ADM argues that
its quotation was lower-priced than Shaw’s quotation and should
have been selected for the delivery order. However, ADM does not
dispute that its revised quotation failed to include the
information required by the RFQ. Instead, ADM argues that the
required density information was included in its initial
quotation and had not changed, that flooring radiant panel
testing should not have been required because the brand name
product did not carry a passing test certificate, and that its
electrostatic test certificate was unsigned because the
manufacturer “does not own the data generated by testing labs.”
Protest at 2. We conclude that the Air Force reasonably, and
consistent with the terms of the solicitation, found AMD’s
quotation to be incomplete, and unacceptable.
When reviewing a protest against the propriety of an evaluation,
it is not our function to independently evaluate quotations and
substitute our judgment for that of the contracting activity.
Rather, we will review an evaluation to ensure that it was
reasonable and consistent with the evaluation criteria in the
solicitation and applicable procurement statutes and
regulations. Neopost USA Inc., B-404195, B-404195.2, Jan. 19,
2011, 2011 CPD ¶ 35 at 4; AlliedBarton Sec. Servs. LLC, B-299978
et al., Oct. 9, 2007, 2007 CPD ¶ 186 at 6.
Regarding the agency’s evaluation of dimensional and density
information provided by the protester, the RFQ required vendors
to quote a product with “[t]otal carpet thickness including
backing: Within 0.68 thru 0.75 [inches].” AR, Tab 7, at 5. The
RFQ also required a carpet density of “[m]ore than 3,000 ozs/yd3,”
and a backing density of “18 lbs. per cubic foot.” Id. In its
revised quotation, ADM indicated that it would provide a carpet
and backing with a total thickness of “MAXIMUM .75.” Id. ADM did
not indicate a minimum thickness, or a density for its offered
carpet or backing. The agency concluded that ADM quotation did
not demonstrate compliance with the RFQ’s requirements, where it
failed to specify a minimum thickness of at least .68 inches,
and failed to provide density information.
As stated above, ADM argues that its revised quotation should
not have been found unacceptable for failure to provide required
information in its revised quotation because the missing
information was provided in its initial quotation, and its
offered product had not changed. We disagree. First, where an
agency has amended an RFQ and solicited revised quotations,
there is no basis for an agency to rely on information submitted
in an initial quotation submitted in response to the initial RFQ
to demonstrate compliance with the amended RFQ. Second, while
ADM did submit a specific thickness measurement and carpet
density information in its initial quotation, this information
was not “the manufacturer’s issued catalog data or signed
features,” as required by the amended RFQ.[1] In response to the
amended RFQ, requiring verified data, ADM submitted only a
maximum thickness dimension, and manufacturer’s catalog data
indicating average density as “N/A.” Given ADM’s failure to
provide the required information in its revised quotation, we
see nothing unreasonable in the agency’s conclusion that ADM’s
quotation was unacceptable.
With regard to ADM’s arguments that the flooring radiant panel
and electrostatic propensity test certificates should not have
been required, we find these arguments untimely. Our Bid Protest
Regulations contain strict rules for the timely submission of
protests. They specifically require that a protest based upon
alleged improprieties in a solicitation that are apparent prior
to the closing time for receipt of initial quotations be filed
before that time. 4 C.F.R. § 21.2(a)(1) (2010). This rule
includes challenges to alleged improprieties that do not exist
in the initial solicitation but which are subsequently
incorporated into it; in such cases, the solicitation must be
protested not later than the next closing time for receipt of
quotations following the incorporation. Id.; see Cessna Aircraft
Co., B-261953.5, Feb. 5, 1996, 96-1 CPD ¶ 132 at 16. Here, the
requirement to submit these test certificates was clearly set
forth in the amended RFQ, and the amended RFQ further cautioned
offerors that “listed test pass requirements are mandatory, and
offered [items] with any failure to comply [with] the test pass
requirement will not be considered for award.” AR, Tab 7, at 10.
To the extent that ADM disagreed with these amended RFQ
requirements, ADM was required to file its protest prior to the
closing time of the amended RFQ.
The protest is denied. (ADM
International, Inc., B-405854, January 6, 2012) (pdf)
MEDI protests the
agency's determination that Micro's "equal" scanner satisfied
the requirements of section 2.1.16 of Attachment 3 of the RFQ.
In its quotation, Micro offered a [deleted], and addressed
section 2.1.16 by stating that:
AR, Tab 3, Micro's Quotation, attach. 3 at 2. In response to
each of the other listed requirements (except one) Micro stated
that its "equal" scanner complied with or exceeded the
requirement. Id. at 1-2. With respect to section 2.1.16. Micro
included a supplemental paragraph in its quotation, entitled .
AR, Tab 3, Micro's Quotation, at 24.
Under the circumstances, we think that the phrase in Micro's
quotation indicated that the "equal" scanner that Micro proposed
did not yet have the capability required by section 2.1.16. In
addition, [deleted]
As mentioned above, the RFQ here required that products be
delivered 21 days after order, and the order was placed on May
3, 2011. Based upon Micro's failure to offer a compliant product
that could be delivered in the time frame set by the RFQ, we
think NARA should have found Micro's quote to be technically
unacceptable.
