B-210023, JUL 1, 1983

B-210023: Jul 1, 1983

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AN AGENCY MAY USE THIS TERM TO INDICATE THAT A PROPOSAL WHICH FAILS TO COMPLY WITH CERTAIN SOLICITATION REQUIREMENTS IS TECHNICALLY UNACCEPTABLE. 2. THIS OFFICE WILL NOT DISTURB A PROCURING AGENCY'S DETERMINATION TO EXCLUDE AN OFFEROR FROM THE COMPETITIVE RANGE IF THAT DETERMINATION IS REASONABLE. 3. SOLICITATION PROVISION STATING THAT A PROPOSAL WOULD BE CONSTRUED AS OFFERING THE BRAND NAME PRODUCT UNLESS IT CLEARLY SHOWED THE OFFEROR'S INTENT TO SUPPLY AN EQUAL ITEM IS NOT APPLICABLE WHERE PROTESTER CLEARLY INTENDED TO SUPPLY AN EQUAL ITEM. AN AGENCY IS NOT REQUIRED TO CONDUCT NEGOTIATIONS WITH AN OFFEROR WHO SUBMITS A TECHNICALLY UNACCEPTABLE PROPOSAL. 6. PROTEST THAT SPECIFICATIONS WERE AMBIGUOUS AND REQUIRED INFORMATION THAT WAS NOT NECESSARY TO EVALUATE PROPOSALS IS DISMISSED AS UNTIMELY WHEN NOT RECEIVED BEFORE THE CLOSING DATE FOR RECEIPT OF PROPOSALS.

B-210023, JUL 1, 1983

DIGEST: 1. ALTHOUGH THE CONCEPT OF RESPONSIVENESS DOES NOT DIRECTLY APPLY TO A NEGOTIATED PROCUREMENT, AN AGENCY MAY USE THIS TERM TO INDICATE THAT A PROPOSAL WHICH FAILS TO COMPLY WITH CERTAIN SOLICITATION REQUIREMENTS IS TECHNICALLY UNACCEPTABLE. 2. THIS OFFICE WILL NOT DISTURB A PROCURING AGENCY'S DETERMINATION TO EXCLUDE AN OFFEROR FROM THE COMPETITIVE RANGE IF THAT DETERMINATION IS REASONABLE. 3. IN A BRAND NAME OR EQUAL PROCUREMENT, WHERE THE OFFEROR SUPPLIED ONLY THE NAMES OF EQUAL ITEMS WHICH IT INTENDED TO SUPPLY, WITHOUT ANY MODEL NUMBERS, THE AIR FORCE REASONABLY EXCLUDED THE OFFEROR FROM THE COMPETITIVE RANGE. 4. SOLICITATION PROVISION STATING THAT A PROPOSAL WOULD BE CONSTRUED AS OFFERING THE BRAND NAME PRODUCT UNLESS IT CLEARLY SHOWED THE OFFEROR'S INTENT TO SUPPLY AN EQUAL ITEM IS NOT APPLICABLE WHERE PROTESTER CLEARLY INTENDED TO SUPPLY AN EQUAL ITEM, BUT FAILED TO ADEQUATELY DESCRIBE THAT ITEM. 5. AN AGENCY IS NOT REQUIRED TO CONDUCT NEGOTIATIONS WITH AN OFFEROR WHO SUBMITS A TECHNICALLY UNACCEPTABLE PROPOSAL. 6. PROTEST THAT SPECIFICATIONS WERE AMBIGUOUS AND REQUIRED INFORMATION THAT WAS NOT NECESSARY TO EVALUATE PROPOSALS IS DISMISSED AS UNTIMELY WHEN NOT RECEIVED BEFORE THE CLOSING DATE FOR RECEIPT OF PROPOSALS.

B&D SUPPLY COMPANY OF ARIZONA, INC.:

B&D SUPPLY COMPANY OF ARIZONA, INC. (B&D), PROTESTS THE REJECTION OF ITS OFFER AS NONRESPONSIVE UNDER DEPARTMENT OF THE AIR FORCE (AIR FORCE) REQUEST FOR PROPOSALS (RFP) NO. F49642-82-R-1217.

IN ITS PROTEST OF DECEMBER 1, 1982, B&D ESSENTIALLY ALLEGES THAT IT COMPLIED WITH THE SOLICITATION'S REQUIREMENTS. IN ITS MARCH 8, 1983, RESPONSE TO THE AIR FORCE REPORT, B&D ADDITIONALLY ALLEGES THAT THE SPECIFICATIONS WERE AMBIGUOUS AND THAT IT SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO CURE ANY DEFECTS IN ITS PROPOSAL THROUGH NEGOTIATIONS.

