BNUMBER: B-275076
DATE: January 21, 1997
TITLE: Safety Storage, Inc.
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Matter of:Safety Storage, Inc.
File: B-275076
Date:January 21, 1997
Samuel Z. Gdanski, Esq., for the protester.
LTC David D. Franke, Capt. Robert C. Spinelli and Joseph H. Doyle,
Esq., Department of the Army, for the agency.
Behn Miller, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Where request for quotations issued under small purchase
procedures did not contain a late quotations provision, agency
properly permitted a quoter to submit, after the closing date,
additional evidence of its compliance with solicitation's warranty
requirement.
2. Protest that agency improperly waived floor load and interior
square footage criteria for awardee is denied where: (1) record shows
that awardee's design fully complies with floor load requirement; and
(2) difference in interior square footage is slight, the awardee's
product meets the agency's needs, and waiver of the requirement did
not prejudice the protester.
DECISION
Safety Storage, Inc. (SSI) protests the award of a contract to LAMCO
Industries under request for quotations (RFQ) No. DABT01-96-T-0018,
issued by the Department of the Army for six steel prefabricated
storage sheds for the 209th Military Police Company at Fort McClellan,
Alabama. SSI contends that the Army improperly accepted a late
submission from LAMCO and otherwise waived the solicitation's
specified floor load and interior square footage requirements.
We deny the protest.
The RFQ was conducted as a brand name or equal small purchase
procurement under Federal Acquisition Regulation (FAR) sec. 13.103(g).
The solicitation's amended purchase item description identified the
required shed by means of the protester's brand name and product
number, and--of significance to this protest--required the shed to
have an interior square footage of 198 feet, a "uniformly distributed
[floor] load [capacity] of 500 p.s.f. [pounds per square foot]," and
a 10-year structural warranty. The solicitation advised quoters of
"equal" shed models to submit "specification sheets" demonstrating
compliance with the RFQ's purchase item description.
By the September 18, 1996 closing date, eight quotations were
received. Five firms--including LAMCO--submitted quotations for shed
model "Haz-Stor LK 1024"; one submitted a quotation for shed model
"CBS-8-20." Two other offerors--including the protester--submitted
quotations for the specified brand name: Safety Storage Shed Model
22N.
Although the protester's quotation was the lowest-priced, brand-name
quotation, on October 3 the Army issued a purchase order to LAMCO for
its lowest-priced, functionally equivalent ("equal") shed. On October
11, SSI filed this protest.
The record shows that on September 23, the Army requested a copy of
SSI's 10-year structural warranty. In its protest, SSI contends that
the Army improperly permitted LAMCO to submit evidence of its
compliance with the RFQ's structural warranty requirement after the
September 18 closing date. SSI also maintains that the Haz-Stor model
proposed by LAMCO does not comply with either the solicitation's floor
load capacity requirement or the interior square footage
requirement.[1]
SSI's challenge to the Army's decision to accept a post-closing date
submission from LAMCO is without merit. Agencies may use simplified
procedures that "promote competition to the maximum extent
practicable" for small purchases of property and services not expected
to exceed $100,000. 10 U.S.C. sec. 2304(g) (1994); 41 U.S.C. sec. 403(11)
(1994). Under these procedures, agencies generally may seek and
consider revisions to a quotation any time prior to the government's
issuance of a purchase order. See DataVault Corp., B-248664, Sept.
10, 1992, 92-2 CPD para. 166. This is because, unlike a request for
proposals or an invitation for bids, an RFQ does not seek offers that
can be accepted by the government to form a contract. Rather, the
government's purchase order is the offer which the proposed supplier
may accept through performance or by a formal acceptance document.
FAR sec. 13.108. Moreover, where, as here, an RFQ does not contain a
late quotations provision--but merely requests quotations by a certain
date--that date is not considered to be a firm closing deadline. See
A & B Trash Serv., B-250322, Jan. 22, 1993, 93-1 CPD para. 53. Thus, the
Army's decision in this case to permit LAMCO to submit evidence of its
compliance with the RFQ's structural warranty requirement is
unobjectionable.[2]
SSI next contends that the awardee's proposed shed does not meet the
RFQ's 500 p.s.f. floor capacity specification. SSI bases its argument
on a simple computation; dividing the awardee's advertised storage
capacity (49,000 pounds) by its interior square footage (196[3]), SSI
argues that the resulting number--250--represents the maximum floor
load capacity of the Haz-Stor shed.
