B-223131, AUG 13, 1986, 86-2 CPD 185

B-223131: Aug 13, 1986

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BIDS - RESPONSIVENESS - BRAND NAME OR EQUAL PROCUREMENT DIGEST: SOLICITATION'S PURCHASE DESCRIPTION WAS DEFECTIVE WHERE IT PERMITTED THE SUBMISSION OF BRAND NAME OR EQUAL PRODUCTS BUT CONTAINED NO LISTING OF THE SALIENT CHARACTERISTICS EQUAL PRODUCTS MUST MEET. WHERE PROTESTER OFFERED "EQUAL" PRODUCT WHICH IS SIGNIFICANTLY DIFFERENT FROM BRAND NAME PRODUCT. VAMC REJECTED CIBA'S LOW "EQUAL" BID AS NONRESPONSIVE ON THE GROUNDS THAT THE EQUIPMENT OFFERED WAS NOT EQUIVALENT TO THE ROCHE AUTOMATED CENTRIFUGAL CHEMISTRY ANALYZER AS REQUIRED BY THE SOLICITATION'S BRAND NAME OR EQUAL PURCHASE DESCRIPTION. THAT THE GILFORD ANALYZER IS NOT EQUIVALENT TO THE ROCHE ANALYZER AND THAT A CENTRIFUGAL ANALYZER IS THE "MEANS OF CHOICE WHEN PERFORMING RATE ENZYMATIC ASSAYS.".

B-223131, AUG 13, 1986, 86-2 CPD 185

BIDS - RESPONSIVENESS - BRAND NAME OR EQUAL PROCUREMENT DIGEST: SOLICITATION'S PURCHASE DESCRIPTION WAS DEFECTIVE WHERE IT PERMITTED THE SUBMISSION OF BRAND NAME OR EQUAL PRODUCTS BUT CONTAINED NO LISTING OF THE SALIENT CHARACTERISTICS EQUAL PRODUCTS MUST MEET. NEVERTHELESS, WHERE PROTESTER OFFERED "EQUAL" PRODUCT WHICH IS SIGNIFICANTLY DIFFERENT FROM BRAND NAME PRODUCT, AGENCY PROPERLY REJECTED PROTESTER'S BID AS NONRESPONSIVE.

CIBA CORNING DIAGNOSTICS CORPORATION:

CIBA CORNING DIAGNOSTICS CORPORATION (CIBA) PROTESTS THE AWARD OF A CONTRACT TO ROCHE DIAGNOSTICS SYSTEMS (ROCHE) FOR TWO ROCHE AUTOMATED CENTRIFUGAL CHEMISTRY ANALYZERS AND RELATED ITEMS UNDER INVITATION FOR BIDS (IFB) NO. 663-61-86, ISSUED BY THE VETERANS ADMINISTRATION MEDICAL CENTER (VAMC), SEATTLE, WASHINGTON. VAMC REJECTED CIBA'S LOW "EQUAL" BID AS NONRESPONSIVE ON THE GROUNDS THAT THE EQUIPMENT OFFERED WAS NOT EQUIVALENT TO THE ROCHE AUTOMATED CENTRIFUGAL CHEMISTRY ANALYZER AS REQUIRED BY THE SOLICITATION'S BRAND NAME OR EQUAL PURCHASE DESCRIPTION.

WE DENY THE PROTEST.

BACKGROUND

VAMC SYNOPSIZED THE REQUIREMENT IN THE COMMERCE BUSINESS DAILY (CBD) ON OCTOBER 29, 1985. THE SYNOPSIS SPECIFIED THE ROCHE SYSTEM ON A BRAND NAME ONLY BASIS. VAMC, ON NOVEMBER 4, RECEIVED A TELEPHONE RESPONSE TO THE SYNOPSIS FROM A CIBA REPRESENTATIVE WHO ADVISED THE AGENCY THAT THE FIRM HAD AN "EQUIVALENT" SYSTEM AVAILABLE UNDER ITS FEDERAL SUPPLY SCHEDULE (FSS) CONTRACT, IDENTIFIED AS THE "GILFORD 400E CLINICAL CHEMISTRY ANALYZER." THE CONTRACTING OFFICER THEN OBTAINED AND REFERRED CIBA'S FSS CONTRACT AND TECHNICAL LITERATURE TO VAMC'S CLINICAL LABORATORY PERSONNEL FOR ANALYSIS.

