B-153452, MAR. 26, 1964

B-153452, MAR. 26, 1964

TO ROTATING COMPONENTS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4, 1964, ADDRESSED TO THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, DEFENSE GENERAL SUPPLY CENTER, RICHMOND 12, VIRGINIA, PROTESTING AWARD TO ANY BIDDER OTHER THAN YOU UNDER INVITATION FOR BIDS NO. DSA-4-64-1133, BIDS ON WHICH WERE OPENED ON JANUARY 22, 1964.

THE INVITATION REQUESTED BIDS ON SUPPLYING 436 FANS, ROTRON MANUFACTURING COMPANY, PART NO. DFE-KS401-R-92AS OR EQUAL, AND SET FORTH AS REQUIRED BY THE PERTINENT REGULATION, ASPR 1-1206.2 (B), THE SALIENT CHARACTERISTICS OF THE "BRAND NAME" ITEM, WHICH WERE CONSIDERED ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. THE LOW BIDDER, GLOBE INDUSTRIES, OFFERED ITS "TYPE YCS" NO. 19A1249 UNDER THE ORIGINAL INVITATION, BUT ON AMENDMENT NO. 2 TO THE INVITATION GLOBE INDUSTRIES ATED,"WE ARE NOW BIDDING ON P/N 19A1245 AS SHOWN ON BULLETIN XD-3446 ENCLOSED WITH ORIGINAL BID OF 2 JANUARY 1964.' PERSONNEL AT THE CENTER EXAMINED THE DATA SUBMITTED BY GLOBE AND DETERMINED THAT THE FAN OFFERED MET THE SPECIFIED REQUIREMENTS OF THE INVITATION, AND AWARD OF THE CONTRACT WAS MADE ON JANUARY 29, 1964, TO GLOBE INDUSTRIES.

YOU CONTEND THAT THE ITEM ACTUALLY OFFERED BY GLOBE INDUSTRIES DOES NOT CONFORM TO THE BRAND NAME ITEM IN SEVERAL RESPECTS. YOUR OBJECTIONS AND THE APPLICABLE ADMINISTRATIVE COMMENTS ARE AS FOLLOWS:

"/1) "THE BRACKERS WHICH HOLD THE MOTOR TO THE VENTURI ARE SHIFTED 90 DEGREES WITH RESPECT TO THE ROTRON UNIT.'

"THE TWO MOUNTING BRACKETS (BRACES HOLDING THE FAN MOTOR TO THE BASE OF THE FAN) ON THE BRAND NAME (ROTRON) ITEM ARE LOCATED AT THE TOP AND BOTTOM OF THE FAN, WHEREAS, THE ITEM OFFERED BY GLOBE HAS TWO MOUNTING BRACKETS, ONE ON EACH OF TWO SIDES OF THE FAN. IT SHOULD BE NOTED THAT THE LOCATION OF THE BRACKETS IS NOT LISTED IN THE NOMENCLATURE FOR THE ITEM AND THUS, THE LOCATION IS NOT CONSIDERED TO BE A SALIENT CHARACTERISTIC OF THE ITEM. INASMUCH AS THIS PARTICULAR TYPE OF FAN IS USED FOR MANY PURPOSES, THE LOCATION OF THE MOUNTING BRACKETS IS CONSIDERED TO BE IMMATERIAL. SHOULD BE NOTED, HOWEVER, THAT IF THE NEED AROSE WHICH WOULD REQUIRE THE BRACKETS TO BE LOCATED AS SHOWN ON THE ROTRON UNIT, THIS COULD BE ACCOMPLISHED BY A SIMPLE PROCESS OF LOOSENING FOUR SMALL SCREWS AND RESETTING THE BRACKETS ON THE VENTURI (ROUND BASE OF THE FAN).

"/2) "THE MOTOR TERMINAL BLOCK IS SHIFTED 90 DEGREES WITH RESPECT TO THE MOUNTING HOLES IN THE VENTURI.'

