B-153962, JUN. 29, 1964

B-153962, JUN. 29, 1964

TO JOHN REINER GENERATORS, INC:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 10, 1964, PROTESTING AGAINST THE MAKING OF ANY AWARD OTHER THAN TO YOUR CORPORATION UNDER INVITATION NO. N140-337-64, ISSUED BY THE UNITED STATES NAVY PURCHASING OFFICE, BROOKLYN, NEW YORK.

THE INVITATION REQUESTED BIDS FOR FURNISHING SIX DIESEL GENERATOR SETS, JOHN REINER AND CO., INC., MODEL DG CC OR EQUAL, COMPLETE WITH ENGINE CONTINENTAL ENGINEERING CO., MODEL HD-260, 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. SIX BIDS RANGING FROM $12,732 TO $21,600 WERE RECEIVED AND OPENED ON FEBRUARY 17, 1964. THE LOW BIDDER, PYRAMID POWER PRODUCTS, INC., OFFERED ITS MODEL NO. 5DD12 GENERATOR SET EQUIPPED WITH A CONTINENTAL MOTORS COMPETITION MODEL NO. HD-260, THE TYPE OF ENGINE REQUESTED IN THE INVITATION. YOUR FIRM SUBMITTED THE FIFTH LOWEST BID ON THE GENERATOR SETS. THE SIX BIDS RECEIVED WERE FORWARDED TO THE NEW YORK NAVAL SHIPYARD FOR TECHNICAL REVIEW. BY LETTER DATED FEBRUARY 25, 1964, THE NEW YORK NAVAL SHIPYARD RETURNED ALL BIDS AND STATED THAT "THE LOW BID OF PYRAMID POWER PRODUCTS, INC., IS ACCEPTABLE FOR MATERIAL IN ACCORDANCE WITH THE TECHNICAL SPECIFICATIONS OF THE SUBJECT REQUISITION," AND ON THE BASIS OF SUCH REPORT, AWARD OF THE CONTRACT WAS MADE ON MARCH 17, 1964, TO PYRAMID POWER PRODUCTS, INC.

YOU CONTEND THAT THE EQUIPMENT ACTUALLY OFFERED BY THE OTHER BIDDERS DOES NOT CONFORM TO THE BRAND NAME ITEM IN SEVERAL RESPECTS. IN YOUR LETTERS DATED FEBRUARY 21 AND APRIL 10, 1964, TO THE CONTRACTING OFFICE, YOU ENUMERATE CERTAIN ADDITIONAL REQUIREMENTS WHICH MUST BE FULFILLED TO MAKE THE EQUIPMENT OPERATIVE AND YOU ALLEGE THAT NO BIDDER COMPLIED WITH THE PROVISIONS OF PARAGRAPH 56.4-1A OF THE INVITATION WHICH REQUIRED BIDDERS TO FURNISH DESCRIPTIVE MATERIAL WITH THEIR BIDS IF AN "OR EQUAL" PRODUCT WAS OFFERED.

IN REGARD TO YOUR OBJECTIONS THE CONTRACTING OFFICER MAKES THE FOLLOWING COMMENTS:

"3. THE LETTER FROM JOHN REINER GENERATORS, INC. TO NAVY PURCHASING OFFICE, NEW YORK, * * * DATED 21 FEBRUARY 1964, WAS RECEIVED AND REVIEWED. COMMENTS ON THE POINTS RAISED THEREIN ARE AS FOLLOWS:

"/A) PARAGRAPHS 2 AND 4 ALLEGED THAT ALL BIDS OTHER THAN THE BID OF JOHN REINER GENERATORS, INC. WERE NON-RESPONSIVE. THIS STATEMENT IS INCORRECT. UNDER CLAUSE 56.4-1A (SEE PAGE 12 OF THE IFB), THE GOVERNMENT IS RESPONSIBLE FOR EVALUATING AND DETERMINING THE EQUALITY OF PRODUCTS OFFERED. FAILURE TO FURNISH SUFFICIENT INFORMATION WITH THE BID ITSELF WOULD NOT PER SE, RENDER A BID NON-RESPONSIVE. IN THE CASE OF THE LOW BID, SUBMITTED BY PYRAMID POWER PRODUCTS, INC., SUFFICIENT INFORMATION * * * WAS SUBMITTED AND AVAILABLE FOR THE GOVERNMENT TO MAKE THE FINDING THAT THE EQUIPMENT OFFERED MET THE ESSENTIAL REQUIREMENTS OF THE SPECIFICATIONS. IN FACT, THE ENGINE BEING OFFERED BY THE LOW BIDDER, PYRAMID POWER PRODUCTS, INC., WHICH COMPRISES APPROXIMATELY 70 PERCENT OF THE TOTAL COST, IS THE CONTINENTAL ENGINE CO. MODEL HD-260, REFERENCED IN THE IFB.

