B-172588, JUL 16, 1971

B-172588, JUL 16, 1971

BID PROTEST - REJECTION OF BID - DESCRIPTIVE LITERATURE DECISION DENYING PROTEST BY LOW BIDDER AGAINST THE PROPOSED REJECTION OF ITS BID AS NONRESPONSIVE TO AN IFB ISSUED BY THE DEPARTMENT OF TRANSPORTATION, TRANSPORTATION SYSTEMS CENTER FOR A DISC OPERATING SYSTEM ON A BRAND NAME OR EQUAL BASIS. BECAUSE PROTESTANT FAILED TO FURNISH REQUIRED DESCRIPTIVE LITERATURE WITH ITS BID ON AN "EQUAL" PRODUCT, AND THE DATA FURNISHED AFTER BID OPENING WAS NOT SUFFICIENT FOR EVALUATION PURPOSES, THERE IS NO LEGAL BASIS FOR THE COMP. GEN. TO OBJECT TO THE PROPOSED REJECTION OF PROTESTANT'S BID.

TO DATAFACE, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE PROPOSED REJECTION OF YOUR BID AS NONRESPONSIVE AND THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS NO. TS-36-B, ISSUED ON JANUARY 29, 1971, BY THE DEPARTMENT OF TRANSPORTATION, TRANSPORTATION SYSTEMS CENTER, CAMBRIDGE, MASSACHUSETTS.

THE SUBJECT INVITATION AS AMENDED CALLS FOR THE PROCUREMENT OF A DISC OPERATING SYSTEM, HEWLETT-PACKARD MODEL 2870-A, OR EQUAL. THE SALIENT CHARACTERISTICS OF THE ITEM ARE SET FORTH ON PAGES 5 AND 6 OF THE INVITATION SCHEDULE. ALSO, UNDER THE SCHEDULE, BIDDERS WERE REQUIRED TO INSERT THE MANUFACTURER'S NAME, BRAND, AND MODEL NUMBER OF THE ITEM OFFERED. THE INVITATION INCLUDED THE "BRAND NAME OR EQUAL" PROVISION FROM WHICH WE QUOTE PARAGRAPH (C)(1):

"(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 PROCUREMENT OFFICE 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 PROCUREMENT OFFICE 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 AVAILABLE TO THE PROCUREMENT OFFICE."

OF THE THREE BIDS RECEIVED ON MARCH 5, 1971, YOURS WAS LOW AT A PRICE OF $25,000. YOU BID ON DATAFACE, INCORPORATED, MODEL NO. DA-2890-A. IT IS REPORTED THAT NO DESCRIPTIVE LITERATURE ACCOMPANIED YOUR BID. HOWEVER, ABOUT 15 MINUTES AFTER BID OPENING MR. SHELL ARRIVED AT THE PROCUREMENT OFFICE AND AFTER LEARNING NO DESCRIPTIVE LITERATURE HAD BEEN SUBMITTED, INQUIRED ABOUT THE EFFECT THEREOF. HE WAS ADVISED THAT IT WAS NOT THE GOVERNMENT'S RESPONSIBILITY TO OBTAIN THE LITERATURE FOR EVALUATION PURPOSES, BUT THAT IF IT WAS AVAILABLE IN THE PROCUREMENT OFFICE IT WOULD BE CONSIDERED. ALTHOUGH VARIOUS SOURCES AVAILABLE TO THE PROCUREMENT OFFICE WERE CHECKED, IT IS REPORTED THAT NO DATAFACE LITERATURE WAS FOUND.

SINCE YOU OFFERED AN "EQUAL" PRODUCT IN LIEU OF THE BRAND NAME PRODUCT AND FAILED TO FURNISH DESCRIPTIVE LITERATURE, THE CONTRACTING OFFICER CONTEMPLATED REJECTING YOUR BID AS NONRESPONSIVE AND AWARDING THE CONTRACT TO THE NEXT LOW RESPONSIVE BIDDER. HOWEVER, ON MARCH 11, 1971, YOUR LETTER DATED MARCH 3, 1971, WITH DESCRIPTIVE LITERATURE, WAS RECEIVED IN THE PROCUREMENT OFFICE. ALTHOUGH IT WAS BELIEVED THAT CONSIDERATION OF THE DESCRIPTIVE MATERIAL WAS NOT PROPER, AS IT WAS RECEIVED AFTER BID OPENING, THE CONTRACTING OFFICER REQUESTED AN INFORMAL OPINION AS TO TECHNICAL ACCEPTABILITY. HE WAS ADVISED THAT SINCE THE LITERATURE DESCRIBED ONLY THE DISC MEMORY DRIVE IT WAS NOT SUFFICIENT FOR EVALUATION PURPOSES. SUBSEQUENT TO YOUR PROTEST, A FORMAL REQUEST FOR TECHNICAL EVALUATION WAS MADE. IN A MEMORANDUM DATED APRIL 15, 1971, THE EARLIER INFORMAL OPINION WAS CONFIRMED. THEREFORE, IT IS PROPOSED TO AWARD A CONTRACT TO ANOTHER BIDDER.

THE "BRAND NAME OR EQUAL" CLAUSE PERMITS THE CONTRACTING OFFICER TO CONSIDER OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY IN DETERMINING WHETHER AN "EQUAL" PRODUCT IS ACCEPTABLE. AS NOTED ABOVE, THERE WAS NO DESCRIPTIVE LITERATURE ON DATAFACE MODEL NO. DA-2890-A AVAILABLE TO THE PROCURING ACTIVITY. WE HAVE HELD THAT UNDER THE APPLICABLE CLAUSE A BIDDER IS NOT PRECLUDED FROM FURNISHING DESCRIPTIVE DATA TO THE PURCHASING ACTIVITY AFTER BID OPENING, PROVIDED THAT THE INFORMATION FURNISHED WAS IN EXISTENCE AND PUBLICLY AVAILABLE PRIOR TO BID OPENING. B-170074, AUGUST 25, 1970, 50 COMP. GEN. ; B 171223, MARCH 3, 1971. ALTHOUGH THE DESCRIPTIVE MATERIAL SUBMITTED WITH YOUR LETTER RECEIVED AFTER BID OPENING APPEARS TO HAVE BEEN IN EXISTENCE AND PUBLICLY AVAILABLE PRIOR TO THE BID OPENING, IT WAS NOT SUFFICIENT TO MAKE YOUR BID RESPONSIVE. YOU BID ON DATAFACE MODEL NO. DA-2890-A, BUT YOUR LITERATURE DESCRIBED THE "5000 SERIES DISC MEMORY DRIVES" APPARENTLY MANUFACTURED BY COMPUTER MEMORY DEVICES, INCORPORATED, AND YOUR LETTER STATED THE "INTENTION OF DATAFACE TO SUPPLY TWO (2) MODEL MD5121 DISC MEMORY DRIVES *** ." THEREFORE, THE DESCRIPTIVE LITERATURE IS NOT ADEQUATE TO DETERMINE EQUALITY OF THE PRODUCT OFFERED IN YOUR BID.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR OUR OFFICE TO OBJECT TO THE PROPOSED REJECTION OF YOUR BID.