B-174524, JAN 26, 1972

B-174524, JAN 26, 1972

BID PROTEST - NONRESPONSIVENESS - EQUAL PRODUCTS - DESCRIPTIVE DATA REQUIREMENT DECISION DENYING PROTEST OF INDUCTOTHERM CORPORATION, LOW BIDDER, AGAINST AWARD OF A CONTRACT TO AJAX MAGNETHERMIC CORPORATION UNDER AN IFB ISSUED BY THE U.S. ARMY WEAPONS COMMAND (WECOM), ROCK ISLAND ARSENAL, ILL., FOR A PROCUREMENT OF HIGH FREQUENCY INDUCTION FURNACES. THE BRAND NAME OR EQUAL CLAUSE OF THE SOLICITATION REQUIRES THAT BIDDERS CLEARLY IDENTIFY PROPOSED "EQUAL" PRODUCTS, AND A MERE PROMISE TO CONFORM DOES NOT SATISFY THE DESCRIPTIVE DATA REQUIREMENT. ALTHOUGH ACCEPTANCE OF PROTESTANT'S BID MIGHT RESULT IN A SUBSTANTIAL SAVING FOR THE GOVERNMENT, A GREATER PUBLIC INTEREST EXISTS IN PRESERVING THE STRICT COMPETITIVE BIDDING PROCEDURES REQUIRED BY LAW. ACCORDINGLY, THERE IS NO LEGAL BASIS TO QUESTION THE WECOM DETERMINATION OF NONRESPONSIVENESS.

TO INDUCTOTHERM CORPORATION:

WE REFER TO YOUR TELEGRAM OF NOVEMBER 11, 1971, AS SUPPLEMENTED BY LETTER OF NOVEMBER 15 AND ENCLOSURES, PROTESTING AGAINST THE REJECTION OF YOUR BID AND AWARD TO ANOTHER BIDDER OF A CONTRACT FOR THE FURNISHING OF TWO HIGH FREQUENCY INDUCTION FURNACES TO THE DEPARTMENT OF THE ARMY. THE PROCUREMENT ACTIVITY IS THE UNITED STATES ARMY WEAPONS COMMAND (WECOM), ROCK ISLAND ARSENAL, ILLINOIS, AND THE PROCUREMENT SOLICITATION IS INVITATION FOR BIDS (IFB) DAAF01-72-B-0065, DATED AUGUST 19, 1971.

BASICALLY, YOU MAINTAIN THAT YOUR BID AND ACCOMPANYING DESCRIPTIVE MATERIAL EVIDENCED THAT THE FURNACES WHICH YOU PROPOSED TO FURNISH TO WECOM WOULD FULLY COMPLY WITH THE REQUIREMENTS OF THE BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS. CONVERSELY, WECOM CONTENDS THAT THE BID AS SUBMITTED SHOWED NONCOMPLIANCE WITH A REQUIREMENT IN EACH PURCHASE DESCRIPTION THAT THE HIGH FREQUENCY CONVERTER FOR THE FURNACE INVOLVED BE WIRED TO OPERATE FROM A 440 VOLT, 60 HERTZ, 3 PHASE POWER SOURCE AND ALSO FAILED TO INCLUDE REQUIRED DESCRIPTIVE DATA SHOWING COMPLIANCE WITH SEVEN OTHER SALIENT CHARACTERISTICS SPECIFIED IN THE PURCHASE DESCRIPTIONS.

THE PURCHASE DESCRIPTIONS FOR THE FURNACES READ AS FOLLOWS:

ITEM 1:

