Wednesday, March 1, 2017

Navy Erred but Error Had No Impact on Solicitation

The U.S. Navy needed 270 gas stoves for base housing in Italy. Using FAR Part 12, Acquisition of Commercial Items, the Navy specified on a brand name or equal basis a model manufactured by Glem Gas and listed as salient characteristics a depth of 60 centimeters and internal volume of 95 liters. To be considered for award, offerors of equal products must include sufficient information to show that the offered items meet the salient characteristics listed in the solicitation. Award was to be made to the lowest-priced, technically acceptable basis.

The Navy received four quotations, all of which were technically acceptable. Gaeta, which submitted the lowest-priced quotation, offered an alternative stove that had a depth of 50 centimeters and an oven capacity of 92 liters. The Navy awarded the contract to Gaeta so Glen Gas who offered the lowest price for the Glen Gas stove, protested the award on the basis that Gaeta's proposed did not meet the solicitation's salient characteristics.Glen Gas argued that the Navy should have rejected Gaeta's quotation as technically unacceptable, because it failed to meet the dimensions and oven capacity specified in the solicitation for a non-brand name product.

The Navy acknowledged that Gaeta's product offered alternate depth and capacity but maintained that the deviations were minor and therefore inconsequential. The Navy stated that these "Insignificant differences would not impact the stove's performance capabilities - the two stoves would do the same job in a like manner with the same results." The Navy contended that since the stoves are functionally interchangeable and will perform identically, waiver of the two specifications was appropriate. The Comptroller General ruled the Navy was incorrect but its actions provided no basis to sustain Glem Gas' protest.

An agency can waive compliance with a material solicitation requirement in awarding a contract only if the award will meet the agency's actual needs without prejudice to other offerors. Competitive prejudice from such a waiver exists only where the requirement was not similarly waived for the protester, or where the protester would be able to alter its quotation to its competitive advantage if given the opportunity to respond to the relaxed term. The pertinent question here is whether Goem Gas would have submitted a different offer that would have had a reasonable possibility of being selected for award had it known that the requirement would be waived.

Although the Comptroller General agreed with Glem Gas that the Navy improperly waived the solicitation's salient characteristics, the CG also agreed with the Navy that the protester had not shown that it was prejudiced by the waiver. Glem Gas did not allege that it would nave quoted a lower price for its brand name model, or that it would have offered another similar product, if it had known that the Navy would waive the solicitations salient characteristics. Thus, the CG had no basis to sustain Glem Gas' protest.

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