VAMC LABORATORY PERSONNEL ADVISED THE CONTRACTING OFFICER ON JANUARY 2, 1986, THAT THE GILFORD ANALYZER IS NOT EQUIVALENT TO THE ROCHE ANALYZER AND THAT A CENTRIFUGAL ANALYZER IS THE "MEANS OF CHOICE WHEN PERFORMING RATE ENZYMATIC ASSAYS." CONSEQUENTLY, THE CONTRACTING OFFICER, ON FEBRUARY 7, REQUESTED A WAIVER FROM THE GENERAL SERVICES ADMINISTRATION (GSA) TO PERMIT VAMC TO PURCHASE AN ANALYZER SYSTEM FROM OTHER THAN FSS SOURCES. IN HIS REQUEST, THE CONTRACTING OFFICER ADVANCED THE FOLLOWING JUSTIFICATIONS TO GSA FOR A WAIVER: 1) VAMC ALREADY OWNED A ROCHE ANALYZER; 2) A CENTRIFUGAL ANALYZER HAD BEEN FOUND TO BE THE SYSTEM OF CHOICE FOR PERFORMING RATE ENZYMATIC ASSAYS BY THE CHIEF OF THE CLINICAL LABORATORY; 3) THERE WAS NO CENTRIFUGAL ANALYZER LISTED ON THE FSS; AND 4) THE PURCHASE OF ADDITIONAL ROCHE SYSTEMS BY VAMC WOULD PERMIT CONTINUITY OF OPERATIONS IN EXISTING SERVICES, SPARE PARTS STOCKS AND OTHER SUPPLIED, AS WELL AS CONTINUITY OF TRAINING FOR OPERATOR AND MAINTENANCE PERSONNEL. ON FEBRUARY 24, GSA APPROVED THE REQUEST FOR THE WAIVER BECAUSE IT FOUND THAT THE "ITEMS REQUIRED ARE SIGNIFICANTLY DIFFERENT FROM ITEMS CURRENTLY IN THE SUPPLY SYSTEM."

THE SOLICITATION WAS ISSUED ON MARCH 19, 1986, AND REQUIRED DELIVERY OF TWO "MODEL 10-1182-0, COBAS BIO ROCHE AUTOMATED CENTRIFUGAL ANALYZER(S), 115V, 60 HZ. OR EQUAL," AND RELATED ITEMS. THIS BRAND NAME IDENTIFICATION BY MAKE AND MODEL CONSTITUTED THE ENTIRE PURCHASE DESCRIPTION IN THE SOLICITATION; NO OTHER TECHNICAL SPECIFICATIONS OR TECHNICAL REQUIREMENTS WERE SET FORTH. THE SOLICITATION CONTAINED THE STANDARD "BRAND NAME OR EQUAL" CLAUSE WHICH PERMITTED THE AGENCY TO CONSIDER EQUAL PRODUCTS "IF SUCH PRODUCTS ... ARE CLEARLY IDENTIFIED IN THE BID AND ARE DETERMINED BY THE GOVERNMENT TO MEET FULLY THE SALIENT CHARACTERISTICS REQUIREMENTS LISTED IN THE INVITATION." HOWEVER, THE SOLICITATION FAILED TO LIST ANY SALIENT CHARACTERISTICS.

ON APRIL 23, THE CONTRACTING OFFICER RECEIVED TWO BIDS AS FOLLOWS:

FIRM AGGREGATE TOTAL PRICE FOR

2 SYSTEMS AND ASSOCIATED

ITEMS

CIBA $87,342.50

ROCHE $110,784.00

CIBA'S BID, WHICH OFFERED THE GILFORD 400E SYSTEM, WAS REJECTED BY THE CONTRACTING OFFICER BECAUSE "IT WAS NOT AN EQUIVALENT SYSTEM." AWARD WAS MADE TO ROCHE ON MAY 1 FOR THE NAMED PRODUCT, AND NOTIFICATION OF AWARD WAS SENT TO CIBA ON MAY 5. IN A TELEPHONE CONVERSATION ON MAY 13, THE CONTRACTING OFFICER INFORMED CIBA THAT ITS BID HAD BEEN REJECTED EVEN THOUGH IT WAS LOWER THAN ROCHE'S BID. CIBA PROTESTED TO OUR OFFICE BY LETTER OF MAY 15 (FILED ON MAY 19).

