_________________________ DENIED: December 16, 1993 _________________________ GSBCA 12636-P RMTC SYSTEMS, INC., Protester, v. DEFENSE MAPPING AGENCY, Respondent. Jeff Stollman, President of RMTC Systems, Inc., Boulder, CO, appearing for Protester. Edward J. Obloy, J. Timothy Thompson, and Denise Webster, Office of Associate General Counsel, Defense Mapping Agency, Bethesda, MD, counsel for respondent. Before Board Judges HENDLEY, NEILL, and GOODMAN. HENDLEY, Board Judge. The protester, RMTC Systems, Inc. (RMTC) protests the award of three contract line item numbers (CLINs 008, 009, and 0010) to another offeror. The parties elected to have the Board decide the merits of the protest on the record pursuant to Rule 11 of the Board's Rules of Procedure. We deny the protest. Findings of Fact 1. The respondent, the Defense Mapping Agency, issued the request for proposals (RFP) in August 1993 to some ninety potential offerors. Protest File, Exhibit 1; Declaration of the Contracting Officer 3 (Nov. 16, 1993). Eighteen offerors submitted proposals. Protest File, Exhibit 5. 2. The procurement was for commercial off the shelf (COTS) automatic data processing items and was conducted pursuant to Defense Federal Acquisition Regulation Supplement (DFARS) Subpart 211.70, Contracting for Commercial Items. Protest File, Exhibit 1; Declaration of the Contracting Officer 3. The solicitation contained DFARS clause 252.211-7014 entitled "Contract Award - Commercial Items (May 1991)," which states: a. The Government will evaluate offers in response to invitations for bid without discussions and will award a contract to the responsible offeror whose offer, conforming to the solicitation, will be most advantageous to the Government considering only price and the price related factors specified in the solicitation.[foot #] 1 b. The Government will award a contract resulting from a request for proposals to the responsible offeror whose offer conforming to the solicitation will be most advantageous to the Government, price and other factors specified in the solicitation, considered. The Government intends to award a contract on the basis of initial offers received in response to a request for proposals without discussions unless discussions are necessary. Therefore, the offeror's initial offer should contain the offeror's best terms from a price and technical standpoint. c. The Government may: (1) Reject any and all offers if such action is in the public interest; (2) Accept other than the lowest offer; and, (3) Waive informalities and minor irregularities in offers received. Protest File, Exhibit 1 at 36. 3. No discussions were conducted with any offerors pursuant to the solicitation. Declaration of the Contracting Officer. Award of CLIN 0008 was made to Microland Electronics Corporation (Microland) in the total amount of $910. The protester's price for this CLIN was $702. Award of CLIN 0009 was made to Computer Literacy World, Inc. in the total amount of $10,556. The protester's price for this CLIN was $10,504. Award of CLIN 0010 was made to Comark, Inc. in the amount of $4,563. The protester's price for this CLIN was $3,939. Protest File, Exhibits 3, 8, 9, 10; Declaration of the Contracting Officer. 4. In its October 12, 1993 protest, the protester contends that it should have been awarded CLINS 0008, 0009, and 0010 under the solicitation because it was the lowest priced offeror. ----------- FOOTNOTE BEGINS --------- [foot #] 1 Paragraph (a) of the clause can only apply to a sealed bid procurement, i.e., one involving an "invitation for bid". ----------- FOOTNOTE ENDS ----------- CLIN 0010 5. The solicitation included the clause entitled "New Material, Commercial Items (May 1991)," which states: The offeror represents that, unless this solicitation specifies otherwise, the items to be furnished under this contract are new and are not of such age or so deteriorated as to impair their usefulness or safety. If the offeror believes that furnishing used or reconditioned items or components thereof will be in the Government's interest, the offeror shall so notify the Contracting Officer in writing. The offeror's notice shall include the reasons for the request along with a proposal for any consideration to the Government if the Contracting Officer authorizes the use of used or reconditioned items or components. Protest File, Exhibit 1 at 30 (emphasis added). The requiring activity, the Defense Mapping School, required new material for the items being procured. Declaration of Major Carmack (Nov. 15, 1993). The Contracting Officer never authorized other than new material for CLIN 0010. Declaration of the Contracting Officer 7. All awards made pursuant to the solicitation were for new material. Id. 6. In its proposal, the protester stated that it was offering refurbished material for CLIN 0010. Protest File, Exhibit 3. The protester had not complied with the notice requirements of the New Material, Commercial Items clause, and hence had not obtained approval for supplying refurbished or used material. Declaration of the Contracting Officer 7. 7. The technical evaluation of the protester's proposal found its offer on CLIN 0010 technically unacceptable because it offered refurbished material whereas new material was required and the Contracting Officer had not authorized other than new material. Protest File, Exhibit 3; Declaration of the Contracting Officer 7; Declaration of Major Carmack. Moreover, in this negotiated procurement, the Contracting Officer saw no advantages to accepting used material. Declaration of the Contracting Officer 6, 7. Thirteen new printers with a two year warranty were offered by Comark for a total cost of $4,563, whereas the protester offered thirteen refurbished printers with a one year warranty for a total cost of $3,939 with a savings of only $48 per printer. The term refurbished does not have a precise meaning and can have a range of meanings in the industry from cleaning to complete overhaul. The cost savings of $48 per printer with only a one year warranty did not outweigh the risks involved in accepting used equipment particularly in a setting where equipment downtime is critical. Declaration of Major Carmack. CLIN 0009 8. The solicitation required brand name or equal items for CLINS numbered 0001, 0005, 0009, 0010, and 0011. Protest File, Exhibit 1. The solicitation set forth NEC 5FG as the brand name for CLIN 0009. The protester offered an RMTC 17 color monitor for CLIN 0009. Id., Exhibit 3 at 3. The protester's offer for CLIN 0009 was $52 lower than the awarded price. Id., Exhibits 3, 9. Award was made to Computer Literacy World, which also received the award for CLIN 0007. Id., Exhibits 6-7. 