B-163836, JUN. 5, 1968

B-163836, JUN. 5, 1968

TO EDWARD SEGAL, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF MARCH 13 AND MAY 3, 1968, PROTESTING THE AWARD MADE UNDER POST OFFICE INVITATION FOR BIDS NO. 37414- KA-SP:NS-1131.

THE INVITATION, ISSUED ON DECEMBER 7, 1967, REQUESTED BIDS FOR 6 EYELETTING MACHINES, UNITED SHOE MACHINERY CORP., MODEL F, SYMBOL EMF OR EQUAL, IN ACCORDANCE WITH THE SPECIFICATIONS AS SHOWN BY POST OFFICE DEPARTMENT DRAWING 394-B ATTACHED TO THE INVITATION. THE INVITATION REQUIRED THAT THE EYELETTING MACHINES COVERED BY THE SPECIFICATION BE OF COMMERCIAL TYPE FOR USE AT THE MAIL EQUIPMENT SHOPS IN THE MANUFACTURE OF MAILBAGS, AND THAT THE MACHINES WERE TO BE OPERATED BY UNSKILLED PERSONNEL AND IN OPERATION 6 TO 8 HOURS DAILY, 260 DAYS A YEAR. THE SALIENT CHARACTERISTICS OF THE BRAND NAME OR EQUAL EQUIPMENT WERE AS FOLLOWS:

1. SETTING PRESSURE: 4,400 TO 4,800 POUNDS

2. SPEED: 135 RPM

3. STROKE: 2-3/4 INCHES PLUS 1/4 INCH MINUS 1/4 INCH

4. THROAT DEPTH: (CENTER LINE RAM TO FRAME)

9-3/4 INCHES PLUS 1/2 INCH MINUS 1/2 INCH

5. SIZE: 20 INCHES WIDE X 34 INCHES DEEP X 36 INCHES HIGH

(ALL DIMENSIONS APPROX.)

6. RACEWAYS TO FEED TUBES TO BE ON LEFT SIDE, EACH REVOLUTION.

(TWO REVOLUTION CLUTCH ARRANGEMENT NOT REQUIRED.)

THE INVITATION INCLUDED A "BRAND NAME OR EQUAL" CLAUSE, ARTICLE 32, POD NOTICE 70, PROVIDING AS FOLLOWS:

"THE FOLLOWING IS APPLICABLE WHEN THE INVITATION FOR BIDS SPECIFIES BRAND NAME OR EQUAL:

(AS USED IN THIS CLAUSE, THE TERM -BRAND NAME- INCLUDES IDENTIFICATION OF PRODUCTS BY MAKE AND MODEL.)

"/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. BID 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.

"/B) UNLESS THE BIDDER CLEARLY INDICATES IN HIS BID THAT HE IS OFFERING AN -EQUAL- PRODUCT, HIS BID SHALL BE CONSIDERED AS OFFERING A BRAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BIDS.

"/C) (1) IF THE BIDDER PROPOSES TO FURNISH AN -EQUAL- PRODUCT, THE BRAND NAME, IF ANY, OF THE PRODUCT TO BE FURNISHED SHALL BE INSERTED IN THE SPACE PROVIDED IN THE INVITATION FOR BIDS, OR SUCH PRODUCT SHALL BE OTHERWISE CLEARLY IDENTIFIED IN THE BID. THE EVALUATION OF BIDS AND THE DETERMINATION AS TO EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE GOVERNMENT AND WILL BE BASED ON INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN HIS BID AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY.'

