B-176958(1), FEB 8, 1973

B-176958(1): Feb 8, 1973

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WHERE A "BRAND NAME OR EQUAL" IFB DEFINES THE SALIENT PERFORMANCE CHARACTERISTICS REQUIRED AND PERMITS A SUBSTITUTION OF TECHNOLOGY AS LONG AS THESE CHARACTERISTICS ARE PRESENT. GAO CANNOT CONCLUDE THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE OR DO NOT DEFINE THE REQUIREMENTS WITH SUFFICIENT PARTICULARITY. 49 COMP. THE RECORD IN THIS CASE ADEQUATELY SUPPORTS THE ADMINISTRATIVE DETERMINATION THAT PROTESTANT'S BID WAS NOT EQUAL TO THE SPECIFIED BRAND NAME. WHERE THE GOVERNMENT DETERMINES THAT DOMESTIC END PRODUCTS ARE NOT MANUFACTURED IN THE UNITED STATES IN SUFFICIENT AND REASONABLY AVAILABLE COMMERCIAL QUANTITIES AND OF A SATISFACTORY QUALITY. TO BAUSCH & LOMB: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 13.

B-176958(1), FEB 8, 1973

BID PROTEST - BRAND NAME OR EQUAL - SPECIFICATIONS - BIDDER ACQUIESCENCE - BUY AMERICAN ACT DECISION DENYING THE PROTEST OF BAUSCH & LOMB AGAINST THE REJECTION OF ITS BID UNDER AN IFB ISSUED BY THE APPALACHIAN CENTER FOR OCCUPATIONAL SAFETY AND HEALTH, PUBLIC HEALTH SERVICE, FOR A PARTICLE MEASUREMENT SYSTEM TO BE USED IN THE ANALYSIS OF LUNG TISSUE. WHERE A "BRAND NAME OR EQUAL" IFB DEFINES THE SALIENT PERFORMANCE CHARACTERISTICS REQUIRED AND PERMITS A SUBSTITUTION OF TECHNOLOGY AS LONG AS THESE CHARACTERISTICS ARE PRESENT, GAO CANNOT CONCLUDE THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE OR DO NOT DEFINE THE REQUIREMENTS WITH SUFFICIENT PARTICULARITY. 49 COMP. GEN. 195 (1969). MOREOVER, IN THIS REGARD, PARTICIPATION IN A PROCUREMENT WITHOUT PROTEST PRIOR TO BID OPENING CONSTITUTES ACQUIESCENCE IN THE SPECIFICATIONS. SEE 50 COMP. GEN. 193, 200 (1970). ALSO, THE RECORD IN THIS CASE ADEQUATELY SUPPORTS THE ADMINISTRATIVE DETERMINATION THAT PROTESTANT'S BID WAS NOT EQUAL TO THE SPECIFIED BRAND NAME. FINALLY, FOREIGN PRODUCTS MAY BE PURCHASED DESPITE THE BUY AMERICAN ACT, 41 U.S.C. 10A-D, WHERE THE GOVERNMENT DETERMINES THAT DOMESTIC END PRODUCTS ARE NOT MANUFACTURED IN THE UNITED STATES IN SUFFICIENT AND REASONABLY AVAILABLE COMMERCIAL QUANTITIES AND OF A SATISFACTORY QUALITY.

TO BAUSCH & LOMB:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 13, 1972, PROTESTING AGAINST THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. 73-05-8-24-72, ISSUED ON JULY 31, 1972, BY THE APPALACHIAN CENTER FOR OCCUPATIONAL SAFETY AND HEALTH (ACOSH), PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, FOR THE FURNISHING AND INSTALLATION OF A PARTICLE MEASUREMENT SYSTEM TO BE USED IN THE ANALYSIS OF LUNG TISSUE AND VARIOUS FEATURES OF RESPIRABLE DUST.

