B-180948(1), MAY 17, 1974

B-180948(1): May 17, 1974

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PROTEST THAT LOW BIDDER WHO TOOK NO EXCEPTION TO IFB WOULD NOT SUPPLY CONFORMING ARTICLES IS NOT SUSTAINED SINCE LOW BID CONFORMED TO REQUIREMENTS OF IFB AND PROCURING ACTIVITY EXERCISED TECHNICAL JUDGMENT IN A REASONABLE MANNER THAT BID PRODUCT COULD SATISFY MINIMUM NEEDS STATED IN IFB. CAMBRIDGE WAS THE SECOND LOW BIDDER. ZELLER WAS TELEPHONED ON MARCH 4. THIS INQUIRY WAS SATISFIED BY LETTER OF MARCH 6. CHALLENGES WERE RECEIVED FOR THE WORD PREFIX "HY. SERVODYNE WAS ADVISED BY ITS COUNSEL TO AVOID THE USE OF PRODUCT NAMES THAT WERE CHALLENGED. THE BROCHURES SUBMITTED WERE COPIES OF THE ART WORK THEN IN PROGRESS WHICH SHOWED THE NEW PRODUCT DESIGNATION. IT WAS DETERMINED THAT UNI-PAK 85 AND 85 S/A AIR FILTERS COULD SATISFY THE IFB REQUIREMENTS AND AWARD WAS MADE TO ZELLER ON MARCH 19.

B-180948(1), MAY 17, 1974

PROTEST THAT LOW BIDDER WHO TOOK NO EXCEPTION TO IFB WOULD NOT SUPPLY CONFORMING ARTICLES IS NOT SUSTAINED SINCE LOW BID CONFORMED TO REQUIREMENTS OF IFB AND PROCURING ACTIVITY EXERCISED TECHNICAL JUDGMENT IN A REASONABLE MANNER THAT BID PRODUCT COULD SATISFY MINIMUM NEEDS STATED IN IFB.

TO CAMBRIDGE FILTER CORP.:

THE ARCHITECT OF THE CAPITOL (ARCHITECT) FORWARDED FOR OUR CONSIDERATION THE PROTEST OF THE CAMBRIDGE FILTER CORPORATION (CAMBRIDGE) THAT THE HIGH EFFICIENCY AIR FILTERS BID BY MR. CARL J. ZELLER (ZELLER), THE LOW BIDDER, WOULD NOT MEET THE SPECIFICATIONS CONTAINED IN INVITATION FOR BIDS (IFB) 7449, OPENED BY THE ARCHITECT ON FEBRUARY 20, 1974.

ZELLER SPECIFIED IN ITS BID THAT IT PROPOSED TO SUPPLY FILTERS MANUFACTURED BY THE SERVODYNE CORPORATION (SERVODYNE), UNI-PAK 85 AND 85 S/A. CAMBRIDGE WAS THE SECOND LOW BIDDER. THE IFB DID NOT REQUIRE THE SUBMISSION OF ANY DESCRIPTIVE LITERATURE WITH THE BIDS. THE ARCHITECT REPORTS THAT HIS INFORMATION ON FILE CONCERNING SERVODYNE INCLUDED THE UNI -PAK AND HY-PAK FILTERS, BUT NOT THE UNI-PAK S/A FILTERS. CONSEQUENTLY, ZELLER WAS TELEPHONED ON MARCH 4, 1974, AND REQUESTED TO PROVIDE TECHNICAL INFORMATION AND BROCHURES ON THE UNI-PAK S/A LINE OF AIR FILTERS. THIS INQUIRY WAS SATISFIED BY LETTER OF MARCH 6, 1974, WITH ATTACHED BROCHURE, FROM SERVODYNE.

THE MARCH 6 COVER LETTER, WITH THE BROCHURES, EXPLAINED THAT WHEN SERVODYNE SUBMITTED ITS PRODUCT NAMES TO THE UNITED STATES PATENT OFFICE FOR OPPOSITION PRIOR TO THE ISSUANCE OF A TRADEMARK, CHALLENGES WERE RECEIVED FOR THE WORD PREFIX "HY," AMONG OTHERS. SERVODYNE WAS ADVISED BY ITS COUNSEL TO AVOID THE USE OF PRODUCT NAMES THAT WERE CHALLENGED. SINCE UNI-PAK DID NOT RECEIVE ANY OPPOSITION, SERVODYNE REDESIGNATED ITS HY-PAK SERIES AS UNI-PAK WITH THE NOTATION S/A (SUPER AREA) TO AVOID CONFUSION WITH ITS REGULAR UNI-PAK LINE. THE BROCHURES SUBMITTED WERE COPIES OF THE ART WORK THEN IN PROGRESS WHICH SHOWED THE NEW PRODUCT DESIGNATION. AFTER REVIEW OF THIS INFORMATION, IT WAS DETERMINED THAT UNI-PAK 85 AND 85 S/A AIR FILTERS COULD SATISFY THE IFB REQUIREMENTS AND AWARD WAS MADE TO ZELLER ON MARCH 19, 1974.