"FURNACE, HIGH FREQUENCY, INDUCTION: LIFT COIL MELTING TYPE, 100 POUNDS NON-FERROUS ALLOY CAPACITY CRUCIBLE, TRANSITE AND ALUMINUM CASE, LIFT HEIGHT 110 INCHES NOMINAL OVERALL DIMENSIONS 70 INCHES HIGH BY 45 INCHES WIDE BY 65 INCHES DEEP, FLEXIBLE POWER LEADS, WATER COOLED POWER COIL; AJAX MAGNETHERMIC CORPORATION, 9950 WEST LAWRENCE AVENUE, SCHILLER PARK, ILLINOIS 60176, MODEL NUMBER MFL 100 OR EQUAL EQUIPPED WITH: CONVERTER, VARIABLE HIGH FREQUENCY: AS TO AC SCR CONVERSION, SOLID STATE, AUTOMATIC POWER CONTROL, AUTOMATIC LOAD FREQUENCY CONTROL, PLUG IN PRINTED CIRCUIT BOARDS, 350 KW POWER RATING, NOMINAL OVERALL DIMENSIONS 73 INCHES HIGH BY 102 INCHES WIDE BY 29 INCHES DEEP, WIRED TO OPERATE FROM 440 VOLT, 60 HERTZ, 3 PHASE POWER SOURCE, TO BE USED FOR NONFERROUS ALLOY MELTING, 38 GPM WATER AT 50 PSI MINIMUM TO 70 PSI MAXIMUM; AJAX MAGNETHERMIC CORPORATION, MODEL NUMBER MPS 350-1 OR EQUAL WITH: AUXILIARY POWER UNIT: NOMINAL OVERALL DIMENSIONS 73 INCHES HIGH, 46 INCHES WIDE, 34 INCHES DEEP, 4 GALLONS WATER PER MINUTE AT 50 PSI MINIMUM TO 70 PSI MAXIMUM, THIS UNIT CONTAINS CAPACITORS AND BUS WORK PLUS FURNACE-POWER ROUTING SWITCHES, WITH WATER CONNECTIONS AND ELECTRICAL LEADS FOR CONNECTION TO FURNACE, WIRED TO OPERATE FROM 440 VOLT, 60 HERTZ, 3 PHASE POWER SOURCE; AJAX MAGNETHERMIC CORPORATION, 9950 WEST LAWRENCE AVENUE, SCHILLER PARK, ILLINOIS 60176, MODEL MPS-A OR EQUAL.

ITEM 2:

"FURNACE, HIGH FREQUENCY, INDUCTION: CORELESS MELTING, BOX TYPE, 1000 POUND FERROUS METAL CAPACITY, TILT HEIGHT 95 INCHES NOMINAL OVERALL DIMENSIONS 46 INCHES HIGH BY 53 INCHES WIDE BY 46 INCHES DEEP, HOIST TILTING, TRANSITE AND ALUMINUM CASE WITH BALL BEARING TRUNNIONS, FLEXIBLE WATER COOLED POWER LEADS, POWER COIL BACKUP REFRACTORY, BOTTOM REFRACTORY; AJAX MAGNETHERMIC CORPORATION, 9950 WEST LAWRENCE AVENUE, SCHILLER PARK, ILLINOIS 60176, MODEL NUMBER MFB 1000 OR EQUAL EQUIPPED WITH: CONVERTER, VARIABLE HIGH FREQUENCY: AS TO AC SCR CONVERSION, SOLID STATE, AUTOMATIC POWER CONTROL, AUTOMATIC LOAD FREQUENCY CONTROL, PLUG IN PRINTED CIRCUIT BOARDS, 350 KW POWER RATING, NOMINAL OVERALL DIMENSIONS 73 INCHES HIGH BY 102 INCHES WIDE BY 29 INCHES DEEP, WIRED TO OPERATE FROM 440 VOLT, 60 HERTZ, 3 PHASE POWER SOURCE, TO BE USED FOR FERROUS METAL MELTING, 38 GPM WATER AT 50 PSI MINIMUM TO 70 MAXIMUM; AJAX MAGNETHERMIC CORPORATION, MODEL NUMBER MPS 350-1 OR EQUAL WITH: AUXILIARY POWER UNIT: NOMINAL OVERALL DIMENSIONS 73 INCHES HIGH, 46 INCHES WIDE, 34 INCHES DEEP, 4 GALLONS WATER PER MINUTE AT 50 PSI MINIMUM TO 70 PSI MAXIMUM, THIS UNIT CONTAINS CAPACITORS AND BUS WORK PLUS FURNACE-POWER ROUTING SWITCHES, WITH WATER CONNECTIONS AND ELECTRICAL LEADS FOR CONNECTION TO FURNACE, WIRED TO OPERATE FROM 440 VOLT, 60 HERTZ, 3 PHASE POWER SOURCE; AJAX MAGNETHERMIC CORPORATION, 9950 WEST LAWRENCE AVENUE, SCHILLER PARK, ILLINOIS 60176, MODEL MPS-A OR EQUAL."