We recommend that NARA review the quotations consistent with
this decision, and either reject Micro's quotation as
unacceptable and place the order with MEDI, or review the RFQ to
ascertain whether the RFQ reflects NARA's actual requirements.
If the agency determines that RFQ does not reflect its actual
requirements, it should amend the RFQ, obtain revised
quotations, conduct discussions as necessary, and place an order
with the vendor whose proposal is determined to be best value
under the RFQ. (MEDI-e-ImageData
Corporation, B-405164, September 16, 2011) (pdf)
OnSite contends
that the agency erred in evaluating its product. According to
the protester, the deficiencies the VA found in its system are
not material to the agency's actual needs, and/or its system is
superior to the brand name such that the VA should have issued
the purchase order to OnSite as the lowest priced vendor.
Protester Comments at 1-5.
Under a brand name or equal solicitation, a firm offering an
equal product must demonstrate that the product conforms to the
salient characteristics of the brand name product listed in the
solicitation. American Government Marketing, Inc., B‑294895,
Nov. 22, 2004, 2005 CPD para. 109 at 2. If the firm fails to do
so, its product properly is rejected as nonconforming. Id.
Here, as noted above, the agency found OnSite's product
nonconforming for failing to meet seven salient characteristics.
In its response to the agency report, OnSite acknowledges that
its product does not fully conform to all of the requirements
specified in the solicitation. OnSite, however, asserts that its
product essentially complies with the solicitation requirements
or, in the alternative, that any deviations are offset by some
other benefit or result in a product that is superior to the
brand name product.
For example, as noted above, the agency determined that OnSite
did not quote a dual-chambered system, as required by the RFQ.
The agency explains that it required a dual-chambered system for
capacity, and required a back-up in case of system failure or
when the unit requires servicing. AR, Contracting Officer
Statement, at 3. While OnSite acknowledges that its compactor is
single-chambered, it nonetheless argues that this shortfall is
immaterial because its unit was specifically designed to have a
minimal maintenance profile. Protester Comments at 4.
We have previously found that an agency should waive a minor
deviation from a brand name or equal solicitation's salient
characteristics where the deviation does not affect the ability
of the nonconforming product to meet the agency's actual
functional needs, and no other firm is prejudiced by the waiver.
General Projection Systems, Inc., B-241418.3, Dec. 27, 1991,
91-2 CPD para. 582 at 4. Here, however, OnSite's compactor
deviates materially from the agency's actual needs because it
did not meet the salient characteristics. Thus, the agency
required a dual-chambered system in order to have a back-up when
the system needed service; we find reasonable the agency's
position that OnSite's quote of a single-chambered system with
no back-up represented a material deviation from the
specifications.
Likewise, the solicitation required that the compactor have an
automated/touch-free operation so as to avoid the costs
associated with additional labor to manually load or unload the
compactor. AR, Contracting Officer Statement, at 3. The agency
states that OnSite's unit was not fully automated, resulting in
additional labor costs over the life of the unit. Id. The
protester acknowledges that while its "system is touch-free and
automated on the loading side," on the unloading side it is only
"touch free and semi-automated"; according to the protester, the
"manual function is to push the carts into the chamber and to
pull them out and place them on the cart tipper for dumping into
the compactor." Protester Comments at 1, 4. OnSite asserts that
this deviation from the salient characteristic is immaterial
because the OnSite unit has 3.77 times the volume of the
San-I-Pak unit and "accordingly offsets this labor expense by
having far greater unit capacity and fewer operating cycles for
the same amount of waste." Id. at 4. The protester also states
that to achieve the automatic discharge feature, San-I-Pak dumps
free liquids into the compactor, creating a continuous odor
problem. The protester asserts that, in contrast, its unit is
odor free. Id.
Again, the protester's arguments amount to a contention that the
deviation of its product is offset by some other benefit. The
solicitation, however, reflected the agency's determination that
it needed an automated touch-free system without additional
labor; we find reasonable the agency's position that the fact
that OnSite's system is not totally automated and requires some
manual operation represents a material deviation from the
solicitation. To the extent the protester believes its alternate
approach better meets the agency's needs, the protester was
required to protest the specifications prior to the time set for
receipt of quotations. 4 C.F.R. sect. 21.2(a)(1). Because OnSite
did not file its protest until well after the closing date, we
will not consider a challenge to the specifications.
