B-168609, MAR. 6, 1970

B-168609, MAR. 6, 1970

CONTRACTS--SPECIFICATIONS--RESTRICTIVE--PARTICULAR MAKE--DESCRIPTION AVAILABILITY UNDER INVITATION FOR BIDS FOR 35 ITEMS OF LABORATORY EQUIPMENT TO BE SUBMITTED IN "ALL OR NONE" BASIS FOR SPECIFIED "BRAND NAME OR EQUAL" ITEMS, BIDDER WHO FAILED TO INCLUDE SUFFICIENT DESCRIPTION TO INDICATE PRODUCTS MET SALIENT REQUIREMENTS OF BRAND-NAME ITEMS AND TO INDICATE MODIFICATIONS PROPOSED TO CONFORM TO BRAND-NAME PRODUCTS SPECIFIED IS DENIED PROTEST. IN RESPONDING TO INVITATION REQUIRING BRAND-NAME OR EQUAL PURCHASE DESCRIPTION, RESPONSIVENESS OF BID DEPENDS ON PROCURING ACTIVITY DETERMINING FROM INFORMATION SUBMITTED WHETHER PRODUCTS ARE EQUAL TO REQUIREMENTS AND SINCE BID OFFERED MODIFIED VERSIONS OF EQUIPMENT WITHOUT INDICATING PROPOSED MODIFICATIONS, ACTION OF PROCURING ACTIVITY IN REJECTING BID AS NONRESPONSIVE WAS PROPER. SEE COMP. GEN. DECS. CITED.

TO NII LABORATORY FURNITURE, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER, WITH ENCLOSURES, DATED DECEMBER 12, 1969, PROTESTING AWARD OF CONTRACT TO OTHER THAN YOUR COMPANY BY THE DEPARTMENT OF THE ARMY UNDER INVITATION FOR BIDS NO. DABB27-70-B- 0013, ISSUED BY THE PURCHASING AND CONTRACTING OFFICE, FORT LEE, VIRGINIA.

THE INVITATION SOLICITED BIDS ON 35 ITEMS OF LABORATORY EQUIPMENT ON AN ALL-OR-NONE BASIS. THE TOTAL BID PRICE WAS TO INCLUDE SUCH SERVICES, EQUIPMENT AND SUPPLIES REQUIRED TO PLACE, ERECT AND SET UP EQUIPMENT IN ACCORDANCE WITH PROVISIONS AND CONDITIONS SET FORTH IN THE INVITATION. THE BID SCHEDULE PROVIDED THAT "FISHER AND PERIMAIR CATALOGUE NUMBERS ARE FOR IDENTIFICATION ONLY, AND DO NOT PRECLUDE EQUIPMENT OF OTHER MANUFACTURERS OFFERED ON AN 'OR EQUAL' BASIS, SO LONG AS THE FEATURES OF THE LISTED EQUIPMENT SPECIFIED AS ESSENTIAL IN THE SCHEDULE ARE SUPPLIED." CATALOGUE NUMBERS USED WERE STATED TO BE FROM THE 1968 "CONTEMPRA" LABORATORY FURNITURE CATALOGUE OF THE FISHER SCIENTIFIC COMPANY AND FROM THE PERIMAIR COMPANY CATALOG B2, AIA FILE 35-E (UNDATED). ITEMS 1, 3, 9, 27, 28 AND 29, WITH WHICH THE PRESENT MATTER IS CONCERNED, ARE AS FOLLOWS:

"1. CABINET, CORNER, LABORATORY, W/ONE DOOR, 4 EA.

ALSO LAZY SUSAN WITH EIGHT DRAWERS, W/TOP,

DEPTH-22" HEIGHT-36' (FISHER NO. 97-760

(97-70-L-D); PERIMAIR NO. U37-D-3)

BIDDING ON:

MANUFACTURER'S NAME

BRAND NO.

"3. CABINET, LABORATORY, W/THREE 4 EA.

DRAWERS, W/TOP 47 X 22 X 36

(FISHER NO. 97-480 (97-40B-D);

PERIMAIR NO. G3D47-D)

BIDDING ON:

MANUFACTURER'S NAME

BRAND NO.

