B-156589, AUG. 25, 1965

B-156589, AUG. 25, 1965

TO WOLFE, HUBBARD, VOIT AND OSANN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 20, 1965, PROTESTING ON BEHALF OF THE PACKARD INSTRUMENT COMPANY, INC., AGAINST THE AWARD OF A CONTRACT TO ANS, INC., UNDER INVITATION FOR BIDS NO. 118-6-23-64.

THE SUBJECT INVITATION, AS AMENDED, CALLED FOR BIDS ON SUPPLYING AN ACTIVITY OF THE UNITED STATES PUBLIC HEALTH SERVICE WITH EITHER ONE OR TWO AUTOMATIC TRI-CARB SPECTROMETERS, TO BE PACKARD INSTRUMENT COMPANY, INC., MODEL 3214, OR EQUAL, AND TO INCLUDE TEN SPECIFIED FEATURES. AS REQUIRED BY FEDERAL PROCUREMENT REGULATIONS 1-1.307-6, THE INVITATION INCLUDED THE "BRAND NAME OR EQUAL" CLAUSE ADVISING THAT BIDS OFFERING AN "EQUAL" PRODUCT WOULD BE CONSIDERED FOR AWARD IF SUCH PRODUCT WAS DETERMINED TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME REFERENCED. FURTHER, THAT SINCE THE DETERMINATION OF EQUALITY WOULD BE BASED PRIMARILY ON INFORMATION FURNISHED BY THE BIDDER, THE "BIDDER MUST FURNISH AS A PART OF HIS BID ALL DESCRIPTIVE MATERIAL ... NECESSARY FOR THE PURCHASING ACTIVITY TO (I) DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE INVITATION FOR BIDS AND (II) ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD.'

THREE BIDS WERE RECEIVED AND OPENED ON JUNE 26, 1964. THE LOW BID OF NUCLEAR-CHICAGO CORPORATION, WAS REJECTED AS NONRESPONSIVE. THE ANS BID ON ITS MODEL 1200 DUAL CHANNEL ANSITRON, WITHOUT ANY ACCOMPANYING DESCRIPTIVE LITERATURE, BEING $57 LOWER THAN THE PACKARD BID, WAS ACCEPTED AND AWARD WAS MADE ON JUNE 27, 1964.

UPON LEARNING OF THE AWARD TO ANS IN A TELEPHONE CALL ON JUNE 29, 1964, TO THE PURCHASING AGENT, THE PACKARD REPRESENTATIVE PROTESTED SUCH ACTION. ANOTHER CALL WAS MADE BY PACKARD TO THE PURCHASING ACTIVITY LATER THE SAME DAY ADVISING THAT A WRITTEN PROTEST WOULD BE LODGED AS THE ANS PRODUCT DID NOT MEET THE SPECIFICATIONS. UNDER DATE OF JUNE 29, 1964, PACKARD FORMALLY PROTESTED THE AWARD TO ANS, AND IN ITS LETTER OF PROTEST LISTED SIX DEVIATIONS FROM THE SPECIFICATIONS IN THE ANS BID. THE RECORD INDICATES THAT PACKARD CONFERRED WITH SEVERAL OFFICIALS OF THE PURCHASING ACTIVITY ON JUNE 30, 1964. ON JULY 2, 1964, MR. ERNEST E. TSCHOPP, CHIEF, CONTRACT BRANCH, OFFICE OF THE CHIEF, BUREAU OF STATE SERVICES, WAS INFORMED OF THE AWARD, THE PROTEST, AND SURROUNDING CIRCUMSTANCES BY THESE OFFICIALS, AND REPORTEDLY APPROVED OF THE ACTION TAKEN AND CONCURRED IN THEIR BELIEF THAT THE PROTEST WAS WITHOUT MERIT. ALTHOUGH THERE WAS SUBSEQUENT CORRESPONDENCE BETWEEN PACKARD AND THE PROCURING ACTIVITY, THE ANS INSTRUMENT WAS DELIVERED IN AUGUST 1964.

