BNUMBER: B-281877
DATE: April 12, 1999
TITLE: SOG Specialty Knives, Inc., B-281877, April 12, 1999
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Matter of:SOG Specialty Knives, Inc.
File: B-281877
Date:April 12, 1999
Spencer Frazer for the protester.
W. S. Spotswood, Jr., for Fiskars Inc., an intervenor.
Adele Ross Vine, Esq., General Services Administration, for the
agency.
Paula A. Williams, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Where an invitation for bids required adequate descriptive literature
to determine whether the offered items conform to the technical
requirements and bidders were advised that failure to do so would
result in rejection of their bids, protester's bid offering equivalent
items was properly rejected as nonresponsive where the descriptive
information furnished with the bid did not show that the offered items
were equal to the brand name items solicited.
DECISION
SOG Specialty Knives, Inc. (SOG) protests the rejection of its bid as
nonresponsive under invitation for bids (IFB) No. 6FES-G3-980158-S,
issued by the General Services Administration on a brand name or equal
basis, for multi-purpose pocket survival knives (tools). GSA rejected
SOG's bid because the descriptive literature it submitted did not
establish that SOG 's offered tools were equal to the brand name.
We deny the protest.
The IFB contemplated award on an item by item basis for eight
different tools, only three of which are at issue here--item numbers
3, 4, and 5, described as Fiskars/Gerber part numbers 07500G, 07505G,
and 07520G, or equal. IFB, Item Purchase Description (IPD) at 2-7.
As relevant here, the IFB required that for item numbers 3 and 4, the
tool must have a non-glare satin finish and a plier head that shall
retract and slide into the handle. Item number 5 required the same
salient characteristics as item number 3 except that the tool was
required to have a black oxide finish. IFB, IPD at 3-4. Bidders
offering other than brand name items were required to submit with
their bids adequate descriptive literature for the agency to determine
the equality of their offered items and the items had to meet each of
the listed characteristics set forth in the IPD. Bidders were also
advised that failure to submit the required descriptive literature
would result in the rejection of the bid as nonresponsive. IFB sec. B.1,
at 7.
Fourteen bids were received by the November 17, 1998 bid opening date.
Agency Report, exh. 14, Abstract of Offers. As relevant to this
protest, SOG offered equivalent tools for item numbers 3, 4, and 5
(SOG part numbers S60-GSA-N, S60-GSA-L, and B60-GSA-N) and included
certain descriptive literature with its bid.[1] The descriptive
literature took the form of a short letter and seven pages of drawings
of the items with limited information typed/printed on each of the
seven pages (one page addressed two items not protested). Agency
Report, exh. 13, SOG Descriptive Literature. After completing a
technical review of SOG's offered items, GSA's supply specialist
advised the contracting officer that the offered products for item
numbers 3, 4, and 5 were not equal to the brand name model because the
tools do not have a retractable plier head as required by the
solicitation. In addition, for item numbers 3 and 4, the supply
specialist reported that, based on the protester's limited descriptive
literature, he was unable to determine whether the protester's offered
product complied with the non-glare satin finish requirement. Agency
Report, exh. 16, Technical Evaluation Report, Dec. 14, 1998, at 1st
and 2nd unnumbered pages. Thus, the contracting officer rejected the
protester's bid as nonresponsive because its descriptive literature
failed to show that the offered items--SOG part numbers S60-GSA-N,
S60-GSA-L, and B60-GSA-N--satisfied the salient characteristics in the
IFB. This protest followed.
SOG challenges the agency's determination that the tools bid for item
numbers 3, 4, and 5 were not equal to the brand name, essentially
contending that the offered products satisfied the salient
characteristics at issue. Protester's Comments at 2nd and 3rd
unnumbered pages. From our review of the record, including the IFB,
the bid, and the descriptive information provided with the bid, we
find that the agency reasonably determined that SOG's bid for items 3,
4, and 5 was not responsive to the solicitation.