OnSite also challenges the selection of San-I-Pak, asserting,
for example, that it is doubtful that San-I-Pak's dual-chambered
unit would fit the footprint of the current single-chambered
unit. Protester Comments at 4. However, since we have concluded
that the agency properly rejected OnSite's nonconforming
quotation, and there is an intervening vendor who quoted the
brand name product and whose quotation was evaluated as
acceptable, OnSite is not an interested party for purposes of
raising these allegations. 4 C.F.R. sect. 21.0(a). In this
regard, where, as here, there is an intervening vendor who would
be in line for the award if the protester's challenge to the
award were sustained, the intervening vendor has a greater
interest in the procurement than the protester, and we generally
consider the protester's interest to be too remote to qualify it
as an interested party. Ridoc Enterprise, Inc., B-292962.4, July
6, 2004, 2004 CPD para. 169 at 9. (OnSite
Sterilization, LLC, B-405395, October 25, 2011) (pdf)
MediaNow's
Technical Acceptability
Vendors proposing "equal" items were required to "include a
positive statement and supporting documentation confirming all
salient feature[s]" listed in attachment A of the RFQ, had been
achieved by the offered products. RFQ at 4. In evaluating
MediaNow's final quotation, the agency found 23 instances where
the vendor's products failed to meet the salient characteristics
identified in the RFQ. MediaNow asserts that the agency
misevaluated its proposal; according to the protester, its
products meet or exceed all salient characteristics. Protest at
2.
In reviewing a protest of an agency's evaluation of proposals,
our review is confined to a determination of whether the agency
acted reasonably and consistent with the terms of the
solicitation and applicable statutes and regulations. United
Def. LP, B‑286925.3 et al., Apr. 9, 2001, 2001 CPD para. 75 at
10‑11. It is the offeror's duty to include sufficiently detailed
information in its proposal to establish that the equipment
offered meets the solicitation requirements; blanket statements
of compliance are insufficient to fulfill this duty. IVI Corp.,
B-310766, Jan. 23, 2008, 2008 CPD para. 21 at 3. Further, with
respect to the offer of an "equal" product, an offeror's
proposal must demonstrate that its product conforms to the
salient characteristics listed in the solicitation. See CAMSS
Shelters, B-309784, B-309784.2, Oct. 19, 2007, 2007 CPD para.
199 at 4.
In determining that MediaNow's quotation was unacceptable, the
evaluators found at least 19 instances where the vendor failed
to demonstrate that each of its equal items satisfied all of the
salient characteristics. For example, the RFQ required the
digital media manager appliance to remotely control and manage
digital display properties such as on/off, contrast, brightness,
and volume; to archive content/assign metadata to assets; and to
offer a minimum of 6 gigabytes RAM. RFQ, attach. 1, Tab A.
However, apart from general statements that its VBrick product
could "meet" these requirements, MediaNow's quotation, including
its attached product information sheets, provided no information
that demonstrated these capabilities. Agency Evaluation of Tab A
at 1. Indeed, even in its protest submissions MediaNow fails to
identify where in its quotation the required information may be
found. MediaNow Comments at 5. On this record, we conclude that
the agency reasonably found that MediaNow's various blanket
statements of compliance were inadequate to establish that its
products met all salient characteristics. In these
circumstances, MediaNow's quotation was properly found to be
unacceptable.
The protest is denied. (MediaNow,
Inc., B-405067, June 28, 2011) (pdf)
In effect,
CAMSS's position is that the agency's approach of requiring
offerors to submit prices for a list of particular brand name
items--without also including salient characteristics to allow
firms to propose equivalent products--fails to meet the most
basic requirements for full and open competition under the
Competition in Contracting Act (CICA). We agree.
CICA expressly requires agencies to specify their needs and
develop specifications in a manner designed to achieve full and
open competition. 10 U.S.C. sect. 2305(a)(1)(A) (2006). To that
end, solicitations are required to include specifications that
permit full and open competition, and may include restrictive
provisions or conditions only to the extent necessary to satisfy
the needs of the agency. 10 U.S.C. sect. 2305(a)(1)(B). Agencies
are further instructed that they may use specifications stated
in terms of function (so that a variety of products or services
may qualify), performance characteristics or design
requirements, depending on the nature of the requirements. 10
U.S.C. sect. 2305(a)(1)(C).
These basic requirements are echoed in FAR part 11, under which,
to the maximum extent practicable, agencies must articulate
their requirements in terms of functions to be performed,
performance characteristics required, or essential physical
characteristics. FAR sect. 11.002(a)(2). While the use of
performance specifications is preferred, FAR sections 11.101,
11.104, the FAR also permits agencies in appropriate
circumstances to use "brand name or equal" purchase
descriptions, where the purchase description includes a
statement of the salient physical, functional or performance
characteristics that are necessary to render an "equal" product
eligible for award. FAR sect. 11.104. Agencies are precluded
from specifying their requirements solely in terms of a
particular firm's product unless the particular brand name,
product or feature is essential to the government's needs, and
market research shows that other companies' similar products
lacking the particular feature do not meet the agency's needs,
or cannot be modified to meet the agency's needs. FAR sect.
11.105. Further, when procuring on a brand name only basis,
agencies are required to follow documentation and approval
procedures for acquiring goods or services using other than full
and open competition. FAR sect. 11.105.