TWO BIDS WERE RECEIVED, ONE FROM THE UNITED SHOE MACHINERY CORPORATION IN THE AMOUNT OF $8,415.90 AND THE OTHER FROM YOUR COMPANY IN THE AMOUNT OF $6,870. AWARD WAS MADE TO UNITED SHOE MACHINERY ON MARCH 8, 1968, AS THE LOWEST RESPONSIVE BIDDER. YOUR BID WAS REJECTED AS NONRESPONSIVE BECAUSE YOUR MACHINES DID NOT MEET THE INVITATION SPECIFICATIONS. YOU PROTESTED THE REJECTION OF YOUR BID ON THE GROUNDS THAT YOUR QUOTED PRICE REPRESENTED A SAVINGS IN EXCESS OF 15 PERCENT; THAT THE DIMENSIONAL SPECIFICATIONS CALLED FOR IN THE INVITATION ARE THOSE OF A PROPRIETARY MACHINE AND ARE COMPLETELY IRRELEVANT TO THE MANUFACTURE OF MAILBAGS; THAT YOUR SUBMITTED ASSEMBLED SAMPLES HAVE NEITHER BEEN QUESTIONED NOR DISAPPROVED; THAT NO EFFORT HAS BEEN MADE TO DETERMINE WHETHER EQUIPMENT YOU OFFERED IS EQUAL TO THE BRAND NAME CALLED FOR; AND THAT NO EFFORT WAS MADE TO DETERMINE THE BEST AVAILABLE EQUIPMENT AT THE LOWEST PRICE.

YOU OFFERED TO FURNISH YOUR MODEL GNR AS AN EQUAL TO THE BRAND NAME SPECIFIED IN THE INVITATION AND YOU ENCLOSED WITH YOUR BID A BROCHURE DESCRIBING THE MODEL OFFERED. YOUR MODEL GNR IS COMPARED BELOW WITH THE BRAND NAME MODEL AND ITS SALIENT CHARACTERISTICS.

BRAND NAME MODEL GNR (1) HEIGHT 36 INCHES

24.5 INCHES (2) WIDTH 20 INCHES 12 INCHES (3) DEPTH 34 INCHES 28 INCHES (4) STROKE 2.75 INCHES PLUS 2.75 INCHES

OVER MINUS .25 (5) THROAT DEPTH 9.75 INCHES 6.75 INCHES (6) WEIGHT 476 POUNDS 270 POUNDS (7) SPEED 135 RPM

140 RPM (8) POWER 1/3 H.P. 1140 RPM 1/3 H.P. 1140 RPM (9) SETTING PRESSURE 4400-4800 POUNDS 4500 POUNDS

THE BRAND NAME OR EQUAL CLAUSE PROVIDED FURTHER:

"THE EVALUATION OF BIDS AND THE DETERMINATION AS TO EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE GOVERNMENT AND WILL BE BASED ON INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY.'

ACCORDING TO THE INFORMATION CONTAINED IN THE BROCHURE RELATING TO YOUR MODEL, YOUR MACHINE IS NOT EQUAL AS TO THE BRAND NAME MACHINE IN SEVERAL IMPORTANT RESPECTS. THESE DIFFERENCES ARE SET FORTH ABOVE AND THEY SUFFICIENTLY ESTABLISH THAT YOUR EQUIPMENT WOULD NOT MEET THE GOVERNMENT'S REQUIREMENTS.

IN RESPONDING TO AN INVITATION EMPLOYING A BRAND NAME OR EQUAL PURCHASE DESCRIPTION, THE RESPONSIVENESS OF A BID DEPENDS NOT ON WHETHER THE BIDDER BELIEVES, OR EVEN KNOWS, THAT HIS PRODUCT IS EQUAL TO THE BRAND NAME, BUT WHETHER THE PROCURING ACTIVITY CAN SO DETERMINE FROM THE INFORMATION SUBMITTED WITH THE BID. THE ABOVE-QUOTED CLAUSE, INCORPORATED IN THE INVITATION, CLEARLY WARNED BIDDERS THAT THE "EQUALITY" OF AN "EQUAL" PRODUCT WOULD BE DETERMINED ON THE BASIS OF INFORMATION FURNISHED BY THE BIDDER.

