B-170118, NOV. 27, 1970

B-170118, NOV. 27, 1970

BID PROTEST - BRAND NAME OR EQUAL - RESTRICTIVE SPECIFICATIONS DENIAL OF PROTEST AGAINST PROPOSED AWARD TO DATA DISC, INC., ONLY BIDDER, FOR FURNISHING NAVAL AIR STATION DUAL CHANNEL DISC RECORDING SYSTEMS ON BASIS THAT PROTESTANT WHO DID NOT BID WAS PRECLUDED BY UNAVAILABILITY OF BROCHURES. IN VIEW OF RECORD WHICH SHOWS THAT EQUIPMENT WAS URGENTLY NEEDED AND THAT TIME DID NOT PERMIT DRAFTING TECHNICAL SPECIFICATIONS, THERE IS JUSTIFICATION FOR USE OF "BRAND NAME OR EQUAL" INVITATION. SINCE INVITATION CONTAINED A COMPLETE LISTING OF SALIENT CHARACTERISTICS AND DETAILED THE BRAND NAME PRODUCT THEY MAY NOT BE HELD TO BE RESTRICTIVE OR UNCLEAR. SINCE BROCHURES WERE AVAILABLE TO BIDDER'S AT CONTRACTING OFFICE BUT PROTESTANT DID NOT AVAIL HIMSELF OF THE INVITATION TO INSPECT THE LITERATURE, THE FACT THAT THE LITERATURE DID NOT ACCOMPANY THE INVITATION IS NOT A BASIS FOR OBJECTION.

TO DATA MEMORY INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 19, 1970, PROTESTING THE AWARD OF CONTRACT UNDER INVITATION FOR BIDS N00421-70-B-0072 ISSUED BY THE NAVAL AIR STATION, PATUXENT RIVER, MARYLAND.

THE SUBJECT SOLICITATION, ISSUED MAY 25, 1970, INVOLVED THE PROCUREMENT ON A BRAND NAME OR EQUAL BASIS OF 13 DUAL CHANNEL DISC RECORDING SYSTEMS WHICH WERE TO BE USED IN CONNECTION WITH A HIGH PRIORITY NAVAL COMMUNICATIONS PROGRAM. DUE TO A LACK OF COPIES, BROCHURES OF BRAND NAME PRODUCTS WERE NOT SENT TO PROSPECTIVE BIDDERS, BUT WERE KEPT ON FILE AND MADE AVAILABLE FOR REVIEW BY PROSPECTIVE BIDDERS, OR THEIR REPRESENTATIVES, IN THE PROCURING OFFICE.

BIDS WERE OPENED JUNE 16, 1970, AND ONLY ONE BID WAS RECEIVED FROM DATA DISC, INCORPORATED. YOUR FIRM DID NOT SUBMIT A BID, BUT INSTEAD SENT A TELEFAX DATED JUNE 16, 1970, TO THE CONTRACTING OFFICER WHICH STATED, IN PART, THAT:

"BECAUSE OF THE RESTRICTIVE SPECIFICATIONS AND THE LACK OF TIME TO ENGINEER AND PREPARE A SUITABLE PROPOSAL, DATA MEMORY INC. MUST NO-BID YOUR REQUIREMENT FOR 13 INSTRUMENTATION DISC RECORDERS. *** "

IN YOUR LETTER OF PROTEST TO OUR OFFICE YOU CONTEND THAT THE SPECIFICATIONS WERE RESTRICTIVE AND THAT BECAUSE THE BROCHURES OF BRAND NAME PRODUCT WERE ONLY AVAILABLE FOR PREBID REVIEW AT PATUXENT RIVER, MARYLAND, IT WOULD HAVE BEEN NECESSARY FOR YOU TO SEND TWO ENGINEERS ACROSS COUNTRY WHICH WOULD INVOLVE CONSIDERABLE EXPENSE FOR YOUR FIRM. YOU FURTHER CONTEND THAT YOUR REQUEST FOR AN EXTENSION OF THE BID OPENING DATA WAS IMPROPERLY REJECTED. NO AWARD OF THE CONTRACT HAS BEEN MADE PENDING DISPOSITION OF YOUR PROTEST BY OUR OFFICE.

PARAGRAPH 1-1206.1 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES THAT A PURCHASE DESCRIPTION MAY BE USED IN LIEU OF A SPECIFICATION WHERE NO APPLICABLE SPECIFICATION EXISTS. IT GOES ON TO STATE THAT A PURCHASE DESCRIPTION SHOULD SET FORTH THE ESSENTIAL PHYSICAL AND FUNCTIONAL CHARACTERISTICS OF THE MATERIALS OR SERVICES REQUIRED AND IF A PURCHASE DESCRIPTION SPECIFIES A BRAND NAME, THE BRAND NAME SHOULD BE FOLLOWED BY THE WORD "EQUAL." ASPR 1-1206.1 ALSO PROVIDES THAT BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS "SHOULD BE USED ONLY WHEN AN ADEQUATE SPECIFICATION OR MORE DETAILED DESCRIPTION CANNOT FEASIBLY BE MADE AVAILABLE BY MEANS OTHER THAN REVERSE ENGINEERING *** IN TIME FOR THE PROCUREMENT UNDER CONSIDERATION."

