B-157081, OCT. 18, 1965

B-157081, OCT. 18, 1965

TO THE SECRETARY OF THE NAVY:

WE REFER TO YOUR LETTERS OF JULY 9 AND AUGUST 31, 1965, WITH ENCLOSURES, REFERENCE: R1, CONCERNING THE PROTEST OF AERO VAC CORPORATION IN CONNECTION WITH INVITATION FOR BIDS NO. 156-517-65, ISSUED BY THE UNITED STATES NAVAL AIR ENGINEERING CENTER, PHILADELPHIA, PENNSYLVANIA, ON MARCH 25, 1965.

THE INVITATION CALLED FOR ONE (1) RESIDUAL GAS ANALYZER, CONSOLIDATED ELECTRODYNAMICS CORPORATION (CEC) TYPE NO. 21-612 MA, OR EQUAL. ATTACHMENT TO THE INVITATION, BUREAU OF NAVAL WEAPONS INDUSTRIAL OFFICE REQUIREMENT NO. 65-317A, DATED MARCH 18, 1965, LISTED ESSENTIAL REQUIREMENTS OF THE ITEM, IN TERMS OF PERFORMANCE, AND THE ACCESSORIES TO BE FURNISHED. BIDS WERE OPENED ON MAY 24, 1965, AND OF FIVE BIDS RECEIVED, THE LOWEST AS TO PRICE AS $8,975, WHILE THE OTHER FOUR BIDS RANGED FROM $13,619 TO $17,200. THE LOW BIDDER, AERO VAC CORPORATION, BID ON ITS OWN AVA1 MODEL. IN A LETTER ATTACHED TO ITS BID, AERO VAC LISTED ALL THE "ESSENTIAL REQUIREMENTS" AS SET FORTH IN THE INVITATION, AND STATED THAT ITS MODEL WOULD MEET THESE REQUIREMENTS. THE BID ALSO INCLUDED A LIST OF PRIOR CUSTOMERS FOR THE MODEL (THE AIR FORCE AND NASA WERE LISTED) AND A GRAPH SHOWING A "TYPICAL" SPECTRUM READING ATMASS 84 AND A UNIT RESOLUTION AT MASS 20 (THE INVITATION REQUIRED A TOTAL MASS RANGE OF 2 TO 80, MINIMUM). NO FURTHER DATA WAS RECEIVED WITH THE BID.

THE CONTRACTING OFFICER SUBMITTED THE LOW BID TO THE BUREAU OF WEAPONS INDUSTRIAL OFFICE (NAEC) FOR TECHNICAL EVALUATION, BUT THE INDUSTRIAL OFFICE ADVISED THAT IT DID NOT HAVE SUFFICIENT INFORMATION ON THE AVA1 MODEL TO MAKE AN EVALUATION. AERO VAC WAS INFORMED OF THIS, AND ON JUNE 8, 1965, THE BIDDER SUBMITTED ITS BULLETIN G-1A (DATED "3-64"), DESCRIBING THE AVA1 MODEL. A TECHNICAL EVALUATION WAS THEN MADE ON THE BASIS OF THE BULLETIN DESCRIPTION, AND THE FOLLOWING DEFICIENCIES IN THE MODEL WERE NOTED:

(A) THE AERO VAC BULLETIN SPECIFIES A TOTAL MASS RANGE OF 2 TO 70 AMU FOR THE AVA1, WHILE THE INVITATION REQUIRES A RANGE OF 2 TO 80 MINIMUM.

(B) AS SPECIFIED IN THE INVITATION, THE UNIT MUST BE BAKEABLE TO 400 DEGREES C MINIMUM; HOWEVER THE G-1A BULLETIN DOES NOT SPECIFY BAKE ABILITY TEMPERATURE; THE BULLETIN MERELY "LISTS A 25 VOLT AC DE GAS VOLTAGE WHICH CANNOT BE EQUATED IN ANY WAY WITH THE 400 DEGREE CENTIGRADE REQUIREMENT.'

(C) THE MATERIAL OFFERED BY AERO VAC "REQUIRES THAT THE RANGE BE CHANGED MANUALLY BY INTERCHANGING MAGNETS ON THE ANALYZER TUBE, WHEREAS THE CEC BRAND NAME MODEL HAS AN ELECTRICAL SWITCHING ARRANGEMENT, WHICH ARRANGEMENT IS LESS SUSCEPTIBLE TO MAGNETIC DEGRADATION AS A RESULT OF MANUAL MANIPULATION.'

(D) THE CEC GASKET ACCESSORIES SPECIFIED IN THE INVITATION ARE MADE OF GOLD, WHICH SERVES TO MINIMIZE CHEMICAL REACTION WITH MATERIALS PRESENT IN THE VACUUM SYSTEM. AERO VAC DID NOT SPECIFY THE GASKET MATERIAL, BUT INFORMATION OBTAINED AFTER BID OPENING INDICATES THAT THE GASKETS WOULD BE MADE OF COPPER, WHICH IS SUBJECT TO HIGH CONTAMINATION.

