B-155673, MAY 14, 1965

B-155673, MAY 14, 1965

TO THE SINGER COMPANY--- METRICS DIVISION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 16, 1965, WITH ENCLOSURES, AND TO SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST AWARD OF A CONTRACT TO CENTURY ELECTRONICS AND INSTRUMENTS, INC.,BY THE GODDARD SPACE FLIGHT CENTER (GSFC), NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, UNDER INVITATION FOR BIDS NO. S-4431.

THE INVITATION WAS ISSUED JULY 20, 1964, AND CALLED FOR BIDS ON FURNISHING THE GODDARD SPACE FLIGHT CENTER 18 TELEMETRY SUBCARRIER CALIBRATORS, CENTURY ELECTRONICS MODEL 850, WITH THE FOLLOWING SALIENT SPECIFICATIONS:

"A. COMPOSITE OUTPUT: 18 IRIG CHANNELS PLUS OPTIONAL "A" THROUGH "E" CH. FRONT AND REAR PANEL CONNECTOR.

"B. SINGLE CHANNEL OUTPUT: ANY SINGLE FREQUENCY IN THE COMPOSITE. FRONT AND REAR PANEL CONNECTOR. FRONT PANEL SWITCH.

"C. OUTPUT LEVEL: 0-2.0 VOLTS RMS--- ADJUSTABLE. COMPOSITE AND SINGLE CHANNEL.

"D.OUTPUT IMPEDANCE: 600 OHMS.

"E. OUTPUT WAVEFORM: SINE WAVE--- LESS THAN 1 PERCENT HARMONIC DISTORTION.

"F. LONG TERM STABILITY: 1 PART IN 10 TO THE SIXTH POWER PER WEEK. EACH FREQUENCY.

"G. SHORT TERM STABILITY: PLUS OR MINUS 0.005 PERCENT ACCURACY, EACH FREQUENCY.

"H. SEQUENCING: CONTINUOUS AUTOMATIC SEQUENCING OF ALL SET CALIBRATION POINTS. FRONT PANEL SELECTING. SINGLE CYCLE SEQUENCING FRONT PANEL REMOTE START. MANUAL STOP SEQUENCING-FRONT PANEL OR REMOTE.

"I. CALIBRATION POINTS: 3, 5, 11 AND 21 CALIBRATION POINTS REPRESENTING 50 PERCENT, 25 PERCENT, 10 PERCENT AND 5 PERCENT INCREMENTS OF FULL SCALE EACH CHANNEL. SELECTED FROM FRONT PANEL.

"J. CALIBRATION POINT DWELL TIMES: 0.1, 0.25, 0.5, 1.0, 2.0, 5.0, AND 10.0 SECONDS. FRONT PANEL SELECTED.

"K. DIMENSIONS: MAX 7 IN. HIGH BY STANDARD 19 IN. WIDE RACK MOUNTED.

TO BE AS MANUFACTURED BY CENTURY ELECTRONICS AND INSTRUMENTS.

" "BIDDERS PROPOSING TO FURNISH AN ITEM TO EQUAL CENTURY ELECTRONICS MODEL 850 MUST MEET OR EXCEED THE PRECEDING SALIENT SPECIFICATIONS TO SATISFY THE GOVERNMENT'S MINIMUM NEEDS.'

"COMMERCIAL LITERATURE AVAILABLE FOR REVIEW.

"BIDDERS PROPOSING TO FURNISH AN EQUAL MUST COMPLETE THE FOLLOWING:

TABLE

MANUFACTURER ------------------------

BRAND NAME ------------------------

MODEL NUMBER ------------------------ "

ON THE BID FORM YOU INDICATED THAT YOU WERE OFFERING YOUR PANORAMIC MODEL NUMBER TMC-421 AND REFERRED TO THE "APPENDED QUOTATION AND TECHNICAL EXHIBITS FOR DETAILS.' THE QUOTATION SHEET DESCRIBED THE OFFERED PRODUCT AS "MODEL TMC-421, MODIFIED TO MEET OR EXCEED ALL REQUIREMENTS," AND REFERRED TO A "LIST OF SALIENT SPECIFICATIONS FOLLOWING THE OUTLINE OF YOUR REQUEST. . .' IT WAS ALSO STATED THAT TECHNICAL EXHIBIT C DESCRIBED YOUR STANDARD UNMODIFIED CALIBRATORS AND THAT ,EXHIBIT A GOVERNS INSOFAR AS THIS SPECIFICATION IS CONCERNED.' EXHIBIT A, WHICH PURPORTS TO DESCRIBE "PANORAMIC MODEL TMC-421 MODIFIED," LISTS, ALMOST VERBATIM, THE SALIENT SPECIFICATIONS OF THE INVITATION. TECHNICAL EXHIBIT C IS DESCRIBED BY YOU AS BEING ". . . DERIVED FROM A MANUSCRIPT OF PANORAMIC CATALOG SECTION COVERING TELEMETERING SUBCARRIER CALIBRATORS, MODELS TMC- 421, TMC-411E AND TMC 505.)

