B-182347, JAN 28, 1975

B-182347: Jan 28, 1975

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EVEN THOUGH THOSE FEATURES WERE NOT APPLICABLE TO ONE PRODUCT AND WERE WAIVED UPON DELIVERY OF THE PRODUCT PURSUANT TO AWARDED CONTRACT. DID NOT PERMIT FULL AND FREE COMPETITION SINCE OFFERORS WERE NOT COMPETING ON EQUAL BASIS. MATTER IS BEING CALLED TO ATTENTION OF SECRETARY OF THE AIR FORCE. THE PROTEST IS SUSTAINED. THE PROCUREMENT WAS INITIATED ON JULY 25. THE RFP WAS ISSUED IN RESPONSE TO A MILITARY INTERDEPARTMENTAL PURCHASE REQUEST (MIPR) RECEIVED FROM THE POINT MUGU. MAGAZINES TO BE INTERCHANGED WITHOUT USE OF SPECIAL TOOLS AND ARE COMPLETELY INTERCHANGEABLE FROM ONE CAMERA TO ANOTHER.". STATING THAT THE CAMERA WAS A "COMPARABLE PRODUCT PRESENTLY IN USE BY POINT MUGU.". INFORMING THEM THAT COMPETITIVE NEGOTIATIONS WERE BEING CONDUCTED AND REQUESTING BEST AND FINAL OFFERS BASED ON A REVISED ITEM DESCRIPTION READING AS FOLLOWS: "6710 CAMERA.

B-182347, JAN 28, 1975

REQUEST FOR PROPOSALS WHICH IDENTIFIED TWO BRAND NAME PRODUCTS AND CERTAIN REQUIRED FEATURES, EVEN THOUGH THOSE FEATURES WERE NOT APPLICABLE TO ONE PRODUCT AND WERE WAIVED UPON DELIVERY OF THE PRODUCT PURSUANT TO AWARDED CONTRACT, DID NOT PERMIT FULL AND FREE COMPETITION SINCE OFFERORS WERE NOT COMPETING ON EQUAL BASIS. ALTHOUGH COMPLETION OF CONTRACT PRECLUDES CORRECTIVE ACTION, MATTER IS BEING CALLED TO ATTENTION OF SECRETARY OF THE AIR FORCE.

INSTRUMENTATION MARKETING CORPORATION:

INSTRUMENTATION MARKETING CORPORATION HAS PROTESTED THE AWARD OF A CONTRACT FOR SIX HIGH-SPEED MOTION PICTURE CAMERAS TO TELEDYNE CAMERA SYSTEMS ON THE GROUNDS THAT TELEDYNE COULD NOT FURNISH CAMERAS THAT CONFORMED TO THE GOVERNMENT'S SPECIFICATIONS. FOR THE REASONS STATED HEREIN, THE PROTEST IS SUSTAINED.

THE PROCUREMENT WAS INITIATED ON JULY 25, 1974, WITH THE ISSUANCE OF REQUEST FOR PROPOSALS (RFP) F42600-75-R-5186 BY THE OGDEN AIR LOGISTICS CENTER, HILL AIR FORCE BASE, UTAH. THE RFP WAS ISSUED IN RESPONSE TO A MILITARY INTERDEPARTMENTAL PURCHASE REQUEST (MIPR) RECEIVED FROM THE POINT MUGU, CALIFORNIA NAVAL AIR STATION. IN ACCORDANCE WITH THE MIPR, THE SOLICITATION IDENTIFIED INSTRUMENTATION MARKETING CORPORATION AS THE ONLY APPROVED SOURCE, AND CONTAINED THE FOLLOWING ITEM DESCRIPTION:

"6710 CAMERA, MODEL 1-P, 16MM 28VDC HIGH SPEED, PIN-REGISTERED, INTERMITTENT WITH DUAL REGISTRATION PINS AND DUAL PULLDOWN CLAWS, 400 FT FILM CAPACITY, 400 FRAMES PER SECOND AND .2994 FILM PITCH. MAGAZINES TO BE INTERCHANGED WITHOUT USE OF SPECIAL TOOLS AND ARE COMPLETELY INTERCHANGEABLE FROM ONE CAMERA TO ANOTHER."

