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THE FOLLOWING LANGUAGE WAS USED ON PAGES 4 AND 5 OF THE INVITATION: "THE COMPARISON CALIBRATION ACCESSORIES. OR EQUAL" PRODUCT IS OFFERED. 195 EACH AND INDICATED THAT THE FEDERAL STOCK NUMBER WAS 6625- 473-8208. THE PROCURING ACTIVITY DISCOVERED AFTER BIDS WERE OPENED ON APRIL 3. IT WAS DETERMINED BY THE CONTRACTING OFFICER THAT THE INVITATION WAS AMBIGUOUS AND SHOULD BE CANCELED. DYNAMETRICS OFFERED A SATISFACTORY ITEM SINCE THE ITEM WITH FEDERAL STOCK NUMBER SPECIFIED WAS THE EXACT PRODUCT REQUIRED BY THE SPECIFICATIONS. THE AMBIGUITY CREATED BY THE BRAND NAME REQUIREMENT WAS NOT PREJUDICIAL TO ANY BIDDER. THE PROTEST OF CONSOLIDATED ELECTRODYNAMICS WAS ADMINISTRATIVELY ALLOWED AND THE INVITATION REINSTATED.

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B-145771, OCT. 17, 1961

TO THE SECRETARY OF THE AIR FORCE:

BY LETTER DATED AUGUST 18, 1961, WITH ENCLOSURES, THE MILITARY ASSISTANT TO THE DEPUTY FOR PROCUREMENT AND PRODUCTION REQUESTED OUR DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO THE PROTEST OF THE DYNAMETRICS CORPORATION AGAINST THE PROPOSED AWARD OF A CONTRACT TO CONSOLIDATED ELECTRODYNAMICS CORPORATION UNDER INVITATION FOR BIDS NO. 33-604-61-397, ISSUED ON MARCH 6, 1961, BY GENTILE AIR FORCE STATION, DAYTON, OHIO, FOR PRIMARY PRESSURE STANDARD CALIBRATION SYSTEMS, SPARE PARTS, AND TECHNICAL DATA. THE ASSISTANT FOR PROCUREMENT FURNISHED A SUPPLEMENTAL REPORT DATED SEPTEMBER 22, 1961, IN FURTHER CLARIFICATION OF THE INTENT OF THE DEPARTMENT RESPECTING THE ADVERTISED REQUIREMENTS.

THE INVITATION, AS AMENDED, REQUESTED BIDS UNDER ITEM 1 FOR 60EACH "PRIMARY PRESSURE STANDARD CALIBRATION SYSTEM.' IMMEDIATELY FOLLOWING THE ITEM DESIGNATION, THE INVITATION SET OUT SIX PERFORMANCE AND DESIGN SPECIFICATIONS. UNDER SPECIFICATION NO. 6 (C), THE FOLLOWING LANGUAGE WAS USED ON PAGES 4 AND 5 OF THE INVITATION:

"THE COMPARISON CALIBRATION ACCESSORIES; BLEEDER VALVE, CONNECTION TUBING, ETC., SHALL BE DESIGNED FOR MOUNTING ON AN 18 INCH SQUARE PLYWOOD PLATE, A TEMPLATE INDICATING OPTIMUM CALIBRATION ARRANGEMENT SHALL BE PROVIDED. CONSOLIDATED ELECTRO-DYNAMICS CORP. MODEL MR. 6-201 OR EQUAL. CEC BULLETIN 1581B/APRIL 1959. DYNAMETRICS CORP. MODEL NR. PPS-500 . . . OR EQUAL. DYNAMETRICS CORP.'TECHNICAL BULLETIN 150" ENTITLED PRIMARY PRESSURE STANDARD.

"BIDDING ON:

"MANUFACTURER'S NAME ------------ BRAND ----------- NO. --------"

THE INVITATION CONTAINED THE USUAL BRAND NAME OR EQUAL PROVISION REQUIRED BY SECTION 1-1206 (C) (2), ASPR, INCLUDING THE REQUIREMENT FOR THE TIMELY SUBMISSION OF DESCRIPTIVE LITERATURE WHEN AN ,OR EQUAL" PRODUCT IS OFFERED.

CONSOLIDATED ELECTRODYNAMICS SUBMITTED A BID OF $1,909 EACH OPPOSITE THE ITEM DESIGNATION ON PAGE 2 OF THE INVITATION. THAT BIDDER ALSO INDICATED THE SAME UNIT PRICE ON PAGE 5 OF THE INVITATION IN THE SPACE MARKED "BID "A," " AND INDICATED THEREON THAT THEY PROPOSED TO FURNISH THEIR "CEC NO. 6-201," A BRAND NAME SPECIFIED IN THE INVITATION AS INDICATED ABOVE. DYNAMETRICS OFFERED TO FURNISH THEIR BRAND NAME, DYNAMETRICS PPS-500, AT A PRICE OF $2,195 EACH AND INDICATED THAT THE FEDERAL STOCK NUMBER WAS 6625- 473-8208.

