B-172497, OCT 1, 1971

B-172497, OCT 1, 1971

BID PROTEST - NONRESPONSIVE BID - RESTRICTIVE SPECIFICATIONS DENIAL OF PROTEST AGAINST THE AWARD OF A CONTRACT TO BAIRD-ATOMIC, INC., UNDER AN IFB ISSUED BY THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, OGDEN AIR MATERIEL AREA, HILL AFB, UTAH. WHERE A PROCUREMENT AGENCY HAS MADE A BONA FIDE DETERMINATION OF ITS ACTUAL NEEDS FOR AN ITEM CONFORMING TO CERTAIN SPECIFICATIONS, GAO GENERALLY WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE AGENCY. THERE IS SUFFICIENT JUSTIFICATION IN THIS RECORD TO SUPPORT THE DETERMINATION THAT THESE SPECIFICATIONS WERE REQUIRED TO SATISFY THE GOVERNMENT'S MINIMUM NEEDS. IF PROTESTANT FELT THAT THE SPECIFICATIONS WERE UNDULY RESTRICTIVE, THE TIME FOR CHALLENGING THEM WAS PRIOR TO BID OPENING, NOT 2 -1/2 MONTHS AFTER CONTRACT AWARD.

TO LABTEST EQUIPMENT COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 29, 1971, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE AWARD OF A CONTRACT TO BAIRD-ATOMIC, INC., UNDER INVITATION FOR BIDS NO. F 42650-71-B-1426, ISSUED BY THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, OGDEN AIR MATERIEL AREA, HILL AIR FORCE BASE, UTAH.

THE INVITATION, ISSUED ON MARCH 2, 1971, REQUESTED BIDS FOR FURNISHING ONE DIRECT READER SPECTROMETER, 60 CYCLE, SINGLE PHASE, 230 V, INCLUDING MODEL RS-1 HIGH SPEED DIGITAL READOUT AND MODEL ASR-35 TELETYPE, BAIRD- ATOMIC MODEL HB2, OR EQUAL. THE ATTACHED SPECIFICATIONS SET FORTH THE SALIENT FEATURES OF THE SPECTROMETER ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. IN ADDITION, THE INVITATION CONTAINED THE CLAUSE REQUIRED BY PARAGRAPH 1-1206.3 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) INFORMING BIDDERS THAT THE "BRAND NAME OR EQUAL" DESCRIPTION WAS INTENDED TO BE DESCRIPTIVE BUT NOT RESTRICTIVE AND WAS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WOULD BE SATISFACTORY, AND THAT BIDS OFFERING "EQUAL" PRODUCTS WOULD BE CONSIDERED IF IT WAS DETERMINED THAT SUCH PRODUCTS WERE EQUAL IN ALL MATERIAL RESPECTS TO THE REFERENCED BRAND NAME PRODUCT.

THREE BIDS WERE RECEIVED AND OPENED ON MARCH 31, 1971. YOUR FIRM WAS THE LOW BIDDER FOLLOWED BY THE BIDS OF BAIRD-ATOMIC, INC., AND ANGSTROM, INC. BAIRD-ATOMIC OFFERED ITS BRAND NAME EQUIPMENT REFERENCED IN THE INVITATION. YOUR BID OFFERED TO FURNISH "LABTESTER DIRECT READER NO. 712 AND CRT-880." THE BID, HOWEVER, WAS REJECTED BY THE CONTRACTING OFFICER AS NONRESPONSIVE TO THE INVITATION BECAUSE IT OFFERED A 2-METER FOCAL LENGTH SPECTROMETER INSTEAD OF A 3-METER FOCAL LENGTH SPECTROMETER AS REQUIRED BY THE SPECIFICATION STATEMENT OF ESSENTIAL MINIMUM REQUIREMENTS. ALSO, THE LABTEST BID OFFERED AN 8.3 KVA VOLTAGE REGULATOR INSTEAD OF THE 27.5 KVA VOLTAGE REGULATOR PRESCRIBED IN THE STATEMENT OF REQUIREMENTS. ON JUNE 25, 1971, A CONTRACT WAS AWARDED TO BAIRD-ATOMIC, INC., AS THE LOWEST RESPONSIVE BIDDER.