TELEDYNE LEARNED OF THE RFP AND SUBMITTED AN OFFER TO FURNISH ITS DBM 54 CAMERA, STATING THAT THE CAMERA WAS A "COMPARABLE PRODUCT PRESENTLY IN USE BY POINT MUGU." THE NAVY THEN AUTHORIZED THE CONTRACTING OFFICER TO INCLUDE TELEDYNE AS AN APPROVED SOURCE AND TO CHANGE THE ITEM DESCRIPTION BY ADDING THE DBM-54 CAMERA AND DELETING THE LAST SENTENCE REGARDING INTERCHANGEABLE MAGAZINES. ON SEPTEMBER 4, 1974, THE CONTRACTING OFFICER SENT A LETTER TO TELEDYNE AND TO THE PROTESTER, INFORMING THEM THAT COMPETITIVE NEGOTIATIONS WERE BEING CONDUCTED AND REQUESTING BEST AND FINAL OFFERS BASED ON A REVISED ITEM DESCRIPTION READING AS FOLLOWS:

"6710 CAMERA, MODEL 1-P OR DBM-54, 16MM FILM WITH 400' MAGAZINE DUAL LED, SPEED TO 400, VARIABLE SHUTTER, C MOUNT. THE FOLLOWING REQUIREMENTS ARE APPLICABLE: HIGH SPEED, PIN-REGISTERED, INTERMITTENT WITH DUAL REGISTRATION PINS AND DUAL PULL DOWN CLAWS, 400 FT. FILM CAPACITY, 400 FRAMES PER SECOND AND .2994 FILM PITCH. CAMERA MUST EQUAL OR EXCEED ABOVE SPECIFICATIONS."

BOTH COMPANIES CONFIRMED THEIR PREVIOUSLY SUBMITTED OFFERS, AND ON SEPTEMBER 23, 1974, AWARD WAS MADE TO TELEDYNE AS THE LOW OFFEROR.

THE PROTESTER CLAIMS THAT WHEN IT RECEIVED THE SEPTEMBER 4 LETTER, IT CONTACTED THE CONTRACTING OFFICER BY TELEPHONE TO OBTAIN CLARIFICATION SINCE THE DBM-54 CAMERA "DID NOT NORMALLY INCLUDE DUAL REGISTRATION PINS, DUAL PULL DOWN PINS, OR MAGAZINE LOAD CAPABILITIES." THE PROTESTER FURTHER CLAIMS THAT THE CONTRACTING OFFICER CONFIRMED THE APPLICABILITY OF THE ITEM DESCRIPTION REQUIREMENTS TO BOTH CAMERAS. THE PROTESTER ALSO CLAIMS THAT WHEN IT LEARNED OF THE AWARD TO TELEDYNE, IT CHECKED WITH THE BUYER AND WAS ASSURED THAT THE CONTRACT CONTAINED THE REVISED SPECIFICATION REQUIREMENTS UPON WHICH THE PROTESTER HAD SUBMITTED AN OFFER. ON THAT BASIS, INSTRUMENTATION MARKETING PROTESTED THAT TELEDYNE "HAS NO INTENTION OF SUPPLYING *** A CAMERA INCORPORATING MAGAZINE LOAD OR DUAL REGISTER PINS BUT RATHER A STANDARD DBM-54."

