Savannah argues that the Navy unreasonably evaluated BCS's quotation as offering pressure washers that were equal or comparable to the brand name item listed in the solicitation. Savannah also argues that the award was unreasonable because the pressure washers quoted by BCS are not on its schedule contract. We address these arguments in turn and conclude that the protest should be sustained on both grounds.

Equal or Comparable Item

Savannah argues that the BCS pressure washers are not equal or comparable to the brand name item listed in the RFQ because they are less powerful and do not contain the same features. Savannah points out that the Landa pressure washers have 20 horsepower engines, produce a 5 gallon per minute stream, have a high impact steel roll cage, and have four 6-inch pneumatic tires, while the pressure washers quoted by BCS have 15 horsepower engines, produce a 4 gallon per minute stream, do not have a roll cage, and have only two wheels. Protest at 1.

In its agency report, the Navy does not contend that the pressure washers quoted by BCS were equal or comparable to the brand name pressure washers; rather, the Navy argues that because quotations are not offers the agency can accept, the agency may select a quotation that does not comply with the RFQ's identified requirements, where the agency finds that the quotation will otherwise satisfy the agency's needs. Agency Supplemental Legal Memorandum at 2. The Navy also asserts that Savannah did not suffer competitive prejudice. Id. at 3. We disagree.

The legal nature of a quotation vis-à-vis "offer" and "acceptance" in the context of an RFQ issued to FSS vendors does not alter the fundamental requirement that the FSS competition be conducted fairly and in a manner that affords vendors an opportunity to compete on an equal basis. Hanel Storage Sys., L.P., B-409030.2, Sept. 15, 2014, 2015 CPD ¶ 88 at 4. Where an agency determines that an item other than the one specified in an RFQ will meet its needs, it generally should amend the RFQ and reopen the competition. Zarc Int'l, Inc., B-292708, Oct. 3, 2003, 2003 CPD ¶ 172 at 2; Hanel Storage Sys., L.P., supra at 4.

Here, after quotations were received, the Navy determined that a less powerful pressure washer with fewer features was capable of meeting its needs. AR at 16. After receipt of quotations, the contracting officer contacted the agency user, who stated that the pressure washers quoted by BCS were sufficient for his needs because the pressure washers had 440 volt, 3-phase engines, and no soap injector was required. Id. Under these circumstances, the agency should have amended the solicitation to reflect that it did not require the horsepower or features of the solicited pressure washer. Failure to amend the solicitation prevented vendors from competing equally. Draeger Safety, Inc., B-285366, B-285366.2, Aug. 23, 2000, 2000 CPD ¶ 139 at 4. Although the agency requested quotations from 91 vendors, the quotations received were in response to the agency's purported need for a brand name or equivalent pressure washer.

Finally, we also find that Savannah has established a reasonable possibility that it suffered prejudice as a result of the agency's failure to amend the solicitation. A protester satisfies that burden when it alleges that it could have offered an alternate product to meet the agency's actual needs. See Hanel Storage Sys., L.P., supra at 4 (protester suffered prejudice when it represented that it would have proposed a lower-priced system had it known that the agency was willing to accept storage units with a different extractor system); Zarc Int'l, Inc., supra at 2-3 (protester did not suffer prejudice when it did not allege that it would have offered an item other than the specified item had it been on notice that the agency would consider equivalent items); Spacesaver, B-224339, Aug. 22, 1986, 86-2 CPD ¶ 219 at 2 (protester did not suffer prejudice when the protester did not represent that it would have been able to quote a lower-priced mobile storage system). Here, Savannah stated that it sells a 15 horsepower pressure washer and that it can offer this model at a lower price than the solicited pressure washer because the 15 horsepower pressure washer is less powerful and has less expensive features. Protest at 1. Thus, Savannah has established that it suffered competitive prejudice because it would have offered a less powerful pressure washer with fewer features had it known that the agency was willing to accept it.  (Savannah Cleaning Systems, Inc. B-415817: Mar 27, 2018)

In its protest Bluehorse contends that the solicitation should have been set aside for ISBEEs. Bluehorse also contends that the solicitation, issued on a brand name or equal basis, lacked salient characteristics of the brand name item that the equal product must meet to be considered acceptable.

The protester first argues that it is an ISBEE that supplies an electronic control device equivalent to Taser's model X2, that it has supplied equivalent devices to the agency in other procurements, and that the agency unreasonably failed to set aside this solicitation for ISBEEs pursuant to the Buy Indian Act. Bluehorse Amended Protest (Apr. 12, 2017), at 2.

The BIA is required to give preference to IEEs under procurement set-asides for requirements of products, services and covered construction when following the Buy Indian Act is feasible and authorized. 48 C.F.R. § 1480.401. We will disturb a BIA conclusion only where it is shown to be arbitrary, unreasonable, or in violation of law or regulation. See e.g. Colorado Constr. Co., B-290960, Sept. 6, 2002, 2002 CPD ¶ 162 at 3.

The agency maintains that it issued a sources sought notice for ISBEEs and IEEs prior to the issuance of the solicitation. The agency notes that the Bluehorse's first response to the sources sought notice did not include any information that would establish that its proposed equivalent products would meet the salient characteristics. COS at 3. The agency determined on the basis of this submission that Bluehorse was not capable of meeting or exceeding the requirement for providing an electronic control device with multi-shot capabilities. Therefore, the CO approved a deviation from the Buy Indian Act.

The agency also reviewed Bluehorse's second response to the sources sought notice that included technical specifications for two equivalent products, The Enforcer and The Raptor. The agency determined that The Enforcer was an electronic control device, but with a single shot application. AR, Tab 7A, Amended Buy Indian Deviation at 49. The agency concluded that The Raptor, although it had multi‐shot capability, was an air carbine rifle and not a handheld electronic control device, as required by the solicitation. Id. The CO again decided that Bluehorse was not capable of producing an equivalent product and that, since there were no other responses to the sources sought notice, that there was no basis to set aside the instant procurement for ISBEEs. Id. at 3. The CO amended the deviation to reflect this determination. AR, Tab 7a, Amended Buy Indian Deviation (Apr. 19, 2017).

We have reviewed the protester's allegations and conclude that none provides a basis to question the reasonableness of the agency's determination not to issue to the solicitation as a set aside for ISBEEs or IEEs. See Rice Servs., Inc., B-411540, B‐411540.2, Aug. 20, 2015, 2015 CPD ¶ 260 at 3. As stated above, Bluehorse's first response to the sources sought notice did not include any information that would establish that its proposed equivalent products would meet the salient characteristics.

While Bluehorse's second submission did include more technical information, Bluehorse did not establish that it could produce an equivalent product, in this case an electronic control device with multi-shot capability. In addition, we have no basis to reach a different conclusion because the protester claims that it has provided similar products to the same contracting activity in other procurements. As we have repeatedly observed, each procurement stands alone, and an action taken under a prior procurement is not necessarily relevant to the reasonableness of the action taken under the present procurement. JRS Mgmt., B‐402650.2, June 25, 2010, 2010 CPD ¶ 147 at 4.

Next, Bluehorse alleges that the solicitation issued by the agency includes brand name or equal specifications and "lists some features, but does not say which items are essential." Bluehorse Protest (Apr. 11, 2017), at 8.

Solicitations that include brand-name-or-equal specifications 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." FAR§ 11.104(b)

The agency maintains that the solicitation listed the salient characteristics of the product that it sought under the heading "Specifications/Capabilities (Brand name or Equal)," and that this information provided potential vendors a general description of the minimum characteristics of the products sought by the agency that an equal product would have to meet to be acceptable. MOL at 4. According to the agency, specifically labeling technical specifications as salient in a brand name or equal solicitation is not required. Webco Dental & Medical Supplies, Inc., B-410587, Jan. 8, 2015, 2015 CPD ¶ 32 at 2 (salient characteristics in solicitation listed under the heading 'Technical Specifications').

We find that the brand name or equal solicitation listed salient characteristics of the product it sought, albeit under the heading "Specifications/Capabilities (Brand name or Equal)." RFQ at 3. The solicitation listed 16 specifications, such as the requirement that all items be new and not refurbished. Id. Therefore, we conclude that the solicitation provided offerors with the specifications that their equivalent products had to meet. In the case of a brand name or equal solicitation, the particular features of a brand name item set forth in the solicitation are presumed to be material and essential to the government's needs. See American Material Handling, Inc., B-410899, Mar. 12, 2015, 2015 CPD ¶ 106 at 4. Therefore, we find no basis upon which to sustain this protest ground.  (Bluehorse Corporation B-414578: Jul 20, 2017)
 

Glem Gas contends that the award was improper because Gaeta’s proposed stove model did not meet the RFQ’s salient characteristics. Protest at 3‑4. Glem Gas argues that the Navy should have rejected Gaeta’s quotation as technically unacceptable, because it failed to meet the dimensions and oven capacity specified in the RFQ for a non‑brand name product. Id.

The Navy acknowledges that the “Awardee’s product offers an alternate depth dimension of 50 cm and oven capacity of 92 liters, but [the agency] maintains that these deviations (10 cm and 3 liters) are minor (at most a minor fraction of the size and volume of the Protester’s product) and inconsequential.” MOL at 5. According to the agency, these “insignificant differences would not impact the stove’s performance capabilities--the two stoves would do the same job in a like manner with the same results.” Id. at 4. The Navy contends that since the stoves are functionally interchangeable and will perform identically, waiver of the two specifications was appropriate. Id. at 4‑6. The agency is incorrect.

Under a brand name or equal solicitation, a firm offering an equal product must demonstrate that the product conforms to the salient characteristics of the brand name product listed in the solicitation. OnSite Sterilization, LLC, B-405395, Oct. 25, 2011, 2011 CPD ¶ 228 at 3. In general, the particular features of the brand name item identified in the solicitation as salient characteristics are presumed to be material and essential to the government’s needs, and quotations offering other than the brand name product that fail to demonstrate compliance with the stated salient characteristics are properly rejected as unacceptable. Sourcelinq, LLC--Protest & Costs, B‑405907.2 et al., Jan. 27, 2012, 2012 CPD ¶ 58 at 4. In reviewing protests of agency evaluations, we review the record to ensure that the evaluation and source selection decision were reasonable and consistent with the terms of the solicitation and applicable procurement statutes and regulations. Ricoh America’s Corp., B-402239, Feb. 22, 2010, 2010 CPD ¶ 55 at 3.