"THE VENTURI (BASE) OF THE ITEM OFFERED BY GLOBE HAS THREE (3) MOUNTING HOLES SPACED 120 DEGREES APART, THE SAME AS THE ROTRON UNIT, EXCEPT THAT THE TERMINAL BLOCK (OUTLET) ON THE GLOBE UNIT IS LOCATED APPROXIMATELY 90 DEGREES FROM THE ONE SHOWN ON THE ROTRON UNIT. THE LOCATION OF THE TERMINAL BLOCK ONLY BECOMES IMPORTANT WHEN CONNECTING THE LEAD WIRES OF THE UNIT TO BE SERVICED BY THE FAN. AGAIN, IT SHOULD BE NOTED THAT THE LOCATION OF THE TERMINAL BLOCK ON THE MOTOR IS NOT LISTED, IN THE NOMENCLATURE FOR THE ITEM, AS ONE OF THE SALIENT CHARACTERISTICS. INASMUCH AS THE FAN CAN BE MOUNTED ON THE UNIT TO BE SERVICED IN THREE (3) DIFFERENT POSITIONS, AT A VARIANCE OF 120 DEGREES EACH, THE TERMINAL BLOCK OF THE GLOBE UNIT COULD BE MANEUVERED TO WITHIN APPROXIMATELY 30 DEGREES OF THE LOCATION OF THE TERMINAL BLOCK OF A ROTRON UNIT. THEREFORE, THIS VARIANCE WAS NOT CONSIDERED MATERIAL.

"/3) "THE VENTURI SHOWN ON THE GLOBE PART NUMBER DOES NOT INDICATE COUNTER SUNK HOLES.'

"THE DESCRIPTIVE LITERATURE SUBMITTED BY GLOBE WITH ITS BID (SEE INCL 4), CONTAINS A PICTURE OF THE ITEM OFFERED WHICH SHOWS COUNTER SUNK HOLES OR RECESSED HOLES IN THE VENTURI. THIS IS NOT ONE OF THE SALIENT CHARACTERISTICS SET FORTH IN THE NOMENCLATURE FOR THE ITEM.

"/4) "THE GLOBE UNIT SPECIFIED 60 CYCLE OPERATION ONLY, WHEREAS THE ROTRON UNIT SPECIFIES 50/60 CYCLE OPERATION.'

"THE NOMENCLATURE FOR THE ITEM, AS SET FORTH IN THE SCHEDULE OF THE INVITATION FOR BIDS, CALLS FOR 60 CYCLES AND THUS, THIS IS CONSIDERED TO BE A MODIFICATION OF THE BRAND NAME ROTRON UNIT WHICH CONTAINS 50/60 CYCLES. THEREFORE, THE GLOBE UNIT, AS SHOWN BY THE DESCRIPTIVE LITERATURE SUBMITTED WITH ITS BID, CONTAINS A 60 CYCLE MOTOR AND THUS CONFORMS TO THE REQUIREMENTS OF THE NOMENCLATURE FOR THE ITEM.

"/5) "THE CONNECTION DIAGRAM SHOWS LETTERS INSTEAD OF NUMBERS AS ON THE ROTRON UNIT.'

"THE TERMINAL BLOCK OF THE GLOBE UNIT AND THE ROTRON UNIT CONTAINS FOUR (4) HOLES FOR INSERTION OF MACHINE SCREWS ON WHICH TO ATTACH LEAD WIRES FROM THE UNIT TO BE SERVICED. THE CONNECTION DIAGRAM FOR THE ROTRON UNIT, AS INDICATED BY THE BRAND NAME LITERATURE, (INCL 2), SHOWS THAT THE FOUR HOLES FOR SCREWS ARE LABELED "1," "2," "3," AND "4," WHEREAS, THE LITERATURE SUBMITTED BY GLOBE WITH ITS BID SHOWS THE HOLES TO BE LABELED "A," "B," "C," AND "D.' THE DIFFERENCE BETWEEN THE METHODS OF IDENTIFICATION OF THE CONNECTION DIAGRAM IS NOT CONSIDERED MATERIAL. AGAIN, IT IS NOTED THAT THE METHOD OF IDENTIFICATION ON THE CONNECTION DIAGRAM IS NOT LISTED AS PART OF THE INVITATION'S NOMENCLATURE FOR THE ITEM.

"/6) "THE ROTRON UNIT SPECIFIES BALL BEARINGS WHEREAS THE GLOBE UNIT DOES NOT SPECIFY WHAT TYPE OF BEARINGS.'

"THE NOMENCLATURE, FOR THE ITEM AS SET FORTH IN THE INVITATION, DOES NOT LIST ANY PARTICULAR TYPE OF BEARING AND, THUS, EVEN THOUGH THE BRAND NAME ROTRON UNIT CONTAINS BALL BEARINGS, THE BALL BEARINGS WERE NOT CONSIDERED TO BE A SALIENT CHARACTERISTIC FOR THE ITEM TO BE PROCURED. THEREFORE, INFORMATION REGARDING THE TYPE OF BEARINGS CONTAINED IN THE GLOBE UNIT WAS NOT NECESSARY IN ORDER TO DETERMINE THE EQUALITY OF THE GLOBE UNIT.

