B-192549, APRIL 6, 1979

B-192549, APRIL 6, 1979

DIGEST: 1. PROTESTER WAS ORALLY INFORMED BY AGENCY OFFICIALS THAT WRITTEN AMENDMENT WOULD BE ISSUED TO BRAND NAME ONLY SOLICITATION PERMITTING ACCEPTANCE OF PROTESTER'S "EQUAL" PRODUCT AFTER PROPOSALS WERE SUBMITTED AND IF PROTESTER'S PRODUCT PASSED TECHNICAL EVALUATION. THEREFORE, PROTEST FILED WITHIN 10 WORKING DAYS AFTER NOTICE OF AGENCY REJECTION OF PROTESTER'S PROPOSAL IS TIMELY. 2. ISSUANCE OF SOLICITATION SPECIFYING ONLY BRAND NAME ITEM DOES NOT PRECLUDE AWARD TO COMPANY OFFERING AN EQUIVALENT PRODUCT. HOWEVER, DETERMINATION OF WHETHER EQUIVALENT PRODUCT WILL SATISFY GOVERNMENT'S ESSENTIAL NEEDS IS PRIMARILY WITHIN DISCRETION OF PROCURING AGENCY OFFICIALS AND WILL NOT BE QUESTIONED WHERE NOT SHOWN TO BE UNREASONABLE. 3. SINCE AGENCY'S REPORT INDICATES THAT PROTESTER'S "EQUAL" PRODUCT SUBMITTED UNDER BRAND NAME ONLY SOLICITATION DID NOT MEET ITS ESSENTIAL NEEDS, AWARD TO ANOTHER FIRM OFFERING BRAND NAME PRODUCT WILL NOT BE QUESTIONED.

FEDERAL DATA CORPORATION:

FEDERAL DATA CORPORATION (FDC) PROTESTS THE REJECTION OF ITS PROPOSAL UNDER REQUEST FOR PROPOSALS (RFP) NO. GSC-CDPR-C-00006N ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA) FOR BRAND NAME AUTOMATIC DATA PROCESSING EQUIPMENT (ADPE) UNDER ITS MASTER TERMS AND CONDITIONS PROGRAM (MTC). MTC IS EMPLOYED BY GSA TO OBTAIN, BY NEGOTIATIONS, COMPETITIVE PRICES WHEN ACQUIRING BRAND NAME ADPE REQUIRED BY A FEDERAL AGENCY. SOURCES IN ADDITION TO THE ORIGINAL EQUIPMENT MANUFACTURER (OEM) ARE SOLICITED AND ARE REQUIRED TO AGREE IN ADVANCE TO THE TERMS AND CONDITIONS OF MTC.

THE PROCUREMENT IN QUESTION WAS FOR THE ACQUISITION OF ONE UNIVAC 1106 OR ONE UNIVAC 1100/10 PROCESSOR AND PERIPHERAL DEVICES TO BE USED BY THE SOCIAL SECURITY ADMINISTRATION (SSA), BALTIMORE, MARYLAND, TO AUGMENT EXISTING EQUIPMENT FOR THE ADMINISTRATIVE, STATISTICAL, AND MANAGEMENT INFORMATION REQUIREMENTS OF THAT AGENCY. SHORTLY AFTER THE SOLICITATION WAS ISSUED, THE VICE PRESIDENT OF FDC, IN TELEPHONE CONVERSATIONS WITH THE CONTRACTING OFFICER AND THE SSA TECHNICAL REPRESENTATIVE, REQUESTED THAT THE AGENCY MODIFY THE SOLICITATION TO ALLOW FDC TO OFFER A UNIVAC 1108 WITH AN EXTEND MEMORY FEATURE, A RECENTLY INTRODUCED AND MORE POWERFUL MODEL THAN THE ADPE SOLICITED. THE CONTRACTING OFFICER AND THE SSA TECHNICAL REPRESENTATIVE ORALLY ADVISED FDC TO OFFER THE UNIVAC 1108. AGENCY REPRESENTATIVES FURTHER STATED THAT IF FDC'S PROPOSAL WAS DETERMINED TO BE IN THE COMPETITIVE RANGE, AND IF ITS EQUIPMENT WAS FOUND TECHNICALLY ACCEPTABLE IN BENCHMARK TESTS, AN AMENDMENT WOULD BE ISSUED AFTER THE COMPETITIVE RANGE DETERMINATION MODIFYING THE SOLICITATION.

AFTER EVALUATION OF ALL PROPOSALS RECEIVED, FDC'S PROPOSAL WAS ULTIMATELY REJECTED BY GSA BECAUSE FDC HAD NOT OFFERED THE EQUIPMENT SPECIFIED IN THE SOLICITATION. THE SOLICITATION DID NOT PERMIT AN OFFER ON A BRAND NAME OR EQUAL BASIS. AN AWARD WAS THEREAFTER MADE TO A FIRM WHICH HAD OFFERED THE SPECIFIED EQUIPMENT.

FDC PROTESTS THE REJECTION OF ITS ALLEGEDLY LOW PROPOSAL, CITING THE ORAL AGREEMENT THAT ITS OFFER WOULD BE CONSIDERED ON AN "OR EQUAL" BASIS, EVEN THOUGH THE SOLICITATION HAD NOT SO PROVIDED. FURTHER, FDC ALLEGES THAT ITS UNIVAC 1108 IS IN FACT FUNCTIONALLY EQUAL TO THE SPECIFIED BRAND NAME.

