B-160234, JAN. 16, 1967

B-160234, JAN. 16, 1967

TO VIEWLEX, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE REJECTION OF YOUR BID TO SUPPLY FILM STRIP PROJECTORS UNDER INVITATION FOR BIDS NO. FPNHP-X- 88331-A-8-29-66 ISSUED BY THE PROCUREMENT OPERATIONS DIVISION, FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION ON AUGUST 8, 1966.

THESE FILM STRIP PROJECTORS ARE A PORTION OF SPECIALLY ADAPTED TRAINING AIDS REQUISITIONED BY THE OFFICE OF EDUCATION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE TO INITIATE A PROGRAM ENTITLED THE CAPTIONED FILMS PROGRAM, FOR ADVANCING THE EDUCATION OF THE DEAF WITH THE AID OF NEW TECHNIQUES AND EQUIPMENT. THIS PROGRAM, WHICH WAS ORIGINALLY SCHEDULED TO BEGIN IN SEPTEMBER OF 1966, REQUIRED FILM STRIP PROJECTORS WITH A COMBINATION OF FEATURES NOT AVAILABLE ON EITHER THE PROJECTORS DESCRIBED IN THE APPLICABLE FEDERAL SPECIFICATION, GG-P-671C OF APRIL 13, 1960, OR ON ANY KNOWN COMMERCIAL FILM STRIP PROJECTOR. IN ORDER TO OBTAIN A SUITABLE MACHINE STAFF MEMBERS OF THE OFFICE OF EDUCATION, IN CONJUNCTION WITH TECHNICAL PERSONNEL FROM GRAFLEX, INCORPORATED, OF ROCHESTER, NEW YORK, REDESIGNED A STANDARD GRAFLEX MODEL TO MEET THE NEEDS OF THE CAPTIONED FILMS PROGRAM. THIS MACHINE WAS DESIGNATED GRAFLEX MODELSM-400- RC.

WHEN THIS REQUISITION WAS FORWARDED TO THE GSA, THE SPECIAL FEATURES OF THE PROJECTOR WERE STUDIED, AND, AFTER CONSULTATION BETWEEN THE INTERESTED PARTIES, A PURCHASE DESCRIPTION WAS DRAFTED WHICH BOTH RETAINED THE ESSENTIAL CHARACTERISTICS OF THE NEWLY DEVELOPED GRAFLEX MACHINE, SUCH AS THE FORWARD AND REVERSE REMOTE CONTROL DEVICE, AND ELIMINATED NONESSENTIAL RESTRICTIONS WHICH MIGHT BE PECULIAR TO GRAFLEX, SUCH AS THE TEN POUND MAXIMUM WEIGHT LIMIT.

RECOGNIZING THAT, BECAUSE SOME ONE THOUSAND PROJECTORS WERE INVOLVED IN THIS PROCUREMENT, OTHER MANUFACTURERS MIGHT BE INTERESTED IN MODIFYING THEIR STANDARD PROJECTORS TO CONFORM WITH THE NEWLY DEVELOPED GRAFLEX MODEL SM-400-RC, THE INVITATION LISTED OVER A PAGE AND ONE-HALF OF THE SALIENT FEATURES FOR THE PROJECTOR. IN AN ATTEMPT TO EMPHASIZE THE THOUGHT THAT PROPERLY MODIFIED COMPETITIVE MACHINES WERE ACCEPTABLE, THE PURCHASE DESCRIPTION ENDED BY MENTIONING A NUMBER OF BRANDS WHICH WERE SUBSTANTIALLY EQUAL TO THE BASIC GRAFLEX PROJECTOR, AND ALSO INDICATED THAT ALL PROJECTORS OFFERED HAD TO BE EQUAL TO THE GRAFLEX MODEL SM-400- RC, IN THE FOLLOWING WORDS:

"PROJECTORS TO BE FURNISHED SHALL BE EQUAL TO GRAFLEX, INC., MODEL SM 400 RC, BELL AND HOWELL CO., MODEL 745 SERIES, VIEWLEX MODELS, STANDARD PROJECTOR AND EQUIPMENT MODELS, ETC., MODIFIED AS NECESSARY TO MEET THE ABOVE DESCRIBED SALIENT FEATURES.'

THE INVITATION FOR BIDS THUS DRAFTED WAS ISSUED AUGUST 8, 1966, SEEKING BIDS ON, AMONG OTHER ITEMS, 1,000 FILM STRIP PROJECTORS, 500 OF WHICH WERE TO BE AWARDED UNDER A PARTIAL SMALL BUSINESS SET-ASIDE.

