B-179994, APR 3, 1974

B-179994: Apr 3, 1974

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" IS DEFICIENT FOR FAILURE TO PROPERLY ADVISE BIDDERS OF WHAT WAS REQUIRED BY USE OF THE AMBIGUOUS TERM "FIRST CLASS" AND IN THE FUTURE. MORE PRECISE TERMS SHOULD BE EMPLOYED IN DEFINING WHAT IS DEMANDED UNDER SOLICITATION. CALLED FOR THE REPRODUCTION OF 340 SETS OF COLOR SLIDES (78 SLIDES PER SET) AND WAS ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE (NRPO). IT IS STATED IN THE CONTRACTING OFFICER'S REPORT THAT COMCORPS WAS ADVISED THAT THE TERM DENOTED QUALITY WORKMANSHIP AND MATERIAL AT THE LOWEST COST TO THE GOVERNMENT. COMCORPS WAS THE HIGHEST. WAS LOW AT $2. THE GOVERNMENT'S ESTIMATE WAS $2. COMCORPS' PROPOSAL WAS ACCOMPANIED BY A LETTER DATED OCTOBER 1. NOTING THAT THE RFP WAS DEVOID OF INFORMATION AS TO HOW A PROPOSAL MAY BE DETERMINED FIRST CLASS.

B-179994, APR 3, 1974

SPECIFICATION WHICH ONLY STATED THAT COLOR SLIDE REPRODUCTIONS BE "FIRST CLASS MATERIAL AND WORKMANSHIP," IS DEFICIENT FOR FAILURE TO PROPERLY ADVISE BIDDERS OF WHAT WAS REQUIRED BY USE OF THE AMBIGUOUS TERM "FIRST CLASS" AND IN THE FUTURE, MORE PRECISE TERMS SHOULD BE EMPLOYED IN DEFINING WHAT IS DEMANDED UNDER SOLICITATION.

TO COMMUNICATION CORPS, INC.:

REQUEST FOR PROPOSALS (RFP) N00600-74-R-5153, AS AMENDED, CALLED FOR THE REPRODUCTION OF 340 SETS OF COLOR SLIDES (78 SLIDES PER SET) AND WAS ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE (NRPO), WASHINGTON, D.C. THE PURCHASE DESCRIPTION REQUIRED "THE SUPPLIES SHALL BE FIRST CLASS MATERIAL AND WORKMANSHIP, INCLUDING PRINTING THEREON." THE RFP ALSO PROVIDED THAT WITHIN 10 DAYS AFTER THE DATE OF THE CONTRACT, THE CONTRACTOR MUST SUBMIT ANSWER PRINTS FOR APPROVAL PRIOR TO MASS PRODUCTION. PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS, COMMUNICATION CORPS, INC. (COMCORPS) TELEPHONICALLY REQUESTED CLARIFICATION OF THE TERM "FIRST CLASS MATERIAL AND WORKMANSHIP." IT IS STATED IN THE CONTRACTING OFFICER'S REPORT THAT COMCORPS WAS ADVISED THAT THE TERM DENOTED QUALITY WORKMANSHIP AND MATERIAL AT THE LOWEST COST TO THE GOVERNMENT.

OF THE SEVEN OFFERS RECEIVED, COMCORPS WAS THE HIGHEST, $6,630.00 AND BARA PHOTOGRAPHIC, INC., WAS LOW AT $2,254.20. THE GOVERNMENT'S ESTIMATE WAS $2,500.00. COMCORPS' PROPOSAL WAS ACCOMPANIED BY A LETTER DATED OCTOBER 1, 1973, WHICH INDICATED ITS BELIEF THAT FIRST CLASS MEANT THE HIGHEST QUALITY POSSIBLE. NOTING THAT THE RFP WAS DEVOID OF INFORMATION AS TO HOW A PROPOSAL MAY BE DETERMINED FIRST CLASS, COMCORPS URGED THAT SAMPLES BE REQUIRED SO THAT THE HIGHEST QUALITY COULD BE SELECTED, RATHER THAN AN AWARD ON THE BASIS OF THE LOWEST PRICE WITHOUT REGARD TO QUALITY. THE CONTRACTING OFFICER STATES THAT SHE TELEPHONICALLY RESPONDED TO THE LETTER ON OCTOBER 4, 1973, AND ADVISED COMCORPS THAT CONTRARY TO ITS BELIEF THAT QUALITY WAS THE CONTROLLING FACTOR, THE PURCHASE DESCRIPTION WAS INTENDED TO EMPHASIZE THAT SHODDY MATERIAL AND WORKMANSHIP WERE NOT ACCEPTABLE.

