___________________________________________________ DENIED: January 4, 1995 ___________________________________________________ GSBCA 13056-P DATAEXPERT CORP., Protester, v. DEPARTMENT OF LABOR, Respondent. Edward J. Tolchin of Fettman & Tolchin, Fairfax, VA, counsel for Protester. Michele W. Curran and Herman J. Narcho, Office of the Solicitor, Department of Labor, Washington, DC, counsel for Respondent. Before Board Judges DEVINE, NEILL, and HYATT. NEILL, Board Judge. DataExpert Corporation (DataExpert) protests the rejection of its bid on a procurement of various automatic data processing hardware products by the Department of Labor (DOL). The bid was rejected as nonresponsive. For the reasons set out in this opinion, we conclude that the rejection of protester's bid was justified. We, therefore, deny the protest. Findings of Fact The Solicitation 1. The solicitation in this procurement is an invitation for bids (IFB) which was issued by DOL on July 8, 1994. It calls for laser printers and notebook microcomputers to support Bureau of Labor Statistics (BLS) personnel in the field and in the national and regional offices. Protest File, Exhibit A at 4-5. 2. Of relevance in this protest is contract line item 1010 of the IFB. It calls for a "Hewlett-Packard 4SiMX printer . . . or equivalent." Protest File, Exhibit A at 2. 3. Clauses C.4 and C.5 of Section C of the IFB set out the salient characteristics of other-than-brand-name equipment. For the Hewlett-Packard 4SiMX printer, the salient characteristics deal with such matters as resolution, fonts, speed and toner, paper-handling, hardware interface, network interface, memory, printer languages, LAN [local area network] connectivity, readiness for use, and operating environment. Protest File, Exhibit A at 7-9. 4. The IFB incorporates by reference the descriptive literature clause found in the Federal Acquisition Regulation, 48 CFR 52.214-21 (1993) (FAR 52.214-21). That clause reads as follows: DESCRIPTIVE LITERATURE (APR. 1984) (a) "Descriptive literature" means information (e.g., cuts, illustrations, drawings, and brochures) that is submitted as part of a bid. Descriptive literature is required to establish for the purpose of evaluation and award, details of the product offered that are specified elsewhere in the solicitation and pertain to significant elements such as (1) design; (2) materials; (3) components; (4) performance characteristics; and (5) methods of manufacture, assembly, construction, or operation. The term includes only information required to determine the technical acceptability of the offered product. It does not include other information such as that used in determining the responsibility of a prospective Contractor or for operating or maintaining equipment. (b) Descriptive literature, required elsewhere in this solicitation, must be (1) identified to show the item(s) of the offer to which it applies and (2) received by the time specified in this solicitation for receipt of bids. Failure to submit descriptive literature on time will require rejection of the bid, except that late descriptive literature sent by mail may be considered under the Late Submissions, Modifications, and Withdrawals of Bids provision of this solicitation. (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. Protest File, Exhibit A at 71. 5. A clause in Section L of the IFB provides offerors with guidance on brand name or equal bids and sets out descriptive literature requirements in addition to those contained in the solicitation's descriptive literature clause quoted above. The Section L clause reads in part as follows: L.4. BRAND NAME OR EQUAL (a) As used in this clause, the term "brand name" includes identification of products by make and model. (1) If items called for by this invitation for bids have been identified in the schedule by a "brand name(s) or equal" description, such identification is intended to be descriptive, but not restrictive, and is to indicate the quality and characteristics of products that will be satisfactory. Bids offering "equal" products (including products of the brand name manufacturer other than the one(s) described by brand names(s)) will be considered for award if such products are clearly identified in the bids and are determined by the Government to meet fully the salient characteristics requirements in the invitation. (2)(A) If the bidder 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 invitation for bids, 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 descriptive literature furnished by the bidder or identified in the bid as well as other information reasonably available to the purchasing activity. CAUTION TO BIDDERS: This purchasing activity is not responsible for locating or securing any information which is not identified in the bid and reasonably available to the purchasing activity. Accordingly, to ensure that sufficient information is available, the bidder must furnish, as part of the bid, all descriptive material (such as cuts, illustrations, drawings, or other information) necessary for the purchasing activity to (i) determine whether the product offered meets the salient characteristic requirements of the invitation for bids, and (ii) establish exactly what the bidder proposes to furnish, and what the Government would be binding itself to purchase by making an award. The information furnished may include specific references to information otherwise available to the purchasing activity. (2)(B) If the bidder proposes to modify a product so as to make it conform to