B-146302, OCT. 24, 1961

B-146302: Oct 24, 1961

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TO THE MARSHALL WEBB COMPANY: REFERENCE IS MADE TO YOUR LETTERS OF JULY 6 AND 28. THE INVITATION REQUESTED BIDS FOR FURNISHING A NUMBER OF ICE MAKING MACHINES AND ICE STORAGE CHESTS WHICH WERE DESCRIBED UNDER SEVEN SEPARATE ITEMS. THE INVITATION LISTED UNDER ITEM 1 THE FOLLOWING FEATURES WHICH WERE CONSIDERED ESSENTIAL IN DETERMINING IF A PRODUCT OFFERED IS. EQUIPPED WITH NON-REFRIGERATED STAINLESS STEEL EXTERIOR AND INTERIOR LINED STORAGE BIN TO HAVE UP TO 650 POUNDS STORAGE CAPACITY. SCOTSMAN MODEL SC 500 EAC- S5 OR EQUAL" THE INVITATION ALSO INCLUDED THE FOLLOWING PROVISION: "CERTAIN SUPPLIES CALLED FOR BY THIS INVITATION FOR BIDS ARE IDENTIFIED IN THE SCHEDULE BY A BRAND NAME "OR EQUAL" DESCRIPTION.

B-146302, OCT. 24, 1961

TO THE MARSHALL WEBB COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF JULY 6 AND 28, 1961, PROTESTING AWARDS MADE TO OTHER BIDDERS UNDER INVITATION FOR BIDS NO. 41-615-61 205, ISSUED ON MAY 20, 1961, BY LACKLAND AIR FORCE BASE.

THE INVITATION REQUESTED BIDS FOR FURNISHING A NUMBER OF ICE MAKING MACHINES AND ICE STORAGE CHESTS WHICH WERE DESCRIBED UNDER SEVEN SEPARATE ITEMS. EACH ITEM CONTAINED A BRIEF DESCRIPTION OF THE ICE MAKING MACHINE OR ICE CHEST REQUIRED AND IN ADDITION THE FIRST SIX ITEMS SPECIFIED A PARTICULAR SCOTAMAN MODEL NUMBER "OR EQUAL.' THE INVITATION LISTED UNDER ITEM 1 THE FOLLOWING FEATURES WHICH WERE CONSIDERED ESSENTIAL IN DETERMINING IF A PRODUCT OFFERED IS, IN FACT, EQUAL TO THE MODEL SPECIFIED:

"1.4110-NL005512 ICE MAKING MACHINE: CUBE, AUTOMATIC DISPENSING, STAINLESS STEEL EXTERIOR, DAILY CAPACITY: APPROXIMATELY 500 LBS, EQUIPPED WITH NON-REFRIGERATED STAINLESS STEEL EXTERIOR AND INTERIOR LINED STORAGE BIN TO HAVE UP TO 650 POUNDS STORAGE CAPACITY. SCOTSMAN MODEL SC 500 EAC- S5 OR EQUAL"

THE INVITATION ALSO INCLUDED THE FOLLOWING PROVISION:

"CERTAIN SUPPLIES CALLED FOR BY THIS INVITATION FOR BIDS ARE IDENTIFIED IN THE SCHEDULE BY A BRAND NAME "OR EQUAL" DESCRIPTION. THIS IDENTIFICATION IS DESCRIPTIVE RATHER THAN RESTRICTIVE. BIDS OFFERING "OR EQUAL" SUPPLIES WILL BE CONSIDERED FOR AWARD IF SUCH SUPPLIES ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL TO THE BRAND NAMED SUPPLIES IN ALL MATERIAL RESPECTS.'

