B-167757, OCT. 24, 1969

B-167757, OCT. 24, 1969

SPECIFICATIONS--RESTRICTIVE--PARTICULAR MAKE--INFORMATION SUFFICIENCY BY BIDDER UNDER INVITATION FOR BIDS FOR COAXIAL FREQUENCY METERS ON "BRAND NAME OR EQUAL" BASIS WHICH LISTED THREE BRAND NAME PRODUCTS AND SPECIFIED SINGLE AWARD TO BE MADE FOR ALL ITEMS, LOW BIDDER WHO FAILED TO SUBMIT SUFFICIENT DESCRIPTIVE DATA FOR PROCURING PERSONNEL TO DETERMINE WHETHER UNKNOWN "EQUAL" PRODUCT OFFERED CONFORMED TO SALIENT CHARACTERISTICS OF BRAND NAME PRODUCTS LISTED AS REQUIRED BY INVITATION WAS PROPERLY REJECTED AS NONRESPONSIVE BECAUSE, ASIDE FROM OTHER INADEQUACIES MODEL BIDDER PROPOSED TO FURNISH FAILED TO COMPLY WITH MAXIMUM CALIBRATION INCREMENT SPECIFIED IN INVITATION AND SCHEDULE REQUIRES THAT SINGLE AWARD BE MADE. GAO CANNOT CONSIDER DECISION TO EXCLUDE BID AS IMPROPER AND PROTEST IS DENIED.

TO MICROLAB/FXR:

REFERENCE IS MADE TO YOUR TELEGRAM, DATED AUGUST 20, 1969, AND SUBSEQUENT CORRESPONDENCE CONCERNING YOUR PROTEST AGAINST REJECTION OF YOUR BID UNDER INVITATION FOR BIDS N00039-69-B-2062, WHICH WAS ISSUED BY THE NAVAL ELECTRONICS SYSTEMS COMMAND ON A "BRAND NAME OR EQUAL" BASIS FOR THE PROCUREMENT OF 231 COAXIAL FREQUENCY METERS, TYPE I, AND 206 OF TYPE II, WITH ASSOCIATED DATA REQUIREMENTS. SECTION A OF THE IFB PROVIDED THAT A SINGLE AWARD WOULD BE MADE FOR ALL REQUIREMENTS OF THE INVITATION. SECTION B, DESCRIPTION AND SPECIFICATIONS, STATED THAT THE METERS WERE TO BE IN ACCORDANCE WITH THREE BRAND NAME PRODUCTS SET FORTH IN AN IFB ATTACHMENT ENTITLED TECHNICAL REQUIREMENTS, WHICH ALSO CONTAINED A DETAILED LISTING OF THE SALIENT CHARACTERISTICS OF THE REFERENCED PRODUCTS, INCLUDING THE FOLLOWING REQUIREMENT FOR CALIBRATION INCREMENTS:

"1.2.3. CALIBRATION INCREMENTS - THE CALIBRATION INCREMENTS OF THE EQUIPMENT SHALL NOT EXCEED THE FOLLOWING:

TYPE I: 2 MEGACYCLE

TYPE II: 10 MEGACYCLE"

THE INVITATION CONTAINED THE FOLLOWING PROVISION REQUIRING BIDDERS TO SUBMIT DESCRIPTIVE MATERIAL IN CONNECTION WITH ANY OFFER TO FURNISH A PRODUCT EQUAL TO THE REFERENCED BRAND NAME TEMS:

"/C) (1) IF THE OFFEROR 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 SOLICITATION, OR SUCH PRODUCT SHALL BE OTHERWISE CLEARLY IDENTIFIED IN THE OFFER. THE EVALUATION OF OFFERS 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 OFFEROR OR IDENTIFIED IN HIS OFFER, AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. CAUTION TO OFFERORS. THE PURCHASING ACTIVITY IS NOT RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH IS NOT IDENTIFIED IN THE OFFER AND REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. ACCORDINGLY, TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE OFFEROR MUST FURNISH AS A PART OF HIS OFFER 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 SOLICITATION, AND (II) ESTABLISH EXACTLY WHAT THE OFFEROR 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.' THE IFB WARNED BIDDERS THAT THE FAILURE TO SUBMIT SUCH DATA MIGHT RESULT IN REJECTION OF THEIR BIDS.