A BRAND NAME OR EQUAL CLAUSE, WHICH IS SUBSTANTIALLY THE SAME AS THE CLAUSE REQUIRED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1 1206.3(B) TO BE USED IN INVITATIONS WHICH INCLUDE BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS, APPEARED ON PAGE 19 OF THE BID SCHEDULE. THE CLAUSE PLACED BIDDERS ON NOTICE THAT BIDS PROPOSING "EQUAL" PRODUCTS SHOULD CLEARLY IDENTIFY THE PRODUCTS OFFERED AND THAT THE GOVERNMENT WOULD DETERMINE THE EQUALITY OF THE PRODUCT ON THE BASIS OF THE INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN THE BID AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. IN ADDITION, THE CLAUSE SPECIFICALLY CAUTIONED BIDDERS THAT TO INSURE AVAILABILITY TO THE PURCHASING ACTIVITY OF SUFFICIENT DESCRIPTIVE MATERIAL ON PRODUCTS OFFERED BIDDERS MUST FURNISH AS PART OF THEIR BIDS "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."

ON SEPTEMBER 8, 1971, BIDS WERE OPENED AS SCHEDULED. YOUR BID, QUOTING PRICES OF $59,229 FOR ITEM 1 AND $59,670 FOR ITEM 2, SUBJECT TO A PROMPT PAYMENT DISCOUNT OF 10 PERCENT 30 CALENDAR DAYS, 5 PERCENT 20 CALENDAR DAYS, WAS LOW. THE ONLY OTHER BID, BY AJAX MAGNETHERMIC CORPORATION (AJAX), OFFERED THE BRAND NAME ITEMS AT NET PRICES OF $55,971 FOR ITEM 1 AND $55,866 FOR ITEM 2.

REFERENCE TO YOUR BID SHOWS THAT FOR ITEM 1 YOU LISTED YOUR FURNACE MODEL 100LC AND FOR ITEM 2 YOUR FURNACE MODEL 1000AMH, EACH WITH MODEL VIP 350 FREQUENCY CONVERTER. FOR EACH ITEM YOU PROVIDED A TWO PAGE MEMORANDUM DATED SEPTEMBER 1, 1971, DESIGNATED AS SPECIFICATION NO. 9171-1-RTR FOR ITEM 1 AND SPECIFICATION (NO.) 9171-2-RTR FOR ITEM 2. AMONG THE FEATURES LISTED FOR EACH OF THE VIP 350 KW POWER UNITS IN THE SPECIFICATIONS WAS "ONE STATIC TYPE FREQUENCY INVERTER RATED AT 350 KW, 900-1200 CYCLES, FOR OPERATION FROM 480 VOLT, 3 PHASE, 60 CYCLE POWER SOURCE." DRAWINGS SUBMITTED WITH YOUR BID DEPICTED EACH FURNACE AND THE VIP 350 CABINET. ADDITION, YOU FURNISHED A BROCHURE, IDENTIFIED AS BULLETIN 90 AND ENTITLED "INDUCTOTHERM VIP SOLID STATE FREQUENCY CONVERTER," WHICH STATED, AMONG OTHER THINGS, THAT THE INDUCTOTHERM VIP HAS VARIABLE INDUCTION POWER BUT DID NOT RELATE TO SPECIFIC MODELS.

