B-157743, DEC. 7, 1965, 45 COMP. GEN. 312

B-157743, DEC. 7, 1965, 45 COMP. GEN. 312

CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE - SALIENT CHARACTERISTICS ALTHOUGH THE ACCEPTANCE OF A LOW BID SUBMITTING A DESCRIPTIVE BULLETIN THAT DID NOT SHOW THE ITEM TO BE FURNISHED WOULD MEET ALL THE SALIENT CHARACTERISTICS OF THE BRAND NAME OR EQUAL CLAUSE CONTAINED IN THE INVITATION FOR BIDS IN ACCORDANCE WITH PARAGRAPH 1-1206.3 OF THE ARMED SERVICES PROCUREMENT REGULATION, AN ESSENTIAL REQUIREMENT UNDER PARAGRAPH 1-1206.2 (B), WAS IMPROPERLY BASED ON THE BLANKET OFFER BY THE LOW BIDDER TO FULLY COMPLY WITH THE SPECIFICATIONS, THE ASSURANCE OF COMPLIANCE FAILING TO REMEDY THE DEFICIENCIES OF THE BULLETIN, ABSENT A DESCRIPTION OF THE MODIFICATIONS PROPOSED AND A SHOWING OF THE MODIFICATIONS ON THE DESCRIPTIVE DATA, CANCELLATION OF THE CONTRACT FOR THE PROCUREMENT, ALREADY DELIVERED BUT NOT INSPECTED, WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT IN VIEW OF THE FACT THAT THE LOW BIDDER TOOK NO EXCEPTION TO THE INVITATION, THAT THE CONTRACT AWARD WAS MADE IN GOOD FAITH, AND THAT THE PROCUREMENT WILL NOT BE ACCEPTED UNTIL INSPECTED FOR COMPLIANCE WITH THE SPECIFICATIONS.

TO HONEYWELL, INC., DECEMBER 7, 1965:

REFERENCE IS MADE TO YOUR PROTEST AGAINST AWARD OF A CONTRACT TO JAMES G. BIDDLE COMPANY FOR ITEM 2 UNDER INVITATION FOR BIDS NO. AMC (A) 18-064-66- 9, ISSUED BY THE UNITED STATES BIOLOGICAL LABORATORIES,FORT DETRICK, MARYLAND.

THE ITEM IN QUESTION WAS DESCRIBED IN THE IFB AS FOLLOWS:

CALIBRATION BRIDGE, DIRECT READING, RATIO SET---

RANGE: ANY RATIO OF RESISTANCE FROM 1 TO 2,000,000. ALSO WITH INTERNAL COMPARISON FEATURE OF 50 TO 1 AND 10 TO 1. A COMBINED UNIT FOR UNIVERSAL AND DIRECT READING RATIOS.

TOTAL NOMINAL RESISTANCE: 2111.110 OHMS AS A UNIVERSAL RATIO SET AND 2000 OHMS AS A DIRECT READING RATIO SET.

ADJUSTABLE RESISTANCE VALUES: 20 TIMES 100, 10 TIMES 10, 10 TIMES 1, 10 TIMES 0.1, 10 TIMES 0.01, AND 10 TIMES .001 OHMS.

ACCURACY: LIMITS OF ERROR (UNIVERSAL RATIO SET) 0.002 PERCENT OR .002 OHMS WHICHEVER IS LARGER FOR ERROR OF DIFFERENCE BETWEEN ANY TWO READINGS. ERROR ALL DIALS SET AT ZERO .004 OHMS MAX. LIMITS OF ERROR (AS 1 TO DIRECT READING RATIO SET) 4 PARTS PER MILLION IF UNKNOWN IS WITHIN 0.1 PERCENT OF STANDARD, ALL AT 25 DEGREES C.

VOLTAGE: 2 TO 4 V DC UP TO 50 V IF PERMITTED--- OF APPARATUS UNDER TEST.

SWITCHES: LOCATED UNDER PANEL SURFACE IN DUST PROOF ENCLOSURE. CONTACT RESISTANCE UNDER .0004 OHMS.

RESISTORS: LOCATED IN THERMAL EQUALIZING CHAMBER.

"CASE: TO PROVIDE ELECTROSTATIC SHIELDING.

"MODEL: HONEYWELL, NO. 1407 OR EQUAL.'

IN ADDITION TO A DESCRIPTIVE DATA REQUIREMENT, THE IFB CONTAINED, IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1206.3, AND AS PARAGRAPH 34 OF THE TERMS AND CONDITIONS OF THE INVITATION, A BRAND NAME OR EQUAL CLAUSE READING IN PART, 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.

(C) (1) IF THE BIDDER PROPOSES TO FURNISH AN "EQUAL" PRODUCTS, 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) 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.

