B-170697, DEC. 8, 1970

B-170697, DEC. 8, 1970

BID PROTEST - BIDDER RESPONSIVENESS - BRAND NAME OR EQUAL DENIAL OF PROTEST OF FLIGHT SYSTEMS, INC., LOW BIDDER, AGAINST REJECTION OF ITS BID ON A CONTRACT FOR SOLID STATE RELAYS ISSUED BY GRIFFISS AFB, NEW YORK, AS NONRESPONSIVE AND AWARD OF CONTRACT TO DIGITECH DATA INDUSTRIES, INC. WHERE THE INVITATION SOLICITED BIDS FOR RELAYS OF "DIGITECH MANUFACTURE OR EQUAL" AND REQUIRED DESCRIPTION SUFFICIENTLY ADEQUATE, WHEN THE "OR EQUAL" OPTION WAS CHOSEN, TO DETERMINE WHETHER PRODUCT OFFERED MET THE REQUIREMENTS OF THE SOLICITATION AND TO ESTABLISH EXACTLY WHAT OFFEROR PROPOSED TO FURNISH, THEN PROTESTANT'S BLANKET STATEMENT OF COMPLIANCE - AN OFFER OF RELAYS OF ITS OWN MANUFACTURE WITH A GENERAL AVOWAL THAT ALL SPECIFICATIONS WILL BE ADHERED TO - WAS JUSTLY JUDGED AS NONRESPONSIVE.

TO FLIGHT SYSTEMS, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 25, 1970, PROTESTING THE REJECTION OF YOUR BID AND THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS NO. F30635-70-B-0120, ISSUED ON APRIL 2, 1970, AT THE GRIFFISS AIR FORCE BASE, NEW YORK, FOR A QUANTITY OF THREE DIFFERENT SOLID STATE RELAYS.

BID OPENING WAS INITIALLY SET FOR MAY 4, 1970, BUT WAS EXTENDED TO MAY 11, 1970, BY AN AMENDMENT DATED APRIL 28, 1970, WHICH ADDED TO THE DESCRIPTION OF ITEM 3 OF THE INVITATION A REFERENCE TO MIL-STD-188 ALREADY INCORPORATED IN ITEMS 1 AND 2. THE INVITATION SOLICITED BIDS ON 3 ITEMS OF OCTAL BASE SOLID STATE RELAYS OF DIGITECH MANUFACTURE OR EQUAL. THE ITEM DESCRIPTION AND QUANTITY OF EACH REQUIRED RELAY WAS STATED AS FOLLOWS:

"50. ITEM DESCRIPTION

1. 5945L0073032222 200 EA

RELAY, SOLID STATE, OCTAL BASE; 1-5/16"

DIAMETER: 3-5/32" LG OVERALL 6 VOLT

LOGIC BATTERY REQUIRED AT 15 MA EACH

POLARITY: MIL-STD-188; HIGH LEVEL POLAR

OR NEUTRAL OUTPUT: 4800 BAUD OPERATION.

DIGITECH PN SR-6 (OR EQUAL)

(FX222200484902)

OFFERING ON:

MFG. NAME BRAND NR

2. 5945L0073042222 200 EA

RELAY, SOLID STATE, OCTAL BASE: 1-5/16"

DIAMETER: 3-5/32" LG OVERALL. HIGH

LEVEL SIGNAL INPUT NEUTRAL OR POLAR:

MIL-STD-188 SIGNAL LEVEL OUTPUT: 4800

BAUD OPERATION. DIGITECH PN SR-7

(OR EQUAL)

(FX222200484903)

OFFERING ON:

MFG NAME BRAND NR

3. 5945L0073052222 200 EA

RELAY, SOLID STATE, OCTAL BASE: 1-5/16"

DIAMETER:3-5/32" LG OVERALL. HIGH

LEVEL SIGNAL INPUT NEUTRAL OR POLAR:

HIGH LEVEL SIGNAL OUTPUT NEUTRAL OR

POLAR: 4800 BAUD OPERATION. DIGITECH

PN SR-9 (OR EQUAL)

(FX222200484904)

OFFERING ON:

MFG NAME BRAND NR

TOTAL OF ALL ITEMS OFFERED: DOLLARS

CENTS. ($ ).

51. NOTICE TO OFFERORS: FAILURE TO COMPLY WITH BRAND NAME OR

EQUAL CLAUSE CITED IN THIS OFFER WILL

BE CAUSE FOR REJECTION AS NON-RESPONSIVE." AS INDICATED ABOVE, ITEM 3 WAS AMENDED TO INCLUDE THE MILITARY SPECIFICATION NUMBER.

INCLUDED IN THE INVITATION FOR BIDS PACKAGE WAS A PAGE (PAGE 12) CONCERNING "BRAND NAME OR EQUAL," WHICH PROVIDED IN PERTINENT PART AS FOLLOWS:

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

"(A) IF ITEMS CALLED FOR BY THIS SOLICITATION 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. OFFERS OFFERING 'EQUAL' PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE OFFERS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE SOLICITATION.

