B-215658.2, JAN 23, 1985, 85-1 CPD 85

B-215658.2: Jan 23, 1985

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BIDDER WHO SUBMITS BID ON AN "EQUAL" PRODUCT WITH A MODEL NUMBER INDICATED MAY SUBMIT DESCRIPTIVE DATA FOR THE "EQUAL" MODEL TO THE GOVERNMENT AFTER BID OPENING IF SUCH DATA WAS IN EXISTENCE PRIOR TO BID OPENING. THE AGENCY IS NOT OBLIGATED TO GO TO BIDDER AFTER OPENING TO OBTAIN DESCRIPTIVE DATA ON THE "EQUAL" PRODUCT. BID OF MANUFACTURER OF BRAND NAME WHICH BIDS MODEL NUMBER THAT REPRESENTS UPGRADED VERSION OF BRAND NAME PRODUCT IS RESPONSIVE UNDER BRAND NAME OR EQUAL SOLICITATION EVEN THOUGH BRAND NAME MODEL ITEM OFFERED BY BIDDER DID NOT HAVE THE IDENTICAL DESIGNATION AS THE BRAND NAME SOLICITED IN INVITATION. AGENCY DETERMINED THAT MODEL OFFERED WAS IN ESSENCE SAME BRAND NAME CALLED FOR IN INVITATION AND MET ALL INTENDED SALIENT CHARACTERISTICS.

B-215658.2, JAN 23, 1985, 85-1 CPD 85

BIDS - RESPONSIVENESS - BRAND NAME OR EQUAL PROCUREMENT DIGEST: 1. UNDER BRAND NAME OR EQUAL SOLICITATION, BIDDER WHO SUBMITS BID ON AN "EQUAL" PRODUCT WITH A MODEL NUMBER INDICATED MAY SUBMIT DESCRIPTIVE DATA FOR THE "EQUAL" MODEL TO THE GOVERNMENT AFTER BID OPENING IF SUCH DATA WAS IN EXISTENCE PRIOR TO BID OPENING. HOWEVER, THE AGENCY IS NOT OBLIGATED TO GO TO BIDDER AFTER OPENING TO OBTAIN DESCRIPTIVE DATA ON THE "EQUAL" PRODUCT. BIDS - RESPONSIVENESS - BRAND NAME OR EQUAL PROCUREMENT 2. BID OF MANUFACTURER OF BRAND NAME WHICH BIDS MODEL NUMBER THAT REPRESENTS UPGRADED VERSION OF BRAND NAME PRODUCT IS RESPONSIVE UNDER BRAND NAME OR EQUAL SOLICITATION EVEN THOUGH BRAND NAME MODEL ITEM OFFERED BY BIDDER DID NOT HAVE THE IDENTICAL DESIGNATION AS THE BRAND NAME SOLICITED IN INVITATION. AGENCY DETERMINED THAT MODEL OFFERED WAS IN ESSENCE SAME BRAND NAME CALLED FOR IN INVITATION AND MET ALL INTENDED SALIENT CHARACTERISTICS.

CENTRAL POWER ENGINEERING CORPORATION:

CENTRAL POWER ENGINEERING CORPORATION (CPC) PROTESTS THE AWARD OF A CONTRACT FOR FOUR SYNCHRONOUS MOTOR GENERATOR SETS (FREQUENCY CONVERTERS) UNDER A BRAND NAME OR EQUAL SOLICITATION ISSUED BY THE MARINE CORPS LOGISTICS BASE, ALBANY, GEORGIA (CORPS). CPC, THE LOW BIDDER, CONTENDS ITS BID IMPROPERLY WAS DETERMINED NONRESPONSIVE AND ASSERTS THAT TELEDYNE INC. (TELEDYNE), THE NEXT LOW BIDDER, IMPROPERLY RECEIVED THE AWARD. CPC OBJECTS TO THE DECISION OF THE CORPS TO ACCEPT DESCRIPTIVE INFORMATION FROM TELEDYNE TO EXPLAIN ITS BID WHEN THE SAME OPPORTUNITY WAS NOT GIVEN TO CPC.

WE DENY THE PROTEST.

