B-181537, AUG 30, 1974

B-181537, AUG 30, 1974

1. BID WHICH OFFERED BRAND NAME PRODUCT THAT NEVERTHELESS DID NOT MEET REQUIREMENTS OF SALIENT CHARACTERISTICS LISTED IN BRAND NAME OR EQUAL SOLICITATION WAS PROPERLY REJECTED AS NONRESPONSIVE, SINCE PURCHASE DESCRIPTION STATED THAT SPECIFIED BRAND NAME PRODUCTS OR EQUAL PRODUCTS MUST BE IN ACCORDANCE WITH THE SALIENT FEATURES AND AGENCY CONFIRMED THIS REQUIREMENT PRIOR TO BID SUBMISSION. 2. ALTHOUGH PROTEST IS DENIED, RECORD DOES NOT CONTAIN CLEAR JUSTIFICATION FOR ARMY'S INSISTENCE THAT ITS MINUMUM NEEDS REQUIRED A 10 HP MOTOR WITH PROTESTER'S BRAND NAME PRODUCT, AND COMPTROLLER GENERAL BELIEVES MORE ADEQUATE JUSTIFICATION SHOULD BE REQUIRED IN FUTURE PROCUREMENTS.

GENERAL HYDRAULICS CORPORATION:

INVITATION FOR BIDS (IFB) NO. DABT39 74-B-0137, ISSUED BY THE DEPARTMENT OF THE ARMY AT FORT SILL, OKLAHOMA, SOLICITED BIDS ON A BRAND NAME OR EQUAL BASIS FOR ONE SALVAGE PAPERBOARD BALER. GENERAL HYDRAULICS CORPORATION SUBMITTED A BID ON ITS MODEL 315-60, ONE OF THE SPECIFIED BRAND NAME PRODUCTS. HOWEVER, ITS LOW BID WAS REJECTED AS NONRESPONSIVE BECAUSE ITS STANDARD MODEL 315-60 DID NOT HAVE A 10 HP MOTOR AS REQUIRED BY THE SPECIFICATION/SALIENT FEATURES LISTED IN SECTION F OF THE IFB.

IN ITS PROTEST, GENERAL HYDRAULICS ASSERTS THAT ITS BID MUST BE REGARDED AS RESPONSIVE BECAUSE IT OFFERED TO FURNISH A SPECIFIED BRAND NAME PRODUCT. IT VIEWS THE SALIENT CHARACTERISTIC REQUIREMENT OF A 10 HP MOTOR AS APPLICABLE TO THE OTHER BRAND NAME BALERS IDENTIFIED IN THE IFB, WHICH IN FACT ARE BUILT WITH 10 HP MOTORS, BUT NOT TO ITS MODEL 315-60, WHICH COMES WITH A 7 1/2 HP MOTOR AND WHICH, ACCORDING TO THE PROTESTER, CANNOT ACCOMMODATE AND DOES NOT REQUIRE A 10 HP MOTOR. GENERAL HYDRAULICS FURTHER CONTENDS THAT IT WAS THE DUTY OF THE PROCURING AGENCY TO ASSURE THAT SPECIFIED SALIENT FEATURES "ARE COMPATIBLE TO ALL BRAND NAMES OR THAT THEY ARE AT LEAST POSSIBLE TO OBTAIN BY MODIFICATIONS TO THE EQUIPMENT BY THE MANUFACTURER." THUS, GENERAL HYDRAULICS ASSERTS, THE ARMY SHOULD HAVE EITHER DELETED THE 10 HP MOTOR REQUIREMENT WITH RESPECT TO MODEL 315-60 OR ELSE SPECIFIED ITS MODEL 315-72, WHICH IS EQUIPPED WITH A 10 HP MOTOR.

