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.