEREFORE IS NOT EQUAL TO YOUR EDITOR 4 MODEL. CONSEQUENTLY, THIS OFFICE BELIEVES THAT GSA DID NOT ERR IN DETERMINING THAT THE EDITOR 3 DOES NOT MEET THE SALIENT FEATURE THAT THE TYPEWRITER BE A "HEAVY DUTY" MODEL.

IN EVALUATING FOREIGN BIDS, FPR 1-6.104-4 REQUIRES THAT EACH FOREIGN BID BE ADJUSTED FOR EVALUATION PURPOSES BY ADDING A PERCENTAGE FACTOR TO THE BID. THE 12 PERCENT FACTOR WAS USED IN THE SUBJECT PROCUREMENT IN ACCORDANCE WITH THE REGULATION. PAILLARD STILL REMAINED LOW BIDDER AND THIS OFFICE CANNOT FIND ANY LEGAL BASIS TO DISTURB THE AWARD MADE TO PAILLARD.

ACCORDINGLY, YOUR PROTEST IS DENIED.