Comptroller General

United States Government Accountability Office 

Washington, DC 20548 

of the United States

 

Decision 

Matter of: Nordic Air, Inc. 

File: B-400540 

Date: November 26, 2008 

Kevin P. Mullen, Esq., David E. Fletcher, Esq., Cooley Godward Kronish LLP, for the 

protester. 

David J. Taylor, Esq., William J. Spriggs, Esq., Katherine A. Allen, Esq., and Rachel W. 

McGuane, Spriggs & Hollingsworth, for the intervenor. 

Angela J. Cosentino, Esq., and Marvin D. Rampey, Esq., Department of the Navy, for 

the agency. 

Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the General 

Counsel, GAO, participated in the preparation of the decision. 

DIGEST 

Protest of agency’s award to firm that offered products that have not been assigned 

the national stock numbers (NSN) referenced in solicitation is denied where 

solicitation referenced NSNs for illustrative purposes to describe types of required 

items, along with list of salient characteristics of the items, and encouraged offerors 

to propose alternative terms and commercial items to meet solicitation’s 

requirements. 

DECISION 

Nordic Air, Inc., of West Geneva, Ohio, protests the award of a contract to Air Rover, 

Inc., of Tyler, Texas, under request for proposals (RFP) No. N00164-08-R-JS25, issued 

by the Department of the Navy, Naval Surface Warfare Center, Crane Division, 

Crane, Indiana, for environmental control units (ECU). Nordic contends that the Air 

Rover proposal failed to meet material solicitation requirements in that the awardee 

did not propose to provide ECUs with the same NSNs as those included in product 

descriptions under four contract line item numbers (CLIN) for various types and 

sizes of required ECUs. The protester, the only firm that manufactures ECUs with 

the NSNs referenced in the RFP, alleges that the agency improperly relaxed the 

RFP’s requirements for Air Rover by accepting its proposal of ECUs that have not 

been assigned the NSNs referenced in the RFP and thus will not comply with 

additional detailed specifications associated with the referenced NSNs. 

 
We deny the protest. 

The RFP sought proposals for a 5-year indefinite-delivery/indefinite-quantity contract 

for commercial and modified commercial item ECUs. RFP Product/Performance 

Specification at 3. The RFP listed five CLINS for ECUs; the specifications for the 

CLINS, which were set out by CLIN, in a chart attached to the RFP’s

product/performance specification, listed an NSN (without identifying a particular 

manufacturer or its part number), as well as 14 salient characteristics (including, for 

instance, descriptive information regarding type, size, weight, power, capacity, 

power cord length, and paint options); a sixth CLIN was provided for orders of 

modified ECUs. RFP, Attach. A. 

Award was to be made to the offeror that submitted the proposal deemed to be the 

most advantageous to the agency based solely on past performance and price, where 

past performance (with equally weighted subfactors for history of meeting required 

delivery schedules, and history of delivering quality products) was to be more 

important than price. RFP at 25. The RFP, which did not provide for the submission 

of technical proposals or sample products for evaluation, advised offerors that the 

agency sought commercial and modified commercial items meeting the RFP’s

requirements. Offerors were also advised that additional ECU specifications would 

be provided in the delivery orders issued by the agency for particular ECUs. RFP at 

17, 25, 39 and Product/Performance Specification at 3-4. All offerors were 

encouraged, pursuant to the “Instructions to Offerors--Commercial Items” clause of 

Federal Acquisition Regulation § 52.212-1, incorporated by reference into the RFP, to 

propose multiple offers of “alternative items and conditions or commercial items for 

satisfying the requirements of this solicitation.” RFP at 25. 

Five proposals were received in response to the RFP, including offers from Nordic 

and Air Rover. Nordic’s proposal offered the exact NSNs for the ECUs referenced in 

the RFP’s specification chart; Air Rover’s proposal, which did not take exception to 

any solicitation terms and requirements, offered ECUs that have not been assigned 

the NSNs referenced in the RFP. Past performance evaluations were conducted, 

which included information obtained from five past performance references for Air 

Rover that consistently rated the firm’s performance as highly favorable; available 

performance information for Nordic (which had previously provided ECUs to the 

agency) similarly indicated highly favorable performance. Considering the similarly 

favorable past performance ratings for the offerors, and the significantly lower price 

offered by Air Rover, the agency made award to that firm. This protest followed. 

Nordic generally argues that the award to Air Rover was improper because that firm 

failed to propose ECUs with the exact NSNs referenced in the RFP. In this regard, 

Nordic contends that the detailed specifications associated with the NSNs 

(exceeding product specifications provided in the RFP) were necessarily 

incorporated into the solicitation through the RFP’s listing of the NSNs. 