ON AUGUST 22, 1966, PRIOR TO BID OPENING, YOUR FIRM WROTE GSA SUGGESTING THAT THE REQUIREMENTS BE MODIFIED TO ELIMINATE TWO FEATURES WHICH YOU CONSIDERED OFFERED NO ADVANTAGE OVER THE COMPARABLE FEATURES ON YOUR STANDARD MODELS, AND YOU WERE ADVISED BY LETTER OF AUGUST 24, 1966, THAT THE GSA COULD NOT ALTER THE PURCHASE DESCRIPTION TO COMPLY WITH YOUR REQUEST.

AT BID OPENING, VIEWLEX, INCORPORATED, THE ONLY SMALL BUSINESS BIDDER, WAS LOW AT $73.80 EACH, WHILE GRAFLEX WAS NEXT AT $86 EACH. VIEWLEX'S BID SPECIFIED "MODEL NO. V-22R," BUT IT CONTAINED NO DESCRIPTIVE MATERIAL OF ANY TYPE INDICATING JUST WHAT WAS BEING OFFERED. ACCORDING TO THE GSA REPORT OF DECEMBER 5, 1966, THE DATA IN THE POSSESSION OF THE GSA AT THAT TIME CONCERNED ONLY THOSE VIEWLEX MACHINES WHICH WERE DESCRIBED AS SATISFYING FEDERAL SPECIFICATION GG-P 671C OF APRIL 13, 1960. HOWEVER, A PROJECTOR WHICH MEETS THOSE SPECIFICATIONS WOULD NOT MEET THE PURCHASE DESCRIPTION IN THE SUBJECT INVITATION, FOR THEY ARE CONTRADICTORY IN SOME PARTICULARS. THE GSA FURTHER INFORMS US THAT THE PURCHASING PERSONNEL WHO EVALUATED VIEWLEX'S BID HAD NO OTHER MATERIAL, LITERATURE OR CATALOGUES AVAILABLE AT THAT TIME BY WHICH THEY COULD JUDGE COMPLIANCE OF VIEWLEX MODEL NO. V-22R WITH THE PURCHASE DESCRIPTION.

THEREFORE, VIEWLEX'S BID WAS DETERMINED TO BE NONRESPONSIVE FOR FAILURE TO SUBMIT DESCRIPTIVE MATERIAL ON THEIR MODEL V-22R, OR, IF IT WAS THEIR INTENT TO MODIFY AN EXISTING MODEL TO CONFORM TO THE SPECIFIED ESSENTIAL CHARACTERISTICS, FOR FAILURE TO SUBMIT SPECIFIC INFORMATION REGARDING SUCH MODIFICATIONS; ALL AS REQUIRED BY ARTICLE 24 OF GSA FORM 1424, INCORPORATED BY REFERENCE IN THE INVITATION FOR BIDS. THE AWARD FOR THE NONRESTRICTED PORTION OF THE PROCUREMENT WAS MADE TO GRAFLEX ON OCTOBER 4, 1966.

AS THERE WERE NO RESPONSIVE BIDS FROM A SMALL BUSINESS CONCERN, THE SET- ASIDE WAS DISSOLVED AND, BECAUSE THE PROGRAM WAS THEN A MONTH BEHIND SCHEDULE, THE 500 PROJECTORS THEN REMAINING WERE REISSUED AS REQUEST FOR PROPOSALS FPNHP-X-88331-N-10-28-66 ON OCTOBER 18, 1966. THIS REQUEST, AS AMENDED, PROVIDED FOR A PARTIAL SMALL BUSINESS SET ASIDE OF 250 UNITS AND WAS NEGOTIATED UNDER THE AUTHORITY CONTAINED IN 41 U.S.C. 252 (C) (2). THE PURCHASE DESCRIPTION INCLUDED WITH THIS REQUEST WAS DRAFTED IN ESSENTIALLY THE SAME MANNER AS THE ONE IN THE INVITATION WHICH PRECEDED IT, WITH THE EXCEPTION OF THE LAST SENTENCE WHICH READ:

"* * * PROJECTORS TO BE FURNISHED SHALL BE GRAFLEX, INC., MODEL SM 400 RC, OR EQUAL.'

VIEWLEX RESPONDED TO THIS REQUEST AS IT HAD TO THE INVITATION, BY OFFERING ITS MODEL V-22R. ON THE BASIS OF INFORMATION OBTAINED THROUGH NEGOTIATION, AS SET OUT IN VIEWLEX'S LETTER OF NOVEMBER 16, 1966, AND THAT LETTER'S SUPPLEMENT DATED NOVEMBER 21, 1966, THE CONTRACTING OFFICER DETERMINED THAT VIEWLEX'S PROJECTOR, AS MODIFIED, WAS EQUAL TO THE SPECIFIED GRAFLEX MODEL NO. SM-400-RC, AND THATVIEWLEX'S OFFER WAS THEREFORE RESPONSIVE TO THE REQUEST FOR PROPOSALS.