COMCORPS WAS ALSO INFORMED THAT ALTHOUGH IT WAS NOT IN THE COMPETITIVE RANGE, IT WOULD BE GIVEN AN OPPORTUNITY TO SUBMIT A BEST AND FINAL OFFER BY OCTOBER 12, 1973. FURTHER, THE CONTRACTING OFFICER TOLD COMCORPS THAT A SAMPLE WAS UNECESSARY BECAUSE (1) THE SPECIFICATIONS ADEQUATELY DESCRIBED THE REQUIREMENT; (2) THE SIMPLICITY OF THE REQUIREMENT DID NOT JUSTIFY THE SUBMISSION OF SAMPLES; (3) THE CONTRACTOR WOULD BE REQUIRED TO FURNISH ANSWER PRINTS FOR APPROVAL PRIOR TO PRODUCTION; AND (4) THE PROCUREMENT WAS TOO URGENT TO ALLOW THE DELAY ATTENDANT WITH REQUESTING AND EXAMINING THE SAMPLES PRIOR TO AWARD.

IN CONFIRMATION OF THE FOREGOING CONVERSATION, A LETTER DATED OCTOBER 5, 1973, WAS MAILED TO COMMUNICATION CORPS, INC., 1919 K STREET, NW., WASHINGTON, D.C., 20006. THIS IS THE ADDRESS THAT APPEARED ON COMCORPS' ACKNOWLEDGEMENT OF AMENDMENT NUMBER 1 TO THE RFP. HOWEVER, THE FACE SHEET OF THE RFP CONTAINED COMCORPS' ADDRESS AS 1910 K STREET, NW., WASHINGTON, D.C., 20006. THE FORMER ADDRESS IS INCORRECT AND CONSEQUENTLY THE LETTER WAS RETURNED OCTOBER 15, 1973, MARKED "NO SUCH NUMBER" AND "ADDRESSEE UNKNOWN." IT WAS DETERMINED THAT IN VIEW OF THE URGENCY OF THE PROCUREMENT, THE DELAY NECESSARY TO INVESTIGATE THE NONDELIVERY OF THE REQUEST FOR BEST AND FINAL OFFERS WAS NOT JUSTIFIED. THE FACT THAT COMCORPS WAS THE HIGHEST PRICE OFFEROR REINFORCED THE DECISION TO PROCEED WITH THE AWARD.

COMCORPS PROTESTED TO OUR OFFICE ON NOVEMBER 1, 1973, THE USE OF THE TERM "FIRST CLASS" IN THE SOLICITATION, CONTENDING THAT FIRST CLASS MATERIAL AND WORKMANSHIP ARE INCOMPATIBLE WITH AN AWARD BASED ON THE LOWEST PRICE.

AFTER A REVIEW OF THE RECORD, OUR OFFICE IS OF THE OPINION THAT THE USE OF THE PHRASE "FIRST CLASS MATERIAL AND WORKMANSHIP" FAILS TO PROVIDE OFFERORS WITH A SUFFICIENTLY DEFINITE SPECIFICATION TO PERMIT INTELLIGENT BIDDING. WE HAVE BEEN INFORMALLY ADVISED BY THE NATIONAL BUREAU OF STANDARDS THAT THE TERM "FIRST CLASS" HAS NO SPECIAL MEANING IN THE TRADE. WHAT CONSTITUTES "FIRST CLASS" IS SUBJECT TO VARYING DEGREES OF INTERPRETATION AS TO THE GOVERNMENT'S ACTUAL NEEDS; THAT IS, WHETHER A SUPERIOR PRODUCT AT A HIGH COST IS DESIRED OR WHETHER AN ADEQUATE PRODUCT OF ACCEPTABLE QUALITY WOULD BE ACCEPTABLE AT A LESSER COST.

SECTION 1-1206.1 OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH CONCERNS PURCHASE DESCRIPTIONS, READS, IN PART, AS FOLLOWS:

"(A) *** AN ADEQUATE PURCHASE DESCRIPTION IS AN AID TO COMPETITION AND, IN THE ABSENCE OF COMPETITION, AIDS IN DETERMINING THE REASONABLENESS OF PRICE. A PURCHASE DESCRIPTION SHOULD SET FORTH THE ESSENTIAL PHYSICAL AND FUNCTIONAL CHARACTERISTICS OF THE MATERIALS OR SERVICES REQUIRED ***."

THE PURCHASE DESCRIPTION CONTAINED IN THE INSTANT SOLICITATION DID NOT MEET THE ABOVE CRITERIA AND WAS INADEQUATE IN THAT IT DID NOT ADVISE OFFERORS OF THE ESSENTIAL ACTUAL REQUIREMENTS OF THE GOVERNMENT. IN ANY EVENT, WE DO NOT BELIEVE THAT IT IS CONDUCIVE TO SOUND PROCUREMENT PRACTICE TO REQUIRE OFFERORS TO DIVINE THE GOVERNMENT'S ACTUAL NEEDS IN ORDER TO OFFER A PRODUCT AT A REASONABLE COST.

AS AWARD HAS BEEN MADE AND THE ITEMS DELIVERED, CORRECTIVE ACTION IS NOT POSSIBLE AT THIS DATE AND FOR THAT REASON NO IMMEDIATE REMEDY IS AVAILABLE TO THE PROTESTER. HOWEVER, WE HAVE RECOMMENDED TO THE PROCUREMENT AGENCY THAT CORRECTIVE MEASURES SHOULD BE TAKEN TO IMPROVE THE PURCHASE DESCRIPTION IN FUTURE PROCUREMENTS OF COLOR SLIDE REPRODUCTIONS.