INVITATION FOR BIDS (IFB) NO. M67004-84-B-0115 WAS ISSUED ON MAY 2, 1984, AND INCLUDED A DETAILED LIST OF CHARACTERISTICS AND TECHNICAL REQUIREMENTS. THE INVITATION ALSO INCLUDED A BRAND NAME OR EQUAL CLAUSE WHICH PROVIDED THAT "BIDS OFFERING EQUAL PRODUCTS INCLUDING PRODUCTS OF THE BRAND NAME MANUFACTURER OTHER THAN THE ONE DESCRIBED BY BRAND NAME WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO MEET FULLY THE SALIENT CHARACTERISTICS REQUIREMENTS REFERENCED IN THE INVITATION FOR BIDS." THE CLAUSE ALSO ADVISED BIDDERS THAT EVALUATION OF BIDS AND THE DETERMINATION AS TO THE EQUALITY OF THE PRODUCT OFFERED WOULD BE BASED ON "INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN HIS BID AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PROCURING ACTIVITY." CONJUNCTION WITH THIS ADVICE, BIDDERS WERE CAUTIONED THAT:

"... TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE OFFEROR MUST FURNISH AS A PART OF HIS BID ALL DESCRIPTIVE MATERIAL (SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER INFORMATION) NECESSARY FOR THE PURCHASING ACTIVITY TO (I) DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE SALIENT CHARACTERISTICS REQUIREMENTS OF THE INVITATION FOR BIDS AND (II) ESTABLISH EXACTLY WHAT THE OFFEROR PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD ... "

BIDS WERE OPENED ON JUNE 1, 1984, AND FIVE BIDS WERE RECEIVED. CPC SUBMITTED THE LOWEST BID PRICE, OFFERING AN "EQUAL" PRODUCT IDENTIFIED AS A KATO FREQUENCY CHANGER, MODEL NO. 40P5-0750. CPC, HOWEVER, FAILED TO INCLUDE ANY DESCRIPTIVE LITERATURE WITH ITS BID AND THE BID WAS REJECTED AS NONRESPONSIVE SINCE THE CONTRACTING OFFICER WAS UNABLE TO DETERMINE FROM THE BID SUBMITTED THAT THE KATO MODEL MET THE TECHNICAL REQUIREMENTS AND CHARACTERISTICS SET FORTH IN THE INVITATION. TELEDYNE WAS THE SECOND LOW BIDDER.

IN SECTION C-4 OF ITS BID, TELEDYNE DESIGNATED MODEL NUMBER T021100AFHJKPQUZ-2-6, A DIFFERENT NUMBER THAN THE MODEL NUMBER (T21100AFHJQZ-6) SET FORTH IN THE INVITATION AS THE BRAND NAME MODEL NUMBER. WHEN THIS WAS POINTED OUT TO TELEDYNE'S REPRESENTATIVE, HE EXPLAINED THAT THE MODEL NUMBER SHOWN IN ITS BID WAS THE BASIC MODEL NUMBER REQUESTED BY THE INVITATION PLUS ADDITIONAL/OPTIONAL FEATURES REQUESTED BY THE SPECIFICATIONS AND WAS AN UPDATED VERSION OF THE BRAND NAME MODEL CALLED FOR BY THE SPECIFICATIONS. TELEDYNE'S LETTER DATED JUNE 4, 1984, REITERATED THE ABOVE AND CONTAINED AN INTERNAL DOCUMENT WHICH EXPLAINED THE NUMBERING SYSTEM FOR ITS MODELS.

AFTER A REVIEW OF THE INFORMATION, THE CONTRACTING OFFICER CONCLUDED THAT TELEDYNE WAS NOT OFFERING A DIFFERENT MODEL, BUT RATHER WAS OFFERING AN UPGRADED VERSION OF THE MODEL SET FORTH IN THE INVITATION AS THE BRAND NAME MODEL. THE CONTRACTING OFFICER DETERMINED THAT TELEDYNE WAS THE LOWEST, RESPONSIVE, RESPONSIBLE BIDDER AND AWARDED THE CONTRACT TO TELEDYNE ON JUNE 21, 1984.

CPC INITIALLY CONTENDS THAT THE INVITATION DID NOT REQUIRE THAT DESCRIPTIVE LITERATURE BE INCLUDED WITH THE BIDS SINCE THAT PORTION OF THE BRAND NAME OR EQUAL CLAUSE CALLING FOR DESCRIPTIVE LITERATURE DID NOT COMPLY WITH FEDERAL ACQUISITION REGULATION (FAR) SECS. 14.202 5(D)(1), 48 FED.REG. 42,102 (1983) (TO BE CODIFIED AT 48 C.F.R. SECS. 14.202- 5(D)(1)), WHICH PROVIDES THAT THE INVITATION STATE CLEARLY (I) WHAT DESCRIPTIVE LITERATURE IS TO BE FURNISHED, (II) THE PURPOSE FOR WHICH IT IS REQUIRED, (III) THE EXTENT TO WHICH IT WILL BE CONSIDERED IN THE EVALUATION OF BIDS, AND (IV) THE RULES THAT WILL APPLY IF A BIDDER FAILS TO FURNISH THE LITERATURE BEFORE BID OPENING OR IF THE LITERATURE FURNISHED DOES NOT COMPLY WITH THE REQUIREMENTS OF THE INVITATION.