ASPR 1-1206.2(B) SETS FORTH THE BASIC REQUIREMENTS OF A "BRAND NAME OR EQUAL PURCHASE DESCRIPTION." IT PROVIDES THAT:

"'BRAND NAME OR EQUAL' PURCHASE DESCRIPTIONS SHOULD SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCTS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. *** PURCHASE DESCRIPTIONS SHOULD CONTAIN THE FOLLOWING INFORMATION TO THE EXTENT AVAILABLE, AND INCLUDE SUCH OTHER INFORMATION AS IS NECESSARY TO DESCRIBE THE ITEM REQUIRED:

(I) COMPLETE COMMON GENERIC IDENTIFICATION OF THE ITEM REQUIRED;

(II) APPLICABLE MODEL, MAKE, OR CATALOG NUMBER FOR EACH BRAND NAME PRODUCT REFERENCED, AND IDENTITY OF THE COMMERCIAL CATALOG IN WHICH IT APPEARS; AND

(III) NAME OF MANUFACTURER, PRODUCER, OR DISTRIBUTOR OF EACH BRAND NAME PRODUCT REFERENCED (AND ADDRESS IF COMPANY IS NOT WELL KNOWN).

"(C) WHEN NECESSARY TO DESCRIBE ADEQUATELY THE ITEM REQUIRED, AN APPLICABLE COMMERCIAL CATALOG DESCRIPTION, OR PERTINENT EXTRACTS THEREFROM, MAY BE USED IF SUCH DESCRIPTION IS IDENTIFIED IN THE INVITATION FOR BIDS OR REQUEST FOR PROPOSALS AS BEING THAT OF THE PARTICULAR NAMED MANUFACTURER, PRODUCER, OR DISTRIBUTOR. *** "

IT IS ADMINISTRATIVELY REPORTED THAT THE SUBJECT EQUIPMENT WAS URGENTLY NEEDED TO MEET SCHEDULED NAVY COMMITMENTS. THE RECORDERS WERE TO BE USED AS PART OF SECURE HIGH-SPEED DATA SYSTEMS IN A HIGH-PRIORITY NAVY PROGRAM TO EXAMINE UNDESIRABLE ELECTROMAGNETIC EMISSIONS FROM ELECTRONIC EQUIPMENT AT VARIOUS NAVAL INSTALLATIONS. IT IS FURTHER REPORTED THAT EXISTING EQUIPMENT WOULD NOT SATISFY THE REQUIREMENTS, AND SCHEDULES HAD BEEN ESTABLISHED FOR SETTING UP AND TRAINING TEAMS TO OPERATE THE EQUIPMENT. IN VIEW OF THE FOREGOING, A REQUEST THAT THE EQUIPMENT BE PROCURED ON AN URGENT BASIS WAS SUBMITTED TO THE CONTRACTING OFFICER FROM THE COMMANDING OFFICER, NAVAL ELECTRONIC SYSTEMS TEST AND EVALUATION FACILITY. THEREAFTER, THE CONTRACTING OFFICER SUBMITTED A REQUEST TO THE CONTRACT REVIEW BOARD REQUESTING PERMISSION TO SOLICIT THE SUBJECT EQUIPMENT ON A BRAND NAME OR EQUAL BASIS WITH A BIDDING PERIOD OF 22 DAYS FROM DATE OF THE IFB. THE CONTRACT REVIEW BOARD APPROVED THE CONTRACTING OFFICER'S REQUEST AND THE SUBJECT IFB WAS ISSUED MAY 25, 1970.

WE HAVE RECOGNIZED THE NECESSITY AT TIMES OF PROCURING ON A NAMED BRAND OR EQUAL BASIS. IT IS ALSO RECOGNIZED, HOWEVER, THAT SUCH BASIS IS GENERALLY UNDESIRABLE AND SHOULD BE RESERVED FOR EXCEPTIONAL CASES, AS HERE, WHERE THE NEEDS OF THE GOVERNMENT CANNOT OTHERWISE ADEQUATELY BE DESCRIBED. 38 COMP. GEN. 291, 294 (1958); ID. 380, 383 (1958); 5 ID. 835, 837 (1926). IN VIEW OF THE FACT THAT THE RECORD BEFORE US CLEARLY ESTABLISHES THAT SUBJECT MATTER OF THE SOLICITATION WAS URGENTLY NEEDED BY THE NAVY AND THAT TIME DID NOT PERMIT THE DRAFTING OF DETAILED TECHNICAL SPECIFICATIONS, WE MUST CONCLUDE THAT THERE WAS SUFFICIENT JUSTIFICATION FOR THE USE OF THE "BRAND NAME OR EQUAL" SPECIFICATION TECHNIQUE.

