B-170173, NOV. 5, 1970

B-170173, NOV. 5, 1970

BID PROTEST - BRAND NAME OR EQUAL DENIAL OF PROTEST AGAINST REJECTION OF BID BY NAVY PURCHASING OFFICE FOR FURNITURE AND EQUIPMENT FOR FAILURE OF DESCRIPTIVE INFORMATION. LOW BID UNDER BRAND NAME OR EQUAL INVITATION THAT DID NOT PROVIDE CLEAR DESCRIPTION OF MODIFICATIONS PROPOSED OR ITS RELATIONSHIP TO THE OTHER ESSENTIAL FEATURES OF THE PROPOSED UNIT, WAS PROPERLY REJECTED AS NONRESPONSIVE.

TO UNITED UNIVERSAL CORPORATION:

REFERENCE IS MADE TO YOUR LETTERS OF JUNE 25 AND SEPTEMBER 11, 1970, IN WHICH YOU PROTEST THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. N00600-70-B-0402 ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C., FOR THE FOLLOWING REQUIREMENTS OF COMBINATION DRAWING TABLES AND REFERENCE DESKS, STEEL FILING UNITS AND POSTURE CHAIRS:

LOT I

1 "L" SHAPED COMBINATION DRAWING TABLE

AND REFERENCE DESK, HAMILTON DIAL-A-

TORQUE MODEL 27J751 OR EQUAL 5

LOT II

2 THREE-DRAWER STEEL FILING UNIT,

HAMILTON MODEL 7J6 OR EQUAL 6

3 FIVE-DRAWER STEEL FILING UNIT,

HAMILTON MODEL 7J5 OR EQUAL 6

4 FLAT CAP, STEEL, HAMILTON

MODEL 7J1 OR EQUAL 4

5 FLUSH BASE, STEEL, HAMILTON

MODEL 7J7 OR EQUAL 4

LOT III

6 POSTURE CHAIR, HAMILTON MODEL

90J95 5

WITH RESPECT TO LOT 1, THE IFB SET FORTH A LIST OF SALIENT FEATURES OF THE HAMILTON MODEL WHICH IS QUOTED IN PERTINENT PART AS FOLLOWS:

"ITEM 1. "L" SHAPED COMBINATION DRAWING TABLE AND REFERENCE DESK:

I. DRAWING BOARD WHEN LYING IN A HORIZONTAL POSITION SHALL NOT EXTEND BEYOND THE LEFT HAND EDGE OF THE REFERENCE DESK BY MORE THAN 5 INCHES. THE VERTICAL POSITION, THE DRAWING BOARD'S LOWER EDGE MUST BE CAPABLE OF BEING LOWERED WELL BELOW THE LEVEL OF THE SURFACE OF THE DESK.

J. COUNTERBALANCED CONTROL SHALL BE PROVIDED, ALLOWING EFFORTLESS ADJUSTMENT OF THE DRAWING BOARD ANGLE REGARDLESS OF WEIGHT.

K. DRAWING TABLE SHALL HAVE A BUILT IN SHELF AREA WITHIN FRONT OF PEDESTAL BODY."

ADDITIONALLY, BIDDERS WERE ADVISED THAT THE GOVERNMENT WOULD USE THESE CHARACTERISTICS TO EVALUATE PRODUCTS WHICH WERE OFFERED AS THE EQUAL OF THE REFERENCED HAMILTON MODEL IN ACCORDANCE WITH SECTION H OF THE IFB, ENTITLED "BRAND NAME OR EQUAL," WHICH PROVIDES:

"(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.

"(B) UNLESS THE BIDDER CLEARLY INDICATES IN HIS BID THAT HE IS OFFERING AN 'EQUAL' PRODUCT, HIS BID SHALL BE CONSIDERED AS OFFERING A BRAND NAME PRODUCT 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 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 MODIFICATIONS AND (II) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS.

"(3) MODIFICATIONS PROPOSED AFTER BID OPENING TO MAKE A PRODUCT CONFORM TO A BRAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BIDS WILL NOT BE CONSIDERED."