the requirements of the invitation for bids, the bidder shall include in the bid a clear description of such proposed modifications and clearly mark any descriptive material to show the proposed modifications. (C) Modification proposed after bid opening to make a product conform to a brand name referenced in the invitation for bids will not be considered. . . . . (c) The bidder shall demonstrate a selected number of completely configured systems in a Functional Capabilities Demonstration prior to award. Such demonstration shall be at the Government's option. Also see Sections E for Acceptance of Equipment and Section M for Evaluation of a Functional Capabilities Demonstration. (d) The Government reserves the right to refuse any system which does not meet these criteria. Also see Section E Acceptance of Equipment. Protest File, Exhibit A at 71-75. 6. Another section of the solicitation, Section H, entitled "Special Contract Requirements," has a provision regarding energy-efficient equipment. The clause reads as follows: H.1. ENERGY-EFFICIENT MICRO-COMPUTERS AND PRINTERS Model(s) supplied by the vendor must: * Qualify for the EPA Energy Star logo by meeting the EPA requirements for energy efficiency. * Have equivalent functionality to similar non- power-managed commercially available models. This functionality should include but not be limited to: * The ability to run commercial of[f]-the-shelf software both before and after recovery from a low power state, including retention of files opened before the power management feature was activated. * Complete interoperability with local area networks and other operational environments. * Be equipped with a low power standby feature unless it meets the EPA Energy Star requirements at all times. If equipped with a low power standby feature, it shall: * Be shipped with this feature fully enabled. * Have the capability of entering and fully recovering from the low power standby mode. Protest File, Exhibit A at 33. 7. The energy efficiency requirements set out in Clause H.1 were developed in response to Executive Order 12,845, 58 Fed. Reg. 21,887 (1993), which requires government agencies to specify what microcomputers, monitors, and printers should be equipped with energy efficient low power standby features as defined by the EPA Energy Star computers program. The executive order directs that this requirement be included in future contracts. Protest File, Vol. 3 at 600-1. GSA guidelines implementing the executive order contain the following provision regarding compliance: The best way to meet the requirements of the Executive Order is to specify an Energy Star-qualifying product. There are some cases, however, where it would be appropriate to use other ways to meet the requirements. One way might be bundling an add-on device or aftermarket controlling device with a noncompliant computer product to meet the Energy Star requirements. Energy Efficient Microcomputers: Guidelines on Acquisition, Management and Use (July 1994) at 14; Protest File, Vol. 3 at 589-90. Protester's Bid 8. DataExpert submitted two bids in response to DOL's IFB. Protest File, Exhibit B. In each bid, protester offered a QMS 1725 Print System for CLIN 1010 as an "equivalent" to the Hewlett-Packard printer called for in the IFB. Id. at 231-32, 372-73. 9. Both of DataExpert's bids expressly provide that the other-than-brand-name products offered meet or exceed "all of the mandatory specifications as provided in this subject IFB." Protest File, Exhibit B at 213, 356. 10. DataExpert provided descriptive literature for all equivalent items listed in its bids. Protest File, Exhibit B at 225-39, 368-80. 11. In examining the descriptive literature provided by DataExpert, employees in BLS' Directorate of Technology and Computing Services were unable to determine if the printer offered for CLIN 1010 was compliant with the energy efficient requirements set out in Clause H.1 (Finding 6) of the IFB. In an effort to resolve this question, members of the technical staff consulted EPA's Energy Star Compliant Product Database and found that the printer offered was not listed. The manufacturer of the printer was also contacted and asked if this printer was Energy Star compliant. A representative of the manufacturer replied that it was not. Protest File, Exhibit C at 396. 11. By letter dated September 16, 1994, DOL advised protester that both bids had been found to be nonresponsive owing to the failure of the offered printer to meet the Energy Star requirements of the IFB. Protest File, Exhibit C at 398. Protester replied that the proposed printer, as shipped, will meet the Energy Star requirements of the IFB in that it is shipped with a DLM [DataExpert Laser Miser] unit which controls the power management feature. Id. at 411. 12. Notwithstanding protester's explanation, respondent, by letter dated October 13, confirmed the rejection of DataExpert's bids as nonresponsive. Two reasons were given. First, the bids, as submitted, were considered nonresponsive because they contained no reference to the DLM unit, no technical literature on this equipment, and no description of modifications which would render the offered printer Energy Star compliant. Second, neither the QMS printer offered nor any DataExpert product is listed in EPA's Energy Star Compliant Product Database as qualifying for the Energy Star logo. Id. at 421. 