"9. CABINET, LABORATORY, W/FOUR 2 EA.

DRAWERS W/TOP, 18 1/4 X 22 X 36"

(FISHER NO. 97-150-M (97-10B-D);

PERIMAIR NO. Y17-D)

BIDDING ON:

MANUFACTURER'S NAME

BRAND NO.

"27. SERVICE SHELF, 48" X 8" 6 EA.

(FISHER NO. 91-383; PERIMAIR

NO. PSS-83)

BIDDING ON:

MANUFACTURER'S NAME

BRAND NO.

"28. SERVICE SHELF, 8 FT X 8" (FISHER 22 EA.

NO. 91-384; PERIMAIR NO. PSS-84)

BIDDING ON:

MANUFACTURER'S NAME

BRAND NO.

"29. CENTRAL SERVICE SHELF, 6 FT. X 9" 16 EA.

(FISHER NO. 91-386; PERIMAIR NO.

PSS-86)

BIDDING ON:

MANUFACTURER'S NAME "

BRAND NO.

INCLUDED IN THE INVITATION FOR BIDS PACKAGE WAS A PAGE (FOLLOWING PAGE 22) CONCERNING "BRAND NAME OR EQUAL", WHICH PROVIDED IN PERTINENT PART, AS FOLLOWS:

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

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

"(A) 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' PRODUCT, 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 MODIFICATION AND (II) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS."

NII SUBMITTED ITS LABORATORY EQUIPMENT AND FURNITURE (STEEL CATALOG) CATALOGUE WITH ITS BID AND IN MOST INSTANCES REFERENCED THE SCHEDULE ITEMS TO THE NUMBERS IN ITS CATALOGUE. HOWEVER, ON ITEM 1 NII STATED IT WAS OFFERING NII NO. C-37 MOD; ON ITEM 3 IT OFFERED NII NO. 947-2D MOD; ON ITEM 9 IT OFFERED NII NO. 8517 MOD; ON ITEMS 27, 28 AND 29 IT OFFERED NII "SERVICE SHELF" WITHOUT FURTHER DESCRIPTION.

NII'S BID WAS REJECTED BY THE CONTRACTING OFFICER BECAUSE HE CONSIDERED THE BID NONRESPONSIVE. IN HIS LETTER DATED DECEMBER 8, 1969, TO NII THE CONTRACTING OFFICER ADVISED THAT THE NII BID WAS CONSIDERED NON RESPONSIVE SINCE IT:

"(1) FAILED TO INCLUDE SUFFICIENT DESCRIPTION REQUIRED UNDER SUBPARAGRAPHS (C) (1) OF THE 'BRAND NAME OR EQUAL' CLAUSE (QUOTED ABOVE) TO ENABLE THE PROJECT OFFICER TO DETERMINE JUST WHICH SHELVES ARE OFFERED UNDER ITEMS 27, 28 AND 29.

"(II) FOLLOWING YOUR (NII) NUMBERS SUBMITTED UNDER 'BIDDING ON' FOR ITEMS 1, 3 AND 9 APPEARS THE NOTATION 'MOD." NO INDICATION APPEARS AS TO WHAT THE MODIFICATION CONSISTS OF AS REQUIRED UNDER PARAGRAPH (C) (2) OF THE CLAUSE. (III) FAILURE TO INDICATE BY PART NUMBERS TOPS THAT YOU INTEND TO FURNISH AS AN EQUAL TO THE FISHER PART NUMBERS SET FORTH UNDER ITEMS WHERE TOPS ARE REQUIRED. * * *"

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

IN OUR DECISION OF NOVEMBER 29, 1961, 41 COMP. GEN. 366, WE STATED THAT:

