B-163649, MAY 7, 1968

B-163649, MAY 7, 1968

TO EHRENREICH PHOTO-OPTICAL INDUSTRIES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 21, 1968, PROTESTING AGAINST THE AWARD OF A CONTRACT MADE TO ANOTHER OFFEROR UNDER REQUEST FOR PROPOSALS (RFP) NO. FPNHP-R-/HP/-94035-N, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA), FEDERAL SUPPLY SERVICE, PROCUREMENT OPERATIONS DIVISION, ON SEPTEMBER 20, 1967.

THE RFP CONTEMPLATED A DEFINITE QUANTITY CONTRACT FOR 440 KITS OF PHOTOGRAPHIC EQUIPMENT, CAMERA SETS, STILL PICTURE, 35 MM., FOR THE USE OF UNITED STATES ARMY INTELLIGENCE IN SOUTHEAST ASIA AND THE UNITED STATES. THE PROCUREMENT WAS NEGOTIATED UNDER THE AUTHORITY OF SECTION 302/C) (10) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 41 U.S.C. 252/C) (10), WHICH AUTHORIZES THE NEGOTIATION OF CONTRACTS WHERE IT IS IMPRACTICABLE TO SECURE COMPETITION. IN THIS CONNECTION, IT HAD BEEN DETERMINED PRIOR TO THE ISSUANCE OF RFP -94035-N THAT THERE WERE ONLY TWO CAMERAS WHICH HAD ALL THE FEATURES REQUIRED BY THE UNITED STATES ARMY ELECTRONICS COMMAND, THE REQUISITIONING AGENCY, AND THAT FORMAL ADVERTISING WAS NOT PRACTICAL OR FEASIBLE. ONE OF THOSE IS THE NIKON "F.' WITH PHOTOMIC "T" BODY, MANUFACTURED BY NIPPON KOGAKU, INC., OF JAPAN, AND DISTRIBUTED IN THE UNITED STATES BY YOUR FIRM. THE OTHER IS THE TOPEON SUPER "D," PRODUCED BY TOKYO OPTICAL COMPANY AND DISTRIBUTED IN THE UNITED STATES BY THE CHARLES BESELER COMPANY. FOR THAT REASON, ITEM IA OF THE RFP CALLED FOR AND SPECIFIED THE NIKON "F.' WITH PHOTOMIC "T" BODY AND ATTACHMENTS, AND ITEM IB CALLED FOR AND SPECIFIED THE TOPCON SUPER "D" AND ATTACHMENTS. ITEM IA DESCRIPTION REFERENCED YOUR FIRM AND ITEM IB REFERENCED THE BESELER FIRM.

YOU SUBMITTED AN OFFER TO SUPPLY ITEM IA FOR $202,400, WHICH QUOTATION WAS SUBSEQUENTLY REDUCED TO $176,668.80. HOWEVER, IN A COVERING LETTER DATED SEPTEMBER 25, 1967, SUBMITTED WITH AND REFERENCED TO YOUR OFFER, YOU STATED THAT YOU WERE OFFERING TO SUPPLY THE NIKON "F.' WITH A PHOTOMIC TN METER, RATHER THAN THE REQUESTED PHOTOMIC "T" METER. IN THIS RESPECT, YOU STATED THAT THE CURRENT UNIT BEARING THE TN METER OFFERED SUFFICIENT IMPROVEMENTS SO AS TO SUPERSEDE THE "T" METER AND YOU WERE THEREFORE PHASING OUT THE "T" METER. FOR REASONS WHICH WILL BE HEREINAFTER STATED, THE REQUISITIONING AGENCY DETERMINED THAT YOUR OFFER UTILIZING THE TN METER WAS UNACCEPTABLE AND FOR THAT REASON YOUR PROPOSAL WAS REJECTED BY THE PROCUREMENT ACTIVITY. YOU PROTEST AGAINST SUCH ACTION ON THE BASIS THAT AWARD WAS MADE TO A HIGHER OFFEROR AND THAT THE MODEL CAMERA YOU OFFERED IS THE CURRENT MODEL WHICH IS "IDENTICAL AND CAN BE USED INTERCHANGEABLY" WITH THE MODEL SPECIFIED IN ITEM IA OF RFP 94035-N.

