B-179767, MAY 16, 1974

B-179767, MAY 16, 1974

1. LOW BID ACCOMPANIED BY DESCRIPTIVE MATERIAL SUBMITTED IN ACCORDANCE WITH BRAND NAME OR EQUAL CLAUSE WAS PROPERLY REJECTED SINCE MATERIAL WAS INSUFFICIENT TO SHOW COMPLIANCE WITH SALIENT CHARACTERISTICS OF THE PURCHASE DESCRIPTION. SECOND LOW BIDDER, ON THE OTHER HAND, INCLUDED SUFFICIENT MATERIAL WITH ITS BID TO SHOW THAT THE BIDDER INTENDED TO FURNISH AN ITEM MEETING EACH OF THE LISTED SALIENT CHARACTERISTICS, AND THEREFORE AWARD TO THAT BIDDER WAS PROPER. 2. REGULATION DOES NOT REQUIRE NOTIFICATION OF NONACCEPTABILITY OF LOW BIDDER'S BID PRIOR TO AWARD SO AS TO ALLOW FILING OF PREAWARD PROTEST.

TO SEG ELECTRONICS CORP. AND BOONTON ELECTRONICS CORP.:

ON JANUARY 18, 1973, THE NAVY ELECTRONICS SUPPLY OFFICE, GREAT LAKES, ILLINOIS, ISSUED INVITATION FOR BIDS (IFB) NO. N00126-73-B-0155. THE IFB SOLICITED BIDS FOR THE FURNISHING OF A MINIMUM OF 116 AND AN ESTIMATED MAXIMUM OF 396 SIGNAL GENERATORS ON A "BRAND NAME OR EQUAL" BASIS. THE BRAND NAME ITEM WAS IDENTIFIED AS LOGIMETRICS, INCORPORATED, MODEL 750, AND THE SOLICITATION SPECIFIED THE MINIMUM ACCEPTABLE SALIENT PHYSICAL AND FUNCTIONAL CHARACTERISTICS FOR A PORTABLE SIGNAL GENERATOR.

BIDDERS PROPOSING TO FURNISH AN EQUAL PRODUCT WERE CAUTIONED TO READ AND COMPLY WITH THE BRAND NAME OR EQUAL CLAUSE INSERTED IN THE IFB PURSUANT TO PARAGRAPH 1-1206.3 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). THE CLAUSE INFORMED BIDDERS, IN PART, THAT THE GOVERNMENT WOULD DETERMINE THE EQUALITY OF THE PRODUCT OFFERED ON THE BASIS OF THE INFORMATION FURNISHED BY THE BIDDER, IDENTIFIED IN THE BID, OR OTHERWISE REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY.

OF THE FIVE BIDS RECEIVED AT BID OPENING, THE LOWEST WAS FROM SEG ELECTRONICS CORPORATION (SEG), OFFERING THE BIDDER'S OWN FM 2080 SIGNAL GENERATOR AS A PRODUCT EQUAL TO THE REFERENCED BRAND NAME. BOONTON ELECTRONICS CORPORATION (BOONTON), THE THIRD LOWEST BIDDER, PROTESTED TO THE NAVY THAT THE BIDS SUBMITTED BY SEG AND AUL INSTRUMENTS, INCORPORATED (AUL), THE SECOND LOWEST BIDDER, WERE NONRESPONSIVE TO THE REQUIREMENTS OF THE IFB. THEREAFTER, NAVY DETERMINED THAT SEG'S EQUIPMENT DID NOT MEET SPECIFICATIONS, REJECTED SEG'S BID AS NONRESPONSIVE, AND AWARDED THE CONTRACT TO AUL.

SEG CONTENDS THAT IT SUBMITTED THE LOW RESPONSIVE BID AND THE ESSENTIAL POINTS IT RAISES ARE AS FOLLOWS:

"(A) WHETHER THE REQUIREMENT FOR DESCRIPTIVE DATA (AND BRAND NAME OR EQUAL TECHNIQUE) AS SET FORTH IN THE SOLICITATION IS IN ACCORDANCE WITH THE STANDARD FOR SUCH REQUIREMENTS ESTABLISHED BY THE REGULATIONS AND THE DECISIONS OF (THIS) OFFICE; (B) WHETHER THE EVALUATION OF THE DATA SUBMITTED AND THE DETERMINATION THAT PROTESTANT WAS TECHNICALLY NONRESPONSIVE WAS ARBITRARY AND CAPRICIOUS; (C) WHETHER THE ACTION OF THE AGENCY SURROUNDING THE REJECTION OF PROTESTANT'S BID AND THE IMMEDIATE AWARD TO THE NEXT HIGHEST BIDDER WERE CARRIED OUT IN AN ATMOSPHERE OF PROPER DUE PROCESS NOTICE PERMITTING RESORT TO THE AVAILABLE AND MEANINGFUL REMEDIES."