THE RECORD SHOWS THAT THE CONTRACT AWARDED TELEDYNE DOES INCORPORATE THE REVISED ITEM DESCRIPTION SET FORTH IN THE SEPTEMBER 4 LETTER. HOWEVER, THE AIR FORCE ADMITS THAT WHAT WAS DESIRED AND WHAT WAS ULTIMATELY FURNISHED WAS ONLY THE STANDARD DBM-54 AND THAT THE CONTRACTING OFFICER "NEGLECTED TO CHANGE THE SUPPORTING DETAILED SPECIFICATIONS FROM THOSE FOR THE 16MM 1-P CAMERA OF INSTRUMENTATION MARKETING TO INCLUDE THOSE OF THE NEWLY QUOTED DBM-54 CAMERA OF TELEDYNE." AS THE AIR FORCE VIEWS IT, THIS IS A MINOR ERROR WHICH MAY BE WAIVED BECAUSE THE CONTRACTING OFFICER COULD HAVE CHANGED THE ITEM DESCRIPTION "ANYTIME PRIOR TO AWARD." HOWEVER, WE CANNOT AGREE THAT THE ERROR IS MINOR.

IT IS CLEAR FROM THE RECORD THAT WHILE THE CONTRACT INCLUDED THE SPECIFICATIONS OF THE ITEM DESCRIPTION, THOSE SPECIFICATION REQUIREMENTS WERE NOT INTENDED TO APPLY TO TELEDYNE, WERE NOT CONSIDERED IN THE DECISION TO AWARD A CONTRACT TO TELEDYNE, AND WERE WAIVED BY THE AIR FORCE IN ACCEPTING DELIVERY FROM TELEDYNE OF STANDARD DBM-54 CAMERAS. THEREFORE, WE THINK THE REAL ISSUE IN THIS CASE IS NOT WHETHER TELEDYNE WOULD COMPLY WITH THE LITERAL CONTRACTUAL REQUIREMENTS, BUT WHETHER THE REQUIREMENTS OF COMPETITIVE NEGOTIATION WERE MET IN THIS PROCUREMENT.

THE REVISED ITEM DESCRIPTION WAS SOMEWHAT UNUSUAL IN THAT IT IDENTIFIED TWO MANUFACTURERS' PRODUCTS, BUT SPECIFIED CERTAIN FEATURES THAT WERE NOT NORMALLY FOUND WITH ONE OF THOSE PRODUCTS. WE HAVE CONSIDERED SIMILAR SITUATIONS IN FORMALLY ADVERTISED PROCUREMENTS UTILIZING BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS. IN THOSE CASES, WE HELD THAT WHILE A BRAND NAME SUPPLIER COULD REASONABLY CONCLUDE, ON THE BASIS OF A BRAND NAME DESIGNATION, THAT ITS PRODUCT WOULD BE ACCEPTABLE NOTWITHSTANDING THE LISTING OF CHARACTERISTICS WITH WHICH ITS PRODUCT DID NOT CONFORM, 53 COMP. GEN. 586 (1974), THE GOVERNMENT ALSO COULD PROPERLY SPECIFY CHARACTERISTICS THAT WENT BEYOND A DESIGNATED BRAND NAME PRODUCT WHEN THOSE CHARACTERISTICS REPRESENTED ESSENTIAL NEEDS OF THE AGENCY AND REJECT BIDS BASED ON BRAND NAME PRODUCTS NOT HAVING THE SPECIFIED FEATURES. COMP. GEN. 195 (1969); MATTER OF GENERAL HYDRAULICS CORPORATION, B-181537, AUGUST 30, 1974. WE ALSO STATED THAT WHILE THE AMBIGUITY (DISCOVERED AFTER BID OPENING) CREATED BY THE CONFLICT BETWEEN THE SPECIFIED PRODUCT AND THE ACCOMPANYING CHARACTERISTICS WOULD ORDINARILY WARRANT CANCELLATION OF THE SOLICITATION, SUCH CANCELLATION WOULD NOT BE NECESSARY WHEN IT APPEARED THAT A BRAND NAME SUPPLIER WAS NOT IN FACT MISLED INTO BELIEVING THAT ITS STANDARD PRODUCT DID NOT HAVE TO MEET THE SPECIFIED CHARACTERISTICS. MATTER OF GENERAL HYDRAULICS CORPORATION, SUPRA.

