_________________________
 
                       DENIED: December 16, 1993
                       _________________________
 
                             GSBCA 12636-P
 
 
                          RMTC SYSTEMS, INC.,
 
                                                Protester,
 
                                   v.
 
                        DEFENSE MAPPING AGENCY,
 
                                                Respondent.
 
 
        Jeff Stollman, President of RMTC Systems, Inc., Boulder, CO,
   appearing for Protester.
 
        Edward  J. Obloy, J.  Timothy Thompson, and  Denise Webster,
   Office  of Associate  General  Counsel, Defense  Mapping  Agency,
   Bethesda, MD, counsel for respondent.
 
   Before Board Judges HENDLEY, NEILL, and GOODMAN. 
 
   HENDLEY, Board Judge.
 
        The  protester, RMTC Systems, Inc. (RMTC) protests the award
   of three contract line item numbers (CLINs 008, 009, and 0010) to
   another offeror.   The parties  elected to have the  Board decide
   the merits of  the protest on the  record pursuant to Rule  11 of
   the Board's Rules of Procedure.  We deny the protest.
 
                            Findings of Fact
 
        1.   The respondent, the Defense  Mapping Agency, issued the
   request  for  proposals (RFP)  in  August  1993  to  some  ninety
   potential offerors.  Protest File,  Exhibit 1; Declaration of the
   Contracting  Officer    3  (Nov. 16,  1993).    Eighteen offerors
   submitted proposals.  Protest File, Exhibit 5.
 
        2.  The procurement was  for commercial off the shelf (COTS)
   automatic data  processing items  and was  conducted pursuant  to
   Defense Federal Acquisition Regulation Supplement (DFARS) Subpart
   211.70,  Contracting for Commercial Items.  Protest File, Exhibit
   1; Declaration of  the Contracting Officer   3.  The solicitation
   contained  DFARS clause 252.211-7014  entitled "Contract  Award -
   Commercial Items (May 1991)," which states:
 
             a. The Government will evaluate offers in response
        to invitations  for  bid without  discussions and  will
        award  a  contract  to the  responsible  offeror  whose
        offer,  conforming to  the  solicitation, will  be most
        advantageous to the  Government considering only  price
        and  the  price   related  factors  specified   in  the
        solicitation.[foot #] 1
 
             b.  The Government will award a contract resulting
        from a request for proposals to the responsible offeror
        whose offer conforming to the solicitation will be most
        advantageous to the Government, price and other factors
        specified  in   the  solicitation,  considered.     The
        Government intends to  award a contract on the basis of
        initial  offers received in  response to a  request for
        proposals  without discussions  unless discussions  are
        necessary.    Therefore,  the  offeror's initial  offer
        should  contain the offeror's  best terms from  a price
        and technical standpoint.  
 
             c.  The Government may:
 
             (1)  Reject any and  all offers if  such
                  action is in the public interest;
 
             (2)  Accept other than the lowest offer;
                  and,
 
             (3)  Waive   informalities   and   minor
                  irregularities in offers received.
 
   Protest File, Exhibit 1 at 36. 
 
        3.  No discussions were conducted with any offerors pursuant
   to the  solicitation.   Declaration of  the Contracting  Officer.
   Award of  CLIN 0008 was made to Microland Electronics Corporation
   (Microland) in the  total amount of $910.   The protester's price
   for this CLIN was $702.  Award  of CLIN 0009 was made to Computer
   Literacy  World,  Inc. in  the  total  amount  of $10,556.    The
   protester's price for  this CLIN was $10,504.  Award of CLIN 0010
   was  made  to  Comark,  Inc.  in  the  amount  of  $4,563.    The
   protester's  price  for this  CLIN  was  $3,939.   Protest  File,
   Exhibits 3, 8, 9, 10; Declaration of the Contracting Officer. 
 
        4.  In its October  12, 1993 protest, the protester contends
   that it should have been awarded CLINS 0008, 0009, and 0010 under
   the solicitation because it was the lowest priced offeror.  
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1     Paragraph (a) of the clause can only apply to
   a sealed bid procurement, i.e., one involving  an "invitation for
   bid".
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   CLIN 0010
 
 
        5.    The  solicitation included  the  clause  entitled "New
   Material, Commercial Items (May 1991)," which states:
 
        The offeror  represents that, unless  this solicitation
        specifies otherwise, the  items to  be furnished  under
        this contract  are new and  are not  of such age  or so
        deteriorated  as to impair  their usefulness or safety.
        If  the  offeror  believes   that  furnishing  used  or
        reconditioned items  or components thereof  will be  in
        the Government's interest, the  offeror shall so notify
        the  Contracting  Officer in  writing.   The  offeror's
        notice  shall include the reasons for the request along
        with a proposal for any consideration to the Government
        if the Contracting  Officer authorizes the use  of used
        or reconditioned items or components.
 