BIDS WERE OPENED ON AUGUST 19, 1964, AND YOU WERE LOW BIDDER AT A UNIT PRICE OF $7,390 OR A TOTAL OF $133,020, AS COMPARED TO CENTURY'S BID ON ITS MODEL 850 AT A UNIT PRICE OF $7,491 OR A TOTAL OF $134,838 LESS A PROMPT PAYMENT DISCOUNT OF ONE HALF OF ONE PERCENT FOR A NET OF $134,163.81. HOWEVER, YOUR BID WAS DETERMINED TO BE NONRESPONSIVE AND AWARD IS PROPOSED TO BE MADE TO CENTURY. AWARD IS BEING HELD IN ABEYANCE PENDING OUR DECISION ON YOUR PROTEST.

AS REQUIRED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR), 1 1206.3 (B), THE INVITATION PROVIDED AS FOLLOWS:

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

" (A) IF ITEMS CALLED FOR BY THIS INVITATION FOR BIDS HAVE BEEN IDENTIFIED IN THE SCHEDULE BY A "BRAND NAME OR EQUAL" DESCRIPTION, SUCH IDENTIFICATION IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WILL BE SATISFACTORY. BIDS OFFERING "EQUAL" PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME SUPPLIES REFERENCED IN THE INVITATION FOR BIDS.

"/B) UNLESS THE BIDDER CLEARLY INDICATES IN HIS BID THAT HE IS OFFERING AN "EQUAL" PRODUCT, HIS BID SHALL BE CONSIDERED AS OFFERING A BRAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BIDS.

"/C) (1) IF THE BIDDER PROPOSES TO FURNISH AN "EQUAL" PRODUCT, THE BRAND NAME, IF ANY, OF THE PRODUCT TO BE FURNISHED SHALL BE INSERTED IN THE SPACE PROVIDED IN THE INVITATION FOR BIDS, OR SUCH PRODUCT SHALL BE OTHERWISE CLEARLY IDENTIFIED IN THE BID. THE EVALUATION OF BIDS AND THE DETERMINATION AS TO EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE GOVERNMENT AND WILL BE BASED ON INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN HIS BID AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY.

"CAUTION TO BIDDERS: THE PURCHASING ACTIVITY IS NOT RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH IS NOT IDENTIFIED IN THE BID AND REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. ACCORDINGLY, TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE BIDDER MUST FURNISH AS A PART OF HIS BID ALL DESCRIPTIVE MATERIALS (SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER INFORMATION) NECESSARY FOR THE PURCHASING ACTIVITY TO (I) DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE INVITATION FOR BIDS AND (II) ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. THE INFORMATION FURNISHED MAY INCLUDE SPECIFIC REFERENCES TO INFORMATION PREVIOUSLY FURNISHED OR TO INFORMATION OTHERWISE AVAILABLE TO THE PURCHASING ACTIVITY.

(2) IF THE BIDDER PROPOSES TO MODIFY A PRODUCT SO AS TO MAKE IT CONFORM TO THE REQUIREMENTS OF THE INVITATION FOR BIDS, HE SHALL (I) INCLUDE IN HIS BID A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS AND (II) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS.

(3) MODIFICATIONS PROPOSED AFTER BID OPENING TO MAKE A PRODUCT CONFORM TO A BRAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BIDS WILL NOT BE CONSIDERED.'

