BNUMBER: B-274828
DATE: January 7, 1997
TITLE: FFR-Bauelemente + Bausanierung GmbH
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Matter of:FFR-Bauelemente + Bausanierung GmbH
File: B-274828
Date:January 7, 1997
Paul D. Reinsdorf, Esq., for the protester.
Maj. Samuel T. Stevenson, Department of the Army, for the agency.
Jeanne W. Isrin, Esq., David Ashen, Esq., and John M. Melody, Esq.,
Office of the General Counsel, GAO, participated in the preparation of
the decision.
DIGEST
Bid offering an "equal" window was properly rejected as nonresponsive
where the bid documents submitted failed adequately to identify the
exact item offered, thereby precluding evaluation as to whether the
item met the specified salient characteristics of the brand name
product; information submitted by the bidder after bid opening
identifying the specific "equal" window offered could not correct the
deficiency because bid responsiveness must be ascertained from the bid
documents themselves or other information reasonably available to the
agency prior to bid opening.
DECISION
FFR-Bauelemente + Bausanierung GmbH (FFR) protests the rejection of
its bid as nonresponsive and the consequent award of a contract to
Bauunternehmung Ehrenfels (Ehrenfels) under invitation for bids (IFB)
No. DAJA22-96-B-0063, issued by the Wiesbaden Regional Contracting
Center, Department of the Army, for the insulation and painting of
buildings 6534 and 6539 in Roman Way Village, Butzbach and buildings
6402 and 6403 in Marshall Village, Giessen, two military housing areas
in Germany. The Army rejected FFR's bid because the bid documents did
not demonstrate that FFR was offering a product "equal" to the brand
name product specified in the IFB.
We deny the protest.
The IFB, which contemplated award of a firm, fixed-price construction
contract, contained three sets of specifications, the first for work
to be done to building 6534, the second for building 6539, and the
third for buildings 6402 and 6403. All three sets of specifications
included the requirement that the windows be "Thermally insulated
aluminum window-frame of profile series 'Hartmann-Systherm', or equal,
with heat transition co-efficient K=2, 8 w/qm x K." The
specifications listed a number of salient characteristics, including
required dimensions and colors, for the windows, with slight
variations among the three sets.
The IFB included the standard clause found at Defense Federal
Acquisition Regulation Supplement (DFARS) sec. 252.211-7003, entitled
"Brand Name or Equal" (Dec. 1991), which provides, in pertinent part,
that to be considered for award, offers of "equal" products must:
"(1) Meet the salient physical, functional, and other
characteristics specified in this solicitation;
"(2) Clearly identify the item by--
"(i) Brand name, if any; and
"(ii) Make or model number;
"(3) Include descriptive literature such as cuts,
illustrations, drawings, or a clear reference to previously
furnished descriptive data or information available to the
Contracting Officer. . . ."
In addition, paragraph K.9 of the IFB required that offerors intending
"to provide products, equipment, material, articles, or patented
processes which differ from the brand name, trade name, make, model,
or catalog number described in the specifications" enter the following
information:
Specification Brand Name Mentioned Description of
Material
Page and Position Plans or Specifications or Equipment,
Name, Make,
Model Number, Model or Catalog
Number, Date and Item
offered
.
The DFARS clause advised that the "Contracting Officer will evaluate
'equal' products on the basis of information furnished by the Offeror
or identified in the offer and reasonably available to the Contracting
Officer"; it specifically cautioned that "[t]he Contracting Officer is
not responsible for locating or securing any information not
identified in the offer and reasonably available."
FFR submitted the low bid of the 13 bids received by bid opening.
Under paragraph K.9 of its bid, FFR referenced the window
specification in the third set of specifications (buildings 6402 and
6403) and entered the brand name "Schueco" and the description
"Iskotherm window." FFR, however, did not identify a specific model
number of window; nor, according to the Army, did FFR submit any
descriptive literature with its bid. Although contracting officials
were able to locate a Schueco catalogue, they found that Schueco
manufactured many items, and that without a make, model number, or
detailed description to identify the exact item offered, no evaluation
to ascertain conformance with the salient characteristics could be
made. Since the agency could not determine whether FFR's proposed
window was an acceptable "equal" to the name brand window, it rejected
FFR's bid as nonresponsive and instead made award to the next low,
responsible bidder, Ehrenfels.