   Protest File,  Exhibit 1 at  30 (emphasis added).   The requiring
   activity, the Defense  Mapping School, required new  material for
   the items being procured.  Declaration of Major Carmack (Nov. 15,
   1993).  The  Contracting Officer never authorized other  than new
   material  for CLIN 0010.   Declaration of the Contracting Officer
     7.   All awards made pursuant to  the solicitation were for new
   material.  Id.  
 
        6.   In  its  proposal,  the protester  stated  that it  was
   offering  refurbished  material  for CLIN  0010.    Protest File,
   Exhibit  3.   The  protester  had not  complied  with the  notice
   requirements  of the New  Material, Commercial Items  clause, and
   hence had not obtained approval for supplying refurbished or used
   material.  Declaration of the Contracting Officer   7.
 
        7.   The technical  evaluation of  the protester's  proposal
   found its offer on CLIN 0010 technically unacceptable because  it
   offered refurbished  material whereas  new material was  required
   and the  Contracting Officer  had not  authorized other  than new
   material.     Protest  File,   Exhibit  3;  Declaration   of  the
   Contracting  Officer     7;    Declaration   of  Major   Carmack.
   Moreover, in this negotiated procurement, the Contracting Officer
   saw no advantages to accepting used material.  Declaration of the
   Contracting Officer    6, 7.   Thirteen new  printers with  a two
   year warranty were offered by Comark for a total  cost of $4,563,
   whereas the protester offered thirteen refurbished  printers with
   a one year  warranty for a total cost of $3,939 with a savings of
   only $48 per  printer.   The term  refurbished   does not have  a
   precise meaning and can have a  range of meanings in the industry
   from cleaning to complete overhaul.  The cost  savings of $48 per
   printer with only a one year warranty
   did  not outweigh the risks  involved in accepting used equipment
   particularly in a  setting where equipment downtime  is critical.
   Declaration of Major Carmack.
 
   CLIN 0009
 
        8.   The solicitation required brand name or equal items for
   CLINS numbered 0001,  0005, 0009, 0010, and 0011.   Protest File,
   Exhibit 1.   The solicitation set forth NEC 5FG as the brand name
   for CLIN 0009.  The  protester offered an RMTC 17  color  monitor
   for  CLIN 0009.  Id., Exhibit 3 at  3.  The protester's offer for
   CLIN 0009 was $52 lower than the awarded price.  Id., Exhibits 3,
   9.    Award was  made  to  Computer  Literacy World,  which  also
   received the award for CLIN 0007.  Id., Exhibits 6-7.
 
        9.   Section C  of the  solicitation set  forth the  salient
   characteristics  required of items  offered as  equal.    Protest
   File, Exhibit 1 at 6.  The solicitation incorporated by reference
   DFARS 252.210-7000  clause entitled  "Brand Name  or Equal  (Dec.
   1991)."[foot #] 2    Id.   at  36.     In  addition,  Section   L
   of the solicitation states that:
 
        The technical proposal shall  contain sufficient detail
        to indicate the  proposed means for complying  with all
        applicable  requirements  of  this solicitation.    The
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 2     DFARS 252.210-7000 states, in pertinent part,
   as follows:
 
        (b)  To  be considered  for  award, offers  of  "equal"
        products  including  products  (other  than the  "brand
        name" item) of the brand name manufacturer, must - 
 
        (1)  Meet the salient  physical, functional, and  other
        characteristics specified in this solicitation;
 
        (2)  Clearly identify the item by - 
 
        (i)  Brand name, if any; and 
 
        (ii) Make or model number;
 
        (3)  Include  descriptive  literature   such  as  cuts,
        illustrations,   drawings,   or  clear   reference   to
        previously  furnished descriptive  data or  information
        available to the Contract Officer; and 
 
        (4)  Clearly  describe  any modifications  the  Offeror
        plans to make in  a product to  make it conform to  the
        solicitation  requirements.     Mark   any  descriptive
        material to clearly show the modifications.
 
        (c)  The  Contracting  Officer  will  evaluate  "equal"
        products on the  basis of information furnished  by the
        Offeror  or identified  in  the  offer  and  reasonably
        available to the Contracting Officer.   The Contracting
        Officer is not responsible for locating or securing any
        information not identified in the offer and  reasonably
        available.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        proposer  shall   provide  all   necessary  descriptive
        information for items  being offered as  equal   to the
        CLINS   specified  in   Section   B   and  C,   hereof.
        Specifically, [sic] shall  include information required
        to determine acceptability of the product being offered
        as meeting the  specification and to  establish exactly
        what the offeror proposes to furnish.  This may include
        information such as illustrations, drawing or brochures
        which  show the characteristics  and explains (sic) the
        item being offered by the proposer.
 
   Id. at 38.
 
