B-178935, MAR 13, 1974

B-178935: Mar 13, 1974

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IT IS INCUMBENT UPON A BIDDER. TO PROVIDE WITH ITS BID SUCH DESCRIPTIVE DATA AS IS NECESSARY FOR THE CONTRACTING AGENCY TO DETERMINE THAT THE ITEMS OFFERED WILL MEET THE SPECIFIED NEEDS OF THE GOVERNMENT. KLEIN ASSOCIATES: INVITATION FOR BIDS (IFB) DACW57-73-B-0130 WAS ISSUED BY THE UNITED STATES ARMY. THE PERTINENT PORTIONS OF WHICH STATE AS FOLLOWS: "*** BIDS OFFERING 'EQUAL' PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE INVITATION FOR BIDS. "*** THE EVALUATION OF BIDS AND THE DETERMINATION AS TO EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE GOVERNMENT AND WILL BE BASED ON INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN HIS BID.

B-178935, MAR 13, 1974

IT IS INCUMBENT UPON A BIDDER, OFFERING OTHER THAN THE BRAND NAME ITEMS REQUESTED IN AN IFB WITH A BRAND NAME OR EQUAL PURCHASE DESCRIPTION, TO PROVIDE WITH ITS BID SUCH DESCRIPTIVE DATA AS IS NECESSARY FOR THE CONTRACTING AGENCY TO DETERMINE THAT THE ITEMS OFFERED WILL MEET THE SPECIFIED NEEDS OF THE GOVERNMENT, AND WHERE THE DESCRIPTIVE DATA INDICATES THAT "OR EQUAL" ITEM CONTAINS MAJOR DEVIATIONS FROM THE IFB SPECIFICATIONS, THE BID MUST BE REJECTED AS NONRESPONSIVE.

TO EG&G INTERNATIONAL, INC. AND KLEIN ASSOCIATES:

INVITATION FOR BIDS (IFB) DACW57-73-B-0130 WAS ISSUED BY THE UNITED STATES ARMY, CORPS OF ENGINEERS, PORTLAND, OREGON, TO PROCURE A SIDE SCANNING SONAR, DUAL CHANNEL, TOWED FISH TYPE EG&G COMPANY MODEL MARK 1B OR APPROVED EQUAL.

SECTION "F," PARAGRAPH 3 OF THE IFB STATED THE REQUIREMENTS REGARDING THE SUBMISSION OF BRAND NAME OR EQUAL PRODUCTS, THE PERTINENT PORTIONS OF WHICH STATE AS FOLLOWS:

"*** BIDS OFFERING 'EQUAL' PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE INVITATION FOR BIDS.

"*** THE EVALUATION OF BIDS AND THE DETERMINATION AS TO EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE GOVERNMENT AND WILL BE BASED ON INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN HIS BID, AS WELL AS OTHER INFORMATION, REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY."

IT IS REPORTED THAT TWO BIDS WERE RECEIVED IN RESPONSE TO THE IFB. THE LOW BID SUBMITTED BY KLEIN ASSOCIATES (KLEIN) OFFERED, AS AN EQUAL PRODUCT, ITS MODEL 400 SIDE-SCAN SONAR SYSTEM, WHICH, FOR REASONS LATER DISCUSSED, WAS CONSIDERED TO BE NONRESPONSIVE TO THE IFB REQUIREMENTS. THE OTHER BID SUBMITTED BY EG&G INTERNATIONAL, INC. (EG&G) FOR A MODEL MARK 1B SONAR SYSTEM WAS CONSIDERED TO BE RESPONSIVE, AND AWARD OF THE CONTRACT TO EG&G WAS RECOMMENDED.

WE CONCUR IN ARMY'S DECISION TO REJECT KLEIN'S BID AS NONRESPONSIVE. STATED IN THE IFB SECTION "F" PARAGRAPH 3(A) AND 3(C)(1), BIDS SUBMITTING "EQUAL" PRODUCTS MUST BE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCT; AND THIS DETERMINATION BY THE GOVERNMENT, AS TO THE EQUALITY OF THE PRODUCT, 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.

THE CONTRACTING OFFICER HAS REPORTED THAT KLEIN SUBMITTED AN "EQUAL" PRODUCT WHICH, ACCORDING TO THE DESCRIPTIVE DATA INCLUDED WITH ITS BID, CONTAINED TWO MATERIAL DEVIATIONS FROM THE IFB SPECIFICATIONS - A PEAK SOURCE LEVEL OF 124 DB INSTEAD OF THE REQUIRED 128 DB, AND A MAXIMUM OPERATIONAL SPEED OF 12 KNOTS INSTEAD OF THE REQUIRED 15 KNOTS. KLEIN, IN ASSERTING THAT THESE DISCREPANCIES COULD BE OVERLOOKED BY THE GOVERNMENT AS MINOR BID ERRORS, MAINTAINED THAT THEIR DATA SHEET WAS ONLY REPRESENTATIVE, AND THAT THEIR PRODUCT WOULD MEASURE UP TO ALL THE IFB REQUIREMENTS.

