B-163649, MAR. 17, 1969

B-163649, MAR. 17, 1969

TO MR. SECRETARY:

BY LETTERS DATED AUGUST 16, 1968, AND DECEMBER 18, 1968, FILE AMSEL PP- PI, THE UNITED STATES ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY, FURNISHED THE GENERAL SERVICES ADMINISTRATION (GSA) WITH REPORTS CONCERNING OUR RECONSIDERATION OF A PROTEST BY EHRENREICH PHOTO-OPTICAL INDUSTRIES, INC., WHICH WAS THE SUBJECT OF OUR DECISION B-163649, MAY 7, 1968.

OUR DECISION, A COPY OF WHICH IS ENCLOSED, WAS CONCERNED WITH A COORDINATED PROCUREMENT BY THE GSA FEDERAL SUPPLY SERVICE OF CERTAIN PHOTOGRAPHIC EQUIPMENT FOR THE ELECTRONICS COMMAND UNDER REQUEST FOR PROPOSALS (RFP) NO. FPNHP-R-/HP/-94035-N. THE PROCUREMENT WAS NEGOTIATED UNDER 41 U.S.C. 252 (C) (10), WHICH AUTHORIZES NEGOTIATION WHERE IT IS IMPRACTICABLE TO OBTAIN COMPETITION. THE RFP, IN ACCORDANCE WITH A FORMAL "FINDINGS AND DETERMINATION" BY THE CHIEF, PHOTOGRAPHIC AND REPRODUCTION EQUIPMENT SECTION, RESTRICTED ACCEPTABLE CAMERA KITS TO THE NIKON "F" WITH ATTACHMENTS AND THE TOPCON SUPER "D" WITH ATTACHMENTS. EHRENREICH IS THE UNITED STATES DISTRIBUTOR FOR THE NIKON "F" CAMERA KIT. ITS OFFER, HOWEVER, WAS REJECTED BECAUSE IT OFFERED A PHOTOMIC TN" FINDER-METER AS AN ATTACHMENT RATHER THAN THE PHOTOMIC "T" FINDER-METER SPECIFIED IN THE RFP DESCRIPTION, AND AWARD WAS MADE TO CHARLES BESELER COMPANY, THE UNITED STATES DISTRIBUTOR OF THE TOPCON SUPER "D" KIT, AT A PRICE HIGHER THAN THAT OFFERED BY EHRENREICH.

THE SUBSTANCE OF OUR DECISION, BRIEFLY, WAS THAT THE REJECTION BY ELECTRONICS COMMAND TECHNICAL EVALUATORS OF THE EHRENREICH PROPOSAL ON THE BASIS THAT THE EQUIPMENT OFFERED BY EHRENREICH WAS NOT THE SAME AS THAT CALLED FOR IN THE RFP WAS A DISCRETIONARY ACT NOT SUBJECT TO QUESTION BY OUR OFFICE. WHILE THE CONTRACT AWARDED UNDER THE RFP HAS BEEN LONG SINCE PERFORMED, ADDITIONAL INVESTIGATION BY GSA, UNDERTAKEN AS A RESULT OF THE SUBMISSION BY A CONGRESSIONAL SOURCE, OF A DETAILED REBUTTAL BY EHRENREICH OF THE REASONS ADVANCED BY THE ELECTRONICS COMMAND FOR PROPOSAL REJECTION HAS REVEALED SERIOUS DEPARTURES FROM GOOD PROCUREMENT PRACTICES AND AN APPARENT LACK OF COOPERATION ON THE PART OF THE ELECTRONICS COMMAND WHICH WE FEEL SHOULD BE BROUGHT TO YOUR ATTENTION TOWARD THE END THAT SIMILAR DEVIATIONS BE AVOIDED IN THE FUTURE.