The solicitation, as noted above, specified that for quotations offering other than the brand name, the stove must have a depth of 60 centimeters and an oven capacity of 95 liters, among other things. See RFQ amend. 1, at 3‑4. The RFQ stated, explicitly, that a proposed product that did not meet the salient physical, functional, or performance specifications would be found technically unacceptable. Id. at 10. Contrary to these provisions, the record here shows--and the agency concedes--that the stove proposed by the awardee and accepted by the agency did not meet the RFQ’s specified 60‑centimeter depth and 95‑liter capacity. The Navy’s actions here, however, provide no basis to sustain Glem Gas’ protest.

An agency may waive compliance with a material solicitation requirement in awarding a contract only if the award will meet the agency’s actual needs without prejudice to other offerors. Safety-Kleen (TS), Inc., B-284125, Feb. 23, 2000, 2000 CPD ¶ 30 at 2-3. Competitive prejudice from such a waiver exists only where the requirement was not similarly waived for the protester, or where the protester would be able to alter its quotation to its competitive advantage if given the opportunity to respond to the relaxed term. See Phoebe Putney Mem’l Hosp., B‑311385, June 19, 2008, 2008 CPD ¶ 128 at 3‑4. In cases where the protester argues that an agency waived a certain requirement, prejudice does not mean that, had the agency failed to waive the requirement, the awardee would have been unsuccessful. Geonex Corp., B‑274390.2, June 13, 1997, 97-1 CPD ¶ 225 at 5. Rather, the pertinent question is whether the protester would have submitted a different offer that would have had a reasonable possibility of being selected for award had it known that the requirement would be waived. Brown & Root, Inc. and Perini Corp., a joint venture, B-270505.2, B-270505.3, Sept. 12, 1996, 96-2 CPD ¶ 143 at 11.

In short, competitive prejudice is an essential element of a viable protest, and we will not sustain a protest challenging the waiver of a solicitation requirement where, as here, there is no basis for finding competitive prejudice to the protester. Geonex Corp., supra; Phoebe Putney Mem’l Hosp., supra; Safety Storage, Inc., B‑275076, Jan. 21, 1997, 97‑1 CPD ¶ 32 at 4 (In a brand name or equal procurement conducted as a simplified acquisition for prefabricated storage sheds, protest that agency waived RFQ’s specifications by accepting a shed with a slightly smaller storage area is denied where, despite specific requests for a showing of prejudice, the protester fails to articulate how it would have altered its quotation had it known that a shed with a smaller storage area would have satisfied the agency’s needs); see Complete Packaging & Shipping Supplies, Inc., B‑412392 et al., Feb. 1, 2016, 2016 CPD ¶ 28 at 8‑10 (Although we agree with the protester that the agency waived the RFQ requirement to provide two specified items, the protester has not argued that, had it known that the agency ultimately would not require the items, it would have changed its quotation to improve its competitive position.).

Although we agree with Glem Gas that the Navy improperly waived the RFQ’s salient characteristics by selecting the awardee’s non‑brand name stove, we also agree with the agency that the protester has not shown that it was prejudiced by the waiver. As the Navy points out, Glem Gas has not alleged that it would have quoted a lower price for its brand name model, or that it would have offered another similar product, if it had known that the agency would waive the RFQ’s salient characteristics at issue here. We thus have no basis to sustain Glem Gas’ protest.  (Glem Gas S.p.A. B-414179: Feb 23, 2017)

Moreover, in a brand name or equal procurement such as here, a product offered as an equal need not meet unstated features of the brand name product, and where an agency does not include a list of salient characteristics in the solicitation, it may not reject an “equal” quotation for noncompliance with a specific performance or design feature unless the offered item is significantly different from the brand name product. See J. E. Pope Co., Inc., B-238560, May 16, 1990, 90-1 CPD ¶ 478 at 4.

Here, we find unobjectionable the agency’s determination that Neopost offered products from its FSS contract that were essentially equal to the Pitney Bowes’ products listed in the solicitations, thus satisfying the solicitation requirement that the items be brand name or equal. In this regard, the record shows that Neopost’s quotations provided items that were part of a “functionally equivalent” mail tracking system. See AR, Tab 4, Declaration of FBI Point of Contact for Shipping and Receiving, at 1. As explained above, the FBI’s requirements were for mail tracking systems that had the capability to capture a signature--thus showing proof of delivery--and retain a record of that signature. The record reflects that the agency evaluated the functionalities of the items each vendor quoted, and reasonably found that both vendors had quoted items that met the agency’s requirements.

For example, Neopost’s quotations included a handheld portable scanner, which could read barcodes, handle multiple packages delivered to multiple locations by a single courier, capture the receiver’s signature upon delivery, and retain the signature for download later to a database. See AR, Tab 3, Declaration of Technical Evaluation Chair, Mar. 14, 2016, at 1. While Pitney Bowes points out that Neopost’s portable scanner lacks certain other features (such as the ability to take pictures), the failure to have these additional features does not demonstrate a flawed evaluation. In this respect, the agency maintains that a camera and other features cited by Pitney Bowes were not necessary or required characteristics of the scanner, as these features (such as GPS and cellular capability) would not be utilized by the agency. Declaration of Technical Evaluation Chair, Mar. 28, 2016, at 1. Indeed, the agency reports that the use of some features, such as GPS and cellular systems, would violate agency security requirements. Id. Given this, we see nothing unreasonable with the agency’s determination that Neopost’s scanner was equivalent to the one listed in the solicitations.

As another example, Pitney Bowes also challenges the agency’s determination that Neopost submitted equivalent items for CLIN 014, configuration project management, found under solicitation No. 22525. Pitney Bowes interpreted the agency’s requirement here as the conversion of the existing database of tracking information to the new system. Comments/Supp. Protest at 16. The agency responds, however, that CLIN 014 was not for database conversion, but was instead for “installing, setting up, and maintaining of whatever software system the vendor proposed” to meet the mail system’s tracking requirements. Declaration of Technical Evaluation Chair, Mar. 28, 2016, at 2. While Pitney Bowes asserts that it submitted its quotation based on its understanding of CLIN 014 (such that the agency’s different understanding of CLIN 014 constitutes a “latent” defect), the protester’s interpretation of what the FBI required is not supported by the language of the solicitation, such that there is no ambiguity or defect. Thus, we find nothing unreasonable about the agency’s determination that Neopost met the CLIN 014 requirement for configuration project management even though Neopost did not propose to convert the existing database, as Pitney Bowes did.

Given the agency’s broad discretion in evaluating quotations, and the lack of any defined salient characteristics for each item being procured, we have no basis to object to the agency’s determination that the awardee’s items met the requirements set forth in the solicitations. See Superior Cleaning Equip., Inc., supra, at 3; see also Fortune Chem. Co., Inc., B‑247000, Apr. 2, 1992, 92-1 CPD ¶ 344 at 1 (protest that agency improperly made award to firm whose product was not “equal” is denied where agency reasonably found that awardee’s product was functionally equivalent for the intended application, despite the lack of salient characteristics). Based on the record before us, we find that the agency reasonably determined that Neopost quoted items that were equivalent to the brand name items identified in the solicitations.  (Pitney Bowes, Inc. B-412185.2, B-412185.3, B-412186.2, B-412186.3: May 6, 2016)  (pdf)

Core argues that the Navy can achieve its goal of using the same servers in all of its submarines without limiting competition to just Crystal servers.

The RFQ was issued pursuant to FAR subpart 13.5, which allows agencies to use simplified procedures for the acquisition of commercial items of less than $6.5 million. See § FAR 13.500(a). Procurements conducted under simplified acquisition procedures are exempt from the statutory requirement to obtain full and open competition; instead, contracting officers are required to promote competition to the maximum extent practicable. 10 U.S.C. § 2304(g)(3); FAR §§ 13.104, 13.501(a). Accordingly, the issue here is whether the agency, in preparing the RFQ, specified its needs and solicited quotations in a manner designed to obtain competition to the maximum extent practicable and included restrictive provisions only to the extent necessary to satisfy the agency’s needs. American Eurocopter Corp., B-283700, Dec. 16, 1999, 99-2 CPD ¶ 110 at 3-4. In reviewing a challenge to the agency’s determination of its needs, we defer to the contracting agency, which is most familiar with its needs and how best to fulfill them, and we will question that determination only where it is shown to have no reasonable basis. Id.

The protester contends that if the Navy would provide firms with more information about the design of the Crystal servers, Core could manufacture identical products. Protester’s March 31 Supp. Filing, at 2-3. The Navy responds that it is unable to provide the information firms would need to manufacture servers identical to the Crystal models because the agency did not procure the necessary technical data rights. Agency’s April 14 Supp. Filing, at 1. The protester disputes this claim, noting that under the applicable regulations, the agency must have obtained at least the rights to form, fit, and function data, which would be sufficient for Core to produce identical servers. Protester’s April 20 Supp. Filing, at 2 (citing Defense Federal Acquisition Regulation Supplement subpart 227.7102-1(a)(1)). Based on the record submitted to this Office, it is unclear whether the agency has the right to disclose the information that would be necessary for another firm to manufacture servers identical to the Crystal models. We need not decide this issue, however, because, as discussed below, the agency reasonably determined that given the length of time required to have a server tested and approved for use on Navy submarines, no servers other than the identified Crystal models could be delivered to the agency in sufficient time to meet its needs.