SUBSEQUENTLY, UPON LEARNING OF THE PROTEST FILED BY SEG, BOONTON REQUESTED THAT THE GROUNDS FOR ITS PROTEST, WHICH WERE REJECTED BY THE NAVY, BE REVIEWED IN CONNECTION WITH OUR CONSIDERATION OF SEG'S PROTEST. BOONTON CONTENDS, IN PART, THAT THE GOVERNMENT SHOULD NOT HAVE DETERMINED FROM THE DATA SUBMITTED WITH THE SECOND LOW BID THAT THE PRODUCT OFFERED WAS ACCEPTABLE SINCE THE SUBMITTED DATA MERELY REITERATES THE FUNCTIONAL AND PHYSICAL CHARACTERISTICS LISTED BY THE GOVERNMENT AS SALIENT CHARACTERISTICS.

INITIALLY WE NOTE THAT BOONTON'S PROTEST WAS NOT FILED HERE WITHIN FIVE WORKING DAYS AFTER NOTIFICATION OF ADVERSE AGENCY ACTION AND THEREFORE IT IS UNTIMELY.

IT ALSO APPEARS THAT SEG'S OBJECTION TO THE REQUIREMENT FOR DESCRIPTIVE DATA IS UNTIMELY SINCE IT SHOULD HAVE BEEN RAISED PRIOR TO BIDDING. 4 CFR 20.2(A). NEVERTHELESS, WE BELIEVE THAT THESE ISSUES NEED TO BE CONSIDERED IN CONNECTION WITH THE TIMELY QUESTIONS RAISED BY SEG.

THE STANDARD CLAUSE USED IN BRAND NAME OR EQUAL PROCUREMENTS REQUIRES THE SUBMISSION OF DESCRIPTIVE MATERIAL SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER INFORMATION. IN THIS TYPE OF PROCUREMENT THE CONTRACTOR IS EITHER COMMITTED TO FURNISH THE BRAND NAME PRODUCT OR IS COMMITTED TO FURNISH THE MODEL IDENTIFIED IN ITS BID. THEREFORE, THE GOVERNMENT MUST REVIEW THE INFORMATION SUBMITTED WITH THE BID, OR INFORMATION OTHERWISE AVAILABLE PRIOR TO BID OPENING, TO DETERMINE THE ACCEPTABILITY OF A PROPOSED EQUAL PRODUCT. THE USE OF THE BRAND NAME OR EQUAL TECHNIQUE IS IN ITSELF SUFFICIENT JUSTIFICATION FOR REQUIRING DESCRIPTIVE LITERATURE (ASPR 2-202.5(D)(3)) SINCE IT IS THE GOVERNMENT'S RESPONSIBILITY TO DETERMINE THE ACCEPTABILITY OF THE EQUAL PRODUCT AND SINCE THE AWARD DOCUMENTS MUST IDENTIFY THE SPECIFIC PRODUCT WHICH THE CONTRACTOR IS TO FURNISH. ASPR 1-1206.4.

WE HAVE REVIEWED THE MATERIAL SUBMITTED WITH AUL'S ACCEPTED BID AND IT IS APPARENT THAT, WITH THE EXCEPTION OF AN ILLUSTRATION OF ITS INSTRUMENT'S FRONT PANEL, THE MATERIAL IS DESCRIPTIVE MERELY OF AN ACCEPTABLE LEVEL OF PERFORMANCE IN EACH OF THE FUNCTIONAL OR PHYSICAL AREAS SPECIFIED IN THE GOVERNMENT'S PURCHASE DESCRIPTION. THE NAVY APPEARS TO HAVE BEEN SATISFIED WITH THE DATA FURNISHED BY AUL ALTHOUGH UNDER THE TERMS OF THE IFB BRAND NAME OR EQUAL CLAUSE, THE NAVY COULD HAVE SOUGHT ADDITIONAL INFORMATION AFTER BID OPENING. WHILE IT IS URGED THAT DATA WHICH MERELY REPEATS THE SALIENT CHARACTERISTICS IS INSUFFICIENT TO SUPPORT SELECTION OF AN "OR EQUAL" ITEM, A CAREFUL READING OF THE CLAUSE DOES NOT REVEAL ANY GREATER REQUIREMENT EXCEPT WHERE A PRODUCT IS TO BE MODIFIED TO MAKE IT CONFORM TO THE SPECIFICATION. WE DO NOT UNDERSTAND THAT TO BE THE CASE HERE. THE BID APPEARS TO CONSTITUTE AN UNQUALIFIED OFFER TO PROVIDE AN ITEM MEETING THE SPECIFICATIONS AND IN PARTICULAR TO MEET OR EXCEED EACH OF THE LISTED SALIENT CHARACTERISTICS. WE FIND NO BASIS, THEREFORE, TO DISPUTE THE NAVY DETERMINATION. ON THE OTHER HAND, WE BELIEVE THE NAVY WAS REQUIRED TO REJECT ANY BID ON AN "OR EQUAL" ITEM WHICH DID NOT CLEARLY MEET THAT STANDARD.

