B-209710, B-209710.2, MAY 23, 1983

B-209710,B-209710.2: May 23, 1983

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BID WHICH OFFERED TO SUPPLY SOME OF REQUIRED FURNITURE ITEMS WITH DIMENSIONS DIFFERENT FROM THOSE LISTED IN THE SOLICITATION AS SALIENT CHARACTERISTICS WAS NONRESPONSIVE AS TO THOSE ITEMS. CANCELLATION WOULD HAVE BEEN RECOMMENDED IF CONTRACT HAD NOT BEEN PERFORMED. EITHER ARTEC OR KIMBALL WAS SPECIFIED AS THE BRAND NAME AND EACH ITEM OF FURNITURE WAS DESCRIBED. BURGMEIER AND ARTEC ALLEGE THAT THE AWARD TO DOURON WAS IMPROPER BECAUSE (1) DOURON'S BID WAS NONRESPONSIVE SINCE THE PRODUCTS OFFERED WERE NOT EQUAL TO THE BRAND NAME PRODUCTS AS REQUIRED BY THE SOLICITATION. (2) DOURON IS INCAPABLE OF PERFORMING THE CONTRACT. (4) THE LOWER BUY AMERICAN ACT DIFFERENTIAL WAS APPLIED TO THE DOURON BID.

B-209710, B-209710.2, MAY 23, 1983

DIGEST: UNDER BRAND NAME OR EQUAL SOLICITATION, BID WHICH OFFERED TO SUPPLY SOME OF REQUIRED FURNITURE ITEMS WITH DIMENSIONS DIFFERENT FROM THOSE LISTED IN THE SOLICITATION AS SALIENT CHARACTERISTICS WAS NONRESPONSIVE AS TO THOSE ITEMS. BECAUSE THE ACCEPTANCE OF THE DEVIATING BID SHOWED THAT THE SOLICITATION OVERSTATED GOVERNMENT NEEDS AND THE SOLICITATION CONTAINED NO REQUIRED OR DESIRED DELIVERY SCHEDULE, CANCELLATION WOULD HAVE BEEN RECOMMENDED IF CONTRACT HAD NOT BEEN PERFORMED.

THE BURGMEIER COMPANY; ARTEC, A DIVISION OF KIMBALL INTERNATIONAL:

THE BURGMEIER COMPANY (BURGMEIER) AND ARTEC, A DIVISION OF KIMBALL INTERNATIONAL (ARTEC), BURGMEIER'S MANUFACTURER/SUPPLIER, PROTEST THE AWARD OF A CONTRACT TO THE DOURON GOVERNMENT SALES DIVISION (DOURON) BY THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS (ADMINISTRATIVE OFFICE) PURSUANT TO INVITATION FOR BIDS (IFB) NO. WI/E/B-82-1397. SUSTAIN THE PROTEST.

THE SOLICITATION, ISSUED ON A BRAND NAME OR EQUAL BASIS, REQUESTED BIDS ON 100 ITEMS OF OFFICE FURNITURE. EITHER ARTEC OR KIMBALL WAS SPECIFIED AS THE BRAND NAME AND EACH ITEM OF FURNITURE WAS DESCRIBED, INCLUDING DIMENSIONS.

DOURON OFFERED TO SUPPLY AN EQUAL CANADIAN PRODUCT ON ALL ITEMS. AFTER AWARDING A CONTRACT TO BURGMEIER, THE ADMINISTRATIVE OFFICE THEN CORRECTED AN APPARENT CLERICAL ERROR IN THE DOURON BID AND APPLIED A LOWER BUY AMERICAN ACT DIFFERENTIAL. DOURON'S BID BECAME LOW. CONSEQUENTLY, THE AGENCY AWARDED DOURON A CONTRACT TO SUPPLY ALL ITEMS EXCEPT ONE, AFTER TERMINATING BURGMEIER'S CONTRACT.

