B-154656, NOV. 9, 1964

B-154656, NOV. 9, 1964

TO BROOKS RESEARCH, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 29, 1964, WITH ENCLOSURES, PROTESTING AN AWARD MADE TO DIT-MCO, INC., BY THE UNITED STATES NAVY PURCHASING OFFICE, LOS ANGELES, CALIFORNIA, UNDER INVITATION NO. IFB 123-50443A-64.

THE INVITATION WAS ISSUED ON APRIL 24, 1964, FOR BIDS TO BE SUBMITTED BY MAY 12, 1964, FOR AN ,ANALYZER, ELECTRICAL CIRCUIT, DIT-M CO. MODEL 2000 OR EQUAL * * *.' IN ADDITION THE EQUIPMENT WAS TO BE IN ACCORDANCE WITH "ATTACHED CRITICAL REQUIREMENTS.'

TWO BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION; BROOKS RESEARCH - $39,107; DIT-MCO - $50,751. ATTACHED TO THE BID OF BROOKS RESEARCH WAS A DETAILED DESCRIPTION OF THE SPACE 111A SYSTEM BEING OFFERED AS AN EQUAL TO THE BRAND NAMED ARTICLE AND IN COMPLIANCE WITH THE PURCHASE DESCRIPTION IN THE INVITATION.

BOTH BIDS AND THE ACCOMPANYING MATERIAL WERE FORWARDED TO THE TECHNICAL ACTIVITY FOR EVALUATION AND IT WAS DETERMINED BY THAT ACTIVITY THAT THE EQUIPMENT OFFERED BY YOUR COMPANY FAILED TO MEET THE REQUIREMENTS OF THE INVITATION. THESE FAILURES WERE STATED TO BE THAT WHILE THE PURCHASE DESCRIPTION STATES THAT THE EQUIPMENT SHALL BE DESIGNED FOR USE WITH MATRIX CHARTS YOU OFFERED TO SUPPLY A CODE PROGRAM CONTROLLED BY A PUNCHED PAPER TAPE. THIS TAPE IS PREPARED IN AN 8-LINE CODING FLEXOWRITER (ESTIMATED COST - $6,000) WHICH IS NOT INCLUDED IN THE PRICE QUOTED BY YOU. LACK OF SHORT CIRCUIT TESTING CAPABILITY; LACK OF PLUGBOARD-TYPE PROGRAMMING; IMPROPER CONTROL PANEL LOCATION; UNSUITABILITY OF MATING PLUGS PIN PATTERN FOR INTERCHANGEABILITY WITH OTHER EQUIPMENT AND LACK OF A HIGH VOLTAGE FLASHER ARE SOME OF THE MATERIAL DEFICIENCIES FOUND IN YOUR OFFERED EQUIPMENT ALONG WITH THE FACT THAT THE BRAND NAMED ARTICLE CONSISTS OF A SINGLE CONSOLE MEASURING 69 9/16 INCHES IN HEIGHT, 67 3/4 INCHES IN WIDTH AND 30 1/2 INCHES IN DEPTH, WHEREAS YOUR OFFER COMPRISES TWO SEPARATE CONSOLES, ONE BEING 55 INCHES BY 54 INCHES BY 26 INCHES AND THE OTHER 55 INCHES BY 67 INCHES BY 27 INCHES AMOUNTING TO AN OVER 50 PERCENT INCREASE IN THE AREAS REQUIRED FOR USE. BECAUSE OF THE LIMITED SPACE AVAILABLE FOR WORKING AROUND PLANES THIS IS OF CONSIDERABLE IMPORTANCE AND A SUBSTANTIAL VARIATION FROM THE CHARACTERISTICS OF THE BRAND NAME ARTICLE.

BY REASON OF THE FOREGOING TECHNICAL EVALUATION, YOUR BID WAS REJECTED AS BEING NONRESPONSIVE AND AWARD WAS MADE ON JUNE 16, 1964, TO DIT MCO, INC.

YOUR ARGUMENT THAT THE SO-CALLED MANDATORY FEATURES SHOULD BE CONSIDERED ONLY AS DESCRIPTIVE OF THE "BRAND NAME" AND NOT AS RESTRICTIVE AS TO THE PRODUCT OFFERED AS AN "OR EQUAL" IS NOT TENABLE.

ASPR 1-1206.3/B) PROVIDES IN PART AS FOLLOWS:

"/A) IF ITEMS CALLED FOR BY THIS INVITATION FOR BIDS HAVE BEEN IDENTIFIED IN THE SCHEDULE BY A "BRAND NAME OR EQUAL" DESCRIPTION, SUCH IDENTIFICATION IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WILL BE SATISFACTORY. BIDS OFFERING "EQUAL" PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE INVITATION FOR BIDS.'

ASPR 1-1206.4/A) PROVIDES AS FOLLOWS:

"/A) BIDS OFFERING PRODUCTS WHICH DIFFER FROM BRAND NAME PRODUCTS REFERENCED IN A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION SHALL BE CONSIDERED FOR AWARD WHERE THE CONTRACTING OFFICER DETERMINES IN ACCORDANCE WITH THE TERMS OF THE CLAUSE IN 1-1206.3/B) THAT THE OFFERED PRODUCTS ARE EQUAL IN ALL MATERIAL RESPECTS TO THE PRODUCTS REFERENCED. BIDS SHALL NOT BE REJECTED BECAUSE OF MINOR DIFFERENCES IN DESIGN, CONSTRUCTION, OR FEATURES WHICH DO NOT AFFECT THE SUITABILITY OF THE PRODUCTS FOR THEIR INTENDED USE.'