BIDS WERE OPENED ON AUGUST 17, AS SCHEDULED. OF THE THREE BIDS SUBMITTED, BIDDLE'S BID, QUOTING PRICES OF $705 ON ITEM 1, A PRECISION POTENTIOMETER, AND $2,160 ON ITEM 2, WAS LOW AS TO BOTH ITEMS. ACCORDINGLY, UPON DETERMINATION BY THE TECHNICAL EVALUATORS AT THE PROCURING ACTIVITY THAT BIDDLE WAS RESPONSIBLE TO THE GOVERNMENT'S REQUIREMENTS, AWARD WAS MADE TO BIDDLE ON AUGUST 21. IT IS OUR UNDERSTANDING THAT BIDDLE HAS DELIVERED THE ITEMS TO THE PROCURING ACTIVITY, AND INSPECTION WILL BE PERFORMED SHORTLY, AS REQUIRED BY ARTICLE 5 OF THE GENERAL PROVISIONS (SUPPLY CONTRACT), STANDARD FORM 32, BEFORE ACCEPTANCE OF THE ITEMS BY THE GOVERNMENT.

IN YOUR LETTER DATED SEPTEMBER 23, ADDRESSED TO THE PROCURING ACTIVITY, YOU STATE THAT THE RATIO SET OFFERED BY BIDDLE IN LIEU OF THE HONEYWELL MODEL, AS DESCRIBED IN THE LITERATURE INCLUDED IN BIDDLE'S BID, DOES NOT COMPLY WITH THE SPECIFICATIONS AND, THEREFORE, SHOULD BE REJECTED. IN A LETTER OF OCTOBER 5, ALSO ADDRESSED TO THE PROCURING ACTIVITY, YOU MAKE THE FOLLOWING STATEMENTS:

THE SPECIFICATIONS FOR ITEM 2 UNDER THE ABOVE IFB READ IN PART AS FOLLOWS:

THE MODEL 1407 UNIVERSAL/DIRECT READING RATIO JOB IS A UNIQUE COMBINATION INSTRUMENT CONSISTING OF A 6-DIAL UNIVERSAL RATIO SET WITH APPROPRIATE ADDITIONAL CIRCUIT COMPONENTS TO FACILITATE ITS USE AS A HIGH PERFORMANCE DIRECT READING RATIO SET. THE UNIVERSAL RATIO SET CONTAINS SIX DIALS, GIVING ONE PART PER MILLION RESOLUTION FOR ANY RATIO FROM 1 TO 2,000,000. THIS ENABLES CALIBRATING SUCH DEVICES AS POTENTIOMETERS AND ADD VALUE RESISTORS.

THE ADDITION OF THE APPROPRIATE TAPS AND RESISTORS ENABLES THE OPERATOR TO UTILIZE THIS DEVICE AS A DIRECT READING RATIO SET FOR THE COMPARISON OF RESISTORS WHOSE NOMINAL VALUES ARE THE SAME. IT ALSO PROVIDES PRECISE INTER-COMPARISON OF RESISTORS WHOSE RATIO IS 5:1 OR 10:1.

LIMIT OF ERROR (AS A DIRECT READING RATIO SET). 4 PARTS PER MILLION IF UNKNOWN IS WITHIN 0.1 PERCENT OF STANDARD.

THE MODEL 603002 UNIVERSAL RATIO SET OFFERED BY THE JAMES G. BIDDLE COMPANY AND DESCRIBED IN THEIR BULLETIN 60-20 MAKES NO PROVISION WHATEVER FOR THE "DIRECT READING RATIO SET" FEATURE.

THE BULLETIN SUBMITTED BY BIDDLE WITH ITS BID OF AUGUST 4, DESCRIBING THE SIX DIAL UNIVERSAL RATIO SET OFFERED AS ITEM 2, READS, IN PART, AS FOLLOWS:

CATALOG 603002 SIX DIAL UNIVERSAL RATIO SET IS ONE OF THE MOST ESSENTIAL AS WELL AS MOST VERSATILE D.C. MEASURING INSTRUMENTS IN A STANDARDIZING LABORATORY. THIS RATIO SET CAN BE USED FOR THE PRECISE CALIBRATION AND CERTIFICATION OF SUCH PRECISION INSTRUMENTS AS POTENTIOMETERS, VOLTAGE DIVIDERS AND RESISTANCE STANDARDS INCLUDING ODD VALUE RESISTORS. THE RATIO SET CAN ALSO BE USED FOR PRECISE RATIO MEASUREMENTS.

