B-173790, JAN 26, 1972

B-173790: Jan 26, 1972

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THE RAYTHEON BID WAS NONRESPONSIVE. THE SYSTEM HAS BEEN INSTALLED AND IS NOW FULLY OPERATIONAL. NO EFFECTIVE REMEDIAL ACTION IS NOW AVAILABLE. INC.: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 4. SIX BIDS WERE RECEIVED AND OPENED ON JUNE 25. BECAUSE A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION WAS USED. WERE DESCRIBED THEREIN AS HAVING FEATURES INCLUDING A SINGLE INTEGRAL IMAGE INTENSIFIED VIDICON TUBE PACKAGE. THE REQUIREMENT THAT THESE CAMERAS HAVE A SINGLE INTEGRAL IMAGE INTENSIFIED VIDICON TUBE PACKAGE WAS ALSO SET OUT IN SECTION F. A TECHNICAL REVIEW WAS MADE OF THE SPECIFICATIONS FOR THE SYSTEM OFFERED BY EACH BIDDER BY THE EASTERN AREA COMMUNICATIONS AND ELECTRONICS DIRECTORATE.

B-173790, JAN 26, 1972

BID PROTEST - BRAND NAME OR EQUAL - NONRESPONSIVE BID DECISION CONCERNING PROTEST OF NORCON ELECTRONICS, INC., AGAINST THE AWARD OF A CONTRACT FOR A CLOSED CIRCUIT TELEVISION SURVEILLANCE SYSTEM TO RAYTHEON SERVICE CO., UNDER AN IFB ISSUED BY THE EASTERN AREA MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE, BROOKLYN, N.Y. THE IFB CALLED FOR TELEVISION CAMERAS EQUAL TO WESTINGHOUSE ELECTRIC CORPORATION TYPE STV-705, AND LISTED AS ITS SALIENT CHARACTERISTIC A SINGLE INTEGRAL IMAGE INTENSIFIED VIDICON TUBE PACKAGE. ALTHOUGH THE PRODUCT FAILED TO POSSESS THE TUBE SPECIFIED IN THE IFB AND, THEREFORE, THE RAYTHEON BID WAS NONRESPONSIVE, THE SYSTEM HAS BEEN INSTALLED AND IS NOW FULLY OPERATIONAL. SINCE THE CONTRACT HAS BEEN COMPLETED, NO EFFECTIVE REMEDIAL ACTION IS NOW AVAILABLE.

TO NORCON ELECTRONICS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 4, 1971, PROTESTING AWARD OF A CONTRACT FOR A CLOSED CIRCUIT TELEVISION SURVEILLANCE SYSTEM TO RAYTHEON SERVICE CO., UNDER INVITATION FOR BIDS (IFB) DAHC21-71-B-0297, ISSUED JUNE 10, 1971, BY EASTERN AREA MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE, BROOKLYN, NEW YORK.

THE RECORD SHOWS THAT OF THE TWENTY-SEVEN FIRMS SOLICITED, SIX BIDS WERE RECEIVED AND OPENED ON JUNE 25, 1971. BECAUSE A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION WAS USED, THE IFB SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS CONSIDERED TO BE ESSENTIAL TO THE GOVERNMENT NEEDS, IN COMPLIANCE WITH SECTION 1 1206.2(B) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). THE TELEVISION CAMERAS REQUIRED BY ITEM NO. 1A, SECTION E, OF THE SCHEDULE, WERE DESCRIBED THEREIN AS HAVING FEATURES INCLUDING A SINGLE INTEGRAL IMAGE INTENSIFIED VIDICON TUBE PACKAGE, AND AS BEING WESTINGHOUSE ELECTRIC CORPORATION TYPE STV-705 OR EQUAL. THE REQUIREMENT THAT THESE CAMERAS HAVE A SINGLE INTEGRAL IMAGE INTENSIFIED VIDICON TUBE PACKAGE WAS ALSO SET OUT IN SECTION F, DESCRIPTION/SPECIFICATION, OF THE SCHEDULE. A TECHNICAL REVIEW WAS MADE OF THE SPECIFICATIONS FOR THE SYSTEM OFFERED BY EACH BIDDER BY THE EASTERN AREA COMMUNICATIONS AND ELECTRONICS DIRECTORATE. THE EVALUATIONS CONCLUDED THAT ALL BIDS WERE TECHNICALLY QUALIFIED TO MEET THE GOVERNMENT'S REQUIREMENTS FOR THE PROPOSED SYSTEM, AND IT WAS RECOMMENDED THAT AWARD BE MADE TO THE LOW BIDDER. AWARD WAS MADE TO RAYTHEON, THE LOW BIDDER, ON JUNE 29, 1971, IN THE AMOUNT OF $92,752. OF THE SIX BIDS RECEIVED, YOUR BID OF $138,947 WAS FOURTH-LOW.