THE NAVY INSISTS THAT THE DESCRIPTIVE MATERIAL SUBMITTED WITH SEG'S BID WAS INSUFFICIENT TO SHOW COMPLIANCE WITH CERTAIN SALIENT CHARACTERISTICS OF THE PURCHASE DESCRIPTION. FOR THE PURPOSE OF THIS DECISION, WE NEED ONLY DISCUSS THE REQUIREMENT STATED IN PARAGRAPH 3.5.4.1.1.4 OF THE NAVY'S SPECIFICATION. THE REFERENCED PARAGRAPH PROVIDED THAT "EXTERNAL SIGNALS IN THE FREQUENCY RANGE OF DC TO 10.0 KHZ, HAVING A NOMINAL AMPLITUDE FROM 3 V RMS TO 10 V RMS INTO 600 OHMS, SHALL PRODUCE A FREQUENCY DEVIATION OF NOT LESS THAN 25 KHZ."

IN ITS PROTEST TO THIS OFFICE, SEG CONTENDS THAT ITS DESCRIPTIVE DATA COMPLETELY SETS FORTH UNDER THE HEADING "FREQUENCY MODULATION" THAT THE PROPOSED EQUIPMENT WILL FULLY MEET THE SPECIFIED MINIMUM FREQUENCY DEVIATION. HOWEVER, SEG CONCEDES THAT ITS DATA "*** DOES NOT SPECIFY THE ENTIRE RANGE FROM 3 V RMS TO 10 V RMS FOR THE SIMPLE REASON THAT MINIMUM DEVIATION OF 25 KHZ MUST NECESSARILY BE ACHIEVED AT HIGHER V RMS LEVELS BY EQUIPMENT WHICH IS SPECIFIED TO ACHIEVE THE MINIMUM LEVEL AT THE MINIMUM AMPLITUDE OF 3 V RMS," BUT IT POINTS OUT THAT ITS SPECIFICATION IS IDENTICAL TO THAT SET FORTH IN THE BRAND NAME MANUFACTURER'S DATA SHEET.

THE DESCRIPTIVE DATA SUBMITTED WITH SEG'S BID AND ITS ARGUMENTS IN THIS CONNECTION HAVE BEEN REVIEWED BY OUR TECHNICAL STAFF. WE UNDERSTAND THAT IT IS NOT ALWAYS TRUE THAT A MINIMUM DEVIATION OF 25 KHZ WILL BE ACHIEVED AT HIGHER V RMS LEVELS BY EQUIPMENT WHICH IS SPECIFIED TO ACHIEVE THE MINIMUM DEVIATION AT THE AMPLITUDE OF 3 V RMS WHERE DISTORTION OF MODULATED SIGNALS MUST BE KEPT WITHIN THE TOLERANCE OF "LESS THAN 3.0 PERCENT FROM 0 TO 25 KHZ" AS CITED IN NAVY'S SPECIFICATION PARAGRAPH 3.5.4.1.1.2. APPARENTLY, THE DESIGN AND COMPONENT TOLERANCES (VOLTAGE AND CURRENT) OF MODULATION CIRCUITRY ON THE SIGNAL GENERATOR MUST INSURE THAT SIGNALS FROM 3 V RMS TO 10 V RMS WILL NOT CAUSE DISTORTION OF THE MODULATED SIGNAL FROM THE FM SIGNAL GENERATOR. THE NAVY REQUIREMENT TO HANDLE 3 V RMS TO 10 V RMS SIGNALS WITH LESS THAN 3.0 PERCENT DISTORTION IS DESIGNED TO INSURE THIS. ACCORDINGLY, WE HAVE CONCLUDED THAT WHILE THE NAVY'S SPECIFICATIONS WERE ESTABLISHED TO GUARANTY A SPECIFIC LEVEL OF PERFORMANCE, THE LITERATURE SUBMITTED BY SEG IS INCOMPLETE AND DOES NOT GUARANTY THE REQUIRED PERFORMANCE LEVEL. IN FACT, THE ILLUSTRATION SUBMITTED BY SEG FOR OUR REVIEW TO ILLUSTRATE COMPLIANCE WITH THE ABOVE CITED SPECIFICATION WAS DRAWN AFTER THE BID OPENING DATE.