THE SIX DIAL UNIVERSAL RATIO SET IS EQUIVALENT TO A LONG SLIDEWIRE WITH A TERMINAL RESISTANCE OF 2,111.110 OHMS AND WITH A MOVABLE CONTACT THAT MAY BE SET AT ANY POINT OF THE 2,111.110 OHMS TO AN INCREMENT OF 0.001 OHM.

SPECIAL FEATURES--- THIS RATIO SET HAS BEEN UNIQUELY DESIGNED TO GIVE OPTIMUM ACCURACY AND PERFORMANCE AS WELL AS TO PROVIDE EASY READING OF RATIOS. A FEW OF THESE FEATURES ARE:

ALL RESISTORS AND SWITCHES ARE ENCLOSED IN A THERMAL EQUALIZING CHAMBER WITH ADDITIONAL LINING UTILIZED INSIDE THE CASE. ALL PUSH KEY CONTACTS ARE GOLD.

ELECTROSTATIC SHIELDING IS PROVIDED BY THE ALUMINUM CASE AND PANEL.

DIRECT "IN LINE" READ-OUT IS OBTAINED BY A UNIQUE ARRANGEMENT OF THE DIALS.

RANGE--- SIX ADJUSTABLE DIALS, GIVING STEPS OF 20 TIMES 100 OHMS PLUS 10 (10 PLUS 1 PLUS 0.1 PLUS 0.01 PLUS 0.001) OHMS. THE RESISTANCE IS CONSTANT AT 2,111.110 OHMS FOR ALL SETTINGS OF THE DIALS.

RESOLUTION--- 0.001 OHM STEPS OF 1/2 PART PER MILLION (0.00005 PERCENT) OF THE TOTAL INPUT RESISTANCE.

LINEARITY--- PLUS OR MINUS 0.001 PERCENT OR 1 PART PER MILLION OF THE TOTAL INPUT RESISTANCE.

LIMIT OF ERROR--- PLUS OR MINUS 0.001 PERCENT OR 0.002 OHM WHICHEVER IS GREATER. ALL RESISTORS UTILIZE SPECIALLY SELECTED RESISTANCE WIRE AND HAVE BEEN THOROUGHLY AGED FOR HIGHEST STABILITY. EACH RATIO SET FURNISHED WITH BIDDLE-GRAY CALIBRATION GIVING READINGS AT 23 DEGREES C. TRACEABLE TO NATIONAL BUREAU OF STANDARDS.

BY LETTER DATED AUGUST 9, 8 DAYS PRIOR TO BID OPENING, BIDDLE REQUESTED THE PROCURING ACTIVITY TO ADD TO ITS BID THE FOLLOWING STATEMENT:

REFERENCE ITEM 2 OF SUBJECT IFB:

WE WISH TO ADVISE THAT THE NO. 603002 WE ARE OFFERING WILL FULLY MEET THE SPECIFICATIONS AS CALLED FOR ON PAGE 12 AND 13 OF THE INVITATION.

THE AMC REPORT SHOWS THAT BASED ON THE LITERATURE ORIGINALLY FURNISHED BY BIDDLE AND THE LETTER OF AUGUST 9, TOGETHER WITH THE FACT THAT BIDDLE TOOK NO EXCEPTIONS TO ANY OF THE IFB REQUIREMENTS, THE TECHNICAL EVALUATORS CONCLUDED THAT BIDDLE WAS OFFERING AN ACCEPTABLE ITEM RESPONSIVE TO THE PROCUREMENT NEEDS. IN THIS CONNECTION, IT IS FURTHER STATED THAT IN THE OPINION OF THE TECHNICAL EVALUATORS, THE ITEM IS NOT A NORMAL OFF-THE- SHELF ITEM BUT IS, RATHER, ONE THAT IS SPECIALLY MANUFACTURED OR FABRICATED FOR A PARTICULAR PROCUREMENT; THAT THE INSTRUMENTS ARE APPARENTLY MODIFIED TO MEET THE NEEDS OF THE PURCHASER; AND THAT APPARENTLY BIDDLE HAS UNDERTAKEN THE MODIFICATION OF ITS OWN INSTRUMENT TO MEET THE SALIENT FEATURES SET FORTH IN THE IFB. THE CONTRACTING OFFICER'S STATEMENT INDICATES THAT THE AWARD WAS MADE ON THE ASSUMPTION THAT THE LOW BID WAS RESPONSIVE, AND SINCE BIDDLE TOOK NO EXCEPTIONS TO THE SPECIFICATIONS, SUBMITTED DESCRIPTIVE LITERATURE, AND SUPPLEMENTED ITS BID WITH THE STATEMENT THAT THE ITEM WOULD FULLY COMPLY WITH THE SPECIFICATIONS, THE CONTRACTING OFFICER HAD NO ALTERNATIVE BUT TO ACCEPT BIDDLE'S LOW BID.