BURGMEIER AND ARTEC ALLEGE THAT THE AWARD TO DOURON WAS IMPROPER BECAUSE (1) DOURON'S BID WAS NONRESPONSIVE SINCE THE PRODUCTS OFFERED WERE NOT EQUAL TO THE BRAND NAME PRODUCTS AS REQUIRED BY THE SOLICITATION; (2) DOURON IS INCAPABLE OF PERFORMING THE CONTRACT; (3) THE CONTRACTING OFFICER IMPROPERLY CORRECTED A MISTAKE IN THE BID PRICE SUBMITTED BY DOURON; AND (4) THE LOWER BUY AMERICAN ACT DIFFERENTIAL WAS APPLIED TO THE DOURON BID.

A BID WHICH OFFERS AN EQUAL PRODUCT MUST CONFORM TO THE SALIENT CHARACTERISTICS LISTED IN THE SOLICITATION TO BE RESPONSIVE. TM SYSTEMS, INC., B-205091, APRIL 5, 1982, 82-1 CPD 305. STRICT COMPLIANCE WITH THE LISTED FEATURES OF THE BRAND NAME PRODUCT IS REQUIRED. SECURITY ASSISTANCE FORCES & EQUIPMENT EXPORT CORPORATION, B-204936, MARCH 4, 1982, 82-1 CPD 195. UNDER SEVERAL ITEMS, HOWEVER, DOURON CROSSED OUT THE LISTED FURNITURE DIMENSIONS AND INSERTED THE DIFFERENT DIMENSIONS OF THE FURNITURE WHICH IT INTENDED TO SUPPLY. ITEM NO. 113, FOR EXAMPLE, REQUESTED A PANEL 18 INCHES IN WIDTH AND 45 INCHES IN HEIGHT. DOURON CROSSED OUT THE 45-INCH HEIGHT REQUIREMENT AND INSERTED IN ITS PLACE 42 INCHES. INASMUCH AS THE FURNITURE DIMENSIONS WERE SPECIFIED, THEY ARE SALIENT CHARACTERISTICS, AND THE INSERTIONS OF DIFFERENT DIMENSIONS BY DOURON ON SEVERAL ITEMS RENDERED ITS BID NONRESPONSIVE AS TO THOSE ITEMS. EBSCO INDUSTRIES, INC.; AMERICAN OF MARTINSVILLE, B-206401; B-206401.2, JUNE 2, 1982, 82-1 CPD 524.

THE ACCEPTANCE OF THE DOURON BID BY THE ADMINISTRATIVE OFFICE AND ITS POSITION THAT THE BID IS RESPONSIVE INDICATE THAT THE SPECIFIED FURNITURE DIMENSIONS WERE NOT REQUIRED TO MEET THE NEEDS OF THE GOVERNMENT. THIS OVERSTATEMENT OF GOVERNMENT NEEDS, SEE EBSCO INDUSTRIES, INC.; AMERICAN OF MARTINSVILLE, SUPRA, IS A MATERIAL SOLICITATION DEFICIENCY. IN ADDITION, THE SOLICITATION WAS DEFECTIVE IN ANOTHER RESPECT. THE IFB FAILED TO INCLUDE A REQUIRED OR DESIRED DELIVERY SCHEDULE. SEE 51 COMP.GEN. 518, 521 (1972).

UNDER THESE CIRCUMSTANCES, WE NORMALLY WOULD RECOMMEND CANCELLATION OF THE IFB AND RESOLICITATION. HOWEVER, SINCE THE CONTRACT HAS BEEN FULLY PERFORMED, SUCH REMEDIAL ACTION MAY NOT BE RECOMMENDED. IN FUTURE PROCUREMENTS, THE ADMINISTRATIVE OFFICE SHOULD DRAFT SOLICITATIONS TO AVOID A RECURRENCE OF THESE DEFICIENCIES.

BECAUSE THE DOURON BID WAS NONRESPONSIVE AS TO SEVERAL ITEMS AND CANCELLATION WOULD HAVE BEEN THE PROPER COURSE OF ACTION, WE NEED NOT ADDRESS THE OTHER OBJECTIONS WHICH HAVE BEEN RAISED BY BURGMEIER AND ARTEC.

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