ROCK ISLAND ARSENAL ENGINEERING PERSONNEL MADE A TECHNICAL EVALUATION OF YOUR BID AND RENDERED A REPORT TO WECOM UNDER DATE OF SEPTEMBER 22, 1971, WHICH INCLUDED THE FOLLOWING PERTINENT STATEMENTS:

"THE BID BY INDUCTOTHERM CORPORATION, AND OFFER TO FURNISH FURNACES, AS DESCRIBED IN SPECIFICATIONS NO. 9171-1-RTR AND NO. 9171-2-RTR DATED 1 SEPTEMBER 1971 AND DRAWINGS C-8372, D-5021, AND C-6474, HAS BEEN TECHNICALLY EVALUATED AND IS NOT ACCEPTABLE AS FOLLOWS:

A. THE BIDDER OFFERS 'ONE STATIC TYPE FREQUENCY INVERTER RATED AT 350 KW, 900-1200 CYCLES, FOR OPERATION FROM 480 VOLT, 3 PHASE, 60 CYCLE POWER SOURCE.' THE SOLICITATION REQUIRES 'WIRED TO OPERATE FROM 440 VOLT, 60 HERTZ, 3 PHASE POWER SOURCE.' (THE USER SPECIFICALLY STATED THAT INPUT POWER REQUIREMENTS SHOULD NOT EXCEED 440 VOLTS).

B. THE BIDDER DOES NOT INDICATE COMPLIANCE WITH THE FOLLOWING REQUIREMENTS OF THE SOLICITATION AND DOES NOT FURNISH DATA REQUIRED TO EVALUATE THE FOLLOWING:

(1) 'TRANSITE AND ALUMINUM CASE' FOR THE FURNACE;

(2) '38 GPM WATER AT 50 PSI MINIMUM TO 70 PSI MAXIMUM' FOR THE CONVERTER;

(3) '4 GALLONS WATER PER MINUTE AT 50 PSI MINIMUM TO 70 PSI MAXIMUM' FOR THE AUXILIARY POWER UNIT;

(4) 'AUTOMATIC LOAD FREQUENCY CONTROL';

(5) 'PLUG IN PRINTED CIRCUIT BOARDS';

(6) 'FLEXIBLE POWER LEADS' TO THE FURNACE;

(7) 'WATER COOLED POWER COIL' TO THE FURNACE."

AFTER CONSIDERATION OF THE TECHNICAL EVALUATION REPORT, THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NONRESPONSIVE TO THE IFB FOR THE REASONS SET FORTH IN THE REPORT. ACCORDINGLY, AND AFTER THE CONTRACTING OFFICER ALSO HAD DETERMINED THAT AJAX WAS RESPONSIBLE AS WELL AS RESPONSIVE, THE PROCUREMENT RECORDS WERE SUBMITTED TO THE ROCK ISLAND ARSENAL BOARD OF AWARDS WITH A RECOMMENDATION BY WECOM THAT AWARD BE MADE TO AJAX. ON NOVEMBER 1, THE BOARD UNANIMOUSLY APPROVED THE WECOM RECOMMENDATION, AND AWARD WAS MADE TO AJAX ON NOVEMBER 2. THE CONTRACTING OFFICER'S LETTER OF NOVEMBER 3 WHICH NOTIFIED YOU OF THE AWARD READ, IN PART, AS FOLLOWS:

"THE FURNACES TO BE SUPPLIED UNDER THIS SOLICITATION ARE TO BE WIRED TO OPERATE FROM A 440 VOLT, 60 HERTZ, 3 PHASE POWER SOURCE. IN YOUR LETTER OF 1 SEPTEMBER 1971, WHICH ACCOMPANIED YOUR BID, IT IS STATED THAT THE POWER AND CONTROL SYSTEM OF YOUR FURNACES WOULD INCLUDE 'ONE STATIC TYPE FREQUENCY INVERTER RATED AT 350 KW, 900-1200 CYCLES, FOR OPERATION FROM 480 VOLT, 3 PHASE, 60 CYCLE POWER SOURCE.' THE VOLTAGE REQUIREMENT FOR OPERATION OF YOUR FURNACE OF 480 VOLTS DEVIATES FROM THE 440 VOLT REQUIREMENT SET FORTH IN THE INVITATION FOR BIDS. IN ADDITION, SUFFICIENT DATA WAS NOT SUBMITTED WITH YOUR BID TO DETERMINE IF YOUR FURNACES WOULD MEET SEVERAL OTHER REQUIREMENTS OF THE SOLICITATION, INCLUDING THE TRANSITE AND ALUMINUM CASE FOR THE FURNACE, 38 GPM WATER AT 50 PSI MINIMUM TO 70 PSI MAXIMUM FOR THE CONVERTER, AND 4 GALLONS WATER PER MINUTE AT 50 PSI MINIMUM TO 70 PSI MAXIMUM FOR THE AUXILIARY POWER UNIT. FOR THESE REASONS, AN AWARD COULD NOT BE MADE TO YOU ON THIS SOLICITATION."