CONTENTIONS BY CIBA

CIBA ESSENTIALLY CONTENDS THAT ITS GILFORD SYSTEM IS "FUNCTIONALLY EQUAL" TO THE ROCHE SYSTEM AND, THEREFORE, IT SHOULD HAVE RECEIVED THE AWARD BASED ON ITS LOWER PRICE. SPECIFICALLY, CIBA STATES THAT BOTH THE GILFORD AND ROCHE SYSTEMS ARE "BATCH" ANALYZERS AND THAT THE TERM "CENTRIFUGAL" MERELY REFERS TO ONE INSIGNIFICANT DESIGN OPTION INVOLVING A SAMPLE/REAGENT MIXING STEP IN AN OTHERWISE MULTI-STEP, SEMI AUTOMATIC ANALYTICAL PROCESS THAT HAS AS ITS OVERRIDING PURPOSE THE PRODUCTION OF DIAGNOSTIC RESULTS TO THE CLINICIAN. BASED ON ITS OWN TESTS, CIBA ARGUES THAT ITS SYSTEM IS AT LEAST AS EFFICIENT AS THE ROCHE SYSTEM IN ACHIEVING ACTUAL SAMPLE "THROUGHPUT" WITH EQUAL ACCURACY. CIBA INSISTS THAT MOST ANALYZERS IN OPERATION IN THE UNITED STATES ARE NON-CENTRIFUGAL TYPE AND THERE IS NO RATIONAL BASIS FOR VAMC TO PREFER THE CENTRIFUGAL TYPE OF ANALYZER. IN THE ALTERNATIVE, CONTENDS CIBA, THE SOLICITATION'S SPECIFICATIONS WERE UNNECESSARILY AND UNDULY RESTRICTIVE, DESIGNED TO EXCLUDE FUNCTIONALLY EQUIVALENT SYSTEMS. CIBA CONCLUDES THAT THE VAMC IS ESSENTIALLY ATTEMPTING TO JUSTIFY THE SOLE-SOURCE PURCHASE OF A PRE- SELECTED ITEM.

ANALYSIS

WE THINK IT SHOULD HAVE BEEN CLEAR TO THE PROTESTER THAT THE IFB WAS DEFECTIVE BECAUSE IT PERMITTED THE SUBMISSION OF BIDS OFFERING EQUAL PRODUCTS BUT CONTAINED NO LISTING OF THE SALIENT CHARACTERISTICS THOSE PRODUCTS MUST MEET. SEE EQUIPTO ELECTRONICS CORP., B-220733, OCT. 29, 1985, 85-2 CPD PARA. 485 (BRAND NAME OR EQUAL SOLICITATION IS CLEARLY DEFECTIVE IF SALIENT CHARACTERISTICS ARE MISSING, AND THE DEFECT IS A PATENT IMPROPRIETY WHICH MUST BE PROTESTED PRIOR TO BID OPENING). ACCORDINGLY, TO THE EXTENT THAT CIBA PROTESTS THAT THE IFB SHOULD HAVE CONTAINED A LISTING OF SALIENT CHARACTERISTICS, THE PROTEST IS UNTIMELY UNDER OUR BID PROTEST REGULATIONS, WHICH REQUIRE THAT THE PROTESTS BASED ON IMPROPRIETIES IN A SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING BE FILED PRIOR TO BID OPENING. 4 C.F.R. SEC. 21.2(A)(1) (1986).

NEVERTHELESS, WHEN A BRAND NAME OR EQUAL SOLICITATION IS ISSUED WITHOUT A LISTING OF SALIENT CHARACTERISTICS, BIDDERS OFFERING EQUAL PRODUCTS ARE LEFT TO GUESS AT THE DESIRED ESSENTIAL QUALITIES OF THE BRAND NAME ITEM. SEE 49 COMP.GEN. 274 (1969). THUS, WE HAVE CONSISTENTLY STATED THAT FAILURE OF THE SOLICITATION TO LIST THE SALIENT CHARACTERISTICS OF THE DESIRED ITEM IS AN IMPROPER RESTRICTION ON COMPETITION THAT MAY REQUIRE CANCELLATION OR AMENDMENT OF THAT SOLICITATION. LISTA INTERNATIONAL CORP., 63 COMP.GEN. 447 (1984), 84-1 CPD PARA. 665; 41 COMP.GEN. 242 (1961). THEREFORE, BY SEPARATE LETTER OF TODAY, WE ARE ADVISING THE ADMINISTRATOR OF VETERANS AFFAIRS OF THIS SOLICITATION DEFECT SO THAT APPROPRIATE PROCUREMENT OFFICIALS WILL BE ADVISED TO TAKE ACTION TO ENSURE THAT ALL FUTURE BRAND NAME OR EQUAL SOLICITATIONS INCLUDE A LIST OF SALIENT CHARACTERISTICS WHICH OFFERED EQUAL PRODUCTS MUST MEET IN ORDER TO BE CONSIDERED FOR AWARD.

