B-171627, MAY 11, 1971

B-171627, MAY 11, 1971

BID PROTEST - NEGOTIATED CONTRACT DECISION DENYING PROTEST AGAINST AWARD OF A NEGOTIATED CONTRACT TO TEKTRONIX, INC., UNDER AN RFP ISSUED BY THE COAST GUARD FOR EIGHT TYPE 422 TEKTRONIX OSCILLOSCOPES. SINCE THE COAST GUARD COMMANDANT ISSUED A DETERMINATION AND FINDINGS JUSTIFYING THE NEGOTIATION OF A CONTRACT UNDER 10 U.S.C. 2304(A)(13) TO ASSURE STANDARDIZATION OF EQUIPMENT AND INTERCHANGEABILITY OF PARTS, THAT DETERMINATION IS FINAL AS A MATTER OF LAW UNDER 10 U.S.C. 2310(B). FURTHER, SUCH AN RFP IS INCONSISTENT WITH THE PROCEDURES DESIGNATED FOR A "BRAND NAME OR EQUAL" PROCUREMENT AND THERE IS NO VALID BASIS FOR AN OBJECTION TO THE AWARD.

TO B & F INSTRUMENTS, INC.

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 28, 1970, PROTESTING THE AWARD OF A CONTRACT TO TEKTRONIX, INC., UNDER REQUEST FOR PROPOSALS (RFP) CG-11,467-A, ISSUED BY THE UNITED STATES COAST GUARD.

PRIOR TO THE ISSUANCE OF THE RFP, THE COAST GUARD COMMANDANT ISSUED A DETERMINATION AND FINDINGS (D&F) JUSTIFYING THE NEGOTIATION OF A CONTRACT UNDER 10 U.S.C. 2304(A)(13) FOR THE PURCHASE OF EIGHT TYPE 422 TEKTRONIX OSCILLOSCOPES IN ORDER TO ASSURE STANDARDIZATION OF EQUIPMENT AND INTERCHANGEABILITY OF PARTS WITHIN THE EXISTING LORAN-C TRANSMITTING AND MONITORING STATIONS. UNDER 10 U.S.C. 2310(B), THAT DETERMINATION IS FINAL AS A MATTER OF LAW.

THE RFP, ISSUED OCTOBER 22, 1970, SOLICITED OFFERS ON EQUIPMENT DESCRIBED SIMPLY AS "OSCILLOSCOPE, TEKTRONIX TYPE 422." THERE WERE NO SPECIFICATIONS, TECHNICAL INFORMATION, OR LIST OF SALIENT CHARACTERISTICS INCLUDED IN THE RFP. NEITHER DID THE RFP PROVIDE FOR THE CONSIDERATION OF "EQUAL" ITEMS. IT IS REPORTED THAT THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY TO TAKE ADVANTAGE OF COMPETITION AMONG THE MANUFACTURER AND ITS DEALERS. AS A RESULT OF THE SYNOPSIZING OF THE PROCUREMENT, PROPOSALS WERE RECEIVED FROM TEKTRONICS, YOUR FIRM, AND MATSUSHITA ELECTRIC CORPORATION OF AMERICA.

YOUR PROPOSAL WAS THE LOWEST RECEIVED AND MATSUSHITA WAS THE SECOND LOWEST OFFEROR. HOWEVER, THE CONTRACTING OFFICER REJECTED BOTH LOW PROPOSALS AS THEY OFFERED BRAND NAME ITEMS OTHER THAN TEKTRONIX TYPE 422 OSCILLOSCOPES. AWARD WAS MADE TO TEKTRONIX FOR THE TYPE 422 OSCILLOSCOPES.

YOU CONTEND THAT THE RFP SHOULD BE CONSIDERED AS AUTHORIZING THE TENDER OF AN ITEM "EQUAL" TO THE REQUESTED TYPE 422 TEKTRONIX OSCILLOSCOPES. YOU CLAIM THAT "THE USE OF THE WORD TYPE RATHER THAN MODEL IMPLIES THAT THE NUMBER IS INDICATING A CLASS OF INSTRUMENT RATHER THAN A SPECIFIC UNIT." YOU ALSO CONTEND THAT IF EQUAL ITEMS FROM OTHER MANUFACTURERS ARE NOT ACCEPTABLE THEN ALL COMPETITION HAS BEEN EXCLUDED.

WE DO NOT AGREE THAT THE RFP MAY BE REGARDED AS PROVIDING FOR A BRAND NAME "OR EQUAL" PROCUREMENT. THE RFP WAS LIMITED TO TEKTRONIX TYPE 422 OSCILLOSCOPES. OUR OFFICE HAS BEEN ADVISED THAT THE TEKTRONIX BROCHURE DESCRIBING THE OSCILLOSCOPES CLEARLY IDENTIFIES THE UNITS BY "TYPE," I.E., TYPE 422, RATHER THAN BY "MODEL" AND THAT TEKTRONIX USES THE WORD "TYPE" AS SYNONYMOUS WITH THE WORD "MODEL." FURTHER, IT SHOULD BE NOTED THAT SECTION 1-1.307-4 OF THE FEDERAL PROCUREMENT REGULATIONS PROVIDES THE MANNER IN WHICH BRAND NAME OR EQUAL PROCUREMENTS ARE TO BE DESCRIBED AND THAT SUCH PROCEDURE WAS NOT FOLLOWED IN THE IMMEDIATE RFP. IN ANY EVENT, IN VIEW OF THE AFOREMENTIONED D&F, IT IS CLEAR TO US THAT AN "OR EQUAL" PROCUREMENT WAS NOT INTENDED.

FURTHER, OUR OFFICE HAS HELD THAT THE FACT IT WAS FOUND NECESSARY FOR AN AGENCY TO LIMIT A PROCUREMENT TO ONE MANUFACTURER IN ORDER TO ACHIEVE STANDARDIZATION OF EQUIPMENT AND INTERCHANGEABILITY OF PARTS DOES NOT AFFORD A VALID BASIS TO OBJECT TO THE PROCUREMENT. B-163382, MARCH 21, 1968.

IN THE CIRCUMSTANCES, THE PROTEST IS DENIED.