IN YOUR PROTEST YOU CONTEND THAT RAYTHEON TOOK EXCEPTION TO THE CAMERA SPECIFICATIONS IN THE IFB, BY OFFERING A NORELCO LDH 0050 CAMERA, EQUIPPED WITH AN AMPEREX S10XQA SOLID STATE TUBE, WHICH DOES NOT UTILIZE AN IMAGE INTENSIFIER AS REQUIRED FOR THE CAMERAS SHOWN UNDER ITEM 1A OF THE BID SCHEDULE.

IT IS APPARENT FROM THE REPORT ON YOUR PROTEST, FURNISHED THIS OFFICE ON OCTOBER 7, 1971, BY THE DEPARTMENT OF THE ARMY, THAT THE CAMERA OFFERED BY RAYTHEON DOES NOT HAVE THE IMAGE INTENSIFIED TYPE OF TUBE PACKAGE SPECIFIED UNDER ITEM NO. 1A OF THE IFB. ON THIS BASIS, WE AGREE WITH YOUR CONTENTION THAT THE RAYTHEON BID WAS NONRESPONSIVE. IT IS EXPLAINED BY ARMY THAT THE IMAGE INTENSIFIER IN QUESTION IS DESIGNED TO PROVIDE ADDITIONAL SENSITIVITY FOR A (VIDICON) CAMERA TUBE IN ORDER THAT USABLE REPRODUCTION OF A DIMLY ILLUMINATED SCENE WILL RESULT. IT IS ALSO STATED THAT THE AMPEREX S10XQA CAMERA TUBE USED IN CONJUNCTION WITH THE NORELCO CAMERA CAN PROVIDE EQUIVALENT REPRODUCTION OF A DIMLY ILLUMINATED SCENE WITHOUT THE NEED FOR IMAGE INTENSIFICATION, AND THAT SUCH EQUIPMENT AS PROVIDED BY RAYTHEON IS EQUIVALENT TO THE GOVERNMENT SPECIFICATION REQUIREMENTS.

WE HAVE HELD THAT WHERE, AS HERE, THE CONTRACTING AGENCY, IN A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION, GOES BEYOND THE MAKE AND MODEL OF THE BRAND NAME AND SPECIFIES PARTICULAR DESIGN FEATURES, SUCH FEATURES MUST BE PRESUMED TO HAVE BEEN REGARDED AS MATERIAL AND ESSENTIAL TO THE NEEDS OF THE GOVERNMENT, AT LEAST AT THE TIME THE SPECIFICATIONS WERE DRAWN AND BIDS SOLICITED. 49 COMP. GEN. 195 (1969). WE HAVE ALSO EXPRESSED THE RULE THAT AN IFB WHICH FAILS TO LIST ALL THE CHARACTERISTICS DEEMED ESSENTIAL, OR LISTS CHARACTERISTICS WHICH ARE NOT ESSENTIAL, IS DEFECTIVE. 49 COMP. GEN. 347 (1969). SINCE, THE IFB LISTED AN IMAGE INTENSIFIER TYPE OF TUBE PACKAGE WHICH THE AGENCY SUBSEQUENTLY DETERMINED WAS NOT ESSENTIAL TO ITS NEEDS, THE IFB SHOULD HAVE BEEN CANCELLED AS DEFECTIVE AND A READVERTISEMENT MADE OF THE GOVERNMENT'S ACTUAL REQUIREMENTS. SEE 48 COMP. GEN. 441 (1968).

WE WERE ADVISED IN ARMY'S REPORT OF OCTOBER 7, 1971, THAT THE SYSTEM HAD BEEN DELIVERED AND INSTALLED, AND WAS FULLY OPERATIONAL. SINCE THE CONTRACT HAS BEEN COMPLETED NO EFFECTIVE REMEDIAL ACTION APPEARS TO BE NOW AVAILABLE. HOWEVER, WE ARE CALLING THIS MATTER TO THE ATTENTION OF THE SECRETARY OF THE ARMY SO THAT APPROPRIATE STEPS MAY BE TAKEN TO INSURE THAT PROPER PROCEDURES ARE FOLLOWED IN FUTURE "BRAND NAME OR EQUAL" PROCUREMENTS.