HERE, TELEDYNE, A BRAND NAME SUPPLIER, APPARENTLY WAS NOT MISLED BY THE ITEM DESCRIPTION AND SUBMITTED AN OFFER ON ITS STANDARD PRODUCT. INSTEAD, IT APPEARS THAT IT WAS THE PROTESTER, TELEDYNE'S COMPETITOR, WHICH WAS MISLED INTO BELIEVING THAT THE SOLICITATION REQUIRED TELEDYNE (AND THE PROTESTER) TO FURNISH CAMERAS THAT CONFORMED TO THE REQUIREMENTS OF THE ITEM DESCRIPTION. IN OUR OPINION IT WAS INCUMBENT UPON THE CONTRACTING OFFICER TO ISSUE A WRITTEN AMENDMENT WHICH CLEARLY SET FORTH THE GOVERNMENT'S ACTUAL REQUIREMENTS AND TO ALLOW THE SUBMISSION OF OFFERS BASED ON THOSE REQUIREMENTS. ALTHOUGH THE AIR FORCE SUGGESTS THAT NO PREJUDICE RESULTED BECAUSE BOTH TELEDYNE AND THE PROTESTER WOULD HAVE SUBMITTED THEIR STANDARD PRODUCTS, WE NOTE THAT THE PROTESTER ASSERTS THAT THE RFP DENIED IT "THE POSSIBLE OPPORTUNITY OF SUPPLYING EQUIPMENT AT A LESSER COST." HAD THE RFP PROPERLY DESCRIBED THE GOVERNMENT'S MINIMUM REQUIREMENTS, SO AS TO PUT THE PROTESTER ON NOTICE WITH RESPECT TO THE POSSIBLE COMPETITION ON THE PROCUREMENT, THE PROTESTER MIGHT HAVE OFFERED SOME MODIFIED EQUIPMENT THAT DID NOT CONTAIN ALL OF THE FEATURES OF ITS STANDARD PRODUCT. MORE IMPORTANTLY, IF THE PROTESTER HAD BEEN ON NOTICE THAT IT WAS ACTUALLY FACING COMPETITION ON THIS PROCUREMENT, IT MIGHT HAVE OFFERED ITS STANDARD PRODUCT AT A LOWER PRICE. ACCORDINGLY, SINCE THE PROTESTER'S OFFER WAS SUBMITTED IN THE BELIEF THAT ONLY CAMERAS CONFORMING TO THE ITEM DESCRIPTION WOULD BE ACCEPTED, IT IS OUR BELIEF THAT FULL AND FREE COMPETITION WAS NOT ATTAINED IN THIS PROCUREMENT. SEE 47 COMP. GEN. 778 (1968).

FOR THE REASONS STATED ABOVE, THE PROTEST IS SUSTAINED. HOWEVER, SINCE THE AIR FORCE REPORTS THAT ALL SIX CAMERAS WERE SHIPPED BY THE END OF OCTOBER IN ACCORDANCE WITH THE 30-DAY DELIVERY REQUIREMENT OF THE CONTRACT, MEANINGFUL CORRECTIVE ACTION FOR THIS PROCUREMENT IS NOT POSSIBLE. NEVERTHELESS, WE ARE BRINGING THIS MATTER TO THE ATTENTION OF THE SECRETARY OF THE AIR FORCE WITH THE SUGGESTION THAT STEPS BE TAKEN TO PREVENT A RECURRENCE OF THIS DEFICIENCY IN FUTURE PROCUREMENTS. ALSO, SINCE THE RECORD INDICATES THAT PERSONNEL AT THE POINT MUGU NAVAL AIR STATION WERE FAMILIAR WITH THE TELEDYNE CAMERA AND THAT THE CAMERA WOULD MEET THE NAVY'S NEEDS, IT APPEARS THAT THE ORIGINAL SOLE-SOURCE REQUIREMENT OF THE MIPR WAS NOT PROPERLY JUSTIFIED. THEREFORE, WE ARE BRINGING THIS MATTER TO THE ATTENTION OF THE SECRETARY OF THE NAVY.