As discussed above, the RFQ was issued on January 13, 2015 and the Navy plans to install the servers, which the agency considers to be mission essential upgrades, during 2015. Given the agency’s estimate that it would take approximately 18 months to test and approve a new server for use on its submarines, we find that the Navy reasonably concluded that it would not be possible for it to accept servers other than the already-approved Crystal models and still meet its installation schedule. Indeed, even if the Navy had provided firms the technical data needed to produce identical servers (assuming the agency had the necessary data rights to do so) in September of 2014 when the agency first issued a solicitation for the requirement, a firm with non-Crystal servers would not have had enough time to have its products tested and approved for installation during 2015.

The protester also disputes the agency’s estimate of the time needed to have its servers qualified for use in the Navy’s submarine fleet. Protester’s April 20 Supp. Filing, at 4-7. In this regard, Core contends that because many of the EQTs require only a few hours to conduct, it could complete the necessary testing in well under one month. Id. The record reflects, however, that the testing and approval process requires significantly more than simply conducting the EQTs. Under the Navy’s testing protocol, prior to conducting the numerous required tests, a testing plan must first be developed and approved by the Navy. AR, Tab 11, Crystal Server EQT Plan and Report, at 1-10 (test plan for structure-borne noise, airborne noise, temperature, and shock); AR, Tab 12, EMC Test Procedures and Report, at 1-53 (test plan for electromagnetic compatibility). Then, once the testing is completed with successful results, lengthy, detailed reports describing the test results are prepared. AR, Tab 11, Crystal Server EQT Plan and Report, at 11-86 (test report); AR, Tab 12, EMC Test Procedures and Report, at 54-342 (test report). Those reports must then be reviewed and approved by Navy officials. AR, Tab 12, EMC Test Procedures and Report, at 54. Contrary to the protester’s assertions, the record reflects that this entire process requires several months, not weeks, to complete. See AR, Tab 11, Crystal Server EQT Plan and Report, at 11, 63 (reflecting a finalized report dated approximately 10 months after shock testing was conducted, not including time required to prepare testing plan). Moreover, the agency explains that in addition to the EQTs mentioned in the J&A, the Navy must also conduct testing on the servers related to systems integration and information assurance, as well as update the technical data packages for its submarine fleet to reflect the approval of a different server model. Agency’s March 25 Supp. Filing, at 1. In sum, on this record, we have no basis to conclude that the agency acted unreasonably when it estimated that it would take approximately 18 months for a server to be fully tested and approved for use in the Navy’s submarine fleet.  (Core Systems B-411060: Apr 30, 2015)  (pdf)

In reviewing a challenge to the agency’s determination of its needs, we defer to the contracting agency, which is most familiar with its needs and how best to fulfill them, and we will question that determination only where it is shown to have no reasonable basis. Lucent Techs., Inc., B‑285505, Aug. 23, 2000, 2000 CPD ¶ 140 at 3. In this regard, restricting a procurement to a particular manufacturer’s product is not improper where the agency establishes that the restriction is necessary to satisfy its needs. See Lenderking Metal Prods., B‑252035, B-252036, May 18, 1993, 93-1 CPD ¶ 393 at 2; Chi Corp., B-224019, Dec. 3, 1986, 86-2 CPD ¶ 634 at 3.

Here, we find no basis to question the agency’s determination that Phoenix’s pesticide could not satisfy the agency’s particular needs. As explained above, the agency’s testing has demonstrated that Talstar PL’s smaller granule size makes the pesticide unfit for use in the agency’s spreaders. While the protester raises several challenges to the agency’s testing--for example, asserting that the agency has provided no proof that its testing used Talstar PL; that the test results should be “at best suspect” given that the testing took place after the J&A was signed; and that it was improper for the agency to test Talstar PL in a walk-behind spreader, the protester does not challenge the underlying conclusions of the agency’s testing. Protester’s Comments at 3-7. In this regard, the protester provides no explanation for why the results of the testing done in smaller spreaders would not also apply to the agency’s larger spreaders, nor, more fundamentally, does the protester assert that its product would, in fact, work in the agency’s larger spreaders. Given the protester’s failure to challenge the agency’s conclusion that Talstar PL is not an equal product, Phoenix has not shown the agency’s conclusion that Wisdom EZ pesticide should be procured on a brand name only basis was unreasonable.  (Phoenix Environmental Design, Inc. B-411044: Apr 27, 2015)  (pdf)

The protester asserts that the agency unreasonably found that its quoted shredder did not conform to the RFQ’s requirement for an optical media capacity of up to 2,550 discs per hour, when attachment 6, submitted with its quotation, lists the optical disc capacity of its shredder at 2,750 discs per hour. Protest at 2. The agency notes that the one reference to performance exceeding that requirement was emphatically disclaimed by the quotation itself. Agency MTD at 5.

In reviewing protests of an agency’s evaluation, our Office does not reevaluate quotations; rather, we review the evaluation to determine if it was reasonable, consistent with the solicitation’s evaluation scheme and procurement statutes and regulations, and adequately documented. Savvee Consulting, Inc., B-408416.3, Mar. 5, 2014, 2014 CPD ¶ 164 at 7. A protester’s disagreement with the agency’s judgments does not establish that the agency acted unreasonably. Encompass Group LLC, B‑310940.3, Mar. 17, 2009, 2009 CPD ¶ 60 at 3.

Here, the record shows that the protester’s quotation repeatedly stated that the optical media capacity of its shredder did not meet the solicitation requirement of 2,550 discs per hour. We agree with the agency that the one reference in Capture’s quotation that the protester relies on--which states an optical capacity of 2,750 discs per hour, but then notes that this is simply a “sales gimmick”--does not provide a basis to object to the reasonableness of the agency’s conclusion that the protester quoted a non-conforming product.  (Capture, LLC, B-409792: Jun 16, 2014)  (pdf)

 LNI asserts that the agency’s rejection of its response to the solicitation was improper for a number of reasons. We have considered all of LNI’s arguments, and, based on the record, we conclude that none have merit. Below we discuss LNI’s principal contentions.

LNI argues that the agency’s rejection of its response to the solicitation was unreasonable because LNI represented that it would provide items identical to those of the brand name manufacturer. Protest at 4; Comments at 3. In support of this argument, LNI states that neither the solicitation, nor the Federal Acquisition Regulation prohibits a firm from supplying an item that is identical to the item of another manufacturer. Protest at 4; Comments at 2. LNI also points out that the agency has not identified any salient characteristics listed in the solicitation that the items it offered failed to meet. Comments at 3-4.

The agency counters that LNI provided insufficient information to show that its items conformed to the salient characteristics listed in the solicitation, and, therefore, rejection of the firm’s response to the solicitation was appropriate. Agency Report (AR) at 2-3. We agree.

Under a brand name or equal solicitation such as the one here, firms offering equal products must submit sufficient descriptive literature to permit the contracting agency to assess whether the equal product meets all the salient characteristics specified in the solicitation. See OnSite Sterilization, LLC, B-405395, Oct. 25, 2011, 2011 CPD ¶ 228 at 2; American Gov’t Mktg., Inc., B-294895, Nov. 22, 2004, 2005 CPD ¶ 109 at 2; see also SOG Specialty Knives, Inc., B-281877, Apr. 12, 1999, 99-1 CPD ¶ 72 at 2; Advanced Med. Sys., Inc., B-258945, Feb. 13, 1995, 95-1 CPD ¶ 67 at 2. When the descriptive literature submitted fails to establish that the offered products would meet all of the listed salient characteristics, the response to the solicitation is properly rejected. See OnSite Serilization, LLC, supra.; American Gov’t Mktg., Inc., supra; see also SOG Specialty Knives, Inc., supra; Infrared Techs. Corp., B-255709, Mar. 23, 1994, 94-1 CPD ¶ 212 at 3-4.

Here, the solicitation expressly stated that firms offering “equal” items must provide the make, model, and description of the items and provide “[p]roduct literature/brochures.” Solicitation at 2. Additionally, the solicitation warned that the agency would not be “responsible for locating or obtaining any information not identified” in a response to the solicitation. Id. The limited information in LNI’s product literature consists almost entirely of text taken from the solicitation itself and images that appear on the brand name manufacturer’s website. Given that LNI’s response to the solicitation lacked almost any information that LNI itself generated about its specific products, we see no basis to question the contracting officer’s rejection of LNI’s response to the solicitation.

LNI also asserts that the contracting officer’s inquiry into whether LNI was an authorized distributor of the brand name manufacturer’s products reflects a bias on the part of the agency for products manufactured by the brand name manufacturer. Comments at 2; see also Protest at 4-5.

The agency states that the communication with the brand name manufacturer occurred because it was unclear from an initial review of LNI’s response to the solicitation whether the firm was offering “equal” or brand name items. See AR at 4.

Government officials are presumed to act in good faith, and a protester’s contention that procurement officials are motivated by bias or bad faith thus must be supported by convincing proof; we will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition. Career Innovations, LLC, B-404377.4 , May 24, 2011, 2011 CPD ¶ 111 at 7-8; Shinwha Elecs., B-290603 et al., Sept. 3, 2002, 2002 CPD ¶ 154 at 5 n.6.

We agree with the agency that LNI’s response to the solicitation includes statements that cast question on whether the firm is offering the brand name manufacturer’s products or other products. Further, there no evidence in the record, other than LNI’s speculation, to support LNI’s allegation of bias. Under these circumstances, we see no basis to further consider LNI’s allegation.  (Logistics Network, Inc. B-408995, Jan 6, 2014)  (pdf)

PDT contends that the agency’s requirement for Kyocera “or equal” printers that use PRESCRIBE software unduly restricts competition because, according to the protester, there are no equivalent printers on the market and PRESCRIBE is proprietary software that is only available on Kyocera brand printers. Protest at 1-2. The protester requests, as relief, that DLA be required to remove any Kyocera software from, and reprogram, its electronic distribution system to accept any commercial printer and industry standard print software, which, in the protester’s view, would be more cost effective and reliable. Id.; Comments at 2-3.

