DENIED: October 13, 1992 GSBCA 11964-P THE CULVER GROUP, Protester, v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Respondent. Donald B. Culver of The Culver Group, Hampstead, MD, appearing for Protester. Sumara M. Thompson-King, Office of the General Counsel, National Aeronautics and Space Administration, Washington, DC, and Donald Schiller, Office of Counsel, John F. Kennedy Space Center, FL, counsel for Respondent. Before Board Judges LaBELLA, Acting Chief Judge, NEILL, and DANIELS. NEILL, Board Judge. This protest was filed by The Culver Group (Culver or protester) on August 10, 1992. Culver's bid on a procurement by the National Aeronautics and Space Administration (NASA) of automatic data processing equipment for its inventory management system at Kennedy Space Center was rejected as nonresponsive. Protester challenges this determination by NASA. For the reasons set out in this opinion, we deny the protest. Findings of Fact The Invitation for Bids 1. On April 14, 1992, respondent issued invitation for bids (IFB) number 10-0006-2 seeking a fixed price contract for computer hardware and software to be compatible with the existing inventory management system at respondent's John F. Kennedy Space Center. Protest File, Exhibit 1 at 1-6 (Solicitation IFB 10- 0006-2). The solicitation is for seven configurations of bar code reader equipment (configurations A-G), spare hardware parts, and one configuration of software/documentation (configuration H). Each configuration is composed of a number of different bar- code-reading products.[foot #] 1 Id., Attachment J-1 at 6-18. The solicitation is a "Brand Name or Equal" procurement. Id. at 4. 2. Under the terms of the solicitation bidders are allowed to bid brand name products by certain manufacturers listed in the solicitation or "equal" products that conform with designated "salient characteristics." Protest File, Exhibit 1 at 52-53. Protester chose to bid "equal" products for a portion of the solicitation requirements. Compare brand name products listed at Protest File, Exhibit 1 at 4 with offered products listed at Protest File, Exhibit 3 at 57-58 (unnumbered). 3. The solicitation provides that a bidder choosing to bid "equal" products must clearly identify that the products bid meet fully the salient characteristics referenced in the solicitation. In part, the pertinent clause reads as follows: (b) . . . Bids offering "equal" products . . . will be considered for award if the products are clearly identified in the bids and are determined by the Government to meet fully the salient characteristics requirements referenced in the solicitation. . . . . (d) (1) If the offeror proposes to furnish an "equal" product, the brand name, if any, of the product to be furnished shall be inserted in the space provided in the solicitation, or that product shall be otherwise clearly identified in the bid. The evaluation of bids and the determination as to equality of the product offered shall be the responsibility of the Government and will be based on information furnished by the offeror or identified in its bid, as well as on other information reasonably available to the contracting activity. (2) CAUTION TO OFFERORS: The contracting office is not responsible for locating or securing any information not identified in the bids and reasonably available to the contracting office. Accordingly, to insure that sufficient information is available, the offeror must furnish as a part of its bid all descriptive material necessary for the contracting ----------- FOOTNOTE BEGINS --------- [foot #] 1 For example, Configuration A is a "Bar Code Reader with Wand, Non-Portable," which includes one each of the following: bar code reader, digital wand, cables, power pack, system manual for the bar code reader, and user's manual for the digital wand. Protest File, Exhibit 1, Attachment J-1 at 6-7. ----------- FOOTNOTE ENDS ----------- office to (i) determine whether the product offered meets the salient characteristics requirements of the solicitation and (ii) establish exactly what the offeror proposes to furnish and what the Government would be binding itself to purchase by making an award. . . . . . . . (4) If this is a sealed-bid acquisition, modifications proposed after bid opening to make a product conform to a brand name product referenced in the solicitation will not be considered. Protest File, Exhibit 1 at 52-53. 