B-173290, OCT 19, 1971

B-173290, OCT 19, 1971

BID PROTEST - "BRAND NAME OR EQUAL" - DEFECTIVE IFB DECISION DENYING THE PROTEST OF EMR-TELEMETRY AGAINST THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER AN IFB ISSUED BY THE DEFENSE ATOMIC SUPPORT AGENCY, SANDIA BASE, N.M. WHERE AN IFB SPECIFIES "BRAND NAME OR EQUAL", THE PECULIAR FEATURES OR CHARACTERISTICS OF THE BRAND NAME ITEM WHICH HAVE TO BE MET BY THE BIDDERS MUST BE SPECIFICALLY EXPLAINED. SINCE THIS INVITATION FAILED TO SPECIFY THE ESSENTIAL PRODUCT CHARACTERISTICS, IT WAS DEFICIENT AND NO AWARD SHOULD HAVE BEEN MADE. HOWEVER, WHILE IT IS RECOMMENDED THAT THIS DEFICIENCY BE CORRECTED IN FUTURE PROCUREMENTS, CANCELLATION OF THE INSTANT PROCUREMENT WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT.

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER, WITH ENCLOSURES, OF JUNE 30, 1971, FROM THE CONTRACTING OFFICER, DEFENSE ATOMIC SUPPORT AGENCY (DASA), SANDIA BASE, REPORTING ON THE PROTEST OF EMR-TELEMETRY (EMR) AGAINST THE AWARD OF CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. DASA02-71-B -0088.

THE SUBJECT INVITATION, ISSUED MAY 11, 1971, REQUESTED BIDS ON A "BRAND NAME OR EQUAL" BASIS ON EQUIPMENT, INCLUDING OSCILLATORS, DISCRIMINATORS, FILTERS AND RACKS, FOR MULTIPLEX SYSTEMS TO BE USED IN CONNECTION WITH MAGNETIC TAPE RECORDERS.

IN ACCORDANCE WITH THE REQUIREMENTS OF PARAGRAPH 2-201(ASEC.CXXVII) OF THE ARMED SERVICES PROCUREMENT REGULATIONS (ASPR) THE INVITATION STATED:

"(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."

BIDS WERE RECEIVED FROM EMR AND VIDAR CORPORATION (VIDAR), THE MANUFACTURER OF THE BRAND NAME ITEMS CALLED FOR BY THE IFB. IT IS REPORTED THAT AFTER BID OPENING ON JUNE 3, 1971, THE CONTRACTING OFFICER FORWARDED THE TWO BIDS AND ACCOMPANYING DESCRIPTIVE LITERATURE TO DASA TEST COMMAND FOR AN ENGINEERING EVALUATION WITH INSTRUCTION THAT IF TEST COMMAND RECOMMENDED AWARD TO OTHER THAN THE OTHER BIDDER, VIDAR, DETAILED JUSTIFICATION FOR SUCH A RECOMMENDATION WAS REQUIRED TO BE FURNISHED.

ON JUNE 7, 1971, THE TEST COMMAND PRESENTED TO THE CONTRACTING OFFICER A DETAILED EVALUATION OF EMR'S PROPOSAL IN WHICH IT WAS CONCLUDED THAT EMR'S SYSTEM WAS NOT EQUAL TO THE VIDAR SYSTEM SPECIFIED IN THE INVITATION. THE TEST COMMAND THEREFORE RECOMMENDED PURCHASE OF THE EQUIPMENT FROM VIDAR, THE SECOND LOW BIDDER. AWARD OF CONTRACT WAS MADE TO VIDAR ON JUNE 10, 1971.