To be responsive under a brand name or equal IFB, bids offering equal
products must conform to the salient characteristics of the brand name
equipment 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 Med. Sys., Inc.,
B-258945, Feb. 13, 1995, 95-1 CPD para. 67 at 2. When the descriptive
literature submitted with the bid fails to establish that the offered
products would meet all of the listed salient characteristics, the bid
must be rejected as nonresponsive. Infrared Techs. Corp.,
B-255709, Mar. 23, 1994, 94-1 CPD para. 212 at 3-4; AZTEK, Inc., B-229897,
Mar. 25, 1988, 88-1 CPD para. 308 at 3.
The record shows that the agency's primary concern with SOG's offered
product was that the tools do not have a plier head that retracts into
the handle. In his evaluation of the SOG products, the supply
specialist noted:
The plier head remains stationary and handles fold around the
plier head. The folding action of the tools for items 3, 4 and 5
shown by SOG in [their] literature is the same action shown in
SOG's items S44-M and B44-M submitted for item numbers 1 and 2
that have already been determined as equal. If the same folding
action is used for items 1 and 2 as a folding tool, it cannot be
a retractable item for item 3, 4, and 5. They do not retract
into the handle, which disqualifies them as being an equal to
Gerber items. As stated in my [previous] message with the
dictionary definition of retractable and folding, SOG knife is
clearly a folding tool and not retractable. SOG even states in
their literature furnished with their bid that their items are a
"folding plier tool."
The industry standard as established for industry in their
product catalogs clearly shows that "retractable" means items
sliding into another object. Statements in industries catalogs
such as utility knives with blades that retract into the handle,
measuring tapes with tape blades that retract into the case,
crowd control barriers with retractable webbing that retracts
into the pole or base, or ball point pens where the point
retracts into the pen case clearly indicates what industry
defines as retractable.
The industry catalogs also [show] folding items in product
catalogs, such as feeler gages where the blades fold back in the
case, and knives that have blades that fold into the handle.
There is clearly a distinct difference between retractable and
folding. The SOG tools are clearly a folding tool and do not
have a retractable plier head.
Agency Report, exh. 16, Technical Evaluation Report, Dec. 14, 1998, at
1st and 2nd unnumbered pages.
The protester disputes these findings on the basis that the technical
drawings included in its bid show that the SOG powerlock "uses five
pivots that allow the plier head to retract and slide into the handles
as they are rotated around it. . . . As the handles rotate they force
the plier head to retract inward and downward and finally slide into
the handles." Protest at 2nd unnumbered page. In its view, had the
agency focused on the "motion of the entire tool and its parts," the
agency would have determined that the SOG plier head retracts and
slides into the handle. In any event, the protester explains that
use of the phrase "folding plier tool" in its descriptive literature
was not intended to limit or negate the fact that its "plier head
functions in a complex geared action of folding, retracting, sliding,
drawing back, etc." Id.[2]
Notwithstanding SOG's assertions of compliance with the plier head and
non-glare satin finish requirements, we agree with the agency that
SOG's bid documents did not demonstrate that its offered equivalent
products met the solicitation requirements. As previously stated,
the descriptive literature provided with the SOG bid consisted simply
of seven pages of drawings with typewritten information which
essentially repeated the salient characteristics listed in the
solicitation.
For example, one of the protester's drawings for item numbers 3, 4,
and 5 merely depicts three views of the offered tool with the
following words typed below the third view: "[P]lier head retracts
and slides into handle as the handles rotate around it. Retract is
defined as 'To draw back or in' as per Webster dictionary." Agency
Report, exh. 13, SOG Descriptive Literature, at 4th unnumbered page.
The record shows that for item numbers 3, 4, and 5, the IPD
requirements sought a tool with a plier head that retracts and slides
into the handle rather than a folding tool, which the agency was
buying under other item numbers. The information that accompanied
SOG's bid does not establish that SOG was offering a product equal to
the one solicited. Rather, the products at issue here were described
as a "folding plier tool," and the drawings do not indicate otherwise.
In fact, the drawings show that the plier head is stationary and that
the handles fold around the plier head. Thus, SOG's conclusory
statement--that the plier head retracts and slides into the
handle--was either inconsistent with, or not supported by, the
information furnished with the protester's bid.