UPON RECEIPT OF THE EHRENREICH REBUTTAL FROM OUR OFFICE, GSA TRANSMITTED IT TO THE ELECTRONICS COMMAND, THE USING ACTIVITY, BY LETTER DATED JULY 11, 1968, FOR A REPORT. THE GIST OF THE EHRENREICH REBUTTAL WAS THAT NOT ONLY WAS THE "TN" FINDER-METER BETTER THAN THE "T" MODEL, BUT THAT THE REASONS LISTED AS CAUSING THE "TN" MODEL TO BE TECHNICALLY INFERIOR APPLIED AS WELL TO THE TOPCON SUPER "D". THE ELECTRONICS COMMAND REPLY, DATED AUGUST 16, 1968, LIMITED ITS COMMENTS TO AN EXPOSITION OF THE DIFFERENCES BETWEEN THE "T" AND "TN" FINDER METERS, BUT DID NOT ADDRESS ITSELF TO THE QUESTION OF WHETHER OR NOT THE "TN" METER WOULD, IN FACT, MEET THE MINIMUM NEEDS OF THE GOVERNMENT, OR WHETHER THE NIKON "F" CAMERA KIT WITH THE "TN" METER WAS SUBSTANTIALLY EQUAL TO OR BETTER THAN THE TOPCON SUPER "D" , AS ALLEGED BY EHRENREICH. BY LETTER DATED AUGUST 21, 1968, TO THE ELECTRONICS COMMAND, THE CHIEF COUNSEL, PROCUREMENT POLICY AREA, GSA, REQUESTED ADDITIONAL INFORMATION WITH SPECIFIC REFERENCE TO THESE QUESTIONS. PERTINENT PARTS OF THAT LETTER ARE SET OUT BELOW: "ALTHOUGH YOUR LETTER APPEARS TO ADDRESS ITSELF TO THE DIFFERENCES BETWEEN THE NIKON -F- PHOTOMIC -TN- UNIT OFFERED BY EHRENREICH AND THE NIKON -F- PHOTOMIC -T- UNIT WHICH THE RFP INDICATED WAS ACCEPTABLE, EHRENREICH'S COMPLAINT IS THAT THE UNIT IF OFFERED IS JUST AS GOOD IN CERTAIN SPECIFIED RESPECTS AS THAT WHICH WAS OFFERED BY BESELER AND PROCURED UNDER THE SOLICITATION. "FOR EXAMPLE, UNDER STATEMENT -B-, EHRENREICH CLAIMS THAT THE BESELER TOPCON SUPER INSTRUCTION BOOK CONTAINS 115 PAGES AS COMPARED WITH A TOTAL OF 66 PAGES OF INSTRUCTIONS FOR THE NIKON -F- AND THE PHOTOMIC -TN- FINDER-METER. I THINK THAT THIS IS THE ALLEGATION WHICH NEEDS TO BE ANSWERED. "EHRENREICH'S COMPLAINT WITH RESPECT TO STATEMENT - C- SEEMS TO BE THAT A NUMBER OF THE FOCUSING SCREENS OF THE CAMERA UNIT WHICH WAS PROCURED DO NOT PROVIDE MAXIMUM PERFORMANCE. IN THIS REGARD, ALTHOUGH IT IS NOT ENTIRELY CLEAR, EHRENREICH'S CLAIM SEEMS TO BE THAT THE UNIT IT OFFERED WAS JUST AS EFFICIENT IN THIS REGARD AS BESELER-S. "WITH RESPECT TO STATEMENT -D-, IT APPEARS THAT EHRENREICH ALLEGES THAT THE BESELER CAMERA UNIT IS SUBJECT TO THE SAME -BLACK-OUT- CHARACTERISTIC AS THE NIKON -F- UNIT, BUT THAT THE -BLACK-OUT- ON THE NIKON -F- WITH THE -TN - METER DOES NOT AFFECT THE METER READING. "EHRENREICH ALLEGES AS AN ANSWER TO STATEMENT -E- THAT THE -TN- METER IS USEABLE WITH ALL FOCAL LENGTH LENSES UP TO 1200MM. YOUR LETTER MERELY STATES THAT THE SOURCE OF MR. BRILLER'S INFORMATION WAS THE INSTRUCTION BOOKS PUBLISHED BY EHRENREICH. IT WOULD SEEM THAT IN ADDITION TO A PAGE AND TITLE REFERENCE, A STATEMENT SHOULD BE INCLUDED WITH REGARD TO THE ALLEGATIONS THAT THE -TN - METER IS USEABLE WITH ALL FOCAL LENGTH LENSES UP TO 1200MM, AND THAT THE TOPCON SUPER -D- LISTS AS THE LONGEST LENS THE 300MM. IF EHRENREICH'S CLAIMS IN THIS AREA ARE CORRECT, THEN IT WOULD SEEM THAT THE UNIT IT OFFERED MAY BE SUPERIOR, IN THIS AREA AT LEAST, TO THE UNIT WHICH WAS PROCURED.

