FFR-Bauelemente + Bausanierung GmbH

B-274828 Jan 07, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Bid offering an "equal" window was properly rejected as nonresponsive where the bid documents submitted failed adequately to identify the exact item offered. The Army rejected FFR's bid because the bid documents did not demonstrate that FFR was offering a product "equal" to the brand name product specified in the IFB. Date and Item offered __________________ _______________________ _________________________ __________________ _______________________ _________________________ __________________ _______________________ _________________________ __________________ _______________________ _________________________ The DFARS clause advised that 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". View Decision Matter of: FFR-Bauelemente + Bausanierung GmbH File: B-274828 Date: January 7, 1997 Bid offering an "equal" window was properly rejected as nonresponsive where the bid documents submitted failed adequately to identify the exact item offered, thereby precluding evaluation as to whether the item met the specified salient characteristics of the brand name product; information submitted by the bidder after bid opening identifying the specific "equal" window offered could not correct the deficiency because bid responsiveness must be ascertained from the bid documents themselves or other information reasonably available to the agency prior to bid opening. Attorneys DECISION FFR-Bauelemente + Bausanierung GmbH (FFR) protests the rejection of its bid as nonresponsive and the consequent award of a contract to Bauunternehmung Ehrenfels (Ehrenfels) under invitation for bids (IFB) No. DAJA22-96-B-0063, issued by the Wiesbaden Regional Contracting Center, Department of the Army, for the insulation and painting of buildings 6534 and 6539 in Roman Way Village, Butzbach and buildings 6402 and 6403 in Marshall Village, Giessen, two military housing areas in Germany. The Army rejected FFR's bid because the bid documents did not demonstrate that FFR was offering a product "equal" to the brand name product specified in the IFB. We deny the protest. The IFB, which contemplated award of a firm, fixed-price construction contract, contained three sets of specifications, the first for work to be done to building 6534, the second for building 6539, and the third for buildings 6402 and 6403. All three sets of specifications included the requirement that the windows be "Thermally insulated aluminum window-frame of profile series 'Hartmann-Systherm', or equal, with heat transition co- efficient K=2, 8 w/qm x K." The specifications listed a number of salient characteristics, including required dimensions and colors, for the windows, with slight variations among the three sets. The IFB included the standard clause found at Defense Federal Acquisition Regulation Supplement (DFARS) Sec. 252.211-7003, entitled "Brand Name or Equal" (Dec. 1991), which provides, in pertinent part, that to be considered for award, offers of "equal" products 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 a clear reference to previously furnished descriptive data or information available to the Contracting Officer. . . ." In addition, paragraph K.9 of the IFB required that offerors intending "to provide products, equipment, material, articles, or patented processes which differ from the brand name, trade name, make, model, or catalog number described in the specifications" enter the following information: Specification Brand Name Mentioned Description of Material Page and Position Plans or Specifications or Equipment, Name, Make, Model Number, Model or Catalog Number, Date and Item offered __________________ _______________________ _________________________ __________________ _______________________ _________________________ __________________ _______________________ _________________________ __________________ _______________________ _________________________ The DFARS clause advised that 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"; it specifically cautioned that "[t]he Contracting Officer is not responsible for locating or securing any information not identified in the offer and reasonably available." FFR submitted the low bid of the 13 bids received by bid opening.