IN A LETTER OF NOVEMBER 11 TO THE CONTRACTING OFFICER YOU TOOK EXCEPTION TO THE ACTIONS OF THE PROCUREMENT ACTIVITY AS FOLLOWS:

"IN ACCORDANCE WITH OUR TELEPHONE CONVERSATION AND MY TELEGRAM TO YOU THIS MORNING, I AM WRITING THIS LETTER APPEALING THE DECISION ON THE REFERENCED SOLICITATION IN DETERMINING INDUCTOTHERM CORP.'S BID NON RESPONSIVE. IN YOUR LETTER OF NOVEMBER 3, 1971, YOU POINT OUT THE ITEMS THAT CAUSED THIS DETERMINATION.

"THE FIRST ITEM WAS A STATEMENT THAT THE SPECIFICATION INCLUDED ONE STATIC TYPE FREQUENCY INVERTER RATED AT 350 KW, 900-1200 CYCLES, FOR OPERATION FROM 480 VOLT, 3 PHASE, 60 CYCLE POWER SOURCE WHILE YOUR INVITATION TO BID SPECIFIED OPERATION OF 440 VOLTS. I WILL AGREE THAT OUR SPECIFICATION SHEET DID INDICATE A 480 V. OPERATION BUT RECOGNIZE THAT NEMA STANDARDS SPECIFY THAT SUCH EQUIPMENT MUST BE CAPABLE OF OPERATING AT A OR - 10% VOLTAGE AND, THEREFORE, IN ACCORDANCE WITH NEMA STANDARDS, IT IS FULLY CAPABLE OF OPERATING AT 440 V. ACTUALLY, THE 480 V. WAS A TYPOGRAPHICAL ERROR AND THE BULLETIN NO. 90-375 FORWARDED WITH THE BID SHOWS POWER REQUIREMENTS OF 440/480 V. THEREFORE, THE DETERMINATION OF NONRESPONSIVENESS ON THAT BASIS IS NOT VALID AND SHOULD NOT HAVE INVALIDATED INDUCTOTHERM'S BID.

"THE OTHER ITEMS MENTIONED WERE THAT WE DID NOT SUBMIT SUFFICIENT DATA FOR YOUR ENGINEERING TO DETERMINE IF OUR FURNACE WOULD MEET SEVERAL OTHER SPECIFIC REQUIREMENTS OF THE SOLICITATION, INCLUDING THE TRANSITE AND ALUMINUM CASE FOR THE FURNACE, 38 GPM WATER AT 50 PSI MINIMUM TO 70 PSI MAXIMUM FOR THE CONVERTER, AND 4 GALLONS WATER PER MINUTE AT 50 PSI MINIMUM TO 70 PSI MAXIMUM FOR THE AUXILIARY POWER UNIT. I WOULD LIKE TO POINT OUT THAT THESE PARTICULAR ITEMS WERE SPECIFIED UNDER PART II, SECTION F - DESCRIPTION/SPECIFICATIONS. THE SIGNING OF THE OFFER BY ME WITHOUT TAKING EXCEPTION TO THOSE SPECIFICATIONS IS CERTIFICATION THAT WE WILL MEET THOSE SPECIFICATIONS, AND I DON'T UNDERSTAND WHY FURTHER EVIDENCE OF MEETING THOSE SPECIFICATIONS IS REQUIRED.

