TITLE:  Daniel Technology, Inc., B-288853, December 13, 2001
BNUMBER:  B-288853
DATE:  December 13, 2001
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Decision

Matter of: Daniel Technology, Inc.

File: B-288853

Date: December 13, 2001

Sam Zalman Gdanski, Esq., for the protester.

Paul W. Knoth, Esq., Naval Supply Systems Command, for the agency.

Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest of purchase order for modified recorders from a vendor that
allegedly cannot provide products manufactured by protester is denied where
solicitation did not require that product be manufactured by protester, and
where agency otherwise reasonably determined that the vendor's quoted
product was technically acceptable based upon the vendor's quotation of the
same product number that was referenced in the solicitation with supporting
product literature that adequately demonstrated product's compliance with
the solicitation's limited performance specifications.

DECISION

Daniel Technology, Inc. protests the issuance of a purchase order to Saul
Mineroff Electronics, Inc. under request for quotations (RFQ) No.
N00600-01-Q-6754, issued by the Department of the Navy for modified Sony
MiniDisc recorders and related accessories. Daniel contends that, since the
RFQ sought quotations for a modified recorder and accessories manufactured
and distributed exclusively by Daniel, and, since Daniel does not intend to
supply its manufactured units to Mineroff, Mineroff's quotation must be
rejected as technically unacceptable.

We deny the protest.

The RFQ was issued on August 14, 2001 under simplified acquisition
procedures for 100 modified Sony MiniDisc recorders, including related
accessories, to be used in covert recording operations (such as during
criminal investigations or informant interviews). The limited product
specifications provided in the RFQ did not name "Daniel" as a required brand
name; the Daniel name, in fact, is not mentioned in any way in the RFQ.
Rather, certain product numbers were referenced in the RFQ's product
description along with limited performance specifications (e.g., calling for
compatibility with a referenced remote control, or for leads of a specified
length). RFQ at 2. The referenced product numbers are substantially similar
to (and some are identical to) product numbers Daniel states it has used to
identify its own products. [1] The RFQ did not state that a brand name, or
brand name or equal, acquisition was contemplated; no product testing or
sampling requirements were specified; no technical data package or drawings
were requested; and vendors were not asked to demonstrate technical
equality, interchangeability, or compatibility with any other modified
recorder system. [2] Rather, the RFQ requested quotations together with
"[p]roduct information showing that proposed MiniDisc [recorders] meet
Government requirements." Id. at 17. In this regard, as stated above, there
were only limited technical performance requirements included in the RFQ;
they were broadly stated in the product description contained in the RFQ's
pricing schedule, as follows:

Sony [MiniDisc] recorder system model MZR-900/D-1400 . . . [includes]:
MZ-R900/D [modified] recorder, NLS-2/MZ9 remote control switch (capable of
accepting AER-16-16NT wireless remote), EM-8/NT [stereo] microphone pair
with 4 ft length leads (capable of accepting STM W-9 [directed] mounted
microphone), BH-M body holster and SX-30 amplified loudspeaker (pair),
[enclosed] in P-14 Pelican Waterproof storage case. SPECIFICATIONS: records
in stereo & mono, 2X stereo and 4X stereo modes, all programming modes shall
be performed from the functional standard keyboard, recorder should utilize
industry standard adtrac-4 compression scheme, all modifications shall be
reversible to allow for [Sony] manufacturer [warranty] service.

Id. at 2.

A purchase order was to be issued to the vendor whose quotation, conforming
to the solicitation, was considered most advantageous to the government
considering, as equally weighted factors, the price and technical ability of
the quoted item to meet the government's requirements. Id. at 17.

