BNUMBER: B-265662
DATE: December 19, 1995
TITLE: Hilti, Inc.
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Matter of:Hilti, Inc.
File: B-265662
Date: December 19, 1995
Alison L. Doyle, Esq., McKenna & Cuneo, for the protester.
Hiltrud J. McInturff for Liebig International, Inc., an interested
party.
Robert L. Mercadante, Esq., Defense Logistics Agency, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq.,
Office of the General Counsel, GAO, participated in the preparation of
the decision.
DIGEST
Protest of award to offeror of alternate product is sustained where
agency failed to apprise offerors that interchangeability for purposes
of only one limited application was required.
DECISION
Hilti, Inc. protests the award of a contract to Liebig International,
Inc. under request for proposals (RFP) No. SPO500-95-R-0100, issued by
the Defense Logistics Agency (DLA) for expansion shields. The
expansion shields are used to anchor items to concrete. Hilti
contends that the agency improperly determined that the Liebig item
and the item offered by a third manufacturer, Rawl Plug, were
interchangeable with the brand name Hilti part requested by the
solicitation. The protester further argues that if the Liebig and
Rawl Plug parts in fact satisfy the agency's requirements, the agency
overstated its needs by requesting an item interchangeable with its
brand name product.
We sustain the protest.
BACKGROUND
The RFP, as amended, requested offers on 37,900 expansion shields,
Hilti Part No. HSL M12/50, also identified by National Stock Number
5340-01-371-2434. The solicitation did not specify the application
for which the anchors were being acquired. The RFP incorporated DLA's
"Products Offered" clause, which allows firms to offer alternate
products which are physically, mechanically, electrically, and
functionally interchangeable with the product identified in the
solicitation. Award was to be made to the offeror of an acceptable
product whose price was most advantageous to the government. Nine
offerors responded to the RFP by the March 31, 1995, closing date.
The six low offerors, their prices, and the products they offered,
were as follows:
Offeror Unit Price Product Offered
Liebig $2.14 Liebig P/N LAH 34.558
Cast Sales $3.29 Rawl Plug P/N 6954
Apex Pinnacle $3.30 ANKR-TITE 5/8 Female Wedge
Anchor
Kampi Components $3.85 Liebig P/N LAH 34.558
San Diego Supply $4.04 Rawl Plug P/N 6954
Hilti $4.1985 Exact Item
After reviewing data describing the Liebig, Rawl Plug, and ANKR-TITE
anchors, the agency's technical specialist determined that both Liebig
P/N LAH 34.558 and Rawl Plug P/N 6954 were acceptable, but that the
ANKR-TITE part was not. He did not record his analysis in reaching
this conclusion; thus, there is no evidence in the record as to which
characteristics of the Hilti part he considered in comparing the
Liebig and Rawl anchors to it.[1]
The agency conducted discussions with all the offerors of technically
acceptable products and requested best and final offers. Liebig
remained the low offeror, with a unit price of $2.14; Cast Sales,
which lowered its unit price to $2.94, remained second low. Hilti,
which did not revise its unit price of $4.1985, was fifth low. On
July 28, the agency awarded a contract to Liebig.
ANALYSIS
DLA argues that its technical specialist reasonably determined the
Liebig anchor to be interchangeable with the specified Hilti part.[2]
In this regard, the agency contends that the two anchors are similar
in design[3] and that the Liebig part has a more favorable ratio
between its tension and shear working loads compared to ultimate
loads. The agency also notes that, although unknown to the
contracting officer at the time of evaluation, the Air Force had
developed a specification for anchor bolts to be used to secure
fiberglass mats to concrete pavement, which stated that both Hilti P/N
HSL M12/50 and Liebig P/N LAH 34.558 would be acceptable without
further testing.
Hilti contends that the evidence presented by the agency does not
establish that the Liebig part is interchangeable with its part. In
particular, the protester asserts that the Liebig part is inferior to
its part with respect to two performance characteristics: clamping
capability and dynamic performance. Hilti argues that its anchor will
provide full clamping force even if a gap of up to 8 millimeters
exists between the concrete surface and the device being fastened, due
to its incorporation of a special collapsible plastic section not
present on the Liebig anchor. The Liebig anchor, in contrast, could
lose up to 60 percent of its clamping capability if such a gap exists,
according to the protester. Hilti further argues that its anchor is
superior to Liebig's in terms of dynamic performance due to its
close-tolerance machined expansion sleeve, which contains
cross-hatching. Hilti contends that while it manufactures other
anchors with comparable, or higher, tensile and shear capabilities,
their expansion sleeves---like Liebig's--are a lower-cost smooth
piece, which provides limited dynamic capabilities.
In response, the agency concedes that it never considered whether the
Hilti anchor might be superior to the Liebig anchor in terms of
dynamic performance and clamping capability. It contends that this is
of no consequence, however, since it did determine that both anchors
would meet its minimum needs for purposes of the intended application,
i.e., runway repair.