Here, the RFP required prospective offerors for the ID/IQ
contract to submit proposals exclusively for the exact brand
name items specified in the core list, with no provision for
offering alternate, "equal," products. Although the solicitation
thus amounts to a brand name only procurement, the agency has
not prepared and executed the required justification and
approval (J&A) for use of other than full and open competition.
10 U.S.C. sections 2304(c), (f); FAR sect. 11.105; Critical
Process Filtration, Inc., B-400747, et al., Jan. 22, 2009, 2009
CPD para. 25, at 5-7 (where purchase exceeds simplified
acquisition value threshold, agency is required to prepare J&A
before using brand name only specification, or to conduct
acquisition using full and open competition). The agency's
actions therefore are improper.
DLA asserts that its decision not to include salient
characteristics for the 249 core list items is based on the fact
that the salient characteristics for one user might be different
from another user, depending on, for example, considerations
such as the geographic location where the tent or shelter might
be used. As noted above, however, while the use of a "brand name
or equal" approach is one method for describing the agency's
requirements, there are various ways (including the use of
either functional, performance or design specifications) for the
agency to express its requirements in a manner that allows for
full and open competition, and DLA has not shown that one or
another of these methods is inadequate for purposes of preparing
an adequately written solicitation. In any case, as discussed
above, the agency is required to execute the required J&A for
use of other than full and open competition before it can rely
on the brand name only approach embodied in the current RFP.
Given the terms of the current solicitation along with DLA's
failure to execute the required J&A for use of other than full
and open competition, we sustain CAMSS's protest. (California
Industrial Facilities Resources, Inc., d/b/a CAMSS Shelters,
B-403397.3, March 21, 2011) (pdf)
Medfinity
contends that the agency erred in rejecting its product,
arguing, for example, that it "certified" that the EVA cord met
the 45-degree angle and DICOM compliance requirements. Protest
at 2. Medfinity further asserts that the RFQ actually required
that the sensor connect to the laptop via either USB or PCMCIA
card, and that its product should have been found to meet this
requirement by virtue of Medfinity's certification to that
effect. Id. Medfinity notes that it offered to demonstrate its
product to the agency.
It is well-settled that it is the vendor's responsibility to
include sufficiently detailed information in its proposal (or
quotation) to establish that the item offered will meet the
solicitation requirements, and that blanket statements or
certifications of full compliance are insufficient. IVI Corp.,
B-310766, Jan. 23, 2008, 2008 CPD para. 21 at 3. With respect to
a brand name or equal solicitation, a firm offering an equal
product must demonstrate that the product conforms to the
salient characteristics of the brand name product listed in the
solicitation. American Gov't Marketing, Inc., B‑294895, Nov. 22,
2004, 2005 CPD para. 109 at 2. The contracting agency is
responsible for evaluating the data submitted by the vendor and
ascertaining if it provides sufficient information to determine
if the vendor's product is acceptable. See ACR Elec. Inc.,
B-266201, Jan. 24, 1996, 96-1 CPD para. 19 at 4. We will review
an agency's determination in this regard to ensure that it was
reasonable. Id.
The agency's determination here was reasonable. The record
supports the agency's finding that Medfinity's quotation
consisted primarily of blanket statements of compliance, without
explanation or elaboration. For example, the proposal simply
states that the EVA "is DICOM compliant," connects to the laptop
"via a USB or PCMCIA Card," and has "the cord at a 45° angle or
directly out the back. . . ." AR, Tab 8, Medefinity Proposal at
1. The technical data accompanying the quotation was limited to
a 3-page product brochure that not only did not establish
compliance with these three requirements, but failed to address
the majority of the salient characteristics detailed by the RFQ.
Medfinity's assertion that the RFQ required either a USB or
PCMCIA card interface is incorrect. The RFQ specifically
required only a PCMCIA card interface; there was no mention of a
USB interface. While Medfinity's proposal stated that its sensor
connects to the laptop via USB or PCMCIA card, its product
brochure only stated that it connected via USB. AR, Tab 5,
Medfinity Proposal, EVA Descriptive Literature, at 2. Finally,
the agency was not required to permit Medfinity to demonstrate
its product, since there was no provision for such a
demonstration in the RFQ. Rather, as noted, vendors were to
establish the compliance of their products through descriptive
literature or other evidence submitted with their quotations.
In its comments on the agency report, Medfinity raises a number
of arguments for the first time. These arguments are untimely.
For example, the protester asserts that the only Dexis sensor
with a PCMCIA card connection was discontinued a year ago, and
that the PCMCIA card requirement unreasonably restricts
competition because Dexis is the only manufacturer that uses
PCMCIA technology. Protester Comments at 2-4. Our Bid Protest
Regulations require that protests based upon alleged
improprieties in a solicitation that are apparent prior to the
time set for receipt of proposals (or quotations) be filed prior
to that time. 4 C.F.R. sect. 21.2(a)(1) (2010). Medfinity's
arguments concern the specified features of the brand name
product; to the extent that it believed these features were
unduly restrictive or otherwise should not have been included in
the RFQ, it was required to protest on these grounds before
quotations were due. Since its protest was not filed until after
issuance of the purchase order, its protest on these grounds is
untimely and will not be considered. (Medfinity,
LLC, B-403366.2,October 28, 2010) (pdf)
Brand Name Or
Equal Requirement
Standard challenges the brand name or equal requirement in the
RFQ, asserting that the ASTM documents themselves do not require
that the acceptability of a quoted product be determined based
on the characteristics of the ALCOR brand name product. Protest
at 3-4; Comments at 13-14. Standard notes, in this regard, that,
while ASTM D 3241 indicates that heater tubes manufactured by
ALCOR were used in the development of the test method, this was
not "an endorsement or certification by ASTM International."
