BNUMBER:  B-270893
DATE:  May 9, 1996
TITLE:  Avon Inflatables

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Matter of:Avon Inflatables

File:     B-270893

Date:May 9, 1996

James H. Falk, Sr., Esq., John M. Falk, Esq., and Robert K. Tompkins, 
Esq., The Falk Law Firm, for the protester.
Lucia E. Casale, Esq., Klimek, Kolodney & Casale, P.C., for Zodiac of 
North America, an intervenor.
Richard P. Castiglia, Jr., Esq., and Martin F. McAlwee, Esq., 
Department of the Air Force, for the agency.
David A. Ashen, Esq., and John M. Melody, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest against rejection of quotation of an "equal" boat under brand 
name or equal solicitation for inflatable rescue boats is denied where 
protester fails to establish that quoted boat's deviation from 
solicitation's salient characteristics was a minor deviation that did 
not affect the ability of the nonconforming product to meet the 
agency's actual functional needs.

DECISION

Avon Inflatables protests the award of a contract to Zodiac of North 
America under request for quotations (RFQ) No. F08650-95-R-A253, 
issued by the Department of the Air Force on a brand name or equal 
basis for inflatable rescue boats for use in the astronaut recovery 
program.  Avon argues that the Air Force improperly rejected its 
low-priced quotation based on immaterial deviations from the stated 
salient characteristics.

We deny the protest.

As amended, the RFQ requested quotations to furnish six Zodiac model 
No. F47OU inflatable rescue boats, or equal.  The RFP listed 14 
salient characteristics that the boats must meet and required quoters 
to submit descriptive literature with their quotations. 

Avon's quotation was rejected as unacceptable on the basis that the 
proposed Avon rescue boat failed to comply with five of the listed 
salient characteristics, including the requirement that the transom at 
the rear of the boat be 40 millimeter (mm) thick marine-grade plywood; 
Avon specified only a 32-mm thick transom.

Avon primarily argues that its boat was an equal product which met the 
essential needs of the agency and the functional, if not the precise, 
requirements, of the salient characteristics.

Agencies should waive minor deviations 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.  Astrophysics Research Corp., 66 Comp. Gen. 211 (1987), 87-1 
CPD  para.  65; General Projection Sys., Inc., B-241418.3, Dec. 27, 1991, 
91-2 CPD  para.  582; see also Defense Federal Acquisition Regulation 
Supplement  sec.  210.004(b)(3)(B)(2) (agency should "not reject offers for 
minor differences in design, construction, or features which do not 
affect the suitability of the product for its intended use").  

The Avon rescue boat deviated materially from the agency's actual 
needs, at least as to the transom thickness requirement.  The transom, 
a plywood board at the stern of the boat which closes the "U" created 
by the inflated flotation compartments, keeps out the sea and serves 
as a base for mounting the engine(s).  The Air Force reports that:

        "a failure of the transom based upon the lack of sufficient 
        strength would have catastrophic consequences to the success 
        of a rescue mission and may result in the loss of life.  Past 
        experience has revealed that a 40 mm transom is thick enough 
        to withstand the operational demands of missions which involve 
        the full panoply of crew, passengers and equipment.  We have 
        grave doubts that a transom which is only 32 mm thick can 
        withstand the same operational demands.  The 25 percent 
        thicker, stronger Zodiac transom allows the use of higher 
        horsepower outboard engines or twin engines in conjunction 
        with a four-piece full floorboard in high seas at maximum 
        speed over a longer period of time."

Avon does not dispute that its 32-mm transom is not as strong as the 
25-percent thicker, stronger 40-mm transom the salient characteristics 
specified.  Rather, Avon notes that the Air Force using activity has 
stated that the transom must support a "35 or larger horsepower 
engine"; Avon claims that the transom on its boat can support a 
40-horsepower engine and that there thus is no functional difference 
between the transoms.  

Avon's focus on engine size ignores the true importance of the transom 
thickness requirement.  The requirement for a 40-mm transom embodied 
the Air Force's determination, based on a history of successful use of 
the 40-mm transom, that it needs the greater margin of safety and 
operational flexibility afforded by the thicker, stronger transom in 
order to reduce risk in potentially dangerous applications.  Avon has 
offered no evidence that the strength of, and thus the margin of 
safety and operational flexibility provided by, its 32-mm transom is 
substantially equivalent to that of the thicker, stronger 40-mm 
transom specified in the RFQ.  In the absence of such a showing, there 
simply is no basis to conclude that Avon's 32-mm transom is materially 
equivalent to the required 40-mm transom.  We therefore conclude that 
Avon's quotation was properly determined to be unacceptable.  See 
generally Innovative Refrigeration Concepts, B-253983, Oct. 26, 1993, 
93-2 CPD  para.  260.

The protest is denied.

Comptroller General
of the United States