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B-211378, JUN 28, 1983

B-211378 Jun 28, 1983
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DIGEST: BID OFFERING EQUAL PRODUCT WHICH DOES NOT CONTAIN ADEQUATE DESCRIPTIVE LITERATURE SHOWING THAT ALL SALIENT CHARACTERISTICS WILL BE MET IS NONRESPONSIVE. WAS REJECTED AS NONRESPONSIVE BECAUSE THE ARMY CONCLUDED THAT THE PROTESTER HAD NOT FURNISHED SUFFICIENT DESCRIPTIVE LITERATURE TO SHOW THAT ITS PRODUCT WAS ACCEPTABLE. THE IFB FURTHER ADVISED BIDDERS WHO PROPOSED TO MODIFY A PRODUCT TO MAKE IT ACCEPTABLE THAT THEY WERE REQUIRED TO INCLUDE IN THEIR BIDS A CLEAR DESCRIPTION OF THE PROPOSED MODIFICATION. IT CONTENDS THAT COMPLIANCE WAS DEMONSTRATED BY DESCRIPTIVE LITERATURE THAT IT SUBMITTED WITH ITS BID. WHICH THE PROTESTER SAYS SHOWED THAT THE EQUIPMENT IT WOULD HAVE BEEN BOUND TO DELIVER WAS EQUAL TO THE BRAND NAME PRODUCT IN ALL RESPECTS.

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B-211378, JUN 28, 1983

DIGEST: BID OFFERING EQUAL PRODUCT WHICH DOES NOT CONTAIN ADEQUATE DESCRIPTIVE LITERATURE SHOWING THAT ALL SALIENT CHARACTERISTICS WILL BE MET IS NONRESPONSIVE.

THE PRIME-MOVER COMPANY:

THE PRIME-MOVER COMPANY PROTESTS THE REJECTION OF ITS BID AS NONRESPONSIVE TO INVITATION FOR BIDS (IFB) DAAJ04-83-B-0002 ISSUED BY THE ARMY TROOP SUPPORT AND AVIATION MATERIEL READINESS COMMAND. THE IFB SOLICITED BIDS ON A BRAND NAME OR EQUAL BASIS FOR A "STAND-UP FORKLIFT - 4500 LB. LIFT CAPACITY - CROWN MODEL 45RRTF OR EQUIVALENT." THE PROTESTER'S BID, WHICH OFFERED A PRIME-MOVER RR-45 FORKLIFT, WAS REJECTED AS NONRESPONSIVE BECAUSE THE ARMY CONCLUDED THAT THE PROTESTER HAD NOT FURNISHED SUFFICIENT DESCRIPTIVE LITERATURE TO SHOW THAT ITS PRODUCT WAS ACCEPTABLE. WE DENY THE PROTEST.

THE IFB CAUTIONED EACH BIDDER OFFERING OTHER THAN THE BRAND NAME PRODUCT TO FURNISH AS PART OF HIS BID ALL DESCRIPTIVE DATA THAT MAY BE NEEDED TO DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE SALIENT CHARACTERISTICS SET OUT IN THE IFB. THE IFB FURTHER ADVISED BIDDERS WHO PROPOSED TO MODIFY A PRODUCT TO MAKE IT ACCEPTABLE THAT THEY WERE REQUIRED TO INCLUDE IN THEIR BIDS A CLEAR DESCRIPTION OF THE PROPOSED MODIFICATION.

ACCORDING TO THE PROTESTER, ITS BID FULLY CONFORMED TO THE IFB'S REQUIREMENTS. IT CONTENDS THAT COMPLIANCE WAS DEMONSTRATED BY DESCRIPTIVE LITERATURE THAT IT SUBMITTED WITH ITS BID, WHICH THE PROTESTER SAYS SHOWED THAT THE EQUIPMENT IT WOULD HAVE BEEN BOUND TO DELIVER WAS EQUAL TO THE BRAND NAME PRODUCT IN ALL RESPECTS.

THE ARMY, HOWEVER, REJECTED PRIME-MOVER'S BID BECAUSE IT DID NOT CONTAIN SUFFICIENT INFORMATION TO ENABLE THE ARMY TO DETERMINE WHETHER PRIME- MOVER'S RR-45 FORKLIFT, WHICH THE FIRM PROPOSED TO MANUFACTURE BY MODIFYING ITS EXISTING RR-40 FORKLIFT, PROVIDED ADEQUATE WEIGHT LIFTING CAPACITY. THE IFB IDENTIFIED THE 4,500 POUND CAPACITY OF THE CROWN 45RRTF AS A SALIENT CHARACTERISTIC. THE PRIME-MOVER RR-40 FORKLIFT HAS A 4,000 POUND CAPACITY. ACCORDING TO THE ARMY'S TECHNICAL EVALUATORS, THE PROTESTER'S DESCRIPTIVE LITERATURE (WHICH WAS RR-40 LITERATURE ANNOTATED WITH PEN AND INK CHANGES) DID NOT ESTABLISH:

"*** THE PRACTICALITY NOR SAFETY OF CERTIFYING A LIFT TRUCK DESIGNED WITH A 4,000 POUND LIFT CAPACITY TO MEET A 4,500 POUND SPECIFICATION. THEY HAVE NOT INDICATED ANY MODIFICATIONS NECESSARY TO MAKE THAT CHANGE. THERE IS LITTLE DOUBT THAT THE TRUCK CAN LIFT 4,500 POUNDS AS AN UPPER OPERATING CAPACITY. THE UNANSWERED QUESTIONS FROM THE LITERATURE PROVIDED ARE:

"A. WHAT MAINTENANCE PROBLEMS CAN BE EXPECTED OVER TIME BY CONSISTENTLY EXCEEDING DESIGN PARAMETERS?

