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.