* * * * * * * "ALTHOUGH IT IS NOT ENTIRELY CLEAR, IT APPEARS THAT EHRENREICH'S ALLEGATIONS WITH RESPECT TO STATEMENT -G- ARE (1) THAT THE - SPECIAL PRECAUTIONS' LISTED ARE NOT REALLY SPECIAL PRECAUTIONS BUT ONLY - TIPS' TO BE FOLLOWED UNDER UNIQUE CIRCUMSTANCES AND (2) THAT THE INSTRUCTION BOOK FOR THE BESELER UNIT LISTS SPECIAL PRECAUTIONS ON NINE DIFFERENT PAGES. THESE, IT WOULD SEEM, ARE THE CLAIMS THAT REQUIRE ANSWER. "FINALLY, WITH REGARD TO STATEMENT -H-, EHRENREICH CLAIMS THAT THE PROBLEM OF THE ENTRANCE OF LIGHT IS SHARED UNDER EXTREME CONDITIONS AND TO THE SAME EXTENT EQUALLY BY THE NIKON -F- AND THE TOPCON SUPER D-. THIS IS THE CLAIM THAT REQUIRES ANSWER RATHER THAN THE DIFFERENCE BETWEEN THE -T- AND -TN- UNITS, ALTHOUGH THOSE DIFFERENCES MAY BE RELEVANT TO SOME EXTENT.'

NO REPLY WAS RECEIVED BY GSA FROM THE ELECTRONICS COMMAND UNTIL DECEMBER 18, 1968, A PERIOD OF ALMOST FOUR MONTHS. THE QUESTIONS PROPOUNDED BY GSA WERE ANSWERED IN THE DECEMBER 18 LETTER AS FOLLOWS: "IN ANSWER TO YOUR SPECIFIC QUESTIONS, THE FOLLOWING INFORMATION IS SUBMITTED:

"A. THE NUMBER OF PAGES CONTAINED IN THE BESELER AND EHRENREICH INSTRUCTION BOOKS AS WELL AS THE NUMBER OF FOCUSING SCREEN LENS COMBINATIONS DEEMED USABLE IN EACH CAMERA WERE UNNECESSARY COMPARISONS MADE BY OUR TECHNICAL PERSONNEL.

"B. UPON RE-EXAMINATION IT APPEARS THAT THE -BLACK-OUT- CHARACTERISTIC DOES NOT AFFECT METER READINGS.

"C. THE LISTING OF USABLE LENSES WAS NOT COMPLETE IN THE MANUALS. THE COMPARISON OF THE VARIOUS LENSES WAS NOT REQUIRED TO ESTABLISH THAT A DIFFERENT CAMERA WAS OFFERED BY EHRENREICH. HOWEVER, IT DOES APPEAR THAT OTHER SPECIAL LENSES NOT LISTED IN THE MANUAL FOR THE -TN- FINDER MAY BE USED.

"D. WITH REGARD TO -TIPS' AND -SPECIAL PRECAUTIONS-, THE NUMBER OF PAGES OF MATERIAL ARE ACTUALLY A SECONDARY CONSIDERATION, BEING LARGELY THE DECISION OF THE AUTHOR AS TO HOW MUCH DETAIL SHOULD BE PRESENTED.

"E. OUR RE-EXAMINATION HAS SHOWN THAT EXTRANEOUS LIGHT CAN AFFECT THE READING OF THE BESELER TOPCON SUPER -D- AND NIKON -F- PHOTOMIC -TN CAMERAS. "IN VIEW OF THE ABOVE, IT IS REITERATED THAT THE EHRENREICH TN- UNIT OFFERED WAS EVALUATED AGAINST THE EHRENREICH -T- UNIT SOLICITED. THE EHRENREICH CAMERA OFFERED IS DIFFERENT THAN THE EHRENREICH CAMERA SOLICITED. IT IS UNFORTUNATE THAT IN REACHING THIS CONCLUSION, THE TECHNICAL ANALYSIS ADDRESSED CERTAIN AREAS THAT IN RETROSPECT ARE NOT SUPPORTABLE. HOWEVER, ALTHOUGH EHRENREICH WAS -NOT RESPONSIVE- ON THIS RFP, THIS HAS NO BEARING ON THEIR EQUIPMENT PER SE, NOT ON THEIR CAPABILITY TO MEET FUTURE REQUIREMENTS OF THE DEPARTMENT OF THE ARMY.' THE CLEAR IMPORT OF THIS LETTER, IN OUR ESTIMATION, IS THAT THE TECHNICAL EVALUATION, AT LEAST IN THE AREAS COMMENTED ON, WAS ERRONEOUS. THAT IS, THE REASONS LISTED AS RENDERING THE "TN" METER UNACCEPTABLE HAD NO REAL BEARING ON THE ABILITY OF THE "TN" METER TO FUNCTION AS REQUIRED BY THE RFP. ALSO, NO CONSIDERATION WAS GIVEN TO THE QUESTION OF WHETHER THE "TN" METER, ALTHOUGH ADMITTEDLY DIFFERENT THAN THE "T" METER, WOULD PERFORM AS WELL, OR BETTER, THAN THE THE "T" METER, OR THAN THE TOPCON SUPER "D" KIT. THE SOLE CRITERION FOR REJECTION SEEMS TO HAVE BEEN THAT THE "TN" METER WAS NOT THE ONE SPECIFIED IN THE RFP.