"I DO RECOGNIZE, MRS. CROOK, THAT PROCUREMENT REGULATIONS STATE THAT WHEN QUOTING ON A GIVEN MODEL NUMBER OR EQUAL ADEQUATE INFORMATION MUST BE GIVEN TO DETERMINE WHETHER OR NOT THE EQUIPMENT OFFERED IS ACTUALLY AN EQUAL. THIS, OF COURSE, APPLIES TO THOSE DETAILS OF A MODEL NUMBER THAT ARE NOT INCLUDED IN THE SPECIFICATION. IF THE SPECIFICATION HAD NOT DETAILED THE AMOUNT OF WATER REQUIRED OR THAT THE FURNACES MUST BE TRANSITE, AND ALUMINUM CONSTRUCTION, THEN I WOULD, OF COURSE, HAVE TO AGREE WITH YOU THAT YOU NEEDED INFORMATION TO DETERMINE THIS.

"SINCE INDUCTOTHERM WAS LOW BIDDER ON THIS SOLICITATION BY SOME $9,000, AND SINCE INDUCTOTHERM MEETS THE SPECIFICATION, AND SINCE INDUCTOTHERM IS THE WORLD LEADER IN PRODUCTION OF STATIC FREQUENCY INVERTER TYPE INDUCTION MELTING EQUIPMENT WITH SOME 200 UNITS IN OPERATION, IT IS REQUESTED THAT YOU CANCEL THE ORDER WITH AJAX MAGNETHERMIC AND AWARD IT TO INDUCTOTHERM IN ACCORDANCE TO THE TERMS OF THE IFB."

YOUR PROTEST TO OUR OFFICE INCLUDES SUBSTANTIALLY THE SAME CONTENTIONS AS WERE MADE IN THE ABOVE LETTER.

THE RECORD BEFORE OUR OFFICE SHOWS THAT IN LIGHT OF YOUR LETTER OF NOVEMBER 11, THE ROCK ISLAND ARSENAL ENGINEERING STAFF MADE A TECHNICAL REVIEW OF YOUR BID. BY MEMORANDUM OF DECEMBER 1, 1971, THE ENGINEERING STAFF SUBMITTED TO WECOM THE FOLLOWING ADDITIONAL PERTINENT COMMENTS:

"A. THE IFB STATES, TO QUOTE '350 KW POWER RATING' AND 'WIRED TO OPERATE FROM 440 VOLT.' THIS MEANS THAT THE FURNACE MUST PRODUCE 350 KW TO 100 PERCENT OF THE POWER RATING AT 440 VOLTS. NEMA PUBLICATION NO. HUI-1963, ON RECORD, WAS DISCUSSED BY TELEPHONE WITH THE NATIONAL ELECTRIC MANUFACTURERS ASSOCIATION, 155 EAST 44TH STREET, NEW YORK CITY, NEW YORK, ON 19 NOVEMBER 1971, MR. J. KARK, ENGINEER. IT WAS VERIFIED THAT THE GRAPH ENTITLED 'PERCENT WATTAGE OUTPUT AT APPLIED VOLTAGES FOR INDUSTRIAL HEATING UNITS' ON PAGE 2 AS WELL AS PERTINENT NOTES, E.G. HU1-2.020 VOLTAGE RATING AND HU1-2.030 OPERATION AT OTHER THAN RATED SUPPLY VOLTAGES ON PAGE 3, ARE THE SAME IN BOTH PUBLICATION NO. HU1-1963 AND THE FINAL PUBLICATION NO. HU1-1968 WHICH WAS CANCELLED 1 NOVEMBER 1970. THE PUBLICATIONS SHOW ON THE GRAPH THAT IF THE VOLTAGE RATING IS 480 VOLTS AND THE APPLIED VOLTAGE IS 440 VOLTS, THE KW OUTPUT IS 84 PERCENT OR 294 KW IN LIEU OF 100 PERCENT OR 350 KW AS REQUIRED. THE OPERATION AT VOLTAGES BELOW THE RATING WILL HAVE NO ADVERSE EFFECT ON THE HEATER, BUT THE WATTAGE OUTPUT WILL BE ADVERSELY AFFECTED BY THE LOW VOLTAGE (NEMA HU1- 2.030). IT IS TO BE NOTED THAT 'NEMA' AS INDICATED BY THE MANUFACTURER IS NOT A REQUIREMENT OF THE IFB.