THE CONTRACTING OFFICER PROPOSES TO REJECT THE AERO VAC BID EITHER BECAUSE THE BID AS RECEIVED DID NOT CONTAIN SUFFICIENT DESCRIPTIVE DATA TO PERMIT AN EVALUATION OR BECAUSE THE DATA SUBSEQUENTLY FURNISHED SHOWS THAT THE AVA1 MODEL IS NOT EQUAL TO THE BRAND NAME MODEL.

THE LOW BIDDER DID FURNISH WITH ITS BID A LIST OF PRIOR CUSTOMERS FOR ITS MODELS, WHICH, AS STATED EARLIER, INCLUDED OTHER GOVERNMENT AGENCIES. DO NOT KNOW HOW READILY AVAILABLE ANY INFORMATION ON THE AVA1 MODEL WAS TO YOUR PURCHASING ACTIVITY. IN ANY EVENT, WE DO NOT AGREE WITH POINTS (A) AND (B) ABOVE TO THE EFFECT THAT THE AVA1 MODEL MAY BE REGARDED AS DEFICIENT WITH REGARD TO THE MASS RANGE AND MINIMUM BAKE ABILITY. THE BID AFFIRMATIVELY STATES THAT THE MODEL WILL MEET ALL THE PERFORMANCE REQUIREMENTS, AND THE BIDDER DID FURNISH A GRAPH TO SHOW THAT ITS UNIT WILL MEET THE MASS RANGE REQUIREMENT. POINTS (C) AND (D), RELATIVE TO THE SWITCHING AND GASKETS, INDICATE THAT THE AVA1 IS NOT EQUAL TO THE BRAND NAME MODEL. HOWEVER, WE DO NOT BELIEVE THAT THESE "DEFICIENCIES" IN THE AVA1 MODEL JUSTIFY MAKING AN AWARD TO A HIGHER BIDDER UNDER THIS INVITATION.

ASPR 1-1206.2 (B) PROVIDES THAT: " "BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS SHOULD SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCTS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. * * *" THE TECHNICAL EVALUATION REPORT STATES THAT THE REFERENCED BRAND NAME MODEL INCLUDES AN ELECTRICAL SWITCHING ARRANGEMENT AND GASKETS WHICH ARE MADE OF GOLD, WHILE THE AVA1 MODEL USES COPPER GASKETS AND CONTAINS A MANUAL SWITCHING ARRANGEMENT AND THAT THE AVA1 MODEL IS INFERIOR TO THE BRAND NAME MODEL BECAUSE OF THESE DIFFERENCES. YET THE INVITATION NEITHER LISTED ELECTRICAL SWITCHING AS AN ESSENTIAL REQUIREMENT NOR SPECIFIED GOLD AS NECESSARY MATERIAL FOR THE GASKETS. IF THESE TWO CHARACTERISTICS OF THE BRAND NAME ITEM ARE ESSENTIAL TO YOUR NEEDS, THE INVITATION SHOULD LIST THESE FEATURES UNDER THE "ESSENTIAL REQUIREMENTS.' BIDDERS OFFERING "EQUAL" PRODUCTS SHOULD NOT HAVE TO GUESS AT THE ESSENTIAL QUANTITIES OF THE BRAND NAME ITEM. UNDER THE REGULATION THEY ARE ENTITLED TO BE ADVISED IN THE INVITATION OF THE PARTICULAR FEATURES OR CHARACTERISTICS OF THE REFERENCED ITEM WHICH THEY ARE REQUIRED TO MEET. AN INVITATION WHICH FAILS TO LIST ALL THE CHARACTERISTICS DEEMED ESSENTIAL, OR LISTS CHARACTERISTICS WHICH ARE NOT ESSENTIAL, IS DEFECTIVE. 41 COMP. GEN. 242, 250-51; B-154611, AUGUST 28, 1964; SEE ALSO 38 COMP. GEN. 345.

ACCORDINGLY, THE LOW BID MAY NOT BE REJECTED FOR FAILURE TO MATCH CHARACTERISTICS OF THE NAME BRAND MODEL NOT IDENTIFIED IN THE INVITATION AS SALIENT FEATURES. IF, HOWEVER, IT IS DETERMINED THAT AN ITEM NOT MATCHING SUCH UNIDENTIFIED FEATURES OF THE NAME BRAND MODEL WILL NOT MEET THE NEEDS OF THE GOVERNMENT, THE INVITATION IS DEFECTIVE AND, TIME PERMITTING, THE REQUIREMENT SHOULD BE READVERTISED UNDER A SPECIFICATION WHICH FULLY ADVISES BIDDERS OF ALL THE ESSENTIAL REQUIREMENTS OF THE ITEM.