responsive and the award to the Dalkin Division would have The information contained in the report indicates that all of these requirements may not actually be necessary to serve the Government's needs, which would make the procurement objectionable on the ground that it did not permit full and free competition. This fact alone might not require a determination that the award is illegal. However, an award on a bid which is non-responsive to the stated terms of the Invitation has no validity and confers no rights on the purported contractor. The facts and circumstances outlined above fairly support a conclusion that the Sir Culator model offered by A. Dalkin is, in nearly all material respects, equal to the brand name specified and. in some respects, exceeds the minimum requirements of the purchase description. In that connection it is noted that the Assistant Counsel's letter concedes that A. Dalkin's bid was determined to be non-responsive because it failed to meet all of the specific minimum requirements set forth in the purchase description, and not because it was not equal to the brand name specified. In his report the contracting officer cites three requirements in the purchase description which he has determined were not met by A. Dalkin's bid: 4 gallons beverage capacity, 1/6 horsepower refrigeration unit, and sterilizer lamp. While it is true that the Sir Culator unit deviates from these cited requirements, the deviations as to beverage capacity and horsepower of the refrigeration unit exceed the minimum standards and, insofar as these features are concerned, it would appear that the Sir Culator model is technically superior to the brand name specified. Moreover, it was expressly determined that the larger capacity machine would be satisfactory for the requirements of the using activity. ***The Assistant Counsel's letter concedes that the cost of the sterilizer lamp 'may be relatively minor" and also indicates that the requirement for the lamp, along with other specific requirements, may not actually be necessary to serve the Government's needs. This is further confirmed by the contracting officer's recommendation that he be authorized to accept delivery of all 150 units without sterilizer lamps. In view of these circumstances, it is apparent that, while A. Dalkin's bid was not responsive to the sterilizer lamp requirement, its failure to conform with that portion of the purchase description is not one of major proportions. Moreover, we cannot agree with the Assistant Counsel's observation that "If the specific requirements are not regarded as minimum requirements then the low bid of Pro-Craft Engineering Company could also have been considered responsive ***". A comparison of Pro-Craft's bid with the specific purchase description requirements shows that its bid failed to conform to the requirements for: (1) 4 gallons beverage capacity, (2) sterilizer lamp, (3) 7 ft. (min) power cord with grounded connection, and (4) proof of compliance with U.L. requirements. These deviations in Pro-Craft's bid, and especially the 3, rather than 4, gallon beverage capacity deviation, constitute a much more serious failure to conform to the specific requirements than does A. Dalkin's bid which, as we have seen, failed only in regard to the sterilizer lamp. 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, and decisions cited therein. See, also, paragraph 1-1206.4 (a) of the Armed Services Procurement Regulation (ASPR) 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. Had the purchase description in this case contained, in addition to the brand name or equal description, only those salient characteristics which were essential to the needs of the Government in accordance with ASPR 1-1206.2(b), A. Dalkin's bid would clearly have been responsive to the Invitation for Bids. However, the fact remains that, the bid of A. Dalkin Company was not completely responsive to the terms of the Invitation for Bids in that it failed to offer a sterilizer lamp. Had this matter been brought to our attention prior to award of the contract it seems clear that the best interests of the United States would have required cancellation of the Invitation and a readvertisement of the Government's needs. However, the deviation in the bid was, concededly, a deviation to a requirement in the purchase description which is actually unnecessary to the Government's needs. We also note that the award was made in good faith and that the contractor, at the express request of the Government to expedite deliveries, has expended substantial sums of money in preparing to meet its obligations under the contract. In view of the foregoing it is our opinion that the best interests of the Government would not be served by canceling the contract awarded to A. Dalkin Company. In reaching this conclusion we are not unmindful of the holding in the Prestex case, which was cited by the contracting officer as authority for cancellation of the contract. While we think that Prestex correctly expresses the law on questions of bid responsiveness to Government invitations we are of the opinion that the facts and circumstances of the present case are clearly distinguishable from those involved in Prestex. The Court of Claims noted in Prestex that the deviations in the plaintiff's bid to the specific requirements of the specifications were substantial and the award to the plaintiff operated to the unquestioned disadvantage of the other bidders. Also of significance is the fact that the uniform cloth submitted by the plaintiff was found by the Government to be inferior and unusable for its intended purpose. In the instant case, as we have previously stated, A. Dalkin's bid offered to furnish an item which in many respects is superior to that described in the invitation; the deviation was minor and, in fact, the item requirement to which the deviation was made is unnecessary to the Government's needs. With respect to the Reiner case, which was also cited by the contracting officer, no more need be said than that we are in complete disagreement with the philosophy that this Office applies higher or different standards than are applied by the courts in determining whether a contract award is illegal. The award in this case was made to A. Dalkin on the basis of furnishing its Sir Culator Model CD-30 in accordance with ASPR 1-1206.4, which provides that award documents shall identify, or incorporate by reference an identification of, the specific products which the contractor is to furnish and such identification is to include any brand name and make or model number, descriptive material, and any