Protest at 3; AR, exh. 9, at 9-3, n. a. Standard asserts that
"the raw material used by the two current viable manufacturers
has an identical composition because it uniformly originates at
precisely the same source and the exact same mill." Protest at
5. Standard concludes that the requirement is unduly
restrictive.
The agency responds that the ALCOR heater tube is integral to
the test procedure, noting that ASTM D 3241 specifically advises
that the fuel test method "depends upon, and is inseparable
from, the specific equipment used," and that "the test method
shall be conducted with the equipment used to develop the test
method or equivalent equipment." CO's Statement at 2-8; see AR,
exh. 9, at 9-2. The "equipment used to develop the test method,"
as indicated above, included the ALCOR heater tube specified in
the RFQ. AR, exh. 9, at 9-3. More specifically, the CO explains
that the final result from the JFTOT thermal stability test
under ASTM D 3241 is a heater tube color rating, which is based
primarily on a visual observation; accordingly, the appearance
of heater tubes must be equivalent at the onset of each test.
CO's Statement at 2-8. The agency asserts that requiring ALCOR
equivalency is necessary to ensure that the heater tube color
rating is consistent across all tests, and that final results
are not confused by the initial appearance or other
characteristics of nonequivalent tubes. AR at 7.
We find the Air Force's position persuasive. First, we find
nothing objectionable in the agency's reliance on the ASTM
standard in determining the necessary characteristics of the
required heating tubes. In this regard, we have held that it is
plainly reasonable for an agency to attempt to comply with
technical requirements that were specifically formulated for
application in the procurement. 120 Church Street Assocs.,
B‑232139, Nov. 21, 1988, 88-2 CPD para. 496 at 6-7; see, e.g.,
General Electrodynamics Corp., B‑298698, B-298698.2, Nov. 27,
2006, 2006 CPD para. 180 at 6 (agency properly may rely on
applicable industry standard to demonstrate reasonableness of
requirements).
Contrary to Standard's assertion, the language of ASTM 3241, on
its face, articulates the need to conduct testing using the same
equipment used to establish the test procedure, stating that the
"test method . . . depends upon, and is inseparable from, the
specific equipment used, [so] the test method shall be conducted
with the equipment used to develop the test method . . . ." AR,
exh. 9, at 9‑2. It is undisputed in the record that the ALCOR
heater tube specified in the RFQ was part of the equipment used
to develop the test procedure in question. Further, the agency
has sufficiently established that the brand name or equal
provision is necessary to ensure the validity of the heater tube
ratings, which are based on a visual comparison, and thus could
be affected by the use of tubes with varying characteristics.
Although Standard disagrees with the agency's position in this
regard--it asserts that color equivalency is "mythical,"
Comments at 18--it has not shown that the agency's judgment is
unreasonable. See Richard Bowers & Co., B-400276, Sept. 12,
2008, 2008 CPD para. 171 at 2. We conclude that the brand name
or equal requirement is unobjectionable.
Testing Requirement
Standard challenges the RFQ's requirement for testing of "equal"
products in accordance with RR-1550, as prescribed by ASTM D
3241, asserting that such testing is not required by ASTM D
3241, is not otherwise necessary, and therefore unduly restricts
competition. Protest at 3. In this regard, Standard points out
that RR-1550 itself includes a disclaimer on its cover page,
indicating that it is not to be reproduced, circulated, or
quoted "outside of ASTM International Committee/Society
activities." Id. Standard asserts that this indicates that
RR-1550 is "only to be used in ASTM Subcommittee Activity,"
which does not include a "solicitation through a Federal
agency." Protest at 3.
The establishment of testing procedures is a matter within the
technical expertise of the procuring activity, and we will not
object to the imposition of such a requirement unless it is
shown to be without a reasonable basis. Essex Electro Engineers,
Inc.; Alturdyne, B-259832, B‑259832.2, May 3, 1995, 95‑1 CPD
para. 228 at 3.
We find that RR-1550 is a reasonable means of ensuring the
acceptability of the required heater tubes. The agency asserts
that use of ASTM D 3241 is prescribed by an applicable military
standard--MIL-STD-3004B, Department of Defense Standard
Practice, Quality Assurance/ Surveillance For Fuels, Lubricants
and Related Products. CO's Statement at 2-3; see AR, exh. 12.