IN OUR VIEW, THE IFB PROVISION REQUIRED SUBMISSION OF DESCRIPTIVE LITERATURE AND WAS CONSISTENT WITH THE FAR REQUIREMENTS. THE CLAUSE NOTIFIED BIDDERS THAT SUFFICIENT INFORMATION, INCLUDING DESCRIPTIVE LITERATURE, MUST BE FURNISHED, OR BE REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY, IN ORDER FOR THE PURCHASING ACTIVITY TO DETERMINE WHETHER THE BIDDER'S "EQUAL" PRODUCT MEETS THE SALIENT CHARACTERISTICS REQUIREMENTS. THE CLEAR IMPORT OF THIS LANGUAGE IS THAT FAILURE TO FURNISH SUFFICIENT DESCRIPTIVE INFORMATION TO INDICATE THAT THE PRODUCT BID MEETS THE SPECIFICATION WOULD RESULT IN REJECTION OF THE BID.

CPC ASSERTS THAT IF DESCRIPTIVE LITERATURE IS REQUIRED, AS WE HAVE DETERMINED, THE CONTRACTING OFFICER SHOULD HAVE ALLOWED TO CPC TO SUPPLY THE INFORMATION AFTER BID OPENING. CPC CONTENDS THAT WHEN A BIDDER OFFERING AN "EQUAL" PRODUCT HAS INDICATED A SPECIFIC MODEL, IT SHOULD BE PERMITTED, AFTER BID OPENING, TO FURNISH INFORMATION TO THE GOVERNMENT TO SHOW THAT THE PRODUCT COMPLIES WITH THE INVITATION'S SALIENT CHARACTERISTICS.

WE HAVE HELD THAT IF IN ITS BID THE BIDDER OFFERING AN "EQUAL" PRODUCT HAS INDICATED, AS CPC DID, A SPECIFIC MODEL NUMBER, AFTER BID OPENING IT MAY MAKE AVAILABLE TO THE GOVERNMENT INFORMATION (1) THAT WAS IN EXISTENCE BEFORE OPENING AND (2) THAT DESCRIBES THE MODEL INDICATED AND SHOWS THAT IT MEETS THE SALIENT CHARACTERISTICS OF THE BRAND NAME PRODUCT. SUCH ACTION DOES NOT AFFECT THE RESPONSIVENESS OF THE BID. SEE MEMM GENERAL, INC., B-210939, MAY 31, 1983, 83-1 CPD PARA. 579, AND CASES CITED THEREIN. HOWEVER, WE HAVE STATED THAT THE PROCURING ACTIVITY IS UNDER NO OBLIGATION TO GO TO THE BIDDER AFTER OPENING TO OBTAIN DESCRIPTIVE DATA INFORMATION ON AN "EQUAL" PRODUCT OR TO MAKE ANY UNREASONABLE EFFORTS TO OBTAIN THE INFORMATION OR DESCRIPTIVE DATA. SEE ENVIRONMENTAL CONDITIONERS, INC., B-188633, AUG. 31, 1977, 77-2 CPD PARA. 166; LANSMONT CORPORATION, B-184734, OCT. 9, 1975, 75-2 CPD PARA. 227.

THE PROCURING ACTIVITY REPORTS THAT THE CONTRACTING OFFICER WAS UNABLE TO DETERMINE FROM THE BID ITSELF THAT THE MODEL OFFERED BY CPC MET ALL OF THE NECESSARY TECHNICAL REQUIREMENTS AND CHARACTERISTICS SET FORTH IN THE INVITATION. THE ACTIVITY REPORT FURTHER SHOWS THAT NO DESCRIPTIVE DATA ON CPC'S MODEL WAS FURNISHED TO THE CONTRACTING OFFICER PRIOR TO BID OPENING AND NO TECHNICAL INFORMATION ON THIS MODEL APPARENTLY WAS MADE AVAILABLE TO THE CONTRACTING OFFICER AFTER BID OPENING.