WHILE THE "BRAND NAME" DESIGNATION IS INTENDED AS DESCRIPTIVE AND MUST BE SO INTERPRETED, SPECIFICATIONS SPELLING OUT ESSENTIAL CHARACTERISTICS REQUIRED TO MEET THE NEEDS OF THE GOVERNMENT MUST BE STRICTLY MET. ASPR 1 -1206.2/B). THESE SHOW THE BASIS OF THE GOVERNMENT'S MINIMUM NEEDS AND THE SUITABILITY OF THE BRAND NAMED ARTICLES' CHARACTERISTICS TO THE INTENDED USE. A BRAND NAME OR EQUAL PURCHASE DESCRIPTION IS RESORTED TO WHEN AN ADEQUATE SPECIFICATION OR MORE DETAILED DESCRIPTION CANNOT FEASIBLY BE MADE AVAILABLE IN TIME FOR THE PROCUREMENT UNDER CONSIDERATION.

BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS SHOULD SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCTS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT BUT THIS REQUIREMENT DOES NOT CONTEMPLATE A COMPLETE INDEPENDENT DESCRIPTION OF ALL MATERIAL ASPECTS OF THE "BRAND NAME" REFERENCES. THE PURPOSE OF THE REQUIREMENT AS TO SETTING FORTH SALIENT CHARACTERISTICS WOULD BE TO MAKE CLEAR THE ESSENTIALITY OF ANY CHARACTERISTICS WHICH MIGHT NOT OTHERWISE BE APPARENT, SUCH AS THE ENVIRONMENTAL SPECIFICATIONS IN THIS CASE. THE PURCHASE DESCRIPTION SUPPLIED BY THE REQUISITIONING AGENCY CLEARLY SET FORTH THAT THE EQUIPMENT DESIRED SHOULD BE DESIGNED FOR USE WITH MATRIX CHARTS AS WELL AS OTHER CRITICAL REQUIREMENTS.

THE NEED OF THE REQUIRING ACTIVITY IN THIS CASE WAS FOR AN ANALYZER IN CONNECTION WITH OVERHAUL TEST AND CORRECTION. IT WAS KNOWN AT THE ACTIVITY THAT TAPE-TYPE ANALYZERS WERE AVAILABLE, INCLUDING SOME PRODUCED BY DIT-MCO. HOWEVER, WHILE SUCH DEVICES ADEQUATELY SERVE THE PURPOSE OF TESTING QUALITY AND RELIABILITY DURING PRODUCTION, THEY ARE NOT DEEMED AS FUNCTIONALLY USEFUL FOR OVERHAUL WORK AS IS THE MATRIX CHART TYPE. THE USE OF THE MATRIX SYSTEM IS LESS COSTLY OVERALL BECAUSE OF THE SAVING IN TIME BY THE OPERATOR AS A RESULT OF THE FACILITY FOR LOCATING AND CORRECTING ERRORS WITHOUT RECOURSE TO PROGRAM SHEETS AND COMPLICATED DECODING REQUIREMENTS. FURTHER, YOUR BID AS SUBMITTED DID NOT PROVIDE THE ACTIVITY WITH A COMPLETE SYSTEM WHICH COULD BE USED WITHOUT ACQUIRING ADDITIONAL EQUIPMENT, INASMUCH AS YOU DID NOT OFFER EITHER A FLEXOWRITER FOR READ-OUT; TAPE-PUNCHING EQUIPMENT OR TAPE CUTTING AND SPLICING EQUIPMENT, CONSIDERED TO BE NECESSARY IN ORDER TO MAKE CHANGES IN THE PROGRAM IN THE EVENT SUCH WAS REQUIRED. IN THE CASE OF THE DIT-MCO EQUIPMENT, CHANGES IN THE MATRIX CHART CAN BE EFFECTED SIMPLY BY ERASING ON THE ORIGINAL MATRIX THE INFORMATION IN ANY BOX AND PLACING IN LIEU THEREOF THE CORRECTED INFORMATION. THE ABSENCE OF A HIGH VOLTAGE FLASHER AS WARNING EQUIPMENT AND THE SIZE OF YOUR EQUIPMENT ARE OTHER MATERIAL FACTORS WHICH CAUSED YOUR BID TO BE CONSIDERED AS NONRESPONSIVE.

WHEN "BRAND NAME OR EQUAL" DESCRIPTION IS UTILIZED (IN THIS CONNECTION SEE 38 COMP. GEN. 380) AS IN OTHER TYPES OF PROCUREMENT, IT IS PRIMARILY THE FUNCTION OF THE PROCURING AGENCY TO DETERMINE WHETHER A PRODUCT OFFERED AS EQUAL IS, IN FACT, EQUAL TO THE BRAND NAME PRODUCT. 17 COMP. GEN. 554. WE MAY NOT INTERFERE EXCEPT WHERE IT IS CLEARLY ESTABLISHED THAT CONTRACTING OFFICIALS OF THE GOVERNMENT HAVE ABUSED THEIR AUTHORITY BY ACTING IN BAD FAITH OR IN DISREGARD OF APPLICABLE STATUTES OR REGULATIONS. SINCE IT APPEARS THAT THE AWARD WAS MADE BY THE CONTRACTING OFFICER IN GOOD FAITH AND IN THE EXERCISE OF HIS BEST INDEPENDENT JUDGMENT, WHICH IS NOT CONTROVERTED BY THE FACTS, WE WOULD NOT BE JUSTIFIED IN HOLDING THAT THE CONTRACT WAS ILLEGALLY AWARDED. SEE 36 COMP. GEN. 376; 35 ID. 174 AND CASES CITED.