9. Section C of the solicitation set forth the salient characteristics required of items offered as equal. Protest File, Exhibit 1 at 6. The solicitation incorporated by reference DFARS 252.210-7000 clause entitled "Brand Name or Equal (Dec. 1991)."[foot #] 2 Id. at 36. In addition, Section L of the solicitation states that: The technical proposal shall contain sufficient detail to indicate the proposed means for complying with all applicable requirements of this solicitation. The ----------- FOOTNOTE BEGINS --------- [foot #] 2 DFARS 252.210-7000 states, in pertinent part, as follows: (b) To be considered for award, offers of "equal" products including products (other than the "brand name" item) of the brand name manufacturer, must - (1) Meet the salient physical, functional, and other characteristics specified in this solicitation; (2) Clearly identify the item by - (i) Brand name, if any; and (ii) Make or model number; (3) Include descriptive literature such as cuts, illustrations, drawings, or clear reference to previously furnished descriptive data or information available to the Contract Officer; and (4) Clearly describe any modifications the Offeror plans to make in a product to make it conform to the solicitation requirements. Mark any descriptive material to clearly show the modifications. (c) The Contracting Officer will evaluate "equal" products on the basis of information furnished by the Offeror or identified in the offer and reasonably available to the Contracting Officer. The Contracting Officer is not responsible for locating or securing any information not identified in the offer and reasonably available. ----------- FOOTNOTE ENDS ----------- proposer shall provide all necessary descriptive information for items being offered as equal to the CLINS specified in Section B and C, hereof. Specifically, [sic] shall include information required to determine acceptability of the product being offered as meeting the specification and to establish exactly what the offeror proposes to furnish. This may include information such as illustrations, drawing or brochures which show the characteristics and explains (sic) the item being offered by the proposer. Id. at 38. 10. The item proposed by the protester for CLIN 0009 was found technically unacceptable because the technical evaluation team was unable to determine if the offered product would meet the requirements of the solicitation. Declaration of Major Carmack. The protester failed to submit descriptive literature for CLIN 0009. Id. The protester's proposal parroted some, but not all, of the salient characteristics listed in section C of the solicitation. Protest File, Exhibit 3 at 3. The item proposed did possess digital controls, one of the salient characteristics required for CLIN 0009. Id. 11. The information submitted by the protester for CLIN 0009 failed to demonstrate that the item offered was equal to the brand name. Protest File, Exhibit 3; Declaration of Major Carmack. The protester's submission of an informal typed section called Notes did not constitute descriptive literature. Protest File, Exhibit 3. The protester failed to identify a model number for the monitor being offered under CLIN 0009. Id. The protester misidentified itself as the manufacturer of the monitor for CLIN 0009. In short, the RMTC brand name item offered by the protester is a made-up model number consisting of some unknown and unidentified item manufactured by another company. Protester's Response to Respondent's First Discovery Request. 12. The solicitation incorporated by reference the clause at FAR 52.215-34 entitled "Evaluation of Offers for Multiple Awards (Mar 1990)," set out below: In addition to other factors, offers will be evaluated on the basis of advantages and disadvantages to the Government that might result from making more than one award (multiple awards). It is assumed, for the purpose of evaluating proposals, that $500 would be the administrative cost to the Government for issuing and administering each contract awarded under this solicitation and individual awards shall be for the items or combinations of items that result in the lowest aggregate cost to the Government, including the assumed administrative costs. FAR 52.215-34. Even if protester s offer on CLIN 0009 had been found technically acceptable, factoring in the $500 administrative cost to the Government in accordance with this clause, the Contracting Officer determined that award of CLIN 0009 to the protester would not be in the interest of the Government. CLIN 0008 13. The protester's offer for CLIN 0008 was found technically acceptable and was the lowest priced, being $208 less than that of Microland Electronics Corp., which received the award for that item as well as an award for three other items. Protest File, Exhibits 3, 6, 7; Declaration of Major Carmack. However, the protester's offer for CLIN 0008 could not be accepted because, factoring in the $500 administrative cost to the Government in accordance with the clause results in an award to Microland Electronics Corp. being most advantageous to the Government. Protest File, Exhibits 6, 7; Declaration of the Contracting Officer 9. Discussion The protester alleged in its October 12, 1993 protest that it should have received the awards for CLINS 0008, 0009, and 0010 because it was the low priced offeror for these three CLINs. For CLIN 0009 the protester offered an item purported to be equal