B-218584, JUN 27, 1985, 85-1 CPD 734

B-218584: Jun 27, 1985

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WHEN A BRAND NAME PRODUCT IS DESCRIBED IN TERMS OF PRECISE DESIGN OR PERFORMANCE CHARACTERISTICS. MERE FUNCTIONAL EQUIVALENCY WILL NOT DO. WHERE GAO DETERMINES THAT ONE REASON FOR A PROCURING AGENCY'S REJECTION OF A PROPOSAL IS PROPER. IT WILL NOT CONSIDER ALLEGATIONS REGARDING OTHER REASONS FOR THE REJECTION. PROTEST ALLEGING THAT BRAND NAME OR EQUAL SPECIFICATIONS ARE UNDULY RESTRICTIVE MUST BE FILED BEFORE THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS. AMONG THE COMPONENTS OF THE BRAND NAME TABLE LISTED IN THE RFP WAS A GRANITE BLOCK DESCRIBED AS FOLLOWS: "7 TO 10 IN. THE RFP ALSO REQUIRED THAT THE OFFERED PRODUCT INCLUDE A DRIVE BAR THAT WAS DESIGNED TO "INTERFACE" WITH THE BEARING LINE TABLE AND A MAGNESIUM SLIP PLATE.

B-218584, JUN 27, 1985, 85-1 CPD 734

CONTRACTS - NEGOTIATION - REQUEST FOR PROPOSALS - BRAND NAME "OR EQUAL" PROCEDURE DIGEST: 1. WHEN A BRAND NAME PRODUCT IS DESCRIBED IN TERMS OF PRECISE DESIGN OR PERFORMANCE CHARACTERISTICS, ANY PROPOSED "EQUAL" PRODUCT MUST MEET THE STATED REQUIREMENTS PRECISELY, AND MERE FUNCTIONAL EQUIVALENCY WILL NOT DO. CONTRACTS - PROTESTS - MOOT, ACADEMIC, ETC. QUESTIONS 2. WHERE GAO DETERMINES THAT ONE REASON FOR A PROCURING AGENCY'S REJECTION OF A PROPOSAL IS PROPER, IT WILL NOT CONSIDER ALLEGATIONS REGARDING OTHER REASONS FOR THE REJECTION. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTESTS - SOLICITATION IMPROPRIETIES - APPARENT PRIOR TO BID OPENING/CLOSING DATE FOR PROPOSALS 3. PROTEST ALLEGING THAT BRAND NAME OR EQUAL SPECIFICATIONS ARE UNDULY RESTRICTIVE MUST BE FILED BEFORE THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS.

TEAM CORPORATION:

TEAM CORPORATION PROTESTS THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION'S (NASA) AWARD OF A CONTRACT TO KIMBALL INDUSTRIES, INC., UNDER REQUEST FOR PROPOSALS (RFP) NO. 8-2-5-04-11714, ISSUED BY THE GEORGE C. MARSHALL SPACE FLIGHT CENTER, HUNTSVILLE, ALABAMA. TEAM CONTENDS THAT NASA IMPROPERLY REJECTED ITS PROPOSAL FOR FAILING TO MEET TWO SALIENT CHARACTERISTICS OF THE EQUIPMENT SPECIFIED IN THE BRAND NAME OR EQUAL SOLICITATION. WE DENY THE PROTEST.

THE AGENCY SOUGHT PROPOSALS TO SUPPLY A "DYNAMIC EXCITER MOUNTING BASE AND HORIZONTAL TABLE" FOR USE IN CONDUCTING VIBRATING TESTS; IT SPECIFIED A KIMBALL 9000 SERIES OR EQUAL. AMONG THE COMPONENTS OF THE BRAND NAME TABLE LISTED IN THE RFP WAS A GRANITE BLOCK DESCRIBED AS FOLLOWS:

"7 TO 10 IN. GRANITE PLATE BOLTED TO THE BASE PLATE, GROUND AND LAPPED TO A FLATNESS OF 100 MILLIONTHS) OF AN INCH WITH CAVITIES CONTAINING HYDROSTATIC BEAMINGS."

