B-163105, MARCH 27, 1968, 47 COMP. GEN. 501

B-163105, MARCH 27, 1968, 47 COMP. GEN. 501

CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE - SALIENT CHARACTERISTICS AN INVITATION FOR ELECTRIC EQUIPMENT WHICH CONTAINED A "BRAND NAME OR EQUAL" CLAUSE THAT DID NOT LIST "INTERCHANGEABILITY" AS A SALIENT CHARACTERISTIC, AND CLAUSES THAT REQUIRED THE SUBMISSION AND TESTING OF BID SAMPLES THAT WOULD IN ADDITION TO OTHER FACTORS BE EVALUATED FOR INTERCHANGEABILITY IS A MISLEADING INVITATION. ALTHOUGH AN AWARD WAS MADE TO THE LOW BIDDER WHOSE DESCRIPTIVE LITERATURE AND SAMPLE MODEL WERE DETERMINED TO MEET THE SALIENT CHARACTERISTICS ITEMIZED IN THE PURCHASE DESCRIPTION, NO CORRECTIVE ACTION IS REQUIRED DUE TO DELIVERY CONDITIONS. HOWEVER, APPROPRIATE STEPS SHOULD BE TAKEN TO INSURE THAT MISLEADING PROVISIONS ARE DELETED FROM FUTURE BRAND NAME OR EQUAL INVITATIONS, AND THAT THE BRAND NAME MODEL SPECIFIED IN THE INVITATION MEETS THE SALIENT CHARACTERISTICS DESIRED BY THE GOVERNMENT.

TO THE SECRETARY OF THE AIR FORCE, MARCH 27, 1968:

REFERENCE IS MADE TO LETTER AFSPPCA OF FEBRUARY 9, 1968, FROM THE CHIEF, PROCUREMENT OPERATIONS DIVISION, DIRECTORATE OF PROCUREMENT POLICY, DEPUTY CHIEF OF STAFF, SYSTEMS AND LOGISTICS, REPORTING ON THE PROTEST OF THE GENERAL MICROWAVE CORPORATION AGAINST AN AWARD OF A CONTRACT TO THE HEWLETT-PACKARD COMPANY UNDER INVITATION FOR BIDS F41608-68-B-0292.

THE INVITATION SOLICITED BIDS FOR FURNISHING TERMISTOR MOUNT BOLOMETERS DESCRIBED AS FOLLOWS:

SHALL BE USED FOR MEASUREMENT OF CW OR MODULATED POWER WITH STANDARD COMPENSATED AND UNCOMPENSATED POWER BRIDGES. MOUNT SHALL BE TEMPERATURE COMPENSATED AND SHALL INCLUDE A 100 OHM NEGATIVE TEMPERATURE COEFFICIENT THERMISTER. FREQUENCY RANGE: 8.2 TO 12.4 GHZ; WAVEGUIDE SIZE: 1 BY 0.5 IN.; WAVEGUIDE TYPE: RG-52/U; FLANGE TYPE: UG-39/U; MAXIMUM POWER: 10 MW; MAXIMUM VSWR: 1.5; MINIMUM CALIBRATION FACTOR: .85. GENERAL MICROWAVE P/N X400

"OR EQUAL"

THE STANDARD "BRAND NAME OR EQUAL" CLAUSE AND CLAUSES REQUIRING THE SUBMISSION AND TESTING OF BID SAMPLES WERE INCLUDED IN THE INVITATION. THE CLAUSE DEALING WITH THE "APPLICABILITY OF BID SAMPLES" STATED:

(B) ABOVE BID SAMPLES SHALL BE SUPPLIED FOR EVALUATION TO DETERMINE COMPLIANCE WITH THE BRAND NAME ITEM. TESTING AND EVALUATION OF THE BID SAMPLES SHALL CONSIST OF FUNCTIONAL AND PHYSICAL TESTS FOR INTERCHANGEABILITY, RELIABILITY, AND PERFORMANCE CHARACTERISTICS. * * *

HEWLETT-PACKARD COMPANY WAS THE LOW BIDDER. IT OFFERED ITS MODEL X486A AS AN EQUAL TO THE BRAND NAME MODEL. DESCRIPTIVE LITERATURE PERTAINING TO ITS MODEL X486A AND A SAMPLE OF THE MODEL WERE EVALUATED BY AIR FORCE ENGINEERS WHO DETERMINED THAT THE MODEL MET THE SALIENT CHARACTERISTICS ITEMIZED IN THE PURCHASE DESCRIPTION. AWARD WAS MADE TO HEWLETT-PACKARD ON OCTOBER 18, 1967.