ALTHOUGH YOUR BID WAS THE LOWEST OF THE SIX OFFERS RECEIVED, THE PROCURING ACTIVITY NOTED THAT THE CALIBRATION INCREMENT OF THE "EQUAL" PRODUCT (MICROLAB/FXR MODEL NO. N420A) YOU PROPOSED TO FURNISH FOR TYPE 1 WAS 10 MEGACYCLES AND EXCEEDED THE MAXIMUM CALIBRATION INCREMENT FOR THE ITEM LISTED IN THE TECHNICAL REQUIREMENTS. ADDITIONALLY, PROCURING PERSONNEL WERE UNABLE TO DETERMINE EXACTLY WHAT YOU PROPOSED TO FURNISH, AS REQUIRED BY IFB PROVISION C (1) (II), QUOTED ABOVE, SINCE YOUR "EQUAL" PRODUCTS WERE UNKNOWN AND THE ONLY IDENTIFICATION OR DESCRIPTIVE DATA FURNISHED WITH YOUR BID WERE YOUR MODEL NUMBERS, AN OUTLINE DRAWING SHOWING THE EXTERNAL CONFORMATION OF YOUR METERS, AND A LISTING OF ELECTRICAL AND MECHANICAL CHARACTERISTICS WHICH WERE SIMPLY COPIED FROM THE SPECIFICATIONS OF THE IFB. IN VIEW THEREOF THE COMMAND CONSIDERS YOUR BID NONRESPONSIVE, IN THAT IT FAILED TO FURNISH SUFFICIENT INFORMATION TO JUSTIFY AN AFFIRMATIVE FINDING THAT THE ARTICLES OFFERED WERE "EQUAL" TO THE BRAND NAMES CITED.

OUR OFFICE HAS HELD THAT THE FAILURE OF A BIDDER TO OFFER AN "EQUAL" PRODUCT WHICH FULLY CONFORMS TO THE SALIENT CHARACTERISTICS OF THE BRAND NAME PRODUCT REQUIRES THE REJECTION OF HIS BID. B-161892, OCTOBER 12, 1967; B-154656, NOVEMBER 9, 1964. ASIDE FROM ANY OTHER INADEQUACIES OF YOUR BID, THE MODEL YOU PROPOSED TO FURNISH FOR THE REQUIREMENT SET FORTH IN TYPE 1 FAILED TO COMPLY WITH THE MAXIMUM CALIBRATION INCREMENT SPECIFIED FOR THAT ITEM, AND SINCE THE SCHEDULE REQUIRES THAT A SINGLE AWARD BE MADE FOR ALL UNITS OF ITEMS 1 THROUGH 3AA, WE CANNOT CONSIDER THE COMMAND'S DECISION TO EXCLUDE CONSIDERATION OF YOUR BID TO BE IMPROPER.

WITH RESPECT TO THE SUFFICIENCY OF THE DATA YOU FURNISHED IN REGARD TO THE OTHER SALIENT SPECIFICATIONS OF THE IFB, AS NOTED ABOVE, THIS INFORMATION CONSISTED OF DRAWINGS ILLUSTRATING THE EXTERNAL CONFIGURATION OF THE ITEMS TO BE FURNISHED, TOGETHER WITH A LISTING OF THE SPECIFICATIONS OF THE ITEMS, WHICH MERELY RECITED COMPLIANCE WITH THOSE REQUIREMENTS. OUR OFFICE HAS HELD THAT DATA OF THIS NATURE DOES NOT COMPLY WITH THE INFORMATION REQUIRED UNDER THE "BRAND NAME OR EQUAL" CLAUSE, QUOTED ABOVE, SINCE THE GOVERNMENT IS PRECLUDED FROM KNOWING EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH, AS IS DEMANDED UNDER THE TERMS OF THAT CLAUSE. B-143585, OCTOBER 13, 1960; 41 COMP. GEN. 366; B- 162073, OCTOBER 4, 1969. IN THIS REGARD THE DATA YOU SUBMITTED DID NOT CONTAIN ANY INFORMATION CONCERNING THE IDENTITY, SIZE AND STRUCTURE OF THE INTERNAL COMPONENTS OF YOUR MODELS, THEREBY PREVENTING THE COMMAND FROM DETERMINING PRECISELY WHAT YOU INTENDED TO OFFER. IT APPEARS THAT AFTER BID OPENING YOU ADVISED THE CONTRACTING OFFICER THAT YOUR MODEL NUMBERS OFFERED HAD NOT BEEN PREVIOUSLY MANUFACTURED, BUT WOULD BE REVISED VERSIONS OF CERTAIN STANDARD MODELS IN YOUR LINE, MODIFIED TO MEET THE REQUIREMENTS OF THIS PROCUREMENT. HAD THIS INFORMATION BEEN FURNISHED WITH YOUR BID, WITH SPECIFIC DESCRIPTION OF THE MODIFICATIONS PROPOSED, THE PROCURING ACTIVITY WOULD HAVE HAD SOME BASIS FOR DETERMINATION OF THE "EQUALITY" OF THE METERS OFFERED, BUT CONSIDERATION OF SUCH MATERIAL SUBMITTED AFTER BID OPENING IS PROHIBITED.