4. Article C-1 of Section C of the solicitation, entitled "Salient Characteristics," provides further guidance for bidders choosing to bid equal products. In part, this clause provides as follows: Salient Characteristics are incorporated by reference as identified in Attachment J-2, Salient Characteristics[,] and are applicable to the Configuration Descriptions . . . identified in Attachment J-1. NOTE: Within the meaning of Section (d) of the Brand Name or Equal Clause which is set forth elsewhere herein, offerors must furnish with their bid descriptive material that clearly indicates that the articles to be delivered under any resulting contract will have features embodied therein, which, as a minimum, meet the essential characteristics enumerated above. FAILURE OF THE OFFEROR'S MATERIAL TO COVER EACH OF THE SALIENT CHARACTERISTICS MAY REQUIRE REJECTION OF THE BID (EXCEPT WHEN DESCRIPTIVE MATERIAL CAN BE LOCATED WITHIN THE PROCURING ACTIVITY). Protest File, Exhibit 1 at 4. 5. Section I of the solicitation incorporates by reference a contract clause entitled "Descriptive Literature (APR 1984)" which appears in 52.214-21 of the Federal Acquisition Regulations (FAR). Protest File, Exhibit 1 at 24. This provision reads in part as follows: (c) The failure of descriptive literature to show that the product offered conforms to the requirements of this solicitation will require rejection of the bid. 48 CFR 52.214-21 (1991). 6. Article M-4 of Section M of the solicitation, entitled "Award Criteria," provides that the government will evaluate offers and make award on the basis of full compliance with the salient characteristics set forth in Section C, Finding 4, the Brand Name or Equal clause, Finding 3, and the provision governing descriptive literature, Finding 5. Protest File, Exhibit 1 at 56. The Laser Scanners 7. The solicitation contains a requirement for laser scanners. Protest File, Exhibit 1 at Attachment J-1. The solicitation contains sixteen salient characteristics that the offered laser scanner must meet or exceed. Id., Attachment J-2 at 2-3. Protester's bid discusses individually each salient characteristic. It also seeks to verify compliance with each characteristic with a reference to either: "PSC's [Photographic Sciences Corporation's] Letter of Certification dated May 6, 1992" or "PSC's 5300 Series Product Bulletin (089110M)." Id., Exhibit 3, Attachment B at 1-3. 8. For the purposes of this protest, only salient characteristic number seven is relevant. This salient characteristic provides as follows: The following salient characteristics describe the KIMS[foot #] 2 laser scanner . . . . The offered items shall meet or exceed these characteristics. Laser scanner. The laser scanner shall: . . . . 7. Operate within a range of environmental conditions: -7 to 37 C degree temperature and 25 to 95 % relative humidity, Protest File, Exhibit 1, Attachment J-2 at 2. 9. Protester bid an equal product instead of the designated brand name for the laser scanner requirement. Protester bid PSC's Model 5310 laser scanner (PN CAB0106308). Protester represents that this product "meet[s] or exceed[s]" the salient characteristics listed for the laser scanner. Protest File, Exhibit 3, Attachment B at 1. Its bid provides the following concerning salient characteristic number seven: 7. The PSC 5310 will operate in a temperature range of 0 to +50 C degrees and in non- condensing relative humidity ranging from 5- ----------- FOOTNOTE BEGINS --------- [foot #] 2 The acronym KIMS means Kennedy Inventory Management System. Protest File, Exhibit 1, Attachment J-2 at 1. ----------- FOOTNOTE ENDS ----------- 95%. These ranges exceed the specified operational environmental condition of -7 to +37 C degrees temperature and 25-95% relative humidity. Refer to PSC's 5300 Series Product Bulletin (089110M). Id. at 2. 10. Protester's bid includes a document addressing the laser scanner's specifications titled "Specifications for PSC 5300 Series Hand-Held Bar Code Scanners." For model 5310, the product bulletin states the operating temperature to be "-18 to +50 C." In the lower right hand corner of this bulletin, however, is number 099120M. It is not numbered 089110M as stated in protester's response to salient characteristic number seven. Protest File, Exhibit 3, Attachment B at 5. Bulletin number 099120M also includes a provision stating that the specifications are subject to change. Id. 11. PSC's Letter of Certification dated May 6, 1992, Finding 7, reads in part as follows: Photographic Sciences Corporation certifies that the PSC Model 5310 Laser Scanner (PN 5310-1002) with the 8' coil cord (PN CAB 0106308) . . . compl[ies] with the KIMS Laser Scanner Salient Characteristics listed . . . on page 2 and 3 of Attachment J-2 except for the following: Note: 7 - PSC 5310 will operate in a temperature range of 0 degrees to +50 C degrees and in a non-condensing relative humidity ranging from 5-95%. These ranges exceed the specified operational environmental condition of -7 to +37 C degrees temperature and 25-95% relative humidity. . . . . We concur with their detailed review of these salient characteristics as per their Bid Response Letter, Attachment B, page 1-3. Protest File, Exhibit 3, Attachment B at 4. The Digital Wands 12. The solicitation contains a requirement for the digital wands used in configurations A, C, and E. Protest File, Exhibit 1, Attachment J-1 at 6-11. Of the twelve salient characteristics for the digital wands, only salient characteristic number twelve is relevant. It reads as follows: Digital wand. The digital wand shall: . . . . 