B-181905, MAR 17, 1975

B-181905, MAR 17, 1975

1. CONTENTION THAT IFB SPECIFICATION OF BRAND NAME COLOR CONFINED TO ONE MANUFACTURER WAS UNDULY RESTRICTIVE OF COMPETITION IS NOT SIGNIFICANT, SINCE SPECIFICATION WAS NOT RESTRICTED TO BRAND NAME IN THAT IT PERMITTED AN EQUAL TO BE OFFERED. 2. EVEN IF CONTRACTOR, WHO WAS PERMITTED AFTER BID OPENING TO SUBSTITUTE "OR EQUAL" COLOR FOR BRAND NAME COLOR BID, IS FURNISHING BRAND NAME UNDER CONTRACT THAT IS NOT DETERMINATIVE OF PROPRIETY OF CONTRACT AWARD.

KENNETH DAVID LTD.:

KENNETH DAVID LTD. (DAVID) REQUESTS THAT OUR OFFICE RECONSIDER THE DECISION IN THE MATTER OF S. LIVINGSTON & SON, INC., B-181905, JANUARY 16, 1975, 54 COMP. GEN. , ON THE BASIS THAT IT WAS RENDERED WITHOUT CONSIDERATION OF ALL OF THE CIRCUMSTANCES.

IN THE JANUARY 16 DECISION, WE RECOMMENDED THAT THE BUREAU OF PRISONS (BUREAU) TERMINATE FOR THE CONVENIENCE OF THE GOVERNMENT THE CONTRACT AWARDED DAVID AS A RESULT OF INVITATION FOR BIDS (IFB) 100-4486 TO SUPPLY THE BUREAU'S FISCAL YEAR REQUIREMENTS FOR BLAZERS. THE RECOMMENDATION WAS A RESULT OF OUR CONCLUSION THAT THE SUBSTITUTION OF THE "OR EQUAL" COLOR AFTER BID OPENING, AT WHICH TIME DAVID BID ON THE BASIS OF FURNISHING THE BRAND NAME COLOR, WAS A DIFFERENT BID THAN SUBMITTED AND BEYOND THE CONTEMPLATION OF THE IFB AND PROCUREMENT LAW. SUCH A PROCEDURE, IF COUNTENANCED, WOULD RENDER A SHAM THE WHOLE COMPETITIVE CONTRACTING PROCEDURE.

DAVID'S REQUEST IS BASED IN PART UPON ITS MISTAKEN BELIEF THAT BECAUSE THE BRAND NAME COLOR SPECIFIED IN THE IFB WAS A "CONFINED" COLOR (ONE WHICH THE MANUFACTURER PREPARES FOR ONE CUSTOMER ONLY) THE SPECIFICATION WAS UNDULY RESTRICTIVE OF COMPETITION. IT APPEARS THAT ONLY ONE OF THE TWO BRAND NAME COLORS SPECIFIED IN THE IFB WAS CONFINED, THE ANTIQUE GOLD. DAVID'S OTHER BASIS IS THAT THE RECOMMENDATION IS NOT WARRANTED BECAUSE IT HAS PROVIDED A FABRIC AND COLOR THAT MEET THE SPECIFICATION AND IN THE CASE OF THE MARINER BLUE COLOR IT PROVIDED, IN THE END, THE BRAND NAME COLOR.

THE FIRST OF DAVID'S CONTENTIONS IS WITHOUT MERIT. THE FACT THAT THE DEERING MILLIKEN (DM) COLOR, ANTIQUE GOLD, WAS NOT GENERALLY AVAILABLE IS NOT SIGNIFICANT SINCE THE SPECIFICATION WAS NOT RESTRICTED TO THE BRAND NAME IN THAT IT PERMITTED AN EQUAL. IT IS THE RESPONSIBILITY OF THE BIDDER TO DETERMINE THE AVAILABILITY OF THE ITEM BEFORE IT BIDS AND MUST SUFFER THE CONSEQUENCES OF ITS ERRONEOUS ASSUMPTIONS OR LACK OF DILIGENCE. THIS IS ALSO APPLICABLE TO DAVID'S MISCONCEPTION THAT THE CHANGE IN DM'S WEIGHT AND WIDTH OF FABRIC RENDERED ITS USE UNAVAILABLE.

