B-181569, NOV 6, 1974

B-181569: Nov 6, 1974

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IN BRAND NAME OR EQUAL PURCHASE DESCRIPTION WHERE BID WAS REJECTED AS NONRESPONSIVE. IS UNTIMELY. WAS ISSUED ON MAY 16. THE LOW BID OF BELL & HOWELL COMPANY WAS REJECTED AS NONRESPONSIVE DUE TO ITS FAILURE TO COMPLY WITH TWO OF TWENTY-FIVE SALIENT CHARACTERISTICS. THE THRESHOLD ISSUE PRESENTED IS WHETHER THIS PROTEST WAS TIMELY FILED. STATE THAT: "*** PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING *** SHALL BE FILED PRIOR TO BID OPENING ***" BELL & HOWELL CONTENDS THAT THE SOLICITATION WAS RESTRICTIVE DUE TO THE INCLUSION OF TWO "SUPERFLUOUS" SALIENT CHARACTERISTICS ("I" RELATING TO THE DIRECTION OF MOVEMENT OF THE FILM CARRIER AND "T" PERTAINING TO A ZOOM LENS CAPABILITY) AND THAT REJECTION OF ITS BID FOR FAILING TO COMPLY WITH THOSE SPECIFICATIONS WAS IMPROPER.

B-181569, NOV 6, 1974

PROTEST AGAINST RESTRICTIVENESS OF SPECIFICATIONS DUE TO INCLUSION IN IFB OF CERTAIN SALIENT CHARACTERISTICS, IN BRAND NAME OR EQUAL PURCHASE DESCRIPTION WHERE BID WAS REJECTED AS NONRESPONSIVE, IS UNTIMELY, SINCE 4 C.F.R. 20.2(A), GAO INTERIM BID PROTEST PROCEDURES AND STANDARDS, PROVIDES THAT PROTESTS AGAINST ALLEGED IMPROPRIETIES IN SPECIFICATIONS APPARENT PRIOR TO BID OPENING MUST BE FILED PRIOR TO BID OPENING. IN THIS CONNECTION, GAO DOES NOT BELIEVE PROTESTER REASONABLY RELIED UPON CONDUCT OF USING ACTIVITY AS INDICATING ITS EQUIPMENT WOULD NEVERTHELESS BE ACCEPTABLE EVEN THOUGH IT DIDN'T CONFORM TO CERTAIN SALIENT CHARACTERISTICS.

BELL & HOWELL COMPANY:

INVITATION FOR BIDS (IFB) NO. N61339-74-B-0047, SOLICITING BIDS FOR SUPPLYING 638 DESK TOP MICROFICHE READERS, REALIST VANTAGE I, OR EQUAL, WAS ISSUED ON MAY 16, 1974, BY THE NAVAL TRAINING EQUIPMENT CENTER (NTEC) WITH AN OPENING DATE OF JUNE 12, 1974, TO SATISFY A NEED OF THE NAVAL AIR TECHNICAL TRAINING COMMAND (NATTC). ON JUNE 19, 1974, THE LOW BID OF BELL & HOWELL COMPANY WAS REJECTED AS NONRESPONSIVE DUE TO ITS FAILURE TO COMPLY WITH TWO OF TWENTY-FIVE SALIENT CHARACTERISTICS. BY TELEGRAM OF JUNE 20, 1974, BELL & HOWELL PROTESTED AGAINST AWARD BEING MADE TO ANY OTHER BIDDER UNTIL THIS OFFICE HAD RULED ON ITS PROTEST. AWARD HAS BEEN DELAYED PENDING THE OUTCOME OF THIS DECISION.