12. Be interchangeable between and operate in Configurations 'A', 'C', and 'E'. Protest File, Exhibit 1, Attachment J-2 at 4. 13. Protester bid an equal product instead of the designated brand name for the digital wand. In order to understand protester's bid concerning the ability of its wands to be interchangeable among configurations A, C, and E, it is necessary to know two of the products bid in each of those configurations.[foot #] 3 Configuration A: For the Bar Code Reader protester bid: Welch Allyn, Inc.'s ST 2000 Bar Code Reader No. 2000/W-1. For the Digital Wand protester bid: Welch Allyn, Inc.'s ST 6100 Digital Wand Scanner No. 6100B-2112J Protest File, Exhibit 3, Attachment J-1 at 6. Configuration C: For the Bar Code Wedge protester bid: ----------- FOOTNOTE BEGINS --------- [foot #] 3 We have already outlined in note one the principal components of configuration A. The solicitation describes configuration C as: a "Wedge with Wand, Non-Portable," which includes one of each of the following: bar code wedge, digital wand, cable, system manual for the bar code wedge, and users manual for the digital wand. Protest File, Exhibit 1, Attachment J-1 at 8-9. Configuration E is described as a "Transaction Manager with Digital Wand, Portable," which includes one of each of the following: portable transaction manager, digital wand, cable, power pack, battery charger, battery pack, portable terminal case, system manual for the portable transaction manager, users manual for the portable transaction manager, and user's manual for the digital wand. Id., at 10-11. ___ ----------- FOOTNOTE ENDS ----------- Welch Allyn, Inc.'s ST 2000 Bar Code Wedge Reader No. 2000/C-1. For the Digital Wand protester bid: Welch Allyn, Inc.'s ST 6100 Digital Wand Scanner No. 6100/B-2112J. Id. at 8. Configuration E: For the Portable Transaction Manager protester bid: Telxon Corporation's PTC-710 Portable Transaction Mgr. No. 710- 165370/9031. For the Digital Wand protester bid: Welch Allyn, Inc.'s ST 6100 Digital Wand Scanner No. 922567 and Adapter Cable for Scanners No. 42204228-02. Id. at 10. 14. Protester represents that the digital wands bid meet or exceed all the salient characteristics and are completely interchangeable among configurations A, C, and E. Protester's bid includes the following concerning salient characteristic number twelve: 12. The ST 6100 can be used with the ST 2000 bar code reader in Configuration A, with the ST 2000 bar code PC wedge in Configuration C and with the PTC-710 portable transaction manager in Configuration E. An adapter cable (PN 42204228-02) is provided to enable use of ST 6100 Wand (PN 922567) on the ST 2000 decoder in configuration A or C. Refer to Welch Allyn's Letter of Certification dated May 11, 1992. Protest File, Exhibit 3, Attachment C at 1-3. Rejection of Protester's Bid 15. Bids were opened on June 2. Protester was the low bidder. Protest File, Exhibit 2. 16. On July 30, respondent's contracting officer rejected protester's bid as nonresponsive. The contracting officer determined that two of the products protester bid did not comply fully with the salient characteristics as required by Article M- 4, Finding 6. The contracting officer found that the laser scanner did not meet the operating temperature salient characteristic, and protester's bid failed to identify clearly that the offered digital wands were interchangeable among configurations A, C, and E. Protest File, Exhibit 4 at 2-3. 17. With regard to the laser scanner, the contracting officer noted that protester included in its bid a product bulletin that identified the operating temperature of the offered laser scanner as -18 to +50 C, but that this bulletin also included a provision stating that the specifications were subject to change. The contracting officer went on to state that: the offeror included a "Letter of Certification" from Photographic Sciences Corporation (PSC) . . . which changes the printed Laser Scanner specifications to the extent that the item, as changed, no longer meets the salient characteristics. Therefore, it appears that the offeror has made a conscious determination to take exception to the solicitation's salient characteristics. As stated in Article L-5 BRAND NAME OR EQUAL the offer must furnish descriptive literature necessary for the CO to determine whether the offered product meets the requirements of the salient characteristics. . . . . In their certification of the items bid to the Salient Characteristics, the Culver Group failed to identify that PSC had taken exception to the Salient Characteristics for the operating temperature of the Laser Scanner. . . . . . . . Based upon the information within the Culver Group's bid the offered Laser Scanner is clearly not in full compliance with the salient characteristics. Protest File, Exhibit 4 at 2-3. 