A TOTAL OF FIFTEEN DEALERS RECEIVED COPIES OF THE INVITATION AND SEVEN SUBMITTED BIDS. BIDS WERE OPENED ON JUNE 8, 1961, AND A DETERMINATION OF THE LOW RESPONSIVE BID FOR EACH ITEM WAS MADE BY THE CONTRACTING OFFICER WITH TECHNICAL ADVICE AND ASSISTANCE FROM THE ASSISTANT BASE FOOD SERVICE OFFICER, MECHANICAL ENGINEERS FROM CIVIL ENGINEERING GROUP AND CHIEF, SUPPLY CONTRACTS BRANCH, BASE PROCUREMENT OFFICE. YOUR FIRM BID ON THE EXACT SCOTSMAN MODEL NUMBER SPECIFIED FOR EACH ITEM. YOUR BIDS ON ITEMS 2 AND 3 WERE THE LOWEST SUBMITTED AND YOU RECEIVED THE AWARD FOR THOSE ITEMS UNDER CONTRACT AF 4/615/-4571 IN THE AMOUNT OF $4,332.75. STRAUS-FRANK COMPANY, SAN ANTONIO, TEXAS, OFFERED TO FURNISH CRYSTAL TIPS MODEL CHZ-450 AS THE EQUAL OF SCOTSMAN MODEL SC 500 ESC-SS SPECIFIED UNDER ITEM 1 AND A MANNDARDT MODEL AS EQUAL TO THE SCOTSMAN MODEL SPECIFIED UNDER ITEM 6. THE BIDS OF STRAUS-FRANK COMPANY WERE DETERMINED TO BE THE LOWEST RESPONSIVE BIDS FOR ITEMS 1 AND 6 AND CONTRACT AF 41/615/-4562 WAS AWARDED TO STRAUS FRANK FOR THOSE TWO ITEMS. KOTZEBUE DISTRIBUTING COMPANY, SAN ANTONIO, TEXAS, OFFERING CARRIER CORPORATION EQUIPMENT, SUBMITTED THE LOWEST BIDS ON ITEMS 4 AND 5 AND WAS AWARDED THOSE TWO ITEMS UNDER CONTRACT AF 41 (615/-4570. THE DESCRIPTION OF ITEM 7 WAS DEFECTIVE IN THAT IT DID NOT STATE THAT THE ICE STORAGE CHEST MUST SERVE AS A COMPONENT OF ITEM 1, AND THE ITEM WAS CANCELLED. THE THREE CONTRACTS AWARDED UNDER THE INVITATION WERE DATED JUNE 23, 1961, AND HAVE SINCE BEEN FULLY PERFORMED.

IN YOUR LETTER OF JULY 6, 1961, YOU PROTEST THE AWARDS OF ITEMS 1, 4, 5 AND 6 AND THE CANCELLATION OF ITEM 7 BECAUSE OF YOUR BELIEF THAT THE PROCUREMENT OFFICE DID NOT PURCHASE THE EQUIPMENT REQUESTED BY THE USING AGENCY (FOOD SERVICE) AND BECAUSE, IN YOUR OPINION, THE EQUIPMENT OFFERED BY THE SUCCESSFUL BIDDERS IS NOT EQUAL IN QUALITY OR PERFORMANCE TO THE EQUIPMENT SPECIFIED IN THE INVITATION. YOU OBJECT TO THE ALLEGED ACTION OF THE CONTRACTING OFFICER IN USING ICE PRODUCTION CAPACITY AS THE PRIMARY FACTOR IN DETERMINING WHETHER THE EQUIPMENT OFFERED EQUALED THE EQUIPMENT SPECIFIED IN THE INVITATION. MORE SPECIFICALLY, YOU CONTEND THAT THE SUCCESSFUL BIDDER ON ITEM 1 ADMITTED IN A CONVERSATION WITH AN OFFICER EVALUATING THE BIDS THAT THE MACHINE HE OFFERED DID NOT HAVE A STAINLESS STEEL BACK AND BOTTOM PANEL AS SPECIFIED, BUT WHEN ASKED TO VERIFY HIS BID HE FURNISHED A LETTER STATING THE BACK AND BOTTOM PANEL WOULD BE STAINLESS STEEL THEREBY IMPROVING HIS BID. YOU FURTHER PROTEST THAT THE SAME BIDDER FURNISHED AN ICE PRODUCTION CHART WHICH DID NOT DISTINGUISH ICE CUBES AND ICE CHIP PRODUCTIONS, BUT STATED ONLY TOTAL ICE PRODUCTION. IN ADDITION, YOU POINT OUT THAT THE ICE MACHINE OFFERED BY THE SUCCESSFUL BIDDER FOR ITEM 1 HAS A ONE HORSEPOWER MOTOR AS COMPARED TO A ONE AND ONE-HALF HORSEPOWER MOTOR ON THE SCOTSMAN MODEL SPECIFIED IN THE INVITATION. YOUR LETTER OF JULY 28, 1961, CONTAINS A RESTATEMENT OF THE BASIS FOR YOUR PROTEST, SETTING FORTH SUBSTANTIALLY THE SAME INFORMATION FURNISHED IN YOUR LETTER OF JULY 6, 1961.

