B-160647, APR. 27, 1967

B-160647: Apr 27, 1967

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B. MILLIKEN COMPANY: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE SPECIFICATION USED IN INVITATION FOR BIDS NO. WAS ISSUED ON NOVEMBER 21. THE SPECIFICATION WAS REVIEWED BY THE COGNIZANT TECHNICAL PERSONNEL AND SOME OF THE SUGGESTED CHANGES WERE MADE AND WERE INCORPORATED IN THE SOLICITATION BY AMENDMENT NO. 2. TO THE CONTRACTING OFFICER THAT THE SPECIFICATIONS WERE STILL RESTRICTIVE. COPY OF THIS LETTER WAS FORWARDED TO THIS OFFICE AND CONSTITUTES YOUR PRESENT PROTEST. THE SPECIFICATION HAS AGAIN BEEN REVIEWED BY AIR FORCE TECHNICAL PERSONNEL IN THE LIGHT OF YOUR RENEWED PROTEST AND THEY HAVE AGREED TO REVISE THE SPECIFICATION TO INCLUDE ONE SUGGESTED CHANGE WHICH WAS MADE BY AMENDMENT NO. 3 TO THE INVITATION DATED DECEMBER 30.

B-160647, APR. 27, 1967

TO D. B. MILLIKEN COMPANY: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE SPECIFICATION USED IN INVITATION FOR BIDS NO. F08651-67-B 0094, ISSUED BY ELGIN AIR FORCE BASE, FLORIDA, DEPARTMENT OF THE AIR FORCE.

THE INVITATION SOLICITED BIDS FOR FURNISHING SIX MOTION PICTURE CAMERAS, 16MM, 200-FEET FILM CAPACITY, IN ACCORDANCE WITH SPECIFICATION NO. PGVFM 3045-67-2, DATED NOVEMBER 4, 1966, AND WAS ISSUED ON NOVEMBER 21, 1966, TO 19 PROSPECTIVE SOURCES, INCLUDING YOUR COMPANY. BY LETTER OF DECEMBER 6, 1966, YOU PROTESTED TO THE AIR FORCE AGAINST THE ALLEGED RESTRICTIVE NATURE OF THE SPECIFICATION, STATING THAT SEVEN SPECIFIC PARAGRAPHS OF THE SPECIFICATION CONTAINED RESTRICTIVE PROVISIONS AND SUGGESTING CHANGES IN EACH OF THE PARAGRAPHS TO ELIMINATE SUCH RESTRICTIVE FEATURES. AS A RESULT OF THE PROTEST, THE SPECIFICATION WAS REVIEWED BY THE COGNIZANT TECHNICAL PERSONNEL AND SOME OF THE SUGGESTED CHANGES WERE MADE AND WERE INCORPORATED IN THE SOLICITATION BY AMENDMENT NO. 2, DATED DECEMBER 22, 1966, WHICH ALSO EXTENDED THE BID OPENING DATE TO JANUARY 6, 1967. YOU PROTESTED BY LETTER OF DECEMBER 30, 1966, TO THE CONTRACTING OFFICER THAT THE SPECIFICATIONS WERE STILL RESTRICTIVE, AND SUGGESTED THAT THREE SPECIFIC PARAGRAPHS BE REVISED TO ELIMINATE THE RESTRICTIVE FEATURES. COPY OF THIS LETTER WAS FORWARDED TO THIS OFFICE AND CONSTITUTES YOUR PRESENT PROTEST.

THE SPECIFICATION HAS AGAIN BEEN REVIEWED BY AIR FORCE TECHNICAL PERSONNEL IN THE LIGHT OF YOUR RENEWED PROTEST AND THEY HAVE AGREED TO REVISE THE SPECIFICATION TO INCLUDE ONE SUGGESTED CHANGE WHICH WAS MADE BY AMENDMENT NO. 3 TO THE INVITATION DATED DECEMBER 30, 1966, WHICH ALSO EXTENDED THE BID OPENING DATE TO JANUARY 30, 1967.

THE CHANGES SUGGESTED BY YOU WHICH THE AIR FORCE HAS NOT ADOPTED APPLY TO PARAGRAPHS 1.10 AND 2.1 OF THE SPECIFICATION. YOU CONTEND THAT THE FEATURES DESCRIBED IN THESE TWO PARAGRAPHS ARE PECULIAR TO THE CAMERA BEING PRODUCED BY ONLY ONE MANUFACTURER, DESCRIBE EQUIPMENT RATHER THAN TASKS AND THEREFOR RENDER THE SPECIFICATIONS UNDULY RESTRICTIVE OF COMPETITION. FOR THOSE REASONS, YOU FURTHER CONTEND THAT THE PROCUREMENT IS MORE SUITABLE TO "SOLE SOURCE" NEGOTIATION RATHER THAN FORMALLY ADVERTISED PROCEDURES.