18. With regard to the requirement for digital wands, the contracting officer stated, in part, as follows: . . . The Culver Group's certification to the Salient Characteristics for the Digital Wand failed to clearly identify that both models of the Wands they bid are interchangeable between Configurations A, C, and E. Protest File, Exhibit 4 at 3. 19. Following the rejection of its bid, protester secured another letter from the manufacturer of the offered laser scanner. The letter certifies that the laser scanner protester bid, PSC's model 5310, operates at the published specifications of -18 C to +50 C, "which exceeds the NASA Specification." The letter attributes the different temperature range (0 C to +50 C) included in its May 6 certification to confusion concerning a prior solicitation and characterizes it as a typographical error. The letter maintains that the May 6 certification letter was not intended to change the published specification. PSC's letter of August 6, 1992, attached to protester's brief. Discussion The fundamental issue presented by this protest is clear enough. Respondent has rejected protester's bid as nonresponsive for two basic reasons. First, the laser scanner was found not to meet the operating temperature range requirement. Second, protester's bid was found to be ambiguous as to the requirement that the digital wands be interchangeable among configurations A, C, and E. See Finding 16. Protester has challenged the accuracy of both determinations. We discuss them in turn. The Laser Scanners The solicitation lists a salient characteristic which requires any offered laser scanner to operate within a temperature range of -7 to 37 degrees centigrade. Finding 8. In addressing this requirement, protester bid the PSC Model 5310 laser scanner but stated that it would operate in a temperature range of 0 to +50. Finding 9. Protester now contends that this was an obvious error which becomes readily apparent when one refers to the descriptive literature contained in the bid. It is indeed correct that the product bulletin provided with the bid states that the operating temperature for the PSC Model 5310 is -18 to +50 degrees centigrade. However, this descriptive literature is not without its own problems. In addressing the temperature range requirement, the bid references PSC's 5300 Series Product Bulletin 089110M. Finding 9. The actual bulletin furnished with the bid, however, bears the number 099120M. It also states that the specifications it contains are subject to change. Finding 10. Protester would have us disregard these problems with the descriptive literature. It has now provided for the record the product bulletin actually referenced in the original bid (089110M). It has provided two subsequent bulletins as well. They do indeed show that the operating temperature for the laser scanner offered has not changed. Protester's Submission of Sept. 3. The reassurance this material provides, however, was obviously not available to the contracting officer at bid opening. Neither can we dismiss the significance of the phrase in the product bulletin that specifications are subject to change. It is true that we have held that such statements in descriptive literature normally will not render a bid nonresponsive where the bidder elsewhere in its bid clearly indicates its intention to provide an item meeting the Government's requirements in all respects. E.g., Federal Services, Inc. v. Department of Energy, GSBCA 11804-P, 1992 BPD 143 (May 27, 1992). However, we are not prepared to disregard the possible impact such a statement might have on a vendor's bid when, as in this case, the descriptive literature actually referenced in the bid is not even included in the bid package itself. Putting aside, however, the problems inherent in the descriptive literature actually furnished by protester on the laser scanner, the contracting officer, in examining protester's bid, was confronted with a problem of even greater significance. Included in the bid was a certification letter from PSC, the manufacturer of the laser scanner, assuring respondent that the scanner offered complied with the salient characteristics listed in the solicitation except for that relating to operating temperature range. Finding 11. Clearly, this representation from the manufacturer of the scanner extinguishes once and for all -- for purposes of NASA's review of protester's bid -- any light which the product bulletin might have shed on the issue of