YOU SUBMITTED THE LOWEST BIDS FOR LOTS I AND II. WITH RESPECT TO LOT I, YOU OFFERED STACOR CORPORATION MODEL NO. XL4066 AS A PRODUCT EQUAL TO THE REFERENCED HAMILTON UNIT AND SUBMITTED A COVER LETTER WITH YOUR BID, TOGETHER WITH A COMMERCIAL BROCHURE DESCRIBING THE STACOR MODEL. THE COVER LETTER STATED THAT YOU WOULD MODIFY THE STACOR MODEL TO CONFORM TO THE SALIENT FEATURES OF THE REFERENCED BRAND NAME PRODUCTS AS FOLLOWS:

"PLEASE NOTE ON LOT ONE WE HAVE ENTERED OUR QUOTATION FOR AN EQUIVALENT TO THE HAMILTON #27J751. NAMELY, STACOR CORPORATION'S XL4066. THIS UNIT SHALL BE MODIFIED TO CONFORM WITH SPECIFICATIONS AS OUTLINED IN SECTION B, PAGE 9, AND AS AMENDED IN AMENDMENT 0001 AND 0002. STACOR'S STANDARD UNIT WILL HAVE:

A) A RIGHT HAND REFERENCE.

B) MANUFACTURED OF RIGID REINFORCED STEEL CONSTRUCTION.

C) HAVE A DRAWING SURFACE OF NON-WARPING VINYL WITH WOOD SUPPORTING MEMBERS 30 X 40" OR, IF REQUIRED, 32 X 42".

D) HAVE A LAMINATED PLASTIC REFERENCE DESK SURFACE OF 30 X 66".

E) WILL HAVE A REFERENCE DRAWER HAVING A MINIMUM WIDTH OF 36-5/8".

F) A FILE DRAWER WITH A MINIMUM WIDTH OF 12-1/4".

G) A TOOL DRAWER WITH A MINIMUM WIDTH OF 12-1/4", AND WITH A LOCKING DEVICE.

H) ALL THE ABOVE REFERRED TO DRAWERS WILL HAVE A DOUBLE WALL STEEL FRONT CONSTRUCTION AND OPERATE ON A NYLON SUSPENSION.

I) EACH UNIT SHALL BE MODIFIED SO THAT THE DRAWING BOARD, WHEN LYING IN A HORIZONTAL POSITION, SHALL NOT EXTEND BEYOND THE LEFT HAND EDGE OF THE REFERENCE DESK BY MORE THAN 5". IN THE VERTICAL POSITION, THE DRAWING BOARD'S LOWER EDGE WILL BE CAPABLE OF BEING LOWERED WELL BELOW THE LEVEL OF THE SURFACE OF THE DESK.

J) COUNTER BALANCE CONTROL SHALL BE PROVIDED.

K) THE DRAWING TABLE SHALL BE MODIFIED SO AS TO HAVE A BUILT IN SHELF AREA WITHIN THE FRONT OF THE PEDESTAL BODY.

L) NONE OF THE SUPPORTING LEGS SHALL EXTEND INTO THE WORKERS AREA.

M) AN ELECTRICAL RECEPTACLE SHALL BE MOUNTED FORWARD UNDER THE DRAWING BOARD.

N) THE DRAWING TABLE SHALL BE PROVIDED WITH A SINGLE PEDESTAL COUNTER BALANCE HEIGHT CONTROL.

O) AT THE BOTTOM OF THE DRAWING BOARD AN ALUMINUM PENCIL TROUGH SHALL BE PROVIDED.

P) THE DRAWING BOARD SHALL BE ADJUSTABLE FROM ANY ANGLE, FROM HORIZONTAL TO VERTICAL.

Q) THE UNIT SHALL BE FINISHED IN A MEDIUM YELLOW COLOR."

THE NAVY PHOTOGRAPHIC CENTER TECHNICAL EVALUATION STATED THAT THE STACOR MODEL YOU OFFERED WAS NOT CLEARLY EQUAL TO THE BRAND NAME ITEM WITH RESPECT TO THE SALIENT FEATURES CITED IN PARAGRAPHS J AND K. THE CENTER'S OBJECTION TO YOUR OFFER WITH RESPECT TO PARAGRAPH K WAS SUBSEQUENTLY DETERMINED TO BE INVALID. HOWEVER, THE ACTIVITY MAINTAINED THAT YOUR BID COULD NOT BE CONSIDERED FOR AWARD OF LOT I BECAUSE OF THE FOLLOWING TECHNICAL OPINION THAT THE DRAWING BOARD OF YOUR MODEL WOULD NOT BE EASILY ADJUSTABLE AFTER YOU IMPLEMENTED THE MODIFICATIONS PROPOSED IN SECTION I OF YOUR COVER LETTER:

"A. BECAUSE OF THE INTENDED USE OF THE DRAWING TABLE, IT WAS ESSENTIAL THAT COUNTERBALANCE CONTROL BE PROVIDED, ALLOWING EFFORTLESS ADJUSTMENT OF THE DRAWING BOARD ANGLE, REGARDLESS OF WEIGHT (SPECIFICATION J OF SOLICITATION). IN THE OPINION OF TECHNICAL EXPERTS AT NPC, THE BID OF UNITED UNIVERSAL PROPOSED MODIFICATIONS WHICH WOULD NOT ALLOW FOR REQUIRED BALANCE OF THE DRAWING BOARD ASSEMBLY. IN ORDER TO COMPLY WITH SPECIFICATION I OF LOT 1, IT WAS ASSUMED THAT UNITED UNIVERSAL WOULD HAVE HAD TO MODIFY THE STACOR MODEL BY MOVING THE DRAFTING BOARD FORWARD ON THE ELEVATION ARMS SINCE THE BOARD IS HINGED TO THE FRONT OF THE TABLE. ALTHOUGH THE BID DID STATE THAT COUNTERBALANCE CONTROL WOULD BE PROVIDED, IT DID NOT EXPLICITLY DEMONSTRATE, AS REQUIRED BY REFERENCE (C), HOW SUCH CONTROL WOULD BE OBTAINED AFTER THE STACOR UNIT HAD BEEN MODIFIED TO CONFORM WITH SPECIFICATIONS."

IN REPLY TO THIS STATEMENT YOU MAINTAIN THAT YOU ADEQUATELY MARKED ALL THE REQUIRED MODIFICATIONS WHICH YOU PROPOSED TO ACCOMPLISH WITH RESPECT TO THE STACOR MODEL AND THAT YOU HAD PREVIOUSLY ADVISED A REPRESENTATIVE OF THE PROCURING ACTIVITY THAT THE DRAWING BOARD WOULD BE MOVED FORWARD AND THAT THE COUNTERBALANCE SYSTEM IS MANUFACTURED IN SUCH A WAY THAT THE CHANGE WOULD HAVE NO EFFECT ON ITS EFFICIENT OPERATION. YOU AGAIN STATE THAT THE MODIFICATION PROPOSED IN PARAGRAPH I OF THE COVER LETTER TO YOUR BID WOULD NOT IMPAIR THE COUNTERBALANCE CONTROL OF YOUR UNIT.

IT IS THE WELL-ESTABLISHED POSITION OF THIS OFFICE THAT THE DRAFTING OF PROPER SPECIFICATIONS, INCLUDING THE USE OF BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS, AND THE FACTUAL DETERMINATION OF WHETHER A PRODUCT OFFERED THEREUNDER CONFORMS TO THOSE SPECIFICATIONS, ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING ACTIVITY. IN SUCH MATTERS INVOLVING A DIFFERENCE OF EXPERT TECHNICAL OPINION WE WILL ACCEPT THE JUDGMENT OF THE TECHNICAL PERSONNEL OF THE AGENCY INVOLVED UNLESS SUCH JUDGMENT IS SHOWN TO BE CLEARLY IN ERROR. 49 COMP. GEN. 195 (1969).