"A BID IS AN OFFER WHICH UPON PROPER ACCEPTANCE RIPENS INTO A CONTRACT BINDING UPON THE PARTIES. TO BE VALID AN OFFER MUST BE SUFFICIENTLY CERTAIN TO ENABLE A COURT TO UNDERSTAND WHAT THE PROMISOR UNDERTAKES AND WHAT HE AGREES TO ACCEPT IN RETURN IF THE OFFER IS ACCEPTED. 1 WILLISTON ON CONTRACTS, 3D EDITION, SEC. 24. SEE ALSO THE RESTATEMENT OF CONTRACTS, SEC. 32. THE PURPOSE OF REQUIRING DATA TO BE SUBMITTED WITH A BID IN A CASE SUCH AS THIS IS TO PERMIT A DETERMINATION BY THE PROCURING AGENCY OF PRECISELY WHAT THE BIDDER PROPOSES, AND WILL BE BOUND, TO FURNISH IF AWARDED THE CONTRACT. 39 COMP. GEN. 595, 598. IN EFFECT, THE DESCRIPTIVE DATA REQUIREMENT IS IN PART A DEVICE TO INSURE THE RECEIPT OF AN OFFER SUFFICIENTLY DEFINITE IN SUBJECT MATTER AS TO RESULT IN A BINDING CONTRACT UPON ACCEPTANCE. FROM THE FOREGOING WE BELIEVE IT IS FAIR TO STATE THAT A BID WHICH DOES NOT CONFORM TO A PROPERLY UTILIZED DESCRIPTIVE DATA REQUIREMENT IS DEFECTIVE NOT ONLY BECAUSE IT FAILS TO COMPLY WITH A MATERIAL PROVISION OF THE INVITATION BUT, GENERALLY, BECAUSE AS AN OFFER IT IS TOO INDEFINITE TO MEET THE STATED TEST."

HERE, IN YOUR BID, YOU OFFERED A MODIFIED VERSION OF YOUR MODEL C 37 FOR ITEM 1, DESCRIBED IN THE SCHEDULE AS A LABORATORY CORNER CABINET, WITH ONE DOOR, INCLUDING A LAZY SUSAN WITH EIGHT DRAWERS AND TOP. MODEL C-37 IN YOUR CATALOGUE IS PICTURED AS A BASE UNIT WITH NO DRAWERS OR TOP, AND AS INDICATED IN YOUR BID HAS TO BE MODIFIED TO CONFORM TO THE ITEM REQUIRED. HOWEVER, IT IS NOT INDICATED IN THE BID HOW THE CATALOGUE ITEM WOULD BE MODIFIED TO CONFORM TO SPECIFICATIONS NOR IS IT INDICATED WHICH ONE OF FIFTEEN ALTERNATIVE TOPS IS OFFERED AT THE BID PRICE.

YOUR BIDS ON ITEMS 3 AND 9 ARE SIMILARLY AMBIGUOUS. ITEM 3 OF THE BID SCHEDULE IS A FIVE DRAWER LABORATORY CABINET WITH A TOP,AND ITEM 9 IS A FOUR DRAWER LABORATORY CABINET WITH A TOP, WITH DRAWER DIMENSIONS TO BE EQUAL TO THOSE OF THE BRAND NAMES CITED. YOUR BID REFERRED TO YOUR OWN CATALOGUE MODELS TO BE MODIFIED WITHOUT INDICATING THE NATURE OF THE MODIFICATIONS, PARTICULARLY THE DIMENSIONS OF THE DRAWERS, AND, ALSO, WHICH OF THE FIFTEEN TABLE TOP MATERIALS WAS CONTEMPLATED. PAGE 113 OF YOUR CATALOGUE STATES THAT SHELVING (ITEMS 27, 28 AND 29) "CAN BE CONSTRUCTED OF ANY TABLE TOP MATERIAL ..." PAGES 109-111 OF THE CATALOGUE SHOW FIFTEEN DIFFERENT TABLE TOP MATERIALS, AND EACH IS IDENTIFIED WITH A SPECIFIC NAME AND NUMBER. ANY IDENTIFICATION OF TABLE TOP, FOR SHELVING, WHETHER BY NAME, NUMBER OR DESCRIPTION WOULD HAVE BEEN SUFFICIENT. SECTION 2 OF THE TECHNICAL PROVISION OF THE BID SPECIFICATIONS STATED UNEQUIVOCALLY THAT THE MATERIALS AND COMPONENTS OF THE TOPS AND SHELVING WERE TO HAVE CERTAIN MECHANICAL AND PHYSICAL PROPERTIES, AND WERE CONSIDERED ESSENTIAL. AT THIS POINT IT MAY BE OBSERVED THAT NOWHERE IN YOUR CATALOGUE IS THERE SET FORTH THE MECHANICAL AND PHYSICAL PROPERTIES OF YOUR COUNTER TOPS OR SHELVING. HENCE THE CONTRACTING OFFICER HAD NO BASIS FOR DETERMINING WHAT YOU WERE OFFERING, NOR COULD HE DETERMINE WHICH ONE, IF ANY, OF THE TOPS OR SHELVING MET THE MECHANICAL AND PHYSICAL PROPERTIES SPECIFICALLY SET FORTH IN THE INVITATION FOR BIDS.