Contracting agencies have broad discretion in identifying their needs and determining what characteristics will satisfy those needs. Bombardier, Inc., Canadair, Challenger Div., B-243977, B-244560, Aug. 30, 1991, 91-2 CPD ¶ 224 at 3. The fact that specifications are based upon a particular product is not improper in and of itself; nor will an assertion that a specification was “written around” design features of a particular product provide a valid basis for protest if the record establishes that the specification is reasonably related to the agency’s minimum needs. Hewlett-Packard Co., B-239800, Sept. 28, 1990, 90-2 CPD ¶ 258 at 6. When a protester challenges a salient characteristic included in a brand name or equal solicitation as unduly restrictive of competition, we will review the record to determine whether the restrictions imposed are reasonably related to the contracting agency’s minimum needs. Herley Indus., Inc., B-246326, Feb. 28, 1992, 92-1 CPD ¶ 243 at 2.

DLA maintains that its requirement for brand name Kyocera printers or equal that use PRESCRIBE software is necessary to meet the agency’s needs. AR at 1. The agency explains that PRESCRIBE permits DLA and its 26 worldwide distribution centers to print critical barcodes in near real-time directly to any of the 13,000 printers throughout the distribution system. AR, Tab 1, Declaration of Computer Specialist & Program Manager, at 1-2. DLA maintains that it has evaluated various other options, but concluded that configuring its electronic distribution system to accommodate each potential vendor’s printing software would not be efficient and could cost over $67,000 per printer manufacturer. AR at 6, 11. The agency disputes that PRESCRIBE software is only available on Kyocera brand printers, and it asserts that market research shows that at least two manufacturers other than Kyocera can provide printers which are capable of using PRESCRIBE. Id. at 10-11.

In our view, the agency has reasonably concluded that brand name Kyocera printers or equal that use PRESCRIBE software are necessary to meet the agency’s needs. In this respect, DLA presented persuasive arguments that it requires printers that are compatible with the agency’s uniform, worldwide electronic distribution system and that PRESCRIBE permits the agency to distribute critical supplies quickly, efficiently, and without additional costs to the agency. The protester does not rebut DLA’s technical arguments, does not rebut PRESCRIBE’s ability to efficiently meet DLA’s distribution needs, and does not rebut DLA’s estimates for reconfiguring its electronic distribution system to accommodate each vendor’s printing software. See generally Comments. Rather, PDT’s response to the agency’s various arguments is that such information should be used to prepare a J&A. Id. at 1. Moreover, PDT fails to address the agency’s claim that other than Kyocera printers can use PRESCRIBE (and the protester fails to show how the RFP restricts PDT from submitting a proposal for same). Thus, we disagree that DLA is conducting a sole-source procurement or must prepare a J&A.  (Persistent and Determinant Technologies LLC, B-408342, Aug 22, 2013)  (pdf)

VHSS protests that the VA unreasonably determined that its offered product was not equal to the brand name product.

Federal Acquisition Regulation (FAR) § 11.104 allows the use of brand name or equal purchase descriptions in describing agency needs in a solicitation, including those conducted under FAR Parts 12 and 13, 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. Use brand name or equal descriptions when the salient characteristics are firm requirements.

FAR § 11.104(b). Thus, this brand name or equal solicitation was defective because it did not identify salient characteristics, so that bidders 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 ¶ 185 at 3. We have recognized that where, as here, an agency does not include a list of salient characteristics in a brand name or equal solicitation, the agency is precluded from rejecting a bid 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; Elementar Americas, Inc., B-289115, Jan. 11, 2002, 2002 CPD ¶ 20 at 2.

VHHS’s bid literature was evaluated by two doctors and a nurse manager employed by the VA, who determined that the USMI product was not equal to the brand name product. The first and primary reason that the VA determined that USMI’s product was not equal to the brand name product was the agency’s determination that USMI’s electrosurgical unit uses constant power, where power stays constant as the device cuts through all tissue types. Agency Report (AR) at 3; see Hearing Transcript (Tr.) at 18. The brand name electrosurgical unit uses constant voltage. Id. The agency stated the following regarding the issue of constant voltage versus constant power electrosurgical units:

If voltage is constant then, as resistance rises, current falls off. The current level must be high at the start of the cut to establish the electrical arcs needed to cut tissue. As the cut proceeds, the current should decrease. However, with constant power devices, similar to Protester’s, the voltage variation that accompanies these factors can cause excessive coagulation (thermal injury). This is a significant, patient safety issue.

AR at 3. The evaluator testified that because of this constant voltage feature the ERBE electrosurgical unit “gives us an incremental cutting action, rather than one cutting action,” which results in a “very controlled cut.” Tr. at 18-19.

VHSS responded to the VA’s evaluation both in writing and at the hearing convened by our Office. As set forth below, the VA has not refuted, or shown to be in error, the protester’s assertions that its product is, in fact, equal to the specified product. For example, the protester notes that its proposed USMI model SS-601MCa electrosurgical unit utilizes a Tissue Impedance Sensitive Control (TISC), which senses the impedance in tissue and keeps the selected power constant as it cuts through all tissue types, and that the USMI product is therefore not significantly different from the brand name product. Tr. at 104, 112, 117. The TISC system was specifically mentioned in VHHS’s descriptive literature. Protest, Tab 4, VHSS Bid, at 13.

Also included in VHSS’s bid is a chart titled “Electrosurgical Units Comparison List,” which compares certain features of ERBE Model V10 300 D to USMI’s model SS-601MCa, wherein it is stated that USMI’s product included the “TISC System [which] keeps selected power constant with all tissue types, including those with high impedance.” Protest, Tab 4, VHSS Bid, at 5. The submitted product literature also indicates that USMI’s electrosurgical device offers four pulse, or fractionated cuts, called E-cuts, that coagulates the tissue and cuts it at the same time, which VHSS claims, is functionally similar to the pertinent feature in the the brand name ERBE unit. Id.; Tr. at 96-97, 126. Thus, the record suggests that the proposed USMI electrosurgical unit has similar capabilities to those of the ERBE brand name unit in this respect and is thus not significantly different.

The record also shows that the agency may have discounted the information in VHSS’s bid because the VA’s evaluators were not familiar with USMI’s electrosurgical unit. The record shows that the evaluators compared ERBE’s electrosurgical unit, which uses constant voltage, to the constant power electrosurgical units that it currently uses; the currently used units are much older and the agency was seeking to replace them. Tr. at 19-20, 31, 46-47. The evaluator/witness stated that his evaluation of the products was based on his personal experience with the ERBE unit, and that his lack of familiarity and experience with the USMI unit prevented him from being able to evaluate it. Tr. at 44-45. Based on this record, we cannot find that the agency reasonably determined that USMI’s electrosurgical unit was significantly different from the brand name unit because of this power feature.

The second reason that the agency determined that USMI’s unit was not equal to the brand name unit had to do with the location of the filter and whether it would be changed after each use. The brand name ERBE electrosurgical unit includes a filter on the catheter or probe that would be changed after each use. Tr. at 21. The evaluation summary stated:

On the USMI comparison chart, listed as ‘inside equipment.’ Not expressly stated whether it could be changed with each patient as desired by department and recommended by SGNA (Society for Gastrointestinal Nurses and Associates)

Contracting Officer’s Statement at 2.

The record also does not establish that the lack of an outside filter that would be changed after each use in USMI’s unit makes it significantly different from the ERBE brand name unit. The VA evaluator/witness was unfamiliar with the SGNA recommendation, but stated the agency desired a filter on the probe that would be changed after each use due to a cross-contamination incident that occurred in a VA facility in Miami, Florida. Tr. at 62. However, the protester provided unrebutted evidence that the incident in Miami arose from the VA’s improper sterilization of reused scopes, rather than any issue with the filter. Tr. at 137; Protester’s Post-Hearing Comments at 8; exh. H. VA Inspector General’s Report (June 16, 2009).

Moreover, the USMI witness testified that changing the internal filter after each use of USMI’s electrosurgical unit was unnecessary, and that its filter need only be changed once a year. Tr. at 99-100, 133, 138-43. The VA evaluator/witness, who was not familiar with the USMI unit, assumed that all filters on electrosurgical units needed to be changed after each use to avoid cross-contamination. Tr. at 24, 44-45, 60.

Finally, as noted above, USMI provided with its bid a copy of the section 501(k) letter from FDA stating that the USMI electrosurgical unit was substantially equivalent to the ERBE device based on the summary that had been provided. Protest, Tab 4, FDA Letter to USMI (Apr. 6, 2011), at 1. While the VA evaluator/witness discounted the relevance of this FDA approval, Tr. at 35-36, he also admitted his unfamiliarity with the section 501(k) process and did not know that the brand name product was designated a predicate device for the USMI model SS-601MCa offered by VHSS. Tr. at 74-75.

While our Office affords particular deference to the technical expertise of agency personnel where their technical judgments involve matters of human life and safety, Sig Sauer, Inc., B-402339.3, July 23, 2010, 2010 CPD ¶ 184 at 2, the record before us does not withstand scrutiny. In short, in its written materials and in testimony presented at the hearing, the VA has not shown that VHSS’s proposed USMI electrosurgical unit was significantly different from the brand name ERBE unit.  (Veterans Healthcare Supply Solutions, Inc., B-407223.2, Dec 13, 2012)  (pdf)

NCTI protests the agency’s rejection of its quotation as unacceptable. Specifically, NCTI objects to the VA’s determination that the microscope submitted by NCTI failed to meet four of the salient characteristics of the brand name item identified in the RFQ. Comments at 2. NCTI argues that the award to Metro Medical was improper because NCTI submitted the lowest-priced quotation for a “clearly equivalent microscope.” Protest at 2.

In reviewing protests of agency evaluations, we review the record to ensure that the evaluation and source selection decision were reasonable and consistent with the terms of the solicitation and applicable procurement statutes and regulations. Ricoh America’s Corp., B-402239, Feb. 22, 2010, 2010 CPD ¶ 55 at 2. Under a brand name or equal solicitation, a firm offering an equal product must demonstrate that the product conforms to the salient characteristics of the brand name product listed in the solicitation. OnSite Sterilization, LLC, B-405395, Oct. 25, 2011, 2011 CPD ¶ 228 at 2. If the firm fails to do so, its product is properly rejected as nonconforming. Id.