INITIALLY, IN MAY 1972, ACOSH REQUESTED AUTHORIZATION FROM HIGHER AUTHORITY TO PROCEED WITH A SOLE-SOURCE AWARD TO IMAGE ANALYSING COMPUTERS, INCORPORATED (IMANCO), A FOREIGN CORPORATION, BASED UPON A DETERMINATION THAT THERE WAS NO OTHER AVAILABLE DOMESTIC SYSTEM WHICH INCORPORATED ALL OF THE TECHNICAL CAPABILITIES WHICH WERE ESSENTIAL TO ACOSH'S RESEARCH. IT HAD BEEN DETERMINED AFTER A REVIEW OF THE MARKET THAT ONLY THE IMANCO SYSTEM COULD MEET THE ACTIVITY'S NEEDS. THE REQUEST TO PROCEED WITH AN AWARD TO IMANCO WAS RETURNED WITHOUT ACTION SINCE THE RECORD SUBMITTED WITH THE REQUEST DID NOT CONTAIN SUFFICIENT DETAILS AS TO EFFORTS MADE TO OBTAIN DOMESTIC ITEMS THROUGH SOLICITATION OF OFFERS WITHIN THE UNITED STATES. THE LETTER DATED JUNE 6, 1972, DISAPPROVING THE SOLE-SOURCE ACTION STATED THAT ACOSH MUST SHOW POSITIVE EFFORTS TO ALLOW DOMESTIC FIRMS TO BID ON THE EQUIPMENT.

THE PROCUREMENT OFFICE ISSUED THE SUBJECT SOLICITATION UNDER A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION, WITH IMANCO LISTED AS THE BRAND NAME FOR THE COMPONENTS OF THE SYSTEM. IN ADDITION, THE PROCUREMENT OFFICE ALSO ATTACHED FIVE PAGES OF DETAILED SPECIFICATIONS DESCRIBING IMANCO'S PARTICLE MEASUREMENT SYSTEM. THE INVITATION STATED THAT THE "BRAND NAME OR EQUAL" DESCRIPTION WAS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND TO INDICATE THE QUALITY AND CHARACTERISTICS OF A PRODUCT THAT WILL BE SATISFACTORY. THE "BRAND NAME OR EQUAL" CLAUSE WAS INCORPORATED BY REFERENCE, AND PAGE 5 OF THE INVITATION CONTAINED THE FOLLOWING PROVISION:

"DESCRIPTIVE LITERATURE AND BROCHURES MUST BE SUBMITTED WITH OFFERS IF OTHER THAN ITEM SPECIFIED. THE INFORMATION SUBMITTED MUST BE IN SUFFICIENT DETAIL TO ALLOW THE GOVERNMENT TO DETERMINE WHETHER ITEMS OFFERED MEET THE MINIMUM SPECIFICATIONS ATTACHED. FAILURE TO SUBMIT THE REQUIRED LITERATURE WILL BE CAUSE FOR REJECTION OF OFFER AS NON RESPONSIVE."

THREE BIDS WERE RECEIVED AND OPENED ON AUGUST 24, 1972. COUTER ELECTRONICS SUBMITTED THE LOWEST BID AT $11,250; HOWEVER, THIS BID WAS FOUND TO BE NONRESPONSIVE AND WILL NOT BE CONSIDERED FURTHER. YOUR BID WAS $57,757, AND THE BID FROM IMANCO WAS $63,073. A LETTER DATED AUGUST 23, 1972, ATTACHED TO YOUR BID STATED THAT YOU WERE TAKING EXCEPTIONS TO CERTAIN SECTIONS OF THE SPECIFICATIONS. YOUR LETTER STATED THAT CERTAIN FEATURES INHERENT IN YOUR SYSTEM WOULD BE INCORPORATED AT NO ADDITIONAL EXPENSE TO THE GOVERNMENT AND THAT CERTAIN FEATURES OF THE SPECIFICATIONS WOULD BE ACCOMPLISHED BY ALTERNATE MEANS. AN EVALUATION WAS MADE OF YOUR BID AND IT WAS DETERMINED THAT YOUR SYSTEM AS OFFERED DID NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS. YOUR BID WAS REJECTED AS NONRESPONSIVE AND IMANCO IS PROPOSED FOR THE AWARD.