ON THE FACTS OF RECORD, IT IS OUR VIEW THAT THE BID SUBMITTED WAS NOT RESPONSIVE TO THE INVITATION IN THAT IT FAILED TO INDICATE, AS TO THE ITEMS MENTIONED ABOVE, THAT IT WOULD MEET ALL THE SALIENT REQUIREMENTS OF THE BRAND-NAME ITEMS OR TECHNICAL PROVISIONS AS SET FORTH IN THE INVITATION DESCRIPTIONS. IF YOU INTENDED, AND IT IS SO INDICATED, TO MODIFY THE ITEMS DESCRIBED IN YOUR BID LITERATURE TO MEET THE SPECIFIED REQUIREMENTS, YOU WERE REQUIRED BY THE TERMS OF THE "BRAND NAME OR EQUAL" CLAUSE TO INCLUDE IN YOUR BID A CLEAR DESCRIPTION OF THE PROPOSED MODIFICATIONS AND TO CLEARLY MARK DESCRIPTIVE DATA SHOWING SUCH MODIFICATIONS. THIS YOU FAILED TO DO.

WITH REGARD TO YOUR OBSERVATION THAT ITEM 23 (AS WELL AS ITEM 32) OF THE INVITATION FOR BIDS CONTAINED A REFERENCE TO FISCHER CATALOGUE NUMBER 91- 357X, WHEREAS THE FISCHER CATALOGUE SHOWS ONLY NUMBER 91 357, AND YOU QUESTION WHETHER ANYONE COULD COMPLETELY RESPOND TO THIS ITEM.

WE NOTE THAT ITEM 23 IS FOR "KNEE SPACE FILLER PANEL, SPECIAL REAR CLOSURE", (FISHER NO. 357X) AND ITEM 32 IS FOR "TOE SPACE FILLER, HEIGHT 36" WIDTH AS REQUIRED, MAXIMUM 10". (FISHER NO. 91-999X). IN EACH INSTANCE IT APPEARS OBVIOUS TO US THAT THE ITEMS SOUGHT MAY REQUIRE ADJUSTMENT ON INSTALLATION AND THAT THE "X" SUFFIX SO INDICATES. IN YOUR OWN CATALOG, ON PAGE 21, YOU ADOPT THE SAME SYMBOLISM, IN THE STATEMENT "SUFFIX 'X' IN A CATALOG NUMBER DENOTES DEVIATION FROM STANDARD." YOU WERE NOT MISLEAD BY THE REFERENCE, OFFERING AS YOU DID A COMPARABLE PRODUCT AND NO OBJECTION WAS MADE TO YOUR OFFERING ON THIS ITEM BY THE PROCURING AGENCY. HAD YOU IN FACT FELT THAT THE NUMBER WAS INSUFFICIENT TO INFORM YOU OF THE GOVERNMENT'S NEEDS, YOU COULD, AND SHOULD HAVE REQUESTED CLARIFICATION PRIOR TO BIDDING.

ACCORDINGLY, WE MUST CONCLUDE THAT THERE HAS BEEN PRESENTED NO BASIS UPON WHICH WE MAY LEGALLY OBJECT TO THE ACTION TAKEN BY THE CONTRACTING OFFICER AND YOUR PROTEST MUST BE DENIED.