Here, the record shows that the agency reasonably determined NCTI’s quotation to be unacceptable. In this regard, as noted above, the agency found that NCTI’s quotation did not address all of the salient characteristics of the brand name microscope, as required by the RFQ. For example, the RFQ required any microscope offered as equal to the Zeiss model to include, as a salient characteristic, a wireless foot pedal. Regarding the characteristic, NCTI’s quotation stated only that its microscope “[d]oes have foot pedal,” but it did not indicate whether the foot pedal was wireless, as required. Supp. AR, exh. B, NCTI Quotation, at 37.

Similarly, another salient characteristic of the RFQ required that the equal microscope be upgradeable to future technologies, including the ability to toggle between diagnostic views saved prior to surgery and the real-time surgical view. RFQ at 4. The agency correctly noted that NCTI’s quotation failed to indicate whether its microscope was upgradeable to any future technologies, let alone the ability to toggle between different views. Supp. AR, exh. B, NCTI Quotation, at 37. NCTI’s quotation merely stated that its microscope was the most technologically advanced and used highly technical accessories, none of which addressed the ability to upgrade or to toggle between views.

During the development of this protest, NCTI confirmed in an updated side-by-side comparison that the foot pedal is wireless and that its microscope was upgradeable to future technologies. See Protest, attach. D, Microscope Side-by-Side Comparison, at 1. In this comparison, NCTI also included additional information regarding other salient characteristics. Id. However, this information was not included in NCTI’s quotation and, therefore, was properly not part of the agency’s evaluation. See Supp. AR, exh. B, NCTI Quotation, at 37. Because NCTI’s quotation did not address whether the offered [REDACTED] microscope met all of the RFQ’s salient characteristics, the VA reasonably found the quotation unacceptable. We therefore find the award to Metro Medical, who submitted a technically acceptable quotation, unobjectionable.  (Nas/Corp-Telmah, Inc., B-405893, Jan 10, 2012)  (pdf)

When a solicitation contains a brand name or equal purchase description, the FAR requires that it include “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.” FAR § 11.104(b). The particular features of a brand name item set forth in a solicitation are presumed to be material and essential to the government’s needs. Mid-Florida Corp., B-228372, Jan. 22, 1988, 88-1 CPD ¶ 60 at 4. 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. CAMSS Shelters, B-309784, B-309784.2, Oct. 19, 2007, 2007 CPD ¶ 199 at 4. If the quotation fails to do so, it is properly rejected as technically unacceptable. Id.

Here, we think that the agency reasonably determined that the descriptive literature furnished by the protester did not establish that its proposed rower complied with the salient characteristics for a flywheel design and easy separation into two parts for transport and storage. Sourcelinq contends that the agency’s technical evaluator should have been able to determine from a picture of the rower in its submitted brochure that the unit contained a flywheel and that it could easily be broken down into two pieces by removing two bolts. We disagree. We have reviewed the picture, and it does not clearly establish either that the unit contains a flywheel or that it may easily be separated into two pieces by removing two bolts. Thus, we have no basis to find the agency’s evaluation unreasonable.  (Sourcelinq, LLC--Protest and Costs, B-405907.2,B-405907.3,B-405907.4, Jan 27, 2012)  (pdf)

ADM argues that its quotation was lower-priced than Shaw’s quotation and should have been selected for the delivery order. However, ADM does not dispute that its revised quotation failed to include the information required by the RFQ. Instead, ADM argues that the required density information was included in its initial quotation and had not changed, that flooring radiant panel testing should not have been required because the brand name product did not carry a passing test certificate, and that its electrostatic test certificate was unsigned because the manufacturer “does not own the data generated by testing labs.” Protest at 2. We conclude that the Air Force reasonably, and consistent with the terms of the solicitation, found AMD’s quotation to be incomplete, and unacceptable.

When reviewing a protest against the propriety of an evaluation, it is not our function to independently evaluate quotations and substitute our judgment for that of the contracting activity. Rather, we will review an evaluation to ensure that it was reasonable and consistent with the evaluation criteria in the solicitation and applicable procurement statutes and regulations. Neopost USA Inc., B-404195, B-404195.2, Jan. 19, 2011, 2011 CPD ¶ 35 at 4; AlliedBarton Sec. Servs. LLC, B-299978 et al., Oct. 9, 2007, 2007 CPD ¶ 186 at 6.

Regarding the agency’s evaluation of dimensional and density information provided by the protester, the RFQ required vendors to quote a product with “[t]otal carpet thickness including backing: Within 0.68 thru 0.75 [inches].” AR, Tab 7, at 5. The RFQ also required a carpet density of “[m]ore than 3,000 ozs/yd3,” and a backing density of “18 lbs. per cubic foot.” Id. In its revised quotation, ADM indicated that it would provide a carpet and backing with a total thickness of “MAXIMUM .75.” Id. ADM did not indicate a minimum thickness, or a density for its offered carpet or backing. The agency concluded that ADM quotation did not demonstrate compliance with the RFQ’s requirements, where it failed to specify a minimum thickness of at least .68 inches, and failed to provide density information.

As stated above, ADM argues that its revised quotation should not have been found unacceptable for failure to provide required information in its revised quotation because the missing information was provided in its initial quotation, and its offered product had not changed. We disagree. First, where an agency has amended an RFQ and solicited revised quotations, there is no basis for an agency to rely on information submitted in an initial quotation submitted in response to the initial RFQ to demonstrate compliance with the amended RFQ. Second, while ADM did submit a specific thickness measurement and carpet density information in its initial quotation, this information was not “the manufacturer’s issued catalog data or signed features,” as required by the amended RFQ.[1] In response to the amended RFQ, requiring verified data, ADM submitted only a maximum thickness dimension, and manufacturer’s catalog data indicating average density as “N/A.” Given ADM’s failure to provide the required information in its revised quotation, we see nothing unreasonable in the agency’s conclusion that ADM’s quotation was unacceptable.

With regard to ADM’s arguments that the flooring radiant panel and electrostatic propensity test certificates should not have been required, we find these arguments untimely. Our Bid Protest Regulations contain strict rules for the timely submission of protests. They specifically require that a protest based upon alleged improprieties in a solicitation that are apparent prior to the closing time for receipt of initial quotations be filed before that time. 4 C.F.R. § 21.2(a)(1) (2010). This rule includes challenges to alleged improprieties that do not exist in the initial solicitation but which are subsequently incorporated into it; in such cases, the solicitation must be protested not later than the next closing time for receipt of quotations following the incorporation. Id.; see Cessna Aircraft Co., B-261953.5, Feb. 5, 1996, 96-1 CPD ¶ 132 at 16. Here, the requirement to submit these test certificates was clearly set forth in the amended RFQ, and the amended RFQ further cautioned offerors that “listed test pass requirements are mandatory, and offered [items] with any failure to comply [with] the test pass requirement will not be considered for award.” AR, Tab 7, at 10. To the extent that ADM disagreed with these amended RFQ requirements, ADM was required to file its protest prior to the closing time of the amended RFQ.

The protest is denied.  (ADM International, Inc., B-405854, January 6, 2012)  (pdf)

MEDI protests the agency's determination that Micro's "equal" scanner satisfied the requirements of section 2.1.16 of Attachment 3 of the RFQ. In its quotation, Micro offered a [deleted], and addressed section 2.1.16 by stating that:

AR, Tab 3, Micro's Quotation, attach. 3 at 2. In response to each of the other listed requirements (except one) Micro stated that its "equal" scanner complied with or exceeded the requirement. Id. at 1-2. With respect to section 2.1.16. Micro included a supplemental paragraph in its quotation, entitled . AR, Tab 3, Micro's Quotation, at 24.

Under the circumstances, we think that the phrase in Micro's quotation indicated that the "equal" scanner that Micro proposed did not yet have the capability required by section 2.1.16. In addition, [deleted]

As mentioned above, the RFQ here required that products be delivered 21 days after order, and the order was placed on May 3, 2011. Based upon Micro's failure to offer a compliant product that could be delivered in the time frame set by the RFQ, we think NARA should have found Micro's quote to be technically unacceptable.

We recommend that NARA review the quotations consistent with this decision, and either reject Micro's quotation as unacceptable and place the order with MEDI, or review the RFQ to ascertain whether the RFQ reflects NARA's actual requirements. If the agency determines that RFQ does not reflect its actual requirements, it should amend the RFQ, obtain revised quotations, conduct discussions as necessary, and place an order with the vendor whose proposal is determined to be best value under the RFQ.  (MEDI-e-ImageData Corporation, B-405164, September 16, 2011)  (pdf)

OnSite contends that the agency erred in evaluating its product. According to the protester, the deficiencies the VA found in its system are not material to the agency's actual needs, and/or its system is superior to the brand name such that the VA should have issued the purchase order to OnSite as the lowest priced vendor. Protester Comments at 1-5.

Under a brand name or equal solicitation, a firm offering an equal product must demonstrate that the product conforms to the salient characteristics of the brand name product listed in the solicitation. American Government Marketing, Inc., B‑294895, Nov. 22, 2004, 2005 CPD para. 109 at 2. If the firm fails to do so, its product properly is rejected as nonconforming. Id.

Here, as noted above, the agency found OnSite's product nonconforming for failing to meet seven salient characteristics. In its response to the agency report, OnSite acknowledges that its product does not fully conform to all of the requirements specified in the solicitation. OnSite, however, asserts that its product essentially complies with the solicitation requirements or, in the alternative, that any deviations are offset by some other benefit or result in a product that is superior to the brand name product.

For example, as noted above, the agency determined that OnSite did not quote a dual-chambered system, as required by the RFQ. The agency explains that it required a dual-chambered system for capacity, and required a back-up in case of system failure or when the unit requires servicing. AR, Contracting Officer Statement, at 3. While OnSite acknowledges that its compactor is single-chambered, it nonetheless argues that this shortfall is immaterial because its unit was specifically designed to have a minimal maintenance profile. Protester Comments at 4.

