B-157232, SEP. 8, 1965

B-157232, SEP. 8, 1965

TO TRAID CORPORATION:

REFERENCE IS MADE TO YOUR LETTERS DATED JULY 8 AND AUGUST 26, 1965, CONCERNING THE PROTEST OF YOUR COMPANY AGAINST THE REJECTION OF ITS BID AND AWARD OF A CONTRACT TO THE RADIO CORPORATION OF AMERICA PURSUANT TO INVITATION FOR BIDS NO. BG821-18-5-313B, ISSUED ON MAY 10, 1965, BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, MANNED SPACECRAFT CENTER, HOUSTON, TEXAS, FOR THE PROCUREMENT ON ONE "RECORDER, TELEVISION FILM, RCA -TYPE TFR-1 OR EQUAL, AS PER SPECIFICATIONS.'

THE INVITATION FOR BIDS STATED THAT THE EQUIPMENT WOULD BE USED IN SUPPORT OF THE MANNED SPACECRAFT CENTER'S TECHNICAL AND ENGINEERING TEST PROGRAMS, OR OTHER FACILITIES WHEN THE NECESSITY FOR CONVERTING INFORMATION FROM VIDEO ORIGIN TO 16MM FILM IS REQUIRED FOR PERMANENT STORAGE OR DISPLAY FROM A FILM PROJECTOR. THE INVITATION, WHILE SPECIFYING A TELEVISION FILM RECORDER MODEL OF THE RADIO CORPORATION OF AMERICA, CONTAINED A "BRAND NAME OR EQUAL" CLAUSE WHICH PROVIDES, IN PART, THAT "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 BID.'

THREE BIDS WERE RECEIVED AND OPENED AS SCHEDULED ON JUNE 2, 1965. THE RADIO CORPORATION OF AMERICA QUOTED A PRICE OF $44,065 FOR THE SPECIFIED RCA-TYPE TFR-1 TELEVISION FILM RECORDER. THE TAFT BROADCASTING COMPANY, A DISTRIBUTOR OF RADIO CORPORATION OF AMERICA PRODUCTS, QUOTED A PRICE OF $49,500 FOR THE SAME EQUIPMENT. THE BID OF YOUR COMPANY, IN THE AMOUNT OF $26,665, WAS BASED ON THE FURNISHING OF A TELEVISION FILM RECORDER DESCRIBED AS "VUE-TRONICS NO. RK-120B," MANUFACTURED BY VUE-TRONICS, INCORPORATED.

IT HAS BEEN REPORTED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION THAT EVALUATION OF YOUR BID BY THE COGNIZANT TECHNICAL REPRESENTATIVE AT THE MANNED SPACECRAFT CENTER DISCLOSED THAT THE VUE TRONICS MODEL WHICH YOU PROPOSED TO FURNISH FAILED TO MEET SPECIFICATIONS IN THE FOLLOWING RESPECTS: (1) THE CAMERA DRIVE MOTOR DOES NOT DIRECT ITS SPEED IN ACCORDANCE WITH THE TIMING OF THE TELEVISION PICTURE; (2) THE KINESCOPE RECORDER DOES NOT INCORPORATE AN AIR PRESSURIZED CABINET; AND (3) THE KINESCOPE RECORDER DOES NOT PROVIDE FOR A PRESENTATION ON THE DISPLAY TUBE FOR AUTOMATIC ADJUSTMENT OF GAIN AND BIAS FOR PRODUCING THE DESIRED BRIGHTNESS AND CONTRAST FOR OPTIMUM OPERATING CONDITIONS.

YOU CONTENDED THAT YOUR BID SHOULD NOT HAVE BEEN REGARDED AS BEING NONRESPONSIVE TO THE REQUIREMENTS OF THE INVITATION FOR BIDS BECAUSE THE BID WAS SUBMITTED WITHOUT TAKING EXCEPTION TO THE ADVERTISED SPECIFICATIONS. FURTHER, YOU QUESTIONED THE TECHNICAL EVALUATION MADE WITH RESPECT TO THE VUE-TRONICS MODEL, INASMUCH AS THE DEPARTMENT OF THE NAVY APPARENTLY CONSIDERED THE VUE-TRONICS MODEL TO BE EQUAL TO THE "RCA- TYPE TFR-1" TELEVISION FILM RECORDER, AS EVIDENCED BY THE FACT THAT THE NAVY HAD RECENTLY ACCEPTED A BID OF VUE-TRONICS, INCORPORATED, UNDER A REQUEST FOR PROPOSALS WHICH LISTED BOTH THE RCA MODEL TFR-1 AND THE VUE- TRONICS MODEL RK-120 AS ACCEPTABLE PRODUCTS.