"B. WHAT SAFETY FACTORS MIGHT BE OVERLOOKED BY EXCEEDING DESIGN SPECIFICATIONS? MIGHT THE OPERATOR OR OTHER EMPLOYEES RUN RISK OF HYDRAULIC FAILURE AND A DUMPED LOAD?

"C. WHAT IS THE REDUCED LIFE EXPECTANCY OF OPERATING A LIFT TRUCK CONSTANTLY AT THE 'RED LINE' OR UPPER LIMIT CAPACITY? ***"

FURTHER, THE CONTRACTING OFFICER STATES:

K "PRIME MOVER SELLS ITS RR-40 MACHINE AS A 4,000 LB. CAPACITY VEHICLE TO THE COMMERCIAL MARKET; WITHOUT ANY SUBSTANTIATING INFORMATION EXCEPT AN UNEXPLAINED PEN AND INK CROSS OUT ON A SALES BROCHURE, THE RR-40 HAS BEEN GIVEN SUBSTANTIALLY MORE LIFT CAPACITY. PRIME MOVER CAN SO EASILY QUALIFY ITS MACHINE, THERE IS NO REASON A 1,000 LB., 2,000 LB., OR 3,000 LB. CAPACITY MACHINE COULD NOT BE MADE 'RESPONSIVE' TO THE GOVERNMENT'S REQUIREMENT FOR A 4,500 LB. CAPACITY MACHINE WITH A SIMILAR PEN AND INK CHANGE."

WHILE THE PROTESTER CONCEDES THAT IN FACT THE MACHINES IT INTENDED TO FURNISH WERE MODIFIED RR-40 MACHINES, IT BRANDS THE TECHNICAL EVALUATION AND THE CONTRACTING OFFICER'S VIEWS AS LACKING IN LOGIC AND CAPABILITY. PRIME MOVER LABELS AS RIDICULOUS THE CONTRACTING OFFICER'S SUGGESTION THAT A 1,000 POUND CAPACITY LIFT COULD BE MADE RESPONSIVE IF THE PRACTICE PRIME -MOVER FOLLOWED WERE PERMITTED. THE FIRM POINTS OUT THAT ITS BID CLEARLY INDICATED THAT ITS ENGINEERING DEPARTMENT HAD CERTIFIED THE RR-45 FOR 4,500 POUNDS. PRIME MOVER CONTENDS THAT THE IFB DOES NOT REQUIRE THAT AN OFFER SHOW HOW UPGRADED CAPACITY WOULD BE OBTAINED, AND MAINTAINS THAT THE MODIFIED DESCRIPTIVE LITERATURE SUBMITTED WITH ITS BID ACTUALLY DOES SHOW ALL THE MODIFICATIONS IT INTENDED TO MAKE TO THE RR-40 DESIGN.

TO BE RESPONSIVE TO A BRAND NAME OR EQUAL SOLICITATION, A BID OFFERING AN ALTERNATIVE PRODUCT MUST CONTAIN SUFFICIENT DESCRIPTIVE MATERIAL TO PERMIT THE CONTRACTING ACTIVITY TO ASSESS WHETHER THE ALTERNATIVE POSSESSES EACH SALIENT CHARACTERISTIC OF THE BRAND NAME PRODUCT. IT IS NOT ENOUGH THAT THE BIDDER BELIEVES HIS PRODUCT IS EQUAL, OR MAKES A BLANKET STATEMENT THAT ALL SALIENT CHARACTERISTICS ARE MET. RATHER, WE HAVE HELD THAT THE RESPONSIVENESS OF A PURPORTEDLY EQUAL BID DEPENDS UPON THE COMPLETENESS OF THE INFORMATION SUBMITTED OR REASONABLY AVAILABLE. SEE CUMMINS-WAGNER CO., INC., JOY MANUFACTURING CO., B-188486, JUNE 29, 1977, 77-1 CPD 462.

WE AGREE WITH THE ARMY THAT THE PROTESTER'S DESCRIPTIVE LITERATURE WAS NOT SUFFICIENT TO MAKE THE BID RESPONSIVE. THE CAPACITY OF THE PROPOSED FORKLIFT IS ADDRESSED ONLY IN THE PROTESTER'S STATEMENT IN ITS BID THAT ITS ENGINEERING DEPARTMENT HAD CERTIFIED THE DESIGN TO HAVE A 4,500 POUND CAPACITY. IT WAS INCUMBENT ON THE PROTESTER TO SHOW THROUGH A COMPLETE DISCUSSION OF THE PROPOSED MODIFICATIONS, OR OTHERWISE, HOW THE RR-45 WOULD PERFORM UNDER FULL LOAD. THE PROTESTER MAINTAINS THAT THE RR-40 IS OVER-DESIGNED AND THAT THE RR-45 WOULD HAVE PROVEN TO BE COMPLETELY SATISFACTORY WITH ONLY THE CHANGES TO THE RR-40 LIFT SYSTEM WHICH THE PROTESTER SAYS WERE INDICATED IN ITS DESCRIPTIVE LITERATURE. HOWEVER, WE SEE NO BASIS TO DISPUTE THE ARMY'S ASSERTION THAT FROM THE LITERATURE SUBMITTED, THE ARMY WAS IN NO POSITION TO DETERMINE THAT THIS WAS SO AND THUS COULD NOT HAVE CONCLUDED THAT THE MACHINE OFFERED WAS FUNCTIONALLY EQUIVALENT TO THE BRAND NAME PRODUCT WITH RESPECT TO CAPACITY.

THE PROTEST IS DENIED.

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