CONCERNING THE EVALUATION OF THE EMR PROPOSAL, THE TEST COMMAND REPORTED THAT THE EMR LOW LEVEL OSCILLATOR WAS NOT EQUAL TO THAT OFFERED BY VIDAR AND THEREFORE NOT ACCEPTABLE IN THE AREAS OF INPUT IMPEDANCE, ZERO STABILITY, TEMPERATURE DRIFT, DEVIATION STABILITY, DEVIATION LIMITING, TEMPERATURE RANGE AND OUTPUT LEVEL. SIMILARLY, THE EMR DISCRIMINATOR OFFERED AS EQUAL TO THE VIDAR MODEL LISTED IN THE INVITATION WAS JUDGED DEFICIENT AS COMPARED WITH THE VIDAR MODEL IN THE AREAS OF OUTPUT IMPEDANCE, OUTPUT NOISE, ZERO DRIFT, LINEARITY, AND LOSS OF SIGNAL. ALL, SOME 25 GENERAL AND ELECTRICAL CHARACTERISTICS OF THE EMR OSCILLATOR WERE MATCHED AGAINST THE SPECIFIED VIDAR UNIT FOR PURPOSES OF EVALUATION AND SOME 17 CHARACTERISTICS OF THE EMR DISCRIMINATOR WERE SIMILARLY COMPARED. WE NOTE, HOWEVER, THAT NEITHER THE CHARACTERISTICS RELIED ON BY THE TEST COMMAND FOR ITS RECOMMENDATION THAT EMR NOT RECEIVE THE AWARD NOR THOSE REMAINING CHARACTERISTICS WITH RESPECT TO WHICH EMR WAS JUDGED TO BE "EQUAL" TO VIDAR WERE SET OUT IN THE INVITATION AS BEING SALIENT CHARACTERISTICS ESSENTIAL TO THE NEEDS OF THE GOVERNMENT.

IN THIS REGARD, IN CONNECTION WITH THE PROCUREMENT OF GOODS ON A "BRAND NAME OR EQUAL" BASIS, ASPR 1-1206.2(B) PROVIDES IN PART:

"'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 DECISION IN B-157857, JANUARY 26, 1966, CITED WITH APPROVAL IN 49 COMP. GEN. 274 (1969) AND 48 COMP. GEN. 441 (1968) SETS FORTH SUCCINCTLY THE FOLLOWING WELL-ESTABLISHED RULE:

" *** BIDDERS OFFERING 'EQUAL' PRODUCTS SHOULD NOT HAVE TO GUESS AT THE ESSENTIAL QUALITIES OF THE BRAND NAME ITEM. UNDER THE REGULATIONS THEY ARE ENTITLED TO BE ADVISED IN THE INVITATION OF THE PARTICULAR FEATURES OR CHARACTERISTICS OF THE REFERENCED ITEM WHICH THEY ARE REQUIRED TO MEET. AN INVITATION WHICH FAILS TO LIST ALL THE CHARACTERISTICS DEEMED ESSENTIAL OR LISTS CHARACTERISTICS WHICH ARE NOT ESSENTIAL, IS DEFECTIVE. 41 COMP. GEN. 242, 250-51; B-154611, AUGUST 28, 1964. SEE ALSO, 38 COMP. GEN. 345 AND B-157081, OCTOBER 18, 1965."

AS INDICATED ABOVE, AN EXAMINATION OF THE SUBJECT INVITATION REVEALS THAT THE CONTRACTING OFFICER FAILED TO COMPLY WITH THE PROVISIONS OF ASPR 1- 1206.2(B) SINCE THE SOLICITATION DID NOT SET FORTH SUCH SALIENT CHARACTERISTICS. THUS, ACCORDING TO THE RULE ESTABLISHED IN THE ABOVE CITED DECISIONS THE INVITATION WAS DEFECTIVE AND NO AWARD SHOULD HAVE BEEN MADE THEREUNDER.

WE ARE OF THE OPINION THAT CANCELLATION OF THE INSTANT AWARD WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT SINCE EQUIPMENT MEETING THE ADVERTISED NEEDS OF THE GOVERNMENT HAS ALREADY BEEN DELIVERED AND AS WE HAVE HELD THAT THE FAILURE OF AN INVITATION TO LIST SALIENT CHARACTERISTICS DOES NOT NECESSARILY REQUIRE CANCELLATION OF THE CONTRACT. 43 COMP. GEN. 761 (1964). HOWEVER, WE STRONGLY RECOMMEND THAT EVERY EFFORT BE MADE TO INSURE THAT, IN FUTURE PROCUREMENTS OF THIS TYPE, THE SALIENT CHARACTERISTICS OF THE BRAND NAME ITEM BE FURNISHED WITH THE INVITATION AND SET FORTH WITH CLARITY THE STANDARDS THE "EQUAL" ITEMS MUST MEET.

A COPY OF THIS DECISION IS BEING FURNISHED TO THE PROTESTING COMPANY.