FFR argues that its bid contained sufficient information to establish
that the Schueco window it offered was equal to the brand name
specified. FFR claims that it in fact submitted general brochures
regarding Schueco windows.[1] Further, FFR asserts that, in any case,
Schueco is a large, well-known firm whose catalogues are widely
available and known to the government, and that based on these,
contracting officials should have been able to determine the equality
of the Schueco window. According to the protester, identification of
the exact model window offered was not necessary as no specific
Hartmann-Systherm model was identified in the IFB.
To be responsive under a brand name or equal IFB, bids offering
"equal" products must conform to the salient characteristics of the
brand name product listed in the solicitation. A bidder must submit,
with its bid, sufficient descriptive literature to permit the
contracting agency to assess whether the "equal" product meets all the
salient characteristics specified in the IFB. Advanced Medical Sys.,
Inc., B-258945, Feb. 13, 1995, 95-1 CPD para. 67. When the descriptive
literature submitted with the bid or other information reasonably
available to the agency does not show compliance with all salient
characteristics, the bid must be rejected. Lappen Auto Supply Co.,
Inc., B-261475, Aug. 14, 1995, 95-2 CPD para. 68; AZTEK, Inc., B-229897,
Mar. 25, 1988, 88-1 CPD para. 308.
The rejection of FFR's bid was proper. The IFB required bidders
offering equal products to identify the item by brand name and make or
model number, and provide descriptive literature or a clear reference
to previously furnished descriptive data or information available to
the contracting officer which demonstrated the equality of the offered
item. The record indicates that FFR, however, submitted a bid which
offered as an equal Schueco brand Iskotherm windows, but failed to
provide a make or model number or otherwise sufficiently identify a
specific window such that the agency could evaluate its compliance
with the salient characteristics. Although FFR claims to have
submitted with its bid general brochures regarding Shueco windows, we
note that FFR has not submitted copies of the specific brochures it
allegedly provided prior to bid opening, nor specifically explained
how they or any other Schueco catalogue available to contracting
officials prior to bid opening established the compliance of its
offered item with all of the stated salient characteristics, including
required dimensions and colors.[2] Schueco manufactures more than one
window system, and regardless of what brochures or catalogs were
available to contracting officials, without identification of the
exact item FFR was committed to furnishing, no evaluation could be
made as to whether the offered item met all of the salient
characteristics listed in the IFB. As for the IFB's failure to
identify a specific make or model number of Hartmann-Systherm window
as the brand name, this was of no consequence since items offered as
equals were to be evaluated against the stated salient
characteristics. (Indeed, a bid offering a brand name item that does
not comply with the stated salient characteristics must be rejected as
unacceptable. Tel-Med Info. Sys., 66 Comp. Gen. 504 (1987), 87-1 CPD para.
561.)
FFR notes that in response to the Army's post-bid opening inquiries,
it identified its offered item as the Schueco Royal S 65 window and
submitted descriptive literature for that model such that the agency
was able to determine that the Schueco Royal S 65 window would be
technically acceptable. However, bid responsiveness must be
ascertained from the bid documents themselves, or other information
reasonably available to the agency prior to bid opening, and not from
explanations or clarifications provided by the bidder after bids have
been opened and bid prices exposed. PRO/DES, Inc., B-256541, June 30,
1994, 94-1 CPD para. 395. Since only by querying FFR after bid opening
could it be determined what window FFR was offering as an equal and
thus whether it complied with the stated salient characteristics,
FFR's bid was nonresponsive and could not be accepted.
The protest is denied.
Comptroller General
of the United States
1. In rebuttal, the agency has submitted a statement from the bid
opening officer in which she states that no brochures were submitted
with FFR's bid.
2. While FFR notes that all Shueco systems comply with German
industrial standards, it does not explain why this demonstrates
compliance with all of the stated salient characteristics, including
required dimensions and colors.