what the low end of the operating temperature range was for this particular piece of equipment. Protester urges that the statement made in the letter was not intended as an exception to the salient characteristic, but rather was intended to show that the temperature operating range of its scanner was exceptionally broad and clearly exceeded that listed in the solicitation. We have two problems with this interpretation. First, the letter states that the scanner will operate in a temperature range of 0 to +50 degrees centigrade. Second, PSC expressly writes that it certifies that the scanner complies with the characteristic listed "except for the following:" and then lists characteristic number 7, which deals with the temperature range. Findings 8, 11. Protester contends that PSC's reference in its letter of certification to a temperature range of 0 to +50 degrees centigrade was a mistake. With its brief it has submitted a letter dated August 6, 1992, in which PSC admits the error and apologizes for it. See Finding 19. This letter may serve to illustrate what PSC actually intended to convey in its certification letter. However, it also confirms that, through error, PSC failed to state what it intended. The letter, therefore, does nothing to convince us that the contracting officer acted incorrectly or improperly when he concluded, based on information available at bid opening, that the scanner offered did not comply with the salient characteristic regarding the temperature operating range.[foot #] 4 In its complaint, protester states that the conflicting statements in its bid regarding temperature range were minor informalities which could have been easily remedied in accordance with FAR 14-405. Protester states that this could have been done either by offering Culver an opportunity to cure the ambiguity or by waiving the apparent deficiency. Complaint 9. The regulation cited by protester defines a minor informality or irregularity as "one that is merely a matter of form and not of substance." FAR 14-405. Compliance of the bid with the temperature operating range was far from a minor informality. We are dealing here with a salient characteristic which, under the terms of the solicitation, must be fully met before a bid will even be considered for award. Finding 3. Based on the information available at bid opening, the contracting officer concluded that Culver was noncompliant with the temperature operating range requirement for the laser scanner. Finding 17. We find nothing improper in this determination. It was entirely reasonable based on the information available at the time. It is fundamental to Government procurement that responsiveness is determined at the time of bid opening. Neither the contracting officer nor the bidder is free to modify a bid after opening. Concept Automation, Inc. v. General Accounting Office, GSBCA 11688-P, 92- 2 BCA 24,937, 1992 BPD 95. ----------- FOOTNOTE BEGINS --------- [foot #] 4 Protester also urges that the language regarding operating temperature range in the PSC letter of certification should be disregarded since the bid, in addressing this salient characteristic, did not refer to the letter of certification but only to the PSC product bulletin. We see no reason why the contracting officer should not have read the bid as a whole and considered the letter as well. It obviously addresses the characteristic in question. ----------- FOOTNOTE ENDS ----------- The Digital Wands The contracting officer's principal difficulty with the digital wands offered by protester was that the bid did not clearly identify that both models of the wand were interchangeable among the A, C, and E configurations. Finding 18. The solicitation was clear. Any offered digital wand was to "[b]e interchangeable between and operate in Configurations 'A', 'C', and 'E.'" Finding 12. Protester's bid offered two wands. The first (part number 6100B-2112J) was for use in configurations A and C. Finding 13. The second (part number 922567) was for configuration E. Along with this second wand, protester also offered an adapter cable. Id. The bid explained that the cable was offered so as to permit use of this second wand not only in configuration E but also in conjunction with the decoders (i.e., the bar code reader or wedge) used in configurations A or C. Finding 14. This, however, gave rise to a question in the mind of the contracting officer. If the second wand requires an adapter cable before it can be used with configurations A or C, then is not an adapter cable also required before the first wand can be used in configuration E? Respondent's Opening Brief at 26. In the absence of an answer to that question, the contracting officer concluded that the bid lacked the requisite degree of clarity regarding the requirement for interchangeability. Finding 18. Unfortunately, the record on this matter is less than complete. The contracting officer's notice to protester provides little detail. See Finding 18. The contracting officer himself observes that the alleged ambiguity regarding the interchangeability of the wands was viewed as a secondary consideration once the bid was determined nonresponsive on the matter of the operating temperature range. Protest File, Exhibit 8 at 5. In addition, protester, in briefing this matter, dwells on the fact that the adapter cable afforded respondent the benefit of the additional feature of "pecking."