VIEWLEX'S OFFER, ALTHOUGH RESPONSIVE, WAS NOW $83.80 PER UNIT AND NO LONGER LOW, SO AWARD OF THE UNRESTRICTED 250 PROJECTORS WAS MADE TO GRAFLEX AT $72 PER UNIT. BECAUSE VIEWLEX REFUSED TO MEET THIS PRICE, AWARD OF THE RESTRICTED PORTION WAS ALSO MADE TO GRAFLEX, THE ONLY OTHER OFFEROR, AT ITS PRICE OF $72 PER UNIT.

YOUR PROTEST CENTERS UPON THE INTERPRETATION OF THE LAST SENTENCE IN THE ORIGINAL PURCHASE DESCRIPTION, WHICH REQUIRED THE PROJECTOR BE "EQUAL TO GRAFLEX, INC., MODEL SM 400 RC, * * *, VIEWLEX MODELS, * * * MODIFIED AS NECESSARY TO MEET ABOVE DESCRIBED SALIENT FEATURES.' . . .

IN THIS REGARD, YOUR LETTER OF OCTOBER 17, 1966, STATES:

"DETAILED TECHNICAL OR PERFORMANCE SPECIFICATIONS WERE MADE PART OF THE SPECIFICATIONS. THE LAST SENTENCE OF THE COMPREHENSIVE SPECIFICATIONS INCLUDED SPECIFIC NAMES AND TYPES OF EQUIPMENT CONSIDERED ACCEPTABLE.

"* * * WE BID STRICTLY IN ACCORDANCE WITH THE IFB, IE, TO SPECIFICATIONS AND ON "AN EQUAL" BASIS. THE FACT IS THAT WE BID ON A VIEWLEX MODEL AND SINCE THE LAST STATEMENT OF THE VERY FULLY DETAILED SPECIFICATIONS LISTED VARIOUS ACCEPTABLE ITEMS AND SPECIFICALLY "VIEWLEX MODELS" THERE WAS NO FURTHER REQUIREMENT FOR US TO FURNISH ANY ADDITIONAL INFORMATION. PROCUREMENT REGULATIONS CLEARLY STATE THAT "IN THE ABSENCE OF SUCH INFORMATION, IT IS UNDERSTOOD THAT THE BIDDER IS OFFERING THE ITEM AS SPECIFIED.'

"GSA FORM 1424, SEPTEMBER 1964, SUPPLEMENTAL PROVISIONS, SPECIFICALLY STATES IN PARAGRAPH 25. BIDDER-SPECIFIED BRAND NAMES "WHERE DETAILED SPECIFICATIONS ARE SHOWN OR REFERRED TO IN THE INVITATION FOR BIDS, INSERTION OF BRAND NAMES AND NUMBERS BY THE BIDDER WILL, UNLESS OTHERWISE STATED BY THE BIDDER, BE UNDERSTOOD TO MEAN THAT THE ARTICLES SO OFFERED FULLY COMPLY WITH THE SPECIFICATION REQUIREMENTS.'"

WHILE THE PAGE AND A HALF OF DESCRIPTIVE MATERIAL LISTING THE SALIENT FEATURES OF THE DESIRED PROJECTOR MIGHT, BECAUSE OF ITS LENGTH AND COMPLETENESS, IN SOME WAYS RESEMBLE A SPECIFICATION, THE LAST SENTENCE, UPON WHICH YOU PLACE GREAT STRESS, STATES ACCEPTABLE PROJECTORS "SHALL BE EQUAL TO" THE NAMED GRAFLEX MODEL, OR THE OTHER BRANDS AFTER SUITABLE MODIFICATION. ALTHOUGH IT IS TRUE THAT THE RUNNING TOGETHER OF THE ONE PARTICULAR MAKE AND MODEL WHICH ALONE SATISFIES THE PURCHASE DESCRIPTION INTO A LIST OF MAKES WHICH WITH APPROPRIATE ALTERATIONS SHOULD SATISFY THE PURCHASE DESCRIPTION WAS ADMITTEDLY CONFUSING, WE DO NOT THINK IT CHANGED THE NATURE OF THIS PROCUREMENT FROM A BRAND NAME OR EQUAL PURCHASE INTO A PURCHASE ACCORDING TO SPECIFICATIONS.