CPC ALLEGES THAT IT OFFERED AN "EQUAL" PRODUCT WITH A SPECIFIC MODEL NUMBER, THAT INFORMATION ON THIS PRODUCT WAS COMMERCIALLY AVAILABLE PRIOR TO BID OPENING AND THAT IT SHOULD HAVE BEEN PROVIDED THE OPPORTUNITY TO SUBMIT THIS INFORMATION AFTER BID OPENING. HERE, HOWEVER, THE NECESSARY INFORMATION WAS NOT SUBMITTED WITH THE BID AND THE AGENCY WAS NOT OBLIGATED TO REQUEST THIS INFORMATION FROM CPC. ALSO, CPC HAS NOT SHOWN THAT THE INFORMATION WAS REASONABLY AVAILABLE TO THE CONTRACTING OFFICER. THUS, THE AGENCY PROPERLY DETERMINED CPC'S BID NONRESPONSIVE.

REGARDING THE ACCEPTANCE OF TELEDYNE'S BID, THE BID LISTED A BRAND NAME MODEL NUMBER WHICH APPARENTLY WAS AN UPDATED VERSION OF THE BASIC BRAND NAME MODEL SOLICITED. THE AGENCY ADVISES THAT WHEN TELEDYNE TELEPHONED FOR THE RESULTS OF THE BIDDING, THE CONTRACTING OFFICER POINTED OUT THE DIFFERENCE IN MODEL NUMBER PROVIDED BY TELEDYNE IN ITS BID AND REQUESTED AN EXPLANATION. TELEDYNE EXPLAINED THAT THE MODEL NUMBER WAS THE BASIC NUMBER WITH ADDITIONAL OPTIONAL FEATURES TO MEET THE SPECIFICATIONS. TELEDYNE SENT A LETTER OF CLARIFICATION. THIS LETTER CONTAINED ATTACHMENTS FROM TELEDYNE'S INTERNAL BULLETIN 2100-A" (BULLETIN) WHICH DEFINED THE INTERNAL NUMBERING SYSTEM USED BY TELEDYNE AND PROVIDED A COORDINATION PARAGRAPH WHICH LISTED IN THE LEFT-HAND COLUMN THE MODEL NUMBER BID AND HOW EACH LETTER AND NUMBER OF THE MODEL NUMBER REPRESENTED FEATURES LISTED IN THE BULLETIN AND THE SPECIFICATIONS.

SINCE THE AGENCY DETERMINED THAT THE TELEDYNE MODEL OFFERED, ALTHOUGH DESIGNATED SOMEWHAT DIFFERENTLY, WAS THE MODEL SOLICITED AND MET ALL SALIENT CHARACTERISTICS, IN OUR VIEW THE TELEDYNE BID WAS RESPONSIVE. SEE VIRGINIA REFRIGERATION, INC., B-194495, AUG. 17, 1979, 79-2 CPD PARA. 129, WHERE WE DETERMINED THAT A LOW BID WAS RESPONSIVE EVEN THOUGH TWO BRAND NAME MODEL NUMBERS OF ITEMS OFFERED BY THE BIDDER WERE NOT THE BRAND NAMES DESIGNATED IN THE INVITATION BECAUSE THE RECORD SHOWED THE MODELS OFFERED WERE IN ESSENCE THE BRAND NAME ITEMS CALLED FOR IN THE INVITATION AND MET ALL INTENDED SALIENT CHARACTERISTICS.

THUS, THE ALLEGED UNEQUAL TREATMENT OF BIDS WITH REGARD TO CPC AND TELEDYNE BIDS IS A FUNCTION OF THE DIFFERING NATURE OF THE PRODUCTS BID; IN TELEDYNE'S CASE, THE CORPS MERELY SOUGHT VERIFICATION THAT THE BRAND NAME MODEL SOLICITED WAS THE ONE OFFERED. WITH REGARD TO CPC'S BID, THE PRODUCT WAS UNKNOWN TO THE CORPS AND, IN THE ABSENCE OF DESCRIPTIVE LITERATURE, COULD NOT BE SHOWN TO MEET THE SALIENT CHARACTERISTICS. THEREFORE, THE BID PROPERLY WAS REJECTED WITHOUT THE CORPS REQUESTING DESCRIPTIVE LITERATURE.

WE DENY THE PROTEST.