DAVID HAS SUBMITTED PURCHASE ORDERS FOR THE DM FABRIC TO SHOW THAT IT HAS USED IN THE PERFORMANCE OF THE CONTRACT THE DM MARINER BLUE COLOR SPECIFIED IN THE IFB, AND A DM "OR EQUAL" FOR THE ANTIQUE GOLD. DAVID MAINTAINS THAT SINCE IT IS DELIVERING A PRODUCT THAT MEETS THE SPECIFICATION (THE BRAND NAME IN ONE CASE AND "OR EQUAL" IN THE OTHER), CANCELLATION OF ITS CONTRACT IS UNWARRANTED. THE DIRECTOR OF THE BUREAU HAS SUBMITTED A REPORT SUPPORTING THIS BASIS. THE DIRECTOR STATES:

"THE ONLY PERTINENT QUESTION IS WHETHER THE CONTRACTOR WILL FURNISH A BLAZER WHICH WILL MEET THE ADVERTISED SPECIFICATIONS. SINCE DAVID TOOK NO EXCEPTIONS TO THE SPECIFICATIONS, AND INASMUCH AS THE BUREAU OF PRISONS IS SATISFIED WITH THE SAMPLES SUBMITTED, WE CANNOT CONCLUDE THAT THE BIDDER HAS NOT AGREED TO FURNISH A PRODUCT IN CONFORMANCE WITH THE ADVERTISED SPECIFICATION.

"CONCERNING THE ALLEGATION THAT THE CONTRACTING OFFICER PERMITTED A POST- BID BRAND NAME OR EQUAL COLOR CHANGE IS NOT SUBSTANTIATED. IT IS TRUE THAT COLOR SAMPLES WERE REQUESTED BY THE CONTRACTING OFFICER AND FURNISHED AFTER BID OPENING BUT ONLY AS A PRECAUTION TO MAKE CERTAIN THAT THE COLORS WERE THE SAME AS THOSE PROVIDED AT TIME OF BID OPENING."

WE BELIEVE THIS MATTER IS ADEQUATELY ANSWERED AT PAGES 4-5 OF OUR JANUARY 16 DECISION. FURTHER, WE WOULD ADD THAT UNDER ADVERTISED PROCUREMENTS, WHEN A BID IS SUBMITTED AND OPENED, IT IS TOO LATE TO PERMIT A BIDDER TO CHANGE THE TERMS OF ITS BID.

DAVID BID ON THE BASIS OF FURNISHING THE BRAND NAME COLOR AND FURNISHED A BRAND NAME COLOR SWATCH. THE AWARD WAS MADE TO DAVID UPON THE BASIS OF "OR EQUAL" COLOR SAMPLES FROM BINDER INDUSTRIES THAT DAVID WAS IMPROPERLY ALLOWED TO SUBSTITUTE AFTER THE OPENING OF BIDS FOR THE BRAND NAME COLORS DESIGNATED IN THE BID. IT IS CLEAR FROM A LETTER OF JUNE 21, 1974, FROM THE PROCUREMENT OFFICER TO DAVID THAT IF DAVID DID NOT FURNISH SUBSTITUTED COLOR SWATCHES FOR THE DM COLORS BY JULY 3, 1974, ITS BID WOULD BE REJECTED. BY LETTER OF JUNE 26, 1974, WELL AFTER BID OPENING, DAVID FURNISHED THE BINDER INDUSTRIES COLOR SWATCHES. THEREFORE, DAVID BID BRAND NAME BUT WAS AWARDED THE CONTRACT ON AN "OR EQUAL" BASIS CONTRARY TO THE GENERAL RULE THAT THE AWARD (ACCEPTANCE) MAY NOT VARY THE TERMS OF THE BID (OFFER).

DAVID NOW ARGUES THAT IT HAS CURED THE IMPROPRIETY, AT LEAST IN PART, BY REVERTING BACK TO THE BRAND NAME COLOR, MARINER BLUE. HOWEVER, WHETHER THE CONTRACT WAS PROPERLY AWARDED IS NOT DEPENDENT UPON HOW THE CONTRACT IS BEING PERFORMED, BUT RATHER WHETHER THE AWARD IS LEGALLY SUPPORTABLE. AS WE INDICATED IN THE JANUARY 16 DECISION, AND REAFFIRM HERE, IT IS NOT LEGALLY SUPPORTABLE. IN ANY EVENT, DAVID CANNOT MAINTAIN THAT THE "OR EQUAL" COLOR, ANTIQUE GOLD, CONFORMS TO THE ORIGINAL BID, SINCE THE BID FOR THAT ITEM WAS ON A BRAND NAME BASIS. IN THE CIRCUMSTANCES, WE ARE NOT PERSUADED THAT OUR PRIOR CONCLUSION AND RECOMMENDATION WERE INCORRECT.

ACCORDINGLY, THE JANUARY 16, 1975, DECISION IS AFFIRMED.