WE HAVE HELD THAT WHEN A BRAND NAME OR EQUAL PURCHASE DESCRIPTION IS USED IN AN IFB, IT MUST SET FORTH THE SALIENT CHARACTERISTICS OF THE REFERENCED ITEMS WHICH ARE NECESSARY TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT AS REQUIRED IN PARAGRAPH 1-1206.2(B) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), AND IT MUST INCLUDE THE BRAND NAME OR EQUAL CLAUSE PRESCRIBED BY ASPR 1-1206.3(B). IT IS INCUMBENT UPON EACH BIDDER OFFERING OTHER THAN THE BRAND NAME ITEMS TO PROVIDE WITH ITS BID SUCH DESCRIPTIVE DATA AS IS NECESSARY TO ENABLE THE CONTRACTING AGENCY TO DETERMINE THAT THE ITEMS OFFERED WILL MEET THE SPECIFIED NEEDS OF THE GOVERNMENT. BLANKET STATEMENT BY A BIDDER OFFERING TO MEET ALL SPECIFIED REQUIREMENTS DOES NOT SUBSTITUTE OR COMPENSATE FOR INADEQUATE DESCRIPTIVE DATA, AND REJECTION OF THE BID AS NONRESPONSIVE IS, THEREFORE, REQUIRED. SEE B- 174524, JANUARY 26, 1972; B-169482, SEPTEMBER 16, 1970; 45 COMP. GEN. 312, 316 (1965) AND 41 ID. 366 (1961).

THE CONTRACTING OFFICER'S REPORT FURTHER ELABORATES ON THE NONRESPONSIVENESS OF THE KLEIN PROPOSAL. IT APPEARED THAT KLEIN ATTEMPTED TO JUSTIFY THE DEVIATION IN THE SOURCE LEVEL OF THE TRANSDUCER ON GROUNDS THAT, SINCE A PLUS 10KHZ VARIATION WAS PERMITTED IN THE FREQUENCY LEVEL, IT WAS IMPLIED THAT A 10 PERCENT TOLERANCE COULD BE ASSUMED IN OTHER AREAS, EXCEPT WHERE SPECIFIC RESTRAINTS WERE SPELLED OUT. ARMY DENIES THAT ANY SUCH IMPLICATION EXISTS BETWEEN THE FREQUENCY AND THE POWER OUTPUT, AND STATES TO THE CONTRARY THAT A VARIATION OF PLUS 10KHZ WOULD NOT AFFECT THE QUALITY OF THE SIGNAL, BUT THE DIFFERENCE BETWEEN 124 DB AND 128 DB SOUND LEVELS CAN BE ILLUSTRATED BY THE DIFFERENCE IN LIGHT OUTPUT BETWEEN A 100-WATT LIGHT BULB AND A 40-WATT LIGHT BULB. THE SOURCE LEVEL IS THE SOUND FROM THE TRANSDUCER THAT HITS THE BOTTOM AND IS REFLECTED BACK IN VARYING DEGREES DEPENDING ON THE CONDITIONS OF THE WATER, THE DISTANCE TRAVELED BETWEEN TRANSDUCER AND BOTTOM, AND THE TYPE OF BOTTOM. UNDER ADVERSE CONDITIONS THIS DIFFERENCE COULD MEAN A GOOD RECORDING OR NO RECORDING AND IS, THEREFORE, A MAJOR DEVIATION FROM THE SPECIFICATIONS.

LIKEWISE, ARMY CONSIDERED THAT THE REDUCTION IN MAXIMUM OPERATIONAL SPEED OF THE SYSTEM FROM 15 TO 12 KNOTS WAS ALSO A MAJOR DEVIATION, SINCE A 20- PERCENT LOSS IN SPEED COULD CONTRIBUTE TO A 20-PERCENT LOSS IN TIME, AND A 20-PERCENT INCREASE IN COSTS. KLEIN'S SUGGESTION THAT THEIR DESCRIPTIVE DATA, WHICH INDICATED A MAXIMUM SPEED OF 12 KNOTS WAS ONLY REPRESENTATIVE, IS NOT CONVINCING. THE RESPONSIVENESS OF A BID MUST BE JUDGED FROM THE INFORMATION CONTAINED IN THE BID ITSELF, AND A NONRESPONSIVE BID CANNOT BE MADE RESPONSIVE AFTER BID OPENING. SEE 38 COMP. GEN. 819 (1959), 49 ID. 749 (1970).

OUR OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THE CONTRACTING AGENCY IS PRIMARILY RESPONSIBLE FOR DRAFTING PROPER SPECIFICATIONS WHICH ARE NOT UNDULY RESTRICTIVE OF COMPETITION, AND WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT. WE HAVE ALSO FREQUENTLY HELD THAT THE GOVERNMENT IS NOT REQUIRED TO PURCHASE EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE AGENCY, MEET ITS NEEDS. FROM THE RECORD BEFORE US, AND IN THE ABSENCE OF ANY EVIDENCE THAT THERE WAS REASONABLY AVAILABLE TO THE ARMY OTHER INFORMATION WHICH MIGHT HAVE ESTABLISHED THAT KLEIN'S SONAR UNITS DID, IN FACT, MEET THE REQUIREMENTS SET FORTH IN THE IFB, WE FIND NO LEGAL BASIS TO QUESTION THE CONTRACTING OFFICER'S CONCLUSIONS THAT KLEIN'S SONAR SYSTEM, WHICH WAS SUBMITTED AS AN "EQUAL" PRODUCT, DID NOT COMPLY WITH THE SALIENT CHARACTERISTICS OF THE IFB, AND THAT SUCH NONCOMPLIANCE CANNOT BE DISREGARDED.

ACCORDINGLY, THE PROTEST IS DENIED.