WE DISMISS THE PROTEST IN PART AND DENY IT IN PART.

THE RFP, ISSUED ON A BRAND NAME OR EQUAL BASIS, REQUESTED PROPOSALS FOR A CONTRACTOR-OPERATED CIVIL ENGINEER SUPPLY STORE (COCESS). THE PURPOSE OF A COCESS IS TO PROVIDE BASE CIVIL ENGINEERING PERSONNEL WITH ELECTRICAL, PLUMBING AND OTHER SUPPLIES. UNDER THE RFP, PROPOSALS WERE TO BE SUBMITTED IN TWO PHASES. DURING THE FIRST PHASE, OFFERORS WERE TO IDENTIFY ITEMS ON WHICH THEY INTENDED TO OFFER EQUAL PRODUCTS. AFTER PHASE I, THE AIR FORCE NOTIFIED B&D THAT ITS PROPOSAL WAS NONRESPONSIVE BECAUSE IT DID NOT SUPPLY THE MAKE OR MODEL NUMBER OF OR OTHERWISE CLEARLY IDENTIFY EQUAL ITEMS WHICH IT INTENDED TO SUPPLY.

B&D PROTESTS THAT ITS BID WAS IMPROPERLY REJECTED AS NONRESPONSIVE. SUPPORT OF THIS CONTENTION, B&D RAISES SIX POINTS: (1) THE CONCEPT OF RESPONSIVENESS DOES NOT APPLY TO NEGOTIATED PROCUREMENTS; (2) IT COMPLIED WITH PARAGRAPH 28 BECAUSE IT PROVIDED THE BRAND NAME OF ITEMS FOR WHICH IT INTENDED TO SUPPLY EQUAL PRODUCTS; (3) IT WAS NOT NECESSARY TO SUPPLY A PART OR MODEL NUMBER BECAUSE THE REQUESTED ITEMS WERE COMMON EXPENDABLE REPLACEMENT PARTS; (4) IT FAILED TO SUPPLY MODEL OR PART NUMBERS FOR ONLY 2 PERCENT OF 8,000 ITEMS; (5) THE AIR FORCE SHOULD HAVE CONSTRUED ITS PROPOSAL AS OFFERING THE BRAND NAME ON ALL ITEMS; AND (6) IT SHOULD HAVE BEEN PERMITTED TO CORRECT ANY DEFICIENCIES IN ITS PROPOSAL DURING DISCUSSIONS.

WE AGREE THAT THE TERM RESPONSIVENESS IS NOT TECHNICALLY APPLICABLE TO A NEGOTIATED PROCUREMENT. CENTURY INDUSTRIES, INC., B-197302.2, MARCH 21, 1981, 81-1 CPD 397. HOWEVER, AN AGENCY MAY USE THIS TERM TO INDICATE THAT CERTAIN SOLICITATION REQUIREMENTS ARE MATERIAL AND A PROPOSAL WHICH FAILS TO INCLUDE THEM IS TECHNICALLY UNACCEPTABLE. TECHDYN SYSTEMS CORPORATION, B-206228, JUNE 28, 1982, 82-1 CPD 628. THUS, THE ISSUE IS WHETHER B&D WAS PROPERLY EXCLUDED FROM THE COMPETITIVE RANGE. SEE SELF-POWERED LIGHTING, LTD., B-195935, MARCH 13, 1980, 80-1 CPD 195.

WHETHER A PROPOSAL IS TECHNICALLY ACCEPTABLE IS WITHIN THE DISCRETION OF THE CONTRACTING AGENCY AND THIS OFFICE WILL NOT DISTURB THAT AGENCY'S DECISION TO EXCLUDE AN OFFEROR FROM THE COMPETITIVE RANGE UNLESS THAT DETERMINATION IS UNREASONABLE. TECHDYNE SYSTEMS CORPORATION, SUPRA. AS DISCUSSED BELOW, WE CANNOT CONCLUDE THAT THE DETERMINATION WAS UNREASONABLE.

PART IV, SECTION 6, PARAGRAPH 28, OF THE SOLICITATION PROVIDED IN PERTINENT PART:

"(A) *** SOLICITATIONS OFFERING 'EQUAL' PRODUCTS INCLUDING PRODUCTS OF THE BRAND NAME MANUFACTURER OTHER THAN THE ONE DESCRIBED BY THE BRAND NAME WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE SOLICITATION AND ARE DETERMINED BY THE GOVERNMENT TO MEET FULLY THE SALIENT CHARACTERISTIC REQUIREMENTS REFERENCED IN THE SOLICITATION.

