B-177626, APR 3, 1973

B-177626, APR 3, 1973

BID PROTEST - TIMELINESS - "BRAND NAME OF EQUAL" - NONRESPONSIVE BID DENIAL OF PROTEST BY INTER-COMPUTER ENTERPRISES, INC., AGAINST THE AWARD OF A CONTRACT FOR AN ITEM UNDER AN IFB ISSUED BY THE U.S. NAVAL ORDNANCE LABORATORY, SILVER SPRING, MD. PROTESTANT'S CONTENTION THAT THE SPECIFICATIONS WERE OVERLY RESTRICTIVE IS UNTIMELY SINCE IT WAS NOT RAISED PRIOR TO BID OPENING, AND CONSEQUENTLY IT WILL NOT BE CONSIDERED NOW. SECTION 20.2(A), INTERIM BID PROTEST PROCEDURES AND STANDARDS. SINCE THE OFFERED PRODUCT DID NOT CONFORM TO THE PERFORMANCE SPECIFIED TO BE MATERIAL AND ESSENTIAL, IT WAS NOT EQUAL TO THE BRAND NAME ARTICLE, AND THE BID COULD NOT HAVE BEEN ACCEPTED WITHOUT A WAIVER OF THE ADVERTISED SPECIFICATIONS WHICH WOULD HAVE BEEN IMPROPER. 51 COMP. GEN. 237 (1971).

TO INTER-COMPUTER ELECTRONICS, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 19, 1973, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF CONTRACT ON ITEM 0002 TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS (IFB) N60921-73-B-0098, ISSUED BY THE UNITED STATES NAVAL ORDNANCE LABORATORY, SILVER SPRING, MARYLAND.

ITEM 0002, ADDED TO THE IFB BY AMENDMENT, SOLICITED BIDS FURNISHING A "BIOMATION MODEL 8100 OR EQUAL" TRANSIENT RECORDER. THE SALIENT CHARACTERISTICS OF ITEM 0002 WERE ADDED TO THE IFB BY THE AMENDMENT OF SECTION F OF THE IFB. THE PREAMBLE TO SECTION F STATED:

THE FOLLOWING CHARACTERISTICS ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. THESE CHARACTERISTICS WILL BE USED BY THE GOVERNMENT FOR EVALUATION PURPOSES TO DETERMINE WHETHER "EQUAL PRODUCTS" OFFERED IN ACCORDANCE WITH THE ATTACHED CLAUSE ENTITLED "BRAND NAME OR EQUAL" "(1961 NOV)" ARE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCT REFERENCED HEREIN.

IN THE "BRAND NAME OR EQUAL" CLAUSE CITED IN THE PREAMBLE, BIDDERS WERE SPECIFICALLY ADVISED THAT IF THEY PROPOSED TO FURNISH AN "EQUAL" PRODUCT, THE EVALUATION OF THE BID AND THE DETERMINATION AS TO EQUALITY OF THE PRODUCT OFFERED WOULD BE THE RESPONSIBILITY OF THE GOVERNMENT AND WOULD BE BASED ON INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN HIS BID, AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. IN ADDITION, IF THE BIDDER PROPOSED TO MODIFY A PRODUCT SO AS TO MAKE IT CONFORM TO THE REQUIREMENTS OF THE IFB, HE WAS REQUIRED TO INCLUDE IN THE BID A CLEAR DESCRIPTION OF THE PROPOSED MODIFICATIONS AND TO MARK CLEARLY ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS.

INTER-COMPUTER ELECTRONICS, INC. (ICE), OFFERED ITS "PULSE AND TRANSIENT RECORDER NO. PTR-9200" FOR ITEM 0002 AND SUBMITTED DETAILED SPECIFICATIONS DESCRIBING THE PERFORMANCE CHARACTERISTICS OF THE EQUIPMENT. BY LETTER DATED DECEMBER 13, 1972, ICE WAS ADVISED THAT THE OFFERED MODEL DID NOT COMPLY WITH SECTIONS F.2.6, F.2.10 AND F.2.11 OF THE SALIENT CHARACTERISTICS. THEREFORE, THE ICE LOW BID WAS REJECTED AS NONRESPONSIVE.

ICE HAS PROTESTED THE DETERMINATION THAT THE BID WAS NONRESPONSIVE. FURTHER, ICE CONTENDS THAT THE DESIGN FEATURES REFLECTED BY THE CITATION OF "BIOMATION MODEL 8100" MADE THE IFB SO RESTRICTIVE AS TO PREVENT COMPETITION. SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS STATES THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING ARE TO BE FILED PRIOR TO BID OPENING. CONSEQUENTLY, THE PROTEST ON THE LATTER ISSUE HAVING BEEN MADE AFTER BID OPENING AND AWARD IS UNTIMELY AND WILL NOT BE CONSIDERED.

ICE HAS MAINTAINED THAT THE MODEL PTR-9200 WITH THE ATTENDANT SPECIFICATIONS IS IN ALL RESPECTS FULLY COMPLIANT WITH ALL THE PROVISIONS OF THE IFB AND THAT THE PERFORMANCE OF THE EQUIPMENT IN FACT EXCEEDS SEVERAL OF THE GOVERNMENT'S REQUIREMENTS. NEVERTHELESS, THE PROCUREMENT ACTIVITY TECHNICAL PERSONNEL EVALUATED THE DATA FURNISHED WITH THE BID AND FOUND THAT IT DID NOT COMPLY WITH SECTIONS F.2.6, F.2.10 AND F.2.11 OF THE IFB WHICH WERE LISTED AS ESSENTIAL CHARACTERISTICS OF THE ITEM. SECTION F.2.6, FOR EXAMPLE, THE REQUIREMENT FOR TWO WIDELY DIFFERENT SPEEDS OF 1 MILLISECOND AND 20 SECONDS WERE CLEARLY STATED, BUT THE OFFERED PRODUCT HAS SPEEDS OF 14 MILLISECONDS AND 56.3 SECONDS. SINCE THE OFFERED PRODUCT DID NOT CONFORM TO THE PERFORMANCE SPECIFIED TO BE MATERIAL AND ESSENTIAL, IT WAS NOT EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME ARTICLE, AND THE ACCEPTANCE OF THE BID COULD NOT HAVE BEEN ACCOMPLISHED WITHOUT A WAIVER OF THE ADVERTISED SPECIFICATIONS WHICH WOULD HAVE BEEN IMPROPER. 51 COMP. GEN. 237, 240 (1971). ICE NOW OFFERS TO MEET THE ESSENTIAL CHARACTERISTICS IN SECTION F.2.6. HOWEVER, MODIFICATION OF THE PRODUCT TO CONFORM TO THE "OR EQUAL" REQUIREMENT WAS REQUIRED BY THE TERMS OF THE IFB TO BE ESTABLISHED IN THE TECHNICAL DATA SUBMITTED WITH THE BID.

SINCE THE BID WAS NONRESPONSIVE IN AT LEAST ONE RESPECT, IT IS NOT NECESSARY TO CONSIDER WHETHER IT WAS OTHERWISE RESPONSIVE. ACCORDINGLY, THE CONTENTIONS REGARDING THE OTHER SALIENT CHARACTERISTICS THE PROCURING ACTIVITY DETERMINED THE TECHNICAL INFORMATION DID NOT MEET NEED NOT BE CONSIDERED.

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.