TO THE EXTENT THAT CIBA CONTENDS THAT ITS OFFERED PRODUCT IS EQUAL TO THE BRAND NAME PRODUCT SPECIFIED IN THE IFB AND SHOULD NOT HAVE BEEN REJECTED AS NONRESPONSIVE, THE PROTEST IS TIMELY, BECAUSE IT WAS FILED IN OUR OFFICE WITHIN 10 DAYS AFTER CIBA RECEIVED NOTIFICATION THAT ITS OFFERED GILFORD ANALYZER WAS NOT CONSIDERED TO BE EQUAL TO THE ROCHE ANALYZER NAMED IN THE IFB PURCHASE DESCRIPTION. 4 C.F.R. SEC. 21.2(A)(2). HOWEVER, WE FIND THE PROTEST TO BE WITHOUT MERIT.

AS INDICATED ABOVE, IN A BRAND NAME OR EQUAL PROCUREMENT, THE CONTRACTING AGENCY HAS AN OBLIGATION TO INFORM BIDDERS OF THE SALIENT CHARACTERISTICS OF THE BRAND NAME PRODUCT ESSENTIAL TO THE GOVERNMENT. SEE ALSO FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SECS. 10.001, 10.004(B) (1985). WHERE THE AGENCY DOES NOT INCLUDE A LIST OF SALIENT CHARACTERISTICS IN THE SOLICITATION, THE AGENCY IS PRECLUDED FROM REJECTING AN "EQUAL" BID FOR NONCOMPLIANCE WITH SOME PERFORMANCE OR DESIGN FEATURE, UNLESS THE OFFERED ITEM IS SIGNIFICANTLY DIFFERENT FROM THE BRAND NAME PRODUCT. SEE CYBERMEDIC, B-200628, MAY 19, 1981, 81-1 CPD PARA. 380 AT 5. ACCORDINGLY, THE ISSUE FOR RESOLUTION IS WHETHER VAMC PROPERLY DETERMINED THAT CIBA'S OFFERED GILFORD ANALYZER IS SIGNIFICANTLY DIFFERENT FROM THE BRAND NAME ROCHE ANALYZER.

THE BASIC DIFFERENCE IN DESIGN BETWEEN THE ROCHE AND GILFORD ANALYZERS IS THAT THE ROCHE ANALYZER USES CENTRIFUGAL FORCE TO TRANSFER AND MIX CHEMICALS AND TO START CHEMICAL REACTIONS WHILE THE GILFORD ANALYZER USES FORCED PISTON ACTION TO ACCOMPLISH THESE TASKS. CIBA CONTENDS THAT THIS IS MERELY AN INSIGNIFICANT DESIGN FEATURE WHICH HAS LITTLE OR NO EFFECT ON THE ULTIMATE CHEMICAL ANALYSIS THE ANALYZER IS USED TO PERFORM. HOWEVER, AFTER REVIEWING CIBA'S TECHNICAL LITERATURE AND PROTEST ARGUMENTS, THE VAMC LABORATORY PERSONNEL WHO WILL BE USING THE EQUIPMENT STRONGLY DISAGREE. ACCORDING TO THE CHIEF, CLINICAL CHEMISTRY/STAT SECTIONS, LABORATORY SERVICE, AS WELL AS HER ASSISTANT, THEY CURRENTLY HAVE AND USE BOTH THE ROCHE AND GILFORD SYSTEMS IN THE VAMC LABORATORY. THEY REPORT SEVERAL SIGNIFICANT DIFFERENCES BETWEEN THE TWO TYPES OF ANALYZERS WHICH ARE DIRECTLY RELATED TO THIS AND OTHER DIFFERENCES IN DESIGN. FIRST, SINCE CENTRIFUGAL ACTION IS LESS TURBULENT THAN FORCED PISTON ACTION, AN INITIAL SPECTROPHOTOMETRIC OR FLUOROMETRIC MEASUREMENT MAY BE TAKEN AT AN EARLIER TIME AFTER CHEMICAL REACTION IS INITIATED USING THE ROCHE ANALYZER; THIS ALLOWS THE USER TO PERFORM TESTS UTILIZING RAPID CHEMICAL REACTIONS.

