Date: January 18, 1990

P.S. Protest No. 89-75

TLT CONSTRUCTION CORP., INC.

Solicitation No. 089984-89-A-0052

DECISION

TLT Construction Corp., Inc. ("TLT"), protests the contracting officer's rejection of its proposal for a roof replacement project because the roofing system it proposed was not deemed an acceptable equal to the system specified.

Solicitation No. 089984-89-A-0052 was issued June 28, 1989, by the Contracting and Support Branch of the Windsor, CT, Facilities Service Center, for replacement of the roof at the Springfield, MA, Bulk Mail Center (BMC). Offers were due July 27. Amendments extended the time for receipt of proposals to August 15.

Part 2-01, "Materials", of the solicitation's Technical Specifications, provides that the roof shall be made of "scrim-reinforced uncured white hypalon . . . components to be products of J.P. Stevens or approved equal by Harrtz-Mason and Burkeline." The solicitation also includes, at Section K.6, "Brand Name Or Equal" (Provision 2-4) (October 1987), general language regarding the offering of products equal to those stated in the solicitation:

One or more items called for by this solicitation have been identified in the Schedule by a brand-name-or- equal product description. Proposals offering equal products will be considered for award if these products are clearly identified and are determined by the Postal Service to be equal in all material respects to the brand-name products referenced in the solicitation.

K.6 also discusses illustrations, drawings, and other information the offeror must provide in its proposal so that the contracting officer can properly determine the equality of the substitute product:

The evaluation of proposals and the determination as to equality of the product offered will be based on information furnished by the offeror or identified in the proposal, as well as other information reasonably available to the purchasing activity. The purchasing activity is not responsible for locating or obtaining any information not identified in the proposal and reasonably available to the purchasing activity.

The "Roof Replacement Qualifications" section of the Technical Specifications lists two further requirements:

1. Contractor must be licensed by the manufacturer for a minimum of two years.
2. The Contractor must submit a signed letter from the manufacturer certifying that a warranty was issued for eight roof projects.

TLT's proposal named a roofing material made by Goodyear, a manufacturer other than those specified in the solicitation, and the proposal was not accompanied by nor did TLT otherwise provide the supporting information required by K.6. Additionally, TLT submitted no information to indicate it met the requirements of the Roof Replacement Qualifications section of the Technical Specifications. 1

The contracting officer determined that TLT's proposal, although lower in price than the other proposals received, did not meet all requirements of the solicitation. He informed TLT of his determination by letter dated September 11 in which he pointed out TLT's offering of a non-approved substitute roof and the absence of the two Roof Replacement Qualifications requirements noted above. The contract was awarded to J.D. Rivet and Co., Inc. ("Rivet") on the same date. 2 By letter dated September 20 TLT protested the contracting officer's decision.

TLT claims the Goodyear Hysunite roofing material it offered in its proposal is an acceptable equal product, thereby making its proposal one conforming to the terms of the solicitation. TLT argues that Special Clause G.6, "Materials And Workmanship" (Clause 11-5) (June 1988), of the solicitation allows such product substitution. The protestor also contends that the contracting officer gave no reason for his rejection of its proposed roofing material, and did not allow it the opportunity to discuss roofing product requirements.

On November 27, 1989, the contracting officer filed his statement in response to TLT's protest. 3 The contracting officer first argues that TLT's proposal was properly rejected as "nonresponsive," since TLT's offered Hysunite roofing product is not an approved equal under the solicitation. He also argues rejection was proper because TLT failed to demonstrate Goodyear had warranted eight TLT roof installations, and that TLT has not shown it is currently licensed by Goodyear to install the Hysunite material.

Rivet filed comments as an interested party, arguing that TLT's Hysunite roofing material is not an acceptable "or equal" product. Since Hysunite has only been on the market for a year and a half, Goodyear could not have licensed TLT as an installer for two years, as the solicitation requires. Rivet also agrees with the contracting officer that TLT has not shown the required eight warranted installations of the Hysunite material. 4

Discussion

At the outset, we note that the contracting officer has used incorrect terminology in labelling TLT's proposal "nonresponsive." As the Postal Service Procurement Manual (PM) makes clear, all postal solicitations are now conducted on a negotiated basis; as such, proposals are evaluated to determine technical acceptability or unacceptability. See PM 4.1.4. "Responsiveness" and "nonresponsiveness," relevant to sealed-bid solicitations, are no longer proper terms to use in evaluating proposals under Postal Service procurements. See CFI, P.S. Protest No. 88-82, February 17, 1989.