IT IS ALLEGED THAT THE BASIS FOR REJECTION OF THE LOW BID WERE NOT MATERIAL TO THE PERFORMANCE, QUALITY, AND CHARACTERISTICS SPECIFIED AND THAT THE SPECIFICATIONS ARE HIGHLY RESTRICTIVE BECAUSE ONLY BAIRD ATOMIC CAN OFFER THE PARTICULAR COMBINATION OF EQUIPMENTS SET OUT IN THE SPECIFICATIONS. IN THIS REGARD, IT IS STATED THAT BAIRD-ATOMIC HAS USED THE SAME BASIC 3-METER SPECTROMETER DESIGN FOR 20 YEARS; THAT THE MORE MODERN DESIGNS (WITH THE AVAILABILITY OF HIGH QUALITY FINELY RULED GRATINGS) USE SHORTER FOCAL LENGTHS WITH THE ADVANTAGES OF GREATER STABILITY, HIGHER OPTICAL SPEED AND COMPACTNESS; AND THAT THE EQUIPMENTS OFFERED BY LABTEST PROVIDE BETTER PERFORMANCE CHARACTERISTICS THAN THE TRADE NAME SPECIFIED.

REGARDING THE REQUIREMENT FOR A 27.5 KVA VOLTAGE REGULATOR, LABTEST ADVISES THAT ITS UNIT OF THE SOLID STATE TRIGGERED TYPE DOES NOT REQUIRE THE HIGH LINE OF POWER OF OLDER DESIGN EQUIPMENT; THAT THE 8.3 KVA REGULATOR OFFERED BY LABTEST WAS MORE THAN ADEQUATE FOR USE WITH ITS OFFERED EQUIPMENT; THAT INSISTENCE ON THE 27.5 KVA SPECIFICATION IN ITEM IAF WAS RESTRICTIVE RATHER THAN DESCRIPTIVE. FINALLY, IT IS REQUESTED THAT OUR OFFICE SUBMIT THE QUESTION OF THE MATERIALITY OF THAT PART OF THE SPECIFICATIONS REQUIRING A SPECTROMETER WITH A 3-METER FOCAL LENGTH AND A 27.5 KVA VOLTAGE REGULATOR TO A TECHNICAL REFEREE SUCH AS THE ANALYTICAL SPECTROGRAPHIC SECTION, NATIONAL BUREAU OF STANDARDS, FOR THEIR CONSIDERATION.

CONCERNING YOUR CONTENTION THAT THE INSTANT SPECIFICATIONS ARE RESTRICTIVE, WE RECENTLY HAD THE OCCASION TO CONSIDER THAT QUESTION IN CONNECTION WITH THE PROTEST OF APPLIED RESEARCH LABORATORIES UNDER THIS SAME INVITATION AND, IN OUR DECISION B-172497, JUNE 14, 1971, TO THE PROTESTOR, COPY ENCLOSED, WE STATED:

"CONCERNING YOUR CONTENTION THAT THE INSTANT SPECIFICATIONS ARE RESTRICTIVE, ASPR 1-1206.2(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. WE HAVE CONSTRUED THE WORDS 'OR EQUAL,' WHEN USED IN CONJUNCTION WITH A BRAND NAME PURCHASE DESCRIPTION, TO MEAN THAT AN ALTERNATE ITEM MUST BE EQUAL TO THE PRODUCT SPECIFIED, INSOFAR AS THE NEEDS OF THE PROCURING AGENCY ARE CONCERNED, BUT NOT NECESSARILY AN EXACT DUPLICATE THEREOF IN DETAIL OR PERFORMANCE. 38 COMP. GEN. 291 (1958) AND DECISIONS CITED THEREIN; 43 ID. 761 (1964). SEE ALSO ASPR 1-1206.4(A) WHICH STATES, IN PART, THAT 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.

"IT IS APPARENT FROM THE FOREGOING THAT A BIDDER DOES NOT HAVE TO OFFER AN EXACT DUPLICATE TO THE BRAND NAME ARTICLE. THEREFORE, THE BRAND NAME OR EQUAL DESIGNATION IS NOT CONSIDERED TO BE RESTRICTIVE."