We have previously found that an agency should waive a minor deviation from a brand name or equal solicitation's salient characteristics where the deviation does not affect the ability of the nonconforming product to meet the agency's actual functional needs, and no other firm is prejudiced by the waiver. General Projection Systems, Inc., B-241418.3, Dec. 27, 1991, 91-2 CPD para. 582 at 4. Here, however, OnSite's compactor deviates materially from the agency's actual needs because it did not meet the salient characteristics. Thus, the agency required a dual-chambered system in order to have a back-up when the system needed service; we find reasonable the agency's position that OnSite's quote of a single-chambered system with no back-up represented a material deviation from the specifications.

Likewise, the solicitation required that the compactor have an automated/touch-free operation so as to avoid the costs associated with additional labor to manually load or unload the compactor. AR, Contracting Officer Statement, at 3. The agency states that OnSite's unit was not fully automated, resulting in additional labor costs over the life of the unit. Id. The protester acknowledges that while its "system is touch-free and automated on the loading side," on the unloading side it is only "touch free and semi-automated"; according to the protester, the "manual function is to push the carts into the chamber and to pull them out and place them on the cart tipper for dumping into the compactor." Protester Comments at 1, 4. OnSite asserts that this deviation from the salient characteristic is immaterial because the OnSite unit has 3.77 times the volume of the San-I-Pak unit and "accordingly offsets this labor expense by having far greater unit capacity and fewer operating cycles for the same amount of waste." Id. at 4. The protester also states that to achieve the automatic discharge feature, San-I-Pak dumps free liquids into the compactor, creating a continuous odor problem. The protester asserts that, in contrast, its unit is odor free. Id.

Again, the protester's arguments amount to a contention that the deviation of its product is offset by some other benefit. The solicitation, however, reflected the agency's determination that it needed an automated touch-free system without additional labor; we find reasonable the agency's position that the fact that OnSite's system is not totally automated and requires some manual operation represents a material deviation from the solicitation. To the extent the protester believes its alternate approach better meets the agency's needs, the protester was required to protest the specifications prior to the time set for receipt of quotations. 4 C.F.R. sect. 21.2(a)(1). Because OnSite did not file its protest until well after the closing date, we will not consider a challenge to the specifications.

OnSite also challenges the selection of San-I-Pak, asserting, for example, that it is doubtful that San-I-Pak's dual-chambered unit would fit the footprint of the current single-chambered unit. Protester Comments at 4. However, since we have concluded that the agency properly rejected OnSite's nonconforming quotation, and there is an intervening vendor who quoted the brand name product and whose quotation was evaluated as acceptable, OnSite is not an interested party for purposes of raising these allegations. 4 C.F.R. sect. 21.0(a). In this regard, where, as here, there is an intervening vendor who would be in line for the award if the protester's challenge to the award were sustained, the intervening vendor has a greater interest in the procurement than the protester, and we generally consider the protester's interest to be too remote to qualify it as an interested party. Ridoc Enterprise, Inc., B-292962.4, July 6, 2004, 2004 CPD para. 169 at 9.  (OnSite Sterilization, LLC, B-405395, October 25, 2011)  (pdf)

MediaNow's Technical Acceptability

Vendors proposing "equal" items were required to "include a positive statement and supporting documentation confirming all salient feature[s]" listed in attachment A of the RFQ, had been achieved by the offered products. RFQ at 4. In evaluating MediaNow's final quotation, the agency found 23 instances where the vendor's products failed to meet the salient characteristics identified in the RFQ. MediaNow asserts that the agency misevaluated its proposal; according to the protester, its products meet or exceed all salient characteristics. Protest at 2.

In reviewing a protest of an agency's evaluation of proposals, our review is confined to a determination of whether the agency acted reasonably and consistent with the terms of the solicitation and applicable statutes and regulations. United Def. LP, B‑286925.3 et al., Apr. 9, 2001, 2001 CPD para. 75 at 10‑11. It is the offeror's duty to include sufficiently detailed information in its proposal to establish that the equipment offered meets the solicitation requirements; blanket statements of compliance are insufficient to fulfill this duty. IVI Corp., B-310766, Jan. 23, 2008, 2008 CPD para. 21 at 3. Further, with respect to the offer of an "equal" product, an offeror's proposal must demonstrate that its product conforms to the salient characteristics listed in the solicitation. See CAMSS Shelters, B-309784, B-309784.2, Oct. 19, 2007, 2007 CPD para. 199 at 4.

In determining that MediaNow's quotation was unacceptable, the evaluators found at least 19 instances where the vendor failed to demonstrate that each of its equal items satisfied all of the salient characteristics. For example, the RFQ required the digital media manager appliance to remotely control and manage digital display properties such as on/off, contrast, brightness, and volume; to archive content/assign metadata to assets; and to offer a minimum of 6 gigabytes RAM. RFQ, attach. 1, Tab A. However, apart from general statements that its VBrick product could "meet" these requirements, MediaNow's quotation, including its attached product information sheets, provided no information that demonstrated these capabilities. Agency Evaluation of Tab A at 1. Indeed, even in its protest submissions MediaNow fails to identify where in its quotation the required information may be found. MediaNow Comments at 5. On this record, we conclude that the agency reasonably found that MediaNow's various blanket statements of compliance were inadequate to establish that its products met all salient characteristics. In these circumstances, MediaNow's quotation was properly found to be unacceptable.

The protest is denied.  (MediaNow, Inc., B-405067, June 28, 2011)  (pdf)

In effect, CAMSS's position is that the agency's approach of requiring offerors to submit prices for a list of particular brand name items--without also including salient characteristics to allow firms to propose equivalent products--fails to meet the most basic requirements for full and open competition under the Competition in Contracting Act (CICA). We agree.

CICA expressly requires agencies to specify their needs and develop specifications in a manner designed to achieve full and open competition. 10 U.S.C. sect. 2305(a)(1)(A) (2006). To that end, solicitations are required to include specifications that permit full and open competition, and may include restrictive provisions or conditions only to the extent necessary to satisfy the needs of the agency. 10 U.S.C. sect. 2305(a)(1)(B). Agencies are further instructed that they may use specifications stated in terms of function (so that a variety of products or services may qualify), performance characteristics or design requirements, depending on the nature of the requirements. 10 U.S.C. sect. 2305(a)(1)(C).

These basic requirements are echoed in FAR part 11, under which, to the maximum extent practicable, agencies must articulate their requirements in terms of functions to be performed, performance characteristics required, or essential physical characteristics. FAR sect. 11.002(a)(2). While the use of performance specifications is preferred, FAR sections 11.101, 11.104, the FAR also permits agencies in appropriate circumstances to use "brand name or equal" purchase descriptions, where the purchase description includes a statement of the salient physical, functional or performance characteristics that are necessary to render an "equal" product eligible for award. FAR sect. 11.104. Agencies are precluded from specifying their requirements solely in terms of a particular firm's product unless the particular brand name, product or feature is essential to the government's needs, and market research shows that other companies' similar products lacking the particular feature do not meet the agency's needs, or cannot be modified to meet the agency's needs. FAR sect. 11.105. Further, when procuring on a brand name only basis, agencies are required to follow documentation and approval procedures for acquiring goods or services using other than full and open competition. FAR sect. 11.105.

Here, the RFP required prospective offerors for the ID/IQ contract to submit proposals exclusively for the exact brand name items specified in the core list, with no provision for offering alternate, "equal," products. Although the solicitation thus amounts to a brand name only procurement, the agency has not prepared and executed the required justification and approval (J&A) for use of other than full and open competition. 10 U.S.C. sections 2304(c), (f); FAR sect. 11.105; Critical Process Filtration, Inc., B-400747, et al., Jan. 22, 2009, 2009 CPD para. 25, at 5-7 (where purchase exceeds simplified acquisition value threshold, agency is required to prepare J&A before using brand name only specification, or to conduct acquisition using full and open competition). The agency's actions therefore are improper.

DLA asserts that its decision not to include salient characteristics for the 249 core list items is based on the fact that the salient characteristics for one user might be different from another user, depending on, for example, considerations such as the geographic location where the tent or shelter might be used. As noted above, however, while the use of a "brand name or equal" approach is one method for describing the agency's requirements, there are various ways (including the use of either functional, performance or design specifications) for the agency to express its requirements in a manner that allows for full and open competition, and DLA has not shown that one or another of these methods is inadequate for purposes of preparing an adequately written solicitation. In any case, as discussed above, the agency is required to execute the required J&A for use of other than full and open competition before it can rely on the brand name only approach embodied in the current RFP.

Given the terms of the current solicitation along with DLA's failure to execute the required J&A for use of other than full and open competition, we sustain CAMSS's protest.  (California Industrial Facilities Resources, Inc., d/b/a CAMSS Shelters, B-403397.3, March 21, 2011)  (pdf)

Medfinity contends that the agency erred in rejecting its product, arguing, for example, that it "certified" that the EVA cord met the 45-degree angle and DICOM compliance requirements. Protest at 2. Medfinity further asserts that the RFQ actually required that the sensor connect to the laptop via either USB or PCMCIA card, and that its product should have been found to meet this requirement by virtue of Medfinity's certification to that effect. Id. Medfinity notes that it offered to demonstrate its product to the agency.

It is well-settled that it is the vendor's responsibility to include sufficiently detailed information in its proposal (or quotation) to establish that the item offered will meet the solicitation requirements, and that blanket statements or certifications of full compliance are insufficient. IVI Corp., B-310766, Jan. 23, 2008, 2008 CPD para. 21 at 3. With respect to a brand name or equal solicitation, a firm offering an equal product must demonstrate that the product conforms to the salient characteristics of the brand name product listed in the solicitation. American Gov't Marketing, Inc., B‑294895, Nov. 22, 2004, 2005 CPD para. 109 at 2. The contracting agency is responsible for evaluating the data submitted by the vendor and ascertaining if it provides sufficient information to determine if the vendor's product is acceptable. See ACR Elec. Inc., B-266201, Jan. 24, 1996, 96-1 CPD para. 19 at 4. We will review an agency's determination in this regard to ensure that it was reasonable. Id.