This standard describes ASTM D 3241 as "DoD adopted," id. at
12-18, and provides that all "laboratory tests shall be
conducted in accordance with the method prescribed in the
specification covering the product." Id. at 12-36. RR‑1550 is
specifically cited in ASTM D 3241 as "a test protocol to
establish equivalence of heater tubes." AR, exh. 9 at 9-3. No
other test is cited in ASTM D 3241 and the protester identifies
no alternative test.
The protester's assertion that the ASTM standards, by their own
terms, are not intended for use by federal agencies is without
merit. ASTM D 3241 specifically provides that it "has been
approved for use by agencies of the Department of Defense." AR,
exh. 9, at 9-1. Further, as the CO points out, RR-1550
explicitly provides that its purpose is to "establish the
equivalency of heater tubes manufactured by another manufacturer
with ALCOR heater tubes in ASTM D 3241." CO's Statement at 2-9,
2-10; see AR, exh. 10, at 10-2. In addition, the Air Force has
provided a statement from an ASTM representative, advising that
any entity, "whether or not a member of ASTM, can reference the
requirements on any ASTM standard in a contract, bid,
regulation, etc." AR, exh. 15, at 15.2. See generally M. C. & D.
Capital Corp., B-225830, July 10, 1987, 87-2 CPD para. 32 at 5-6
(agency's use of ASTM standards was unobjectionable where agency
reasonably justified their use).
Standard challenges the usefulness and efficacy of the RR-1550
test procedures, asserting, for example, that the specifications
in ASTM D 3241 "already sufficiently define, specify, and
restrict the quality required," and that, because the primary
result of testing under ASTM D 3241 "is a color determination
and not a statistic," the absence of a "meaningful (statistical)
precision statement for D 3241 makes comparative performance
testing problematic." Protest at 3; Comments at 10, 14-15.
As noted above, a contracting agency's responsibility for
determining its needs includes determining the type and amount
of testing necessary to ensure both product compliance with the
specifications and that a particular product will meet the
government's needs. Austin Telecomms. Elec., Inc., B‑256251, May
31, 1994, 94-1 CPD para. 331 at 2. Here, the agency has amply
demonstrated that the heater tubes are critical components of
the JFTOT, that uniformity of the tubes is necessary to ensure
valid test results, and that the RR-1550 testing protocol is a
reasonable means of ensuring uniformity. See, e.g., AR at 2-3.
Although Standard disagrees with the agency's position in this
regard, it has not provided definitive information establishing
that testing under RR-1550 does not serve its intended purpose
or that the agency's judgment is otherwise unreasonable. See
Richard Bowers & Co., supra. We thus find no basis to object to
the RR-1550 testing requirement. (Standard
Heater Tube, Inc., B-403155, September 24, 2010) (pdf)
On July 23, the
Army notified Mid-America that award had been made to A-DEC
because that firm provided the lowest-priced,
technically-acceptable quotation. This protest followed.
Mid-America protests the agency's determination that its
quotation was unacceptable, contending that it offered chairs
and equipment that were comparable to the brand name item, and
asserts that the Army should have awarded the contract to
Mid-America because it quoted a significantly lower price than
A-DEC.
In reviewing protests of agency evaluations, we review the
record to ensure that the evaluation and source selection
decision were reasonable and consistent with the terms of the
solicitation and applicable procurement statutes and
regulations. Ricoh Am. Corp., B-402239, Feb. 22, 2010, 2010 CPD
para. 55 at 3.
Here, the record shows that the agency reasonably determined
Mid-America's quotation to be unacceptable. In this regard, the
agency found that Mid-America's quotation did not address the
salient characteristics, as required by the RFQ. In its comments
responding to the agency report, Mid-America submitted a table
comparing the items in its quotation to the A‑DEC items
specified in the RFQ, to illustrate compliance with the salient
characteristics. However, this table was not included in
Mid-America's quotation and, more importantly, it shows that the
chair and equipment in Mid-America's quotation did not meet at
least some of the salient characteristics. For example, the
table lists the lowest seat position for Mid‑America's chair as
21 inches, which does not meet the Army's requirement that the
chair be able to lower to 13.5 inches. Similarly, the table
states that Mid‑America's chair does not have a feature to lock
out chair movement when a dental instrument is in use. In short,
Mid-America concedes that its chair did not meet some salient
characteristics.