IN ADDITION TO THE DOCUMENTS FURNISHED YOUR FIRM BY AIR FORCE LETTER DATED AUGUST 16, 1971, A REPORT OF THE CONTRACTING OFFICER DATED JULY 22, 1971, STATES THAT OTHER MANUFACTURERS OF SPECTROMETERS, NAMELY, ANGSTROM, JARREL-ASH, AND APPLIED RESEARCH LABORATORIES, STILL USE THE 3-METER FOCAL LENGTH; THAT THE ENCYCLOPEDIA OF SPECTROSCOPY BY CLARK, PAGES 138, 173, 179, AND 243, CITED BY LABTEST AS INDICATING THE SUPERIORITY OF EQUIPMENT OF THE TYPE OFFERED BY LABTEST, DOES NOT SUPPORT ITS CONTENTION THAT LABTEST PROVIDES BETTER PERFORMANCE CHARACTERISTICS THAN BAIRD-ATOMIC OR ANY OTHER FIRM; AND THAT PAGE 225 OF THE ENCYCLOPEDIA REFERS TO BAIRD- ATOMIC 3-METER AS THE "MODERN" INSTRUMENT.

WHERE A PROCUREMENT AGENCY HAS MADE A BONA FIDE DETERMINATION OF ITS ACTUAL NEEDS FOR AN ITEM CONFORMING TO CERTAIN SPECIFICATIONS, WE GENERALLY WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE AGENCY. SEE 38 COMP. GEN. 71, 75 (1958); 49 ID. 156, 160 (1969). WHILE OUR OFFICE WILL INQUIRE AS TO WHETHER SPECIFICATIONS MAY BE RESTRICTIVE OF COMPETITION, THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEEDS IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. SEE B-167052, SEPTEMBER 19, 1969, AND CASES CITED THEREIN. THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEED. 36 COMP. GEN. 251, 252 (1956); B-163160, MAY 29, 1968. IN OUR OPINION, THERE IS SUFFICIENT JUSTIFICATION IN THE RECORD SUPPLIED TO OUR OFFICE FOR THE DETERMINATION THAT THE SPECIFICATIONS CALLED OUT IN THE INSTANT INVITATION WERE REQUIRED TO SATISFY THE GOVERNMENT'S MINIMUM NEEDS AND THAT SUCH SPECIFICATIONS WERE NOT UNDULY RESTRICTIVE.

CONCERNING YOUR REQUEST THAT THE QUESTION OF THE MATERIALITY OF THE SPECIFICATIONS OF WHICH YOU COMPLAIN BE REFERRED TO A TECHNICAL REFEREE SUCH AS THE NATIONAL BUREAU OF STANDARDS, WE NOTE INITIALLY THAT YOUR PROTEST WAS NOT MADE UNTIL JUNE 29, 1971, MORE THAN 3-1/2 MONTHS AFTER ISSUANCE OF THE INVITATION FOR BIDS, 2-1/2 MONTHS AFTER BID OPENING AND SUBSEQUENT TO CONTRACT AWARD. INASMUCH AS THE DISCREPANCIES BETWEEN THE SPECTROMETER PROPOSED BY LABTEST AND THE INVITATION SPECIFICATIONS CLEARLY MUST HAVE BEEN OBVIOUS TO LABTEST TECHNICAL PERSONNEL UPON RECEIPT OF THE INVITATION, IT IS OUR OPINION THAT THE APPROPRIATE TIME TO HAVE CHALLENGED THE ALLEGEDLY RESTRICTIVE SPECIFICATIONS WOULD HAVE BEEN BEFORE BIDS WERE OPENED, OR AT THE LATEST BEFORE A CONTRACT WAS AWARDED. ACCORDINGLY, NO USEFUL PURPOSE WOULD BE SERVED AT THIS DATE TO REFER THE MATTER TO AN IMPARTIAL ANALYSIS.

FURTHER, WE NOTE THAT 15 U.S.C. 273 MAKES PROVISION FOR THE FURNISHING OF THE SERVICES OF THE NATIONAL BUREAU OF STANDARDS TO INDIVIDUALS OR CORPORATIONS ENGAGED IN MANUFACTURING "REQUIRING THE USE OF STANDARDS OR STANDARD MEASURING INSTRUMENTS." THEREFORE, IF LABTEST DESIRES TO HAVE ITS CONTENTIONS WITH RESPECT TO FOCAL LENGTH AND KVA CONSIDERED BY THE BUREAU OF STANDARDS BEFORE BIDDING ON ANY FUTURE PROCUREMENTS CALLING FOR THE SAME SPECIFICATIONS AS HERE INVOLVED, IT APPEARS THAT A PROCEDURE EXISTS WHEREBY LABTEST MAY INDEPENDENTLY SECURE SUCH COMMENT.

IN VIEW OF THE FOREGOING, WE SEE NO LEGAL BASIS FOR OBJECTION TO THE ADMINISTRATIVE ACTION TAKEN IN THIS MATTER, AND YOUR PROTEST IS DENIED.