B-175335, MAY 24, 1972

B-175335, MAY 24, 1972

BID PROTEST - "BRAND NAME OR EQUAL" - UNTIMELY PROTEST DENIAL OF PROTEST BY HIGH POWER HARDWARE CORPORATION AGAINST AWARD OF A CONTRACT TO GATES RADIO COMPANY UNDER AN IFB ISSUED BY THE U.S. INFORMATION AGENCY, FOR RADIO BROADCAST TRANSMITTERS AND RELATED EQUIPMENT. THE PROCUREMENT WAS TO BE MADE ON A BRAND NAME OR EQUAL BASIS. PROTESTS ALLEGING A DEFECT IN A SOLICITATION MUST BE FILED PRIOR TO BID OPENING. 4 CFR 20.2. FAILURE TO QUESTION THE DESCRIPTION OF THE ITEMS PRIOR TO BID OPENING, AND PARTICIPATION IN THE PROCUREMENT TO THE POINT OF BID OPENING, MUST BE DEEMED AN ACQUIESCENCE IN THE LANGUAGE OF THE SOLICITATION AND PRECLUDES CONSIDERATION OF THE MERITS OF THE PROTEST. FURTHER, THIS BID WOULD HAVE BEEN NONRESPONSIVE BECAUSE THE FAILURE TO OBTAIN WAR RISK INSURANCE CONSTITUTED A MATERIAL DEVIATION. FPR 1-2.301.

TO HIGH POWER HARDWARE CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 28, 1972, PROTESTING AGAINST AWARD OF A CONTRACT TO GATES RADIO COMPANY UNDER INVITATION FOR BIDS NO. 111-23-2, ISSUED BY THE UNITED STATES INFORMATION AGENCY, WASHINGTON, D.C., ON DECEMBER 20, 1971.

THE INVITATION WAS FOR RADIO BROADCAST TRANSMITTERS AND RELATED EQUIPMENT, WITH MOST OF THE MORE THAN 100 ITEMS ON THE SCHEDULE (EXCEPT THE TRANSMITTERS) LISTED ON A BRAND NAME OR EQUAL BASIS. PROVISION WAS MADE FOR AWARD IN THE AGGREGATE ONLY. THE BRAND NAME OR EQUAL PROVISION OF THE IFB REQUIRED BIDDERS TO FURNISH DESCRIPTIVE LITERATURE FOR ALL "OR EQUAL" BIDS. THE IFB ALSO REQUIRED BIDDERS TO OBTAIN WAR RISK INSURANCE AND TO INCLUDE THE INSURANCE COST ON THE SCHEDULE IN COMPUTING THE TOTAL FIRM-FIXED PRICE.

BIDS WERE OPENED ON FEBRUARY 2, 1972. YOU DID NOT SUBMIT DESCRIPTIVE LITERATURE WITH YOUR BID, ALTHOUGH YOU BID ON SEVERAL "OR EQUAL" ITEMS. INSTEAD, YOU SUBMITTED A LETTER WITH YOUR BID IN WHICH YOU STATED:

"IF YOU REQUIRE ANY ADDITIONAL DESCRIPTIVE LITERATURE, WE WILL BE HAPPY AND WILLING TO PROVIDE IT PROMPTLY. PLEASE PROVIDE US WITH THE DATA REQUIRED BY FPR 1-1.307-4B WITH YOUR REQUEST."

THE LETTER ALSO INCLUDED A REQUEST THAT ANY RESULTING CONTRACT INCLUDE A PROGRESS PAYMENT CLAUSE AND FURTHER RECOMMENDED THAT WAR RISK INSURANCE BE TREATED AS A SEPARATE LINE ITEM ON A COST TYPE BASIS BECAUSE YOU WERE UNABLE TO OBTAIN A WAR RISK INSURANCE QUOTATION FOR THE REQUIRED SHIPPING DATE.