Since the items offered by Mid-America did not meet the minimum
requirements specified in the RFQ, the Army reasonably found the
quotation unacceptable. We therefore find the award to A-DEC,
who submitted a technically acceptable quotation,
unobjectionable. (Mid-America
Taping & Reeling, Inc., d/b/a Mid-America Government Supply,
B-403381, September 15, 2010) (pdf)
Although it is clear that the agency mishandled IVI’s proposal
in this case, this is not a “lost proposal” situation in which
the missing information cannot be independently verified and
meaningfully evaluated. See, e.g., Project Res., Inc., B-297968,
Mar. 31, 2006, 2006 CPD para. 58; S.D.M. Supply, Inc., B-271492,
June 26, 1996, 96-1 CPD para. 288 (lost proposal recovered after
contract had been completed); East West Research, Inc.,
B-239565, Aug. 21, 1990, 90-2 CPD para. 147. Here, the “lost”
proposal was discovered in the agency’s possession, was known to
have been timely received, was sent for a technical evaluation,
and was determined to be technically unacceptable. In this
context, while the agency’s failure to timely forward the IVI
proposal for evaluation was unfortunate, we view the protest
solely as a challenge to the reasonableness of the agency’s
technical evaluation. See, e.g., Basic Tech., Inc., B-214489,
July 13, 1984, 84-2 CPD para. 45 (late evaluated proposal deemed
technically unacceptable, protest decided as an evaluation
challenge). This is because a reasonable determination that
IVI’s proposal is technically unacceptable would render IVI
ineligible for the award regardless of the agency’s other
conduct in the procurement. The agency asserts that its
determination was reasonable because, while IVI’s offer
contained blanket statements that its “or equal” product would
meet the salient characteristics in the RFP, the technical
information it provided was incomplete and failed to support
those blanket statements. IVI contends that its proposal
provided an affirmative response to every characteristic listed
in the RFP, and that the agency’s after-the-fact determination
is unsupported. It is well-settled that it is the offeror’s duty
to include sufficiently detailed information in its proposal to
establish that the equipment offered will meet the solicitation
requirements, and that blanket statements of full compliance are
insufficient to fulfill this duty. Aztek, B-229525, Mar. 2,
1988, 88-1 CPD para. 218 at 3. Likewise, merely restating the
RFP’s requirements is no better than a blanket offer of
compliance. Id. With respect to the offer of an “or equal”
product, an offeror’s proposal must demonstrate that its product
conforms to the salient characteristics listed in the
solicitation. See CAMSS Shelters, B-309784, B-309784.2, October
19, 2007, 2007 CPD para. 199 at 4. The contracting agency is
responsible for evaluating the data submitted by the offeror and
ascertaining if it provides sufficient information to determine
if the offeror’s product is acceptable. ACR Elec., Inc.,
B-266201, Jan. 24, 1996, 96-1 CPD para. 19 at 4. In making this
determination, the agency enjoys a degree of discretion which we
will not disturb unless we find that the determination is
unreasonable. Id. Here, we find that the agency’s determination
was reasonable. The record demonstrates that most of IVI’s
proposal was a mere restatement of the RFP’s salient
characteristics, without elaboration. Indeed, the record shows
that the technical data accompanying IVI’s proposal was limited
to a 2-page product brochure that failed to address the majority
of the more than 100 salient characteristics detailed by the
RFP. In addition, some of the technical data provided in IVI’s
product brochure contradicted its proposal’s claims that its
product possessed the required salient characteristics. For
example, the RFP specified as a salient characteristic that the
optical coating system’s coating chamber be 60 to 80 centimeters
in diameter, and while IVI’s proposal specified a coating
chamber 80 centimeters in diameter, its product brochure
specified a coating chamber 36 inches, or 91.4 centimeters, in
diameter. In sum, as the offeror of an “or equal” item, the
burden was on IVI to submit a proposal that adequately
demonstrated that its offered product met the salient
characteristics of the solicitation. As mere restatement of the
RFP’s salient characteristics is insufficient to meet that
burden, and IVI’s provided technical data was incomplete and
contradicted its proposal, we cannot find unreasonable the
agency’s determination that IVI’s proposal was not technically
acceptable. (IVI Corp., B-310766,
January 23, 2008) (pdf)
We address first the argument that the ASI product accepted by
the agency was not the brand name product identified in the
solicitation, and the contention that the agency was required to
treat the ASI product as an “equal” product, and determine
whether the product met the salient characteristics. There is no
dispute in this record that the solicitation here contained a
typographical error in its identification of the brand name
product. Instead of identifying an Alaska Extreme 1826 Shelter,
the solicitation identified an “Alaska Extreme 1836 Shelter.” We
note that the numerical portion of this description is the same
as the dimensions of the shelter--i.e., ASI’s 1826 shelter
measures 18 feet by 26 feet. Thus, the 1826 number matches the
dimensions set forth in the solicitation’s salient
characteristics, which identified a shelter measuring 18 feet by
26 feet. RFQ at 2. In addition, ASI explains that “there is no
such thing as an Alaska Structures Extreme 1836 Shelter.” ASI’s
Supp. Comments, Sept. 17, 2007, at 2. Moreover, CAMSS has not
suggested that it was misled by this error; CAMSS was aware that
the solicitation required--and CAMSS offered--a shelter
measuring 18 feet by 26 feet. While we recognize that the Air
Force should have identified the proper brand name in its brand
name or equal product description, there is no evidence in this
record that the parties were misled by this typographical error
in the RFQ. We conclude that ASI offered, and the Air Force
accepted, the brand name item requested. As a result, the Air
Force properly accepted the ASI product without determining
whether the product met the salient characteristics identified
for “equal” products. See Mid-Florida Corp., supra. With respect
to whether the agency acted reasonably in concluding that
CAMSS’s quotation failed to establish that its product met the
salient requirements of the solicitation, we deny the protest.