WHERE, AS HERE, THE GOVERNMENT HAS THE BURDEN OF DETERMINING THE EQUALITY OF A PARTICULAR ITEM OFFERED (AS OPPOSED TO THE TYPICAL CASE WHERE SUBMISSION OF AN UNQUALIFIED BID IS A SUFFICIENT COMMITMENT TO MEET THE GOVERNMENT'S SPECIFIED REQUIREMENTS), A BID MUST BE REJECTED AS AMBIGUOUS IF EITHER IT OR OTHER DATA AVAILABLE TO THE GOVERNMENT PRIOR TO BID OPENING DOES NOT EXPRESSLY SHOW COMPLIANCE WITH THE GOVERNMENT'S STATED REQUIREMENTS. 50 COMP. GEN. 8 (1970). HERE THE GOVERNMENT COULD ONLY REQUIRE SEG TO FURNISH ITS MODEL FM 2080 SIGNAL GENERATOR. SINCE A MORE DETAILED STATEMENT INDICATING COMPLIANCE WITH THE MINIMUM DEVIATION REQUIREMENT FOR THE ENTIRE 3 V RMS TO 10 V RMS RANGE APPARENTLY DID NOT EXIST PRIOR TO BID OPENING AND WAS NOT REASONABLY AVAILABLE FOR EVALUATION BY THE PROCURING ACTIVITY, THE BID WAS REQUIRED TO BE REJECTED. WHILE SEG ALLEGES THAT THE BRAND NAME MANUFACTURER'S COMMERCIAL LITERATURE IS IDENTICAL TO SEG'S, WE NOTE THAT AWARD WAS MADE TO OTHER THAN THE BRAND NAME MANUFACTURER AND THAT ADDITIONAL INFORMATION REGARDING THE BRAND NAME PRODUCT MAY HAVE BEEN AVAILABLE TO THE AGENCY.

AUL'S DATA, ON THE OTHER HAND, AT LEAST SHOWED THAT IT INTENDED TO FURNISH A PRODUCT WHICH WOULD MEET THE SALIENT CHARACTERISTICS OF THE PURCHASE DESCRIPTION. THEREFORE, WE FIND NO VALID BASIS FOR DISTURBING THE AWARD MADE TO THAT FIRM.

FINALLY, SEG ALLEGES THAT THE PROCURING AGENCY'S ACTION SURROUNDING THE REJECTION OF ITS BID AND THE IMMEDIATE AWARD TO THE NEXT HIGHEST BIDDER WAS NOT CARRIED OUT IN AN ATMOSPHERE OF DUE PROCESS AFFORDING THE PROTESTER AN OPPORTUNITY TO RESORT TO THE AVAILABLE REMEDIES. IN ESSENCE, SEG ALLEGES THAT IT WAS DEPRIVED OF THE OPPORTUNITY TO PROTEST PRIOR TO AWARD AS A RESULT OF NOT BEING INFORMED, WHILE MEETING WITH THE PROCURING ACTIVITY ON SEPTEMBER 19, 1973, THAT ITS BID HAD BEEN REJECTED AND THAT NAVY INTENDED TO AWARD THE CONTRACT TO THE NEXT HIGHEST BIDDER. SEG CONTENDS THAT HAD IT BEEN GIVEN SUCH INFORMATION, A PROMPT PROTEST COULD HAVE BEEN LODGED BEFORE AWARD, INVOKING THE PROVISIONS OF ASPR 2- 407.8(B)(3).

IN THIS REGARD, IT IS OUR POSITION THAT NAVY COMPLIED WITH ASPR 2 408.1, WHICH REQUIRES PROMPT NOTIFICATION TO UNSUCCESSFUL BIDDERS THAT THEIR BIDS HAVE NOT BEEN ACCEPTED. ALSO, THE CONTRACTING OFFICER IS REQUIRED TO STATE THE REASONS FOR REJECTION IN THE NOTICE TO EACH UNSUCCESSFUL LOW BIDDER. NAVY COMPLIED WITH THIS REQUIREMENT WHEN IT FORWARDED, ON SEPTEMBER 18, 1973, A LETTER TO SEG STATING THAT THE AWARD HAD BEEN MADE TO AUL AND WHY ITS BID WAS DETERMINED NONRESPONSIVE. CONCERNING SEG'S STATEMENT THAT NAVY'S FAILURE TO ADVISE IT IN ADVANCE THAT AN AWARD WOULD BE MADE TO A HIGHER BIDDER WAS IMPROPER SINCE IT WAS PRECLUDED FROM ENTERING A PROTEST BEFORE AWARD, IT MAY BE STATED THAT THERE IS NO REQUIREMENT IN THE REGULATION THAT SUCH ADVANCE NOTICE BE GIVEN. SEE B- 167142, JULY 23, 1969; 53 COMP. GEN. , B-179835, JANUARY 29, 1974.