PARAGRAPH 1.10 OF THE SPECIFICATION REQUIRES A FOOTAGE COUNTER TO BE BUILT INTO THE CAMERA BODY, WHICH MUST BE "ACCURATE TO THE FOOT WHEN USING EITHER THE 200-FOOT REELS OF STANDARD BASE FILM OR THE 250 FOOT REELS OF STANDARD BASE FILM OR THE 250-FOOT REELS OF THIN BASED FILM.' THE TECHNICAL ACTIVITY REPRESENTED THIS TO BE AN ESSENTIAL REQUIREMENT OF THE GOVERNMENT, SINCE AN EXTREMELY ACCURATE MEASURE OF FILM REMAINING IN THE CAMERA IS ESSENTIAL IN AERIAL MISSIONS TO PRECLUDE RUNNING OUT OF FILM IN THE MIDDLE OF THE ACTION BEING RECORDED. A FOOTAGE INDICATOR WHICH DEPENDS UPON MEASURING ROLL DIAMETER--- AS SUGGESTED BY YOU IN PROTESTING THIS SPECIFICATION TRANSLATING THIS INTO INDICATOR DIAL MOVEMENT HAS SHOWN ERRORS OF 20 TO 25 PERCENT IN A 200-FOOT ROLL OF FILM. IN ADDITION, IT IS BELIEVED BY THE TECHNICAL ACTIVITY THAT USING STANDARD BASE TRIACETATE FILMS AND 4 MIL POLYESTER BASE FILMS INTERCHANGEABLY WILL FURTHER COMPOUND THIS ERROR, SINCE 250 FEET OF POLYESTER FILM OCCUPIES THE SAME SPACE AS 200 FEET OF TRIACETATE FILM.

PARAGRAPH 2.1 REQUIRES THAT THE CAMERA BE CAPABLE OF OPERATING WITH BOTH HIGH SPEED AND STANDARD PERFORATED FILM WITHOUT REQUIRING ANY MECHANICAL ADJUSTMENTS THAT CANNOT BE MADE ON LOCATION BY THE CAMERA OPERATOR. YOU SUGGESTED FIXED FACTORY ADJUSTMENT USING ONE OR THE OTHER OF THE FILM PITCHES. THE TECHNICAL ACTIVITY HAS REPRESENTED THAT THE FIELD ADJUSTMENT CAPABILITY IS AN ESSENTIAL REQUIREMENT OF THE GOVERNMENT BECAUSE MISSIONS MUST BE ACCOMPLISHED WITH WHATEVER MATERIAL IS AT HAND, AND BECAUSE FRAME RATE REQUIREMENTS CAN BE CHANGED FROM LOW TO HIGH AFTER A PHOTOGRAPHER IS AIRBORNE--- THE CAPABILITY TO OPERATE AT ANY FRAME RATE WITH EITHER FILM PERFORATION WILL PREVENT A MISSION FAILURE SHOULD THE CAMERA HAPPEN TO BE LOADED WITH LOW FRAME RATE FILM. WE ARE ALSO ADVISED THAT SINCE THESE CAMERAS WILL BE USED FOR DOCUMENTARY PHOTOGRAPHY, AS WELL AS DATA PHOTOGRAPHY, THE USE OF BOTH FILM PITCHES IS A COMMON PRACTICE.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1206.1 STATES, IN PERTINENT PART, THAT "PURCHASE DESCRIPTIONS SHALL NOT BE WRITTEN SO AS TO SPECIFY A PRODUCT OR A PARTICULAR FEATURE OF A PRODUCT PECULIAR TO ONE MANUFACTURER AND THEREBY PRECLUDE CONSIDERATION OF A PRODUCT MANUFACTURED BY ANOTHER COMPANY, UNLESS IT IS DETERMINED THAT THE PARTICULAR FEATURE IS ESSENTIAL TO THE GOVERNMENT'S REQUIREMENTS * * *.' THE TECHNICAL SPECIFICATION, AS REVISED, IS CONSIDERED ADMINISTRATIVELY TO BE THE MINIMUM ESSENTIAL REQUIREMENTS OF THE GOVERNMENT. WHEN IT WAS DEVELOPED, EVERY EFFORT WAS MADE TO INCLUDE REASONABLE SPECIFICATIONS IN SUCH TERMS AS TO PERMIT, WITHIN THE KNOWLEDGE OF THE PROCUREMENT AGENCY, FULL AND FREE COMPETITION, KEEPING IN MIND THE PERFORMANCE CHARACTERISTICS ESSENTIAL TO THE NEEDS OF THE GOVERNMENT FOR THE END USE INTENDED. THE TWO PARAGRAPHS OF THE SPECIFICATION IN QUESTION ARE CONSIDERED BY THE PROCUREMENT AGENCY TO BE BONA FIDE ESSENTIAL PERFORMANCE CHARACTERISTICS, RATHER THAN A REQUIRED SPECIFIC DETAIL DESIGN. IT WAS NOT, AS YOUR CONTEND," A SPECIFICATION DESCRIBING EQUIPMENT RATHER THAN TASKS.' IT IS REPORTED THAT WHILE THE PROCUREMENT AGENCY KNEW OF ONLY ONE FIRM WITH ADVERTISED LITERATURE SHOWING SIMILAR CHARACTERISTICS, IT KNEW OF NO REASON WHY OTHER MANUFACTURERS MAKING A 16MM MOTION PICTURE CAMERA OF THE GENERAL TYPE REQUIRED COULD NOT MEET THE ACTUAL REQUIREMENTS EITHER WITH THEIR STANDARD EQUIPMENT, OR BY A MODIFICATION THEREOF. YOU ADMIT IN YOUR LETTER OF DECEMBER 30, 1966, THAT "THIS CAMERA IS A MODIFICATION OF OUR TIME-PROVEN STANDARD DIM-4 * * *," BUT YOU OFFER NO REASON WHY YOU CANNOT, OR WILL NOT, MODIFY YOUR PRODUCT TO MEET THE GOVERNMENT'S REQUIREMENTS. IT WOULD APPEAR, THEREFORE, THAT YOU ARE ASKING THE AIR FORCE TO REVISE ITS SPECIFICATIONS TO PERMIT YOU TO FURNISH YOUR COMMERCIAL PRODUCT WITHOUT ANY MODIFICATIONS. THERE HAS BEEN NO INDICATION FROM ANY OF THE OTHER 18 SOURCES SOLICITED THAT THE SPECIFICATIONS ARE RESTRICTED TO ONE MANUFACTURER AND THEREFORE CANNOT BE MET BY OTHERS.

