B-177229, FEB 8, 1973

B-177229, FEB 8, 1973

BID PROTEST - BRAND NAME OR EQUAL - SALIENT CHARACTERISTICS DECISION DENYING THE PROTEST OF HEWLETT-PACKARD COMPANY AGAINST AWARD OF A CONTRACT TO TEKTRONIX, INC., UNDER AN IFB ISSUED BY THE DEPARTMENT OF THE NAVY FOR OSCILLOSCOPES. IN A BRAND NAME OR EQUAL SOLICITATION BIDDERS MUST BE ADVISED OF THE REQUIRED SALIENT CHARACTERISTICS OF THE REFERENCED ITEM. ASPR 1.1206.2(B). THOSE CHARACTERISTICS NOT SO LISTED ARE NOT TO BE DEEMED SALIENT UNLESS THEY ARE ESSENTIAL REQUIREMENTS, IN WHICH CASE THE PURCHASE DESCRIPTION WOULD BE DEFECTIVE. SEE 49 COMP. GEN. 347, 350 (1969).

TO HEWLETT-PACKARD COMPANY:

WE REFER TO YOUR TELEFAX OF OCTOBER 11, 1972, AND SUBSEQUENT CORRESPONDENCE, REGARDING YOUR PROTEST UNDER INVITATION FOR BIDS (IFB) N00039-73-B-0205, ISSUED BY THE DEPARTMENT OF THE NAVY ON JULY 20, 1972, FOR A REQUIREMENT OF OSCILLOSCOPES, HEWLETT-PACKARD MODEL CAQ1-E 12-181A OR EQUAL, COMPOSED OF MAINFRAME MODEL 181A, WITH PLUG-IN MODELS 1801A AND 1821F.

SECTION F, DESCRIPTION/SPECIFICATIONS, OF THE IFB SET FORTH THE REQUIREMENTS FOR THE ABOVE ITEM, IN PERTINENT PART, AS FOLLOWS:

"1.1 SCOPE. THIS DOCUMENT DESCRIBES THE MINIMUM ACCEPTABLE SALIENT PHYSICAL AND FUNCTIONAL CHARACTERISTICS FOR A 50 MHZ STORAGE OSCILLOSCOPE USED FOR DISPLAYING AND RETAINING THE DISPLAY OF A WIDE VARIETY OF SIGNALS OF FREQUENCIES UP TO 50 MHZ.

1.2 MODEL IDENTIFICATION. THE EQUIPMENT CONSISTS OF AN OSCILLOSCOPE WITH PLUG-INS AS LISTED IN PARAGRAPH 2.3 AND ACCESSORIES AS LISTED IN PARAGRAPH 2.3.1.

2. REQUIREMENTS.

2.1 GENERAL REQUIREMENTS. EQUIPMENT FURNISHED IN RESPONSE TO THIS REQUEST SHALL BE CAPABLE OF MEETING THE MINIMUM SALIENT CHARACTERISTICS SPECIFIED HEREIN.

2.3 COMPOSITION. THE HEWLETT-PACKARD E-12-181A IS COMPOSED OF THE FOLLOWING ITEMS:

MAINFRAME MODEL 181A

PLUG-IN DIAL TRACE MODEL 1801A

PLUG-IN TIME BASE AND DELAY, MODEL 1821F

"2.4 PERFORMANCE REQUIREMENTS.

2.4.1 VISUAL DISPLAY SECTION.

2.4.6 WEIGHT: LESS THAN OR EQUAL TO 50 LBS."

SECTION C, PARAGRAPH 20, OF THE IFB SET FORTH THE STANDARD "BRAND NAME OR EQUAL" CLAUSE REQUIRED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1- 1206.3(B), INFORMING BIDDERS 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 THAT SUCH PRODUCTS WERE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE IFB.

