Matter of: Fluke Manufacturing Company, Inc. File: B-253195 Date: August 13, 1993 93-2 CPD 99
Highlights
PROCUREMENT Bid Protests GAO procedures Interested parties Direct interest standards Protest that awardee's alternate product is not interchangeable with name brand product specified in solicitation. Thus was unacceptable alternate product. Is dismissed where four offerors other than awardee proposed lower priced. Protester is not interested party. The multimeters being acquired are hand-held electronic devices used primarily for testing various equipment aboard the Air Force's F-15 aircraft. The RFP specified Fluke's Model 75 multimeter (the only multimeter approved for acquisition at the time the solicitation was issued). Which requires firms to demonstrate in their proposals that offered alternate items are physically.
Matter of: Fluke Manufacturing Company, Inc. File: B-253195 Date: August 13, 1993 93-2 CPD 99
PROCUREMENT Bid Protests GAO procedures Interested parties Direct interest standards Protest that awardee's alternate product is not interchangeable with name brand product specified in solicitation, and thus was unacceptable alternate product, is dismissed where four offerors other than awardee proposed lower priced, alternate products determined by agency to be acceptable, and protester does not challenge their acceptability; under these circumstances, protester is not interested party.
Attorneys
DECISION John Fluke Manufacturing Company, Inc. protests the award of a contract to Soltec Corporation under request for proposals (RFP) No. DLA900-93-R-A319, issued by the Defense Logistics Agency (DLA) for a quantity of multimeters. Fluke argues that DLA improperly relaxed the solicitation's requirements in making award to Soltec.
We dismiss the protest.
The multimeters being acquired are hand-held electronic devices used primarily for testing various equipment aboard the Air Force's F-15 aircraft. The RFP specified Fluke's Model 75 multimeter (the only multimeter approved for acquisition at the time the solicitation was issued), but permitted firms to offer alternate products. The RFP contained DLA's standard Products Offered clause, which requires firms to demonstrate in their proposals that offered alternate items are physically, mechanically, electrically and functionally equivalent to the product specified in the solicitation.
DLA received a total of 18 offers; 10 firms offered alternate products and 8 firms, including Fluke, offered the Fluke Model 75. All of the alternate offerors' prices were lower than the prices offered by the firms proposing the Fluke multimeter; among firms offering the Fluke multimeter, the protester submitted the lowest price. DLA determined that five firms, including Soltec, had offered acceptable alternates. It therefore approved the alternate products offered by these five firms, and made award to Soltec as the lowest-priced offeror ($42.92 per unit versus Fluke's price of $105.85 per unit). After learning of the award, Fluke filed an agency- level protest alleging (among other things) that the Soltec multimeter was not physically, mechanically, electrically, and functionally equivalent to the specified Fluke model. The agency denied Fluke's protest, and the firm then filed this protest in our Office.
Fluke maintains that the Soltec multimeter is not interchangeable with the Fluke Model 75 in 11 specific respects, and that it therefore could not be accepted for award.
Under our Bid Protest Regulations, a firm must be an interested party before we will consider its protest; an interested party for purposes of being eligible to protest means an actual or prospective bidder or offeror whose direct economic interest would be affected by the award or nonaward of a contract. 4 C.F.R. Sec. 21.0(a) (1993). A firm is not an interested party if it would not be in line for award if its protest were sustained. Abre Enters., Inc., B-251569.2, Mar. 16, 1993, 93-1 CPD Para. 239.
Fluke alleges that the Soltec multimeter is not interchangeable with its Model 75, but does not challenge DLA's approval of the other four lower- priced offerors; it does not suggest that their offered products are not interchangeable with the Fluke model. Thus, even if we ultimately agreed with Fluke that Soltec's alternate product was unacceptable, one of the intervening approved alternate offerors, not Fluke, would be in line for award. Fluke therefore lacks the requisite direct economic interest to maintain its protest.
Fluke also maintains that, if DLA intended to accept multimeters lacking certain features of the Model 75, it should have so apprised Fluke and the other offerors. However, even assuming Fluke is correct that DLA essentially waived certain features of the Model 75 in making award to Soltec, the record contains no evidence that this prejudiced Fluke, i.e., that Fluke would have changed its offer to its competitive advantage based on this information. Specifically, there is no indication that Fluke manufactures another model possessing the characteristics of Soltec's product, or that its price for any such model could be expected to be lower than Soltec's or the other alternate offerors' prices. Fluke states only that the alleged deficiencies in the Soltec multimeter "are matters of great concern to bidders seeking to propose a product that meets the government's needs." The record thus does not show that Fluke was prejudiced by not being advised that the Soltec product was acceptable. Laser Diode, Inc., B-249990, Dec. 29, 1993, 93-1 CPD Para. 18 (there must be evidence of prejudice before protest will be sustained).
The protest is dismissed.