TITLE:  Elementar Americas, Inc., B-289115, January 11, 2002
BNUMBER:  B-289115
DATE:  January 11, 2002
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Decision

Matter of: Elementar Americas, Inc.

File: B-289115

Date: January 11, 2002

Scott Hughes for the protester.

Alan D. Groesbeck, Esq., Department of Agriculture, for the agency.

Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Procuring agency unreasonably evaluated the protester's quote of an "equal"
product under a "brand name or equal" solicitation conducted under
simplified acquisition procedures where the procuring agency did not
reasonably consider the protester's descriptive literature describing the
characteristics of its product.

DECISION

Elementar Americas, Inc. protests the issuance of a purchase order to CE
Elantech, Inc. under request for quotations (RFQ) No. EAZ-33-01-104, issued
by the United States Department of Agriculture, Forest Service, Asheville,
North Carolina, for a "112-302-15 CE Instruments Model Flash EA1112
Combustion Nitrogen/Carbon Analyzer, OR EQUAL."

We sustain the protest.

The RFQ, issued July 26, 2001, was conducted under the simplified
acquisition and commercial items procedures contained in Federal Acquisition
Regulation (FAR) Parts 12 and 13. The Forest Service posted the requirement
on CBDNET on July 11 with no identified salient physical, functional, or
performance characteristics that "equal" products must meet to be acceptable
for award, except the statement that "[e]quipment should have ability to run
samples in approximately 3 minutes." Agency Report, Tab B, CBDNET Notice.
The RFQ then specified the solicited equipment, also without listing any
salient characteristics or other essential minimum requirements to be met by
an equal product, but advised that quotes should contain:

[a] technical description of the items being offered in sufficient detail to
evaluate compliance with the requirements in the solicitation. This may
include product literature, or other documents, if necessary.

RFQ sect. 52.212-1(b)(4). There was no mention in the RFQ of any requirement to
run samples in approximately 3 minutes.

The Forest Service received quotes from Elantech and Elementar by the August
13 closing date. Elantech's quote, priced at $32,675, was based on providing
the brand- name product. Elementar's quote, priced at $28,200, was based on
furnishing its own "equal" product, the vario EL III. Both Elantech and
Elementar included product literature in their quotes. The Forest Service
determined that Elementar's product was not equal to the brand-name product
and issued a purchase order to Elantech on September 13. Before this protest
was filed, the equipment was delivered.

Elementar protests that the Forest Service unreasonably determined that its
offered product was not equal to the brand-name product.

FAR sect. 11.104 allows the use of brand name or equal purchase descriptions in
describing agency needs in a solicitation, but requires:

(b) Brand name or equal purchase descriptions must include, in addition to
the brand name, a general description of those salient physical, functional,
or performance characteristics of the brand name item that an 'equal' item
must meet to be acceptable for award.

Acquisitions conducted under FAR Parts 12 and 13 are not exempt from this
requirement. [1] Thus, this brand name or equal RFQ was defective because it
did not list salient characteristics, so that quoters offering equal
products were left to guess at the desired essential qualities of the
brand-name item. See Ciba Corning Diagnostics Corp., B-223131, Aug. 13,
1986, 86-2 CPD para. 185 at 3. [2] Where an agency does not include a list of
salient characteristics in the solicitation, the agency is precluded from
rejecting a quote offering an equal product for noncompliance with some
performance or design feature, unless the offered item is significantly
different from the brand-name product. Id. at 4; see Access Logic, Inc.,
B-274748, B-274748.2, Jan. 3, 1997, 97-1 CPD para. 36 at 3-6. Here, the Forest
Service did not reasonably determine that Elementar's offered equal product
was significantly different from the brand-name product.

