B-157224, SEP. 20, 1965

B-157224, SEP. 20, 1965

TO INDUSTRIAL ENGINEERING AND EQUIPMENT COMPANY:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE REJECTION OF YOUR BID SUBMITTED UNDER INVITATION FOR BIDS NO. C-235255, ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION LEWIS RESEARCH CENTER ON JUNE 4, 1965.

THE INVITATION INVITED BIDS ON THE FOLLOWING ITEM:

"HEATER, 150 K.W; SHALL BE EDWIN L. WIEGAND TYPE NWHO-8LTXX OR EQUAL, AND IN ACCORDANCE WITH SPECIFICATION C-235255 DATED MAY 25, 1965, ATTACHED HERETO AND MADE A PART HEREOF.'

MECHANICAL DRAWINGS AND ELEMENTARY WIRING DIAGRAMS (SHOWING LOCATION AND IDENTIFICATION OF ALL ELECTRICAL CONTROLS), WERE ALSO REQUIRED FOR THE HEATER.

THE INVITATION INCLUDES, ON PAGE FOUR THEREOF, A "BRAND NAME OR EQUAL" CLAUSE SIMILAR TO THAT SET FORTH IN ASPR 1-1206.3, WHICH IS MADE APPLICABLE TO NASA PROCUREMENTS BY NASA PR 1.1200, AS FOLLOWS:

"/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 PRODUCTS 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 MATERIAL (SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER INFORMATION) NECESSARY FOR THE PURCHASING ACTIVITY TO (I) DETERMINATE 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 INVITATION WAS ISSUED TO NINE FIRMS AND AT BID OPENING ON JUNE 25, 1965, FOUR BIDS WERE RECEIVED. YOU QUOTED A PRICE OF $2,728.00; ANDERSON- BOLDS, INCORPORATED (BIDDING ON THE WIEGAND COMPANY HEATER) AND EDWIN L. WIEGAND COMPANY BOTH QUOTED A PRICE OF $3,860.00; AND THE GENERAL ELECTRIC COMPANY QUOTED A PRICE OF $4,198.00. IT WAS STATED ON PAGE 5 OF YOUR BID THAT YOU WERE:

"BIDDING ON: MANUFACTURER'S NAME IND. ENGR. AND EQUIP. CO. NAME PREHEATER NO. 50-5075"

YOUR BID WAS DETERMINED TO BE NONRESPONSIVE FOR REASONS AS STATED BY THE CONTRACTING OFFICER IN HIS LETTER TO YOUR OF JULY 9, 1965, AS FOLLOWS:

"YOUR ATTENTION IS INVITED TO THE ATTACHED BRAND NAME CLAUSE OR EQUAL, DATED NOVEMBER 1961, WHICH WAS A PART OF SUBJECT INVITATION FOR BIDS, IN WHICH IT IS CLEARLY SET FORTH THAT THE BIDDER OFFERING AN "OR EQUAL" PRODUCT MUST CLEARLY IDENTIFY THE PRODUCT IN ORDER THAT THE GOVERNMENT CAN BE FULLY COGNIZANT OF WHAT IT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD.

"YOUR BID FAILED TO INCLUDE DESCRIPTIVE MATERIAL (CATALOG CUTS, ILLUSTRATIONS, DRAWINGS OR OTHER INFORMATION) NECESSARY FOR THE GOVERNMENT TO DETERMINE THAT YOUR PROPOSED PREHEATER MODEL NO. 50-5075 WAS FULLY EQUAL TO THE BRAND NAME PRODUCT. FURTHER, ADEQUATE DESCRIPTIVE MATERIAL WAS NOT AVAILABLE TO THIS ACTIVITY.'

IN YOUR LETTER OF JULY 13, 1965, IT IS STATED WHILE IT WAS TRUE THAT NO DESCRIPTIVE MATERIAL WAS ENCLOSED WITH YOUR BID, NEVERTHELESS, ON JUNE 11, 1965, YOUR CLEVELAND REPRESENTATIVE, CARLL AND SWIFT COMPANY, WROTE TO THE NASA BUYER AND ENCLOSED A COPY OF YOUR BULLETIN E-50, WHICH GIVES A GENERAL DESCRIPTION OF THE PREHEATER YOU MANUFACTURE. IT IS FURTHER STATED THAT FROM THE ELEVEN QUESTIONS ASKED IN THAT LETTER AND THE ANSWERS GIVEN (ORALLY OVER THE TELEPHONE) NASA WAS AWARE OF THE CHARACTERISTICS OF THE EQUIPMENT YOU PROPOSED TO FURNISH. IT IS URGED THAT SUCH INFORMATION WAS SUFFICIENT FOR NASA TO EVALUATE YOUR BID AND THE FACT THAT THE INFORMATION WAS NOT SPECIFICALLY ATTACHED TO YOUR BID WAS A TECHNICALITY.

YOU ALSO REFER TO PARAGRAPH (A) OF THE ABOVE-QUOTED PROVISION THAT THE "BRAND NAME OR EQUAL" DESCRIPTION IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE. YOU STATE THAT THE BRAND NAME SPECIFIED IN THE INVITATION,"EDWIN L. WIEGAND TYPE NWHO-8LTXX," DOES NOT APPEAR IN ANY OF EDWIN L. WIEGAND'S PUBLISHED LITERATURE AND THAT IS THE REASON WHY IT WAS FOUND NECESSARY TO ASK THE QUESTIONS CONTAINED IN YOUR REPRESENTATIVE'S LETTER OF JUNE 11. IN VIEW THEREOF IT IS CONTENDED THAT THE DESCRIPTION OF THE ITEM IN THE INVITATION WAS RESTRICTIVE IN THAT IT DID NOT FULLY DESCRIBE THE PRODUCT AND SPECIFIED A CATALOG NUMBER THAT DOES NOT EXIST IN WIEGAND'S PUBLISHED LITERATURE.

