TITLE: B-309784; B-309784.2, CAMSS Shelters, October 19, 2007
BNUMBER: B-309784; B-309784.2
DATE: October 19, 2007
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B-309784; B-309784.2, CAMSS Shelters, October 19, 2007

   DOCUMENT FOR PUBLIC RELEASE
   The decision issued on the date below was subject to a GAO Protective
   Order. This redacted version has been approved for public release.

   Decision

   Matter of: CAMSS Shelters

   File: B-309784; B-309784.2

   Date: October 19, 2007

   William A. Shook, Esq., George M. Koehl, Esq., Victor G. Vogel, Esq., and
   Kelley P. Doran, Esq., Kirkpatrick & Lockhart Preston Gates Ellis LLP, for
   the protester.

   Richard J. Conway, Esq., Robert J. Moss, Esq., and Justin A. Chiarodo,
   Esq., Dickstein Shapiro LLP, for Alaska Structures, Inc., an intervenor.

   Capt. Christy J. Kisner, and Lt. Col. John M. Dowling, Department of the
   Air Force, for the agency.

   Paul N. Wengert, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Protest challenging the rejection of a quotation as unacceptable is
   denied where the quotation submitted in response to a solicitation for
   shelters on brand-name-or-equal basis was properly found not to meet the
   solicitation's salient characteristics.

   2. Protest alleging that the awardee's brand name product does not meet
   the salient characteristics in the solicitation is dismissed as untimely;
   any alleged inconsistency between a brand name item and the salient
   characteristics used to define an "or equal" product must be protested
   prior to the closing time for receipt of offers, or in this case,
   quotations.

   DECISION

   California Industrial Facilities Resources, Inc., doing business as CAMSS
   Shelters (CAMSS), a small business, protests the issuance of a purchase
   order to Alaska Structures, Inc. (ASI) by the Department of the Air Force
   under request for quotations (RFQ) No. FA4452-07-Q-A055 for nine 18 foot
   by 26 foot shelters. CAMSS objects that its lower-priced quotation was
   unreasonably rejected as unacceptable, while the requirements were waived
   for ASI.

   We deny the protest.

   BACKGROUND

   On June 22, 2007, the Air Force posted a combined synopsis/solicitation on
   the FedBizOpps.gov website; the solicitation was issued as a small
   business set-aside. The RFQ requested quotations to supply nine "Brand
   Name or Equal Alaska Extreme 1836 Shelter[s]" and identified ASI's part
   number AK-18EXT-26-2.[1]

   Since the RFQ indicated that the Air Force was seeking a specific brand
   name item, the solicitation also provided a list of 28 salient
   characteristics, in order that other firms could determine whether they
   could supply an equivalent item. The salient characteristics in the RFQ
   began with the shelter dimensions: a maximum width of 18 feet, a maximum
   length of 26 feet, and a minimum footprint of 468 square feet. The RFQ
   continued to other salient characteristics, four of which bear on the
   issues in this protest:

     12. The one-piece liner system must have been tested and approved by the
     USAF [United States Air Force] in a U.S. government test facility

     18. (2) 120v receptacle lines with 3 molded tri-plex outlets

     27. Shelter must have been successfully tested by an independent
     laboratory to withstand a[n] 80 mph [miles per hour] sustained wind load
     for at least 30 minutes with intermittent 100 mph wind gust (include
     final test report with bid)

     28. Shelter must have been successfully tested by an independent
     laboratory to withstand a 15 pound per square foot snow load (include
     final test report with bid)

   RFQ at 2-3.

   The RFQ also required vendors offering an "equal product" to submit
   documentation showing that their shelters would meet all of the salient
   characteristics. Id. at 3. Finally, the RFQ stated that the Air Force
   would purchase the shelters from the lowest-priced vendor whose shelters
   met the requirements in the RFQ. Id.