AFTER OPENING, ON FEBRUARY 2, 1972, YOU WERE ASKED TO VERIFY YOUR BID. YOU DID SO BY LETTER OF FEBRUARY 4, 1972, IN WHICH YOU CONFIRMED THAT YOUR BID DID NOT INCLUDE THE COST OF WAR RISK INSURANCE. USIA THEN ATTEMPTED TO TECHNICALLY EVALUATE YOUR BID, BUT FOUND THAT IN THE ABSENCE OF THE REQUIRED DESCRIPTIVE LITERATURE, 39 ITEMS YOU PROPOSED TO MANUFACTURE OR MODIFY COULD NOT BE PROPERLY EVALUATED. YOUR BID WAS THEN REJECTED AS NONRESPONSIVE.

YOU CLAIM THAT THE IFB WAS DEFECTIVE BECAUSE IT DID NOT INCLUDE THE DATA REQUIRED BY FPR 1-1.307-4(B). THAT PROVISION STATES:

"(B) '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, CONTAIN THE FOLLOWING INFORMATION TO THE EXTENT AVAILABLE, AND INCLUDE SUCH OTHER INFORMATION AS IS NECESSARY TO DESCRIBE THE ITEM REQUIRED:

"(1) COMPLETE COMMON GENERIC IDENTIFICATION OF THE ITEM REQUIRED.

"(2) APPLICABLE MODEL, MAKE, OR CATALOG NUMBER FOR EACH BRAND NAME PRODUCT REFERENCED, AND IDENTITY OF THE COMMERCIAL CATALOG IN WHICH IT APPEARS.

"(3) NAME OF MANUFACTURER, PRODUCER, OR DISTRIBUTOR OF EACH BRAND NAME PRODUCT REFERENCED (AND ADDRESS IF COMPANY IS NOT WELL KNOWN)."

FOR MOST ITEMS ON THE SCHEDULE, SEVERAL SALIENT CHARACTERISTICS WERE STATED ALONG WITH THE BRAND NAME MODEL AND/OR PART NUMBER. HOWEVER, A FEW ITEMS WERE LISTED WITHOUT SALIENT CHARACTERISTICS AND WERE IDENTIFIED ONLY BY GENERIC NAMES AND BRAND NAME PART NUMBERS.

UNDER OUR RULES, PROTESTS OF THIS NATURE, REGARDING AN ALLEGED DEFECT IN A SOLICITATION, MUST BE FILED PRIOR TO BID OPENING. 4 CFR 20.2. YOUR FAILURE TO QUESTION THE DESCRIPTION OF THE VARIOUS ITEMS LISTED IN THE IFB PRIOR TO OPENING AND YOUR PARTICIPATION IN THIS PROCUREMENT TO THE POINT OF BID OPENING MUST BE DEEMED AN ACQUIESCENCE IN THE LANGUAGE OF THE PURCHASE DESCRIPTION AND PRECLUDES CONSIDERATION OF YOUR PROTEST ON THE MERITS. SEE 50 COMP. GEN. 193, 200 (1970).

IN ANY CASE, WE CONCLUDE THAT YOUR BID MUST BE REGARDED AS NONRESPONSIVE BECAUSE OF THE FAILURE TO INCLUDE THE COST OF WAR RISK INSURANCE AND THE REQUEST FOR PROGRESS PAYMENTS IN ANY RESULTING CONTRACT NOTWITHSTANDING THE ABSENCE OF ANY PROVISION THERFOR IN THE IFB. THESE REPRESENT MATERIAL DEVIATIONS FROM THE REQUIREMENTS OF THE SOLICITATION. FPR 1-2.301; 47 COMP. GEN. 496 (1968). WHILE WE DO NOT PASS ON THE MERIT OF YOUR REQUESTS REGARDING PROGRESS PAYMENTS AND WAR RISK INSURANCE, WE BELIEVE THAT IT WAS INCUMBENT UPON YOU TO MAKE THESE REQUESTS TO THE CONTRACTING OFFICER PRIOR TO THE BID OPENING DATE AND PRIOR TO SUBMISSION OF YOUR BID IF YOU OBJECTED TO THE IFB'S REQUIREMENTS ON THESE MATTERS.

FOR THE FOREGOING REASONS, YOUR PROTEST MUST BE DENIED.