AS STATED IN OUR PRIOR DECISION, THE DRAFTING OF SPECIFICATIONS TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT AND THE DETERMINATION OF WHETHER EQUIPMENT OFFERED, IN FACT, MEETS THE SPECIFICATIONS IS PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCIES. THE DISCHARGE OF THAT RESPONSIBILITY, HOWEVER, NECESSARILY INCLUDES AN OBJECTIVE AND CAREFUL DETERMINATION OF WHAT THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT ARE. THE CASE AT HAND, IT NOW SEEMS CLEAR THAT THE MINIMUM NEEDS OF THE GOVERNMENT WOULD HAVE BEEN MET BY THE "TN" METER AS WELL AS BY THE "T" METER, AND THAT AWARD THEREFORE WAS MADE TO THE HIGHER OF TWO ACCEPTABLE OFFERORS.

FURTHER, INASMUCH AS THE PROCUREMENT HERE INVOLVED WAS NEGOTIATED RATHER THAN ADVERTISED, WE THINK THAT THE STATEMENT OF THE ELECTRONICS COMMAND THAT THE EHRENREICH PROPOSAL WAS "NOT RESPONSIVE" , WAS INAPPROPRIATE AND INDICATES A LACK OF A CLEAR UNDERSTANDING OF THE DISTINCTION BETWEEN ADVERTISING AND NEGOTIATION. WHILE THE RULES OF FORMAL ADVERTISING ARE RATHER STRICT AND RIGID, AND WOULD REQUIRE REJECTION AS NONRESPONSIVE OF A BID NOT MEETING ALL OF THE INVITATION SPECIFICATIONS, THE RULES APPLICABLE TO NEGOTIATION ARE BY DESIGN MORE FLEXIBLE AND CONTEMPLATE THAT PROPOSAL DEVIATIONS BE RESOLVED WHERE POSSIBLE BY DISCUSSIONS BETWEEN THE PARTIES. ACCORDINGLY, OUTRIGHT REJECTION OF THE EHRENREICH "TN" PROPOSAL AS NONRESPONSIVE, WITHOUT ANY DISCUSSIONS, WAS INAPPROPRIATE IN THE ABSENCE OF A DETERMINATION, IN ACCORDANCE WITH ASPR 3-805.1, THAT EHRENREICH WAS NOT WITHIN A COMPETITIVE RANGE TECHNICALLY. SINCE THERE IS NOW LITTLE DOUBT THAT EHRENREICH WAS ACTUALLY WELL WITHIN A COMPETITIVE RANGE TECHNICALLY, IT APPEARS THAT THE REJECTION OF THE EHRENREICH PROPOSAL AS "NOT RESPONSIVE" WAS IMPROPER.

FINALLY, SINCE OUR OFFICE BY NECESSITY MUST RELY ON THE REPORTS OF THE ADMINISTRATIVE AGENCIES INVOLVED IN BID PROTEST MATTERS, IT IS OF THE UTMOST IMPORTANCE THAT THOSE REPORTS BE TIMELY AND THAT THEY BE RESPONSIVE TO THE PROTEST. IN THE CASE AT HAND, THE INITIAL REPORT, AS DISCUSSED ABOVE, DID NOT ADEQUATELY RESPOND TO THE SUBJECT MATTER OF THE EHRENREICH REBUTTAL COMMENTS, AND THE SECOND REPORT WAS DELAYED FOR A SEEMINGLY UNREASONABLE TIME. IN OUR OPINION, THE FACT THAT THE CONTRACT INVOLVED HAD ALREADY BEEN PERFORMED DID NOT JUSTIFY THE FAILURE ON THE PART OF THE ELECTRONICS COMMAND TO SUBMIT A TIMELY, RESPONSIVE REPORT.

WHILE NO ACTION IS POSSIBLE AT THIS TIME TO RECTIFY THE DEVIATIONS FROM GOOD PROCUREMENT PRACTICE OUTLINED ABOVE, THE MATTER IS BROUGHT TO YOUR ATTENTION, AS MENTIONED EARLIER, IN THE HOPE THAT FUTURE SIMILAR SITUATIONS WILL BE AVOIDED.