   The Air Force received quotations from both ASI and CAMSS. ASI's quotation
   identified its "Alaska Extreme 1826 Shelter" at a total price of
   $183,015.00. ASI Quotation, at 1. CAMSS's quotation offered its "CAMSS18EX
   Expeditionary Shelter System" at a total price of $97,410.99.

   Since the CAMSS quotation offered a product it asserted was equal to the
   brand name item, it also addressed the salient characteristics. As
   relevant to our resolution of the protest, the quotation stated:

     Engineered to withstand 80 mph sustained wind load for at least
     30 minutes, with 100 mph gusts

     Engineered to withstand a 15 psf snow load

   AR, Tab 6, CAMSS Quotation, at 1.

   In evaluating the quotations, the Air Force first concluded that ASI had
   offered the required brand name item, and determined that its quotation
   was therefore acceptable. The Air Force concluded that the CAMSS product
   offered as an equal did not meet four of the salient characteristics
   (quoted above), and therefore the agency considered the quotation to be
   unacceptable. Contracting Officer's (CO) Statement at 2. Since only ASI
   had submitted an acceptable quotation, the Air Force issued an order for
   the shelters to ASI on July 2. CO Statement at 1.

   Upon learning of the award, CAMSS requested and was offered a debriefing,
   which was scheduled for July 16. However, CAMSS filed this protest on July
   12. The debriefing took place as scheduled, and CAMSS amended its protest
   to add additional grounds. CAMSS also filed a supplemental protest after
   receiving the agency report.

   DISCUSSION

   In its protest, CAMSS argues that the agency unreasonably rejected its
   quotation after wrongly concluding that its equal product failed to meet
   four of the salient characteristics identified in the RFQ. Alternatively,
   CAMSS argues that the RFQ's requirements for test reports could not be
   enforced, as they were improper qualification requirements imposed in
   violation of Federal Acquisition Regulation (FAR) sect. 9.206. With
   respect to ASI's quotation, CAMSS argues that ASI did not offer the brand
   name item specified in the RFQ, and that, as a result, the agency was
   required to analyze whether the ASI product met the solicitation's salient
   characteristics.

   As set forth below, we conclude that (1) ASI offered the brand name item,
   and neither CAMSS, nor the Air Force, was misled by a typographical error
   in the solicitation's identification of the brand name item; (2) the
   agency reasonably decided that the CAMSS item did not meet the salient
   requirements identified in the solicitation; (3) CAMSS's argument that the
   solicitation contained qualification requirements in violation of the FAR
   is untimely; and (4) any argument that ASI's brand name product did not
   meet the salient characteristics is also untimely.

   The FAR encourages the use of performance specifications, rather than
   "brand name or equal" purchase descriptions, but expressly recognizes that
   brand name or equal descriptions "may be advantageous under certain
   circumstances." FAR sect. 11.104 (a). When a brand name or equal purchase
   description is imposed, however, the FAR requires that such 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. Use brand name or equal descriptions when the salient
     characteristics are firm requirements.

   FAR sect. 11.104(b).

   When a solicitation sets forth particular features of a brand name item,
   they are presumed to be material and essential to the government's needs.
   Mid-Florida Corp., B-228372, Jan. 22, 1988, 88-1 CPD para. 60 at 4. Here,
   as noted above, the Air Force listed 28 salient characteristics in the
   RFQ.[2]

   With respect to a firm offering an equal product, the quotation must
   demonstrate that the product conforms to the salient characteristics
   listed in the solicitation. See Bryan Constr. Co., B-261482, Sept. 20,
   1995, 95-2 CPD para. 142 at 2-3 (sealed bidding). If the quotation fails
   to do so, it is properly rejected as nonconforming, id.; clearly stated
   technical requirements in a solicitation are considered material to the
   needs of the government, and a vendor's submission that fails to conform
   to such material terms is technically unacceptable and may not form the
   basis for award. Team One USA, Inc., B-272382, Oct. 2, 1996, 96-2 CPD
   para. 129 at 8. This Office will review the record to determine whether
   the procuring agency had a reasonable basis for concluding that the
   offeror of an "equal" product was properly rejected in favor of a purchase
   of the brand name item. Elementar Americas, Inc., B-289115, Jan. 11, 2002,
   2002 CPD para. 20 at 2-3.

