BNUMBER: B-265662.2; B-265662.3
DATE: March 28, 1996
TITLE: Liebig International, Inc.; Defense Logistics
Agency--Reconsideration
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Matter of:Liebig International, Inc.; Defense Logistics
Agency--Reconsideration
File: B-265662.2; B-265662.3
Date:March 28, 1996
Hiltrud J. McInturff, Liebig International, Inc., and Robert L.
Mercadante, Esq., Defense Logistics Agency, for the requesters.
Alison L. Doyle, Esq., McKenna & Cuneo, for Hilti, Inc., an interested
party.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq.,
Office of the General Counsel, GAO, participated in the preparation of
the decision.
DIGEST
Requests for reconsideration purporting to demonstrate equivalency of
alternate expansion shield to brand name expansion shield in terms of
clamping capability and dynamic performance are denied where basis for
initial decision sustaining protest of award to offeror of alternate
part was not that alternate part was inferior to brand name part with
regard to these attributes, but rather that the agency had not sought
to determine the equivalency of the two parts in these two areas, and
in fact had overstated its needs by not advising offerors that
complete equivalency to brand name item was not required.
DECISION
Liebig International, Inc. and the Defense Logistics Agency (DLA)
request reconsideration of our decision Hilti, Inc., B-265662, Dec.
19, 1995, 95-2 CPD para. 275, in which we sustained Hilti's protest
against DLA's award of a contract for expansion shields to Liebig
under request for proposals No. SPO500-95-R-0100. Both parties argue
that we overlooked evidence in the record which demonstrates that the
Liebig part offered is at least the equivalent of the specified brand
name Hilti part.
We deny the requests for reconsideration.
Under our Bid Protest Regulations, to obtain reconsideration, the
requesting party must either show that our prior decision contains
errors of fact or law, or present information not previously
considered that warrants reversal or modification of our decision. 4
C.F.R. sec. 21.14(a) (1995). Neither repetition of arguments made during
our consideration of the original protest nor mere disagreement with
our decision meets this standard. Dictaphone Corp.--Recon.,
B-244691.3, Jan. 5, 1993, 93-1 CPD para. 2. Nor will we consider
arguments that could have been, but were not, raised during our
initial consideration of the protest since to do so would undermine
the goal of our bid protest forum--to produce fair and equitable
decisions based on consideration of the parties' arguments on a fully
developed record. Ford Contracting Co.--Recon., B-248007.3;
B-248007.4, Feb. 2, 1993, 93-1 CPD para. 90. Neither of the requests here
meets the standard for reconsideration of our decision.
In citing evidence purporting to demonstrate that Liebig part No. LAH
34.558 was at least the equivalent of Hilti part No. HSL M12/50 in
terms of clamping capability and dynamic performance, both requesters
misconstrue the basis for our original holding. We did not find that
the Liebig part was inferior to the Hilti part with regard to the
aforementioned attributes; we found that the agency--by its own
admission--had not sought to determine the equivalency of the two
parts in these two areas.[1] We noted that the agency's justification
for failing to examine whether the Liebig part was equivalent to the
Hilti part in terms of clamping capability and dynamic performance was
that these were not significant attributes for purposes of the
intended application, runway repair. We concluded that it was
improper for an agency that had specified that it would consider only
items physically, mechanically, electrically, and functionally
interchangeable with the product identified in the solicitation, i.e.,
the Hilti part, to accept an item that it had not determined to be
interchangeable with the named product in all respects. We further
concluded that by asking for an item interchangeable with a named
product when it did not really require an item with all of the
characteristics of the named item, the agency had overstated its
needs. None of the information cited by either of the parties in
their requests for reconsideration alters the foregoing conclusions.
DLA further argues that we erred in concluding that Hilti might have
been prejudiced by the agency's overstatement of its needs. The
agency maintains that an anchor from Hilti's lower-priced KwikBolt
line--which Hilti claimed it could have offered had it realized that
the agency did not require an anchor with the dynamic performance and
clamping capabilities of its part No. HSL M12/50--would not meet its
minimum needs since the KwikBolt is a stud head (as opposed to an
anchor head) bolt, and stud heads have a greater tendency to puncture
aircraft tires. The agency also notes that it requires "heavy duty"
anchors, while the KwikBolt is merely "medium duty."
DLA never advised us during our consideration of the protest that the
type of head on the bolt was significant for purposes of its intended
application.[2] Since this argument could have been, but was not,
raised during the protest, it does not provide a basis for
reconsideration of our decision. Id. Further, although Hilti labels
the KwikBolt a "medium duty," as opposed to a "heavy duty," bolt, the
bolt has--according to Hilti--tensile and shear capabilities in excess
of the minimums defined by the agency; thus, we do not see the
significance of the difference in nomenclature used by DLA.
The requests for reconsideration are denied.
Comptroller General
of the United States
1. Hilti and Liebig submitted conflicting evidence regarding the
alleged equivalency of parts with respect to the clamping capability
and dynamic performance attributes. We did not resolve this dispute
because the agency had not sought to do so.
2. Indeed, as we noted in our decision, DLA never established that
runway repair was the application intended by the activities
requisitioning the bolts; it merely indicated that it had surmised
that this was the intended application since it was the only
application of which its contracting personnel were aware.