BY LETTER DATED MARCH 20, 1974, TO THE ARCHITECT, CAMBRIDGE PROTESTED THE AWARD TO ZELLER ON THE BASIS THAT THE SERVODYNE AIR FILTERS WOULD NOT MEET THE SPECIFICATIONS CONTAINED IN THE IFB. IN AN ADVERTISED PROCUREMENT, AWARD IS REQUIRED TO BE MADE TO THE LOW RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION. WHETHER A BID CONFORMS TO THE INVITATION CONCERNS THE BIDDER'S OFFER TO LEGALLY BIND ITSELF ON THE FACE OF ITS BID TO SUPPLY A PRODUCT THAT WILL SATISFY THE REQUIREMENTS STATED IN THE IFB, IF ACCEPTED. 49 COMP. GEN. 289 (1969). A LIMITED EXCEPTION TO THIS RULE HAS EVOLVED IN THAT THE GOVERNMENT MAY REFER TO PUBLISHED COMMERCIAL LITERATURE IF IT WAS PUBLICLY AVAILABLE PRIOR TO BID OPENING. 50 COMP. GEN. 8 (1970); B-178377, JULY 25, 1973. WE NOTE THAT THE TECHNICAL SPECIFICATIONS LISTED FOR THE UNI-PAK S/A SERIES COINCIDE EXACTLY WITH THOSE FOR THE HY-PAK, WHICH, AS EXPLAINED ABOVE, THE UNI-PAK S/A SERIES NOMINALLY REPLACED. WHILE THE MARCH 6 LETTER DID STATE THAT THE BROCHURES FOR THE UNI-PAK S/A SERIES HAD NOT BEEN COMPLETED AT THE TIME OF BID OPENING, THE TECHNICAL INFORMATION UPON WHICH THE DETERMINATION OF PRODUCT CONFORMABILITY COULD BE MADE WAS PUBLICLY AVAILABLE PRIOR TO BID OPENING. THE CHANGE APPEARS TO BE SOLELY TO PRODUCT DESIGNATION AND DOES NOT CONCERN PRODUCT CHARACTERISTICS OR SPECIFICATION. THE BID FORM REQUIRES THAT A UNIT AND EXTENDED PRICE BE INSERTED IN SPACES CORRESPONDING WITH TECHNICAL DATA AS TO THE SIZE AND CHARACTERISTICS THAT WERE REQUIRED OF THE AIR FILTER. ONLY THE MANUFACTURER'S NAME AND CATALOG NUMBERS OF THE PROPOSED FILTERS WERE REQUIRED, NOT DESCRIPTIVE DATA. ZELLER RESPONDED THAT HE INTENDED TO PROVIDE "SERVODYNE CORPORATION - VARIOUS UNIPAK 85, 85 S/A." WHILE CAMBRIDGE ASSERTS THAT THE SERVODYNE AIR FILTERS WILL NOT MEET THE SPECIFICATIONS, ZELLER HAS TAKEN NO EXCEPTION TO THE STATED REQUIREMENTS. BASED UPON THE TECHNICAL DATA SUBMITTED BY SERVODYNE, THE ARCHITECT HAS DETERMINED THAT THE PROPOSED AIR FILTERS CAN MEET THE STATED MINIMUM NEEDS. SINCE THE PROCURING ACTIVITY IS BEST SITUATED TO DETERMINE WHAT WILL SATISFY ITS MINIMUM NEEDS FROM A TECHNICAL STANDPOINT, GAO WILL NOT QUESTION THE ACTIVITY'S JUDGMENT UNLESS IT IS SHOWN TO BE EXERCISED WITHOUT A REASONABLE BASIS. 49 COMP. GEN. 195 (1969). THAT STANDARD HAS NOT BEEN MET.

UNDER THE CIRCUMSTANCES, ZELLER HAS LEGALLY OBLIGATED HIMSELF TO DELIVER AIR FILTERS THAT SATISFY THE GOVERNMENT'S STATED NEEDS AND GAO CANNOT OBJECT TO AN AWARD ON THAT BASIS. MOREOVER, IN THE EVENT THAT THE AIR FILTERS DO NOT CONFORM TO THE TECHNICAL DATA UPON WHICH THE DETERMINATION OF RESPONSIVENESS WAS MADE, THE GOVERNMENT IS PROTECTED UNDER GENERAL PROVISIONS, SECTION 11, DEFAULT.

ACCORDINGLY, THE PROTEST IS DENIED.