"B. THE INDUCTOTHERM CORPORATION SPECIFICATIONS (NO. 9171-1-RTR AND 9171- 2-RTR), COVERING BOTH CLINS 0001 AND 0002, STATED 'THE VIP 350 KW POWER UNIT IS ENTIRELY CONTAINED WITHIN A PREWIRED CUBICLE WITH ALL NECESSARY CONTROLS AS FOLLOWS: ONE STATIC TYPE FREQUENCY INVERTER RATED AT 350 KW, 900-1200 CYCLES, FOR OPERATION FROM 480 VOLT, 3 PHASE, 60 CYCLE, POWER SOURCE'. THIS WAS INTERPRETED THAT TO ATTAIN THE REQUIRED INVERTER RATING OF 350 KW, A POWER SOURCE OF 480 VOLTS IS REQUIRED IN LIEU OF THE 440 VOLTS AS SPECIFIED IN THE IFB."

WECOM'S PROCUREMENT AGENT HAS STATED THAT YOUR BID, AS OPENED ON SEPTEMBER 8, 1971, AT THE ROCK ISLAND ARSENAL PROCUREMENT DIRECTORATE, INCLUDED ONLY THE MATERIAL DISCUSSED ABOVE, THAT IS, THE TWO SPECIFICATIONS, THE BROCHURE IDENTIFIED AS INDUCTOTHERM BULLETIN 90, AND THE THREE DRAWINGS. WECOM ACCORDINGLY URGES THAT THE INTERPRETATION PLACED BY THE ENGINEERING EVALUATORS ON YOUR BID AS OFFERING FURNACES WHICH REQUIRED, FOR ATTAINMENT OF THE SPECIFIED INVERTER RATING OF 350 KW, A POWER SOURCE OF 480 VOLTS IN LIEU OF THE 440 VOLTS SPECIFIED IN THE IFB IS A REASONABLE AND PROPER INTERPRETATION. FURTHER, WECOM STATES THAT WHILE THERE IS NO INDICATION THAT YOUR BULLETIN 90-375 WAS SUBMITTED WITH YOUR BID, AS YOU MAINTAIN, THE BULLETIN RELATES TO YOUR MODEL 375 RATHER THAN YOUR MODEL 350 OFFERED IN YOUR BID AND IS THEREFORE IRRELEVANT TO THE RESPONSIVENESS OF THE BID TO THE IFB.

WECOM FURTHER URGES THAT YOUR MERE PROMISE TO CONFORM TO THE REQUIREMENTS OF THE IFB WITHOUT SUBMISSION OF DESCRIPTIVE DATA SHOWING COMPLIANCE WITH THE SALIENT CHARACTERISTICS INCLUDED IN THE PURCHASE DESCRIPTIONS DOES NOT SATISFY THE DESCRIPTIVE DATA REQUIREMENT. WECOM THEREFORE ADHERES TO ITS POSITION THAT YOUR BID WAS NONRESPONSIVE IN THIS REGARD, ALSO, AND WAS THEREFORE PROPERLY REJECTED.

WHEN A SOLICITATION INCLUDES A BRAND NAME OR EQUAL PURCHASE DESCRIPTION WHICH, IN COMPLIANCE WITH ASPR 1-1206.2(B), SETS FORTH THOSE SALIENT CHARACTERISTICS OF THE REFERENCED ITEMS WHICH ARE NECESSARY TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT AND ALSO INCLUDES THE BRAND NAME OR EQUAL CLAUSE PRESCRIBED BY ASPR 1-1206.3(B), IT IS INCUMBENT UPON EACH BIDDER OFFERING OTHER THAN THE REFERENCED ITEMS TO PROVIDE WITH ITS BID SUFFICIENT DESCRIPTIVE DATA TO ENABLE THE CONTRACTING AGENCY TO DETERMINE THAT THE ITEMS OFFERED WILL MEET THE NEEDS OF THE GOVERNMENT AS SPECIFIED IN THE SALIENT CHARACTERISTICS. A BLANKET STATEMENT BY A BIDDER OFFERING TO MEET ALL SPECIFICATION REQUIREMENTS DOES NOT SUBSTITUTE OR COMPENSATE FOR INADEQUATE DESCRIPTIVE DATA, AND UNLESS THE NECESSARY DESCRIPTIVE DATA IS OTHERWISE REASONABLY AVAILABLE TO THE CONTRACTING AGENCY, REJECTION OF THE BID AS NONRESPONSIVE IS REQUIRED. 45 COMP. GEN. 312, 316 (1965); 41 ID. 366 (1961).