BASICALLY, YOUR PROTEST IS AGAINST THE DESCRIPTION SET FORTH IN THE SPECIFICATIONS, WHICH YOU CONTEND MADE THE SOLICITATION UNDULY RESTRICTIVE IN CERTAIN RESPECTS AND IN OTHER RESPECTS DID NOT DEFINE THE REQUIREMENTS WITH SUFFICIENT PARTICULARITY TO PERMIT THE PREPARATION OF BIDS. YOU HAVE ALSO OFFERED A NUMBER OF TECHNICAL ARGUMENTS AS TO WHY YOUR BID SHOULD HAVE BEEN CONSIDERED RESPONSIVE DESPITE THE EXCEPTIONS TAKEN BY YOU. FURTHERMORE, YOU CONTEND THAT NONE OF THE EXCEPTIONS TO THE BUY AMERICAN ACT, SET FORTH IN PARAGRAPH 14 OF THE GENERAL PROVISIONS OF THE SOLICITATION, PERMITTING THE PROCUREMENT FROM A FOREIGN SOURCE, IS APPLICABLE TO THIS PROCUREMENT.

HEW REPORTS THAT THE PROCURING ACTIVITY WAS ATTEMPTING TO PROCURE THE STATE OF THE ART IN PARTICLE MEASUREMENT SYSTEMS WHICH HERETOFORE HAD ONLY BEEN ATTAINED BY THE IMANCO PRODUCT SINCE THAT LEVEL OF ACHIEVEMENT WAS NECESSARY TO MEET ACOSH'S ACTUAL NEEDS. FOR THIS REASON THE PERFORMANCE PARAMETERS AND EQUIPMENT REQUIREMENTS REFLECTED IN ACOSH'S SPECIFICATIONS DEPICT WHAT HAS BEEN ACHIEVED WITH THE IMANCO EQUIPMENT. HOWEVER, IT IS HEW'S POSITION THAT AN ATTEMPT WAS MADE TO DEFINE THE PERFORMANCE CHARACTERISTICS (SALIENT CHARACTERISTICS) REQUIRED IN TERMS THAT WERE AS UNRESTRICTED AS POSSIBLE. IN THIS CONNECTION, IT IS POINTED OUT THAT THE SPECIFICATIONS PERMIT A SUBSTITUTION OF TECHNOLOGY BUT REQUIRE THAT THE END ITEM MUST PRODUCE THE STATE OF THE ART ACHIEVEMENTS, A PARTICLE MEASUREMENT SYSTEM EQUAL TO OR SUPERIOR IN PERFORMANCE TO THAT CURRENTLY AVAILABLE FROM IMANCO. UNDER THE CIRCUMSTANCES, WE DO NOT CONCLUDE THAT THE SPECIFICATIONS WERE UNDULY RESTRICTIVE OR DID NOT DEFINE THE REQUIREMENTS WITH SUFFICIENT PARTICULARITY. 49 COMP. GEN. 195 (1969).

IN THIS REGARD, A MEMORANDUM DATED SEPTEMBER 13, 1972, BY THE PATHOLOGY SECTION, APPALACHIAN LABORATORY FOR OCCUPATIONAL RESPIRATORY DISEASES (ALFORD), STATES THAT YOUR REPRESENTATIVES MET WITH HEW'S SPECIALISTS ABOUT ONE WEEK PRIOR TO BID OPENING AND THAT ABOUT FIVE OR SIX HOURS WERE SPENT GOING OVER EACH PORTION OF THE SPECIFICATION. THE MEMORANDUM GOES ON TO STATE THAT YOUR REPRESENTATIVES MENTIONED AT THE TIME THAT THE SPECIFICATIONS WERE CLEAR AND WELL DEFINED AND THAT YOUR REPRESENTATIVES FELT THEY COULD MEET MOST OF THE REQUIREMENTS.