WHEN A BRAND NAME OR EQUAL PURCHASE DESCRIPTION IS USED, THE SOLICITATION IS REQUIRED TO INCLUDE A LISTING OF SALIENT CHARACTERISTICS OF THE BRAND NAME PRODUCTS TO INDICATE THE ESSENTIAL, MATERIAL NEEDS OF THE PROCURING ACTIVITY. ASPR 1.1206-2. THE FAILURE OF AN OFFERED PRODUCT TO CONFORM TO THE SALIENT CHARACTERISTICS RENDERS A BID NONRESPONSIBE. 49 COMP. GEN. 195 (1969); 50 ID. 193 (1970). HOWEVER, A RELATIVELY UNUSUAL SITUATION IS PRESENTED WHEN THERE IS A CONFLICT BETWEEN A DESIGNATED BRAND NAME AND THE STATED SALIENT CHARACTERISTICS. WE HAVE HELD THAT A BRAND NAME SUPPLIER COULD REASONABLY CONCLUDE, ON THE BASIS OF THE BRAND NAME DESIGNATION, THAT ITS PRODUCT WOULD BE ACCEPTABLE NOTWITHSTANDING THE SPECIFIED SALIENT CHARACTERISTICS, AND THAT ORDINARILY THIS TYPE OF AMBIGUITY WOULD REQUIRE REJECTION OF ALL BIDS AND READVERTISEMENT. 53 COMP. GEN. (B 179744, FEBRUARY 13, 1974). ON THE OTHER HAND, WE DO NOT AGREE WITH THE PROTESTER THAT A CONTRACTING AGENCY IS LIMITED TO SPECIFYING ONLY THE SALIENT CHARACTERISTICS OF A BRAND NAME PRODUCT DESIGNATED IN A SOLICITATION, SINCE AN AGENCY MAY DETERMINE THAT ITS NEEDS REQUIRE IT TO GO BEYOND THE MAKE AND MODEL OF A BRAND NAME AND SPECIFY SOME PARTICULAR DESIGN FEATURES WHICH ARE THEN PRESUMED TO BE ESSENTIAL NEEDS OF THE AGENCY. SEE, E.G., 49 COMP. GEN. 195, SUPRA. THUS, WHILE BIDS WHICH ARE EVALUATED FOR ADHERENCE TO THE SPECIFIED SALIENT FEATURES ARE NORMALLY THOSE WHICH OFFER A PRODUCT EQUAL TO THE BRAND NAME PRODUCT, WE HAVE ALSO RECOGNIZED THAT BIDS OFFERING BRAND NAME PRODUCTS MUST ALSO CONFORM TO THE LISTED SALIENT CHARACTERISTICS TO BE REGARDED AS RESPONSIVE. B-172232, AUGUST 2, 1971; B -166731, AUGUST 14, 1969. HERE, THE PURCHASE DESCRIPTION, AFTER IDENTIFYING THREE BRAND NAME PRODUCTS, CONTAINED THE WORDS "OR EQUAL, AND IN ACCORDANCE WITH SPECIFICATIONS IN SECTION F." FURHERMORE, THE RECORD INDICATES THAT THE PROTESTER CHECKED WITH THE CONTRACTING OFFICER BEFORE BID SUBMISSION AND WAS TOLD THAT THE SALIENT CHARACTERISTICS WERE REQUIREMENTS FOR ALL DESIGNATED BRAND NAME PRODUCTS. THEREFORE, WE THINK IT WAS CLEAR BOTH FROM THE SOLICITATION AND FROM THE INFORMATION OBTAINED FROM THE ARMY THAT ANY OFFERED BRAND NAME PRODUCT WOULD HAVE TO MEET THE REQUIREMENTS OF SECTION F. NEVERTHELESS, GENERAL HYDRAULICS DID NOT PROTEST THE ARMY'S DECISION AT THAT TIME, NOR DID IT SUBMIT ITS MODEL 315- 72 WHICH APPARENTLY WOULD HAVE MET ALL SALIENT CHARACTERISTICS. INSTEAD, IT SUBMITTED A BID ON ITS MODEL 315-60 AND PROTESTED ONLY AFTER THE BID WAS REJECTED. UNDER THESE CIRCUMSTANCES, WE MUST CONCLUDE THAT GENERAL HYDRAULICS WAS NOT MISLED BY THE SOLICITATION WITH RESPECT TO THE ACCEPTABILITY OF ITS STANDARD MODEL 315-60, AND THAT THE CONTRACTING OFFICER ACTED PROPERLY IN REJECTING THE GENERAL HYDRAULICS' BID AS NONRESPONSIVE.

HOWEVER, WE NOTE FROM THE RECORD THAT GENERAL HYDRAULICS, AFTER BID OPENING, INFORMED THE CONTRACTING OFFICER THAT ITS SINGLE CYLINDER DESIGN PERMITS THE USE OF A 7 1/2 HP MOTOR "TO ACHIEVE THE SAME RESULTS AND CAPACITY" AS ITS COMPETITOR'S DUAL CYLINDER DESIGN WHICH REQUIRES A MORE POWERFUL MOTOR. WE FURTHER NOTE THAT, IN THE RECORD BEFORE US, THE ONLY JUSTIFICATION FOR THE ARMY'S INSISTENCE ON SPECIFYING A 10 HP MOTOR IS THE CLAIM THAT "HEAVY DUTY EQUIPMENT" IS REQUIRED AND THE STATEMENT THAT GENERAL HYDRAULICS HAD 10 HP MOTORS AVAILABLE AND "COULD INSTALL ONE *** IF THEY ARE INTERESTED IN COMPETING FOR THE CONTRACT." THIS OBVIOUSLY DOES NOT ESTABLISH THAT THE 10 HP MOTOR WAS REQUIRED WITH THE MODEL 315- 60, IF THE PROTESTER'S ASSERTIONS ABOUT ITS DESIGN ARE CORRECT. THEREFORE, WE BELIEVE THAT MORE ADEQUATE JUSTIFICATION FOR REQUIRING A 10 HP MOTOR WITH THE 315-60 SHOULD BE REQUIRED IN ANY SUBSEQUENT PROCUREMENT FOR BALERS OF THIS TYPE.