        10.  The item proposed  by the protester  for CLIN 0009  was
   found technically  unacceptable because the  technical evaluation
   team was  unable to determine  if the offered product  would meet
   the  requirements  of  the solicitation.    Declaration  of Major
   Carmack.  The  protester failed to submit  descriptive literature
   for CLIN 0009.  Id.   The protester's proposal parroted some, but
   not all,  of the salient  characteristics listed in section  C of
   the  solicitation.   Protest  File, Exhibit  3  at 3.   The  item
   proposed  did  possess  digital  controls,  one  of  the  salient
   characteristics required for CLIN 0009.  Id.
 
        11.  The  information submitted  by  the protester  for CLIN
   0009 failed to demonstrate that the item offered was equal to the
   brand  name.    Protest File,  Exhibit  3;  Declaration  of Major
   Carmack.  The protester's submission of an informal typed section
   called   Notes   did   not  constitute  descriptive   literature.
   Protest  File, Exhibit  3.   The protester  failed to  identify a
   model number for the monitor being offered  under CLIN 0009.  Id.
   The protester  misidentified itself  as the  manufacturer of  the
   monitor for  CLIN  0009.   In  short, the  RMTC  brand name  item
   offered by the protester is  a made-up model number consisting of
   some  unknown  and  unidentified  item  manufactured  by  another
   company.   Protester's Response  to Respondent's First  Discovery
   Request.  
 
        12.  The solicitation  incorporated by reference  the clause
   at  FAR 52.215-34  entitled "Evaluation  of  Offers for  Multiple
   Awards (Mar 1990)," set out below:
 
             In  addition to  other  factors,  offers  will  be
        evaluated on the basis of advantages  and disadvantages
        to  the Government that  might result from  making more
        than one award  (multiple awards).  It  is assumed, for
        the purpose of evaluating proposals, that $500 would be
        the administrative cost  to the Government  for issuing
        and  administering  each  contract awarded  under  this
        solicitation  and individual  awards shall  be  for the
        items  or  combinations  of items  that  result  in the
        lowest aggregate cost to  the Government, including the
        assumed administrative costs.
   FAR 52.215-34.  Even if  protester s offer on CLIN 0009  had been
   found   technically   acceptable,    factoring   in   the    $500
   administrative cost  to the  Government in  accordance with  this
   clause, the  Contracting Officer  determined that  award of  CLIN
   0009  to  the protester  would  not be  in  the  interest of  the
   Government.  
 
   CLIN 0008
 
 
        13.  The  protester's   offer  for   CLIN  0008   was  found
   technically acceptable and was the lowest priced, being $208 less
   than  that of  Microland Electronics  Corp.,  which received  the
   award for that  item as well as  an award for three  other items.
   Protest File,  Exhibits 3,  6, 7;  Declaration of Major  Carmack.
   However,  the  protester's  offer  for CLIN  0008  could  not  be
   accepted  because, factoring in  the $500 administrative  cost to
   the Government in accordance with  the clause results in an award
   to Microland  Electronics Corp.  being most  advantageous to  the
   Government.   Protest  File, Exhibits  6, 7;  Declaration of  the
   Contracting Officer   9.
 
                               Discussion
 
        The protester alleged  in its October 12,  1993 protest that
   it should have received the awards for CLINS 0008, 0009, and 0010
   because it was the low priced offeror for these three CLINs. 
 
        For CLIN 0009 the protester  offered an item purported to be
    equal  to the brand name.   The solicitation specified "NEC 5FG"
   as the  brand name  color monitor.   The protester  offered "RMTC
   17 " color monitor.   The protester failed to identify a  make or
   model number  for the  monitor being offered  as required  by the
   "brand name or equal" clause.  The protester misidentified itself
   as the manufacturer of the item.  In its proposal for  CLIN 0009,
   the protester, RMTC, stated that RMTC was the manufacturer of the
   item proposed, "RMTC 17 ".  The protester, RMTC, is a distributor
   not a manufacturer.   Therefore, the protester  failed to specify
   the  manufacturer  as  required  by  the solicitation.    In  its
   response to  interrogatories concerning CLIN  0009, the protester
   stated that RMTC  is not "aware of the  ultimate manufacturers of
   the monitors."    RMTC  then lists  the  manufacturers  which  it
   "utilized  to  fulfill  the  requirement for  CLIN  0009."    The
   protester s  proposal parroted some  but not  all of  the salient
   characteristics  listed in the  solicitation.  The  protester did
   not  meet  the  salient   characteristics  required  for  digital
   controls.    No  descriptive  literature  was  submitted  by  the
   protester for CLIN 0009, and  the information which it did submit
   failed to demonstrate that the item offered was  in fact equal to
   the brand name. 
 