YOUR CONCERN AND TEKTRONIX, INC., WHICH OFFERED ITS MODEL 182SA IN AN ALTERNATE BID AT A PRICE LOWER THAN YOU PROPOSED FOR THE LISTED BRAND NAME MODEL, SUBMITTED THE ONLY BIDS FOR THE REQUIREMENT ON AUGUST 22, 1972. THE DEPARTMENT REPORTS THAT AN ENGINEERING REVIEW WAS SUBSEQUENTLY MADE OF DATA PROVIDED BY TEKTRONIX, AND THAT THE REVIEW SHOWED THE MODEL MET ALL THE SALIENT CHARACTERISTICS SPECIFIED IN THE IFB. IN VIEW THEREOF, THE DEPARTMENT REPORTS THAT IT MADE AN AWARD TO THE COMPANY ON OCTOBER 5, 1972.

YOU MAINTAIN THAT YOUR MODEL NUMBER 1821F DESIGNATES A "MILITARIZED" PLUG -IN (ONE MEETING STRINGENT ENVIRONMENTAL SPECIFICATIONS); THAT THE LISTING OF SUCH NUMBER IN THE SUBJECT PURCHASE DESCRIPTION MADE "MILITARIZATION" A SALIENT CHARACTERISTIC OF YOUR BRAND NAME MODEL; THAT "EQUAL" BIDDERS WERE THEREFORE REQUIRED TO PROPOSE AT LEAST ONE MILITARY PLUG-IN IN ORDER TO HAVE THEIR PRODUCTS CONSIDERED EQUAL IN ALL "MATERIAL RESPECTS" TO YOUR BRAND NAME MODEL; THAT TEKTRONIX'S OFFER IN THE SUBJECT PROCUREMENT DID NOT CONFORM TO THIS REQUIREMENT; THAT YOU WOULD HAVE BID A LESS EXPENSIVE PLUG-IN IF YOU HAD KNOWN THAT MILITARIZATION WAS NOT CONSIDERED A SALIENT FEATURE OF YOUR MODEL; AND THAT TEKTRONIX'S ALTERNATE BID SHOULD THEREFORE HAVE BEEN CONSIDERED NONRESPONSIVE. YOU FURTHER STATE THAT YOUR ARGUMENT IS SUPPORTED BY A PRIOR AWARD MADE BY THE SAME PROCURING ACTIVITY TO TEKTRONIX UNDER AN IDENTICAL "BRAND NAME OR EQUAL PURCHASE" DESCRIPTION.

THE DEPARTMENT STATES THAT THE PERFORMANCE CHARACTERISTICS IN PARAGRAPH 2.4, SECTION F, OF THE IFB INDICATED THE QUALITY AND PERFORMANCE REQUIRED OF "EQUAL" PRODUCTS; THAT THE USE OF THE MODEL NUMBER FOR YOUR MILITARY PLUG-IN WAS NOT INTENDED TO MAKE "MILITARIZATION" A SALIENT CHARACTERISTIC OF YOUR MODEL; AND THAT TEKTRONIX'S ITEM WAS PROPERLY JUDGED EQUAL IN ALL MATERIAL RESPECTS TO YOUR BRAND NAME PRODUCT, SINCE IT MET THE SALIENT CHARACTERISTICS LISTED IN THE IFB.

WE HAVE CONSISTENTLY HELD THAT BIDDERS OFFERING "EQUAL" MODELS SHOULD NOT HAVE TO GUESS AT THE MATERIAL CHARACTERISTICS OF THE BRAND NAME ITEMS AGAINST WHICH THE EQUALITY OF THEIR MODELS WILL BE ADMINISTRATIVELY DETERMINED IN ACCORDANCE WITH THE TERMS OF THE STANDARD "BRAND NAME OR EQUAL" CLAUSE. 49 COMP. GEN. 274, 276 (1969). TO THIS END, ASPR 1- 1206.2(B) REQUIRES THAT BIDDERS BE ADVISED IN THE SOLICITATION OF THE SALIENT FEATURES OR CHARACTERISTICS OF THE REFERENCED ITEM WHICH THEY ARE REQUIRED TO MEET. IN VIEW THEREOF, A BRAND NAME OR EQUAL PURCHASE DESCRIPTION WHICH FAILS TO LIST A FEATURE DEEMED ESSENTIAL BY THE PROCURING ACTIVITY IS DEFECTIVE. SEE 49 COMP. GEN. 347, 350 (1969).