THE RECORD SHOWS THAT THE SPECIFIED WIEGAND MODEL NWHO-8LTXX WAS A SPECIAL TYPE HEATER AND WAS NOT LISTED IN THEIR PUBLISHED CATALOGUE AS SUCH. TO THIS EXTENT THE INVITATION WAS DEFICIENT, SINCE INFORMATION WITH RESPECT TO BRAND NAME ITEMS SHOULD BE READILY AVAILABLE TO BIDDERS. THE FACT THAT SUCH INFORMATION WAS NOT READILY AVAILABLE WAS NOT REALIZED AT THE TIME OF THE ISSUANCE OF THE INVITATION. HOWEVER, IT IS REPORTED THAT WIEGAND HAS STATED THAT IT WOULD HAVE MADE AVAILABLE UPON REQUEST FROM ANY INDUSTRIAL SOURCE APPROPRIATE SALES DRAWING, INDICATING SPECIFICATIONS OF THE HEATER. APPARENTLY YOU MADE NO EFFORT TO REQUEST INFORMATION FROM WIEGAND AS TO THE DISTINGUISHING FEATURE OF THIS SPECIAL MODIFICATION TO THE BASIC WIEGAND NWHO-8 SERIES OF HEATERS AND RELATED CONTROLS WHOSE FUNDAMENTAL CHARACTERISTICS ARE DESCRIBED ON PAGES 36 AND 53 OF WIEGAND'S CATALOGUE 60, DECEMBER 1964.

THE LACK OF PRECISE IDENTIFICATION OF THE ITEM IN THE INVITATION, HOWEVER, APPARENTLY DID NOT CONTRIBUTE TO THE NONRESPONSIVENESS OF YOUR BID. RATHER, YOUR BID WAS DETERMINED TO BE NONRESPONSIVE BECAUSE THERE WERE NO STATEMENTS OR DESCRIPTIVE LITERATURE SUBMITTED WITH YOUR BID, OR A REFERENCE THERETO, TO INDICATE WHETHER THE ITEM OFFERED, INDUSTRIAL MODEL NO. 50-5075, MET THE SALIENT CHARACTERISTICS OF THE SPECIFICATIONS, SPECIFICATION NO. C-235255, WHICH WERE A PART OF THE INVITATION FOR BIDS. YOUR BULLETIN E-50 WHICH WAS SUBMITTED WITH YOUR REPRESENTATIVE'S LETTER OF JUNE 11, 1965, DOES NOT LIST THE INDUSTRIAL MODEL 50-5075 THAT WAS OFFERED. FURTHERMORE, YOUR BULLETIN E-50 CATALOGUES WATER AND OIL PREHEATERS, WHEREAS THE SPECIFICATIONS INVOLVED CALL FOR A HELIUM GAS HEATER HAVING CERTAIN SPECIFIED FEATURES. IT IS REPORTED THAT THE ITEM OFFERED WOULD HAVE MET REQUIREMENTS IF IT CONTAINED THE CHARACTERISTICS DISCUSSED WITH YOUR REPRESENTATIVE OVER THE TELEPHONE AND ALSO INCLUDED THE SPECIFIC REQUIREMENTS SET FORTH IN THE SPECIFICATIONS ATTACHED TO THE INVITATION.

WITH RESPECT TO THE CONTENTION THAT NASA WAS AWARE OF THE CHARACTERISTICS OF THE EQUIPMENT YOU INTENDED TO FURNISH FROM THE QUESTIONS SET FORTH IN YOUR REPRESENTATIVE'S LETTER OF JUNE 11 AND THE ORAL ANSWERS GIVEN THERETO, THE INVITATION REQUIRED THAT BIDDERS OFFERING "EQUAL" PRODUCTS ,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.' THIS REQUIREMENT IS SET FORTH AND UNDERLINED IN PARAGRAPH (C) (1) QUOTED ABOVE.

YOUR BID CONTAINED NO STATEMENT OR INDICATION THAT THE HEATER YOU PROPOSED TO FURNISH WOULD COMPLY WITH THE ORAL ANSWERS GIVEN OVER THE TELEPHONE TO YOUR REPRESENTATIVE IN RESPONSE TO THE ELEVEN QUESTIONS OR TO THE SPECIFIC REQUIREMENTS SET FORTH IN THE INVITATION. OBVIOUSLY ORAL RESPONSES MAY NOT PROPERLY BE INCORPORATED AS A PART OF A BID. A VALID BID MUST CONTAIN A DISTINCT PROPOSITION AND MUST BE COMPLETE AND RESPONSIVE ON ITS FACE. 44 COMP. GEN. 292. SINCE THERE WAS NOTHING IN YOUR BID FROM WHICH IT COULD BE DETERMINED WHETHER THE ITEM OFFERED WOULD COMPLY WITH REQUIREMENTS, THERE IS NO BASIS FOR US TO OBJECT TO THE AGENCY'S ACTION IN REJECTING YOUR BID AS BEING NONRESPONSIVE AND, THEREFORE, YOUR PROTEST MUST BE DENIED.