   In contrast, with respect to an offer of the brand name item, absent
   certain provisions in a solicitation that impose additional requirements
   applicable to the item, an agency can reasonably accept a brand name offer
   and make award without further investigation. See, e.g., General
   Hydraulics Corp., B-181537, Aug. 30, 1974, 74-2 CPD para. 133 at 2 (brand
   name item properly rejected where solicitation expressly required
   additional features applicable to the item).

   We address first the argument that the ASI product accepted by the agency
   was not the brand name product identified in the solicitation, and the
   contention that the agency was required to treat the ASI product as an
   "equal" product, and determine whether the product met the salient
   characteristics.

   There is no dispute in this record that the solicitation here contained a
   typographical error in its identification of the brand name product.
   Instead of identifying an Alaska Extreme 1826 Shelter, the solicitation
   identified an "Alaska Extreme 1836 Shelter." We note that the numerical
   portion of this description is the same as the dimensions of the
   shelter--i.e., ASI's 1826 shelter measures 18 feet by 26 feet. Thus, the
   1826 number matches the dimensions set forth in the solicitation's salient
   characteristics, which identified a shelter measuring 18 feet by 26 feet.
   RFQ at 2.

   In addition, ASI explains that "there is no such thing as an Alaska
   Structures Extreme 1836 Shelter." ASI's Supp. Comments, Sept. 17, 2007, at
   2. Moreover, CAMSS has not suggested that it was misled by this error;
   CAMSS was aware that the solicitation required--and CAMSS offered--a
   shelter measuring 18 feet by 26 feet.[3] While we recognize that the Air
   Force should have identified the proper brand name in its brand name or
   equal product description, there is no evidence in this record that the
   parties were misled by this typographical error in the RFQ. We conclude
   that ASI offered, and the Air Force accepted, the brand name item
   requested. As a result, the Air Force properly accepted the ASI product
   without determining whether the product met the salient characteristics
   identified for "equal" products. See Mid-Florida Corp., supra.

   With respect to whether the agency acted reasonably in concluding that
   CAMSS's quotation failed to establish that its product met the salient
   requirements of the solicitation, we deny the protest. As set forth above,
   the agency concluded that CAMSS's quotation failed to establish that its
   product met four of the salient characteristics. In two of the areas
   resulting in the rejection of CAMSS's quotation, the solicitation required
   the submission of test reports--in one instance, to establish the ability
   of the product to withstand a sustained wind load; in the other, to
   establish the ability of the product to withstand a snow load. While the
   protester argues that its product can meet both requirements, the record
   shows that CAMSS did not submit test reports to document its ability to
   meet either of these requirements. AR, Tab 6, CAMSS Quotation. At best,
   CAMSS simply asserts in its quotation that its product is engineered to
   withstand the wind load and snow load requirements. Id. at 1. Accordingly,
   we think the agency reasonably concluded that the quotation failed to meet
   the requirements established in the solicitation.[4]

   CAMSS also argues that the requirements in the RFQ for test reports
   constituted unapproved "qualification requirements," as that term is
   defined in FAR sect. 2.101. More specifically, CAMSS argues that the
   agency cannot enforce these requirements without violating FAR
   sect. 9.206, which requires that agencies comply with specific procedures
   to obtain approval of particular qualification requirements. This argument
   is untimely. Under our Bid Protest Regulations, a protest objecting to the
   terms of a solicitation must be filed before the closing date for
   responses in order to be timely. 4 C.F.R. sect. 21.2(a) (2007). The
   testing requirements at issue here were explicitly stated in the RFQ, yet
   CAMSS did not challenge their inclusion until after the competition was
   complete and ASI had been selected.[5]