THE RFP ALSO REQUIRED THAT THE OFFERED PRODUCT INCLUDE A DRIVE BAR THAT WAS DESIGNED TO "INTERFACE" WITH THE BEARING LINE TABLE AND A MAGNESIUM SLIP PLATE. THE DRIVE BAR WAS "TO CONNECT SLIP PLATE WITH UD 4000 DYNAMIC EXCITER UTILIZING DRIVE PINS."

NASA FOUND TEAM'S PROPOSAL FOR ITS OWN BRAND EQUIPMENT UNACCEPTABLE BECAUSE IT INCLUDED A GRANITE PLATE GROUND TO ONLY 1,000 MILLIONTHS OF AN INCH INSTEAD OF 100 MILLIONTHS OF AN INCH AND BECAUSE TEAM PROPOSED TO USE TENSION BOLTS, RATHER THAN DRIVE PINS, TO CONNECT THE SLIP PLATE TO THE DYNAMIC EXCITER.

TEAM STATES THAT ITS METHOD OF GRINDING GRANITE PLATES IS FASTER AND LESS EXPENSIVE THAN OTHER METHODS, BUT IT WILL NOT PRODUCE A FLATNESS OF 1,000 MILLIONTHS OF AN INCH. THIS FLATNESS, TEAM ASSERTS, WILL PROVIDE THE SAME PERFORMANCE AS A FLATNESS OF 100 MILLIONTHS OF AN INCH IN OPERATION OF THE TEST TABLE. THE PROTESTER ALSO ARGUES THAT ITS DRIVE BAR MECHANISM WILL PERFORM AS WELL AS THAT SPECIFIED IN THE RFP. TEAM STATES THAT IT DID NOT INCLUDE THE BRAND NAME DRIVE BAR IN ITS PROPOSAL BECAUSE THE DESIGN IS PATENTED BY KIMBALL.

WHEN A BRAND NAME PRODUCT IS DESCRIBED IN TERMS OF PRECISE DESIGN OR PERFORMANCE CHARACTERISTICS, THE "EQUAL" PRODUCT MUST MEET THE STATED REQUIREMENTS PRECISELY. MERE FUNCTIONAL EQUIVALENCY WILL NOT DO. ON THE OTHER HAND, WHEN THE DESIRED FEATURE IS DESCRIBED ONLY IN GENERAL TERMS, THE REQUIREMENT NEED NOT BE EXACTLY MET. SEE E.G., COHU, INC., B-199551, MAR. 18, 1981, 81-1 CPD PARA. 207.

IN THIS CASE, NASA SPECIFIED A GRANITE PLATE WITH A FLATNESS OF 100 MILLIONTHS OF AN INCH. IT IS DIFFICULT TO IMAGE A MORE PRECISE REQUIREMENT. TEAM, HOWEVER, DID NOT MEET THIS REQUIREMENT AND HAS ACKNOWLEDGED THAT IT CAN ONLY MEET THE FLATNESS STANDARD STATED IN ITS PROPOSAL. THUS, WE DO NOT BELIEVE THAT NASA'S REJECTION OF THE TEAM PROPOSAL WAS IMPROPER, AND WE DENY THE PROTEST ON THIS BASIS.

IN VIEW OF THIS CONCLUSION, WE NEED NOT CONSIDER TEAM'S PROTEST REGARDING THE ACCEPTABILITY OF ITS DRIVE AS WE HAVE DETERMINED HERE, A PROTESTER'S ALLEGATIONS REGARDING ANOTHER ARE ACADEMIC. SECURITY ASSISTANCE FORCES & EQUIPMENT EXPORT CORP., B-204936, MAR. 4, 1982, 82-1 CPD PARA.207.

TO THE EXTENT THAT TEAM ALLEGES THAT NASA'S SPECIFICATIONS EXCEED THE AGENCY'S MINIMUM NEEDS AND THUS ARE UNDULY RESTRICTIVE, THE PROTEST IS UNTIMELY. UNDER OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21,2(A)(1) (1985), PROTESTS BASED UPON IMPROPRIETIES APPARENT IN A SOLICITATION MUST BE FILED BEFORE THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS. TEAM'S PROTEST, HOWEVER, WAS NOT FILED UNTIL IT LEARNED OF THE REJECTION OF ITS PROPOSAL.

WE THEREFORE DENY THE PROTEST IN PART AND DISMISS IT IN PART.