THE PROCURING ACTIVITY DISCOVERED AFTER BIDS WERE OPENED ON APRIL 3, 1961, THAT THE BRAND NAMES SPECIFIED IN THE INVITATION DID NOT CONTAIN ALL OF THE COMPONENTS REQUIRED BY THE TERMS OF THE INVITATION. ON THIS BASIS, IT WAS DETERMINED BY THE CONTRACTING OFFICER THAT THE INVITATION WAS AMBIGUOUS AND SHOULD BE CANCELED. CONSOLIDATED ELECTRODYNAMICS PROTESTED THIS ACTION ON THE GROUND THAT THEIR BID OFFERED THEIR BRAND NAME ITEM MODIFIED TO MEET THE REQUIREMENTS OF THE SPECIFICATIONS. THEREAFTER, THE DEPARTMENT, AFTER EXAMINING BOTH BIDS, DETERMINED THAT BOTH BIDDERS HAD, IN FACT, OFFERED THE SPECIFIED BRAND NAME ITEMS MODIFIED AS REQUIRED BY THE INVITATION. DYNAMETRICS OFFERED A SATISFACTORY ITEM SINCE THE ITEM WITH FEDERAL STOCK NUMBER SPECIFIED WAS THE EXACT PRODUCT REQUIRED BY THE SPECIFICATIONS. AND CONSOLIDATED ELECTRODYNAMICS OFFERED A SATISFACTORY ITEM AS INDICATED BY THEIR BID. SINCE BOTH BIDDERS OFFERED THE PRODUCT CALLED FOR, THE AMBIGUITY CREATED BY THE BRAND NAME REQUIREMENT WAS NOT PREJUDICIAL TO ANY BIDDER. THEREFORE, THE PROTEST OF CONSOLIDATED ELECTRODYNAMICS WAS ADMINISTRATIVELY ALLOWED AND THE INVITATION REINSTATED.

THE INVITATION CONTEMPLATED THE FURNISHING OF A COMPLETE ASSEMBLY CONSISTING EITHER OF THE CONSOLIDATED ELECTRODYNAMICS MODEL 6-201 OR THE DYNAMETRICS MODEL PPS-500, OR EQUAL, PLUS A NUMBER OF ACCESSORIES, ALL MOUNTED ON AN 18-INCH PLYWOOD BASE. IN OTHER WORDS, THERE WAS REQUIRED FROM RESPONSIVE BIDDERS A QUOTATION ON A PRIMARY PRESSURE STANDARD CALIBRATION SYSTEM CONSISTING OF THE UNIT SPECIFIED BY BRAND NAME OR EQUAL PLUS THE ACCESSORY COMPONENTS INCLUDED IN THE PURCHASE DESCRIPTION AS THE OTHER PART.

IT IS CLEAR THAT BOTH BIDDERS WERE RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION. ALSO, IT IS EVIDENT THAT, WHILE THE INVITATION COULD HAVE BEEN ISSUED IN MORE DEFINITE TERMS WITH RESPECT TO THE BRAND NAME REQUIREMENTS AND COMPONENTS, NEITHER BIDDER WAS MISLED OR OTHERWISE PREJUDICED. IN THIS CONNECTION, DYNAMETRICS HAS CONTENDED THAT THE GOVERNMENT WILL NOT RECEIVE THE EXACT EQUIPMENT WHICH IT DESIRES BECAUSE OF THE AMBIGUITY OF THE INVITATION AND THE RESPONSES RECEIVED THEREUNDER. HOWEVER, WE ARE ADVISED BY THE CIVILIAN DEPUTY DIRECTOR FOR PROCUREMENT AND PRODUCTION, GENTILE AIR FORCE STATION, THAT:

"THE BRAND NAME PRODUCTS PLUS THE COMPONENTS LISTED IN THE PURCHASE DESCRIPTION WILL MEET THE ADVERTISED REQUIREMENTS OF THE AIR FORCE.'

THIS STATEMENT WAS COORDINATED WITH TECHNICAL PERSONNEL AT THE STATION WHO CONCUR IN THE POSITION STATED ABOVE.

WE AGREE WITH THE ADMINISTRATIVE DISPOSITION OF THE PROTEST AND IN THE POSITION THAT BOTH BIDS WERE RESPONSIVE TO THE ADVERTISED REQUIREMENTS FOR THE COMPLETE ASSEMBLY. ALSO, FOR THE REASONS SET OUT BELOW, WE BELIEVE THAT THE PROTEST OF DYNAMETRICS THAT CONSOLIDATED ELECTRODYNAMICS' BID WAS NONRESPONSIVE FOR FAILURE TO SUBMIT DESCRIPTIVE LITERATURE AS REQUIRED BY THE BRAND NAME OR EQUAL PROVISION IS WITHOUT MERIT.

IT IS CLEAR THAT DESCRIPTIVE LITERATURE IS REQUIRED TO BE SUBMITTED WITH THE BID ONLY WHEN THE BIDDER OFFERS TO FURNISH AN "OR EQUAL" PRODUCT RATHER THAN THE BRAND NAME SPECIFIED. CF. 40 COMP. GEN. 435. SINCE CONSOLIDATED ELECTRODYNAMICS CLEARLY OFFERED TO FURNISH ONE OF THE BRAND NAMES SPECIFIED IN THE INVITATION, NO DESCRIPTIVE LITERATURE WAS REQUIRED TO BE FURNISHED BY THAT BIDDER UNDER THE INVITATION IN ORDER TO BE RESPONSIVE.

ACCORDINGLY, THE PROTEST OF DYNAMETRICS SHOULD BE DENIED AND, IF OTHERWISE PROPER, AWARD SHOULD BE MADE UNDER THE INVITATION TO THE LOWEST RESPONSIVE BIDDER.

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