13. The record for this protest contains descriptive literature relating to protester's DLM. Protester's Protest File Supplement, Exhibits 2-3. In response to respondent's request for admission that the DLM unit was first identified in DataExpert's letter of October 3, 1994, to DOL, protester has stated that the unit was not identified "as such" until that time. Protest File, Vol. 3 at 617. Given this admission, we find that this descriptive literature in the record, which describes in detail protester's DLM, was not part of protester's bids which are dated July 19, 1994. Id., Exhibit B at 213, 356. 14. In response to an interrogatory posed by protester, DOL freely admits that it has no reason not to consider DataExpert's bids other than the reasons set forth in the contracting officer's letter dated October 13, 1994. Protester's Protest File Supplement, Exhibit 1 at 2-3. Discussion In a status conference called by the Board on December 2, 1994, counsel for the parties agreed that this protest will be limited to the issue of whether DataExpert's bids are responsive on their face to the energy efficiency requirements of Clause H.1. If protester is successful in this protest, then the issue of de facto compliance of the QMS printer with the requirements of Clause H.1 will be reexamined by respondent and, if necessary, be the subject of a subsequent protest. Memorandum of Status Conference (Dec. 2, 1994). Consequently, whether DOL's technical personnel were correct or incorrect on this second issue becomes irrelevant to our inquiry here. The sole issue remaining to be resolved in this protest, therefore, is whether DataExpert's bids were responsive, on their face, to the energy efficiency requirements set out in Clause H.1. In a brand name or equal procurement, however, such as that which we have in this protest, a responsiveness inquiry is not limited to whether the brand name or equal product offered meets the salient characteristics described in the IFB. To be responsive, a bid must meet all technical requirements including those that may be in addition to the salient characteristics of the brand name product. In our de novo review of the record, we conclude, for the reasons herein, that DataExpert's bids were not responsive to the terms of the IFB. The descriptive literature clause of the IFB states that descriptive literature is required "to determine the technical acceptability of the offered product."[foot #] 1 Finding 4. The same clause further states: "The failure of descriptive literature to show that the product offered conforms to the requirements of this solicitation will require rejection of the bid." Id. ----------- FOOTNOTE BEGINS --------- [foot #] 1 In support of its rejection of protester's bids, respondent relies on requirements for descriptive literature set out in Clause L.4, entitled "Brand Name or Equal." See Finding ___ 5. Protester contends that respondent is reading this clause out of context because, by its very title, the clause is limited to matters relating to the equivalency of the item offered and, therefore, only to the salient characteristics set out in the IFB. We see no need to decide who is correct on the issue of how the requirement in Clause L.1 for descriptive literature should be interpreted. Quite apart from Clause L.1, the descriptive literature clause of the IFB has its own requirement for descriptive literature. Finding 4. The descriptive literature requirement in the latter is more than adequate to support respondent's expectations and is not open to the more restrictive interpretation which protester would give to the descriptive literature requirement in Clause L.4. ----------- FOOTNOTE ENDS ----------- A review of the requirements of Clause H.1 readily convinces us that we are dealing here with technical requirements.[foot #] 2 See Finding 6. Although descriptive literature was available regarding protester's DLM, it was not provided with the bid. Finding 14. Neither did protester provide with its bid any specific explanation as to how the equipment offered would comply with the technical requirements of Clause H.1. Findings 13-14. In the absence of this descriptive literature or specific explanation of how these requirements would be met, respondent was unable to determine from protester's bid whether the printer offered for CLIN 1010 complied with the Energy Star requirements of the IFB as set out in Clause H.1. Finding 11. Rejection of the bids as nonresponsive, was, therefore, fitting and in keeping with provisions of the solicitation's descriptive literature clause. Protester argues that it satisfied the descriptive literature requirements of the IFB in demonstrating that the printers offered met the salient characteristics of the brand named in the IFB.[foot #] 3 This, plus a stated willingness to comply with all mandatory requirements of the solicitation, is all, according to protester, that is required. In making this argument, protester cites the following Board decisions which are said to support the proposition that a bid may not be rejected as noncompliant if it complies with each of the salient characteristics identified in the IFB: International Data Products Corp., GSBCA 10517-P, 90-2 BCA 22,867, 1990 BPD 86; Sysorex Information Systems, Inc., GSBCA 10642-P, et al., 90-3 BCA 23,181, 1990 BPD 193; Berkshire Computer Products, GSBCA 10338-P, 90-1 BCA 22,493, 1989 BPD 365; Micro Star Co., GSBCA 9649-P, 89-1 BCA 21,214, 1988 BPD 209; Denro, Inc., ----------- FOOTNOTE BEGINS --------- [foot #] 2 Protester, citing our decision in Integrated __________ Systems Group, Inc. v. Department of the Army, GSBCA 12613-P, 94- _____________________________________________ 2 BCA 26,618, 