B-175955, JUL 25, 1972

B-175955, JUL 25, 1972

BID PROTEST - BRAND NAME OR EQUAL PROCUREMENT - FAILURE TO LIST SALIENT CHARACTERISTICS DECISION DENYING PROTEST OF PANAMETRICS, INC., AGAINST AWARD OF A CONTRACT TO NUCLEAR-CHICAGO CORPORATION, TEXAS NUCLEAR DIVISION, UNDER AN IFB ISSUED BY THE NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH, CINCINNATI, OHIO, FOR FIVE LEAD DETECTORS, TEXAS NUCLEAR MODEL #9250, OR EQUAL. ALTHOUGH THE IFB WAS DEFECTIVE FOR NOT STATING THE SALIENT CHARACTERISTICS OF THE BRAND NAME ITEM AS REQUIRED BY FPR 1-1.307-4(B), CANCELLATION OF THE AWARD WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT, BECAUSE (1) THE DETECTORS HAVE ALREADY BEEN DELIVERED AND (2) FAILURE TO LIST THE SALIENT CHARACTERISTICS OF THE BRAND NAME ITEM DOES NOT NECESSITATE CANCELLATION OF THE CONTRACT. SEE 43 COMP. GEN. 761 (1964).

TO PANAMETRICS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 9, 1972, PROTESTING AGAINST THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS (IFB) NO. 10-3-8 72, ISSUED BY THE NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH, CINCINNATI, OHIO.

THE IFB SOLICITED BIDS FOR "FIVE (5) LEAD DETECTORS, TEXAS NUCLEAR MODEL 9250, OR EQUAL," AND THE FOLLOWING FEATURES WERE LISTED THEREIN AS SALIENT CHARACTERISTICS OF THE ITEMS DESIRED:

ONE (1) NUMBER 9258 DIGITAL ANALYSER

ONE (1) NUMBER 9257 X-RAY PROBE AND SOURCE HEAD

ONE (1) NUMBER 9253 BATTERY CHARGER

ONE (1) NUMBER 881189 COBALT 57 MCI SOURCE

ONE (1) NUMBER 715680 INSTRUCTION MANUAL

ONE (1) CARRYING CASE

ONE (1) LEAD FOIL STANDARD

BIDS WERE OPENED AS SCHEDULED ON MARCH 8, 1972. FOUR BIDS WERE RECEIVED. YOUR FIRM OFFERED ITS PANALYZER 4000 AS AN EQUAL TO THE BRAND NAME PRODUCT AT A BID PRICE OF $3,495 PER UNIT, WHILE COLUMBIA SCIENTIFIC INDUSTRIES CORPORATION (COLUMBIA) ALSO OFFERED A LEAD DETECTOR AS AN EQUAL TO THE BRAND NAME PRODUCT AT A BID PRICE OF $3,680.30 PER UNIT. THE NUCLEAR-CHICAGO CORPORATION, TEXAS NUCLEAR DIVISION (NUCLEAR-CHICAGO) OFFERED TEXAS NUCLEAR MODEL 9250, THE BRAND NAME PRODUCT, AT A BID PRICE OF $4,060 PER UNIT. NUCLEAR-CHICAGO ALSO OFFERED A RENTAL CREDIT OF $1,280 OFF THE TOTAL PRICE BY REASON OF THE INSTITUTE'S RENTAL OF A MODEL 9250 DURING THE PERIOD AUGUST THROUGH NOVEMBER 1971. THE FOURTH BID WAS AT $4,095 PER UNIT.

ON MAY 9, 1972, YOU WERE TELEPHONICALLY NOTIFIED THAT ON MAY 4, 1972, A CONTRACT FOR THREE LEAD DETECTORS HAD BEEN AWARDED TO NUCLEAR CHICAGO. LETTER OF THE SAME DATE, MAY 9, YOU PROTESTED THE AWARD TO NUCLEAR-CHICAGO ON THE BASIS THAT (1) YOUR FIRM HAD SUBMITTED A LOWER BID THAN NUCLEAR- CHICAGO ON AN EQUAL LEAD DETECTOR WHICH WAS IMPROPERLY REJECTED AS NONRESPONSIVE; (2) THERE WAS NO PROVISION FOR ANY QUANTITY VARIATION IN THE IFB; (3) THERE WAS NO PROVISION FOR ANY RENTAL CREDIT IN THE IFB; AND (4) THAT FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.408, RELATING TO INFORMATION TO BIDDERS, REQUIRES THAT UNSUCCESSFUL BIDDERS BE NOTIFIED PRIOR TO AWARD AND THAT SUCH NOTIFICATION WAS NOT GIVEN.