SECOND, THE LABORATORY PERSONNEL PREFER THE ROCHE ANALYZER BECAUSE IT HOLDS AND ALLOWS ANALYSIS OF A LARGE NUMBER OF CUVETTES (TRANSPARENT LABORATORY VESSELS) SIMULTANEOUSLY (PARALLEL ANALYSIS) WHILE THE GILFORD ANALYZER LIMITS MEASUREMENT TO ONE OR TWO CUVETTES AT A TIME (SEQUENTIAL ANALYSIS). ACCORDING TO VAMC, THIS ALLOWS A GREATER NUMBER OF ANALYSES TO BE PERFORMED USING THE ROCHE ANALYZER IN A GIVEN PERIOD OF TIME THAN CAN BE PERFORMED USING THE GILFORD ANALYZER. CIBA, HOWEVER, ARGUES THAT IT HAS PERFORMED TESTS WHICH SHOW THAT ITS ANALYZER CAN ACTUALLY ACHIEVE GREATER "THROUGHPUT" THAN CAN THE ROCHE ANALYZER.

THIRD, THE LABORATORY PERSONNEL POINT OUT THAT THIS PARTICULAR ROCHE ANALYZER'S DESIGN ALLOWS SPECTROPHOTOMETRIC MEASUREMENTS TO BE MADE ALONG THE LONGITUDINAL AXIS OF A CUVETTE, RATHER THAN ALONG THE TRANSVERSE AXIS AS WITH THE GILFORD ANALYZER. VAMC ARGUES THAT THIS ROCHE FEATURE (LONGITUDINAL MEASUREMENT) ALLOWS GREATER PRECISION AND RELIABILITY IN PERFORMING ANALYSES. CIBA CALLS THIS A "THEORETICAL ADVANTAGE" RATHER THAN A TRUE DISTINCTION IN THE CHEMICAL LABORATORY.

WE BELIEVE THAT VAMC HAS REASONABLY DETERMINED THAT THE GILFORD ANALYZER IS SIGNIFICANTLY DIFFERENT FROM THE ROCHE ANALYZER FOR ITS PARTICULAR LABORATORY USE AT VAMC. WHILE CIBA HAS ARGUES THAT THE VAMC EXPERTS ARE INCORRECT IN SEVERAL RESPECTS AS NOTED ABOVE, CIBA'S DISAGREEMENT WITH VAMC'S TECHNICAL EXPERTS' ANALYSIS AND OPINIONS IS NOT SUFFICIENT TO INVALIDATE THE AGENCY'S FINDINGS. SEE DANTEC ELECTRONICS, INC., B-213247, AUG. 27, 1984, 84-2 CPD PARA. 224. THIS IS ESPECIALLY TRUE HERE BECAUSE VAMC'S TECHNICAL EXPERTS ARE AMONG THE VERY PEOPLE WHO WILL BE USING THE TECHNICAL EQUIPMENT BEING PURCHASED. FURTHERMORE, WE NOTE THAT VAMC HAD APPARENTLY PERFORMED ITS PRELIMINARY EVALUATION OF THE ADVANTAGES AND DISADVANTAGES OF THE TWO TYPES OF ANALYZERS AT CIBA'S REQUEST PRIOR TO ISSUING THE IFB, WHICH SPECIFICALLY STATED THAT ROCHE "CENTRIFUGAL" ANALYZERS OR EQUAL WOULD BE REQUIRED. THE AGENCY EVALUATED THE DISTINCTIONS BETWEEN THE TWO MODELS ONCE AGAIN AFTER CIBA BID THE GILFORD ANALYZER AND CAME TO THE SAME CONCLUSIONS-- THAT IS, FOR VAMC PURPOSES THE ROCHE CENTRIFUGAL ANALYZER IS DECIDEDLY SUPERIOR TO THE GILFORD ANALYZER.

BASED UPON THE ABOVE ANALYSIS, WE WILL NOT OVERTURN VAMC'S DETERMINATION THAT CIBA OFFERED A PRODUCT WHICH IS SIGNIFICANTLY DIFFERENT FROM THE BRAND NAME PRODUCT SPECIFIED IN THE IFB AND THAT CIBA'S BID WAS, THEREFORE, NONRESPONSIVE.

THE PROTEST IS DENIED.