modifications of brand name products specified in the bid. Since A. Dalkin's descriptive literature did not describe a sterilizer lamp and its bid did not modify the brand name product specified to include the lamp, A. Dalkin did not offer to furnish the lamp and award of the contract did not obligate it to do so. Therefore, our Office will not object to delivery of all units under the contract without the attached sterilizer lamp. This procurement is an example of the difficulties all too frequently encountered in procurement utilizing brand name or equal purchase descriptions. In future procurements involving such purchase descriptions the Government's actual needs should be determined in advance of the issuance of the Invitation for Bids and only such actual needs should be set forth as salient characteristics. See, in that connection ASPR 1-1206.2(b) which specifies 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." [Italics supplied.] Also, in the future, if reasonable tolerances respecting the physical or functional characteristics of equipment are generally acceptable to your agency (as appears to be the case in the instant procurement), the salient characteristics in the purchase description should be stated in approximate terms. See B-136574, 14 August 1958. J. D. WALLACE CO. 40 Comp. Gen. 447 [B-142716] Chapter 2, Section 2 Reprinted, supra, at p.72 By letter of 21 March 1963, with enclosures, our opinion was requested as to whether the low bidder under Intivation for Bids No. ENG-11-032-63-10 for rehabilitation of building 350, Rock Island Arsenal, Illinois, may be rejected as nonresponsible and award made to the second low bidder at an increased cost to the Government of $3,446 despite the issuance of a Certificate of Competency (COC) to the low bidder by the Small Business Administration. Bids in response to the invitation, a 100 percent small business setaside, were opened on 13 November 1962. The low responsive bid was submitted by the Pathman Construction Company at $318,361. The contracting officer was unable to find the Pathman Company a responsible bidder, and after reference of the matter by him to the Small Business Administration, that agency issued Pathman a Certificate of Competency for the job on 25 January 1963, over the objections of the contracting agency. Notwithstanding the issuance of the COC, the contracting officer proposes to reject the low bidder as not responsible, having concluded from a review of the history of the eleven contracts performed or now being completed by Pathman for the Chicago District, Corps of Engineers, that the firm and particularly its president have shown "a lack of perseverance and tenacity in accomplishing his mission", and a "casual indifference to, or a complete disregard of" requirements of contracts and requests of contracting officer representatives. The contracting officer has further concluded from the record that "the sincerity and integrity" of the firm's president are not of acceptable standards and that repetition of the same deficiencies over several contracts demonstrates 'willful and deliberate failures" to comply with contract requirements. It is provided at 10 U.S.C. 2305 (c) that contract awards pursuant to formal advertising shall be made to "the responsible bidder" whose bid is responsive and will be most advantageous to the United States. It is well settled that the determination of a bidder's responsibility involves the exercise of a considerable range of discretion, and our Office has consistently adhered to the rule that the administrative determination will not be questioned unless arbitrary, capricious or not based on substantial evidence. 38 Comp. Gen. 131; 37 Comp. Gen. 430, 435. This rule has been applied even though for the same type of contract, at approximately the same time and based on the same information the same bidder had been accepted as responsible by one agency and rejected by another. 468, 472. 39 Comp. Gen. It also has been settled by numerous decisions of our Office and of courts, both State and Federal, that responsibility, as used in statutory enactments requiring award of public contracts to the lowest responsible bidder, embraces not merely pecuniary ability and physical capability to perform, but also more personal attributes of character or integrity, which have been variously stated as the bidder's "suitability for the task, and those qualities which he must necessarily have in order to be able to perform the contract" (Best v. City of Omaha, [Neb.] 293 NW 1161); "skill, judgment, and integrity necessary to a faithful performance of the contract" (Williams v. City of Topeka, [Kans.] 118 P. 864, 38 LRA [NS] 672); "ability to promptly, faithfully, and conscientiously perform the work" (State v. Richards, [Mont.] 40 P. 210, 28 LRA 298); "promptness, faithfulness, and capacity and ability to do work" (wilson v. City of New Castle, [Pa.] 152 A.102). By the act of June 11, 1962,56 Stat. 351, 50 U.S.C. App. 1101 (1946 Ed.), authority to make the determination of responsibility of small business bidders was partially taken away from the procuring agencies and vested in the predecessor of the Small Business Administration. Under Section 2 of the act, 50 U.S.C. App. 1102 (1946 Ed.), the Chairman of the War Production Board was empowered to certify to Government procurement officers with respect to the capacity and credit of a small business to perform a specific Government procurement contract, and under Section 3, 50 U.S.C. App. 1103 (1946 Ed.), procurement officers of the Government were directed to accept such certification as conclusive as to those factors. Currently the Small Business Administration is empowered by Section 8(b) (7) of the Small Business Act, Public Law 85-536, 15 U.S.C. 637 (b) (7) - (7) to certify to Government procurement officers, and The COC issued by the Small Business Administration pursuant to the statute is recognized by the Armed Services Procurement Regulation, 1-705.6(a), as conclusive on the contracting officer with respect to a bidder's overall ability to meet quality, quantity, and time requirements of the procurement, including ability to perform, organization, technical experience, knowledge, skills, "know-how', technical equipment, and facilities. See 38 Comp. Gen. 864. A record of past delinquencies or defaults by a company to whom a COC had been issued would provide no basis for refusing to make an award if such delinquencies or defaults were due to factors included in capacity or credit. See 38 Comp. Gen. 289. On the other hand those elements making up the factor of integrity--i.e., not |