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.