WITH REGARD TO YOUR CONTENTIONS, IT IS REPORTED THAT AFTER RECEIPT OF YOUR OFFER (INCORPORATING THE TN METER) INQUIRY WAS MADE BY GSA AS TO WHETHER YOUR FIRM COULD SUPPLY THE CAMERA WITH A "T" METER AS DESCRIBED IN THE RFP. BY LETTER OF OCTOBER 11, 1967, YOU ADVISED GSA THAT THE "T" METER WAS NO LONGER BEING PRODUCED AND THAT YOUR REMAINING SUPPLY OF THE "T" METER HAD BEEN SOLD TO DEALERS. YOU ALSO STATED THAT "WHILE WE HAVE ANNOUNCED THE TN METER, WE HAVE NOT ANNOUNCED THE DISCONTINUANCE OF THE T METER. SINCE THERE REMAINS SOME -T- UNITS IN THE HANDS OF OUR DEALERS, WE CERTAINLY WILL NOT TAKE STEPS TO UNDERMINE THEIR POTENTIAL SALES OF THESE UNITS.'

IN VIEW OF YOUR POSITION, GSA ASKED THE REQUISITIONING AGENCY WHETHER THE NIKON "F.' WITH PHOTOMIC TN METER OFFERED BY YOU WOULD BE ACCEPTABLE. RESPONSE THERETO, GSA WAS ADVISED BY THE REQUISITIONING AGENCY, THE UNITED STATES ARMY ELECTRONICS COMMAND, THAT THE ALTERNATE TN METER UNIT WAS NOT ACCEPTABLE FOR THE FOLLOWING TECHNICAL REASONS:

"ANALYSIS OF TECHNICAL NON-ACCEPTABILITY OF THE PHOTOMIC TN FINDER METER

"1. REFERENCE IS MADE TO COPY OF COMMERCIAL OPERATING INSTRUCTIONS FOR THE PHOTOMIC TN FINDER-METER, ATTACHED.

"2. THE PHOTOMIC TN FINDER-METER IS UNACCEPTABLE TO THE ARMY BECAUSE OF THE FOLLOWING REASONS:

"A. THE REQUIRED MODE OF OPERATION IS OBJECTIONABLY COMPLEX, ESPECIALLY IN VIEW OF THE PECULIAR OPERATING PROCEDURE REQUIREMENTS OF THE USER AS INDICATED IN PARAGRAPH 2F, BELOW:

"B. THE COMPLETE OPERATING INSTRUCTIONS FOR THE NIKON F CAMERA WITH PHOTOMIC T FINDER REQUIRED 43 PAGES. THE OPERATING INSTRUCTIONS FOR THE TN FINDER ALONE REQUIRES A 34 PAGE MANUAL. WHEN COMBINED WITH THE SEPARATE 35 PAGE INSTRUCTION BOOK FOR THE CAMERA, THE COMPLETE CAMERA AND FINDER OPERATING INSTRUCTIONS TOTAL 69 PAGES.

"C. THE SECTION, -INFLUENCE BY FINDER SCREEN- (PAGES 14 AND 15 OF REFERENCED INSTRUCTIONS) INDICATES THAT OF 231 COMBINATIONS OF LENSES AND FOCUSING (FINDER) SCREENS, 125 ARE LISTED AS NOT USABLE. THE REMAINING 106 COMBINATIONS REQUIRE THE PHOTOGRAPHER'S REFERENCE TO THE CHART FOR DETERMINATION OF THE TYPE AND DEGREE OF COMPENSATION NECESSARY TO EFFECT PROPER EXPOSURE DETERMINATION.

