B-2224512, DEC 3, 1986, 86-2 CPD 635

B-2224512: Dec 3, 1986

Additional Materials:

Contact:

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

 

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

A BID OFFERING A MODIFIED "EQUAL" PRODUCT WHICH MERELY STATES THAT THE BIDDER WILL DEMONSTRATE THE PROPOSED MODIFICATIONS ON REQUEST IS NONRESPONSIVE. A BID OFFERING EQUIPMENT THAT WOULD MEET THE FUNCTIONAL REQUIREMENTS OF THE SOLICITATION ONLY WHEN USED IN A SPECIFIC CONFIGURATION IS NONRESPONSIVE WHERE THE PROTESTER'S INTENT TO FURNISH EQUIPMENT IN THAT CONFIGURATION IS NOT APPARENT FROM THE BID. PROTEST AFTER BID OPENING THAT AGENCY FAILED TO PROVIDE THE PROTESTER WITH ACCESS TO SCHEMATIC DRAWINGS IS UNTIMELY. THE SOLICITATION WAS FOR VARIOUS ITEMS OF AUDIO. THE EQUIPMENT IS NEEDED BY THE NORTH AMERICAN AIR DEFENSE COMMAND (NORAD) TO VERIFY DATA GATHERED AT REMOTE RADAR SITES. CLIN 6001 WAS FOR A TIME BASE CORRECTOR AND CLIN 6005 WAS FOR A RGB TO NTSC COLOR ENCODER.

B-2224512, DEC 3, 1986, 86-2 CPD 635

PROCUREMENT - SEALED BIDDING - BIDS - RESPONSIVENESS - BRAND NAME/EQUAL SPECIFICATIONS - EQUIVALENT PRODUCTS PROCUREMENT - SPECIFICATIONS - BRAND NAME/EQUAL SPECIFICATIONS - EQUIVALENT PRODUCTS - SALIENT CHARACTERISTICS - DESCRIPTIVE LITERATURE DIGEST: 1. WHERE A BRAND NAME OR EQUAL SOLICITATION PROVIDES THAT BIDDERS PROPOSING TO MODIFY A PRODUCT TO MAKE IT CONFORM TO THE SOLICITATION MUST CLEARLY DESCRIBE THE PROPOSED MODIFICATIONS, A BID OFFERING A MODIFIED "EQUAL" PRODUCT WHICH MERELY STATES THAT THE BIDDER WILL DEMONSTRATE THE PROPOSED MODIFICATIONS ON REQUEST IS NONRESPONSIVE. PROCUREMENT - SEALED BIDDING - BIDS - RESPONSIVENESS - DESIGNS - PERFORMANCE CAPABILITIES 2. A BID OFFERING EQUIPMENT THAT WOULD MEET THE FUNCTIONAL REQUIREMENTS OF THE SOLICITATION ONLY WHEN USED IN A SPECIFIC CONFIGURATION IS NONRESPONSIVE WHERE THE PROTESTER'S INTENT TO FURNISH EQUIPMENT IN THAT CONFIGURATION IS NOT APPARENT FROM THE BID. PROCUREMENT - BID PROTEST - GAO PROCEDURES - PROTEST TIMELINESS - APPARENT SOLICITATION IMPROPRIETIES 3. PROTEST AFTER BID OPENING THAT AGENCY FAILED TO PROVIDE THE PROTESTER WITH ACCESS TO SCHEMATIC DRAWINGS IS UNTIMELY.

LVW ELECTRONICS:

LVW ELECTRONICS PROTESTS THE REJECTION OF ITS BID AS NONRESPONSIVE UNDER INVITATION FOR BIDS (IFB) NO. F05604-86-B-0061, ISSUED BY PETERSON AIR FORCE BASE, COLORADO. WE DENY THE PROTEST IN PART AND DISMISS IT IN PART.