THE THRESHOLD ISSUE PRESENTED IS WHETHER THIS PROTEST WAS TIMELY FILED. OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 C.F.R. 20.2(A), STATE THAT:

"*** PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING *** SHALL BE FILED PRIOR TO BID OPENING ***"

BELL & HOWELL CONTENDS THAT THE SOLICITATION WAS RESTRICTIVE DUE TO THE INCLUSION OF TWO "SUPERFLUOUS" SALIENT CHARACTERISTICS ("I" RELATING TO THE DIRECTION OF MOVEMENT OF THE FILM CARRIER AND "T" PERTAINING TO A ZOOM LENS CAPABILITY) AND THAT REJECTION OF ITS BID FOR FAILING TO COMPLY WITH THOSE SPECIFICATIONS WAS IMPROPER. IN THIS CONNECTION, THE PROTESTER ALLEGES THAT SINCE THE SOLICITATION WAS ON A "BRAND NAME OR EQUAL" BASIS, THE REQUIREMENT OF THESE TWO SALIENT CHARACTERISTICS BEING "PROPRIETARY TO A SINGLE MANUFACTURER *** ATTEMPTS TO EXCLUDE ALL BUT ONE VENDOR WITHOUT FOLLOWING ASPR PROCEDURES TO JUSTIFY SOLE-SOURCE." BELL & HOWELL CONTENDS THAT EVEN THOUGH IT CONSIDERED THE SPECIFICATIONS RESTRICTIVE IT DID NOT PROTEST PRIOR TO BID OPENING BECAUSE IT WAS LED TO BELIEVE THAT ITS EQUIPMENT WOULD NEVERTHELESS BE ACCEPTABLE. THEREFORE, IT IS CONTENDED THAT ITS PROTEST ONE DAY AFTER REJECTION OF ITS BID AS WAS NONRESPONSIVE TO THE TWO SALIENT CHARACTERISTICS WAS TIMELY.

ALTHOUGH IT IS CONCEDED THAT THE PROTESTER CONSIDERED THE SPECIFICATIONS RESTRICTIVE AND DID NOT PROTEST, COUNSEL FOR BELL & HOWELL ARGUES THAT DURING PRE-BID DISCUSSIONS HIS CLIENT AND THE USING ACTIVITY REACHED AN "ACTUAL RESOLUTION *** CONCERNING THE ABILITY OF THE BELL & HOWELL MICROFICHE READER TO SATISFY THE NEEDS OF NATTC SOLICITED UNDER THE PENDING IFB", AND THAT IT WAS NOT UNTIL ITS UNEXPECTED JUNE 19, 1974, NONRESPONSIVENESS REJECTION THAT THE COMPANY LEARNED OF THE BASIS FOR ITS PROTEST WHICH WAS FILED ON JUNE 20, 1974. IN THIS CONNECTION, IT IS REPORTED THAT PRIOR TO ISSUANCE OF THE SOLICITATION BELL & HOWELL DEMONSTRATED ITS EQUIPMENT TO NATTC (THE USING ACTIVITY) AND THEREAFTER, NATTC RECOMMENDED IT TO NTEC (THE PROCURING ACTIVITY). AFTER ISSUANCE OF THE SOLICITATION BELL & HOWELL WAS ADVISED BY NATTC THAT THE SOLICITATION INCLUDED A REQUIREMENT FOR AN INTERCHANGEABLE LENS SYSTEM AND ITS EQUIPMENT WOULD HAVE TO INCORPORATE SUCH FEATURE TO BE ACCEPTED. THEREAFTER, IT IS REPORTED BY THE PROTESTER'S FEDERAL GOVERNMENT SALES MANAGER THAT:

"IN THE FIRST WEEK OF JUNE, WHILE THE IFB WAS PENDING, BELL & HOWELL *** DEMONSTRATED A NEW DESIGN PROTOTYPE MICROFICHE READER TO NATTC. THIS NEW DESIGN INCORPORATED THE INTERCHANGEABLE LENS SYSTEM LISTED AS A SALIENT FEATURE IN THE IFB.