THE RECORD BEFORE US DOES NOT SUPPORT YOUR CONTENTION THAT THE PROCUREMENT OFFICE DID NOT PURCHASE THE EQUIPMENT REQUESTED BY THE USING AGENCY. THE ASSISTANT BASE FOOD SERVICE STAFF OFFICER CONCURRED IN THE FINDINGS AND RECOMMENDATIONS IN THE EVALUATION OF BIDS WHICH RESULTED IN AWARDS TO STRAUS-FRANK AND KETZEBUE FOR THE EQUIPMENT THEY OFFERED AS EQUAL TO THE SCOTSMAN MODELS DESIGNATED IN THE INVITATION. IN ANY EVENT, OUR OFFICE HAS CONSISTENTLY HELD THAT A MERE DESIRE ON THE PART OF AN AGENCY FOR A PARTICULAR MAKE OF EQUIPMENT IS NOT OF ITSELF SUFFICIENT JUSTIFICATION FOR PURCHASE OF THAT PARTICULAR MAKE TO THE EXCLUSION OF OTHER MAKES WHICH WILL MEET THE MINIMUM NEEDS OF THE GOVERNMENT. 38 COMP. GEN. 291; 16 ID. 171. ALTHOUGH WE HAVE RECOGNIZED THAT THERE ARE CERTAIN ISOLATED INSTANCES IN WHICH IT IS NECESSARY TO DESCRIBE THE NEEDS OF THE GOVERNMENT IN TERMS OF A PARTICULAR MANUFACTURER'S PRODUCT, SUCH A DESCRIPTION ALONE IS RESTRICTIVE OF COMPETITION AND WE HAVE HELD THAT THE DESCRIPTION MUST ALSO INCLUDE THE WORDS "OR EQUAL" AND A LISTING OF THE PARTICULAR FEATURES CONSIDERED ESSENTIAL BY THE CONTRACTING AGENCY. COMP. GEN. 291, 294.

REGARDING YOUR CONTENTION THAT THE SUCCESSFUL BIDDER ON ITEM 1 WAS PERMITTED TO IMPROVE HIS BID BY VERIFYING THAT HE WOULD FURNISH STAINLESS STEEL BACK AND BOTTOM PANEL, THE QUESTION TO BE CONSIDERED IS WHAT TYPE EXTERIOR THE BIDDER WAS OBLIGATED TO FURNISH BY THE TERMS OF THE INVITATION AND BID AND NOT WHAT CONVERSATION TOOK PLACE BETWEEN THE BIDDER AND AN EVALUATION OFFICER. THE INVITATION REQUIRED UNDER ITEM 1, AN ICE MAKING MACHINE WITH A STAINLESS STEEL EXTERIOR. STRAUS FRANK OFFERED A CRYSTAL TIPS MACHINE WHICH IS AVAILABLE IN BOTH BAKED ENAMEL AND STAINLESS STEEL FINISH. IN THE DESCRIPTIVE LITERATURE FURNISHED WITH THE STRAUS- FRANK BID, THERE WAS WRITTEN IN INK THE WORDS "STAINLESS STEEL FINISH" AND THE MODEL NUMBER, ABOVE THE CABINET DESCRIPTION WHICH STATED THAT BOTH FINISHES WERE AVAILABLE. IN OUR OPINION, THIS WAS AN OFFER TO FURNISH A MACHINE WITH A STAINLESS STEEL EXTERIOR AND ACCEPTANCE OF THAT OFFER OBLIGATED THE BIDDER TO SUCH PERFORMANCE WITHOUT REGARD TO ANY OPINIONS EXPRESSED DURING CONVERSATIONS ABOUT THE BID. THE BIDDER'S LETTER CONFIRMING HIS BID AND ACKNOWLEDGING THAT HE WOULD FURNISH WHAT HE WAS LEGALLY OBLIGATED TO FURNISH WAS NOT AN IMPROVEMENT OF HIS BID AFTER OPENING AND WAS, IN FACT, WITHOUT ANY EFFECT WHATEVER SINCE THE DUTIES AND OBLIGATIONS RESULTING FROM HIS BID COULD BE DETERMINED IN THE ABSENCE OF THE LETTER.