IT IS THE POSITION OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION THAT THE SPECIFICATION OF THE RCA MODEL TFR-1, INCLUDING THE SALIENT FEATURES OF THAT MODEL AS SET OUT IN THE INVITATION FOR BIDS, WAS NECESSARY IN THIS CASE TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT; AND THAT THE ACTION TAKEN BY THE DEPARTMENT OF THE NAVY IN THE PROCUREMENT OF A TELEVISION FILM RECORDER DOES NOT, OF COURSE, ESTABLISH THE EQUALITY OF THE RCA AND VUE-TRONICS RECORDERS INSOFAR AS THE PARTICULAR REQUIREMENTS OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION ARE CONCERNED. THAT AGENCY HAS ALSO EXPRESSED THE OPINION THAT THE FACT THAT YOUR COMPANY DID NOT TAKE SPECIFIC EXCEPTION TO THE SPECIFICATIONS DOES NOT OVERCOME THE FAILURE OF THE DESCRIPTIVE LITERATURE SUBMITTED WITH YOUR BID TO DEMONSTRATE COMPLIANCE WITH THE ADVERTISED SPECIFICATIONS IN ALL MATERIAL RESPECTS.

THE DRAFTING OF PROPER SPECIFICATIONS IS WITHIN THE PROVINCE OF THE CONTRACTING AGENCY. CONSISTENT WITH SUCH AUTHORITY, OUR OFFICE HAS TAKEN THE POSITION THAT AN INVITATION FOR BIDS MAY REQUIRE BIDDERS TO SUBMIT DESCRIPTIVE LITERATURE SHOWING THAT THEIR PROPOSALS CONFORM TO SPECIFICATIONS WHEN IT APPEARS THAT SUCH A REQUIREMENT IS ESSENTIAL FOR A PROPER DETERMINATION AS TO THE RESPONSIVENESS OF BIDS. SEE 36 COMP. GEN. 415. THAT PRINCIPLE HAS BEEN APPLIED WITH RESPECT TO ADVERTISING FOR BIDS WHEN BRAND NAMES ARE SPECIFIED, AS HERE, WITH PROVISIONS BEING MADE FOR CONSIDERATION OF "OR EQUAL" ITEMS, SUBJECT TO THE CONDITION THAT A BIDDER WHO OFFERS AN ,OR EQUAL" ITEM MUST IDENTIFY SAME AND SUBMIT DESCRIPTIVE MATERIAL SHOWING EXACTLY WHAT HE PROPOSES TO FURNISH.

ALSO, WE HAVE CONSTRUED THE WORDS "OR EQUAL," WHEN USED IN CONJUNCTION WITH A BRAND NAME PURCHASE DESCRIPTION, TO MEAN THAT AN ALTERNATE ITEM MUST BE EQUAL TO THE PRODUCT SPECIFIED INSOFAR AS THE NEEDS OF THE PROCURING AGENCY ARE CONCERNED, BUT NOT NECESSARILY AN EXACT DUPLICATE THEREOF IN DETAIL OR PERFORMANCE. 38 COMP. GEN. 291. IT IS NEVERTHELESS APPROPRIATE FOR CONTRACTING AGENCIES OF THE GOVERNMENT TO ADVERTISE FOR BIDS ON A BRAND NAME, OR EQUAL, BASIS, AND TO DESCRIBE THOSE FEATURES OF THE SPECIFIED PRODUCT WHICH MUST BE MET BY ANY ALTERNATE PRODUCT PROPOSED TO BE FURNISHED. THE SALIENT FEATURES OF THE RCA MODEL TFR-1 TELEVISION FILM RECORDER ARE SET FORTH IN THE INVITATION FOR BIDS ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, AND IT IS OUR OPINION THAT, IF THE DESCRIPTIVE LITERATURE SUBMITTED WITH YOUR BID FAILED TO SHOW THAT THE VUE-TRONICS MODEL CONTAINED ALL THE FEATURES DETERMINED NECESSARY TO MEET THE REQUIREMENTS OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, THE BID WAS PROPERLY REJECTED AS NONRESPONSIVE.

SINCE THERE APPEARS TO BE NO QUESTION AS TO THE CORRECTNESS OF THE TECHNICAL EVALUATION OF YOUR BID FROM THE STANDPOINT OF WHETHER THE OFFERED EQUIPMENT MET THE MINIMUM REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS, AND WE FIND NO BASIS FOR CONSIDERING THAT THE ADVERTISED SPECIFICATIONS WERE MORE RESTRICTIVE THAN NECESSARY TO MEET THE NEEDS OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION IN THIS INSTANCE, THE PROTEST MADE TO OUR OFFICE IN THE MATTER MUST BE, AND IS, HEREBY DENIED.