to the brand name. The solicitation specified "NEC 5FG" as the brand name color monitor. The protester offered "RMTC 17 " color monitor. The protester failed to identify a make or model number for the monitor being offered as required by the "brand name or equal" clause. The protester misidentified itself as the manufacturer of the item. In its proposal for CLIN 0009, the protester, RMTC, stated that RMTC was the manufacturer of the item proposed, "RMTC 17 ". The protester, RMTC, is a distributor not a manufacturer. Therefore, the protester failed to specify the manufacturer as required by the solicitation. In its response to interrogatories concerning CLIN 0009, the protester stated that RMTC is not "aware of the ultimate manufacturers of the monitors." RMTC then lists the manufacturers which it "utilized to fulfill the requirement for CLIN 0009." The protester s proposal parroted some but not all of the salient characteristics listed in the solicitation. The protester did not meet the salient characteristics required for digital controls. No descriptive literature was submitted by the protester for CLIN 0009, and the information which it did submit failed to demonstrate that the item offered was in fact equal to the brand name. The standard Brand Name or Equal clause provides that where an offeror submits an "equal" product, the offeror is required to submit the relevant details concerning that product. Subsection (b) predicates acceptance of an "equal" product for award upon the product meeting the salient physical, functional, and other characteristics specified in the solicitation. Along with including the brand name, if any, of the equal product and its make/model number, the offeror is also required to "include descriptive literature such as cuts, illustrations, drawings, or a clear reference to previously furnished descriptive data or information available to the Contracting Officer." Under subsection (c), the Government is to evaluate the product identified on "information furnished by the Offeror or identified in the offer and reasonably available to the Contracting Officer." Subsection (c) further provides that the "Contracting Officer is not responsible for locating or securing any information not identified in the offer and reasonably available." The protester did not provide a brand name, make or model number for the product it offered. It did not submit any descriptive literature or information other than its "Notes," nor did it make reference to any information available to the Contracting Officer.[foot #] 3 For these reasons, the respondent's rejection was proper. The protester s proposal re CLIN 0010 was technically unacceptable because it offered refurbished material not authorized by the solicitation. The instant case falls within our holding in Federal Systems Group, Inc., GSBCA 11461-P, 92-1 BCA 24,591, 1991 BPD 316 (1991). In that case, the procuring activity had issued a solicitation for 152 microcomputer systems and related maintenance. FAR 52.210-5 clause entitled "New Material" was included in the solicitation. There the protester, Federal Systems Group, Inc. (FSG), had noted a "standard, boilerplate" exception stating, inter alia, that "[n]ew machines . . . may contain some serviceable used parts" and that it understood "that the Government will accept an OEM certificate of maintainability as verification that the equipment is reconditioned/refurbished and/or warranted the same as new equipment . . . ." Id. at 122,694, 1991 BPD 316 at 4-5. We held that the offending language included by the protester effectively took exception to a mandatory requirement of the solicitation that new equipment be offered. We noted that "[a]n offeror simply cannot exempt itself from a requirement and expect to be found eligible for award." Id. at 122,696, 1991 BPD 316 at 7 (citations omitted). ----------- FOOTNOTE BEGINS --------- [foot #] 3 RMTC has twice before engaged this Board on the issue concerning the sufficiency of its proposals. In GSBCA 10163-P, 90-1 BCA 22,281, this Board rejected RMTC s contention that it need not submit descriptive literature to demonstrate compliance with the agency s requirements. In GSBCA 11450-P, 92- 1 BCA 24,592, this Board rejected RMTC s submission of "Notes" as insufficient to satisfy all the requirements of the solicitation. This Board stated that the government had properly concluded that RMTC s notes did not constitute descriptive literature. ----------- FOOTNOTE ENDS ----------- If "boilerplate" language such as that in Federal Systems Group is sufficient to constitute an exception to a solicitation requirement for new equipment, then surely, the protester's handwritten offer of "refurbished" printers for CLIN 0010 in the instant case constituted an exception to a material requirement of the solicitation. This exception rendered the offer unacceptable. Accordingly, the Contracting Officer properly rejected the protester's offer for this item. Although, the protester's proposal re CLIN 0008 was technically acceptable and was the lowest priced for that item, when factoring in the $500 administrative cost of awarding this CLIN to the protester, an award to the protester was not the lowest cost alternative and would have violated the terms of the solicitation governing the evaluation of proposals. The protester's price for CLIN 0008 was only $208 lower than the awarded price to Microland, which had received an award of other items. Furthermore, the same is true with regard to CLIN 0009, even if the "or equal" item proposed by the protester had been technically acceptable. Factoring in the $500 administrative cost to the Government, it would not have been the lowest cost alternative because the protester's price for that item was only $52 less than the price awarded to Computer Literacy World, which also received award for other items. Decision The protest is DENIED. ________________________ JAMES W. HENDLEY Board Judge We concur: ________________________ ________________________ EDWIN B. NEILL ALLAN H. GOODMAN Board Judge Board Judge