However, despite the contracting officer's characterization, it is clear he found TLT's Hysunite roofing material did not meet the requirements of the solicitation, i.e., was technically unacceptable. This office will not substitute its judgment for that of the contracting officer or disturb his evaluation of an offer's technical acceptability unless it is shown to be arbitrary or in violation of procurement regulations. See Cohlmia Airline, Inc., P.S. Protest No. 87-41, October 30, 1987; H & B Telephone Systems, P.S. Protest No. 83-61, February 6, 1984. Our review of the contracting officer's acceptability/unacceptability determination only examines the contracting officer's evaluation to ensure it had a reasonable basis. Cohlmia, supra; Computer Systems & Resources, Inc., P.S. Protest No. 86-4, March 27, 1986.

Part 2-01 of the solicitation's Technical Specifications required the roofing material to be J.P. Stevens' hypalon or an approved equal manufactured by Harrtz-Mason & Burkeline; TLT's Goodyear Hysunite did not meet this requirement. Thus, the contracting officer's evaluation of TLT's proposed roofing as unacceptable had a reasonable basis and was not arbitrary. 5 Furthermore, the contracting officer was under no obligation to conduct discussions with TLT concerning roofing requirements, since PM 4.1.5 f.2. requires discussions to be held only when "there is uncertainty as to the pricing or technical aspects of the most favorable initial proposal . . . ." Although TLT's price was the most favorable received, there was no uncertainty about its technical proposal: it did not offer roofing materials that met the specification requirements.

Part 2-01's "approved equal" language works similarly to supply procurements which restrict award to approved sources. Such source restrictions are permissible in certain situations:

As a general rule, contracting officials may restrict the award of contracts to approved sources where it is necessary to ensure the procurement of satisfactory end products provided that, if time permits, other offerors are given the opportunity to qualify as alternate sources.

Illinois Lock Company, P.S. Protest No. 89-35, September 26, 1989. See also Interstate Diesel Services, Inc., Comp. Gen. Dec. B-230107, May 20, 1988, 88-1 CPD ô 480. 6

Even if the Brand Name Or Equal provision of the solicitation, K.6, could be read to allow substitution of roofing materials other than those manufactured by J.P. Stevens or Harrtz-Mason and Burkeline, TLT failed to submit the information required by Section K.6 to support its offer of an "equal" product. TLT failed to carry its burden under K.6 to demonstrate the Goodyear Hysunite roof was equal to those identified in the solicitation, and rejection of its offer for such failure alone would have been appropriate.

Had TLT offered a product meeting the requirements of the specifications, it still would have been rejected as nonresponsible. The roof warranty and installation license requirements of the Roof Replacement Qualifications section operate as definitive responsibility criteria: specific and objective standards established for measuring an offeror's ability to perform the contract. Elco Elevator Corporation, Comp. Gen. Dec. B-213519, B-213519.2, February 14, 1984, 84-1 CPD ô 197. These criteria cannot be waived, since to do so would prejudice other offerors who had fashioned their proposals around the criteria. Compo Corporation, P.S. Protest No. 88-22, May 3, 1988. See also Gage Constructors, P.S. Protest No. 87-11, July 13, 1987; Abco Peerless Sprinkler Corp., P.S. Protest No. 84-50, August 24, 1984.

If a protestor alleges misapplication of definitive responsibility criteria, our review is limited to determining whether the contracting officer had before him information from which he reasonably could have determined that the criteria wereor were not met. 7 Power Systems, Comp. Gen. Dec. B-210032, August 23, 1983, 83-2 CPD ô 232; accord Elco Elevator Corporation, supra. Here, the failure of TLT to meet the license and warranty requirements justified a determination that it was nonresponsible. That decision must be upheld.

The protest is denied.

William J. Jones
Associate General Counsel
Office of Contracts and Property Law
[checked against original JLS 5/25/93]

7/To the extent TLT's protest challenges the necessity or reasonableness of the criteria, it must be dismissed as untimely raised since not made before the due date for return of proposals. See footnote 5, supra.