"(B) UNLESS THE OFFEROR CLEARLY INDICATES IN HIS OFFER THAT HE IS OFFERING AN 'EQUAL' PRODUCT, HIS OFFER SHALL BE CONSIDERED AS OFFERING A BRAND NAME PRODUCT REFERENCED IN THE SOLICITATION.

"(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.

"(2) IF THE OFFEROR PROPOSES TO MODIFY A PRODUCT SO AS TO MAKE IT CONFORM TO THE REQUIREMENTS OF THE SOLICITATION, HE SHALL (I) INCLUDE IN HIS OFFER A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS AND (II) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS."

BIDS WERE OPENED ON MAY 11, 1970, AND FLIGHT SYSTEMS WAS THE OSTENSIBLE LOW BIDDER. FLIGHT SYSTEMS, IN ITS BID, STATED THAT IT WAS SUPPLYING RELAYS OF ITS OWN MANUFACTURE AS "EQUAL" TO THE BRAND NAME RELAY CITED IN THE INVITATION. IN ITS COVER LETTER DATED APRIL 29, 1970, TRANSMITTING ITS BID, FLIGHT SYSTEMS STATED IT IS A MANUFACTURER OF SOLID STATE RELAYS AS DESCRIBED IN AN ENCLOSED CATALOG AND THAT "ITEMS QUITE SIMILAR TO THESE LISTED IN THE REFERENCED IFB ARE SHOWN ON PAGE 4." NO CATALOG ACCOMPANIED THE BID, BUT THERE WERE ATTACHED TO THE BID DATA SHEETS AND SPECIFICATION SHEETS OF THE DIGITECH COMPANY FOR DIGITECH MODELS SR-6 AND SR-7.

ON MAY 12, 1970, THE CONTRACTING OFFICER CONTACTED FLIGHT SYSTEMS ADVISING THAT A CATALOG WAS NOT INCLUDED WITH THE BID, REQUESTED THAT THE BID BE VERIFIED AND THAT A SPECIFICATION SHEET BE FURNISHED FOR THE SR-9 RELAY. THE BID WAS VERIFIED BY LETTER DATED MAY 18, 1970, WHICH ALSO FORWARDED DATA SHEET, SPECIFICATIONS AND DRAWINGS OF DIGITECH MODEL SR-9 RELAY. ON MAY 26, 1970, THE CONTRACTING OFFICER ADVISED FLIGHT SYSTEMS THAT IT MUST FURNISH DATA SHEETS SHOWING THE ITEMS THEY PROPOSED TO FURNISH AND NOT THE DATA AND SPECIFICATIONS OF A COMPETITOR (DIGITECH). WITH A LETTER DATED MAY 28, 1970, FLIGHT SYSTEMS FORWARDED TO THE CONTRACTING OFFICER COPIES OF FLIGHT SYSTEMS DRAWINGS COVERING THE MECHANICAL AND ELECTRICAL SPECIFICATIONS OF THE THREE TYPES OF RELAYS BEING OFFERED.

FLIGHT SYSTEMS' BID WAS REJECTED BY THE CONTRACTING OFFICER BECAUSE HE CONSIDERED THE BID UNACCEPTABLE AS NOT MEETING THE SPECIFICATIONS OF MIL- STD-188. FOLLOWING AN EXCHANGE OF CORRESPONDENCE FLIGHT SYSTEMS WAS ADVISED IN DETAIL, BY LETTER DATED JULY 31, 1970, OF THE BASES UPON WHICH ITS BID WAS REJECTED. IN THE MEANTIME, ON JUNE 30, 1970, THE CONTRACTING OFFICER HAD MADE AN AWARD TO DIGITECH.

YOU CONTEND THAT YOUR BID IS FULLY RESPONSIVE TO THE INVITATION AND, AS LOW BIDDER, YOU SHOULD RECEIVE THE AWARD OF A CONTRACT. THE BASES OF YOUR PROTEST ARE STATED TO BE:

1. FLIGHT SYSTEMS, INCORPORATED IS AN APPROVED MANUFACTURER OF SOLID STATE TELEGRAPH RELAYS AND HAS RECENTLY COMPLETED THREE CONTRACTS FOR THE NAVY FOR SIMILAR RELAYS, AND IS CURRENTLY PROCESSING TWO ADDITIONAL CONTRACTS FOR THE NAVY.

2. FLIGHT SYSTEMS UNDERSTANDS AND WILL COMPLY WITH ALL THE SPECIFICATIONS, REQUIREMENTS, TERMS AND DELIVERY DATES AS LISTED IN THE INVITATION.

3. THAT FLIGHT SYSTEMS, AS AN EXPERIENCED MANUFACTURER, HAS DEVELOPED CERTAIN PROCESSES WHICH ENABLES THEM TO PRODUCE THE ITEMS AND OFFER THEM FOR SALE AT A GREATLY REDUCED PRICE, WHICH WOULD RESULT IN A SAVING TO THE GOVERNMENT OF OVER FIFTY PERCENT.

