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