WE HAVE BEEN ADVISED THAT WHILE YOUR QUOTED PRICE DOES REPRESENT A SAVINGS, IT IS LIMITED TO THE INITIAL OUTLAY AND DOES NOT TAKE INTO CONSIDERATION THE TOTAL COST OVER THE LIFE OF THE MACHINES. WHILE YOU STATE, IN EFFECT, THAT THE FUNCTION OF THE MACHINES IS NOT AFFECTED BY ITS SIZE, IT IS THE USING AGENCY'S EXPERIENCE THAT THE DIMENSIONS OF THE MACHINES ARE A DEFINITE FACTOR IN CONSIDERING THE OVERALL AND CONTINUOUS FUNCTION OF THE MACHINES. THE MACHINES ARE USED TO SET EYELETS INTO HEAVY MULTIPLE LAYERS OF CANVAS WHICH REQUIRES A HEAVY DUTY MACHINE SUCH AS REFERENCED IN THE INVITATION. IT IS THE ADMINISTRATIVE VIEW THAT THE DIMENSIONAL SPECIFICATIONS ARE, THEREFORE, VERY RELEVENT TO PROPER UTILIZATION OF THE ASSEMBLY FOR ALL TYPES OF MAILBAG CONSTRUCTION AND FOR LONG EQUIPMENT LIFE, AND THAT TO PURCHASE EQUIPMENT LACKING THE REQUIRED DIMENSIONAL SPECIFICATIONS, EVEN THOUGH OFFERED AT A REDUCED COST, WOULD NOT BE IN THE BEST INTEREST OF THE GOVERNMENT. CONCERNING YOUR WORK SAMPLES, WE ARE ADVISED THAT THEY WERE FOUND TO BE INCONCLUSIVE IN THAT SOME EYELETS WERE PROPERLY SET WHILE OTHERS WERE NOT, AND THAT WORK SAMPLES ALONE DO NOT PROVIDE A TEST OF MACHINE DURABILITY.

FEDERAL PROCUREMENT REGULATIONS 1-1.307-4 (B) PROVIDES THAT "BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS SHOULD SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCE PRODUCTS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT.' MOREOVER, IN 41 COMP. GEN. 247; B-154611, AUGUST 28, 1964; B-157081, OCTOBER 18, 1965; AND B-157857, JANUARY 26, 1966, OUR OFFICE HAS INDICATED THAT A BRAND NAME OR EQUAL INVITATION SHOULD LIST ALL THE CHARACTERISTICS AND PARTICULAR FEATURES OF THE BRAND NAME ARTICLE WHICH THE BIDDERS WILL HAVE TO MEET. UPON REVIEW, WE MUST CONCLUDE THAT THE SUBJECT INVITATION MET THE CRITERIA OF THE REGULATIONS AND IS NOT RESTRICTIVE OF COMPETITION.

GENERALLY, THE DETERMINATION OF WHETHER A PARTICULAR PRODUCT COMPLIES WITH SPECIFICATIONS IS PRIMARILY THE FUNCTION OF THE ADMINISTRATIVE AGENCY, AND OUR OFFICE WILL NOT INTERFERE WITH THE AGENCY'S DETERMINATION UNLESS THERE IS A SHOWING OF BAD FAITH OR THE LACK OF A REASONABLE FACTUAL BASIS FOR THE DETERMINATION. SUCH HAS NOT BEEN ESTABLISHED HERE. COMP. GEN. 554; 19 ID. 587; AND 40 ID. 35. THERE IS NOT REQUIREMENT THAT THE GOVERNMENT PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEED TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING OFFERORS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE PROCUREMENT ACTIVITY, REASONABLY MEET THE ACTIVITY'S NEEDS. 36 COMP. GEN. 251, 252.

YOUR LETTER OF MAY 3, 1968, COMMENTING ON THE DEPARTMENT'S REPORT STRESSES, INTER ALIA, THE FACT THAT YOUR MACHINE HAS NEVER BEEN TESTED BY THE DEPARTMENT. HOWEVER, A PURCHASING AGENCY OF THE GOVERNMENT IS NOT REQUIRED TO TEST OFFERED EQUIPMENT TO DETERMINE ITS DESIRABILITY UNDER BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS. THE RESPONSIBILITY RESTS SOLELY WITH THE BIDDER TO FURNISH ADEQUATE DATA DEMONSTRATING THE EQUALITY OF HIS PRODUCT TO THE BRAND NAME REFERENCED AND IT IS THE CORRELATIVE RESPONSIBILITY OF THE GOVERNMENT TO EVALUATE SUCH DATA AGAINST THE ADVERTISED DESCRIPTION TO DETERMINE EQUALITY.

ACCORDINGLY, AND IN THE ABSENCE OF EVIDENCE THAT THE SPECIFICATIONS PRECLUDED ALL BUT THE SUCCESSFUL BIDDER FROM MEETING THE REQUIREMENTS, THE SPECIFICATIONS MAY NOT BE REGARDED AS PROPRIETARY OR OTHERWISE IMPROPER.