B-144912, FEB 8, 1961

B-144912, FEB 8, 1961

TO SECRETARY OF THE ARMY:

BY LETTER DATED JANUARY 25, 1961, WITH ENCLOSURES, THE CHIEF, CONTRACTS DIVISION, OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, REQUESTED OUR DECISION WITH RESPECT TO THE PROTEST OF THE MODEL ENGINEERING AND MANUFACTURING CORPORATION AGAINST THE REJECTION OF ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. SC-36-039-61-1496 C4-51, ISSUED ON NOVEMBER 10, 1960, BY THE U.S. ARMY SIGNAL SUPPLY AGENCY, MIDWESTERN REGIONAL OFFICE, CHICAGO, ILLINOIS.

THE INVITATION REQUESTED BIDS ON RANGE QUANTITIES OF "TELEGRAPH TERMINAL AN/TCC-4 ( (," TOGETHER WITH RELATED EQUIPMENT, RUNNING SPARES, DOCUMENTATION, GAGES AND DRAWINGS. ALSO, BIDS WERE REQUESTED ON 16 SUB- SUB-SUBITEMS OF COMPONENTS AND RUNNING SPARES ON A BRAND NAME OR EQUAL BASIS.

PAGE 36 OF THE INVITATION PROVIDED WITH RESPECT TO THESE SUB-SUB SUBITEMS AS FOLLOWS:

BRAND NAME OR EQUAL

"AS USED IN THIS CLAUSE, THE TERM "BRAND NAME" INCLUDES IDENTIFICATION OF SUPPLIES BY MAKE AND MODEL.

"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.

"BIDDERS MUST CLEARLY INDICATE WHETHER THEIR BIDS ARE BASED ON A BRAND NAME ITEM OR ON AN ,EQUAL" ITEM BY FURNISHING THE INFORMATION REQUIRED BELOW. IF THE BIDDER DOES NOT IDENTIFY THE BRAND NAME OR DESCRIBE IN FULL THE "OR EQUAL" ITEM WHICH IS OFFERED, AS PROVIDED IN (1) AND (2) BELOW, THE BID WILL BE REJECTED. A BRAND NAME ITEM AS MANUFACTURED BY OTHER THAN THE INDICATED MANUFACTURER IS CONSIDERED AN "OR EQUAL" ITEM AND MUST BE PROCESSED AS SUCH.

"/1) IF THE BIDDER PROPOSES TO FURNISH A BRAND NAME ITEM SPECIFIED IN THIS INVITATION FOR BIDS, SUCH BRAND NAME SHALL BE INSERTED IN THE SPACE PROVIDED AFTER EACH ITEM SO DESCRIBED.

"/2) IF THE BIDDER PROPOSED TO FURNISH AN "OR EQUAL" ITEM, THE BRAND NAME OF THE ITEM PROPOSED TO BE FURNISHED, IF ANY, SHALL BE INSERTED IN THE SPACE PROVIDED AFTER EACH ITEM SO DESCRIBED, AND IN ADDITION, THE FOLLOWING DESCRIPTIVE DATA MUST BE FURNISHED.

"A FULL DESCRIPTION THEREOF, INCLUDING PERTINENT PHYSICAL, MECHANICAL, ELECTRICAL, AND CHEMICAL DETAILS AND A STATEMENT EXPLAINING THE DIFFERENCES BETWEEN THE ITEM BEING OFFERED AND ANY ONE OF THE CORRESPONDING BRAND NAME ITEMS CALLED FOR BY THIS INVITATION FOR BIDS. (THIS INFORMATION MAY BE SUPPLIED BY SEPARATE ATTACHMENTS TO THE BID).'

TWENTY-THREE BIDS WERE RECEIVED AND OPENED ON DECEMBER 12, 1960, AND IT APPEARS THAT THE LOW BID IS DEFICIENT IN SEVERAL MAJOR RESPECTS AND, THEREFORE, IS NOT FOR CONSIDERATION HERE.

MODEL SUBMITTED THE NEXT LOW BID FOLLOWED BY THAT SUBMITTED BY THE MOLECTRONICS CORPORATION. HOWEVER, MODEL FAILED TO INDICATE IN ITS BID WHETHER IT PROPOSED TO FURNISH THE BRAND NAME OR EQUAL AS TO THE 16 SUB- SUB-SUBITEMS. IN VIEW THEREOF, THE PROCUREMENT ACTIVITY PROPOSES TO REJECT MODEL'S BID AS NONRESPONSIVE TO THE REQUIREMENTS OF THE INVITATION. WE AGREE THAT REJECTION OF MODEL'S BID IS REQUIRED UNDER THE CIRCUMSTANCES.

DECISIONS OF OUR OFFICE CONSISTENTLY HAVE HELD THAT THE FAILURE OF A BIDDER TO COMPLY WITH AN INVITATION REQUIREMENT, SPECIFICALLY CALLING FOR CERTAIN INFORMATION DEEMED ESSENTIAL TO THE EVALUATION OF BIDS AND REQUIRING REJECTION FOR FAILURE TO CONFORM, CANNOT BE WAIVED BY THE CONTRACTING OFFICER. 36 COMP. GEN. 415. FURTHER, AS WE INDICATED IN OUR DECISION B-139761 DATED JUNE 15, 1959, THE REASON THE FAILURE TO SUBMIT SUCH REQUIRED INFORMATION IN ACCORDANCE WITH AN INVITATION PROVISION MAKING THE SUBMITTAL MANDATORY CANNOT BE WAIVED IS THAT THE OMISSION GOES TO THE "SUBSTANCE" OF THE BID. 30 COMP. GEN. 179. TO CONSIDER MODEL'S BID AS SUBMITTED WOULD PLACE THAT BIDDER IN A POSITION OF HAVING THE OPTION AFTER BID OPENING OF EITHER SECURING AN AWARD BY CLARIFICATION OF ITS BID, OR OF SO ACTING AS TO CAUSE REJECTION OF ITS BID IF IMPROVIDENTLY MADE. THIS WOULD BE CONTRARY TO OUR ESTABLISHED RULE THAT TO GIVE A BIDDER TWO CHANCES AT A PROCUREMENT IN SUCH A MANNER WOULD BE PREJUDICIAL TO OTHER BIDDERS AND INCONSISTENT WITH THE PURPOSES OF THE COMPETITIVE BIDDING STATUTES. SEE 38 COMP. GEN. 532, 536; B-144112 DATED JANUARY 13, 1961.

WHILE WE NOTE THAT FIVE OUT OF THE SIXTEEN SUB-SUB-SUBITEMS COULD HAVE BEEN IDENTIFIED BY SPECIFICATIONS RATHER THAN BY BRAND NAME OR EQUAL, SUCH FACT DID NOT EXCUSE MODEL FROM COMPLYING WITH THE MANDATORY PROVISIONS OF THE BRAND NAME OR EQUAL CLAUSE AS TO THE REMAINING ELEVEN SUB-SUB-SUBITEMS AS TO WHICH NO SPECIFICATIONS EXISTED.

ACCORDINGLY, THE CONTRACTING OFFICER'S DETERMINATION THAT THE BID OF MODEL WAS NONRESPONSIVE APPEARS PROPER.