Tri Tool, Inc.

B-265649.2 Jan 22, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Protest of rejection of equal product offered in response to a brand name or equal procurement is sustained where rejection was based on bidder's failure to meet salient characteristics that were not set forth in the solicitation. Which are to be assembled by FPI into kits for the Department of the Army. The protester alleges that its bid was improperly rejected as nonresponsive. The IFB was issued on May 25. Contained 43 line items representing different pipe cutting components for which bidders were to offer a firm fixed price. Award was to be made on an all-or-none basis to the lowest responsible bidder whose products conformed to the item descriptions set forth in section B. No specifications were referenced in the item descriptions. View Decision Matter of: Tri Tool, Inc. File: B-265649.2 Date: January 22, 1996 Protest of rejection of equal product offered in response to a brand name or equal procurement is sustained where rejection was based on bidder's failure to meet salient characteristics that were not set forth in the solicitation. Attorneys DECISION Tri Tool, Inc. protests the rejection of its bid under invitation for bids (IFB) No. 1PI-B-1498-95, issued by the Department of Justice, Federal Prison Industries, Inc. (FPI), [1] for pipe cutting components, which are to be assembled by FPI into kits for the Department of the Army. The protester alleges that its bid was improperly rejected as nonresponsive. We sustain the protest. The IFB was issued on May 25, 1995, with bid opening on June 26. Section B of the solicitation, the schedule of items, contained 43 line items representing different pipe cutting components for which bidders were to offer a firm fixed price. Award was to be made on an all-or-none basis to the lowest responsible bidder whose products conformed to the item descriptions set forth in section B. Each line item description referred to a part number from the incumbent contractor--E.H. Wachs Company--and contained the phrase "or equal." Some of the line item descriptions also contained design and performance requirements and many referenced a national stock number (NSN). Although section L of the solicitation generally informed bidders where they could obtain government specifications, no specifications were referenced in the item descriptions. Three bids were received. Tri Tool, which offered an "equal" line of pipe cutting components, submitted the low bid of $273,854; Wachs bid its own line of components, as listed in the IFB, and submitted the next low bid of $458,128. After bid opening, FPI realized that through what the agency called an "oversight," the phrase "or equal" was included in the item descriptions. FPI also realized that the IFB did not contain the standard "brand name or equal clause" which alerts bidders to include information in their bids sufficient to establish the equality of the products they are offering to the listed brand name. Nonetheless, FPI elected to treat the procurement as a "brand name or equal" procurement and contacted Tri Tool to give the firm two opportunities to submit descriptive literature so that the agency could determine whether the protester's bid satisfied the solicitation requirements. In response, Tri Tool indicated that it was modifying its standard line of pipe cutting equipment and provided six sketches of various equipment it was offering to supply. Tri Tool also indicated that the 8-inch pipe cutting machine it proposed to supply has an internal ring gear rather than an external ring gear as featured in Wachs's machine. [2] The Army evaluated this information and based on the Army's recommendation, FPI determined that the protester had not offered equal equipment. Specifically, the agency found that the sketches of tool bits (line items 0041, 42 and 43) did not conform to dimensional requirements of the Army and that Tri Tool's sketch of a pneumatic drive bracket (line item 0011--also called a mounting flange) was inadequate to "complete an evaluation of its acceptance." The agency also expressed concern about Tri Tool's proposal to modify its standard equipment and questioned whether the firm had ever manufactured the tool bits or brackets before. Finally, the agency reports that it was concerned that Tri Tool had offered a pipe cutting machine with an internal ring gear. Tri Tool's bid was rejected as nonresponsive, award was made to Wachs and this protest followed. Tri Tool alleges, inter alia, that its bid was improperly rejected for failure to satisfy requirements which were not set forth in the solicitation.