"(C) (1) IF THE OFFEROR PROPOSES TO FURNISH AN 'EQUAL' PRODUCT, THE BRAND NAME, IF ANY, OF THE PRODUCT TO BE FURNISHED SHALL BE INSERTED IN THE SPACE PROVIDED IN THE SOLICITATION OR SUCH PRODUCT SHALL BE OTHERWISE CLEARLY IDENTIFIED IN THE SOLICITATION. ***"

IN A BRAND NAME OR EQUAL PROCUREMENT, THE OFFEROR MUST ESTABLISH THAT AN OFFERED EQUAL PRODUCT WILL MEET THE GOVERNMENT'S NEEDS. SEE INFORMATICS, INC., B-194926, JULY 2, 1980, 80-2 CPD 8. IN THE PRESENT CASE, THE RFP CLEARLY STATED THAT OFFERORS WOULD BE CHARGED WITH THIS RESPONSIBILITY. PARAGRAPH 28 OF SECTION "L" WARNED OFFERORS TO PROVIDE ENOUGH INFORMATION FOR THE AIR FORCE TO DETERMINE IF AN OFFERED PRODUCT WAS EQUAL TO THE REQUIRED BRAND NAME PRODUCT. PARAGRAPH 28 ALSO REQUIRED IDENTIFICATION BY MAKE AND MODEL NUMBER. ITEM 101 OF SECTION "B" INSTRUCTED OFFERORS TO FILL IN THE MANUFACTURERS, BRAND NAMES AND PART NUMBERS FOR EQUAL ITEMS WHICH IT WAS OFFERING TO FURNISH. FINALLY, THE CONTRACTING OFFICER ADVISED B&D BY LETTER DATED OCTOBER 13, 1982, THAT ITS OFFER DID NOT INCLUDE PART NUMBERS FOR SOME EQUAL ITEMS, BUT B&D FAILED TO CORRECT THE DEFICIENCY. DESPITE THESE WARNINGS AND INSTRUCTIONS, B&D CHOSE TO PROVIDE ONLY THE BRAND NAMES FOR EQUAL ITEMS WHICH IT WAS OFFERING. UNDER THESE CIRCUMSTANCES, WE CANNOT SAY THAT THE AIR FORCE UNREASONABLY DECIDED THAT IT DID NOT KNOW WHAT B&D WAS OFFERING AND, THEREFORE, COULD NOT EVALUATE B&D'S PROPOSAL. ACCORDINGLY, WE CANNOT OBJECT TO THE AIR FORCE'S DECISION TO REJECT B&D'S PROPOSAL AS UNACCEPTABLE.

OUR CONCLUSION IS NOT ALTERED BY B&D'S ALLEGATION THAT IT FAILED TO SUPPLY A MAKE OR MODEL NUMBER FOR 2 PERCENT OF 8,000 ITEMS. WHILE EACH OMISSION MAY HAVE BEEN SUBJECT TO CORRECTION THROUGH NEGOTIATIONS, IT WAS NOT UNREASONABLE FOR THE AIR FORCE TO CONCLUDE THAT IT COULD NOT EVALUATE B&D'S PROPOSAL DUE TO THE TOTAL NUMBER OF ITEMS (160) FOR WHICH B&D FAILED TO SUPPLY THE REQUIRED INFORMATION. SEE INFORMATICS, INC., SUPRA.

B&D NEXT ALLEGES THAT IF ITS EQUAL ITEMS WERE NOT CLEARLY IDENTIFIED, THEN, PURSUANT TO SECTION "L," PARAGRAPH 28(B), ITS PROPOSAL SHOULD HAVE BEEN CONSTRUED AS OFFERING THE BRAND NAME FOR ALL ITEMS. PARAGRAPH 28(B) STATES:

"(B) UNLESS THE OFFEROR CLEARLY INDICATES THAT HE IS OFFERING AN 'EQUAL' PRODUCT, HIS OFFER SHALL BE CONSIDERED AS OFFERING THE BRAND NAME PRODUCT REFERENCED IN THE SOLICITATION."