The agency's determination here was reasonable. The record supports the agency's finding that Medfinity's quotation consisted primarily of blanket statements of compliance, without explanation or elaboration. For example, the proposal simply states that the EVA "is DICOM compliant," connects to the laptop "via a USB or PCMCIA Card," and has "the cord at a 45° angle or directly out the back. . . ." AR, Tab 8, Medefinity Proposal at 1. The technical data accompanying the quotation was limited to a 3-page product brochure that not only did not establish compliance with these three requirements, but failed to address the majority of the salient characteristics detailed by the RFQ. Medfinity's assertion that the RFQ required either a USB or PCMCIA card interface is incorrect. The RFQ specifically required only a PCMCIA card interface; there was no mention of a USB interface. While Medfinity's proposal stated that its sensor connects to the laptop via USB or PCMCIA card, its product brochure only stated that it connected via USB. AR, Tab 5, Medfinity Proposal, EVA Descriptive Literature, at 2. Finally, the agency was not required to permit Medfinity to demonstrate its product, since there was no provision for such a demonstration in the RFQ. Rather, as noted, vendors were to establish the compliance of their products through descriptive literature or other evidence submitted with their quotations.

In its comments on the agency report, Medfinity raises a number of arguments for the first time. These arguments are untimely. For example, the protester asserts that the only Dexis sensor with a PCMCIA card connection was discontinued a year ago, and that the PCMCIA card requirement unreasonably restricts competition because Dexis is the only manufacturer that uses PCMCIA technology. Protester Comments at 2-4. Our Bid Protest Regulations require that protests based upon alleged improprieties in a solicitation that are apparent prior to the time set for receipt of proposals (or quotations) be filed prior to that time. 4 C.F.R. sect. 21.2(a)(1) (2010). Medfinity's arguments concern the specified features of the brand name product; to the extent that it believed these features were unduly restrictive or otherwise should not have been included in the RFQ, it was required to protest on these grounds before quotations were due. Since its protest was not filed until after issuance of the purchase order, its protest on these grounds is untimely and will not be considered.   (Medfinity, LLC, B-403366.2,October 28, 2010)  (pdf)

Brand Name Or Equal Requirement

Standard challenges the brand name or equal requirement in the RFQ, asserting that the ASTM documents themselves do not require that the acceptability of a quoted product be determined based on the characteristics of the ALCOR brand name product. Protest at 3-4; Comments at 13-14. Standard notes, in this regard, that, while ASTM D 3241 indicates that heater tubes manufactured by ALCOR were used in the development of the test method, this was not "an endorsement or certification by ASTM International." Protest at 3; AR, exh. 9, at 9-3, n. a. Standard asserts that "the raw material used by the two current viable manufacturers has an identical composition because it uniformly originates at precisely the same source and the exact same mill." Protest at 5. Standard concludes that the requirement is unduly restrictive.

The agency responds that the ALCOR heater tube is integral to the test procedure, noting that ASTM D 3241 specifically advises that the fuel test method "depends upon, and is inseparable from, the specific equipment used," and that "the test method shall be conducted with the equipment used to develop the test method or equivalent equipment." CO's Statement at 2-8; see AR, exh. 9, at 9-2. The "equipment used to develop the test method," as indicated above, included the ALCOR heater tube specified in the RFQ. AR, exh. 9, at 9-3. More specifically, the CO explains that the final result from the JFTOT thermal stability test under ASTM D 3241 is a heater tube color rating, which is based primarily on a visual observation; accordingly, the appearance of heater tubes must be equivalent at the onset of each test. CO's Statement at 2-8. The agency asserts that requiring ALCOR equivalency is necessary to ensure that the heater tube color rating is consistent across all tests, and that final results are not confused by the initial appearance or other characteristics of nonequivalent tubes. AR at 7.

We find the Air Force's position persuasive. First, we find nothing objectionable in the agency's reliance on the ASTM standard in determining the necessary characteristics of the required heating tubes. In this regard, we have held that it is plainly reasonable for an agency to attempt to comply with technical requirements that were specifically formulated for application in the procurement. 120 Church Street Assocs., B‑232139, Nov. 21, 1988, 88-2 CPD para. 496 at 6-7; see, e.g., General Electrodynamics Corp., B‑298698, B-298698.2, Nov. 27, 2006, 2006 CPD para. 180 at 6 (agency properly may rely on applicable industry standard to demonstrate reasonableness of requirements).

Contrary to Standard's assertion, the language of ASTM 3241, on its face, articulates the need to conduct testing using the same equipment used to establish the test procedure, stating that the "test method . . . depends upon, and is inseparable from, the specific equipment used, [so] the test method shall be conducted with the equipment used to develop the test method . . . ." AR, exh. 9, at 9‑2. It is undisputed in the record that the ALCOR heater tube specified in the RFQ was part of the equipment used to develop the test procedure in question. Further, the agency has sufficiently established that the brand name or equal provision is necessary to ensure the validity of the heater tube ratings, which are based on a visual comparison, and thus could be affected by the use of tubes with varying characteristics. Although Standard disagrees with the agency's position in this regard--it asserts that color equivalency is "mythical," Comments at 18--it has not shown that the agency's judgment is unreasonable. See Richard Bowers & Co., B-400276, Sept. 12, 2008, 2008 CPD para. 171 at 2. We conclude that the brand name or equal requirement is unobjectionable.

Testing Requirement

Standard challenges the RFQ's requirement for testing of "equal" products in accordance with RR-1550, as prescribed by ASTM D 3241, asserting that such testing is not required by ASTM D 3241, is not otherwise necessary, and therefore unduly restricts competition. Protest at 3. In this regard, Standard points out that RR-1550 itself includes a disclaimer on its cover page, indicating that it is not to be reproduced, circulated, or quoted "outside of ASTM International Committee/Society activities." Id. Standard asserts that this indicates that RR-1550 is "only to be used in ASTM Subcommittee Activity," which does not include a "solicitation through a Federal agency." Protest at 3.

The establishment of testing procedures is a matter within the technical expertise of the procuring activity, and we will not object to the imposition of such a requirement unless it is shown to be without a reasonable basis. Essex Electro Engineers, Inc.; Alturdyne, B-259832, B‑259832.2, May 3, 1995, 95‑1 CPD para. 228 at 3.

We find that RR-1550 is a reasonable means of ensuring the acceptability of the required heater tubes. The agency asserts that use of ASTM D 3241 is prescribed by an applicable military standard--MIL-STD-3004B, Department of Defense Standard Practice, Quality Assurance/ Surveillance For Fuels, Lubricants and Related Products. CO's Statement at 2-3; see AR, exh. 12. This standard describes ASTM D 3241 as "DoD adopted," id. at 12-18, and provides that all "laboratory tests shall be conducted in accordance with the method prescribed in the specification covering the product." Id. at 12-36. RR‑1550 is specifically cited in ASTM D 3241 as "a test protocol to establish equivalence of heater tubes." AR, exh. 9 at 9-3. No other test is cited in ASTM D 3241 and the protester identifies no alternative test.

The protester's assertion that the ASTM standards, by their own terms, are not intended for use by federal agencies is without merit. ASTM D 3241 specifically provides that it "has been approved for use by agencies of the Department of Defense." AR, exh. 9, at 9-1. Further, as the CO points out, RR-1550 explicitly provides that its purpose is to "establish the equivalency of heater tubes manufactured by another manufacturer with ALCOR heater tubes in ASTM D 3241." CO's Statement at 2-9, 2-10; see AR, exh. 10, at 10-2. In addition, the Air Force has provided a statement from an ASTM representative, advising that any entity, "whether or not a member of ASTM, can reference the requirements on any ASTM standard in a contract, bid, regulation, etc." AR, exh. 15, at 15.2. See generally M. C. & D. Capital Corp., B-225830, July 10, 1987, 87-2 CPD para. 32 at 5-6 (agency's use of ASTM standards was unobjectionable where agency reasonably justified their use).

Standard challenges the usefulness and efficacy of the RR-1550 test procedures, asserting, for example, that the specifications in ASTM D 3241 "already sufficiently define, specify, and restrict the quality required," and that, because the primary result of testing under ASTM D 3241 "is a color determination and not a statistic," the absence of a "meaningful (statistical) precision statement for D 3241 makes comparative performance testing problematic." Protest at 3; Comments at 10, 14-15.

As noted above, a contracting agency's responsibility for determining its needs includes determining the type and amount of testing necessary to ensure both product compliance with the specifications and that a particular product will meet the government's needs. Austin Telecomms. Elec., Inc., B‑256251, May 31, 1994, 94-1 CPD para. 331 at 2. Here, the agency has amply demonstrated that the heater tubes are critical components of the JFTOT, that uniformity of the tubes is necessary to ensure valid test results, and that the RR-1550 testing protocol is a reasonable means of ensuring uniformity. See, e.g., AR at 2-3. Although Standard disagrees with the agency's position in this regard, it has not provided definitive information establishing that testing under RR-1550 does not serve its intended purpose or that the agency's judgment is otherwise unreasonable. See Richard Bowers & Co., supra. We thus find no basis to object to the RR-1550 testing requirement.  (Standard Heater Tube, Inc., B-403155, September 24, 2010) (pdf)

On July 23, the Army notified Mid-America that award had been made to A-DEC because that firm provided the lowest-priced, technically-acceptable quotation. This protest followed.

Mid-America protests the agency's determination that its quotation was unacceptable, contending that it offered chairs and equipment that were comparable to the brand name item, and asserts that the Army should have awarded the contract to Mid-America because it quoted a significantly lower price than A-DEC.

In reviewing protests of agency evaluations, we review the record to ensure that the evaluation and source selection decision were reasonable and consistent with the terms of the solicitation and applicable procurement statutes and regulations. Ricoh Am. Corp., B-402239, Feb. 22, 2010, 2010 CPD para. 55 at 3.

