B-180900, JUN 18, 1974

B-180900: Jun 18, 1974

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

REJECTION OF BID OFFERING TO FURNISH "EQUAL" EQUIPMENT IN RESPONSE TO BRAND NAME OR EQUAL PURCHASE DESCRIPTION WAS PROPER SINCE DESCRIPTIVE DATA SUBMITTED WITH BID WAS AMBIGUOUS. WAS INSUFFICIENT TO PERMIT DETERMINATION THAT OFFERED EQUIPMENT WOULD CONFORM TO SALIENT CHARACTERISTICS OF BRAND NAME EQUIPMENT. FAA REJECTED EDO'S BID BECAUSE EDO'S DESCRIPTIVE DATA EITHER WAS AMBIGUOUS. OR WAS INSUFFICIENT TO PERMIT FAA TO DETERMINE IF EDO'S PRODUCT WOULD CONFORM TO THE SALIENT CHARACTERISTICS IN CERTAIN OTHER RESPECTS. NO DETAILED SPECIFIC RESPONSE IS INCLUDED. WHERE THERE ARE DEVIATIONS. THESE ITEMS HAVE A DETAILED SPECIFIC RESPONSE EXPLAINING HOW IT MEETS OR EXCEEDS THE 'OR EQUAL' CLAUSE.".

B-180900, JUN 18, 1974

REJECTION OF BID OFFERING TO FURNISH "EQUAL" EQUIPMENT IN RESPONSE TO BRAND NAME OR EQUAL PURCHASE DESCRIPTION WAS PROPER SINCE DESCRIPTIVE DATA SUBMITTED WITH BID WAS AMBIGUOUS, WAS INSUFFICIENT TO PERMIT DETERMINATION THAT OFFERED EQUIPMENT WOULD CONFORM TO SALIENT CHARACTERISTICS OF BRAND NAME EQUIPMENT, AND INDICATED NONCOMPLIANCE WITH THREE SALIENT CHARACTERISTICS.

TO EDO COMMERCIAL CORPORATION:

THIS CASE CONCERNS THE PROPRIETY OF THE REJECTION OF A BID SUBMITTED ON AN "EQUAL" BASIS IN RESPONSE TO A BRAND NAME OR EQUAL PURCHASE DESCRIPTION. EDO COMMERCIAL CORPORATION (EDO) SUBMITTED THE LOW BID IN RESPONSE TO THE FEDERAL AVIATION ADMINISTRATION'S (FAA) INVITATION FOR BIDS (IFB) NO. WA5M-4-7431B1, WHICH SOLICITED BIDS TO FURNISH VHF OMNIRANGE EQUIPMENT ON THE BASIS OF "WILCOX MODEL 476B OR EQUAL." THE IFB CONTAINED A BRAND NAME OR EQUAL CLAUSE WHICH REQUIRED BIDDERS PROPOSING TO FURNISH AN "EQUAL" PRODUCT TO FURNISH WITH THE BID DESCRIPTIVE MATERIAL TO ENABLE THE PURCHASING ACTIVITY TO DETERMINE WHETHER THE PRODUCT OFFERED MET THE SALIENT CHARACTERISTICS OF THE IFB AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSED TO FURNISH. THE BIDDER PROPOSED TO FURNISH ITS MODEL NO. 780-205-D AS EQUAL TO THE BRAND NAME MODEL. HOWEVER, FAA REJECTED EDO'S BID BECAUSE EDO'S DESCRIPTIVE DATA EITHER WAS AMBIGUOUS, REVEALED A PRODUCT WHICH IN SOME RESPECTS DID NOT CONFORM TO THE LISTED SALIENT CHARACTERISTICS, OR WAS INSUFFICIENT TO PERMIT FAA TO DETERMINE IF EDO'S PRODUCT WOULD CONFORM TO THE SALIENT CHARACTERISTICS IN CERTAIN OTHER RESPECTS.

EDO SUBMITTED WITH ITS BID TWO TECHNICAL BOOKLETS, A SET OF SCHEMATICS, AND A 3-1/2 PAGE STATEMENT PURPORTING TO SHOW HOW EDO'S "MODEL 780 VOR" MET OR EXCEEDED THE SPECIFICATIONS WHICH CONSISTED OF A SIX PAGE LISTING OF SALIENT CHARACTERISTICS. EDO'S STATEMENT INCLUDED THE FOLLOWING LANGUAGE:

"IN ANY ITEM WHERE THE EDO EQUIPMENT MEETS OR EXCEEDS THE SPECIFICATION, NO DETAILED SPECIFIC RESPONSE IS INCLUDED. WHERE THERE ARE DEVIATIONS, THESE ITEMS HAVE A DETAILED SPECIFIC RESPONSE EXPLAINING HOW IT MEETS OR EXCEEDS THE 'OR EQUAL' CLAUSE."

