## Facts

- NASA issued Request for Offers (RFO) No. 2-36632 (CDT) as a commercial-item procurement under FAR Part 12 to provide, design, and install a 360-degree rear-projection curved display system for air traffic control tower simulation.
- The RFO contemplated a brand-name-or-equal approach by identifying Electrohome Marquee 9501LC ACON projection systems and Optawave projection screens “or equal,” but the RFO did not include the standard FAR brand-name-or-equal clause warning offerors what information must be submitted to show equality.
- The RFO required offerors to submit detailed technical descriptions of offered items and to show that the projection screens, as installed, would have as little physical separation as possible, with minimal vertical mullions, so that screen edge lines would be difficult to see.
- The RFO stated award would be made to the responsible offeror submitting the lowest-priced, technically acceptable offer.
- NASA received six proposals. Access Logic submitted the lowest-priced proposal (approximately $665,901).
- NASA found Access Logic technically unacceptable and awarded to EISI as the lowest-priced, technically acceptable offer (approximately $773,168).
- NASA rejected Access Logic’s proposal for several reasons, including: (a) Access Logic stated the installed screens could have up to a three-quarter inch gap/mullion between screens; (b) Access Logic did not specify a “high” half-gain angle for screen brightness and proposed screens with gain higher than 4.0; (c) Access Logic did not provide documentation stating the automatic convergence feature would work in the rear-projection configuration; and (d) Access Logic did not include a list of key personnel (and NASA also raised concerns about service personnel information).
- Access Logic protested to GAO, arguing NASA used evaluation requirements that were not stated in the RFO.

## Issues

1. Whether NASA could reject an “equal” product as technically unacceptable based on screen characteristics (gain/half-gain angle) and mullion width limits that were not stated in the RFO.
2. Whether NASA could reject the proposal for lacking specific documentation about automatic convergence operation in rear projection when the RFO did not require that documentation.
3. Whether NASA could find the proposal unacceptable for failing to provide key personnel or service personnel information when the RFO did not require offerors to submit that information with their offers.

## Decision

- GAO sustained the protest.
- GAO found NASA’s rejection of Access Logic’s proposal was unreasonable because it relied on requirements and evaluation demands not conveyed by the RFO.
- GAO concluded the RFO did not set a specific maximum mullion width; it only required minimal mullions and minimal visible separation, and Access Logic’s proposal did not show it would fail those stated requirements.
- GAO concluded the RFO did not state a required half-gain angle and did not state that a gain of 4.0 could not be exceeded; therefore, NASA lacked a reasonable basis to reject Access Logic’s screens on those grounds.
- GAO concluded the lack of extra documentation about automatic convergence working on rear-projection screens did not justify rejection where the proposal stated the projectors included automatic convergence and did not take exception to rear projection.
- GAO concluded NASA could not reject the proposal for missing key personnel or service personnel information because the RFO did not require offerors to submit that information as part of technical acceptability (even though the RFO included a contract performance requirement for a service office within 100 miles).
- GAO recommended NASA terminate EISI’s contract (equipment had been delivered but not installed) and resolicit using a solicitation that clearly states NASA’s actual requirements.
- GAO recommended NASA reimburse Access Logic’s protest costs, including reasonable attorneys’ fees.

## Legal Principles

- In a brand-name-or-equal procurement, the agency must tell offerors what characteristics of the brand-name product are essential to the government’s needs; rejection of an “equal” item cannot rest on unstated characteristics.
- Agencies must evaluate offers using the requirements and criteria set out in the solicitation; they may not base technical unacceptability on standards communicated only during evaluation.
- General instructions to submit a technical description sufficient to evaluate compliance do not, by themselves, permit rejection based on specific technical thresholds or documentation demands that the solicitation does not state.
- Requirements framed as matters of contract performance (for example, maintaining a local service office) do not automatically become proposal submission requirements unless the solicitation says offerors must provide that information for evaluation.
- FAR Part 12 commercial-item procedures do not permit an agency to deny award to the low-priced offeror based on unstated minimum requirements in a lowest-priced, technically acceptable selection.

## Conclusion

GAO sustained Access Logic’s protest because NASA rejected the low-priced offer using screen mullion limits, gain/half-gain expectations, documentation demands, and staffing information requirements that were not stated in the RFO for this commercial-item, brand-name-or-equal procurement, and GAO recommended termination of the award to EISI, resolicitation with clearly stated requirements, and reimbursement of protest costs.


Matter of Access Logic, Inc., B-274748.2 (1997)