GENERAL MICROWAVE PROTESTED AFTER AWARD THAT THE HEWLETT-PACKARD MODEL X486A WAS NOT INTERCHANGEABLE WITH ITS MODEL X400 AND WAS THUS NOT EQUAL TO IT. IN THAT CONNECTION, IT RELIED UPON THE STATEMENT IN THE "APPLICABLILITY OF BID SAMPLES" CLAUSE THAT THE BID SAMPLES SHALL BE EVALUATED TO DETERMINE COMPLIANCE WITH THE "BRAND NAME ITEM" AND THAT THE TESTING AND EVALUATION SHALL INCLUDE FUNCTIONAL AND PHYSICAL TESTS FOR "INTERCHANGEABILITY.' HOWEVER, THE ADMINISTRATIVE REPORT TAKES THE POSITION THAT THE HEWLETT-PACKARD MODEL MET THE SALIENT CHARACTERISTICS ITEMIZED IN THE PURCHASE DESCRIPTION AND THAT THERE WAS NO INTERCHANGEABILITY REQUIREMENT IN THE INVITATION SO THAT THE REQUIREMENT FOR SUCH TESTING WAS MEANINGLESS.

"INTERCHANGEABILITY" WAS NOT LISTED AS ONE OF THE SALIENT CHARACTERISTICS ITEMIZED IN THE PURCHASE DESCRIPTION. HOWEVER, THE "APPLICABILITY OF BID SAMPLES" CLAUSE STATED THAT THERE WOULD BE EVALUATION FOR "INTERCHANGEABILITY.' FURTHER, THE "BID SAMPLES" CLAUSE STATED THAT THE SAMPLES WILL BE TESTED OR EVALUATED TO DETERMINE COMPLIANCE WITH ALL CHARACTERISTICS LISTED FOR SUCH TEST OR EVALUATION AND THAT FAILURE OF THE SAMPLES TO CONFORM TO ALL SUCH CHARACTERISTICS WILL REQUIRE REJECTION OF THE OFFER. THUS, ALTHOUGH "INTERCHANGEABILITY" WAS NOT INCLUDED AS ONE OF THE SALIENT CHARACTERISTICS IN THE PURCHASE DESCRIPTION IN THE INVITATION, THE BID SAMPLES CLAUSE DID REFERENCE "INTERCHANGEABILITY" AS A SIGNIFICANT TEST AND EVALUATION FACTOR. IF ,INTERCHANGEABILITY" WAS NOT TO BE SUCH A FACTOR, THE SAMPLE TESTING PROVISION SHOULD NOT HAVE ADVISED BIDDERS OF THE IMPORTANCE OF THAT REQUIREMENT. THE INVITATION CERTAINLY WAS MISLEADING IN THIS REGARD.

IN DECISION B-157857 OF JANUARY 26, 1966, IT WAS STATED:

* * * BIDDERS OFFERING "EQUAL" PRODUCTS SHOULD NOT HAVE TO GUESS AT THE ESSENTIAL QUALITIES OF THE BRAND NAME ITEM. UNDER THE REGULATIONS 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. * * *

CONSIDERING THAT DELIVERY WAS TO BE MADE WITHIN 120 DAYS AND THAT THE AWARD WAS MADE ON OCTOBER 18, 1967, CORRECTIVE ACTION NEED NOT BE TAKEN AT THIS TIME. HOWEVER, WE SUGGEST THAT APPROPRIATE STEPS BE TAKEN TO INSURE THAT SUCH MISLEADING PROVISIONS AS WERE INCLUDED IN THE INVITATION ARE DELETED FROM FUTURE BRAND NAME OR EQUAL INVITATIONS.

IN REVIEWING THE BIDS RECEIVED UNDER THE INVITATION, WE HAVE OBSERVED THAT WHILE THE LOW BID OF HEWLETT-PACKARD FOR THE "EQUAL" MODEL WAS $149.47 A UNIT, THE BID OF GENERAL MICROWAVE WAS $1,250 UNIT FOR THE BRAND NAME MODEL. ADDITIONALLY, GENERAL MICROWAVE HAS INDICATED IN ITS PROTEST THAT ITS MODEL X402 IS MORE COMPARABLE TO THE HEWLETT-PACKARD MODEL X486A THAN ITS MODEL X400. IN VIEW OF THE SUBSTANTIAL SPREAD IN BID PRICES AND THE ALLEGATION THAT ANOTHER MODEL IS MORE IN LINE WITH THE OFFERED EQUAL, IT APPEARS THAT THE PROCUREMENT OFFICE MAY HAVE CITED ONE BRAND MODEL IN THE INVITATION WHEN ANOTHER LESS SOPHISTICATED BRAND MODEL MIGHT HAVE SATISFIED THE SALIENT CHARACTERISTICS. PROCUREMENT PERSONNEL SHOULD BE REMINDED THAT THE BRAND NAME MODEL SPECIFIED IN THE INVITATION SHOULD BE THAT WHICH MOST CLOSELY MEETS THE SALIENT CHARACTERISTICS DESIRED BY THE GOVERNMENT.