IT APPEARS THAT YOU ACTIVELY ENTERED THE CASE ABOUT OCTOBER 7, 1964, AT WHICH TIME YOU CONFERRED WITH MR. TSCHOPP. THE CONFERENCE WAS FOLLOWED UP BY YOUR LETTER OF OCTOBER 21, 1964, TO MR. TSCHOPP, DETAILING THE BASIS OF PACKARD'S CONTENTION THAT THE ANS EQUIPMENT DID NOT CONFORM TO THE SPECIFICATIONS. A REPLY TO THIS LETTER WAS NOT FORTHCOMING FOR SOME FIVE MONTHS AT WHICH TIME YOUR PROTEST WAS DENIED. THEREAFTER, YOU PROTESTED TO OUR OFFICE.

ALTHOUGH A REPORT ON YOUR PROTEST WAS REQUESTED ON APRIL 28, 1965, IT WAS NOT RECEIVED IN OUR OFFICE UNTIL JULY 28. WE ARE ADVISED THAT AFTER A REVIEW OF THIS ENTIRE MATTER BY THE OFFICE OF THE SECRETARY, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, IT HAS BEEN CONCLUDED THAT, ALTHOUGH THE PROCURING PERSONNEL ACTED IN GOOD FAITH, THE AWARD WAS ERRONEOUSLY MADE TO ANS. IT IS CONCEDED THAT THE FAILURE OF ANS TO SUBMIT DESCRIPTIVE LITERATURE WITH ITS BID AS REQUIRED BY THE ,BRAND NAME OR EQUAL" CLAUSE, HERETOFORE CITED, SHOULD HAVE RESULTED IN REJECTION OF ITS BID AS BEING NONRESPONSIVE. IT IS RECOGNIZED THAT THE ANS OFFER TO MEET OR EXCEED ALL OF THE SPECIFICATIONS DID NOT CURE THIS DEFICIENCY IN ITS BID AND THAT THE CONTRACTING OFFICER'S ASSUMPTION THAT THERE WAS NO BASIS FOR REJECTION OF ITS BID IN VIEW OF THIS STATEMENT WAS ERRONEOUS. MOREOVER, IT IS ADMITTED, AS ALLEGED BY PACKARD IMMEDIATELY AFTER THE AWARD, THAT THE ANSITRON DOES NOT MEET ALL OF THE STATED SPECIFICATIONS. HOWEVER, IT IS REPORTED THAT THE INSTRUMENT HAS BEEN IN USE SINCE AUGUST 1964 AND DOES MEET THE ACTUAL NEEDS OF THE USING ACTIVITY. WE ARE ALSO ADVISED THAT ADMINISTRATIVE STEPS HAVE BEEN TAKEN TO INSURE STRICT COMPLIANCE WITH THE APPLICABLE "BRAND NAME OR EQUAL" REGULATIONS IN FUTURE PROCUREMENTS AND TO PRECLUDE A RECURRENCE OF A SITUATION LIKE THIS.

ALTHOUGH WE WOULD NORMALLY CONSIDER THE AWARD OF A CONTRACT UNDER SUCH CIRCUMSTANCES A NULLITY AND DIRECT CANCELLATION, OTHER FACTORS MILITATE AGAINST SUCH ACTION IN THIS CASE. THE EQUIPMENT WAS DELIVERED IN AUGUST 1964 AND HAS BEEN OPERATING SATISFACTORILY SINCE THAT TIME. MOREOVER, ALTHOUGH NOT IN ACCORDANCE WITH THE SPECIFICATION, THE ANSITRON HAS BEEN SATISFYING THE NEEDS OF THE USING ACTIVITY. SINCE THE CONTRACT HAS BEEN COMPLETELY EXECUTED AND THE GOVERNMENT HAS RECEIVED THE BENEFIT THEREOF, AND THERE IS NO INDICATION THAT THE PRICE PAID WAS IN EXCESS OF THE REASONABLE VALUE OF THE ITEM, THERE APPEARS TO BE NO SUBSTANTIAL BASIS FOR EXCEPTION OR OTHER ACTION BY THIS OFFICE WITH RESPECT THERETO AT THIS TIME.