"D. THE USE OF EXTREMELY LONG FOCAL LENGTH LENSES WITH THE RANGE FINDER (TWO-PRISM) FOCUSING SCREEN REQUIRED BY THE USER WILL RESULT IN SERIOUS EXPOSURE ERROR. THIS IS CAUSED BY AT LEAST ONE-HALF OF THE RANGE-FINDER PORTION OF THE SCREEN -BLACKING OUT- WHEN LONG FOCAL LENGTH LENSES ARE USED. SINCE THE RANGEFINDER SECTION OCCUPIES THE CENTER PORTION OF THE SCREEN, AND THE TN UNIT BASES 60 PERCENT OF THE EXPOSURE DETERMINATION ON THE 12MM DIAMETER CENTER OF THE SCREEN, INTOLERABLE OVER-EXPOSURE WILL OCCUR.

"E. THE INSTRUCTIONS INDICATE THAT 300MM IS THE MAXIMUM FOCAL LENGTH LENS CAPABLE OF BEING USED WITH THE TN FINDER. ALTHOUGH 135MM IS THE LONGEST FOCAL LENGTH LENS BEING OBTAINED ON THIS PROCUREMENT, THE USER HAS A CONTINUING (AND A TO BE EXPANDED) NEED FOR LENSES UP TO, AND GREATER, THAN, 1200MM FOR CERTAIN TYPES OF ASSIGNMENTS. SINCE THESE LONGER LENSES ARE ISSUED TO MEET SPECIALIZED NEEDS, THE CAMERAS AND IN THIS INSTANCE, THE ASSOCIATED FINDER-METERS - MUST BE CAPABLE OF UTILIZING SUCH LENSES (THE T FINDER WAS SUITABLE FOR USE BY THE ENTIRE LINE OF NIKON LENSES INCLUDING -ZOOM- AND 1200MM).

"NOTE: PREVIOUS STATEMENTS OF USER-REQUIRED CAMERA CHARACTERISTICS IGNORED THIS REQUIREMENT SINCE BOTH -ACCEPTABLE- MAKES HAD THIS CAPABILITY. IT COULD NOT BE FORESEEN THAT A MANUFACTURER WOULD DELETE THIS CAPABILITY FROM HIS -IMPROVED- MODEL.

"F. THE USER INDIVIDUALLY ISSUES MANY OF THESE CAMERAS TO EMPLOYEES WHO ARE NATIONALS OF OTHER COUNTRIES. BECAUSE OF LANGUAGE DIFFICULTIES, CAMERA OPERATING INSTRUCTIONS MUST BE SUPPLIED IN THE LANGUAGE UNDERSTOOD BY THE SPECIFIC CAMERA RECIPIENT. THE INCREASED SIZE OF THE INSTRUCTION BOOKS REQUIRED FOR THE CAMERA WITH THE TN FINDER WOULD PLACE AN INORDINATE BURDEN ON THE TRANSLATORS IN VIEW OF THE MANY DIFFERENT LANGUAGES INVOLVED. IT SHOULD BE NOTED THAT REGARDLESS OF NATIONALITY, THE RECIPIENTS OF THIS CAMERA EQUIPMENT ARE NOT EXPERT PHOTOGRAPHERS, BUT IN EFFECT, AMATEURS WHO MERELY USE THE CAMERAS AS AN ADJUNCT TO, OR A TOOL FOR, THEIR ASSIGNED DUTIES. THEREFORE THEY MAY NOT BE EXPECTED TO HAVE BEEN EXPOSED TO BUT THE MOST RUDIMENTARY PHOTOGRAPHIC TRAINING. MANY TIMES, THEIR ONLY KNOWLEDGE IS THAT GLEANED FROM THE INSTRUCTION MANUAL ACCOMPANYING THE CAMERA GIVEN THEM.

"G. THE INSTRUCTIONS INDICATE THE TN FINDER'S FORTE IS THOSE SITUATIONS IN WHICH THE MAIN OBJECT IS IN THE CENTER OF THE FIELD OF VIEW. SPECIAL PRECAUTIONS AND THE NECESSARY COMPENSATIONS FOR ALL OTHER CIRCUMSTANCES OCCUPY PAGES 14, 15, 19, 20, 21, 25, 26, 27, 29, 30 AND 31 OF THE INSTRUCTIONS. BY COMPARISON, ONLY HALF OF ONE PAGE OF THE T INSTRUCTIONS COVERED THE SPECIAL PRECAUTIONS AND THE COMPENSATION REQUIRED WHEN THE T FINDER WAS USED.