"/B) TECHNICAL PERSONNEL OF THE GOVERNMENT HAVE REVIEWED JOHN REINER GENERATOR, INC.'S COMMENTS REGARDING THE NEED FOR "ADDITIONAL REQUIREMENTS WHICH MUST BE FULFILLED TO MAKE THE EQUIPMENT OPERATIVE.' * * * COMMENTS THEREON * * * POINT OUT THAT THE LOW BID MEETS ALL THE ESSENTIAL REQUIREMENTS OF THE SPECIFICATIONS . . . ANYTHING ADDITIONAL WOULD BE MORE PREJUDICIAL TO OTHER SUPPLIERS AND MORE RESTRICTIVE TO JOHN REINER GENERATORS, INC.'S EQUIPMENT.'

"4. COMMENTS ON THE ADDITIONAL POINTS RAISED BY JOHN REINER GENERATORS, INC.'S LETTER OF 10 APRIL 1964 * * * ARE AS FOLLOWS:

"/A) COGNIZANT TECHNICAL PERSONNEL OF THE GOVERNMENT CHARGED WITH THE RESPONSIBILITY OF DETERMINING THE EQUALITY OF ALTERNATE ITEMS HAVE FOUND THAT THE EQUIPMENT OFFERED BY THE LOW BIDDER, PYRAMID POWER PRODUCTS, INC. MEETS "ALL THE ESSENTIAL REQUIREMENTS OF THE ECIFICATIONS.'

"/B) POINT NUMBER 2 RAISED BY JOHN REINER GENERATORS, INC. EVIDENTLY REFERS TO THE POINTS PREVIOUSLY RAISED THAT THE GOVERNMENT FAILED TO LIST NECESSARY ADDITIONAL SALIENT CHARACTERISTICS. AS INDICATED * * * SPECIFICATIONS, INCLUDING THE DETERMINATION OF SALIENT CHARACTERISTICS, ARE THE RESPONSIBILITY OF COGNIZANT PERSONNEL OF THE GOVERNMENT. ADDITIONAL SALIENT CHARACTERISTICS WOULD HAVE BEEN MORE PREJUDICIAL TO OTHER SUPPLIERS AND MORE RESTRICTIVE TO THE EQUIPMENT OF JOHN REINER GENERATORS, INC. IN SETTING FORTH SALIENT CHARACTERISTICS UNDER AN "OR EQUAL" SPECIFICATION, IT IS THE GOVERNMENT'S POLICY TO LIST ONLY THOSE CHARACTERISTICS WHICH MUST BE MET IN ORDER TO SATISFY THE GOVERNMENT'S MINIMUM NEEDS.'

WE AGREE WITH THE ADMINISTRATIVE OFFICE THAT THE BID OF PYRAMID POWER PRODUCTS, INC., THE LOW BIDDER, IS RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION. SINCE THE CONTRACT WAS AWARDED TO PYRAMID POWER PRODUCTS, INC., A DISCUSSION AS TO THE RESPONSIVENESS OF THE OTHER BIDS RECEIVED DOES NOT APPEAR NECESSARY.

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 THE ADMINISTRATIVE OFFICE REPORTS THAT THE EQUIPMENT OFFERED BY PYRAMID POWER PRODUCTS, INC., MEETS THE ESSENTIAL REQUIREMENTS OF THE SPECIFICATIONS. AS STATED ABOVE, EQUALITY FOR PURPOSES OF GOVERNMENT PROCUREMENT DOES NOT REQUIRE OR CONTEMPLATE THAT THE PRODUCT BE IDENTICAL 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 SET OUT IN THE INVITATION WOULD HAVE BEEN IMPROPER.