"*** AT THIS MEETING *** (AN AGENCY REPRESENTATIVE) INDICATED THAT THE NEW DESIGN UNIT WOULD MEET NATTC'S NEEDS AND MADE NO MENTION OF THE FACT THAT THE NEW DESIGN MICROFICHE READER DID NOT INCORPORATE I, PERTAINING TO THE DIRECTION OF MOVEMENT OF THE MICROFICHE CARRIER, AND T, CALLING FOR ZOOM LENS CAPABILITY, OF THE SALIENT FEATURES LISTED IN THE IFB. FOLLOWING THIS MEETING, NATTC KEPT THE NEW DESIGN READER FOR TESTING AND TRIAL USE FOR A PERIOD OF TEN DAYS."

IT IS THEREFORE ARGUED THAT BECAUSE OF "ACTUAL RESOLUTION" OF THE CAPABILITY OF BELL & HOWELL'S EQUIPMENT TO MEET NATTC'S NEEDS, IT WAS NOT NECESSARY TO PROTEST THE RESTRICTIVENESS OF THE SPECIFICATIONS. THUS, IT IS COUNSEL'S ARGUMENT THAT IT IS NOT THE RESTRICTIVENESS PER SE THAT IS THE BASIS OF THE PROTEST, BUT THE AGENCY'S ADVERSE INTERPRETATION OF THE IFB AS REQUIRING REJECTION OF BELL & HOWELL'S ADMITTEDLY NONCONFORMING BID. IN THIS CONNECTION, COUNSEL CONTENDS THAT THE SITUATION HERE IS ANALOGOUS TO THAT IN CITED COMPTROLLER GENERAL DECISIONS WHERE WE CONSIDERED PROTESTS CONCERNING ALLEGED DEFECTIVE SPECIFICATIONS FIRST FILED WITH OUR OFFICE, AFTER BID OPENING (AND WITHIN FIVE DAYS) AS TIMELY. THE RATIONALE APPLIED IN THOSE CASES WAS THAT THE ADVERSE AGENCY ACTION AGAINST WHICH THE PROTEST WAS DIRECTED WAS THE AGENCY'S OPENING OF BIDS WHILE AN UNRESOLVED PROTEST WAS PENDING BEFORE IT. THE OPENING OF BIDS WAS CONSIDERED A DE FACTO DENIAL OF THE PROTEST. SEE, FOR EXAMPLE, MATTER OF EAST BAY AUTO SUPPLY, INC., B-180434, APRIL 12, 1974.

WE DO NOT BELIEVE THE RATIONALE OF THOSE CASES IS APPLICABLE HERE AS NO PROTEST WAS MADE BY BELL & HOWELL PRIOR TO BID OPENING, AND WE DO NOT CONSIDER NATTC'S CONDUCT AS RELATED BY BELL & HOWELL AS TANTAMOUNT TO A DECISION PRIOR TO BID OPENING THAT THE OTHERWISE MANDATORY SALIENT CHARACTERISTICS WOULD NOT APPLY TO IT. SINCE THE ONLY SALIENT CHARACTERISTIC INVOLVED IN THE DISCUSSIONS WITH NATTC WAS THE INTERCHANGEABLE LENS SYSTEM, WE DO NOT BELIEVE IT WAS REASONABLE FOR BELL & HOWELL TO ASSUME THAT ITS NONCONFORMANCE TO OTHER SALIENT CHARACTERISTICS WOULD BE WAIVED. IT IS OUR VIEW THAT IT WAS INCUMBENT UPON BELL & HOWELL TO AFFIRMATIVELY RESOLVE ANY QUESTIONS ABOUT OR OBJECTIONS TO THE SPECIFICATIONS WITH NTEC PRIOR TO BID OPENING. SINCE IT DID NOT, WE CONSIDER THE PROTEST FILED WITH OUR OFFICE AFTER BID OPENING AS RELATED TO ALLEGED IMPROPRIETIES IN THE SOLICITATION AND, THEREFORE, UNTIMELY UNDER 4 C.F.R. 20.2(A).

ACCORDINGLY, THE PROTEST IS DISMISSED AS UNTIMELY.