THE SOLICITATION WAS FOR VARIOUS ITEMS OF AUDIO, VIDEO, AND FREEZE FRAME TELECONFERENCING EQUIPMENT TO BE DELIVERED UNDER A 1-YEAR REQUIREMENTS CONTRACT, WITH TWO, 1-YEAR OPTIONS. THE EQUIPMENT IS NEEDED BY THE NORTH AMERICAN AIR DEFENSE COMMAND (NORAD) TO VERIFY DATA GATHERED AT REMOTE RADAR SITES. THE SOLICITATION REQUIRED UNIT PRICES ON VARIOUS ITEMS OF BRAND NAME EQUIPMENT OR ON "EQUAL" ITEMS, AND CONTAINED THE BRAND NAME OR EQUAL CLAUSE PRESCRIBED BY THE DEPARTMENT OF DEFENSE FEDERAL ACQUISITION REGULATION SUPPLEMENT, 48 C.F.R. SEC. 252.210-7000 (1985). THE IFB INCORPORATED BY REFERENCE THE DESCRIPTIVE LITERATURE CLAUSE PRESCRIBED BY THE FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 52.214-21. THE AIR FORCE REJECTED THE PROTESTER'S BID AS NONRESPONSIVE TO THREE CONTRACT LINE ITEMS, CLIN 6001, CLIN 6003 AND CLIN 6005.

CLIN 6001 WAS FOR A TIME BASE CORRECTOR AND CLIN 6005 WAS FOR A RGB TO NTSC COLOR ENCODER. BOTH CLINS LISTED SPECIFIC PRODUCTS OF VIDEO TEKNIX, INC. (VTI), THE PROPOSED AWARDEE AS THE BRAND NAME EQUIPMENT. THE SOLICITATION CONTAINED A LIST OF THE SALIENT CHARACTERISTICS OF THE VTI PRODUCTS THAT ANY OFFERED "EQUAL" PRODUCTS WOULD HAVE TO POSSESS.

FOR CLIN 6001 (TIME BASE CORRECTOR), THE PROTESTER OFFERED AN "EQUAL" ITEM IDENTIFIED AS A CEL P147-20. FOR CLIN 6005 (ENCODER), THE PROTESTER ALSO OFFERED AN "EQUAL" ITEM, IDENTIFIED AS A LENCO/EXTRON CCE-850/RGB- 102. IN ATTACHMENT A TO ITS BID, THE PROTESTER STATED:

"ATTACHMENT 'A' DESCRIBED WHY THE EQUIPMENT WE ARE PROPOSING FOR CLIN 6001 AND CLIN 6005 IS EXACTLY AS SPECIFIED USING THE SAME MANUFACTURERS, WITH LVW'S ENGINEERING STAFF TO MAKE THE ASSEMBLY AND INTERFACE INSTEAD OF VTI (VIDEO TECHNIKS INC.) WHO IS BIDDING THIS PROJECT AS A CONTRACTOR LIKE LVW. THE SIMPLE MODIFICATIONS MADE BY VTI HAVE ONLY BEEN DONE TO A VERY LIMITED NUMBER OF UNITS AND CAN EASILY BE ACCOMPLISHED BY LVW. WE WOULD BE GLAD TO DEMONSTRATE THIS TO THE GOVERNMENT IF REQUESTED."

THE PROTESTER'S BID INCLUDED DESCRIPTIVE LITERATURE ON THE CEL P147 20, THE LENCO CCE-850, AND THE EXTRON RGB-102.

CLIN 6003 WAS FOR A RGB VIDEO SWITCH THAT WOULD PERMIT ONE-BUTTON, SIMULTANEOUS SWITCHING OF RGB VIDEO SIGNALS. THE SOLICITATION LISTED NO BRAND NAME PRODUCT. THE SOLICITATION SPECIFIED THAT THERE SHOULD BE NO PERCEPTABLE PICTURE DEGRADATION OR DELAY BETWEEN THE INPUT AND OUTPUT OF THE SWITCH AND THAT CROSS TALK BETWEEN CHANNELS MUST BE -50 DECIBLES OR BETTER. FOR CLIN 6003, THE PROTESTER OFFERED AN RCA TC 1404 SEQUENTIAL SWITCHER. THE BID INCLUDED DESCRIPTIVE LITERATURE FOR THIS ITEM.