IT IS OUR VIEW THAT ANY OBJECTIONS WITH RESPECT TO THE MANNER OF DESCRIBING THE PARTICLE MEASUREMENT SYSTEM SHOULD HAVE BEEN BROUGHT TO THE ATTENTION OF THE PROCURING ACTIVITY PRIOR TO BID OPENING. SINCE THE RECORD INDICATES THAT NO SUCH OBJECTIONS WERE MADE, WE MUST CONCLUDE THAT YOUR PARTICIPATION IN THIS PROCUREMENT WITHOUT PROTEST PRIOR TO BID OPENING, CONSTITUTED ACQUIESCENCE IN THE SPECIFICATIONS USED. SEE 50 COMP. GEN. 193, 200 (1970).

THE REASONS FOR REJECTING YOUR BID ARE DOCUMENTED IN MEMORANDUMS DATED AUGUST 31, 1972, AND SEPTEMBER 12 AND 25, 1972. WE WILL MENTION A FEW OF THE DEFICIENCIES FOUND BY THE POINT-BY-POINT ANALYSIS OF YOUR BID, THE ACCOMPANYING LETTER DATED AUGUST 23, AND YOUR LITERATURE. YOUR BID LETTER STATED THAT THE INTERMEDIATE MAGNIFICATION REQUIREMENT OF SECTION 1.3.1.3 OF THE SPECIFICATIONS WAS NOT AVAILABLE AS A STANDARD FEATURE OF YOUR EQUIPMENT BUT THAT THIS WOULD CAUSE NO INCONVENIENCE SINCE EIGHT RATHER THAN FIVE OBJECTIVES WOULD BE SUPPLIED. THE SEPTEMBER 12 MEMORANDUM STATES THAT THE INTERMEDIATE MAGNIFICATION BETWEEN EACH MAGNIFICATION CHANGE IS NECESSARY IN ORDER TO ACHIEVE OPTIMUM MAGNIFICATION AND THUS ACHIEVE MAXIMUM EFFICIENCY OF THE SYSTEM.

YOUR LETTER STATED THAT THE PLUMBICON SCANNING SYSTEM REQUIRED BY SECTION 1.4.2 OF THE SPECIFICATIONS WAS NOT PRESENTLY AVAILABLE AS A STANDARD FEATURE OF YOUR EQUIPMENT AND AN ALTERNATE WAS PROPOSED. YOUR ALTERNATE WAS EVALUATED AND IT WAS FOUND THAT YOUR LITERATURE WAS TOO VAGUE TO MAKE A DETERMINATION WHETHER YOUR ALTERNATE COULD DO THE NECESSARY WORK PLANNED FOR THE PLUMBICON SCANNING SYSTEM ON X-RAY FILMS, FLOURESCENCE MICROSCOPY, POLARIZING MICROSCOPY AND OTHER LOW LIGHT LEVEL WORK. IT WAS FELT THAT YOUR ALTERNATE SYSTEM WOULD PROVE TO BE UNSATISFACTORY SINCE IT WOULD DEGRADE BOTH THE GEOMETRIC AND GRAY LEVEL RESOLUTION OF THE SYSTEM.