THE PROCURING ACTIVITY CONCEDES THAT THE BULLETIN SUBMITTED BY BIDDLE DESCRIBING ITS INSTRUMENT DOES NOT SHOW THAT THE ITEM MEETS ALL THE SALIENT REQUIREMENTS OF THE BRAND NAME ITEMS SET FORTH IN THE IFB. HOWEVER, IT IS THE POSITION OF THE PROCUREMENT OFFICIALS THAT THE STATEMENT IN BIDDLE'S LETTER OF AUGUST 9, SUBMITTED BEFORE BID OPENING AS A PART OF THE BID, ASSURING THAT THE ITEM WOULD FULLY COMPLY WITH THE IFB SPECIFICATIONS, REMEDIES ANY DEFICIENCIES IN THE DESCRIPTIVE BULLETIN. HEADQUARTERS, UNITED STATES ARMY MATERIEL COMMAND, CONCURS WITH THE CONTRACTING OFFICER'S FINDING THAT THE BID WAS RESPONSIVE AND, THEREFORE, RECOMMENDS THAT THE PROTEST BE DENIED.

ASPR 1-1206.4 (A) PROVIDES AS FOLLOWS:

(A) BIDS OFFERING PRODUCTS WHICH DIFFER FROM BRAND NAME PRODUCTS REFERENCED IN A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION SHALL BE CONSIDERED FOR AWARD WHERE THE CONTRACTING OFFICER DETERMINES IN ACCORDANCE WITH THE TERMS OF THE CLAUSE IN 1-1206.3 (B) THAT THE OFFERED PRODUCTS ARE EQUAL IN ALL MATERIAL RESPECTS TO THE PRODUCTS REFERENCED. BIDS SHALL NOT BE REJECTED BECAUSE OF MINOR DIFFERENCES IN DESIGN, CONSTRUCTION, OR FEATURES WHICH DO NOT AFFECT THE SUITABILITY OF THE PRODUCTS FOR THEIR INTENDED USE.

WHILE A "BRAND NAME" DESIGNATION IS INTENDED TO BE DESCRIPTIVE AND MUST BE SO INTERPRETED, SPECIFICATIONS SPELLING OUT ESSENTIAL CHARACTERISTICS TO MEET THE NEEDS OF THE GOVERNMENT MUST BE STRICTLY MET. ASPR 1-1206.2 (B).

ON THE FACTS OF RECORD, IT IS OUR VIEW THAT THE BID SUBMITTED BY BIDDLE, INCLUDING THE LETTER OF AUGUST 9 CONTAINING THE BLANKET OFFER TO MEET ALL OF THE SPECIFICATIONS, WAS NOT RESPONSIVE TO THE IFB IN THAT IT FAILED TO INDICATE THAT IT WOULD MEET ALL OF THE SALIENT REQUIREMENTS OF THE BRAND- NAME ITEMS AS SET FORTH IN THE IFB DESCRIPTION. IF AS THE TECHNICAL EVALUATOR ASSUMED, BIDDLE INTENDED TO MODIFY THE ITEM DESCRIBED IN ITS BID LITERATURE TO MEET THE SPECIFIED REQUIREMENTS, IT WAS REQUIRED BY THE TERMS OF PARAGRAPH 34 (C) (2) OF THE TERMS AND CONDITIONS OF THE INVITATION TO INCLUDE IN ITS BID A CLEAR DESCRIPTION OF THE PROPOSED MODIFICATIONS AND TO CLEARLY MARK DESCRIPTIVE DATA SHOWING SUCH MODIFICATIONS. THIS, BIDDLE FAILED TO DO. HAD THE MATTER BEEN BROUGHT TO OUR ATTENTION BEFORE THE AWARD, WE ARE OF THE OPINION WE WOULD HAVE ADVISED THE CONTRACTING AGENCY THAT BIDDLE'S BID WAS NONRESPONSIVE AND SHOULD BE REJECTED. HOWEVER, IT IS TO BE NOTED THAT BIDDLE TOOK NO EXCEPTION TO THE IFB REQUIREMENTS, THAT THE AWARD WAS MADE IN GOOD FAITH, AND THAT THE ITEM DELIVERED BY BIDDLE WILL NOT BE ACCEPTED BY THE PROCURING ACTIVITY UNTIL AFTER IT HAS BEEN INSPECTED FOR COMPLIANCE WITH THE SPECIFICATIONS. IN VIEW OF THE FOREGOING, IT IS OUR OPINION THAT THE BEST INTERESTS OF THE GOVERNMENT WOULD NOT BE SERVED BY CANCELING THE CONTRACT AWARDED TO BIDDLE, 43 COMP. GEN. 761, AND YOUR PROTEST IS THEREFORE DENIED.