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"BRAND NAME OR EQUAL" CLAUSE EFFECT INVITATION TO BID ON AIR CONDITIONING UNITS THAT INCLUDED A "BRAND NAME OR EQUAL" CLAUSE THAT DID NOT SET FORTH SALIENT CHARACTERISTICS IN SUFFICIENT DETAIL TO INFORM BIDDERS OF PARTICULAR FEATURES TO BE MET IS DEFECTIVE INVITATION AND ADDITIONAL USE IN INVITATION OF REQUIREMENT FOR DESCRIPTIVE LITERATURE WAS UNNECESSARY PURSUANT TO FPR SEC. 1-2.202 5 (D) (2). ALTHOUGH DEFECTIVE INVITATION WAS NOT CANCELED. RECOMMENDATION IS MADE TO CORRECT SUCH DEFECTS IN FUTURE PROCUREMENTS. SECRETARY: REFERENCE IS MADE TO THE LETTERS OF DECEMBER 3. THE "REQUIREMENTS FOR DESCRIPTIVE LITERATURE" CLAUSE ON PAGE 8 OF THE INVITATION DOES NOT DEFINE WITH PARTICULARITY THE EXTENT OF DETAIL DESIRED IN THE DESCRIPTIVE LITERATURE BIDDERS WERE REQUIRED TO SUBMIT.

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B-168189 (2), APR. 27, 1970

CONTRACTS--SPECIFICATIONS--DESCRIPTIVE DATA--"BRAND NAME OR EQUAL" CLAUSE EFFECT INVITATION TO BID ON AIR CONDITIONING UNITS THAT INCLUDED A "BRAND NAME OR EQUAL" CLAUSE THAT DID NOT SET FORTH SALIENT CHARACTERISTICS IN SUFFICIENT DETAIL TO INFORM BIDDERS OF PARTICULAR FEATURES TO BE MET IS DEFECTIVE INVITATION AND ADDITIONAL USE IN INVITATION OF REQUIREMENT FOR DESCRIPTIVE LITERATURE WAS UNNECESSARY PURSUANT TO FPR SEC. 1-2.202 5 (D) (2). ALTHOUGH DEFECTIVE INVITATION WAS NOT CANCELED, MAJOR PORTION OF THE WORK HAVING BEEN COMPLETED, RECOMMENDATION IS MADE TO CORRECT SUCH DEFECTS IN FUTURE PROCUREMENTS. SEE COMP. GEN. DECS. CITED.

TO MR. SECRETARY:

REFERENCE IS MADE TO THE LETTERS OF DECEMBER 3, 1969, AND MARCH 18, 1970, FROM THE DIRECTOR OF GENERAL SERVICES, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW), IN CONNECTION WITH THE PROTEST BY GENERAL AIR CONDITIONING, INCORPORATED, AGAINST THE AWARD OF A CONTRACT TO ANOTHER CONCERN UNDER ADVERTISED SOLICITATION NO. SSP-70-13, ISSUED BY THE SOCIAL SECURITY ADMINISTRATION (SSA), FOR THE FURNISHING AND INSTALLATION OF AN AIR-CONDITIONING SYSTEM AND CERTAIN OTHER WORK FOR SSA'S ELECTRONIC DATA PROCESSING (EDP) FACILITY IN BALTIMORE, MARYLAND.