Although the record indicates that the protester's calculation is a
reasonable method for roughly calculating the shed's floor load
capacity, the manufacturer of LAMCO's proposed shed--Haz-Stor
Company--and the Army point out that other factors affect the floor
capacity calculation in any particular case. Specifically, the record
shows that both the grating material--which supports the shed's
foundation--and the proximity of the floor support joint spans--which
support the shed's structure--significantly affect the load the shed
will bear; that is, a less durable grating material (e.g., wood) and
wide spaces between joint spans will result in a diminished floor load
capacity, whereas a heavier grating material (e.g., steel) and small
widths between joint spans will enable the shed to support a much
heavier uniform floor load. In this case, Haz-Stor's submissions show
that the combination of the shed's grating material and joint span
placement support a uniform floor load of 975 p.s.f.; consequently, we
deny this protest ground.[4]
With regard to SSI's interior square footage argument, the record does
show that despite the RFQ's stated requirement for an interior storage
area of 198 square feet, the awardee's Haz-Stor shed offers an
interior storage area of only 196 square feet. Generally, where a
solicitation sets forth design features in very specific terms,
offerors of an equal product must meet them precisely. Ross Cook,
Inc., B-231686, Sept. 7, 1988, 88-2 CPD para. 216. However, if the
discrepancy between the offered equal product and the stated brand
name is minor, and the offered product will meet the agency's needs, a
minor deviation in an offered equal product may be waived if there is
no prejudice to the other offerors. Defense FAR Supplement sec.
211.270-1(b)(3); CryoMed, B-241605, Feb. 22, 1991, 91-1 CPD para. 202.
The Army reports that the slight variation in the Haz-Stor shed's
interior square footage (2 feet) does not affect the suitability of
the shed for its intended purpose of storing small quantities of
petroleum products and related equipment. Moreover, despite specific
requests from this Office for a showing of prejudice, SSI has failed
to articulate how it would have altered its quotation had it known
that a slightly smaller interior storage area of 196 square feet would
meet the Army's needs. Under these circumstances, the Army's
acceptance of LAMCO's offered Haz-Stor shed is unobjectionable.
DataVault Corp., supra.
The protest is denied.
Comptroller General
of the United States
1. SSI also contends that LAMCO's offered shed does not possess the
identical corrosion protection system offered by the specified SSI
model; however, the solicitation did not require the SSI corrosion
system. In this regard, amendment No. 0001 to the RFQ changed the
corrosion protection requirement from SSI's design specification of
"corrosion protected steel; [United Laboratory] classified two-hour
fire-rated" to a more generic requirement for unspecified "special
coatings" to "minimize wear [and] corrosion" and "to reduce heat
absorption."
2. SSI also contends that LAMCO's quotation failed to include
sufficient descriptive data. However, where the descriptive
literature submitted with an offer does not show compliance, the
contracting agency may base a determination of acceptability on "any
other information available to the contracting agency," even if that
information was not included in the offer. See Barnard & Assocs.,
B-253367, Sept. 13, 1993, 93-2 CPD para. 157. In this case, the Army was
able to evaluate LAMCO's offered shed based on descriptive literature
set forth in the Army's contracting files, as well as descriptive data
included with other quotations submitted for the same Haz-Stor shed
model under this procurement.
3. The protester argues that some of the descriptive literature
regarding the awardee's proposed shed suggests an interior square
footage of 181 or 191 square feet. Our Office has confirmed that
these measurements do not pertain to the shed model quoted by the
awardee. In this regard, Haz-Stor manufactures many different 1024
shed types--each 1024 model has a different wall thickness (in part
depending on its required features, e.g., combustion protection) and
therefore a different interior square footage. For this procurement,
LAMCO submitted its quote based on the Haz-Stor LK1024 shed
model--which has an interior square footage area of 196 square feet.
4. Because Haz-Stor considers its grating material and joint span
placement to be proprietary information, our description of Haz-Stor's
submission is necessarily general. In this regard, while SSI did not
have access to the details of Haz-Stor's design, it was on notice of
the agency's general position that the grating material and joint span
placement affect the floor load capacity, and thus that SSI's simple
calculation, without taking into account these factors, did not
represent an accurate measurement of floor load capacity. SSI did not
attempt to refute the agency's position.