"H. THE GEOMETRY OF THE T AND TN DESIGNS IS SUCH THAT LIGHT CAN ENTER THE FINDER THROUGH THE OCULAR (EYE LENS) AND IMPINGE UPON THE METER-READ SCREEN. THIS WILL OCCUR WHEN THE PHOTOGRAPHER WEARS GLASSES, OR ANY OTHER CAUSE PREVENTS THE SEALING OF THE OCULAR TO LIGHT COMING FROM ITS -WRONG- SIDE. SINCE THE METER CALIBRATION IS DESIGNED TO READ ONLY THAT LIGHT TRANSMITTED BY THE OBJECTIVE (TAKING LENS) ANY EXTRANEOUS LIGHT ON THE SCREEN HAS AN ADVERSE EFFECT ON THE ACCURACY OF THE EXPOSURE DETERMINATION. HOWEVER, SINCE THE T FINDER WAS AN OVER-ALL AVERAGING SYSTEM, THE DEGREE OF ERROR WAS SUFFICIENTLY SMALL THAT IT DID NOT CAUSE TOO GREAT AN EXPOSURE DETERMINATION PROBLEM. ON THE OTHER HAND, THE TN - WEIGHTED-AVERAGE- FINDER BASES 60 PERCENT OF THE EXPOSURE DETERMINATION ON THE 12MM DIAMETER CENTER AREA OF THE SCREEN. SINCE IT IS THIS AREA WHICH IS MOST AFFECTED BY THE EXTRANEOUS LIGHT ENTERING THROUGH THE OCULAR, A WEIGHTED READING WOULD ACCENTUATE THE ERROR TO AN INTOLERABLE DEGREE.

"3. BECAUSE OF THE FOREGOING, IF THE TN FINDER HAD BEEN THE ITEM OFFERED BY THE MANUFACTURER AT THE TIME WHEN THE LIST OF USER-APPROVED CAMERAS WAS PROMULGATED, THE NIKON F CAMERA AND ITS ASSOCIATED ACCESSORIES WOULD NOT HAVE BEEN INCLUDED IN THE LIST FURNISHED GSA FOR THIS PROCUREMENT.'

FOLLOWING RECEIPT OF THIS INFORMATION, GSA MADE AWARD TO THE CHARLES BESELER COMPANY ON DECEMBER 28, 1967, AND WE ARE ADVISED THAT THE SUPPLIES INVOLVED WERE INSPECTED ON FEBRUARY 28, 1968, AND WERE DELIVERED TO THE UNITED STATES ARMY. PAYMENT FOR THE CAMERA KITS WAS MADE ON MARCH 5, 1968.

YOUR CONTENTIONS HAVE REFERENCE TO THE ALLEGED SUPERIOR TECHNICAL ASPECTS OF THE PHOTOMIC TN METER AS AGAINST THE PHOTOMIC "T" METER. IN THIS REGARD, IN OUR DECISION B-139830 DATED AUGUST 19, 1959, WE MADE THE FOLLOWING OBSERVATION:

"THIS OFFICE HAS NEITHER AN ENGINEERING STAFF NOR A TESTING LABORATORY TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATIONS. MOREOVER, IN DISPUTES OF FACT BETWEEN A PROTESTANT AND A GOVERNMENT AGENCY, WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT. WHETHER A PARTICULAR BID IS RESPONSIVE TO THE TECHNICAL DETAILS OF THE SPECIFICATIONS IS NOT A MATTER, ORDINARILY, FOR OUR DETERMINATION. * *

MOREOVER, THE DRAFTING OF PROPER SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT AND TO DETERMINE FACTUALLY WHETHER EQUIPMENT OFFERED IN RESPONSE THERETO MEETS THOSE SPECIFICATIONS IS PRIMARILY THE RESPONSIBILITY OF THE PROCUREMENT ACTIVITY. SEE 17 COMP. GEN. 554; 19 ID. 587; AND 40 ID. 35. THERE IS NO REQUIREMENT THAT THE GOVERNMENT PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING OFFERORS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE USING ACTIVITY, REASONABLY MEET THE ACTIVITY'S NEED.