1993 BPD 359, argues that the Energy Star requirements of Clause H.1 are not technical requirements, but rather performance requirements as those terms are used in the ISG case, for which descriptive literature is not required. We ___ disagree. The requirements in Clause H.1 are unquestionably of a technical nature and considerably different from the guarantee and warranty requirements encountered in ISG. ___ [foot #] 3 Protester is correct that, to date, respondent has not rejected DataExpert's bids because the printer offered for CLIN 1010 does not meet the salient characteristics of the Hewlett-Packard 4SiMX printer. The salient characteristics for the printer are expressly listed in Clauses C.4 and C.5 of the IFB. Finding 3. The Energy Star requirements are found instead in Section H. Finding 7. Respondent freely admits that at this time it has no reason not to consider DataExpert's bids other than those set out in the contracting officer's letter dated October 13, 1994, namely, reasons relating to the Energy Star compliance requirements of Clause H.1. Findings 14, 16. ----------- FOOTNOTE ENDS ----------- GSBCA 9626-P, 89-1 BCA 21,287, 1988 BPD 238; CMP Corp., GSBCA 8703-P, 87-1 BCA 19,499, 1986 BPD 214. In claiming to be responsive, protester construes these decisions of the Board out of context. They deal with situations where an offeror, in a brand name or equal procurement, has offered an "equal." When it is simply a question of determining the equivalency of the item offered, and nothing more, it is clearly correct that the offer may not be rejected as noncompliant if it complies with each of the salient characteristics identified in the solicitation. This is true whether one is dealing with a sealed bid or negotiated procurement. Indeed, we note that the Berkshire and Sysorex decisions cited by protester both involve salient characteristics listed in a request for proposals (RFP) rather than an IFB. These decisions cited by protester should not be read, however, as supporting the proposition that, in the case of an IFB for a brand name or equal product, a bid cannot or must not be rejected as nonresponsive when it fails to meet an additional technical requirement of the solicitation, which is separate and distinct from requirements relating to equivalency. Unlike the cases cited above and relied on by protester, this case involves compliance with a requirement which is definitely distinct from the salient characteristic requirements relating to the equivalency of the items bid. The Energy Star requirements were not set out in Section C with the salient characteristics but rather in Section H. Respondent's decision not to include these requirements among the salient characteristics was a sound one. GSA's Energy Star guidelines expressly point out that compliance with Energy Star requirements can be achieved not only by specifying an Energy Star-qualifying product, but also by bundling an add-on device with a noncompliant computer product. Finding 7. By not making the requirements of Clause H.1 a salient characteristic, therefore, DOL broadened rather than restricted the competition for items which could be offered as equivalent to the brand name item called out in the IFB. Nonetheless, compliance with the requirements of Clause H.1 was critical for determining the technical acceptability of the equipment bid. Descriptive literature of some type was, therefore, required, and respondent acted properly in rejecting protester's bids which failed to include it. Protester, in arguing its case, also relies on the Board's decision in Dunn Computer Corp., GSBCA 11531-P, 92-1 BCA 24,618, 1991 BPD 332. The reliance is misplaced. Dunn, when properly read, amply supports the conclusion that protester's bids in this case are nonresponsive. In Dunn, we stressed the fact that descriptive literature was critical for determining the bid equipment's ability to meet solicitation requirements. The need for descriptive literature is not seen in that decision as limited to salient characteristics. Rather, the literature is seen, as the clause itself states, as necessary "to determine the technical acceptability of the offered product." At the same time, the Board in Dunn pointed out that a bid should not be deemed nonresponsive when descriptive literature is not provided regarding general requirements addressing bidder abilities and assurances. In this regard we wrote: Despite the descriptive literature clause, a bidder's failure to provide descriptive literature for these items, when none exists and there is no agency expectation of obtaining descriptive literature, cannot serve as a reasonable basis to reject the bid on its face. Dunn, 92-1 BCA at 122,792, 1991 BPD 332, at 2. Such is not the case here. Although descriptive literature regarding DataExpert's DLM was available at the time bids were submitted, it was not provided. Employees in BLS's Directorate of Technology and Computing Services clearly expected that material would be submitted to show that the offered equipment could be made to comply with the Energy Star requirements. In the absence of this material, the agency was unable to determine whether the printer offered by protester could meet these requirements of the IFB. Finding 11. In the final analysis, in preparing its bids, protester simply failed, in part, to meet the descriptive literature requirement of the IFB. For this reason, we uphold DOL's rejection of them and find nothing in this rejection which conflicts with existing Board precedent. Had DataExpert