Mineroff and Daniel submitted the only two quotations received by the
scheduled August 17 closing date. Mineroff submitted the low quote of $558
per unit (for an extended price of $55,800 for the 100 units); Daniel
submitted a quote for $668.75 per unit (for an extended price of $66,875).
Both vendors' quotations included a copy of identical product literature
describing enhancements to the Sony product in order to meet the RFQ's
performance requirements; the only difference in the specification pages was
the individual vendor's name and address affixed to each page. Finding that
both quotations' product sheets described products meeting the RFQ's
performance requirements and referenced the exact product numbers referenced
in the RFQ, the agency found both quotations technically acceptable.
Considering information it had regarding Mineroff's extensive electronics
experience, the agency also concluded that the vendor had the knowledge and
capability necessary to supply a compliant product to meet the agency's
needs. An order for the modified recorder kits and accessories was issued to
Mineroff at its substantially lower price. This protest followed.

Daniel contends that it told the agency, prior to the issuance of the RFQ,
that it was the exclusive manufacturer and distributor of Daniel's modified
recorder, MZR-900/D-1400, and that it did not intend to supply
Daniel-manufactured products to Mineroff. The protester contends that, since
the agency should have known Mineroff was quoting on something other than a
Daniel-manufactured product, the Mineroff quotation should have been
rejected as technically unacceptable.

The contracting agency has the primary responsibility for determining its
minimum needs and for determining whether a quoted item will satisfy those
needs, since it is the agency that is most familiar with the conditions
under which the supplies or services will be used, and it must bear the
burden of difficulties incurred by any defective evaluation. See Berkshire
Computer Prods., B-246305, Feb. 28, 1992, 92-1 CPD para. 242 at 2. In reviewing
an agency's assessment of technical acceptability, we will not substitute
our evaluation for the agency's, but will examine the agency's assessment to
ensure that it was reasonable and consistent with the stated evaluation
factors. See Herman Miller, Inc., B-230627, June 9, 1988, 88-1 CPD para. 549 at
2.

Despite Daniel's contentions otherwise, there is no basis to conclude that
the RFQ required a brand name Daniel item. As an initial matter, the name
"Daniel" simply is not mentioned in the RFQ at all. Daniel argues that the
product numbers referenced in the RFQ's product description are
substantially similar or identical to product numbers used by Daniel, and
that these numbers established a brand name procurement. We do not find the
protester's interpretation of the RFQ's use of these product numbers
reasonable.

Daniel's interpretation appears to be based on its own unsupported
assumptions as to the agency's actual requirements under the RFQ. As stated
above, Daniel reports that upon issuance of the RFQ, Daniel recognized what
it assumed were typographical errors in the product description, but did not
challenge the inaccuracies. Instead, Daniel concluded that only
Daniel-manufactured products were being sought because the RFQ referenced
some (and similar) product numbers Daniel had used before. Daniel relied on
this unconfirmed assumption even though the RFQ's product description did
not expressly call for a Daniel-manufactured product, but rather referenced
a Sony brand name product.

While the protester suggests that there can be no other interpretation of
the referenced product numbers than to indicate an exclusive
Daniel-manufactured product, the protester simply has not shown that the
pertinent RFQ product numbers must be interpreted as such--e.g., Daniel does
not show that the numbers have been formally registered in some way or are
publicly recognized in the marketplace as being exclusive or proprietary to
Daniel-manufactured products. Consequently, we cannot find that the RFQ's
referenced product numbers alone can be reasonably interpreted, as Daniel
suggests, as having converted this procurement to a brand name acquisition.
The RFQ must be read as a whole and, since only limited, broad performance
specifications were included in the RFQ, and vendors were not requested to
specifically certify to supplying any brand name product, we cannot conclude
that vendors were required to quote or supply only Daniel-manufactured
items. Since this is not a brand name procurement, vendors have the right to
procure the item from any manufacturer that complies with the general
specifications. See Wright Tool Co., B-272413, Sept. 11, 1996, 96-2 CPD
para. 113 at 2-3.