The first and primary reason that the Forest Service determined Elementar's
product was not equal to the brand name was the analysis time associated
with processing samples. The Forest Service determined that the brand-name
product's analysis time was 2.5 minutes per sample for carbon/nitrogen,
whereas the Forest Service determined Elementar's equal product's analysis
time for these elements was 10 minutes per sample. The Forest Service states
that this is critical because the laboratory must process 15,000 samples per
year, which cannot be met at the slow product analysis time present in
Elementar's product. The Forest Service does not state the basis for its
statement that the brand name product's analysis time was 2.5 minutes for
carbon/nitrogen, and states that it learned of the 10-minute analysis time
of Elementar's product from a company representative of Elementar in
December 2000. Agency Report at 4; Tab F, End User's Analysis, at 1; Tab I,
Denial of Agency-Level Protest (Oct. 1, 2000), at 1.

The product literature for the Elementar analyzer included in the quote
stated with regard to analysis time:

self-adjusting, depending on element content and weight e.g. CHN [carbon,
hydrogen, and nitrogen] simultaneous: 6 to 12 min[utes]. . . .

Agency Report, Tab E, Elementar's Product Literature, at 8. The Elementar
product literature does not state the analysis time for carbon and nitrogen
only, although Elementar asserts that this would require less time, "4 to 6
minutes for many [carbon/nitrogen] analys[e]s." Elementar Protest Supplement
(Oct. 9, 2001) at 2.

Elantech's product literature contains no evidence that its average analysis
time for carbon/nitrogen is 2.5 minutes, or less than 3 minutes, as claimed
by the agency. [3] Instead, the technical specifications included in
Elantech's quote state that the brand-name instrument has an analysis time
of "less than 5 min[utes] (according to the sample nature)." [4] Agency
Report, Tab D, Elantech's Technical Specifications, at 1. In the technical
brochure for the brand-name product included with Elantech's quote, it is
stated in several places that the analysis time for nitrogen and carbon is
"less than 5 minutes." Id., Elantech's Technical Brochure, at 2, 3, 4. This
literature also states that the instrument "is capable of providing single
elemental Sulphur determination just within a short span of four minutes, or
with Nitrogen and Carbon in less than 10 minutes." Id. at 6.

Thus, the record evidences that the pertinent analysis time for Elantech's
brand- name product is "less than 5 minutes," not 2.5 or 3 minutes. Noting
that this information was not in its quote because it was not requested,
Elementar advises that its product's analysis time should be between 4 to 6
minutes when restricted to an analysis of only carbon and nitrogen. The
record evidences that the analysis time of the brand-name product based on
three (albeit different) elements is not significantly different from the
protester's analysis time of 6 to 12 minutes on three elements. Thus, the
quotes suggest that the analysis times of Elantech's brand-name product and
Elementar's equal product were comparable. Thus, the record does not support
the reasonableness of the agency's determination that Elementar's offered
product is not comparable to the brand name with regard to analysis time.
[5]

The other reasons that the Forest Service found justified determining that
Elementar's analyzer was not equal to the brand name were that "the
instrument used aluminum cups that needed to be cleaned out for the next
sample, not tin capsules that the laboratory was currently using"; that "the
instrument [would] not run liquid samples"; that there was no "'stand-by'
feature where the instrument [could] be put in a reduced operation mode
overnight to save warm-up time the next day"; and that the instrument did
not "[tailor] the oxygen injection to each individual sample." Agency
Report, Tab I, Denial of Agency-Level Protest (Oct. 1, 2001), at 1. However,
none of these reasons seem valid in view of the descriptive literature
included with Elementar's quote, which either directly or indirectly
addresses these concerns and does not otherwise reflect any significant
deviation from the brand name product literature. [6]

For example, the literature advises that "[l]iquids are sealed in gastight
tin capsules" and "[s]olid samples are packed in tin boats" with pictures
showing these features. Agency Report, Tab E, Elementar's Product
Literature, at 7. These statements contradict the agency's belief that
aluminum cups that needed to be cleaned out would be used on the product and
that the equipment would not run liquid samples. [7]