YOU ALSO CONTEND THAT THE SPECIFICATIONS WERE UNDULY RESTRICTIVE AND UNCLEAR. ASPR 1-1206.2(B) PROVIDES THAT "'BRAND NAME OR EQUAL' PURCHASE DESCRIPTIONS SHOULD SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCTS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT." OUR OFFICE HAS CONSISTENTLY HELD THAT DRAFTING OF SPECIFICATIONS AND THE EVALUATION OF THE BIDS SUBMITTED TO ASCERTAIN WHETHER THEY MEET THE SPECIFICATIONS IS PRIMARILY A MATTER FOR THE ADMINISTRATIVE AGENCY. 17 COMP. GEN. 554 (1938); 36 ID. 251 (1956). THE INSTANT CASE, WE FEEL THAT THE BRAND NAME OR EQUAL SPECIFICATIONS WHICH INCLUDED A COMPLETE LISTING OF THE SALIENT CHARACTERISTICS MEET THE REQUIREMENTS OF ASPR 1-1206.1. IN VIEW OF THE DETAIL CONTAINED IN THE IFB AS TO THE BRAND NAME PRODUCT, WE CANNOT HOLD THAT THE SPECIFICATIONS WERE RESTRICTIVE OR UNCLEAR.

WHILE IT IS REGRETTABLE THAT NO BROCHURES WERE FURNISHED WITH THE IFB, WE FIND NO REQUIREMENT IN ASPR THAT BROCHURES BE INCLUDED IN AN IFB ADVERTISED ON A BRAND NAME OR EQUAL BASIS. ASPR 1-1206.2(C) PROVIDES THAT THE CONTRACTING OFFICER WILL INSURE THAT A COPY OF ANY CATALOGS REFERENCED IS AVAILABLE "ON REQUEST" FOR REVIEW BY BIDDERS "AT THE PURCHASING OFFICE." THE RECORD HERE SHOWS THAT BROCHURES OF THE BRAND NAME PRODUCT REFERENCED WERE AVAILABLE FOR REVIEW AT THE CONTRACTING OFFICER'S OFFICE. ALSO, IT IS ADMINISTRATIVELY REPORTED THAT MR. GARRY BROWN OF SELTRONICS, INC., SILVER SPRING, MARYLAND, WAS INVITED AS A REPRESENTATIVE OF YOUR FIRM TO VISIT THE CONTRACTING OFFICER'S OFFICE AND REVIEW THE AVAILABLE SOLICITATION LITERATURE. HOWEVER, SUCH INVITATION WAS NOT ACCEPTED. VIEW OF THIS, WE FIND NO BASIS TO QUESTION THE FAILURE TO INCLUDE THE BROCHURES IN THE IFB.

AS TO YOUR CONTENTION THAT THE 22 DAYS ALLOWED FOR BID PREPARATION AND SUBMISSION WERE INADEQUATE, ASPR 2-202.1 PROVIDES THAT BIDDING TIME SHALL BE NOT LESS THAN 15 CALENDAR DAYS WHEN PROCURING STANDARD COMMERCIAL ARTICLES OR SERVICES AND NOT LESS THAN 30 CALENDAR DAYS WHEN PROCURING OTHER THAN STANDARD COMMERCIAL ARTICLES OR SERVICES, EXCEPT THAT THIS RULE NEED NOT BE OBSERVED IN SPECIAL CIRCUMSTANCES SUCH AS WHERE THE URGENCY FOR SUPPLIES DOES NOT PERMIT DELAY. ALSO, SEE ASPR 1 1206.2(A) WHICH PROVIDES:

" *** IF MODIFICATIONS TO MANUFACTURERS' STANDARD PRODUCTS TO MEET THE PURCHASE DESCRIPTION REQUIREMENTS ARE ANTICIPATED, A MINIMUM OF 30 CALENDAR DAYS SHALL BE ALLOWED BETWEEN ISSUANCE OF THE SOLICITATION AND OPENING OF BIDS OR RECEIPTS OF PROPOSALS, PROVIDED THAT PERIODS OF LESS THAN 30 DAYS MAY BE SET IN CASES OF URGENCY." THE RECORD CLEARLY ESTABLISHED THE URGENT NEED FOR THE RECORDING SYSTEMS WHICH REQUIRED DELIVERY WITHIN 90 DAYS FROM THE DATE OF THE CONTRACT.

ACCORDINGLY, FOR THE REASONS SET FORTH ABOVE, YOUR PROTEST MUST BE DENIED.