IN THIS REGARD, IT IS OUR OPINION THAT PARAGRAPH 2.3, COMPOSITION, IN SECTION F OF THE IFB CONVEYED ONLY A COMPLETE IDENTIFICATION OF THE COMPONENTS OF YOUR BRAND NAME PRODUCT; THAT THE PARAGRAPH DID NOT PURPORT TO DESIGNATE "MILITARIZATION" AS A SALIENT CHARACTERISTIC OF YOUR BRAND NAME MODEL; AND THAT UNDER THE TERMS OF THE "BRAND NAME OR EQUAL" CLAUSE, YOU SHOULD HAVE KNOWN THAT YOU WERE FREE TO OFFER A LESS EXPENSIVE COMMERCIAL PLUG-IN, INSTEAD OF YOUR MILITARY PLUG-IN, SO LONG AS THE COMMERCIAL MODEL MET THE SALIENT CHARACTERISTICS OF THE IFB.

WITH RESPECT TO YOUR ARGUMENT THAT A PRIOR AWARD TO TEKTRONIX FOR OSCILLOSCOPES WITH MILITARIZED, PLUG-IN FEATURES UNDER AN IDENTICAL "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION SHOWS THAT THE CONTRACTING AGENCY CONSIDERED "MILITARIZATION" TO BE A SALIENT FEATURE, THE DEPARTMENT REPORTS THAT SUCH AWARD WAS BASED ON THE COMPANY'S COMPLIANCE WITH THE LISTED PERFORMANCE CHARACTERISTICS, RATHER THAN ON THE SUBMISSION OF EQUIPMENT WITH MILITARIZED FEATURES. BASED ON OUR REVIEW OF THE RECORD AND OUR ANALYSIS OF THE PURCHASE DESCRIPTION IN QUESTION, WE MUST AGREE WITH THIS POSITION. FURTHER, IT IS OUR OPINION THAT AN "EQUAL" BIDDER IS FREE TO OFFER A PRODUCT WITH FEATURES IN EXCESS OF THOSE DEEMED SALIENT, AND THAT THE GOVERNMENT'S ACCEPTANCE OF SUCH "EQUAL" BID DOES NOT THEREBY RETROACTIVELY ALTER THE LIST OF SALIENT FEATURES.

IN THIS CONNECTION, YOU ALSO QUESTION HOW TEKTRONIX HAD THE FORESIGHT TO SUBMIT AN ALTERNATE BID UNDER IFB -0205. WE HAVE NO WRITTEN REPLY FROM THE COMPANY ON THIS QUESTION. IT IS OUR OPINION, HOWEVER, THAT ALL BIDDERS WERE ADVISED BY THE TERMS OF THE IFB THAT "MILITARIZATION" OF ONE PLUG-IN WAS NOT A FEATURE DEEMED ESSENTIAL TO THE GOVERNMENT'S NEEDS, AND THAT BIDDERS WERE THEREFORE PERMITTED TO SUBMIT "EQUAL" PRODUCTS WITHOUT MILITARIZED PLUG-IN FEATURES.

YOU ALSO ALLEGE THAT IF THE OPTION QUANTITY HAD BEEN CONSIDERED, YOUR BID WOULD HAVE BEEN LOWER THAN THE "EQUAL" BID. IN RELY, THE DEPARTMENT STATES THAT NOTE B OF THE SCHEDULE OF THE IFB EXPRESSLY PROVIDED THAT "EACH OFFER WILL BE EVALUATED ON THE BASIS OF THE QUANTITY TO BE AWARDED EXCLUSIVE OF THE OPTION QUANTITY," AND THAT CONSIDERATION OF BIDDERS' OPTION PRICES WAS THEREBY PRECLUDED. IN VIEW THEREOF, WE SEE NO BASIS FOR OBJECTION TO THE AGENCY'S FAILURE TO INCLUDE OPTION QUANTITIES IN THE BID EVALUATION.

FOR THE REASONS SET FORTH ABOVE YOUR PROTEST MUST BE DENIED.