BASED ON OUR REVIEW OF THE RECORD WE CANNOT CONCLUDE FROM THE DESCRIPTIVE INFORMATION WHICH YOU FURNISHED THAT THE PROCURING ACTIVITY ERRONEOUSLY DETERMINED THAT YOUR PROPOSED MODIFICATION OF YOUR PRODUCT WOULD NOT ALLOW FOR THE REQUIRED BALANCE OF THE DRAWING BOARD ASSEMBLY AS SET OUT IN SPECIFICATION J. IN THIS CONNECTION WE NOTE THAT YOUR COVER LETTER STATES THAT YOUR UNIT WILL BE MODIFIED SO THAT THE DRAWING BOARD, WHEN IN A HORIZONTAL POSITION, SHALL NOT EXTEND BEYOND THE LEFT HAND EDGE OF THE DESK BY MORE THAN FIVE INCHES. IN ADDITION TO REQUIRING A MARKING OF THE DESCRIPTIVE MATERIAL, PARAGRAPH (C)(2) OF THE BRAND NAME OR EQUAL CLAUSE SPECIFIES THAT A BID SHALL INCLUDE A CLEAR DESCRIPTION OF PROPOSED MODIFICATIONS. ALTHOUGH SOME MARKINGS WERE MADE ON YOUR BROCHURE, NEITHER THE COVER LETTER NOR THE BROCHURE WHICH YOU SUBMITTED WITH YOUR BID CLEARLY DESCRIBES HOW THE MODIFICATION TO THE DRAWING BOARD ASSEMBLY WOULD BE ACCOMPLISHED. SINCE YOU DID NOT CLEARLY DESCRIBE THIS MODIFICATION IN YOUR BID, THE PROCURING ACTIVITY ASSUMED, FROM A TECHNICAL ANALYSIS OF THE INFORMATION WHICH YOU SUBMITTED, THAT YOU WOULD MODIFY THE DRAFTING BOARD OF YOUR UNIT BY MOVING IT FORWARD ON THE ELEVATION ARMS, AND CONCLUDED THAT SUCH POSITIONING OF THE BOARD WOULD MATERIALLY ALTER ITS COUNTERBALANCE FEATURE. IN THIS REGARD THE PROCURING ACTIVITY REPORTS THAT IT DOES NOT RECALL THE CONVERSATION WHICH YOU ALLEGE TOOK PLACE PRIOR TO BID OPENING CONCERNING THIS MODIFICATION. IN ANY EVENT, IT IS CLEAR THAT SUCH CONVERSATION WOULD NOT OBVIATE THE REQUIREMENT FOR YOUR COMPANY TO SUBMIT SUFFICIENT DESCRIPTIVE DETAILS OF THE MODIFICATION WITH YOUR BID TO PERMIT AN EVALUATION OF ITS EFFECT ON THE OPERATION OF THE UNIT, AND A DETERMINATION AS TO WHETHER YOUR UNIT, AS MODIFIED, WOULD STILL MEET THE OTHER SPECIFIED REQUIREMENTS.

ACCORDINGLY, SINCE YOU FAILED TO COMPLY WITH THE REQUIREMENT OF PARAGRAPH (C)(2) OF THE BRAND NAME OR EQUAL CLAUSE, QUOTED ABOVE, IN THAT YOUR BID DID NOT PROVIDE A CLEAR DESCRIPTION OF THE PROPOSED MODIFICATION AND ITS RELATIONSHIP TO THE OTHER ESSENTIAL FEATURES OF YOUR UNIT, IT WOULD APPEAR THAT YOUR FAILURE IN SUCH RESPECT MAY REASONABLY BE CONSIDERED AS BEING DIRECTLY RESPONSIBLE FOR ANY ERRONEOUS TECHNICAL CONCLUSIONS WHICH MAY HAVE BEEN DRAWN FROM THE MODIFICATION.

REGARDING YOUR ORAL CONTENTION THAT THE PROCURING ACTIVITY SHOULD HAVE CONTACTED YOU AFTER BID OPENING TO OBTAIN ADDITIONAL DATA CONCERNING YOUR MODEL, WE ARE AWARE OF NO BASIS FOR IMPOSING SUCH A REQUIREMENT ON THE ACTIVITY. FURTHER, IT IS A FUNDAMENTAL PRINCIPLE OF THE COMPETITIVE BIDDING SYSTEM THAT THE RESPONSIVENESS OF A BID MUST BE DETERMINED FROM THE CONTENTS OF THE BID ITSELF WITHOUT REFERENCE TO EXTRANEOUS EXPLANATIONS SUBMITTED AFTER BID OPENING, IN FAIRNESS TO THOSE BIDDERS WHOSE OFFERS STRICTLY COMPLIED WITH ALL THE SOLICITATION REQUIREMENTS. COMP. GEN. 221 (1965).

IN VIEW OF THE FOREGOING WE DO NOT FIND AN ADEQUATE BASIS FOR REVERSING THE ACTION OF THE PROCURING ACTIVITY IN REJECTING YOUR BID ON LOT 1, AND YOUR PROTEST MUST THEREFORE BE DENIED.