TO FURTHER SUPPORT THIS ARGUMENT, B&D NOTES PARAGRAPH 29. THIS PARAGRAPH READS:

"DETERMINATION OF BRAND NAME OR EQUAL. SUBMISSION OF HIS OFFER, THE OFFEROR CERTIFIES THAT THE BRAND NAME OF ITEM PROPOSED MEETS OR EXCEEDS THE QUALITY AND CHARACTERISTICS REQUIRED IN SECTION 'L,' PARAGRAPH 28. THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY ITEM FAILING TO MEET THE STANDARDS AS SET FORTH, AND REQUIRE THE CONTRACTOR TO PROVIDE AN ACCEPTABLE EQUAL ITEM WITHIN THE CONTRACT TERMS AT THE ESTABLISHED CONTRACT PRICE. UPON CONTRACT AWARD, THE CONTRACTOR CERTIFIES THAT HE WILL PROVIDE THE BRAND NAME ITEM INCORPORATED IN THE CONTRACT. SUBSTITUTION OF OTHER BRANDS WITHOUT WRITTEN AUTHORIZATION OF THE CONTRACTING OFFICER IS PROHIBITED."

B&D ARGUES THAT THE AIR FORCE COULD EVALUATE ITS OFFER BECAUSE, UNDER PARAGRAPH 29, B&D WOULD BE BOUND TO PROVIDE THE BRAND NAME ITEM REQUESTED IF ITS SUBSTITUTE WAS NOT ACCEPTABLE TO THE GOVERNMENT.

WE FIND THAT B&D'S ARGUMENT IS BASED ON AN INCORRECT INTERPRETATION OF THE PARAGRAPH IN QUESTION. INITIALLY, PARAGRAPH 28 DOES SAY THAT AN OFFEROR WHO FAILS TO CLEARLY IDENTIFY AN EQUAL PRODUCT WILL BE CONSIDERED TO HAVE PROPOSED THE BRAND NAME PRODUCT. HOWEVER, SINCE B&D CLEARLY INDICATED THAT IT WAS OFFERING AN EQUAL ITEM, PARAGRAPH 28(B) DOES NOT APPLY. THE PURPOSE OF PARAGRAPH 29 IS TO INSURE THAT THE GOVERNMENT GETS ITEMS WHICH MEET ITS NEEDS. SINCE THE OFFEROR HAS CERTIFIED THAT THE PRODUCT IT OFFERED IS EQUAL TO THE BRAND NAME PRODUCT, PARAGRAPH 29 GIVES THE GOVERNMENT A REMEDY IF, AFTER AWARD, THE GOVERNMENT DETERMINES THAT THE OFFERED PRODUCT IS NOT EQUAL TO THE BRAND NAME PRODUCT. PARAGRAPH 29 STATES THAT THE CONTRACTOR, NOT THE OFFEROR, MAY BE REQUIRED TO SUPPLY AN ACCEPTABLE EQUAL ITEM. MOREOVER, THE CONTRACTOR IS REQUIRED TO SUPPLY THE BRAND NAME ITEM IT PROPOSED UNLESS THE AIR FORCE REQUIRES THE CONTRACTOR TO PROVIDE A SUBSTITUTE. THUS, THESE TWO PARAGRAPHS DO NOT REQUIRE THE GOVERNMENT TO EVALUATE B&D'S PROPOSAL AS IF THE BRAND NAME HAD BEEN OFFERED ON ALL ITEMS. IN THIS REGARD, WE HAVE HELD THAT A PROPOSAL IS NOT SUFFICIENT IF IT OFFERS TO SUPPLY THE BRAND NAME ITEM OR AN EQUAL ITEM. RATHER, THE OFFEROR MUST STATE THAT IT IS OFFERING THE BRAND NAME ITEM OR A SPECIFIC EQUAL ITEM. INFORMATICS, INC., SUPRA.

FINALLY, B&D HAS PROTESTED THAT THE SPECIFICATIONS WERE AMBIGUOUS AND THAT THE BIDDER SHOULD NOT HAVE BEEN REQUIRED TO SUPPLY MAKE AND MODEL NUMBERS FOR COMMON REPLACEMENT PARTS. THIS CLAIM CONCERNS IMPROPRIETIES IN THE SOLICITATION WHICH WERE REQUIRED TO BE FILED BEFORE OCTOBER 1, 1982, THE CLOSING DATE FOR RECEIPT OF PROPOSALS. SEE 4 C.F.R. SEC. 21.2 (B)(1) (1983). SINCE B&D DID NOT RAISE THIS ALLEGATION UNTIL ITS BID HAD BEEN REJECTED, WE DISMISS THIS PART OF THE PROTEST AS UNTIMELY. SEE ART SERVICES AND PUBLICATIONS, INCORPORATED, B-206523, JUNE 16, 1982, 82-1 CPD 595; CONTINENTAL WATER SYSTEMS CORPORATION, B-205970, JUNE 28, 1982, 82-1 CPD 627.

THE PROTEST IS DISMISSED IN PART AND DENIED IN PART.