B-165928, MAY 27, 1969

B-165928, MAY 27, 1969

TO CREST/GOOD MANUFACTURING COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER DATED JANUARY 8 AND 10, 1969, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE ACTION OF THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, BASE PROCUREMENT DIVISION, MCCLELLAN AIR FORCE BASE, CALIFORNIA, IN REJECTING YOUR FIRM'S LOW BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. F04699 69-B-0023.

THE INVITATION REQUESTED BIDS--TO BE OPENED NOVEMBER 20, 1968-- FOR FURNISHING 427 ITEMS OF PLUMBING REPLACEMENT PARTS AS REQUIRED BY THE BASE CIVIL ENGINEERING DIVISION DURING A 12-MONTH PERIOD. BIDS WERE TO BE SUBMITTED ON AN "ALL OR NONE" BASIS AND WERE TO BE SUBMITTED FOR A SPECIFIED "BRAND NAME, OR EQUAL" PART. ONE ITEM WAS IDENTIFIED AS A CREST/GOOD MANUFACTURING COMPANY, INC., CATALOG NUMBER OR EQUAL AND THE REMAINING 426 ITEMS WERE REFERENCED TO THE CATALOG PARTS NUMBERS OF THE J. A. SEXAUER MFG. CO., INC., OR EQUAL.

AT THE BID OPENING ON NOVEMBER 20, 1968, IT WAS FOUND THAT ONLY YOUR FIRM AND SEXAUER HAD SUBMITTED BIDS AND, IN THE AGGREGATE, YOUR BID WAS APPROXIMATELY $10,000 LOWER THAN THE BID OF SEXAUER. HOWEVER, ON SOME 44 ITEMS, YOUR FIRM HAD INSERTED MERELY AN ASTERISK IN THE SPACE PROVIDED FOR INSERTING YOUR SUBSTITUTE PART NUMBER WITHOUT ANY EXPLANATION EXCEPT THAT YOU DID SPECIFY "CREST" AS THE BRAND NAME AND MANUFACTURER. BECAUSE THERE WAS NO EXPLANATION OF THE ASTERISKS IN THE BID OF YOUR FIRM OR ANY FURTHER IDENTIFICATION OF THESE QUESTIONABLE ITEMS, THE CONTRACTING OFFICER FELT THERE WAS NO WAY TO DEFINITELY DETERMINE THE DESCRIPTION OF THE PART BEING OFFERED BY YOUR FIRM UNDER THESE 44 ITEMS OR WHETHER THEY WERE "EQUAL" TO THE SEXAUER PART NUMBER. ACCORDINGLY, THE CONTRACTING OFFICER REJECTED THE BID OF YOUR FIRM AS NONRESPONSIVE TO THE INVITATION AND AWARDED THE CONTRACT TO SEXAUER ON JANUARY 2, 1969.

BY LETTER DATED JANUARY 10, 1969, TO OUR OFFICE, YOUR FIRM PROTESTED THE REJECTION OF YOUR LOW BID BY THE PROCURING ACTIVITY. YOU CONTEND THAT THE CREST ITEMS MARKED BY AN ASTERISK WERE CLEARLY IDENTIFIABLE, EVEN THOUGH NOT LISTED IN THE CREST CATALOG, AS THESE ITEMS WERE COMMON STANDARD PARTS THAT WERE AVAILABLE IN SEVERAL REGULAR SIZES. YOU POINT OUT THAT BOTH SEXAUER AND CREST CATALOGS CONTAIN OVER 5,000 ITEMS WHICH ARE DUPLICATES TO A LARGE DEGREE OF THE LINES OFFERED BY EACH BIDDER BUT THAT SOME ITEMS ARE NOT COMMON TO EACH FIRM'S LINE. YOU ALLEGE THAT NO FIRM COULD CONFORM TO THE INVITATION AS ISSUED EXCEPT SEXAUER BECAUSE, OF THE 427 ITEMS LISTED IN THE INVITATION, 426 WERE SEXAUER OR EQUAL, ONE ITEM WAS CREST OR EQUAL, AND AWARD WAS TO BE MADE ON AN "ALL OR NONE" BASIS. YOU REQUEST THAT THE CONTRACT AWARDED TO SEXAUER BE CANCELED AND THE PROCUREMENT READVERTISED, OR THAT CONTRACTS BE AWARDED COMPETITIVELY TO BOTH SEXAUER AND YOUR FIRM ITEM FOR ITEM, OR THE ENTIRE CONTRACT BE AWARDED TO YOUR FIRM IF WE DETERMINE THAT YOUR FIRM HAD COMPLIED WITH THE REQUIREMENTS OF THE INVITATION.

THE INVITATION, AT PAGE 98, CONTAINED THE STANDARD "BRAND NAME OR EQUAL" CLAUSE PRESCRIBED BY PARAGRAPH 1-1206.3 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION AND THAT CLAUSE PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"BRAND NAME OR EQUAL (NOV. 1961) ASPR 1-1206.3 (B)

"/AS USED IN THIS CLAUSE, THE TERM -BRAND NAME- INCLUDES IDENTIFICATION OF PRODUCTS BY MAKE AND MODEL.)

"/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.'

