BNUMBER:  B-274828
DATE:  January 7, 1997
TITLE:  FFR-Bauelemente + Bausanierung GmbH

**********************************************************************

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.