THE FACT THAT THE LAST SENTENCE OF THE PURCHASE DESCRIPTION DOMINATED THE LISTING OF DESIRED CHARACTERISTICS AS THE "ABOVE DESCRIBED SALIENT FEATURES" IS AN INDICATION THAT THE INVITATION WAS TO BE A BRAND NAME OR EQUAL PROCUREMENT AND NOTHING YOU HAVE OFFERED IN YOUR LETTERS CONCERNING THIS PROCUREMENT HAS OVERCOME THIS PRIMA FACIE INTERPRETATION.

AS A BRAND NAME OR EQUAL PROCUREMENT, PARAGRAPH 24 OF GSA FORM 1424 OF SEPTEMBER 1964, SUPPLEMENTAL PROVISIONS, ENTITLED "GOVERNMENT SPECIFIED BRAND NAMES" IS CONTROLLING, RATHER THAN PARAGRAPH 25,"BIDDER SPECIFIED BRAND NAMES," AS YOU CONTEND. IF PARAGRAPH 25 IS INAPPLICABLE, MERE SUBMISSION OF A BRAND NAME AND MODEL NUMBER WILL NOT SUFFICE, FOR THE BIDDER DOES NOT THEREBY ASSUME THE RESPONSIBILITY OF DETERMINING WHETHER THE ITEM OFFERED FULLY COMPLIES WITH THE SPECIFICATIONS. RATHER, UNDER PARAGRAPH 24, THE BRAND NAME OR EQUAL PROCEDURE, THE GOVERNMENT HAS THE RESPONSIBILITY OF DETERMINING WHETHER A PROFERRED ITEM IS EQUAL TO THE NAMED BRAND AND MODEL WHICH HAS ALREADY BEEN DETERMINED AS SATISFYING THE MINIMUM NEEDS OF THE GOVERNMENT. THEREFORE, THE GOVERNMENT MUST HAVE IN ITS POSSESSION BY BID OPENING AT THE LATEST THE PERTINENT INFORMATION BY WHICH IT CAN EVALUATE BRANDS OFFERED ON AN OR-EQUAL BASIS. THIS IS CLEARLY SPELLED OUT IN SECTION C OF PARAGRAPH 24, WHICH READS:

"/C) (1) IF THE BIDDER PROPOSES TO FURNISH AN "EQUAL" PRODUCT, THE BRAND NAME, IF ANY, OF THE PRODUCT TO BE FURNISHED SHALL BE INSERTED IN THE SPACE PROVIDED IN THE INVITATION FOR BIDS, OR SUCH PRODUCT SHALL BE OTHERWISE CLEARLY IDENTIFIED IN THE BID. THE EVALUATION OF BIDS AND THE DETERMINATION AS TO EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE GOVERNMENT AND WILL BE BASED ON INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN HIS BID AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. CAUTION TO BIDDERS. THE PURCHASING ACTIVITY IS NOT RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH IS NOT IDENTIFIED IN THE BID AND REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. ACCORDINGLY, TO INSURE THE SUFFICIENT INFORMATION IS AVAILABLE, THE BIDDER MUST FURNISH AS A PART OF HIS BID ALL DESCRIPTIVE MATERIAL (SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER INFORMATION) NECESSARY FOR THE PURCHASING ACTIVITY TO (I) DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE INVITATION FOR BIDS AND (II) ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. THE INFORMATION FURNISHED MAY INCLUDE SPECIFIC REFERENCES TO INFORMATION PREVIOUSLY FURNISHED OR TO INFORMATION OTHERWISE AVAILABLE TO THE PURCHASING ACTIVITY.

"/2) IF THE BIDDER PROPOSES TO MODIFY A PRODUCT SO AS TO MAKE IT CONFORM TO THE REQUIREMENTS OF THE INVITATION FOR BIDS, HE SHALL (I) INCLUDE IN HIS BID A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS AND (II) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS.

"/3) MODIFICATIONS PROPOSED AFTER BID OPENING TO MAKE A PRODUCT CONFORM TO A BRAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BIDS WILL NOT BE CONSIDERED.'