UNDER 10 U.S.C. 2305(C), WHICH APPLIES TO THE PROCUREMENT IN QUESTION, AWARD IS REQUIRED TO BE MADE IN FORMALLY ADVERTISED PROCUREMENTS TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED. CONSISTENT WITH SUCH STATUTORY PROVISION, ASPR 2-404.2(A) REQUIRES REJECTION OF BIDS WHICH FAIL TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION.

THE REPORTED FACTS INDICATE THAT THE DESCRIPTIVE MATERIAL WHICH WECOM RECEIVED WITH YOUR BID SHOWED THAT THE FURNACES WHICH YOU OFFERED DID NOT COMPLY WITH THE REQUIREMENT FOR OPERATION FROM A 440 VOLT, 60 HERTZ, 3 PHASE POWER SOURCE AND DID NOT SHOW COMPLIANCE WITH SEVERAL OTHER SALIENT CHARACTERISTICS OF THE BRAND NAME FURNACES WHICH WECOM INCLUDED IN THE PURCHASE DESCRIPTIONS IN ACCORDANCE WITH THE PROVISIONS OF ASPR 1- 1206.2(B). ACCORDINGLY, AND IN THE ABSENCE OF ANY EVIDENCE THAT THERE WAS REASONABLY AVAILABLE TO WECOM OTHER INFORMATION WHICH MIGHT HAVE ESTABLISHED THAT YOUR FURNACES DID IN FACT MEET THE REQUIREMENTS SET FORTH IN THE IFB, WE CONCUR WITH THE POSITION OF WECOM THAT YOUR BID WAS NONRESPONSIVE TO THE REQUIREMENTS OF THE BRAND NAME OR EQUAL CLAUSE.

AS TO YOUR REQUEST FOR WAIVER OF THE DATA REQUIREMENT IN VIEW OF THE DIFFERENTIAL OF APPROXIMATELY $9,300 BETWEEN YOUR LOW BID AND THE BID ON WHICH AWARD TO AJAX WAS BASED, IT IS OBVIOUS THAT SUCH ACTION WOULD BE PREJUDICIAL TO AJAX, WHOSE BID WAS FULLY RESPONSIVE TO THE IFB, AND THAT THE AWARD WOULD NOT BE IN CONFORMITY WITH THE ADVERTISED SPECIFICATIONS AS REQUIRED BY 10 U.S.C. 2305(C). IN THIS CONNECTION, OUR OFFICE HAS FREQUENTLY POINTED OUT THAT THE STRICT MAINTENANCE OF THE COMPETITIVE BIDDING PROCEDURES REQUIRED BY LAW IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING A PECUNIARY ADVANTAGE IN INDIVIDUAL CASES BY PERMITTING PRACTICES WHICH DO VIOLENCE TO THE SPIRIT AND PURPOSE OF THE LAW. 17 COMP. GEN. 554 (1938); 30 ID. 179 (1950); 37 ID. 763 (1958).

FOR THE REASONS STATED, WE FIND NO LEGAL BASIS TO QUESTION THE ACTIONS OF WECOM IN REJECTING YOUR BID AND IN MAKING AWARD TO AJAX, WHO WAS DETERMINED TO BE RESPONSIBLE AS WELL AS RESPONSIVE. YOUR PROTEST IS THEREFORE DENIED.