4. FLIGHT SYSTEMS HAS THE DATA SHEETS OF THE BRAND NAME ITEMS AND ITS ITEMS ARE THE EQUAL OF THE BRAND NAME ITEMS IN EVERY WAY.

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."

SINCE YOU WERE OFFERING RELAYS OF YOUR OWN MANUFACTURE IT WAS NECESSARY UNDER THE INVITATION TO SUBMIT DATA EVIDENCING THE EQUALITY OF THE OFFERED PRODUCT TO THAT OF THE BRAND NAME PRODUCT.

IN THE EVALUATION OF THE FLIGHT SYSTEMS' DRAWINGS AND SPECIFICATIONS CERTAIN FEATURES WERE NOTED WHICH REQUIRED THE CONCLUSION THAT THE FLIGHT SYSTEMS' RELAYS WERE NOT EQUAL TO THE BRAND NAME PRODUCT. THESE FEATURES WERE INDICATED TO YOU AND WERE THE SUBJECT OF CORRESPONDENCE WITH THE CONTRACTING OFFICER. IN THIS INTERCHANGE YOU MAINTAINED THAT YOUR PRODUCT WAS IN CONFORMANCE WITH THE DIGITECH DATA SHEET INFORMATION AND SPECIFICATIONS. IN THIS CONNECTION, AS AN EXAMPLE, YOU POINTED OUT THAT ALTHOUGH THE MILITARY SPECIFICATIONS SPECIFY CERTAIN DC INPUT RESISTANCE BE 200 OHMS MAXIMUM, THE DIGITECH DATA SHEETS SPECIFY 250 OHMS MAXIMUM. THE RECORD SHOWS THAT THE EVALUATING ENGINEERS STATED THAT THE DIGITECH DATA SHEETS CONTAINED ERRORS WHICH HAD BEEN CORRECTED AND THAT FLIGHT SYSTEMS SHOULD HAVE ADHERED MORE TO THE REQUIREMENTS OF THE MILITARY SPECIFICATIONS INSTEAD OF THE DIGITECH DATA SHEETS.

THE AVOWAL THAT ALL SPECIFICATIONS WILL BE ADHERED TO IS INSUFFICIENT. WE HAVE SO HELD ON MANY OCCASIONS. A BLANKET STATEMENT OF COMPLIANCE WILL NOT INDICATE THE EXACT NATURE OF THE PRODUCT THE GOVERNMENT WOULD BE PURCHASING. SEE B-167757, OCTOBER 24, 1969, AND DECISIONS CITED THEREIN.

WE DO NOT QUESTION THE ABILITY OF FLIGHT SYSTEMS TO MANUFACTURE AN ACCEPTABLE SOLID STATE TELEGRAPH RELAY, BUT THE ONES OFFERED IN THE BID DID NOT CONFORM TO THE INVITATION REQUIREMENTS. NOR WAS IT MAINTAINED THAT THE RELAYS SUPPLIED UNDER OTHER GOVERNMENT CONTRACTS WERE THE SAME AS THE RELAYS OFFERED IN THE CURRENT PROCUREMENT. ON THE CONTRARY IT IS STATED THAT THEY ARE "SIMILAR."

WHILE A "BRAND NAME" DESIGNATION IS INTENDED TO BE DESCRIPTIVE AND MUST BE SO INTERPRETED, SPECIFICATIONS SPELLING OUT ESSENTIAL CHARACTERISTICS TO MEET THE NEEDS OF THE GOVERNMENT MUST BE STRICTLY MET. ASPR 1- 1206.2(H); 45 COMP. GEN. 312 (1965). IT IS THE BIDDER'S RESPONSIBILITY TO SUBMIT SUCH INFORMATION AS WILL PERMIT THE GOVERNMENT TO DETERMINE WHETHER THE PRODUCT OFFERED IS EQUAL TO THE BRAND NAME. IT IS NOT ENOUGH THAT THE BIDDER BELIEVES THAT ITS PRODUCT IS EQUAL; THE GOVERNMENT MUST BE ABLE TO DETERMINE EQUALITY. IF THE DESCRIPTIVE DATA FURNISHED DOES NOT DEMONSTRATE THAT THE ITEM OFFERED WILL MEET EACH OF THE SPECIFIC LISTED CHARACTERISTICS, THE BID WILL BE REJECTED AS NONRESPONSIVE. ASPR 2- 404.2(A). FURTHER THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE ITEMS MERELY BECAUSE THEY ARE OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED, NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF PRODUCTS WHICH DO NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEED. 36 COMP. GEN. 251, 252 (1956); B-152861, APRIL 10, 1964.

ON THE RECORD BEFORE US, WE FIND NO LEGAL BASIS TO OBJECT TO THE REJECTION OF FLIGHT SYSTEMS' BID.

ACCORDINGLY, YOUR PROTEST IS DENIED.