THE WORDS "VIEWLEX MODELS" WERE INSERTED IN THE PURCHASE DESCRIPTION IN THE LISTING OF BRANDS WHICH MIGHT BE SATISFACTORY, IF PROPERLY MODIFIED. IT DOES NOT APPEAR REASONABLE TO INTERPRET THE SENTENCE AS MEANING THAT ANY AND ALL EXISTING "VIEWLEX MODELS" WOULD MEET THE REQUIREMENTS ESPECIALLY IN VIEW OF THE LIST OF SALIENT FEATURES (SPECIAL REQUIREMENTS) WHICH WERE NOT AVAILABLE ON ANY OF THE KNOWN VIEWLEX MODELS. SINCE NO KNOWN VIEWLEX MODEL SATISFIED THE PURCHASE DESCRIPTION, YOUR BID SHOULD HAVE LISTED THE MODIFICATIONS WHICH WOULD MAKE ONE OF YOUR MODELS CONFORM WITH THE INVITATION, AS SET OUT IN PARAGRAPH 24 (C) (2), QUOTED ABOVE, AND WHICH LIST YOU DID FURNISH DURING THE COURSE OF NEGOTIATIONS CONDUCTED UNDER THE SUBSEQUENT REQUEST FOR PROPOSALS.

BECAUSE YOU DID NOT SUPPLY THE NECESSARY INFORMATION ON OR BEFORE BID OPENING, BY THE TERMS OF PARAGRAPH 24 (C) (3), QUOTED ABOVE, YOUR BID COULD NOT BE CONSIDERED RESPONSIVE. ACCORDINGLY, AWARD OF THE UNRESTRICTED 500 PROJECTORS TO GRAFLEX, AS THE LOW RESPONSIVE BIDDER, WAS PROPER UNDER THE CIRCUMSTANCES. AS THIS LEFT NO BIDDER IN CONTENTION FOR THE RESTRICTED PORTION, WE CAN FIND NO FAULT WITH THE DISSOLUTION OF THE SET-ASIDE AND THE SUBSEQUENT ISSUANCE OF REQUEST FOR PROPOSALS NO. FPNHP-X -88331-A-10-28-66 TO PROCURE THE OTHER 500 PROJECTORS DUE TO THE URGENCY OF THE PROGRAM.

WE NOTE THAT THIS REQUEST ELIMINATED THE LANGUAGE IN THE PURCHASE DESCRIPTION UPON WHICH YOU BASED YOUR PROTEST LETTER OF OCTOBER 17, 1966. THIS ELIMINATION OF THE LISTING OF BRANDS, INCLUDING VIEWLEX, WHICH, WITH APPROPRIATE MODIFICATION COULD SATISFY THE REQUIREMENT OF THE GOVERNMENT, YOU VIEW AS A SURREPTITIOUS ATTEMPT AT SOLE SOURCE PROCUREMENT OF THE GRAFLEX PROJECTOR. WE CANNOT SAY THAT THE DROPPING OF UNCLEARLY EXPRESSED LANGUAGE AND THE SUBSTITUTION OF THE USUAL LANGUAGE USED IN PROCUREMENTS OF THIS TYPE EVIDENCES BAD FAITH ON THE PART OF THE AGENCY OFFICIALS. RATHER, IT APPEARS SENSIBLE TO AVOID FURTHER CONFUSION BY ELIMINATING LANGUAGE WHICH EXPERIENCE SHOWED TO BE THE SOURCE OF DISPUTE. ALSO, WE NOTE THAT "VIEWLEX MODELS," AS MODIFIED, WERE FOUND TO BE RESPONSIVE UNDER THE VERY LANGUAGE YOU CONTEND WAS CHANGED TO RESTRICT COMPETITION, SO THAT IT IS OUR OPINION THAT EVENTS HAVE DISPROVED THIS CONTENTION. FURTHERMORE, THE RECORD INDICATES THAT GSA MADE A CONSCIENTIOUS ATTEMPT TO ENABLE ALL MANUFACTURERS HAVING PROJECTORS COMPLYING WITH THE FEDERAL SPECIFICATION TO MEET THE PARTICULAR REQUIREMENT HERE INVOLVED BY MODIFICATION OF THEIR COMMERCIAL SETS. BY SETTING ASIDE FIFTY PERCENT OF THE PROCUREMENT FOR SMALL BUSINESS, GSA ATTEMPTED TO GIVE SMALL BUSINESS FIRMS, SUCH AS VIEWLEX (GRAFLEX BEING BIG BUSINESS), AN ADDITIONAL OPPORTUNITY TO OBTAIN A PART OF THE PROCUREMENT.

IN VIEW OF THE ABOVE, AWARD TO GRAFLEX OF THE UNRESTRICTED 250 PROJECTORS UNDER THE REQUEST FOR PROPOSALS WAS PROPER, AND, WHEN VIEWLEX REFUSED TO ACCEPT THE RESTRICTED PORTION AT THE UNRESTRICTED BID PRICE, AWARD OF THAT PORTION TO GRAFLEX WAS ALSO PROPER.