IN REJECTING THE PROTESTER'S BID AS NONRESPONSIVE, THE AIR FORCE NOTED THAT ALTHOUGH THE SOLICITATION LISTED AN INTERNAL SYNC GENERATOR AS A SALIENT CHARACTERISTIC FOR CLIN 6001 (TIME BASE CORRECTOR), THE PROTESTER'S DESCRIPTIVE LITERATURE DID NOT MENTION THIS FEATURE. THE AGENCY CONCLUDED THAT SINCE CEL DOES NOT MAKE A TIME BASE CORRECTOR WITH AN INTERNAL SYNC GENERATOR, THE PROTESTER WOULD HAVE TO MODIFY THE ITEM OFFERED TO CONFORM TO THE SPECIFICATIONS. THE PROTESTER PROVIDED NO DETAILS CONCERNING THIS MODIFICATION, AND THE AIR FORCE FOUND THAT IT COULD NOT DETERMINE WHETHER THE OFFERED ITEM WAS THE EQUIVALENT OF THE LISTED BRAND NAME ITEM.

AS TO CLIN 6005 (ENCODER), THE AGENCY FOUND THAT THE PROTESTER'S PROPOSAL TO INTERCONNECT A LENCO CCE-850 AND AN EXTRON RGB-102 FAILED TO ADDRESS TWO POINTS. FIRST, THE AIR FORCE CONCLUDED THAT THE PROPOSED COMBINATION WOULD NOT BE CAPABLE OF MEETING THE SOLICITATION OUTPUT REQUIREMENTS WITHOUT CONSIDERABLE MODIFICATION TO THE CIRCUIT BOARD OF THE EXTRON PRODUCT. SECOND, THE AIR FORCE FOUND THAT THE EXTRON PRODUCT COMES WITH A TWO-PRONGED, PLUG-IN TRANSFORMER AND, UNLESS MODIFIED, WOULD NOT MEET A SOLICITATION REQUIREMENT THAT ALL COMPONENTS HAVE THREE-PRONGED, GROUNDED PLUGS. THE PROTESTER'S BID DESCRIBED NONE OF THE REQUIRED MODIFICATIONS.

CONCERNING CLIN 6003 (RGB VIDEO SWITCH), THE AGENCY FOUND THAT THE PROTESTER HAD OFFERED A COMPOSITE SWITCH (THAT IS, A SWITCH DESIGNED TO HANDLE WHAT IS KNOWN AS A COMPOSITE VIDEO SIGNAL) RATHER THAN A RGB SWITCH (A SWITCH CAPABLE OF HANDLING SEPARATE RED, GREEN AND BLUE VIDEO CHANNELS) CALLED FOR IN THE IFB.

THE PROTESTER CONTENDS THAT ITS BID WAS NOT "DEFICIENT" AND THAT ALL REQUIRED DESCRIPTIVE LITERATURE WAS SUPPLIED. IF ANY DEFICIENCY DID EXIST, SAYS THE PROTESTER, IT WAS DE MINIMUS BECAUSE THE SUITABILITY OF THE OFFERED PRODUCTS FOR THEIR INTENDED USES WOULD NOT BE AFFECTED. THE PROTESTER ALSO CONTENDS THAT THE AGENCY TREATED IT UNFAIRLY BECAUSE THE AGENCY FAILED TO FURNISH NECESSARY CUT SHEETS AND SCHEMATICS FOR THE BRAND NAME ITEMS. THE PROTESTER SAYS THAT IT REQUESTED THIS MATERIAL FROM THE AGENCY ON MORE THAN ONE OCCASION PRIOR TO BID OPENING.

WE CONCLUDE THAT THE AGENCY PROPERLY REJECTED THE PROTESTER'S BID AS NONRESPONSIVE. FOR CLINS 6001 AND 6005, LVW OFFERED PRODUCTS REQUIRING MODIFICATIONS. THE BRAND NAME OR EQUAL CLAUSE OF THE SOLICITATION SPECIFICALLY PROVIDED THAT IF A BIDDER PROPOSED TO MODIFY A PRODUCT TO MAKE IT CONFORM TO THE REQUIREMENTS OF THE IFB, IT WAS REQUIRED TO: (1) INCLUDE IN THE BID A CLEAR DESCRIPTION OF THE PROPOSED MODIFICATIONS, AND (2) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE MODIFICATIONS. LVW DID NEITHER. INSTEAD, LVW OFFERED TO DEMONSTRATE THE MODIFICATIONS IF REQUESTED. THIS FAILED TO COMPLY WITH THE EXPRESS REQUIREMENTS OF THE SOLICITATION AND DID NOT SATISFY THE BIDDER'S OBLIGATION TO PROVIDE LITERATURE THAT SHOWED THAT ITS ITEMS MEET EACH SPECIFIED SALIENT CHARACTERISTIC. SEE COULTER ELECTRONICS, INC., B-216800, APR. 23, 1985, 85-1 CPD PARA. 463.

