B-214738, AUG. 23, 1984, 84-2 CPD 220

B-214738: Aug 23, 1984

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CONTRACTS - NEGOTIATION - REQUESTS FOR PROPOSALS - SPECIFICATIONS - MINIMUM NEEDS - ADMINISTRATIVE DETERMINATION DIGEST: PROTEST AGAINST THE ELIMINATION OF THE PROTESTER'S PROPOSAL FROM THE COMPETITIVE RANGE IS DENIED WHERE THE AGENCY REASONABLY DETERMINED THAT THE PROPOSED APPROACH WOULD NOT SATISFY ESSENTIAL SOLICITATION REQUIREMENTS. THE SOLICITATION IS FOR A COUNTERFEIT DETERRENCE DEVICE FOR USE ON UNITED STATES CURRENCY NOTES. IS TO ASSIST THE AVERAGE CITIZEN IN ASSESSING THE AUTHENTICITY OF CURRENCY NOTES AND TO PRECLUDE COUNTERFEITING BY CONVENTIONAL LITHOGRAPHIC AND COPIER MEANS. THE SOLICITATION STATES THAT IT IS: "AIMED AT IMPROVING THE TECHNICAL LEVEL OF COUNTERFEIT DETERRENCE OF U.S.

B-214738, AUG. 23, 1984, 84-2 CPD 220

CONTRACTS - NEGOTIATION - REQUESTS FOR PROPOSALS - SPECIFICATIONS - MINIMUM NEEDS - ADMINISTRATIVE DETERMINATION DIGEST: PROTEST AGAINST THE ELIMINATION OF THE PROTESTER'S PROPOSAL FROM THE COMPETITIVE RANGE IS DENIED WHERE THE AGENCY REASONABLY DETERMINED THAT THE PROPOSED APPROACH WOULD NOT SATISFY ESSENTIAL SOLICITATION REQUIREMENTS.

APPLIED RESEARCH, INC.:

APPLIED RESEARCH, INC. PROTESTS THE DEPARTMENT OF THE TREASURY'S ELIMINATION OF ITS PROPOSAL FROM THE COMPETITIVE RANGE UNDER REQUEST FOR PROPOSALS (RFP) NO. BEP-83-64(N). THE SOLICITATION IS FOR A COUNTERFEIT DETERRENCE DEVICE FOR USE ON UNITED STATES CURRENCY NOTES. WE DENY THE PROTEST.

THE PURPOSE OF THE DEVICE, AS PROVIDED IN THE RFP STATEMENT OF WORK, IS TO ASSIST THE AVERAGE CITIZEN IN ASSESSING THE AUTHENTICITY OF CURRENCY NOTES AND TO PRECLUDE COUNTERFEITING BY CONVENTIONAL LITHOGRAPHIC AND COPIER MEANS. THE SOLICITATION STATES THAT IT IS:

"AIMED AT IMPROVING THE TECHNICAL LEVEL OF COUNTERFEIT DETERRENCE OF U.S. NOTES BY INCORPORATING AN OPTICALLY VARIABLE FEATURE OR DEVICE WHICH PROVIDES TWO OR MORE DISTINCT OR DIFFERENT IMAGES WHEN VIEWED IN A MANNER WHICH CAUSES EACH IMAGE TO APPEAR. SUCH IMAGE CHANGES MAY BE CAUSED BY CHANGING THE ANGLE OF INCIDENCE OF VIEWING, CHANGING THE AMOUNT OF LIGHT FALLING ON THE DEVICE BY SHADING, COMPARING THE TRANSMITTED LIGHT IMAGE WITH THE REFLECTED LIGHT IMAGE ETC."THE SPECIFICATIONS REQUIRE THAT THE DEVICE BE HIGHLY VISIBLE AND RECOGNIZABLE BY THE AVERAGE CITIZEN AS GENUINE, EVEN IN A SEVERELY USED CONDITION.

IN AN AMENDMENT TO THE SOLICITATION, THE AGENCY STATED THAT IT WOULD ACCEPT A DEFINITION OF OPTICALLY VARIABLE DEVICE (OVD) DIFFERENT THAN THAT CONTAINED IN THE SOLICITATION "IF IT WERE ABLE TO DEFEAT CURRENT AND ADVANCED REPROGRAPHICS." /1/ THIS AMENDMENT APPARENTLY RESULTED FROM A QUESTION POSED BY APPLIED RESEARCH.

THE PROTESTER PROPOSED TO MEET THE RFP REQUIREMENTS BY INTEGRATING A UNIQUE PRINTED STRUCTURE, CONSISTING OF A GEOMETRIC PATTERN, INTO THE CURRENCY. THIS STRUCTURE, CALLED A MOIRE INDUCING DEVICE, DISTORTS UPON BEING REPLICATED BY PHOTOLITHOGRAPHY OR XEROGRAPHY. THE DISTORTION RESULTS BECAUSE PHOTOLITHOGRAPHY AND XEROGRAPHY INVOLVE A RESCREENING PROCESS. THE GRATING STRUCTURE IN THE SCREENS INTERFERES WITH THE PRINTED STRUCTURE IN THE ORIGINAL, CAUSING A MOIRE PATTERN TO APPEAR WHEN COPIES ARE MADE.