   As a final matter, CAMSS argues that the ASI brand name product itself
   fails to meet certain salient characteristics included in the
   solicitation. This ground of protest is untimely. The purpose of a
   solicitation's statement of salient characteristics, as set out in FAR
   sect. 11.104(b), is to define the minimum characteristics of the brand
   name product that an alternative "equal" product must meet. Thus, by
   definition, the salient characteristics should be derived from, and should
   reflect, the essential characteristics that, in the agency's view, the
   brand name product possesses. Accordingly, a contention that the
   solicitation-identified brand name item does not meet the salient
   characteristics is an argument that the solicitation is defective, because
   the solicitation represents that the brand name product possesses the
   salient characteristics listed, when, in the protester's view, it does
   not. Any alleged inconsistency between a brand name item and the salient
   characteristics used to define an "or equal" product thus must be
   protested prior to the closing time for receipt of offers, or in this
   case, quotations--consistent with our standard rule for raising challenges
   to solicitation improprieties.[6] 4 C.F.R. sect. 21.1(a)(1); M/RAD Corp.,
   B-248146, July 29, 1992, 92-2 CPD para. 61 at 3; VTEC Labs., Inc.,
   B-245481, Dec. 26, 1991, 91-2 CPD para. 581 at 3.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

   ------------------------

   [1] The solicitation contained a typographical error in both the name of
   the ASI product, and the part number. According to the Air Force, instead
   of the "Alaska Extreme 1836 Shelter" it meant to specify the "Alaska
   Extreme 1826 Shelter." Similarly, instead of part number AK-18EXT-26-2, it
   intended AK-1826-XTR-2. Agency Supp. Memo. of Law, Sept. 11, 2007, at 11.

   [2] We note that in the context of salient characteristics, test reports
   such as those identified in the RFQ (and material to the dispute here) do
   not appear to be "physical, functional, or performance characteristics" of
   the kind anticipated by FAR sect. 11.104(b). On the other hand, no protest
   challenged this aspect of the specification before the RFQ closing date.
   In this decision, we adopt and apply the Air Force's characterization of
   these test report requirements as salient characteristics, even as we
   recognize a tension between the solicitation here and the FAR guidance.

   [3] There is also no evidence in this record to suggest that CAMSS was, in
   any way, misled by the typographical error in the RFQ's identification of
   the ASI part number as AK-18EXT-26-2, rather than the intended
   AK-1826-XTR-2.

   [4] Since we conclude that CAMSS was properly found unacceptable under two
   of the four bases given for rejection of its quotation, we need not
   address the protester's challenges to the evaluation under the
   requirements for approval of the one-piece liner, and for the correct type
   of electrical outlets.

   [5] Similarly, we find untimely CAMSS's argument that the specifications
   were crafted to preclude competition and to ensure a sole-source
   procurement from ASI. This argument also alleges a defect that was
   apparent in the solicitation, and therefore was required to be filed
   before the closing date, in order to be timely.

   [6] We recognize that in the past our caselaw has been inconsistent on
   this subject. See, e.g., Abbott GmbH Diagnostika, B-241513, B-241513.2,
   Feb. 7, 1991, 91-1 CPD para. 139 at 3. To the extent our decision in
   Abbott establishes a different rule, it will no longer be followed. We
   note, however, that the requirement to file before the closing time does
   not apply to challenges to the brand name product's compliance with
   additional requirements set out in the solicitation that must be met by
   both the brand name product, and any product offered as an equal. These
   additional requirements are not salient characteristics of the brand name
   product, so that offering the brand name does not, alone, ensure
   compliance. For example, in Wyse Tech., Inc., B-297454, Jan. 24, 2006,
   2006 CPD para. 23 at 5, a protest challenging the brand name product's
   compliance with requirements of the Trade Agreements Act, which was also a
   requirement of the solicitation, was timely filed after award. Such
   protests are not based on alleged defects in the solicitation and
   therefore are timely filed after award, since that is the first time when
   it can be ascertained whether the brand name product in fact complied with
   the additional requirements.