FURTHER, WE DO NOT AGREE WITH THE PROTESTER THAT THESE DEFICIENCIES CAN BE WAIVED AS DE MINIMUS. WHERE A SOLICITATION SETS FORTH SALIENT CHARACTERISTICS OF A BRAND NAME PRODUCT, THEY ARE PRESUMED TO BE MATERIAL TO THE GOVERNMENT'S NEEDS AND CONFORMANCE WITH THESE FEATURES IS MANDATORY. C.M. & W.O. SHEPPARD, B-219376, SEPT. 24, 1985, 85-2 CPD PARA. 329. REGARDLESS OF WHETHER AN OFFERED ITEM WILL MEET THE AGENCY'S ACTUAL NEEDS, AS THE PROTESTER CONTENDS IS THE CASE HERE, THE AGENCY DOES NOT HAVE THE DISCRETION TO WAIVE COMPLIANCE WITH LISTED SALIENT CHARACTERISTICS SINCE TO DO SO WOULD BE UNFAIR TO THOSE WHO ASSUMED THAT THE REQUIREMENTS WOULD BE ENFORCED. SCANRAY CORP., B-215275, SEPT. 17, 1984, 84-2 CPD PARA. 299.

WITH RESPECT TO CLIN 6003, THE PROTESTER OFFERED WHAT THE AGENCY DETERMINED WERE COMPOSITE SWITCHES EVEN THOUGH THE IFB REQUIRED RGB SWITCHES. IN A LETTER TO THE CONTRACTING OFFICER DATED JULY 21, THE PROTESTER SAYS IT WAS "READILY APPARENT" FROM THE BID THAT THE PROPOSED SWITCHES EASILY COULD BE CONFIGURED TO PERFORM AS RGB VIDEO SWITCHES. BASED ON THIS LETTER AND ACCOMPANYING MATERIALS, THE AIR FORCE CONCEDES THAT THE PROPOSED SWITCHES COULD BE CONFIGURED TO CONFORM TO THE SOLICITATION. IT DOES NOT APPEAR FROM THE BID, HOWEVER, THAT THE PROTESTER INTENDED TO FURNISH SWITCHES THAT WERE SO CONFIGURED, AND AS THE CONTRACTING OFFICER NOTES, THE LETTER EXPLAINING THE CONFIGURATION WAS NOT INCLUDED WITH THE BID, BUT WAS SUBMITTED AFTER THE JUNE 24 BID OPENING.

FINALLY, THE PROTESTER'S CONTENTION THAT ACCESS TO SCHEMATIC DRAWINGS WAS NECESSARY IN ORDER TO SUBMIT A RESPONSIVE BID, BUT THAT THE AGENCY FAILED TO FURNISH THEM, IS DISMISSED AS UNTIMELY. IN ESSENCE, THE PROTESTER IS CONTENDING THAT THE SPECIFICATIONS CONTAINED IN THE IFB WERE INADEQUATE. THIS ALLEGED SOLICITATION DEFECT, HOWEVER, WAS APPARENT TO THE PROTESTER PRIOR TO BID OPENING. AS SUCH, THE PROTESTER WAS REQUIRED TO FILE ITS PROTEST ON THIS ISSUE, EITHER WITH THE AGENCY OR THIS OFFICE, PRIOR TO BID OPENING. BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.2(A)(1) (1986). THE PROTESTER RAISED THE MATTER WITH THE AGENCY PRIOR TO BID OPENING, BUT DID NOT FILE A PROTEST WHEN THE SCHEMATICS WERE NOT FORTHCOMING.

THE PROTEST IS DENIED IN PART AND DISMISSED IN PART.