Link: GAO Opinion
Agency: Defense Logistics Agency
Disposition: Protest denied.
Where protester failed to furnish, and agency officials were otherwise unable to gain access to, documentation demonstrating that protester’s product had previously been approved as an acceptable alternate to specified product, agency properly sought data package for the product from the protester and rejected its quotation when protester failed to furnish a complete package.
General Counsel P.C. Highlight:
Viking argues that it offered a previously-approved, as opposed to an alternate, product, and thus should not have been required to submit a data package for evaluation. The protester further argues that the agency improperly failed to request information pertaining to the acceptability of its valve from the Marine Corps. The RFQ incorporated by reference DLAD sect. 52.217-9002, which instructed offerors to indicate in their quotations whether they were offering an “exact product,” an “alternate product,” a “superseding part number,” or a “previously-approved product,” and to furnish the data required for whichever was applicable. For an alternate product, offerors were required to furnish “drawings, specifications, or other data necessary to clearly describe the characteristics and features of the alternate product being offered;” in addition, they were required to furnish data describing the exact product cited in the item description to the extent that this information was not already available to the government. The section further instructed that if, as was the case here, the solicitation did not identify the level of data in the government’s possession, offerors were to assume that no data was available and to “furnish drawings and other data covering the design, materials, etc., of the exact product cited in the AID [acquisition item description], sufficient to establish that the Offeror’s product is equal to the product cited in the AID.”
The agency explained that while the protester furnished evidence that it had previously furnished the valves to the Marine Corps, it did not furnish evidence that the valves had been approved. DLA also noted that in response to the protest here, it had attempted to gain access to archived files of the Marine Corps to determine if Viking had undergone some form of technical evaluation and approval for the item offered, but was unsuccessful. The agency further explained that in an attempt to resolve Viking’s protest, it had contacted the individual at the ESA whom the protester’s attorney had identified to agency counsel as a source who could provide information regarding the approval of Viking’s product; this individual stated that he did not have the authority to approve the item, and thus had not approved Viking’s part. This individual further advised that if Viking’s part had been approved, a “certificate of conformance” would have been issued to Viking. DLA personnel followed up on the foregoing representations by contacting the senior engineer in question, who stated that he had no recollection of approving Viking’s part; in addition, DLA personnel contacted Viking to inquire whether it had a certificate of conformance and were told that it did not have such a document. Given that, despite their reasonable efforts, DLA personnel were unable to locate documentation establishing that Viking’s part had been approved as an acceptable alternate to the specified part, GAO finds that it was both reasonable and consistent with the terms of the RFQ for the agency to require a data package for evaluation.
To the extent that the protester had an objection to the clause barring consideration of alternate offers for automated award, it needed to raise its objection prior to the closing date for receipt of quotations. In any event, the provision is clearly intended to prevent delay in making automated awards, which is consistent with statutory authority providing that an agency need not delay a procurement in order to provide an offeror an opportunity to demonstrate its ability to become qualified. Moreover, GAO thinks the agency made a reasonable effort to obtain information bearing on whether Viking’s part was approved and that Viking had an opportunity to provide evidence for the assertion in its quotation that its item was a previously-approved part. The protest is denied.