"/7) "GLOBE DOES NOT SPECIFY THE MAXIMUM AMPERES.'

"A SPECIFIC OR MAXIMUM AMPERAGE IS NOT REQUIRED BY THE INVITATION'S NOMENCLATURE FOR THE ITEM AND THUS, IT WAS NOT NECESSARY TO KNOW THE SPECIFIC AMPERAGE IN ORDER TO DETERMINE THE EQUALITY OF THE GLOBE UNIT. THE LITERATURE SUBMITTED BY GLOBE WITH ITS BID SHOWED THE PROPELLER SPEED OF THE GLOBE UNIT TO BE 3450 RPM AND THAT THE UNIT WOULD MOVE AIR AT THE RATE OF 85 CFM (CUBIC FEET PER MINUTE). THE BRAND NAME ROTRON UNIT, AS SHOWN BY THE BRAND NAME LITERATURE, CONTAINS THE SAME PROPELLER SPEED AND AIR MOVEMENT RATE. THESE PERFORMANCE CHARACTERISTICS OF THE GLOBE UNIT ARE SUFFICIENT TO REVEAL THAT THE UNIT CONTAINS THE NECESSARY AMPERAGE.

"/8) "THE GLOBE UNIT DOES NOT SPECIFY THE CAPACITOR WHICH IS TO BE USED WITH THE MOTOR AND IT MAY OR MAY NOT BE DIFFERENT THAN THEROTRON UNIT.'

"THE "CAPACITOR" IS A PROTECTIVE DEVICE USED TO PREVENT OVERLOADING OF THE CIRCUIT. SUBJECT PROCUREMENT, AS ADVERTISED, DOES NOT REQUIRE A CAPACITOR TO BE FURNISHED WITH THE ITEM. THE BRAND NAME LITERATURE OF THE BRAND NAME CITED IN THE INVITATION STATES THAT "RUNNING CAPACITORS IN THE TYPE CHART ARE NOT NORMALLY SUPPLIED BY ROTRON.' A CAPACITOR FOR THE ITEM IS ONLY FURNISHED WHEN SPECIFICALLY REQUIRED BY THE GOVERNMENT. UNLESS SPECIFICALLY REQUIRED IN THE DESCRIPTION, THE GOVERNMENT PROVIDES AND AFFIXES A CAPACITOR TO THE UNIT AT THE TIME OF INSTALLATION AND INFORMATION AS TO THE PARTICULAR TYPE OF CAPACITOR TO BE USED ON AN ITEM FACILITATES THE INSTALLING OF THE ITEM BY THE GOVERNMENT PERSONNEL. THUS, KNOWLEDGE OF THE TYPE OF CAPACITOR TO BE USED IS NOT ESSENTIAL TO THE EVALUATION OF THE ITEM, SINCE NEITHER THE BRAND NAME MANUFACTURER NOR AN "OR EQUAL" MANUFACTURER WOULD BE REQUIRED TO FURNISH A CAPACITOR UNDER A CONTRACT AWARDED ON THE BASIS OF THIS INVITATION.

"/9) "THE REFERENCE NOTCH ON THE TERMINAL BLOCK OF THE GLOBE UNIT IS BETWEEN LETTERS A AND B, WHEREAS, ON THE ROTRON UNIT THE REFERENCE DOT IS BETWEEN 1 AND 4. SINCE GLOBE USES A, B, C AND D, THE NORMAL CONCLUSION IS FOR THIS TO CORRESPOND TO 1, 2, 3 AND 4. IF THIS CONCLUSION IS CORRECT, SINCE THE NOTCH IS IN THE WRONG PLACE, THERE WILL BE CONSIDERABLE CONFUSION IN THE MIND OF THE TECHNICIAN WHO INSTALLS THE FAN. IF IT IS NOT TRUE, CONSIDERABLY MORE CONFUSION RESULTS. DUE TO THIS CONFUSION, THERE ARE SEVERAL WAYS THE MOTOR CAN BE INCORRECTLY INSTALLED:

A. WITH REVERSE ROTATION, CAUSING LITTLE OR NO COOLING; THEREBY RUINING THE EQUIPMENT TO BE COOLED;

B. WITH INTERCHANGED PHASES CAUSING OVERHEATING OF THE FAN MOTOR AND PREMATURE FAILURE OF EQUIPMENT;

C. WITH INTERCHANGED PHASES RESULTING IN LESS MOTOR TORQUE WHICH WILL NOT ALLOW THE FAN TO COME UP TO SPEED UNDER VERY LOW TEMPERATURE OPERATION.'