AIR FORCE TECHNICAL PERSONNEL HAVE DETERMINED THAT YOUR SUGGESTED REVISIONS COULD RESULT IN THE ELIMINATION OF TWO FEATURES WHICH THEY CONSIDER ESSENTIAL TO MEET THE MINIMUM AIR FORCE REQUIREMENTS FOR THIS CAMERA. WE DO NOT BELIEVE THAT THE AIR FORCE SPECIFICATION SHOULD BE CHANGED TO SUIT A PARTICULAR MANUFACTURER'S PRODUCT. AS STATED IN 36 COMP. GEN. 251, 252, THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, RESPONSIBLY MEET THE AGENCY'S NEEDS. IN THIS CASE, THE TWO FEATURES IN QUESTION REPRESENT AN ADVANCE STATE-OF-THE ART WHICH THE AIR FORCE KNOWS HAVE BEEN INCORPORATED IN THE PRODUCT OF AT LEAST ONE MANUFACTURER. IT IS POSSIBLE THAT OTHER MANUFACTURERS EITHER HAVE ALREADY INCORPORATED THE SAME FEATURE IN THEIR PRODUCT OR ARE IN A POSITION TO MODIFY THEIR PRODUCT TO INCLUDE THESE FEATURES. RATHER THAN PROCEEDING WITH A SOLE-SOURCE NEGOTIATION WITH THE ONE MANUFACTURER WHO IS KNOWN TO HAVE A PRODUCT WITH THESE FEATURES, IT IS PREFERABLE TO ATTEMPT TO INTRODUCE COMPETITION BY SOLICITING BIDS FROM OTHER SOURCES WHICH HAVE THE CAPABILITIES OF MEETING THESE REQUIREMENTS. AS STATED BY THE CONTRACTING OFFICER AND AS REQUIRED BY ASPR 2-407.1, THE AWARD WILL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. IF IT TURNS OUT THAT ONLY ONE RESPONSIVE BID IS RECEIVED, AS IS ALLEGED, THEN A COMPLETE ANALYSIS OF THE BID PRICE WOULD BE MADE BY THE PROCUREMENT AGENCY AND THE BID WOULD BE ACCEPTED ONLY AFTER IT HAD BEEN DETERMINED TO BE REASONABLE BY THE CONTRACTING OFFICER. IF SUCH A BID WOULD BE FOUND UNREASONABLE, THE BID COULD BE REJECTED IN ACCORDANCE WITH ASPR 2-404.2 (E) AND NEGOTIATIONS TO ARRIVE AT A REASONABLE PRICE COULD THEN BE ENTERED INTO WITH THE SOLE BIDDER.

WE HAVE CONSISTENTLY HELD THAT THE ESTABLISHMENT OF SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY AND THAT THE ADVERTISING STATUTES REQUIRE THAT EVERY EFFORT SHOULD BE MADE TO DRAW SPECIFICATIONS IN SUCH TERMS AS WILL PERMIT THE BROADEST FIELD OF COMPETITION CONSISTENT WITH THE GOVERNMENT'S ACTUAL NEEDS. SEE 45 COMP. GEN. 365, 368. AS TO THIS PROCUREMENT, THE SPECIFICATIONS, AS AMENDED, WERE BASED UPON A BONA FIDE DETERMINATION OF THE PRESENT NEEDS OF THE AIR FORCE UNDER EXISTING CONDITIONS WHICH COULD BE SATISFIED THROUGH THE USE OF FORMAL ADVERTISING.