provided the required material or explanation regarding its DLM, neither this protest nor the subsequent efforts of BLS employees to make up for the deficiency would have occurred. Protester's bids were deficient on their face. Admittedly, the IFB does give DOL the option to call for a subsequent functional capability demonstration. This testing, however, should not be seen as a means of rectifying a bid which is deficient on its face but rather as a method of confirming the accuracy of a bid which, on its face, is found to be responsive. Our dissenting colleague recognizes that the IFB did require descriptive literature on "significant elements" of the product offered but that the literature is limited to "only information required to determine [the products'] technical acceptability." "This," argues the dissent, "simply does not apply to an ancillary power-saving device." We see no reason why the IFB's requirement for descriptive literature does not apply to the technical requirements of Clause H.1. and, in truth, the dissent has provided us with nothing more than the apodictic assertion that it simply does not apply. Our conclusion that protester should have provided descriptive literature evidencing compliance with the requirements of Clause H.1. is based on nothing more than the plain meaning of the language of the IFB. As already noted, the language in Clause H.1. readily convinces us that we are dealing here with specific technical requirements which unquestionably relate to the technical acceptability of the product offered. Furthermore, the language of the descriptive literature clause requires bidders to provide literature which will enable the Government to determine the "technical acceptability of the offered product." Protester failed to provide any literature or specific explanation of how the printer it offered would comply with the technical requirements of Clause H.1. As a result, the agency was unable to determine whether the printer was technically acceptable. For this reason, we remain convinced that protester's bids merited rejection as nonresponsive on their face. Decision This protest is DENIED. Our order suspending respondent's delegation of procurement authority expires in accordance with its terms. _______________________ EDWIN B. NEILL Board Judge I concur: _________________________ CATHERINE B. HYATT Board Judge DEVINE, Board Judge, dissenting. I dissent because I do not agree with the majority. This was a brand-name-or-equal procurement. DataExpert furnished descriptive literature, to the Government's satisfaction, on all of the salient technical characteristics set out in the IFB. There is no dispute that the printer (bearing another brand name) it offered was equivalent to the specified name brand. The requirement that the printer meet the EPA's Energy Star standards was not one of the salient characteristics listed in the IFB, nor should it have been, since the energy-saving feature merely conserved power and could be satisfied with add-on equipment. It neither helped nor hindered the printer's performance. The presence or absence of the Energy Star capability would have appeared at the functional capabilities demonstration, if DataExpert had gotten that far, because, as it turned out, DataExpert intended to supply its own DataExpert Laser Miser (DLM) which would have met the Energy Star requirement. However, it never got a chance to do so because of DOL's hasty judgment that DataExpert's bid was non-responsive, simply because DOL found no literature on the DLM accompanying the bid. The real reason for DOL's ill-considered action had nothing to do with literature. DOL did not believe that the printer DataExpert offered would meet the Energy Star requirement. It came to this opinion because DOL did what it said in the solicitation that it would not do: go to extra lengths to see if an offeror complied. Unfortunately it went to the wrong sources. First, according to the majority, it asked the EPA if the offered printer was on EPA's power saving list and got a no. Then, it asked an unnamed representative of the printer's manufacturer and got another no. It did not ask protester. These answers led DOL to believe that DataExpert was non-compliant and it therefore began to look for literature to back up its mistaken belief. Thus, although DataExpert had stated that it met all requirements, and DOL substantially confirmed this when it could find nothing lacking from DataExpert's offer except literature on the power saving feature, nevertheless DOL jumped to the erroneous conclusion that DataExpert's offer could not meet the power saving requirement, and was thus non-responsive. If DOL had accepted DataExpert's statement that its offer met all requirements, which DOL should have done, and proceeded to a capability demonstration to remove any doubts, the truth would have been revealed when DataExpert produced its DataExpert Laser Miser and the issue of descriptive literature would never have arisen. The two descriptive literature clauses set out in the majority opinion require descriptive literature on "significant elements" of the product offered but it is limited to "only information required to determine [the products'] technical acceptability." This simply does not apply to an ancillary power-saving device. If the procurement had sought power-saving devices I would agree with the majority that descriptive literature was required, but that is not the case here. I would grant this protest. _______________________ DONALD W. DEVINE Board Judge