As set forth above, the agency concluded that CAMSS’s quotation
failed to establish that its product met four of the salient
characteristics. In two of the areas resulting in the rejection
of CAMSS’s quotation, the solicitation required the submission
of test reports--in one instance, to establish the ability of
the product to withstand a sustained wind load; in the other, to
establish the ability of the product to withstand a snow load.
While the protester argues that its product can meet both
requirements, the record shows that CAMSS did not submit test
reports to document its ability to meet either of these
requirements. AR, Tab 6, CAMSS Quotation. At best, CAMSS simply
asserts in its quotation that its product is engineered to
withstand the wind load and snow load requirements. Id. at 1.
Accordingly, we think the agency reasonably concluded that the
quotation failed to meet the requirements established in the
solicitation. CAMSS also argues that the requirements in
the RFQ for test reports constituted unapproved “qualification
requirements,” as that term is defined in FAR sect. 2.101. More
specifically, CAMSS argues that the agency cannot enforce these
requirements without violating FAR sect. 9.206, which requires
that agencies comply with specific procedures to obtain approval
of particular qualification requirements. This argument is
untimely. Under our Bid Protest Regulations, a protest objecting
to the terms of a solicitation must be filed before the closing
date for responses in order to be timely. 4 C.F.R. sect. 21.2(a)
(2007). The testing requirements at issue here were explicitly
stated in the RFQ, yet CAMSS did not challenge their inclusion
until after the competition was complete and ASI had been
selected. (CAMSS Shelters,
B-309784; B-309784.2, October 19, 2007) (pdf)
Under a brand name or equal solicitation, a firm offering an
equal product must demonstrate that the product conforms to the
salient characteristics of the brand name product listed in the
solicitation. Bryan Constr. Co., B-261482, Sept. 20, 1995, 95-2
CPD 142 at 2-3. If the firm fails to do so, its product properly
is rejected as nonconforming. Id. Here, applying the
specifications contained in the RFQ to AGM's product, the agency
found AGM's quotation unacceptable. In its response to the
agency report, AGM does not dispute that finding, and the record
clearly establishes that the product quoted by AGM failed to
meet four minimum specifications contained in the RFQ.
Accordingly, we find that the agency properly rejected AGM's
product. (American Government
Marketing, Inc., B-294895, November 22, 2004) (pdf)
American Floor asserts that the rejection of its quotation was
improper because it in fact was based on the brand name, not an
equal product, and therefore was not required to include
descriptive literature. American Floor asserts that it submitted
the information from Micor only to demonstrate that it was a
certified installer of flooring, not to demonstrate that it
intended to use Micor products. The agency reasonably rejected
the protester's quotation here. In response to the agency's
request that American Floor clarify what it was quoting, the
protester did not state that it was offering the brand name.
Instead, American Floor submitted a statement from Micor that
the protester was a certified installer of Micor products, and a
statement that it would submit the "product equals" when they
were received from the manufacturer. The agency reasonably
interpreted this response to its specific question as indicating
that American Floor was quoting on an "equal" Micor product
rather than the brand name; indeed, we think this is the only
reasonable interpretation of the protester's response. While the
protester asserts that it submitted the letter from Micor only
to demonstrate its qualifications, not to suggest that it would
not use the brand name products, this simply was not clear from
its response. We conclude that the Air Force reasonably
determined that the protester's quotation was based on an equal
product, and that the agency therefore properly rejected the
quotation for failure to include the required descriptive
literature demonstrating the equivalence of its quoted product
to the brand-name product. (American
Floor Consultants & Installations, Inc., B-294934;
B-294934.2, December 16, 2004) (pdf)
FAR sect. 11.104 allows the use of brand name or equal purchase
descriptions in describing agency needs in a solicitation, but
requires: (b) Brand name or equal purchase descriptions must
include, in addition to the brand name, a general description of
those salient physical, functional, or performance
characteristics of the brand name item that an 'equal' item must
meet to be acceptable for award. Acquisitions conducted under
FAR Parts 12 and 13 are not exempt from this requirement.
Thus, this brand name or equal RFQ was defective because it did
not list salient characteristics, so that quoters offering equal
products were left to guess at the desired essential qualities
of the brand-name item. See Ciba Corning Diagnostics Corp.,
B-223131, Aug. 13, 1986, 86-2 CPD para. 185 at 3. Where an
agency does not include a list of salient characteristics in the
solicitation, the agency is precluded from rejecting a quote
offering an equal product for noncompliance with some
performance or design feature, unless the offered item is
significantly different from the brand-name product. Id. at 4;
see Access Logic, Inc., B-274748, B-274748.2, Jan. 3, 1997, 97-1
CPD para. 36 at 3-6. Here, the Forest Service did not reasonably
determine that Elementar's offered equal product was
significantly different from the brand-name product. (Elementar
Americas, Inc., B-289115, January 11, 2002) (pdf) |