With regard to the other reasons, Elementar's product literature states that
the offered product has "direct oxygen jet injection," that the instrument
can analyze certain elements (including cabon/nitrogen) "individually or
simultaneously over a wide range of sample matrices and concentrations" and
that an "external [personal computer] controls and monitors all operational
functions." Agency Report, Tab E, Elementar's Product Literature, at 2-4.
Moreover, Elementar states that its software has the ability to enter
"sleep" mode and to select oxygen dosing specific for each sample, and that
these capabilities can be confirmed by a review of the software itself or
the user manual for the software, both of which are available for review by
the agency. Elementar Protest Supplement (Oct. 9, 2001) at 2. Here, again we
find that the product literature does not directly support the Forest
Service's assertions that oxygen injection could not be tailored to each
sample, and that there was no standby feature in Elementar's offered
product, or that Elementar's products is not comparable to the brand-name
product.

In sum, we find that the Forest Service did not reasonably consider the
literature or reasonably evaluate Elementar's quote.

The protest is sustained.

Since the contract has been performed, disturbing the award is not
practicable. Therefore, we recommend that Elementar be reimbursed its quote
preparation costs, as well as its cost of filing and pursuing the protest. 4
C.F.R. sect. 21.8(d)(1), (2) (2001). The protester should submit its certified
claim for such costs, detailing the time expended and the costs incurred,
directly to the contracting agency within 60 days of receiving this
decision.

Anthony H. Gamboa

General Counsel

Notes

1. Indeed, FAR sect. 12.202(b) requires for the acquisition of commercial items
that "[t]he description of agency need must contain sufficient detail for
potential offerors of commercial items to know which commercial products or
services may be suitable."

2. To the extent Elementar is protesting this defect at this time, the
protest, not filed prior to the closing date for receipt of quotes, is
untimely and not for our consideration. Ciba Corning Diagnostics Corp.,
supra.

3. As noted, the agency did not include the 3-minute analysis time
requirement reflected in the CBDNET in the solicitation. Moreover, this
requirement does not state which elements were to be analyzed, although it
is now clear that the agency meant analyses of samples for nitrogen and
carbon. In view of our conclusion that there is no evidence that the
brand-name product can satisfy the 3-minute requirement, and because the
record suggests that Elementar's product has a comparable analysis time for
these elements, we do not decide whether the CBDNET statement adequately
apprised Elementar that this was a salient characteristic that had to be
satisfied.

4. The protester states that the literature is worded this way because the
size of the sample, and the content of carbon and nitrogen in the sample
generally will increase the time necessary to process a sample. Protester's
Comments at 4.

5. In its agency report, the Forest Service did not dispute the protester's
assertions that its product was comparable with regard to analysis time,
except to note that the information regarding analyzing samples solely for
carbon/nitrogen was not in Elementar's quote, and that the agency could rely
upon an earlier discussion with Elementar's company representative as a
basis for concluding that the Elementar instrument had a 10-minute analysis
time for carbon/nitrogen. However, the reliance on this discussion 7 months
prior to this solicitation, in the face of the protester's literature that
reflected that the 6 to12-minute analysis time was based upon the analysis
of three elements (carbon/nitrogen/hydrogen) was unreasonable. In this
regard, Elementar advises that its representative does not recall the
details of this conversation and that it is likely that the agency may have
confused specifications of the various Elementar analyzers that were
discussed with the Forest Service on that date. Protester's Comments at 4.

6. Here too, some of these reasons are based on the discussion with
Elementar's representative 7 months prior to this solicitation. The agency's
reliance on its recollection of that discussion to reject Elementar's quote
when the product literature contradicts this advice is unreasonable.

7. The protester advises that the Elementar analyzer can be equipped with
optional accessories for manual and automatic syringe injection of liquids,
which were not quoted because they were not specified. Protester's Comments
at 2. We note that the brand-name product offers automatic syringe injection
of liquids as an accessory as well, and that this was not a requirement
solicited by the RFQ, or offered in the awardee's quote. See Agency Report,
Tab D, Elantech's Technical Specifications, at 4.