Page 2 B-400540 
The agency contends that Nordic’s interpretation of the RFP is unreasonable. The 

agency explains that the RFP merely referenced the NSNs available from Nordic as 

descriptive information to illustrate the type of product required under each CLIN. 

The agency’s requirements for the ECUs were described by a listing of 14 salient 

product characteristics to be met by the offerors’ products; according to the agency, 

there would have been no need for the list of salient characteristics under Nordic’s 

restrictive interpretation that only the exact NSNs referenced in the product 

description were sought by the agency. The agency also reports that the RFP 

encouraged the proposal of commercial items other than those referenced in the 

solicitation to satisfy the agency’s requirements, and that a technical evaluation of 

proposed products was not required for award. 

In negotiated procurements, a proposal that fails to comply with material terms of 

the solicitation should be considered unacceptable and may not form the basis for 

award. See Champion-Alliance, Inc., B-249504, Dec. 1, 1992, 92-2 CPD ¶ 386 at 3. We 

will not disturb an agency’s determination of the acceptability of a proposal absent a 

showing that the determination was unreasonable, inconsistent with the terms of the 

solicitation, or in violation of procurement statutes or regulations. Id. When a 

dispute exists as to the actual meaning of a solicitation requirement, our Office will 

resolve the matter by reading the solicitation as a whole and in a manner that gives 

effect to all provisions of the solicitation. See Media Funding, Inc. d/b/a Media 

Visions, Inc., B-265642; B-265642.2, Oct. 20, 1995, 95-2 CPD ¶ 185 at 3. Further, we 

will read a provision restrictively only where it is clear from the solicitation that such 

a restrictive interpretation was intended by the agency. Ampex Data Sys. Corp., 

B-248112, July 30, 1992, 92-2 CPD ¶ 71 at 4-5.

We find no support for Nordic’s restrictive interpretation that the RFP’s references 

to certain NSNs in effect required firms to offer only those products, or that the 

references served to incorporate additional detailed specifications or testing 

requirements associated with those NSNs into the solicitation’s requirements. As the 

agency points out, the RFP sought commercial item and modified commercial item 

ECUs with at least 14 listed salient characteristics. We find reasonable the agency’s 

position that the references to the NSNs, when the solicitation is read as a whole, 

merely provide further description of the type of products sought by the agency 

rather than constituting a mandatory requirement for each of the NSNs noted. As the 

agency points out, while the identified NSNs are the same as those assigned to the 

protester’s ECUs, the agency did not issue the solicitation on a brand name or equal 

basis for Nordic’s ECUs. Rather, salient characteristics for the units were listed and 

offerors were invited to propose items meeting the characteristics, or to propose 

alternative terms and commercial items to otherwise meet the agency’s needs. 

In conclusion, since we see no basis to conclude that the RFP’s NSN references 

limited offerors to proposing ECUs with those NSNs only, or that Air Rover’s failure 

to propose ECUs with those exact NSNs rendered its proposal unacceptable in any 

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way under the RFP, the protester’s challenges provide no basis to question the 

propriety of the award.

 1

The protest is denied. 

Gary L. Kepplinger 

General Counsel 

 1

 In its comments responding to the agency’s report on the protest, Nordic raises a 

number of issues which lack sufficient factual or legal support. For instance, the 

protester generally challenges a lack of documentation in the record regarding an 

apparent review by agency technical personnel of technical data submitted by Air 

Rover. The protester, however, has failed to show that any technical review by the 

agency was required for, or was a factor in, the award decision here. Rather, the 

record shows that the award determination was limited to the RFP’s stated 

evaluation criteria of past performance and price. Nordic similarly challenges the 

sufficiency of the documentation of the past performance evaluation. The record 

shows, however, that each of the five past performance references for Air Rover 

gave highly favorable performance reports for the firm under both evaluation 

subfactors; Nordic does not provide any basis to question the overall highly 

favorable past performance rating assigned to Air Rover’s proposal. Lastly, Nordic 

generally argues that, since it was unable to confirm from a review of Air Rover’s 

website whether the units proposed by that firm are available military ECUs, the 

commercial nature of the awardee’s products should be questioned. Because there 

is nothing in the record indicating that, prior to award, the contracting officer was on 

notice of facts which would lead to the conclusion that the item to be furnished was 

not in fact a commercial item, the contracting officer was not required to request 

additional information as argued by the protester, and could instead rely on Air 

Rover’s commercial item certification. Coherent, Inc., B-270998, May 7, 1996, 

96-1 CPD ¶ 214 at 3. 

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