An agency may properly express its needs by specifying a particular
product and affording other firms an opportunity to submit offers for
alternate products (as DLA has done by use of its Products Offered
clause) where, as here, the agency has insufficient technical
information to more adequately describe its requirements. Ampex
Recording Media Corp., B-247722; B-247801, July 2, 1992, 92-2 CPD 2,
aff'd, B-247722.2; B-247801.2, Jan. 28, 1993, 93-1 CPD 71. When
using this method of describing its needs, agencies may not relax the
requirement of the Products Offered clause that an alternate item be
physically, mechanically, electrically, and functionally
interchangeable with the named product. Id. This means that an
agency does not have the discretion to accept an item that is not
interchangeable with the named item based on a finding that it
otherwise satisfies the agency's minimum needs. Hobart Bros. Co.,
B-222579, July 28, 1986, 86-2 CPD 120, modified, B-222579.2, Sept.
19, 1986, 86-2 CPD 323. Similarly, we think that unless offerors
have been placed on notice that interchangeability for purposes of one
limited application is all that is required, an agency may not accept
as an alternate an item which has not been determined to be
interchangeable for all applications. Without being so advised,
potential offerors do not know that the agency requires an alternate
product to be interchangeable with only those elements of the named
product relating to its intended use, and instead reasonably would
assume that they must offer either the named item or an alternate
which is interchangeable in all respects with the named item.
That is precisely what happened here. As noted above, the protester
asserts that the Liebig part is inferior to the named Hilti part with
respect to clamping capability and dynamic performance. The agency
does not rebut this assertion; in fact, the agency concedes that it
did not consider whether the Liebig part was interchangeable with the
Hilti part in these areas. Instead, the agency states that it did not
really require an anchor with all of the characteristics of Hilti P/N
HSL M12/50; it required only an anchor that would adequately anchor
runway pads. In other words, in requesting only parts physically,
mechanically, electrically, and functionally interchangeable with the
specified Hilti part, the agency overstated its needs. See id. This
resulted in prejudice to Hilti, which claims that had it realized that
the agency did not require an anchor with the dynamic performance and
clamping capabilities of its P/N HSL M12/50, it could have offered a
lesser quality, lower-priced anchor from its KwikBolt line.[4]
Accordingly, we sustain Hilti's protest. We recommend that the agency
terminate the award to Liebig and resolicit the requirement using a
specification which reflects its actual needs.[5] We also find that
Hilti is entitled to the costs of filing and pursuing its protest,
including reasonable attorneys' fees. 4 C.F.R. 21.6(d)(1) (1995).
In accordance with 4 C.F.R. 21.6(f), Hilti's claim for such costs,
detailing the time expended and the costs incurred, must be submitted
directly to the agency within 60 days after receipt of this decision.
The protest is sustained.
Comptroller General
of the United States
1. According to the agency, the technical specialist made pencil
notes, which he discarded after entering his determination in the
computer records.
2. The agency offers no rebuttal to the protester's additional
argument that the other alternate item found acceptable--the Rawl Plug
part--is not interchangeable with the specified Hilti part. Given our
conclusion, discussed in detail below, that the solicitation
overstated the agency's minimum needs, we need not decide whether the
agency properly concluded that the Rawl Plug part is interchangeable
with the Hilti part.
3. The agency concedes that the outside diameter of the Liebig anchor
exceeds that of the Hilti part and that a larger hole would therefore
have to be drilled to accommodate the Liebig anchor. The agency
contends that this difference is inconsequential, however, since the
Air Force bases that will be installing the anchors will have on hand
drill bits capable of drilling holes large enough to accommodate the
Liebig anchors.
4. Although DLA contends that the Hilti KwikBolt would not meet its
needs under this solicitation, the protester has effectively rebutted
all of the arguments proffered by the agency as to why its KwikBolt
would be unsuitable. For example, DLA argues that the Hilti 3/4-inch
KwikBolt would not meet its requirement for a bolt with a length not
less than 5 inches and not greater than 6 inches since it comes in a
variety of lengths, some shorter than 5 inches and some longer than 6
inches. In response, Hilti points out that one of the lengths that
the 3/4-inch KwikBolt comes in is 5-1/2 inches, which would satisfy
the agency's requirement.
5. For example, DLA could consider using the Air Force specification
for anchor bolts to which it repeatedly referred during the course of
this protest. We recommend that, before drafting the specification,
DLA verify with the requesting activities that they do intend to use
the bolts to anchor runway pads. As the protester points out, there
is no evidence in the record that the requesting activities ever
specified their intended use for the anchors. In addition, the
protester has effectively rebutted DLA's argument that this is the
only purpose for which the anchors may be used.