THE BASIC REASONS ADVANCED BY THE ADMINISTRATIVE AGENCY FOR REJECTION OF YOUR BID ARE (1) THAT YOU FAILED TO COMPLY WITH THE REQUIREMENTS OF THE ABOVE QUOTED "BRAND NAME" CLAUSE IN REGARD TO FURNISHING SUFFICIENT DESCRIPTIVE MATERIALS TO ENABLE THE AGENCY TO DETERMINE WHETHER THE PRODUCT OFFERED BY YOU CONFORMED TO THE SPECIFICATIONS OF THE INVITATION AND (2) FAILURE TO FURNISH A CLEAR DESCRIPTION OF PROPOSED MODIFICATIONS AND TO MARK OR OTHERWISE IDENTIFY PROPOSED MODIFICATIONS TO THE OFFERED PRODUCT TO MAKE IT CONFORM TO THE REQUIRED SPECIFICATIONS. SOME OF THE SPECIFIC DEFICIENCIES AS REASONS FOR REJECTION OF YOUR BID ARE (1) FAILURE OF THE OFFERED PRODUCT TO HAVE A FREQUENCY SOURCE OF 100 KILOCYCLES; (2) FAILURE OF YOUR BID TO INDICATE PARTICULARS OF THE FRONT PANEL LAYOUT; (3) FAILURE OF YOUR BID TO INDICATE HOW THE OFFERED PRODUCT WOULD BE MODIFIED TO ATTAIN THE STABILITY REQUIRED BY ITEMS 1/F) AND (G) OF THE SPECIFICATIONS; AND (4) FAILURE OF YOUR BID TO INDICATE WHETHER THE OFFERED PRODUCT WOULD BE MODIFIED TO MEET THE GSFC STANDARD OF 60 CPS PLUS OR MINUS 0.6 CPS. IN SUMMARY, IT IS THE AGENCY'S POSITION THAT IT COULD NOT DETERMINE FROM THE BID AS SUBMITTED THE "ADEQUACY OR EXACTNESS OF THE PRODUCT OFFERED," WHICH WAS NOT A MODEL WHICH HAD EVEN BEEN EXHIBITED OR OFFERED TO IT FOR EXAMINATION, AND CONSEQUENTLY THE AGENCY COULD NOT DETERMINE EXACTLY WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD TO YOU.

IT IS YOUR POSITION, IN GENERAL, THAT YOUR BID WAS FULLY RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION IN THAT THE INFORMATION SUBMITTED BY YOU WAS ADEQUATE TO PERMIT EVALUATION AND A DETERMINATION THAT THE PRODUCT YOU OFFERED WAS EQUAL TO THE BRAND NAME SPECIFIED. YOU CONTEND THAT SINCE NEITHER THE 100 KC REQUIREMENT NOR THE FRONT PANEL LAYOUT WERE SPECIFIED AS SALIENT CHARACTERISTICS, THE AGENCY'S POSITION WITH RESPECT TO THEM IS WITHOUT MERIT. YOU HAVE ALSO OFFERED TO COMPLY WITH THE 100 KC REQUIREMENT AT THE PRICE BID, AND HAVE REPLIED TO THE AGENCY'S ASSUMPTIONS CONCERNING THE PHYSICAL MAKE-UP OF THE FRONT PANEL OF YOUR PRODUCT. THE AGENCY'S POSITION WITH RESPECT TO YOUR FAILURE TO INDICATE PROPOSED MODIFICATIONS IS DENIED ON THE BASIS THAT TECHNICAL EXHIBIT A AND TECHNICAL EXHIBIT C READ TOGETHER ADEQUATELY EXPLAIN ANY MODIFICATIONS NECESSARY TO MAKE YOUR MODEL TMC-421 CONFORM TO THE SPECIFICATIONS. THE POINT CONCERNING THE FAILURE OF YOUR BID TO INDICATE HOW LONG-TERM STABILITY IS TO BE ACHIEVED IS ALSO DENIED BY YOU. AS EVIDENCE OF YOUR INTENTION AND CAPABILITY TO MEET THE REQUIREMENTS OF THIS PROCUREMENT YOU CITE YOUR PAST PERFORMANCE ON CONTRACTS FOR PRODUCING CALIBRATORS FOR VARIOUS GOVERNMENT AGENCIES, INCLUDING NASA. IN YOUR LETTER OF APRIL 12, 1965, TO OUR OFFICE YOU ALSO ADVISE THAT CONTRARY TO THE AGENCY'S STATEMENT YOU WERE IN PRODUCTION OF MODEL 421 UNDER A CONTRACT WITH THE WHITE SANDS MISSILE RANGE PRIOR TO ISSUANCE OF THE PRESENT IFB. IT DOES NOT APPEAR, HOWEVER, THAT THIS LAST FACT WAS BROUGHT TO THE ATTENTION OF THE NASA OFFICIALS.