As to the type of finish for item numbers 3 and 4, the protester's
descriptive literature contained the following typed statements:
"S60-GSA-N [item number 3] standard finish [n]ylon pouch. S60-GSA-L
[item number 4] standard finish [l]eather pouch." Agency Report, exh.
13, SOG Descriptive Literature, at 3rd unnumbered page. Clearly, this
information provided no basis for the agency to determine whether
SOG's "standard finish" would satisfy the solicitation's non-glare
satin finish requirement for item numbers 3 and 4.
While the protester contends that the agency could have resolved any
uncertainties regarding the technical equivalence of its offered
product by asking for samples, bid responsiveness must generally be
ascertained from the bid documents themselves, not from explanations
or samples provided by the bidder after bids have been opened and bid
prices exposed. See Crash Rescue Equip. Serv., Inc., B-245653, Jan.
16, 1992, 92-1 CPD para. 85 at 3. Accordingly, we conclude that the
agency reasonably rejected SOG's bid offering an equal product for
item numbers 3, 4, and 5 as nonresponsive based its determination, as
explained above, that the descriptive literature submitted with the
bid did not clearly show conformance with the IFB requirements.
To the extent SOG argues that the plier head requirement is unduly
restrictive and alleges that the requirement describes patented
technology that is proprietary to Fiskars/Gerber, its protest is
untimely since protests based upon alleged improprieties in an IFB
which are apparent prior to bid opening must be filed prior to that
time. Bid Protest Regulations, 4 C.F.R. sec. 21.2(a)(1) (1998). Even if
the protester's prebid inquiries to the contracting officer could be
considered an agency-level protest, the contracting officer's November
13 response rejected that claim because the agency stated that it did
not consider the plier head requirement to be restrictive or unduly
favoring Fiskars/Gerber or its distributors. Since the protester did
not file a subsequent protest with our Office within 10 days after its
receipt of the agency's November 13 letter, this protest ground is
untimely and we will not consider SOG's allegations in this regard.[3]
4 C.F.R. sec. 21.2(a)(3).
The protest is denied.
Comptroller General
of the United States
1. Bidders were permitted to submit a bid for any or all of the items
on the bid schedule. IFB sec. 52.212-1(h), at 34, M-FSS-300-A, at 39.
SOG submitted the apparent low bid for item numbers 1, 2, 3, 4, and 5;
its offered tools for item numbers 1 and 2 were determined to be
equivalent to the brand name and model specified for these two items.
Agency Report, exh. 14, Abstract of Offers, exh. 6.
2. SOG points out that prior to submitting its bid, the contracting
officer had responded to its inquiries regarding the restrictive
nature of the requirement that the plier head must retract and slide
into the handle. Protester's Comments at 1st, 2nd, and 3rd,
unnumbered pages. According to the protester, the contracting
officer's response refined and clarified this IPD requirement since
she stated:
The words, "Plier head shall retract and slide into the
handle" is not a proprietary statement. The words
"retract and slide" are common verbs used in the context
to describe what is expected, in regard to the function of
the tool. How the knife folds out or in, how they slide
out or retract and slide into the handle is not a concern,
as long as it performs that function. No specific
retractable plier head system is stated in the IPD's.
Agency Report, exh. 11, Letter from Contracting Officer to Protester 1
(Nov. 13, 1998).
To the extent the protester alleges that this response indicates that
the plier head requirement would be read in a manner that would render
SOG's products acceptable, we disagree. We think the response makes
clear that the IPD did not specify a particular approach to satisfying
the requirement for a plier head that retracts and slides into the
handle--but it did not waive or modify that requirement.
3. We note, however, that SOG's challenge to the requirement for a
tool with a retracting head, separate from the need for a folding
tool, appears to be refuted by the agency which explains that the two
products "are different in function and a customer that is in a tight
spot when working on a vehicle, or other mechanism that has close
quarters may not have the room to unfold the SOG knife to use the
pliers. The tool that the government has required . . . is pliers
that can be used without completely unfolding the handle and . . .
does not take up as much room in tight places." Agency Report, exh.
18, at 2nd unnumbered page.