IN A SETTLEMENT DATED AUGUST 28, 1961, THE CONTRACTING OFFICER ADVISED THAT THE PRIMARY FACTOR USED IN EVALUATING THE BIDS WAS THE DAILY ICE PRODUCTION CAPACITY OF THE UNITS OFFERED AND THEREFORE THE FACT THAT THE MACHINE OFFERED BY STRAUS-FRANK HAD A ONE HORSEPOWER MOTOR INSTEAD OF ONE AND ONE-HALF HORSEPOWER AS EMPLOYED IN THE SPECIFIED MODEL SCOTSMAN WAS CONSIDERED INSIGNIFICANT AS LONG AS THE CAPACITY EQUALLED OR EXCEEDED THE CAPACITY OF THE UNIT SPECIFIED. IN THIS REGARD, WE HAVE HELD THAT WHEN AN INVITATION DESCRIBES THE PRODUCT OF A PARTICULAR MANUFACTURER, OR EQUAL, IT IS NOT NECESSARY THAT AN ALTERNATE ITEM BE AN EXACT DUPLICATE, SINCE SUCH AN INTERPRETATION WOULD BE REGARDED AS SO RESTRICTIVE AS TO PRECLUDE A LAWFUL AWARD. B 124587, DECEMBER 1955.

YOUR PROTEST CONCERNING THE ACCURACY OF THE ICE PRODUCTION CHART FURNISHED BY STRAUS-FRANK SUGGESTS THAT THE TOTAL ICE PRODUCTION SHOWN THEREIN DOES NOT REFER TO ICE CUBES, BUT TO ICE CHIPS. THE ICE PRODUCTION CHART AND THE BID SUBMITTED BY STRAUS-FRANK, HOWEVER, WERE NOT QUALIFIED IN ANY MANNER WHICH WOULD RELIEVE THAT COMPANY FROM FURNISHING ICE MAKING MACHINES WHICH MEET THE MINIMUM NEEDS OF THE GOVERNMENT. IF THE MACHINES FURNISHED UNDER THE CONTRACT DO NOT MEET THE CAPACITY REQUIREMENTS, THAT WOULD BE A BREACH OF CONTRACT ON THE PART OF THE CONTRACTOR AND WOULD BE A MATTER TO BE SETTLED BETWEEN THE GOVERNMENT AND STRAUS-FRANK.

THE HISTORY OF THE BRAND NAME "OR EQUAL" PROVISION HAS SHOWN THAT ADMINISTRATIVE AND LEGAL DIFFICULTIES MAY REGULARLY BE EXPECTED IN CONNECTION WITH ITS USE. SEE 38 COMP. GEN. 380, 384. THE PRESENT CASE MERELY PROVIDES ANOTHER EXAMPLE OF THE DIFFICULTIES ENCOUNTERED. WITH RESPECT TO FUTURE PURCHASES OF ICE MAKING EQUIPMENT, YOU ARE ADVISED THAT WE HAVE TODAY SUGGESTED TO THE SECRETARY OF THE AIR FORCE THAT THE DEPARTMENT AVOID THE USE OF THE BRAND NAME "OR EQUAL" PROVISION EXCEPT IN THOSE INSTANCES WHERE IT IS NOT OTHERWISE POSSIBLE TO EXPRESS THE MINIMUM REQUIREMENTS OF THE GOVERNMENT.

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