IN THE PROCUREMENT OF SUPPLIES AND SERVICES FOR ITS USE, IT IS THE GOVERNMENT'S RESPONSIBILITY TO GIVE A CLEAR PICTURE OF WHAT WILL SATISFY ITS MINIMUM NEEDS. WHEN ASKED TO DO SO, IT BECOMES THE BIDDER'S RESPONSIBILITY TO ESTABLISH THAT ITS PRODUCT MEETS OR EXCEEDS THOSE NEEDS. IN RESPONDING TO AN INVITATION EMPLOYING A BRAND NAME OR EQUAL PURCHASE DESCRIPTION, THE RESPONSIVENESS OF A BID DEPENDS NOT ON WHETHER THE BIDDER BELIEVES, OR EVEN KNOWS, THAT HIS PRODUCT IS EQUAL TO THE BRAND NAME, BUT WHETHER THE PROCURING ACTIVITY CAN SO DETERMINE FROM THE INFORMATION SUBMITTED WITH THE BID. IN THE INSTANT CASE, THE INVITATION CLEARLY WARNED BIDDERS, IN THE "BRAND NAME" CLAUSE QUOTED ABOVE, THAT THE "EQUALITY" OF AN "EQUAL" PRODUCT WOULD BE DETERMINED ON THE BASIS OF INFORMATION FURNISHED BY THE BIDDER, WHICH COULD INCLUDE REFERENCE TO INFORMATION PREVIOUSLY FURNISHED OR OTHERWISE AVAILABLE TO THE PURCHASING ACTIVITY. THIS CLAUSE SPECIFICALLY CAUTIONED BIDDERS THAT "TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE BIDDER MUST FURNISH AS A PART OF HIS BID ALL DESCRIPTIVE MATERIALS (SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER INFORMATION) NECESSARY FOR THE PURCHASING ACTIVITY TO (I) DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE INVITATION FOR BIDS AND (II) ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD.' IN ADDITION, THIS CLAUSE PROVIDED THAT PROPOSALS TO MODIFY A PRODUCT SHOULD INCLUDE A "CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS" AND THAT ANY DESCRIPTIVE MATERIAL SHOULD BE CLEARLY MARKED TO SHOW THE PROPOSED MODIFICATIONS.

WITH RESPECT TO THE DESCRIPTIVE MATERIALS SUBMITTED WITH YOUR BID, THE AGENCY CONCLUDED THAT THEY WERE NOT SUFFICIENT TO DETERMINE THE EQUALITY OF THE OFFERED PRODUCT WITH THE BRAND NAME PRODUCT. IN THIS CONNECTION WE QUOTE THE FOLLOWING PORTIONS OF THE AGENCY'S MEMORANDUM OF OCTOBER 6, 1964:

"7. TECHNICAL EXHIBIT C ALSO ATTACHED, IS A TEN PAGE REPORT DESCRIBING THE FEATURES, APPLICATIONS AND SPECIFICATIONS OF THREE PANORAMIC CALIBRATORS AS INDICATED IN THE BIDDER'S QUOTATION SHEET. THE EXHIBIT DOES NOT CONTAIN PHOTOGRAPHS, DRAWINGS, ILLUSTRATIONS OR OTHER DOCUMENTATION DEPICTING THE INTERIOR OR EXTERIOR PHYSICAL CONSTRUCTION.

"8. THE ABOVE CITED DOCUMENTS, I.E., THE QUOTATION SHEET, TECHNICAL EXHIBITS A AND C, ARE THE DESCRIPTIVE LITERATURE FURNISHED BY THE BIDDER IN COMPLIANCE WITH THE BRAND NAMES CLAUSE. REVIEW OF THESE DOCUMENTS FAIL TO DISCLOSE ANY STATEMENT BY THE BIDDER AS TO THE EXACT MODIFICATIONS THAT WOULD BE REQUIRED TO MAKE THE TMC-421 CALIBRATOR CONFORM TO THE REQUIREMENTS OF THE INVITATION FOR BIDS. THE QUOTATION SHEET MERELY STATES THAT THE INSTRUMENT WOULD BE "MODIFIED TO MEET OR EXCEED ALL REQUIREMENTS.' EXHIBIT A CONTAINS THE WORD "MODIFIED" AFTER THE MODEL NUMBER, BUT THE ASTERISK STATES *SEE ALSO TECHNICAL EXHIBIT C. IT WAS NO DOUBT THE INTENTION OF THE BIDDER TO INDICATE THAT THE MODIFICATIONS WOULD BE AS NECESSARY TO MEET THE LISTED SALIENT SPECIFICATIONS BUT THIS CAN ONLY BE ASSUMED AND IS CERTAINLY NOT EXPRESSED.'