"THE NOMENCLATURE DOES NOT LIST THE LOCATION OF THE "REFERENCE NOTCH" AS A REQUIREMENT, AND THEREFORE, THIS IS NOT CONSIDERED TO BE A SALIENT CHARACTERISTIC. THE PURPOSE OF THE "REFERENCE NOTCH," LOCATED ON THE TERMINAL BLOCK, IS TO ALERT THE TECHNICIAN INSTALLING THE FAN AS TO THE PROPER STARTING POINT FOR CONNECTING THE LEAD WIRES TO THE TERMINAL BLOCK. THEREFORE, IT IS IMMATERIAL AS TO WHETHER THE STARTING POINT IS HIGHLIGHTED BY A "NOTCH" OR "DOT.' IN ADDITION, THE LITERATURE SUBMITTED BY GLOBE WITH ITS BID STATES THAT "SCREW-TYPE TERMINAL BLOCK IS PROVIDED. WIRING DIAGRAM WILL BE ATTACHED TO UNIT.' THEREFORE, TO INSURE PROPER INSTALLATION, THE TECHNICIAN WILL BE GUIDED BY THE ELECTRICAL CONNECTION WIRING DIAGRAM FURNISHED BY GLOBE WITH EACH UNIT.'

WE HAVE FREQUENTLY HELD THAT UNDER A "BRAND NAME OR EQUAL" INVITATION, THE PHRASE "OR EQUAL" DOES NOT MEAN "IDENTICAL; " IN FACT, TO READ SUCH A REQUIREMENT INTO IT WOULD BE PRACTICALLY THE SAME AS OMITTING THE "OR EQUAL" REQUIREMENT, WHICH WOULD MAKE THE SPECIFICATIONS UNREASONABLY RESTRICTIVE. SEE 38 COMP. GEN. 291. THE RESPONSIBILITY FOR DRAFTING SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT, AND THE FACTUAL DETERMINATION WHETHER THE ITEMS OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS, ARE MATTERS PRIMARILY WITHIN THE PROVINCE OF THE ADMINISTRATIVE AGENCIES. 17 COMP. GEN. 554. AT THE SAME TIME, IT IS WITHIN THE PROVINCE OF THIS OFFICE TO DETERMINE THE MEANING OF THE ADVERTISED TERMS SUBMITTED FOR COMPETITION AND TO SAY WHETHER, AS A MATTER OF LAW, THE FACTS BRING ONE OR ANOTHER OF THE SUPPLIES OFFERED WITHIN THOSE TERMS. IN THIS INSTANCE, IT IS NOTED THAT EVERY ONE OF THE POINTS LISTED BY YOU AS A DEVIATION OF THE GLOBE FAN IS A DETAIL IN WHICH IT DIFFERS FROM YOUR FAN, BUT NOT FROM THE GOVERNMENT'S STATEMENT OF ESSENTIAL CHARACTERISTICS. AS STATED ABOVE, EQUALITY FOR PURPOSES OF GOVERNMENT PROCUREMENT DOES NOT REQUIRE OR CONTEMPLATE IDENTITY IN ALL DETAILS; EQUAL SUITABILITY TO THE ACTUAL NEEDS OF THE GOVERNMENT IS ALL THAT IS REQUIRED.

SINCE THE MATERIAL CHARACTERISTICS OF THE NAMED BRAND ITEM WHICH WERE CONSIDERED NECESSARY FOR THE GOVERNMENT'S NEEDS WERE SET FORTH IN THE INVITATION, AND THE ITEM OFFERED BY THE LOW BIDDER WAS DETERMINED ON THE BASIS OF THE INFORMATION SUBMITTED WITH THE BID TO BE EQUAL IN SUCH MATERIAL CHARACTERISTICS TO THE NAMED BRAND ITEM, REJECTION OF THAT ITEM ON THE BASIS OF IMMATERIAL DETAILS WHICH WOULD NOT AFFECT ITS SUITABILITY FOR THE INTENDED USE AND WHICH WERE NOT CALLED OUT IN THE INVITATION WOULD HAVE BEEN IMPROPER.