[foot #] 5 Little clarification, however, is offered by protester on the basic question whether the wand offered for configurations A and C could be used in configuration E without an adapter cable. Nevertheless, given the information available to us, we are not convinced that the need for an adapter cable for the one wand would necessarily require one for the other type of wand. Furthermore, protester clearly stated in its bid that the wands offered were interchangeable. Finding 14. The lack of an adapter cable for both types of wand may have puzzled the contracting officer and even given rise to some doubts. However, ----------- FOOTNOTE BEGINS --------- [foot #] 5 This feature is said to extend battery life. See Protester's Opening Brief at 3 and Protester's Reply Brief ___ at 2. ----------- FOOTNOTE ENDS ----------- on the basis of the record before us, we cannot conclude that the offer of one adapter cable alone was enough to conclude that protester's bid on its face did not meet the requirement for interchangeability of the wands offered. We, therefore, do not consider the contracting officer's concerns in this regard sufficient to constitute a valid independent basis for rejecting protester's bid. Protester's Additional Allegations In its opening brief, protester also contends that the laser scanner brand actually named by respondent in the solicitation has a temperature range of 0 to 40 degrees centigrade as opposed to the range of -7 to +37 degrees centigrade described in the corresponding salient characteristics. Protester further argues that the scanner offered by the manufacturer of this brand failed to meet the salient characteristic in question. Protester's Opening Brief at 2. Although it has submitted information to rebut protester's allegation that the manufacturer's bid was nonresponsive, respondent also correctly points out that these allegations, raised for the first time in protester's brief, are untimely. Respondent's Opening Brief at 21-22. Any concern regarding conflict apparent on the face of the solicitation should have been raised prior to the time established for the submission of bids. Rule 5(b)(3)(i). Any challenge to the responsiveness of the manufacturer's bid should have been raised within ten days of bid opening. Rule 5(b)(3)(ii). A more fundamental objection to these late allegations of protester, however, is that because protester's bid had been properly adjudged to be nonresponsive to the temperature operating range requirement, protester lacks the status of an interested party to pursue any additional allegations. 40 U.S.C. 759(f)(1) & (9)(B) (1988); United States v. International Business Machines Corp., 892 F.2d 1006 (Fed. Cir. 1989). We see no need, therefore, to examine these allegations or respondent's reply to them. Protester refers us to two Board decisions dealing with responsive bids. The first acknowledges that where the product bid is an existing one, it is permissible, if necessary, for an agency to obtain additional data regarding it. Denco, Inc., GSBCA 9626, 89-1 BCA 21,287, 1988 BPD 238. We are also reminded by protester that we once observed that agencies should not run their procurements "by rote checklists." Wordplex, GSBCA 8159, 86-1 BCA 18,554, at 93,183, 1985 BPD 128, at 6. In both these cases, we concluded that the position espoused by the agency regarding the responsiveness of the protester's bid was unduly rigid. While we do not agree with the contracting officer's conclusion regarding the digital wands, we are in full agreement with the conclusion he reached on the more substantive matter of the operating temperature range requirement. Protester has not convinced us that this decision was excessively rigid or unreasonable. On the contrary, it appears, on the basis of the record thus constituted, to be a well founded and balanced determination and, for that reason, we deny this protest. Decision This protest is DENIED. The Board's order of August 12 suspending respondent's delegation of procurement authority lapses in accordance with its terms. ______________________ EDWIN B. NEILL Board Judge We concur: _________________________ ______________________ VINCENT A. LaBELLA STEPHEN M. DANIELS Acting Chief Board Judge Board Judge