Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest denied.
Keywords: Brand Name or Equal; Product Testing
General Counsel P.C. Highlight: The establishment of testing procedures is matter within the technical expertise of the procuring activity, and GAO will not object to the imposition of such a requirement unless it is shown to be without a reasonable basis.
Standard Heater Tube, Inc. (Standard) protests the terms of request for quotations (RFQ) issued by the Department of the Air Force for heater tubes and associated filter kits. Standard asserts that the RFQ is unnecessarily restrictive in that it requires a “brand name or equal” product and requires that quoted equal products be tested for suitability under specifically defined procedures.
The RFQ was posted on FedBizOpps and provided that heater tubes “shall be able to conduct thermal stability tests in accordance with the American Society for Testing and materials (ASTM) D 3241-Standard Test Method for Thermal Oxidation Stability of Aviation Turbine Fuels. Heater tubes shall be Alcor Part Number: AL-91652 or equal. Equivalent heater tubes shall comply with the characteristics outlined in the ASTM D 3241, Table 2. Heater tubes shall be established as conforming by the ASTM D02 Subcommittee on Aviation Fuels using the procedures outlined in the ASTM Research Report #D02-1550.” The RFQ advised that quotations “must clearly show that item offered meets all requirements.”
GAO states that the determination of a contracting agency’s needs and the best method of accommodating them are matters primarily within the agency’s discretion. GAO finds nothing objectionable in the agency’s reliance on the ASTM standard in determining the necessary characteristics of the required heating tubes. GAO has held that it is reasonable for an agency to attempt to comply with technical requirements that were specifically formulated for application in the procurement.
The language of ASTM 3241 articulates the need to conduct testing using the same equipment used to establish the test procedure and the ALCOR heater tube specified in the RFQ was part of the equipment used to develop the test procedure in question. The agency has sufficiently established that the brand name or equal provision is necessary to ensure the validity of the heater tube ratings. GAO concludes that the brand name or equal requirement is unobjectionable.
The establishment of testing procedures is matter within the technical expertise of the procuring activity, and GAO will not object to the imposition of such a requirement unless it is shown to be without a reasonable basis. GAO finds that RR-1550 is a reasonable means of ensuring the acceptability of the required heater tubes. The agency asserts that use of ASTM D 3241 is prescribed by an applicable military standard.
GAO finds that a contracting agency’s responsibility for determining its needs includes determining the type and amount of testing necessary to ensure both product compliance with the specifications and that a particular product will meet the government’s needs. Here, the agency has demonstrated that the heater tubes are critical components, that uniformity of the tubes is necessary to ensure valid test results, and that the RR-1550 testing protocol is a reasonable means of ensuring uniformity. The protest is denied.