Here, the record shows that the agency reasonably determined Mid-America's quotation to be unacceptable. In this regard, the agency found that Mid-America's quotation did not address the salient characteristics, as required by the RFQ. In its comments responding to the agency report, Mid-America submitted a table comparing the items in its quotation to the A‑DEC items specified in the RFQ, to illustrate compliance with the salient characteristics. However, this table was not included in Mid-America's quotation and, more importantly, it shows that the chair and equipment in Mid-America's quotation did not meet at least some of the salient characteristics. For example, the table lists the lowest seat position for Mid‑America's chair as 21 inches, which does not meet the Army's requirement that the chair be able to lower to 13.5 inches. Similarly, the table states that Mid‑America's chair does not have a feature to lock out chair movement when a dental instrument is in use. In short, Mid-America concedes that its chair did not meet some salient characteristics.

Since the items offered by Mid-America did not meet the minimum requirements specified in the RFQ, the Army reasonably found the quotation unacceptable. We therefore find the award to A-DEC, who submitted a technically acceptable quotation, unobjectionable.  (Mid-America Taping & Reeling, Inc., d/b/a Mid-America Government Supply, B-403381, September 15, 2010)  (pdf)

Although it is clear that the agency mishandled IVI’s proposal in this case, this is not a “lost proposal” situation in which the missing information cannot be independently verified and meaningfully evaluated. See, e.g., Project Res., Inc., B-297968, Mar. 31, 2006, 2006 CPD para. 58; S.D.M. Supply, Inc., B-271492, June 26, 1996, 96-1 CPD para. 288 (lost proposal recovered after contract had been completed); East West Research, Inc., B-239565, Aug. 21, 1990, 90-2 CPD para. 147. Here, the “lost” proposal was discovered in the agency’s possession, was known to have been timely received, was sent for a technical evaluation, and was determined to be technically unacceptable. In this context, while the agency’s failure to timely forward the IVI proposal for evaluation was unfortunate, we view the protest solely as a challenge to the reasonableness of the agency’s technical evaluation. See, e.g., Basic Tech., Inc., B-214489, July 13, 1984, 84-2 CPD para. 45 (late evaluated proposal deemed technically unacceptable, protest decided as an evaluation challenge). This is because a reasonable determination that IVI’s proposal is technically unacceptable would render IVI ineligible for the award regardless of the agency’s other conduct in the procurement. The agency asserts that its determination was reasonable because, while IVI’s offer contained blanket statements that its “or equal” product would meet the salient characteristics in the RFP, the technical information it provided was incomplete and failed to support those blanket statements. IVI contends that its proposal provided an affirmative response to every characteristic listed in the RFP, and that the agency’s after-the-fact determination is unsupported. It is well-settled that it is the offeror’s duty to include sufficiently detailed information in its proposal to establish that the equipment offered will meet the solicitation requirements, and that blanket statements of full compliance are insufficient to fulfill this duty. Aztek, B-229525, Mar. 2, 1988, 88-1 CPD para. 218 at 3. Likewise, merely restating the RFP’s requirements is no better than a blanket offer of compliance. Id. With respect to the offer of an “or equal” product, an offeror’s proposal must demonstrate that its product conforms to the salient characteristics listed in the solicitation. See CAMSS Shelters, B-309784, B-309784.2, October 19, 2007, 2007 CPD para. 199 at 4. The contracting agency is responsible for evaluating the data submitted by the offeror and ascertaining if it provides sufficient information to determine if the offeror’s product is acceptable. ACR Elec., Inc., B-266201, Jan. 24, 1996, 96-1 CPD para. 19 at 4. In making this determination, the agency enjoys a degree of discretion which we will not disturb unless we find that the determination is unreasonable. Id. Here, we find that the agency’s determination was reasonable. The record demonstrates that most of IVI’s proposal was a mere restatement of the RFP’s salient characteristics, without elaboration. Indeed, the record shows that the technical data accompanying IVI’s proposal was limited to a 2-page product brochure that failed to address the majority of the more than 100 salient characteristics detailed by the RFP. In addition, some of the technical data provided in IVI’s product brochure contradicted its proposal’s claims that its product possessed the required salient characteristics. For example, the RFP specified as a salient characteristic that the optical coating system’s coating chamber be 60 to 80 centimeters in diameter, and while IVI’s proposal specified a coating chamber 80 centimeters in diameter, its product brochure specified a coating chamber 36 inches, or 91.4 centimeters, in diameter. In sum, as the offeror of an “or equal” item, the burden was on IVI to submit a proposal that adequately demonstrated that its offered product met the salient characteristics of the solicitation. As mere restatement of the RFP’s salient characteristics is insufficient to meet that burden, and IVI’s provided technical data was incomplete and contradicted its proposal, we cannot find unreasonable the agency’s determination that IVI’s proposal was not technically acceptable. (IVI Corp., B-310766, January 23, 2008) (pdf)

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. 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.  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.  (CAMSS Shelters, B-309784; B-309784.2, October 19, 2007) (pdf)

Under a brand name or equal solicitation, a firm offering an equal product must demonstrate that the product conforms to the salient characteristics of the brand name product listed in the solicitation. Bryan Constr. Co., B-261482, Sept. 20, 1995, 95-2 CPD 142 at 2-3. If the firm fails to do so, its product properly is rejected as nonconforming. Id. Here, applying the specifications contained in the RFQ to AGM's product, the agency found AGM's quotation unacceptable. In its response to the agency report, AGM does not dispute that finding, and the record clearly establishes that the product quoted by AGM failed to meet four minimum specifications contained in the RFQ. Accordingly, we find that the agency properly rejected AGM's product. (American Government Marketing, Inc., B-294895, November 22, 2004) (pdf)

American Floor asserts that the rejection of its quotation was improper because it in fact was based on the brand name, not an equal product, and therefore was not required to include descriptive literature. American Floor asserts that it submitted the information from Micor only to demonstrate that it was a certified installer of flooring, not to demonstrate that it intended to use Micor products. The agency reasonably rejected the protester's quotation here. In response to the agency's request that American Floor clarify what it was quoting, the protester did not state that it was offering the brand name. Instead, American Floor submitted a statement from Micor that the protester was a certified installer of Micor products, and a statement that it would submit the "product equals" when they were received from the manufacturer. The agency reasonably interpreted this response to its specific question as indicating that American Floor was quoting on an "equal" Micor product rather than the brand name; indeed, we think this is the only reasonable interpretation of the protester's response. While the protester asserts that it submitted the letter from Micor only to demonstrate its qualifications, not to suggest that it would not use the brand name products, this simply was not clear from its response. We conclude that the Air Force reasonably determined that the protester's quotation was based on an equal product, and that the agency therefore properly rejected the quotation for failure to include the required descriptive literature demonstrating the equivalence of its quoted product to the brand-name product. (American Floor Consultants & Installations, Inc., B-294934; B-294934.2, December 16, 2004) (pdf)

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.  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. 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.  (Elementar Americas, Inc., B-289115, January 11, 2002) (pdf)

Additionally, plaintiff asserts that, even if a sole source justification were proper, DHS’s Brand Name Justification failed to comply with the applicable law.20 The Federal Acquisition Regulation (“FAR”) subpart 6.3, addresses the requirements for sole source procurements and brand name justifications. Plaintiff avers (1) that DHS did not make the Justification available to the public as required by FAR § 6.305; (2) that the Justification does not identify the estimated value of the required supplies or services, and does not identify the statutory authority excusing it from full and open competition, in violation of FAR §§ 6.303-2(a)(3) and (4); (3) that the Justification does not include a demonstration that the proposed contractor’s qualifications are unique, in violation of FAR § 6.302-2(a)(5); (4) that the Justification does not include a description of DHS’s efforts made to ensure that offers were solicited from as many potential sources as practicable, in violation of FAR § 6.303-2(a)(6); (5) that the Justification does not include a determination by the contracting officer that the cost will be fair and reasonable, in violation of FAR § 6.303-2(a)(7); (6) that the Justification does not include a description of the market research conducted or a statement of the reason it was not conducted, in violation of FAR § 6.303-2(a)(8); and (7) that DHS failed to include the Justification with the pending TASC solicitation for support services, in violation of FAR § 5.102(a)(6).

Defendant argues that the Justification document is not a brand name justification for a sole source procurement, but rather is misleadingly titled and irrelevant. Defendant further avers that the Justification explains the basis for acquiring software development integration services in support of the migration to Oracle and SAP, not the purchase of Oracle or SAP software systems. Defendant asserts that this, together with the fact that DHS did not publish the Justification, demonstrates that DHS did not consider the document to constitute a brand name justification under FAR.

Defendant, however, titled the document “Brand Name Justification,” and under Section (4) of the document, offered a rationale/justification for selecting the two [Oracle and SAP] baselines. Moreover, the Justification states that [***]. On its face, then, it appears that DHS was attempting to avoid the full and open competition requirements of CICA by means of this Brand Name Justification.

Moreover, plaintiff legitimately argues that other responsible sources for compliant financial management software systems exist. The Justification states that [***]. The fact that three financial software systems in addition to Oracle and SAP currently service DHS in this capacity points to the fact that there are at least three additional responsible sources. Furthermore, the Justification provides that [***]; however, “the technical and administrative superiority of a given firm over all other possible sources has never been accepted as a justification for sole-source procurement from that firm.” Aero Corp. v. Dept. of the Navy, 540 F. Supp. 180, 208 (D.D.C. 1982). Instead, “[t]he place where . . . differences (in technical merit) appropriately should be considered is in evaluating proposals in connection with a negotiated procurement.” Id. at 209 (internal citation omitted). It follows that DHS cannot merely select certain software systems because it feels they are most costeffective. This is not to say that cost and merit cannot be considered, but so long as there is more than one source competent to perform the contract, DHS must evaluate the merit of each offeror’s product through the competitive lens. Because there were additional responsible sources here, DHS’s decision to use Oracle and SAP financial software systems via the Brand Name Justification is an improper sole source procurement in violation of CICA. Consequently, we need not address the compliance of the Justification with the applicable provisions of FAR.  (Savantage Financial Services, Inc., v. U. S., No. 08-21C, April 15, 2008) (pdf)