YOUR LETTER STATED THAT SECTION 1.6.1.1 WHICH REQUIRES THAT THE SUPERIMPOSITION AND BRIGHTNESS BALANCE OF THE DISPLAY MODULE SHOULD BE UNDER OPERATOR CONTROL, WAS NOT A STANDARD FEATURE OF YOUR EQUIPMENT BUT WAS NOT NECESSARY SINCE YOUR EQUIPMENT PROVIDED A HIGH CONTRAST, READABILITY, AND A HIGH LEVEL OF IMAGES APPEARING ON THE SCREEN. THE TECHNICAL EVALUATION CONCLUDED THAT YOU MISINTERPRETED THIS REQUIREMENT SINCE OPERATOR CONTROL OF THE BRIGHTNESS BALANCE WAS NOT REQUIRED FOR PEAK BRIGHTNESS OR CONTRAST BUT WAS A NECESSARY REQUIREMENT FOR THE PROPER SETTING OF THE OPTIMUM THRESHOLD LEVEL TO ASSURE ACCURATE MEASUREMENTS. ALSO, SECTION 1.8.3 OF THE SPECIFICATIONS REQUIRED THAT A SHADING CORRECTOR MUST BE AVAILABLE WHICH MAKES THE SYSTEM CAPABLE OF DETECTING 30 GRAY LEVELS. YOUR BID LETTER OF AUGUST 23 STATED THAT A SHADING CORRECTOR WILL BE AVAILABLE WHICH WILL MAKE YOUR SYSTEM CAPABLE OF DETECTING 25 GRAY LEVELS OR BETTER. YOUR LETTER STATED THAT YOU BELIEVED IT WAS MORE APPROPRIATE TO BE CONSERVATIVE IN YOUR ESTIMATE OF THE GRAY LEVEL DIFFERENTIATION CAPABILITY OF YOUR SYSTEM. THE MEMORANDUM CONCLUDED THAT WITH ONLY 25 GRAY LEVELS THE MARGIN OF ERROR POSSIBILITIES WAS OF AN UNACCEPTABLE LEVEL AND SINCE NO FURTHER INFORMATION WAS GIVEN ON YOUR SHADING CORRECTOR, IT COULD NOT BE EVALUATED.

WE BELIEVE THE RECORD ADEQUATELY SUPPORTS THE ADMINISTRATIVE CONCLUSION THAT YOUR EQUIPMENT WAS NOT EQUAL TO THE BRAND NAME SPECIFIED AND WOULD NOT THEREFORE MEET THE AGENCY'S MINIMUM NEEDS.

REGARDING THE BUY AMERICAN ACT (41 U.S.C. 10A-D), ONE OF THE EXCEPTIONS TO THAT ACT SET FORTH IN PARAGRAPH 14BII) OF THE GENERAL PROVISIONS OF THE SOLICITATION, IS THAT FOREIGN PRODUCTS MAY BE PURCHASED WHERE THE GOVERNMENT DETERMINES THAT DOMESTIC END PRODUCTS ARE NOT MANUFACTURED IN THE UNITED STATES IN SUFFICIENT AND REASONABLY AVAILABLE COMMERCIAL QUANTITIES AND OF A SATISFACTORY QUALITY. BASED UPON THE RESPONSES RECEIVED TO THE SUBJECT SOLICITATION WE HAVE NO REASON FOR CONCLUDING THAT ANY DOMESTIC CONCERN HAS A PRODUCT AVAILABLE WHICH HAS ACHIEVED THE STATE OF THE ART ATTAINED BY THE IMANCO PRODUCT, WHICH ACOSH HAS DETERMINED IS NECESSARY TO MEET ITS ACTUAL NEEDS, AND THE CONTEMPLATED AWARD TO IMANCO WOULD THEREFORE BE PROPER UNDER THE CITED EXCEPTION.

FINALLY, YOU OBJECT TO THE PROCURING ACTIVITY'S PROCEDURE OF SUBJECTING YOU WITHOUT WARNING TO THE CRITICISMS OF YOUR COMPETITOR AT A MEETING YOU HAD REQUESTED WITH THE CONTRACTING OFFICER DURING THE EVALUATION OF YOUR BID. THE LETTER FROM HEW INDICATES THAT STEPS HAVE BEEN TAKEN TO AVOID THIS TYPE OF OCCURRENCE IN FUTURE PROCUREMENTS.

ACCORDINGLY, YOUR PROTEST IS DENIED.