THERE FOLLOWED EDO'S "SPECIFIC RESPONSE TO THE SPECIFICATIONS," WHICH PARALLELED THE LISTING OF SALIENT CHARACTERISTICS AND CONTAINED EITHER BLANKET STATEMENTS THAT EDO'S PRODUCT WOULD MEET OR EXCEED THE SPECIFICATIONS OR MORE DETAILED DESCRIPTIONS OF HOW IT WOULD DO SO.

THE FAA REPORTS THAT ALTHOUGH EDO, IN ITS BID, OFFERED ITS MODEL 780 205- D, THE DESCRIPTIVE LITERATURE ACCOMPANYING THE BID REFERRED ONLY TO THE "EDO 780 VOR SERIES". THE FAA FURTHER REPORTS THAT THE PRODUCT DESCRIBED IN EDO'S LITERATURE "DIFFERS IN MANY PARTICULARS" FROM THE SALIENT CHARACTERISTICS, THAT "IN NO CASE DOES THE BIDDER DESCRIBE EXACTLY HOW HE PROPOSES TO MODIFY THE EXISTING PRODUCT TO CONFORM" TO THE SALIENT CHARACTERISTICS AND THAT IT IS "OFTEN NOT POSSIBLE TO ESTABLISH FROM THE TECHNICAL DESCRIPTION, WHETHER THE PRODUCT MEETS" THOSE CHARACTERISTICS. SIXTEEN EXAMPLES OF REQUIREMENTS NOT SUFFICIENTLY OR SPECIFICALLY ADDRESSED ARE CITED BY FAA, ALONG WITH SPECIFIC EXAMPLES OF AMBIGUITIES RESULTING FROM EDO'S GENERAL STATEMENTS THAT THE SALIENT CHARACTERISTICS WILL BE MET EVEN THOUGH THE TECHNICAL DESCRIPTIVE DATA INDICATES OTHERWISE. THE FAA ALSO POINTS TO THREE SALIENT CHARACTERISTICS (A LOCAL CONTROL UNIT, AN RF DISTRIBUTION UNIT, AND PHASE COMPENSATION NETWORK) WHICH EDO DID NOT PROPOSE TO FURNISH AT ALL.

EDO CLAIMS THAT ITS BID SHOULD BE CONSIDERED RESPONSIVE BECAUSE ITS EQUIPMENT "SATISFIES THE 'OR EQUAL' REQUIREMENT IN THAT IT PERFORMS THE SAME FUNCTIONS EQUALLY AS WELL."

HOWEVER, THE RECORD AFFORDS US NO BASIS FOR DISAGREEING WITH FAA'S POSITION THAT IT WAS UNABLE TO DETERMINE FROM THE DATA SUBMITTED WHETHER EDO'S PRODUCT CONFORMED TO THE SALIENT CHARACTERISTICS. IN THIS RESPECT, WE AGREE WITH FAA'S VIEW THAT THE DISCREPANCIES BETWEEN EDO'S TECHNICAL LITERATURE AND ITS 3-1/2 PAGE STATEMENT OF SPECIFICATION COMPLIANCE INDICATED EDO'S INTENTION TO OFFER ITS REGULAR COMMERCIAL PRODUCT MODIFIED TO MEET THE REQUIREMENTS OF THE SOLICITATION. HOWEVER, WHILE EDO'S BID STATED THAT ITS MODEL WOULD MEET THE SPECIFICATION REQUIREMENTS, THE BID DID NOT INCLUDE A CLEAR DESCRIPTION OF PROPOSAL MODIFICATIONS TO THE EXISTING PRODUCT NOR WAS THE TECHNICAL MATERIAL MARKED TO SHOW SUCH MODIFICATIONS. IN ADDITION, AS INDICATED ABOVE, EDO OFFERED A PRODUCT WHICH CLEARLY DID NOT CONFORM TO THREE OF THE STATED SALIENT CHARACTERISTICS. ALTHOUGH EDO INDICATED IN ITS BID THAT COMPLIANCE WITH THE THREE CHARACTERISTICS WAS UNNECESSARY BECAUSE THE FUNCTIONS OF THESE CHARACTERISTICS WERE PROVIDED BY ITS 780 SERIES VOR, WE HAVE HELD THAT PARTICULAR FEATURES OF A BRAND NAME PRODUCT THAT ARE IDENTIFIED IN A BRAND NAME OR EQUAL PURCHASE DESCRIPTION MUST BE PRESUMED TO BE MATERIAL, ESSENTIAL NEEDS OF THE GOVERNMENT. 51 COMP. GEN. 247 (1971); B-179762, B- 178718, MAY 15, 1974. SINCE EDO HAS NOT OFFERED ANY EVIDENCE WHICH SHOWS THAT THE GOVERNMENT'S NEEDS WERE OVERSTATED IN THE IFB, WE MUST CONCLUDE ON THE BASIS OF THE RECORD BEFORE US THAT EDO'S DESCRIPTIVE DATA, INDICATING NONCOMFORMANCE WITH THE GOVERNMENT'S STATED MINIMUM NEEDS, PROVIDED A PROPER BASIS FOR REJECTION OF EDO'S BID.

THEREFORE, FOR THE FOREGOING REASONS, THE PROTEST IS DENIED.