THE "REQUIREMENTS FOR DESCRIPTIVE LITERATURE" CLAUSE ON PAGE 8 OF THE INVITATION DOES NOT DEFINE WITH PARTICULARITY THE EXTENT OF DETAIL DESIRED IN THE DESCRIPTIVE LITERATURE BIDDERS WERE REQUIRED TO SUBMIT. IT IS SETTLED THAT SUCH A FAILURE MAY RENDER AN INVITATION DEFECTIVE. SEE 38 COMP. GEN. 59 (1958); 42 COMP. GEN. 598 (1963), AND B-158688, MAY 19, 1966. THE DESCRIPTIVE LITERATURE CLAUSE IN FEDERAL PROCUREMENT REGULATIONS (FPR), SECTION 1-2.202-5 (D) (1) PROVIDES THAT THE CONTRACTING OFFICER SHALL INSERT IN THE CLAUSE DETAILS WITH RESPECT TO SIGNIFICANT ELEMENTS SUCH AS DESIGN, MATERIALS, COMPONENTS, OR PERFORMANCE CHARACTERISTICS, OR METHODS OF MANUFACTURE, CONSTRUCTION, ASSEMBLY, OR OPERATION, AS APPROPRIATE. NO SUCH DETAILS WERE INSERTED IN THE CLAUSE IN THE INSTANT INVITATION. ALL THAT WAS INCLUDED WAS THE GENERAL STATEMENT THAT THE DESCRIPTIVE LITERATURE WAS REQUIRED TO ESTABLISH, FOR THE PURPOSE OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH.

FEDERAL PROCUREMENT REGULATIONS (FPR) SECTION 1-2.202-5 (C) REQUIRES THAT THE FILE EXPLAIN WHY ACCEPTABLE PRODUCTS CANNOT BE PROCURED WITHOUT THE SUBMISSION OF DESCRIPTIVE LITERATURE. THE JUSTIFICATION FOR THE DESCRIPTIVE LITERATURE REQUIREMENT WAS NOT INCLUDED IN THE ADMINISTRATIVE REPORT ON THE PROTEST.

FPR SECTION 1-2.202-5 (D) (2) STATES THAT WHEN BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS ARE USED, THE REQUIREMENTS OF SECTION 1-2.202-5 ARE MET BY INSERTING IN THE INVITATION FOR BIDS THE BRAND NAMES PROVISION SET FORTH IN FPR SECTION 1-1.307-6. IN VIEW OF THE INCLUSION OF A "BRAND NAME OR EQUAL" CLAUSE, IT WAS UNNECESSARY TO ADD A FURTHER REQUIREMENT FOR DESCRIPTIVE LITERATURE.

FPR 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 REFERENCED PRODUCTS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT AND ALSO CONTAIN TO THE EXTENT AVAILABLE SUCH OTHER INFORMATION AS IS NECESSARY TO DESCRIBE THE ITEM REQUIRED.

IN B-157857, JANUARY 26, 1966, IT WAS STATED AS FOLLOWS:

"* * * BIDDERS OFFERING 'EQUAL' PRODUCTS SHOULD NOT HAVE TO GUESS AT THE ESSENTIAL QUALITIES OF THE BRAND NAME ITEM. UNDER THE REGULATIONS THEY ARE ENTITLED TO BE ADVISED IN THE INVITATION OF THE PARTICULAR FEATURES OR CHARACTERISTICS OF THE REFERENCED ITEM WHICH THEY ARE REQUIRED TO MEET. AN INVITATION WHICH FAILS TO LIST ALL THE CHARACTERISTICS DEEMED ESSENTIAL, OR LISTS CHARACTERISTICS WHICH ARE NOT ESSENTIAL, IS DEFECTIVE. 41 COMP. GEN. 242, 250-51; B-154611, AUGUST 28, 1964. SEE, ALSO, 38 COMP. GEN. 345 AND B-157081, OCTOBER 18, 1965." THE INSTANT INVITATION DOES NOT SET FORTH WITH PARTICULARITY THE FEATURES OF THE AIR- CONDITIONING UNITS CONSIDERED ESSENTIAL TO MEET THE NEEDS OF THE PROCURING ACTIVITY. FOR THIS REASON ALONE THE INSTANT INVITATION WOULD HAVE TO BE CONSIDERED DEFECTIVE.

AS INDICATED IN THE DECISION TO THE PROTESTOR, CANCELLATION OF THE INSTANT INVITATION WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT CONSIDERING THE ADVICE FROM SSA THAT ALL EXCEPT A MINOR PORTION OF THE WORK HAS BEEN COMPLETED. IN VIEW OF THE NUMEROUS DEFECTS IN THE INSTANT INVITATION WE RECOMMEND THAT A THOROUGH REVIEW BE MADE TO CORRECT SUCH DEFECTS FOR FUTURE PROCUREMENTS.

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