THE RECORD INDICATES THAT THE AWARD WAS MADE TO NUCLEAR-CHICAGO ON THE BASIS THAT THE ITEMS OFFERED UNDER THE LOWER BIDS SUBMITTED BY YOUR FIRM AND COLUMBIA WERE NOT CONSIDERED TO BE EQUAL TO THE NUCLEAR CHICAGO DETECTOR IN THAT THEY DID NOT POSSESS CERTAIN DESIRED CHARACTERISTICS OF THE BRAND NAME ITEM. THE MAJOR REASON YOUR BID WAS REJECTED WAS THAT YOUR MODEL DOES NOT FURNISH A DIRECT READING FROM THE INSTRUMENT ITSELF, BUT A CALIBRATION CHART HAS TO BE USED TO CONVERT THE READING FROM THE INSTRUMENT. COLUMBIA'S MODEL ALSO NEEDS A CALIBRATION CHART. THIS WOULD APPEAR TO EXPLAIN THE "NO DIRECT READING" NOTATION BENEATH YOUR FIRM'S AND COLUMBIA'S BID PRICES ON THE ABSTRACT OF BIDS. OTHER DIFFERENCES WHICH WERE CONSIDERED SIGNIFICANT IN THE SELECTION OF NUCLEAR-CHICAGO'S DETECTOR OVER YOUR MACHINE ARE (1) NUCLEAR-CHICAGO'S INDICATOR IS CONSIDERED A PORTABLE INSTRUMENT WHICH MAY BE USED IN THE FIELD WHILE BEING HAND-HELD, WHEREAS YOUR EQUIPMENT IS DESIGNED FOR IN PLANT OR LABORATORY USE; (2) NUCLEAR CHICAGO'S DETECTOR HAS A MORE RAPID READING TIME THAN YOUR DETECTOR; (3) NUCLEAR-CHICAGO'S DETECTOR IS NOT AFFECTED BY TEMPERATURE CHANGES WHEREAS YOUR MACHINE MAY NOT BE USED IN SUBFREEZING WEATHER; AND (4) YOUR INDICATOR HAS NO RECHARGING CAPABILITY WHICH CAN ADD TO THE ADDITIONAL EQUIPMENT NEEDED FOR CONDUCTING STUDIES. WE NOTE, HOWEVER, THAT NONE OF THE ABOVE FEATURES WERE LISTED AS SALIENT CHARACTERISTICS IN THE INVITATION.

WHETHER A PRODUCT OFFERED AS EQUAL TO A BRAND NAME PRODUCT IS, IN FACT, EQUAL, IS A MATTER FOR DETERMINATION BY THE PROCURING AGENCY. 17 COMP. GEN. 554, 557. IN THE PRESENT CASE THE PROCURING AGENCY RECOGNIZES THAT THE IFB FAILED TO COMPLY WITH THE PROVISIONS OF FPR 1 1.307-4(B) WHICH STATE, IN PERTINENT PART, THAT "BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS SHOULD SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCT WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT." IN THIS REGARD, OUR DECISION B-157857, JANUARY 26, 1966, CITED WITH APPROVAL IN 48 COMP. GEN. 441 (1968); 49 COMP. GEN. 274 (1969); AND B-173290, OCTOBER 19, 1971, SETS FORTH 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."

AS INDICATED ABOVE, THE IFB FAILED TO SET FORTH ALL OF THE SALIENT CHARACTERISTICS OF THE BRAND NAME DETECTOR WHICH THE NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH CONSIDERED NECESSARY FOR ITS NEEDS. THUS, ACCORDING TO THE RULE STATED IN THE ABOVE-CITED DECISION, THE IFB WAS DEFECTIVE AND NO AWARD SHOULD HAVE BEEN MADE THEREUNDER. HOWEVER, WE ARE OF THE OPINION THAT CANCELLATION OF THE INSTANT AWARD WOULD NOT BE IN THE BEST INTEREST OF THE GOVERNMENT SINCE THE DETECTORS HAVE ALREADY BEEN DELIVERED AND 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); B-173290, OCTOBER 19, 1971. IN THE CASE OF SIMILAR PROCUREMENTS IN THE FUTURE, HEW HAS ASSURED US THAT THE OFFICE OF PROCUREMENT AND MATERIEL MANAGEMENT, HEALTH SERVICES AND MENTAL HEALTH ADMINISTRATION, WILL TAKE APPROPRIATE STEPS TO AVOID REPETITION OF THE ABOVE ERROR.

IN REGARD TO YOUR CONTENTION THAT THERE WAS NO PROVISION FOR ANY QUANTITY VARIATION IN THE IFB, WE CALL YOUR ATTENTION TO PARAGRAPH 10(C), STANDARD FORM 33A OF THE IFB PACKAGE WHICH STATES, IN PERTINENT PART, THAT "*** THE GOVERNMENT RESERVES THE RIGHT TO MAKE AN AWARD ON ANY ITEM FOR A QUANTITY LESS THAN THAT OFFERED AT THE UNIT PRICES OFFERED UNLESS THE OFFEROR SPECIFIES OTHERWISE IN HIS OFFER." SINCE NUCLEAR-CHICAGO MADE NO SUCH RESTRICTION IN ITS BID, THE AWARD FOR THREE UNITS WAS PROPER.

CONCERNING YOUR CONTENTION THAT THERE WAS NO PROVISION FOR ANY RENTAL CREDIT IN THE IFB, THE ABSTRACT OF BIDS SHOWS THAT THIS CREDIT WAS NOT USED AS A FACTOR IN THE EVALUATION OF NUCLEAR-CHICAGO'S BID PRICES. ALSO, AS SHOWN ABOVE, THE AWARD TO NUCLEAR-CHICAGO WAS MADE ON THE BASIS THAT ITS PRODUCT CONTAINED THE NEEDED CHARACTERISTICS, AND NOT ON THE BASIS THAT ITS EVALUATED PRICE WAS LOWER THAN YOURS OR COLUMBIA'S.

IN REGARD TO YOUR CONTENTION THAT YOU WERE NOT NOTIFIED OF THE BID RESULTS PRIOR TO AWARD PURSUANT TO FPR 1-2.408, THAT REGULATION STATES, IN PERTINENT PART:

"WHERE AWARD IS MADE TO OTHER THAN THE LOW BIDDER, THE CONTRACTING ACTIVITY SHALL AS A MINIMUM NOTIFY THE UNSUCCESSFUL LOWER BIDDER PROMPTLY OF THE FACT THAT THEIR BIDS WERE REJECTED. ***"

IT WOULD APPEAR THAT THE INTENT OF THIS REGULATION IS THAT NOTIFICATION IS TO BE GIVEN PROMPTLY AFTER AWARD, WHICH WAS DONE IN THE PRESENT CASE. SEE B-159537, SEPTEMBER 7, 1966.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.