B-217528, APR 18, 1985, 85-1 CPD 445

B-217528, APR 18, 1985, 85-1 CPD 445

BIDS - INVITATION FOR BIDS - SPECIFICATIONS - BRAND NAME OR EQUAL - "EQUAL" PRODUCT EVALUATION - SALIENT CHARACTERISTICS NOT MET DIGEST: REJECTION OF LOW BID THAT FAILED IN AT LEAST TWO RESPECTS TO MEET SALIENT CHARACTERISTICS REQUIRED BY BRAND NAME OR EQUAL SOLICITATION IS PROPER, SINCE BID IS RENDERED NONRESPONSIVE BY EITHER OF THE TWO DEFICIENCIES

WAYNE KERR INC.:

WAYNE KERR INC. PROTESTS THE REJECTION OF ITS LOW BID, SUBMITTED IN RESPONSE TO INVITATION FOR BIDS (IFB) NO. 429A-84-B-0307, ISSUED BY THE NAVAL AIR STATION, POINT MUGU, CALIFORNIA, FOR A COMPUTERIZED CIRCUIT ANALYZER. THE NAVY MADE AWARD TO A.T.E. SYSTEMS, INCORPORATED, WHICH OFFERED THE EQUIPMENT NAMED IN THE BRAND NAME OR EQUAL SOLICITATION, ON DECEMBER 20, 1984. WE DENY THE PROTEST.

THE NAVY REJECTED WAYNE KERR'S BID, WHICH OFFERED WAYNE KERR MODEL NO. 8315, AS NONRESPONSIVE AFTER DETERMINING THAT THE DESCRIPTIVE MATERIAL SUBMITTED WITH THE BID DID NOT SHOW THAT CERTAIN OF THE 12 SALIENT CHARACTERISTICS IDENTIFIED IN THE SOLICITATION WOULD BE MET. THE NAVY STATES THAT THE EQUIPMENT OFFERED BY THE PROTESTER (1) HAS FLOATING POWER SUPPLIES, WHILE THE SOLICITATION REQUIRES FIVE FIXED POWER SUPPLIES, AND (2) FAILS TO INCLUDE THE PARALLEL AND SERIAL LOGIC CONDITIONING MEASUREMENT. ACCORDING TO THE NAVY, BOTH OF THESE FEATURES ARE REQUIRED FOR COMPATIBILITY. IN ADDITION, THE PROTESTER'S EQUIPMENT REQUIRES EXTERNAL EQUIPMENT AND SETUPS IN ORDER TO ANALYZE AND DISPLAY ELECTRIC CURRENT, WHILE, FOR EASE OF OPERATION, THE SOLICITATION REQUIRES A UNIT CAPABLE OF ANALYZING AND DISPLAYING ALL DATA WITHOUT ADDITIONAL EQUIPMENT. ALTHOUGH THE RECORD INDICATES THAT THE PROTESTER WAS ADVISED BY TELEPHONE THAT ITS BID ALSO DID NOT MEET A REQUIREMENT FOR ENGLISH LANGUAGE PROGRAMMING, THE AGENCY'S WRITTEN NOTIFICATION OF NONRESPONSIVENESS DID NOT INCLUDE THIS AS A DEFICIENCY.

IN ITS PROTEST TO OUR OFFICE, WAYNE KERR CONTENDS THAT ITS "EQUAL" BID IS ENTIRELY RESPONSIVE AND THAT, AS A LOW BIDDER, IT IS ENTITLED TO AWARD. HOWEVER, IN CORRESPONDENCE DATED OCTOBER 2 AND DECEMBER 3, 1984, TO THE PROCURING ACTIVITY, THE FIRM ADMITS THAT ITS BID DOES NOT MEET TWO OF THE THREE SALIENT CHARACTERISTICS CITED BY THE NAVY AS THE BASIS FOR REJECTION. THE FIRM ADMITS THAT ITS PRODUCT DOES NOT HAVE A FIXED POWER SUPPLY, BUT ARGUES THAT THE DIFFERENCE BETWEEN FIXED AND FLOATING POWER SUPPLIES IS TRIVIAL, WITH THE ADVANTAGE TO THE FLOATING VARIETY. IN THE DECEMBER 3 LETTER, THE FIRM ACKNOWLEDGES THAT ADDITIONAL EQUIPMENT IS NEEDED TO MEASURE ELECTRIC CURRENT AND OFFERS TO ADD THE EQUIPMENT AT NO ADDITIONAL CHARGE.

WE HAVE FREQUENTLY HELD THAT BIDS OFFERING "EQUAL" PRODUCTS MUST CONFORM TO THE SALIENT CHARACTERISTICS OF THE BRAND NAME EQUIPMENT LISTED IN THE IFB IN ORDER TO BE REGARDED AS RESPONSIVE. PAULMAR INC., B-212111, JUNE 20, 1983, 83-2 CPD PARA. 3. IT IS NOT ENOUGH THAT THE BIDDER BELIEVES ITS PRODUCT IS FUNCTIONALLY EQUAL TO-- OR EVEN BETTER THAN-- THE BRAND NAME PRODUCT, OR MAKES A BLANKET STATEMENT THAT ALL SALIENT CHARACTERISTICS WILL BE MET; RATHER, THE BIDDER MUST DEMONSTRATE EQUIVALENCY. MEMM GENERAL, INC., B-210939, MAY 31, 1983, 83-1 CPD PARA. 579.

THEREFORE, THE REJECTION OF WAYNE KERR'S BID, WHICH FAILED IN AT LEAST TWO RESPECTS TO MEET THE SALIENT CHARACTERISTICS REQUIRED BY THE IFB, WAS PROPER. PAULMAR INC., B-212111, SUPRA.ALTHOUGH THE CONTRACTING AGENCY FOUND ONE ADDITIONAL DEVIATION FROM THE SALIENT CHARACTERISTICS WHICH WAYNE KERR DISPUTES, I.E., PARALLEL AND SERIAL LOGIC CONDITIONING AND MEASUREMENT, WE NEED NOT DISCUSS IT BECAUSE THE PROTEST MUST BE DENIED IF THE NAVY ACTED PROPERLY IN REJECTING WAYNE KERR'S BID AS NONRESPONSIVE FOR ANY ONE OF THE DEFICIENCIES IDENTIFIED. SUTRON CORP., B-205082, JAN. 29, 1982, 82-1 CPD PARA. 69.

THE PROTEST IS DENIED.