As stated above, to be found acceptable, the RFQ only required each vendor
to include enough information about its quoted product for the agency to
reasonably confirm that the product met the agency's requirements. Mineroff
and Daniel each provided a product performance specification page that
paralleled the RFQ's general performance requirements and product numbers.
Our review of the record, including these performance specification pages
and the RFQ's limited statement of product requirements, supports the
reasonableness of the agency's determination that both vendors submitted
adequate information to demonstrate product compliance under the broad terms
of this RFQ. [3] Whether or not Mineroff is capable of delivering a
compliant product relates to the vendor's responsibility, and an agency's
affirmative determination of responsibility is not for review by our Office
absent circumstances not present here--i.e., a showing of bad faith or
misapplication

of definitive responsibility criteria. [4] See Wright Tool Co., B-272413,
Sept. 11, 1996, 96-2 CPD para. 113 at 2-3. Additionally, whether or not Mineroff
ultimately supplies a compliant product concerns a matter of contract
administration not for our review. Bid Protest Regulations, 4 C.F.R.
sect.21.5(a).

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. The only brand name mentioned in the RFQ is Sony, and it is the "Sony
MiniDisc recorder system model MZR-900/D-1400" for which quotations were
sought. RFQ at 2. Daniel reports that it had assumed the RFQ contained
typographical errors in this regard because Sony does not manufacture a unit
with that precise model number. The protester assumed it was a
Daniel-manufactured product that was sought by the agency due to the direct
correlation between the product numbers cited in the RFQ and product numbers
used by Daniel. Daniel did not protest the terms of the RFQ prior to the
closing date for receipt of proposal and is now untimely to contest the
alleged impropriety. Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2001).

2. Daniel asserts that product testing should have been required to ensure
any quoted product's quality or interchangeability to the
Daniel-manufactured product. This contention, filed after award, relates to
the RFQ's failure to include testing or technical data package requirements,
an apparent solicitation impropriety that had to be challenged prior to the
closing time for receipt of quotations in order to be timely for review. Bid
Protest Regulations, 4 C.F.R. sect. 21.2(a)(1).

3. We believe Daniel's submission of the identical page of product
literature to establish its own technical acceptability undercuts its
challenge to the sufficiency of the information on that page to demonstrate
acceptability. As to the commonality of the performance specification page
in each quotation, Daniel alleges that Mineroff merely photocopied a Daniel
specification page and affixed its own letterhead to the document. Daniel
concedes, however, that the "performance specifications are used in
advertising and are therefore not proprietary to Daniel Technology . . . ."
Protest at 8. The product specification sheet submitted with the Daniel
quotation (similar to the one submitted by Mineroff) contains no restrictive
legend and it does not state that the information sheet is proprietary to
Daniel. To the extent that Daniel's subsequent protest submissions claim it
is proprietary to the protester and that Mineroff's use of the information
is unauthorized and unlawful, we note that the matter involves a dispute
between private parties not for our review. See Applied Communications
Research, Inc., B-270519, Mar. 11, 1996, 96-1 CPD para. 145 at 2-3; Olin
Corp.--Recon., B-252154.2, June 3, 1993, 93-1 CPD para. 428 at 2-3.

4. In its comments on the agency report, Daniel alleges for the first time
that Mineroff's quoted product is not a commercial item and thus cannot be
considered acceptable under the RFQ, which sought quotations of commercial
items. Our Bid Protest Regulations require that protests be filed no later
than 10 calendar days after the basis for protest was or should have been
known, 4 C.F.R. sect. 21.2(a)(2), and protesters are required to diligently
pursue all information that may give rise to protest grounds. Daniel has not
shown that information giving rise to this protest contention could not or
should not have been obtained earlier, and the issue raised, by the time the
firm filed its initial protest of the purchase order issued to Mineroff.
Accordingly, we consider the allegation untimely and it will not be
considered further. See Horizon Trading Co., Inc.; Drexel Heritage
Furnishings, Inc., B-231177, B-231177.2, July 26, 1988, 88-2 CPD para. 86 at
7-8.