GSA ARGUES THAT FDC'S PROTEST IS UNTIMELY SINCE IT WAS NOT FILED PRIOR TO THE CLOSING DATE FOR THE SUBMISSION OF PROPOSALS ESTABLISHED BY A SUBSEQUENT AMENDMENT TO THE SOLICITATION. THE AGENCY STATES THAT SINCE THAT AMENDMENT DID NOT PROVIDE FOR THE SUBMISSION OF A UNIVAC 1108, FDC WAS ON NOTICE THAT ITS OFFER OF THAT ITEM WOULD NOT BE ACCEPTABLE AND ACCORDING TO OUR BID PROTEST PROCEDURES WAS OBLIGATED TO PROTEST BEFORE FINAL OFFERS WERE DUE.

IT IS NOT DISPUTED THAT FDC WAS TOLD THAT ITS OFFER WOULD BE CONSIDERED IN THE TECHNICAL EVALUATION PROCESS AND, IF SUCCESSFUL, A WRITTEN AMENDMENT OF THE SOLICITATION ISSUED PERMITTING AWARD TO IT. FDC WAS NOT TOLD THAT A WRITTEN AMENDMENT WOULD BE ISSUED BEFORE THE SUBMISSION OF BEST AND FINAL OFFERS. THEREFORE FDC WAS NOT ON NOTICE OF THE AGENCY'S ALLEGED "BREACH" OF ITS ORAL AGREEMENT UNTIL THE PROTESTER WAS INFORMED OF THE AGENCY'S REJECTION OF ITS PROPOSAL. SINCE THE PROTEST WAS FILED WITHIN 10 WORKING DAYS AFTER FDC WAS SO INFORMED, THE PROTEST IS TIMELY AND WILL BE CONSIDERED. 4 C.F.R. 20.2(B)(2) (1978).

WE HAVE CONSISTENTLY HELD THAT THE ISSUANCE OF A SOLICITATION SPECIFYING ONLY A PARTICULAR BRAND NAME ITEM DOES NOT PRECLUDE AWARD TO A COMPANY OFFERING AN EQUIVALENT PRODUCT. HOFFMAN ELECTRONICS CORPORATION, 54 COMP.GEN. 1107 (1975), 75-1 CPD 395; B-176861, JANUARY 24, 1973; 52 COMP.GEN. 546 (1973); 48 ID. 605 (1969); 47 ID. 778 (1968). HOWEVER, THE DETERMINATION OF WHAT WILL SATISFY THE GOVERNMENT'S NEEDS, PARTICULARLY WHEN SERVICES OR EQUIPMENT OF A HIGHLY TECHNICAL NATURE ARE BEING PROCURED, IS PRIMARILY WITHIN THE DISCRETION OF PROCURING AGENCY OFFICIALS AND WILL NOT BE QUESTIONED IN THE ABSENCE OF A CLEAR SHOWING THAT THE DETERMINATION IS UNREASONABLE. NATIONAL STENOMASK VERBATIM REPORTERS ASSOCIATION, B-183837, AUGUST 5, 1975, 75-2 CPD 84; DIGITAL EQUIPMENT CORPORATION, B-181336, SEPTEMBER 13, 1974, 74-2 CPD 167. THE FACT THAT THERE MAY BE DIFFERENCES OF OPINION AS TO WHETHER A PARTICULAR PRODUCT OR TECHNICAL APPROACH WILL SATISFY THE AGENCY'S NEEDS DOES NOT ESTABLISH THE UNREASONABLENESS OF THE AGENCY'S POSITION. STRUTHERS ELECTRONICS CORPORATION, B-186002, SEPTEMBER 10, 1976, 76-2 CPD 231; HONEYWELL, INC., B-181170, AUGUST 8, 1974, 74-2 CPD 87.

IN THIS CASE, SSA STATES THAT PRIOR TO THE SOLICITATION, IT DETERMINED AFTER EXTENSIVE INTERNAL STUDIES THAT ONLY THE UNIVAC 1106 LINE AND THE UNIVAC 1100 LINE COULD MEET ITS REQUIREMENTS, ESPECIALLY IN THE AREA OF ASSURED RELIABILITY AND MAINTAINABILITY ALONG WITH SYSTEM COMPATIBILITY. SSA FURTHER STATES THAT THE UNIVAC 1108 EXTEND FEATURE OFFERED BY FDC REQUIRES MODIFICATION TO THE USER'S MAIN FRAME AND HAS NO ESTABLISHED HISTORY OF RELIABILITY. THE AGENCY EXPLAINS THAT ITS TECHNICAL REPRESENTATIVE MISTAKENLY CONCURRED IN ADVISING FDC THAT ITS OFFER WOULD BE CONSIDERED SINCE HE WAS UNINFORMED AND UNFAMILIAR WITH THE AGENCY'S INTERNAL STUDIES OF ITS ESSENTIAL TECHNICAL REQUIREMENTS. (THE TECHNICAL SPECIALIST WHO HAD BEEN ORIGINALLY INVOLVED IN THE TECHNICAL PLANNING PRELIMINARY TO THE INSTANT PROCUREMENT DIED SUDDENLY AND THE NEW TECHNICAL REPRESENTATIVE DID NOT HAVE THE BACKGROUND FAMILIARITY WITH THE PROCUREMENT.)

IN EFFECT, IT APPEARS THAT SSA, AFTER SUBMISSION OF FDC'S PROPOSAL, DETERMINED THAT FDC'S OFFERED EQUIPMENT COULD NOT SATISFY ITS ESSENTIAL REQUIREMENTS BECAUSE OF THE RELIABILITY REQUIREMENTS, AND THUS DID NOT FURTHER CONSIDER THE PROPOSAL. THE RECORD DOES NOT ESTABLISH THAT THE AGENCY'S POSITION IS UNREASONABLE.

ACCORDINGLY, THE PROTEST IS DENIED.