IN RESPONDING TO AN INVITATION EMPLOYING A BRAND NAME OR EQUAL PURCHASE DESCRIPTION, THE RESPONSIVENESS OF A BID DEPENDS NOT ON WHETHER THE BIDDER BELIEVES, OR EVEN KNOWS, THAT HIS PRODUCT IS EQUAL TO THE BRAND NAME, BUT WHETHER THE PROCURING ACTIVITY CAN SO DETERMINE FROM THE INFORMATION SUBMITTED WITH THE BID. THE ABOVE-QUOTED CLAUSE CLEARLY WARNED BIDDERS THAT THE ,EQUALITY" OF AN "EQUAL" PRODUCT WOULD BE DETERMINED ON THE BASIS OF INFORMATION FURNISHED BY THE BIDDER. OF THE 427 ITEMS BID UPON, YOUR BID SHOWED ASTERISKS ON 80, AND OF THESE, IT IS REPORTED THAT 44 WERE ABSOLUTELY UNIDENTIFIABLE. IT IS ALSO REPORTED THAT THE OTHER 36 ITEMS WOULD ALSO HAVE BEEN QUESTIONED AS YOUR BID CONTAINED NO EXPLANATION AS TO THEIR MEANING. SINCE YOU SUBMITTED NO INFORMATION OTHER THAN MANUFACTURER AND BRAND NAMES AS TO THE ITEMS IDENTIFIED BY AN ASTERISK, THERE WAS NO WAY TO DETERMINE FROM YOUR BID THE EQUALITY OF THE PRODUCT YOU OFFERED. IN VIEW THEREOF, YOUR BID WAS NONRESPONSIVE AND COULD NOT PROPERLY BE CONSIDERED FOR AWARD.

YOU CONTEND THAT IF THE POSITIONS OF YOUR FIRM AND THAT OF SEXAUER WERE REVERSED AND CREST ITEMS OR EQUAL WERE SPECIFIED IN THE INVITATION, SEXAUER WOULD HAVE BEEN UNABLE TO COMPLY ON AN ,ALL OR NONE" BASIS SINCE THAT FIRM DOES NOT HAVE ALL OF YOUR FIRM'S ITEMS IN THEIR CATALOG. YOU ALLEGE THAT YOUR FIRM DID COMPLY WITH THE REQUIREMENTS OF THE INVITATION AS BEST AS ANY COMPETITIVE BIDDER COULD UNDER THE CIRCUMSTANCES SINCE YOUR FIRM DID IDENTIFY IN SOME MANNER ALL 427 ITEMS. IN THAT CONNECTION, THE DEPARTMENT OF THE AIR FORCE REPORTS THAT OF THE 80 ITEMS OPPOSITE TO WHICH YOU INSERTED AN ASTERISK, 44 WERE UNIDENTIFIABLE. THE DEPARTMENT STATES THAT EVEN IF BOTH SEXAUER'S AND YOUR FIRM'S BRAND NAMES WERE LISTED IN THE INVITATION, YOUR FIRM STILL WOULD HAVE HAD TO FURNISH ADDITIONAL INFORMATION SINCE YOUR CATALOG DOES NOT LIST ALL OF THE ITEMS CALLED FOR IN THE INVITATION. THE DEPARTMENT RECOGNIZES THAT THE ALMOST EXCLUSIVE REFERENCE TO SEXAUER'S CATALOG IN THE SUBJECT INVITATION WAS UNDESIRABLE AND THAT SUCH ACTION DOES PLACE AN ADDITIONAL BURDEN ON OTHER BIDDERS. POINTS OUT, HOWEVER, THAT AT A PREBID CONFERENCE HELD ON OCTOBER 29, 1968, REPRESENTATIVES OF YOUR FIRM DID NOT VOICE ANY OBJECTION TO THE ALMOST EXCLUSIVE REFERENCE TO THE SEXAUER CATALOG OR EQUAL IN THE SUBJECT INVITATION.

THE DEPARTMENT STATES THAT IT IS OF THE OPINION THAT, IN PURCHASING ITEMS LIKE STANDARD COMMERCIAL PLUMBING SUPPLIES, AT LEAST TWO BRAND NAMES SHOULD BE LISTED AND THAT ITS OPINION WILL BE BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER INVOLVED IN THIS PROCUREMENT. WE AGREE THAT THE USE OF AT LEAST TWO BRAND NAMES SHOULD PRECLUDE A RECURRENCE OF THIS SITUATION IN THE FUTURE. HOWEVER, IN VIEW OF CIRCUMSTANCES PRESENT IN THIS CASE, WE DO NOT FEEL THAT THE CONTRACTING OFFICER'S INADVERTENT FAILURE TO LIST YOUR BRAND NAME IN THE DESCRIPTION OF ALL OR MOST OF THE ITEMS LISTED IN THE INVITATION CONSTITUTES A LEGAL BASIS FOR CANCELING THE CONTRACT AWARDED TO SEXAUER OR FOR TAKING ANY OTHER CORRECTIVE ACTION IN THE MATTER.

THE DEPARTMENT STATES THAT IT HOPES TO AVOID SIMILAR PROTESTS IN THE NEAR FUTURE. THE AIR FORCE HAS BEEN RUNNING AN EXPERIMENTAL PROJECT ON PROCUREMENT OF SIMILAR SMALL STANDARD PARTS BY USING A PRICED INDUSTRY OR TRADE CATALOG INSTEAD OF A MANUFACTURER'S CATALOG, AND SOLICITING DISCOUNTS FROM LIST PRICES ON A COMPETITIVE BASIS.

ACCORDINGLY, AND SINCE THE PROCUREMENT COMPLIED IN MAJOR RESPECTS WITH BRAND OR EQUAL PROVISIONS OF ASPR 1-1206, ET SEQ., YOUR PROTEST IS DENIED.