        The standard Brand Name or  Equal clause provides that where
   an offeror submits an "equal" product, the offeror is required to
   submit  the relevant details concerning that product.  Subsection
   (b) predicates  acceptance of an  "equal" product for  award upon
   the product meeting  the salient physical, functional,  and other
   characteristics  specified  in  the  solicitation.    Along  with
   including the  brand name, if any,  of the equal product  and its
   make/model  number,  the  offeror is  also  required  to "include
   descriptive literature such as  cuts, illustrations, drawings, or
   a clear  reference to  previously furnished  descriptive data  or
   information  available  to  the  Contracting   Officer."    Under
   subsection  (c),  the  Government  is  to  evaluate  the  product
   identified on "information furnished by the Offeror or identified
   in   the  offer  and  reasonably  available  to  the  Contracting
   Officer."   Subsection (c) further provides that the "Contracting
   Officer  is  not   responsible  for  locating  or   securing  any
   information  not   identified  in   the   offer  and   reasonably
   available."  The protester did not  provide a brand name, make or
   model number for the product it  offered.  It did not submit  any
   descriptive literature or information other than its "Notes," nor
   did  it  make  reference  to  any  information  available  to the
   Contracting  Officer.[foot #] 3      For   these   reasons,   the
   respondent's rejection was proper.
 
 
        The  protester s  proposal  re  CLIN  0010  was  technically
   unacceptable   because  it   offered  refurbished   material  not
   authorized by the  solicitation.  The  instant case falls  within
   our holding in  Federal Systems Group, Inc.,  GSBCA 11461-P, 92-1
   BCA   24,591, 1991 BPD   316 (1991).  In that case, the procuring
   activity  had issued a solicitation for 152 microcomputer systems
   and  related  maintenance.   FAR  52.210-5  clause  entitled "New
   Material" was included in the solicitation.  There the protester,
   Federal  Systems  Group,  Inc.  (FSG),  had  noted  a  "standard,
   boilerplate" exception stating, inter alia, that  "[n]ew machines
   .  .  . may  contain  some serviceable  used parts"  and  that it
   understood "that the Government will accept an OEM certificate of
   maintainability   as   verification   that   the   equipment   is
   reconditioned/refurbished  and/or  warranted   the  same  as  new
   equipment .  . . ."  Id.  at 122,694, 1991 BPD   316  at 4-5.  We
   held  that the  offending  language  included  by  the  protester
   effectively  took exception  to a  mandatory  requirement of  the
   solicitation that new equipment be  offered.  We noted that "[a]n
   offeror simply cannot exempt itself from a requirement and expect
   to be found eligible for award."  Id. at 122,696, 1991 BPD    316
   at 7 (citations omitted).
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 3     RMTC has  twice before engaged this  Board on
   the issue concerning the sufficiency  of its proposals.  In GSBCA
   10163-P, 90-1 BCA   22,281, this Board rejected RMTC s contention
   that it  need not  submit descriptive  literature to  demonstrate
   compliance with the agency s requirements.  In GSBCA 11450-P, 92-
   1 BCA   24,592,  this Board rejected RMTC s submission of "Notes"
   as   insufficient  to  satisfy   all  the  requirements   of  the
   solicitation.  This Board stated that the government had properly
   concluded  that  RMTC s  notes  did  not  constitute  descriptive
   literature.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        If  "boilerplate" language such  as that in  Federal Systems
   Group is sufficient to constitute an  exception to a solicitation
   requirement  for  new  equipment, then  surely,  the  protester's
   handwritten  offer of "refurbished" printers for CLIN 0010 in the
   instant case constituted  an exception to a  material requirement
   of  the  solicitation.     This  exception  rendered   the  offer
   unacceptable.    Accordingly,  the Contracting  Officer  properly
   rejected the protester's offer for this item.
    
        Although,  the   protester's  proposal  re  CLIN   0008  was
   technically acceptable and was  the lowest priced for  that item,
   when  factoring in the $500 administrative  cost of awarding this
   CLIN to  the protester,  an award  to the  protester was not  the
   lowest cost alternative and would  have violated the terms of the
   solicitation  governing  the  evaluation   of  proposals.     The
   protester's  price for  CLIN 0008  was only  $208 lower  than the
   awarded price to Microland, which  had received an award of other
   items.  Furthermore, the same is  true with regard to CLIN  0009,
   even if  the "or equal" item  proposed by the protester  had been
   technically acceptable.   Factoring  in  the $500  administrative
   cost to  the Government, it  would not have been  the lowest cost
   alternative  because the protester's price for that item was only
   $52 less than the price awarded to Computer Literacy World, which
   also received award for other items. 
 
                               Decision 
 
        The protest is DENIED.    
 
 
 
                                      ________________________
                                      JAMES W. HENDLEY
                                      Board Judge
 
   We concur:
 
 
 
   ________________________           ________________________
   EDWIN B. NEILL                     ALLAN H. GOODMAN
   Board Judge                        Board Judge