Elementar Americas, Inc., B-289115, January 11, 2002

B-289115 Jan 11, 2002 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Was conducted under the simplified acquisition and commercial items procedures contained in Federal Acquisition Regulation (FAR) Parts 12 and 13. Except the statement that "[e]quipment should have ability to run samples in approximately 3 minutes.". There was no mention in the RFQ of any requirement to run samples in approximately 3 minutes. Was based on providing the brand-name product. Was based on furnishing its own "equal" product. The Forest Service determined that Elementar's product was not equal to the brand-name product and issued a purchase order to Elantech on September 13. Before this protest was filed. The equipment was delivered. Elementar protests that the Forest Service unreasonably determined that its offered product was not equal to the brand-name product. View Decision Elementar Americas, Inc., B-289115, January 11, 2002 DIGEST Attorneys DECISION Elementar Americas, Inc. protests the issuance of a purchase order to CE Elantech, Inc. under request for quotations (RFQ) No. EAZ-33-01-104, issued by the United States Department of Agriculture, Forest Service, Asheville, North Carolina, for a "112-302-15 CE Instruments Model Flash EA1112 Combustion Nitrogen/Carbon Analyzer, OR EQUAL." We sustain the protest. The RFQ, issued July 26, 2001, was conducted under the simplified acquisition and commercial items procedures contained in Federal Acquisition Regulation (FAR) Parts 12 and 13. The Forest Service posted the requirement on CBDNET on July 11 with no identified salient physical, functional, or performance characteristics that "equal" products must meet to be acceptable for award, except the statement that "[e]quipment should have ability to run samples in approximately 3 minutes." Agency Report, Tab B, CBDNET Notice. The RFQ then specified the solicited equipment, also without listing any salient characteristics or other essential minimum requirements to be met by an equal product, but advised that quotes should contain: [a] technical description of the items being offered in sufficient detail to evaluate compliance with the requirements in the solicitation. This may include product literature, or other documents, if necessary. RFQ Sec. 52.212-1(b)(4). There was no mention in the RFQ of any requirement to run samples in approximately 3 minutes. The Forest Service received quotes from Elantech and Elementar by the August 13 closing date. Elantech's quote, priced at $32,675, was based on providing the brand-name product. Elementar's quote, priced at $28,200, was based on furnishing its own "equal" product, the vario EL III. Both Elantech and Elementar included product literature in their quotes. The Forest Service determined that Elementar's product was not equal to the brand-name product and issued a purchase order to Elantech on September 13. Before this protest was filed, the equipment was delivered. Elementar protests that the Forest Service unreasonably determined that its offered product was not equal to the brand-name product. FAR Sec. 11.104 allows the use of brand name or equal purchase descriptions in describing agency needs in a solicitation, but requires: (b) Brand name or equal purchase descriptions must include, in addition to the brand name, a general description of those salient physical, functional, or performance characteristics of the brand name item that an 'equal' item must meet to be acceptable for award. Acquisitions conducted under FAR Parts 12 and 13 are not exempt from this requirement. /1/ Thus, this brand name or equal RFQ was defective because it did not list salient characteristics, so that quoters offering equal products were left to guess at the desired essential qualities of the brand-name item. See Ciba Corning Diagnostics Corp., B-223131, Aug. 13, 1986, 86-2 CPD Para. 185 at 3. /2/ Where an agency does not include a list of salient characteristics in the solicitation, the agency is precluded from rejecting a quote offering an equal product for noncompliance with some performance or design feature, unless the offered item is significantly different from the brand-name product. Id. at 4; see Access Logic, Inc., B-274748, B-274748.2, Jan. 3, 1997, 97-1 CPD Para. 36 at 3-6. Here, the Forest Service did not reasonably determine that Elementar's offered equal product was significantly different from the brand-name product. The first and primary reason that the Forest Service determined Elementar's product was not equal to the brand name was the analysis time associated with processing samples. The Forest Service determined that the brand-name product's analysis time was 2.5 minutes per sample for carbon/nitrogen, whereas the Forest Service determined Elementar's equal product's analysis time for these elements was 10 minutes per sample.