THE ABOVE, AS WELL AS OTHER STATEMENTS IN THE ADMINISTRATIVE REPORT, INDICATE THAT ALTHOUGH COGNIZANT TECHNICAL PERSONNEL OF THE PROCURING ACTIVITY DULY CONSIDERED THE DESCRIPTIVE MATERIAL FURNISHED BY YOU THEY WERE UNABLE TO PROPERLY EVALUATE YOU BID SO AS TO DETERMINE THE PRACTICABILITY OF ACHIEVING THE OBJECTIVES STATED IN YOUR EXHIBIT A BY MODIFICATION OF THE CALIBRATOR DESCRIBED IN EXHIBIT C. AS TO THE STATEMENTS IN YOUR LETTERS TO BOTH THE AGENCY AND OUR OFFICE CONCERNING THE HISTORY OF YOUR COMPANY'S PRODUCTION OF CALIBRATORS, THE AGENCY HAS NOT QUESTIONED YOUR CAPABILITY IN THIS FIELD AND, IN FACT, HAS ACKNOWLEDGED THAT THEY CONSIDER YOUR COMPANY CAPABLE OF MANUFACTURING A SATISFACTORY 21 POINT CALIBRATOR. HOWEVER, THIS GOES ONLY TO YOUR RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR, WHICH IS NOT IN ISSUE, AND IS NOT RELEVANT TO WHETHER YOUR MODEL TMC 421, WITH MODIFICATIONS OF AN UNDISCLOSED NATURE, WOULD SATISFACTORILY MEET THE STATED REQUIREMENTS OF THE GOVERNMENT.

SINCE IT IS PRIMARILY THE FUNCTION OF THE PROCURING ACTIVITY TO DETERMINE WHETHER A PRODUCT OFFERED AS EQUAL IS, IN FACT, EQUAL TO THE BRAND NAME PRODUCT, WE WOULD NOT BE JUSTIFIED IN QUESTIONING SUCH A DETERMINATION UNLESS IT WAS CLEARLY ESTABLISHED THAT THE DETERMINATION WAS NOT MADE IN GOOD FAITH OR WAS NOT SUPPORTED BY ANY SUBSTANTIAL REASONS, 38 COMP. GEN. 190. IN THE INSTANT CASE, WE SEE NO BASIS FOR CONCLUDING THAT THE AGENCY PERSONNEL ACTED OTHER THAN IN GOOD FAITH, OR THAT THEIR DETERMINATION, WHICH WAS ESSENTIALLY OF A TECHNICAL NATURE, WAS WITHOUT ANY SUBSTANTIAL BASIS.

ACCORDINGLY, WE SEE NO BASIS UPON WHICH OUR OFFICE MAY LEGALLY OBJECT TO THE AGENCY'S DETERMINATION THAT YOUR BID WAS NONRESPONSIVE OR TO THE ACTION TAKEN BY THE AGENCY IN REJECTING YOUR BID ON THAT BASIS, AND YOUR PROTEST MUST BE DENIED.

IN VIEW OF THIS CONCLUSION, THE QUESTIONS CONCERNING THE FAILURE OF YOUR BID TO INCLUDE REFERENCE TO THE 100 KILOCYCLE REQUIREMENT AND THE FRONT PANEL LAYOUT DO NOT REQUIRE FURTHER COMMENT. HOWEVER, WE HAVE ADVISED THE AGENCY THAT IN FUTURE PROCUREMENTS OF THIS ITEM, CONSIDERATION SHOULD BE GIVEN TO ESTABLISHING SPECIFICATIONS DESCRIBING A PRODUCT WHICH WILL MEET ITS MINIMUM REQUIREMENTS WITHOUT REFERENCE TO A BRAND NAME.