THE AGENCY NOTIFIED APPLIED RESEARCH THAT ITS PROPOSAL WAS CONSIDERED "NONRESPONSIVE" TO THE SOLICITATION BECAUSE THE PROPOSED APPROACH USES A "NON-VISIBLE DEVICE." APPLIED RESEARCH PROTESTED THIS DETERMINATION TO THE CONTRACTING OFFICER. AFTER THE CONTRACTING OFFICER DENIED THAT PROTEST, APPLIED RESEARCH FILED ITS PROTEST HERE.

AT THE OUTSET WE NOTE THAT THE CONCEPT OF RESPONSIVENESS TECHNICALLY IS NOT APPLICABLE TO A NEGOTIATED PROCUREMENT. B & D SUPPLY COMPANY OF ARIZONA, INC., B-210023, JULY 1, 1983, 83-2 CPD PARA. 50. HOWEVER, THE TERM MAY BE USED TO INDICATE THAT CERTAIN SOLICITATION REQUIREMENTS ARE MATERIAL AND THAT A PROPOSAL WHICH FAILS TO CONFORM TO THEM IS TECHNICALLY UNACCEPTABLE. ID. IT IS IN THAT SENSE THAT THE AGENCY HAS USED THE TERM HERE.

THE CONTRACTING OFFICER STATED IN HIS REPORT TO THIS OFFICE THAT APPLIED RESEARCH'S DEVICE WAS FOUND UNACCEPTABLE BECAUSE IT IS ONLY VISIBLE AFTER COUNTERFEITING. THE CONTRACTING OFFICER NOTED THAT THE PROTESTER STATED IN ITS PROTEST TO THE AGENCY THAT ITS DEVICE IS VISIBLE "AFTER COUNTERFEITING." HE ALSO NOTED THAT THE PROTESTER PROPOSED TO SUPPLY A LASER AUTOMATIC DETECTION SYSTEM (LADS) TO AUTHENTICATE THE MOIRE INDUCING DEVICE PATTERNS ON THE CURRENCY NOTES AFTER APPLICATION. HE CONCLUDED THAT THE PROTESTER'S DEVICE THEREFORE WOULD NOT BE VISIBLE TO THE UNAIDED EYE EXCEPT IN A COUNTERFEIT COPY WHERE MOIRE PATTERNS WOULD APPEAR.

IN ITS COMMENTS ON THE AGENCY REPORT, APPLIED RESEARCH INDICATED THAT ITS DEVICE WOULD BE A SPECIAL SEAL OR OTHER SUCH OBVIOUS PRINTED STRUCTURE. THE PRESENCE OF THE UNDISTORTED SEAL OR STRUCTURE WOULD INDICATE TO THE UNAIDED EYE THAT THE CURRENCY HAD NOT BEEN COUNTERFEITED BY REPROGRAPHIC MEANS. THERE WOULD BE NO NECESSITY FOR THE AVERAGE CITIZEN TO USE A LADS TO AUTHENTICATE THE CURRENCY; RATHER THE LADS WOULD BE USED ONLY BY THE AGENCY TO VERIFY THE MICROSCOPIC DETAIL OF THE DEVICE.

AFTER RECEIVING APPLIED RESEARCH'S COMMENTS ON THE AGENCY REPORT, WE SOLICITED A RESPONSE FROM THE AGENCY. (WE ALSO REQUESTED A COPY OF THE PROTESTER'S PROPOSAL, WHICH WAS NOT INCLUDED WITH THE AGENCY REPORT.) ITS REPLY, THE AGENCY CONCLUDED THAT EVEN IN THE FORM OF A SPECIAL SEAL OR STRUCTURE, APPLIED RESEARCH'S DEVICE WOULD STILL NOT BE ACCEPTABLE BECAUSE IT LACKS ANY OPTICALLY VARIABLE QUALITY. THE AGENCY STATES THAT THE KIND OF DEVICE IT WANTS IS ONE WHICH WILL NOT ONLY DEFEAT REPROGRAPHICS BUT ALSO HAVE HIGHLY VISIBLE CHARACTERISTICS SUCH AS A COLOR OR IMAGE SHIFT, OR A THREE DIMENSIONAL IMAGE SUCH AS A HOLOGRAM. APPLIED RESEARCH'S DEVICE DOES NOT EXHIBIT ANY SUCH CHARACTERISTICS AND THEREFORE, THE AGENCY CONCLUDES THAT IT WOULD NOT BE READILY DISTINGUISHABLE FROM THE OTHER STRUCTURES AND DESIGNS ALREADY PRESENT IN CURRENCY NOTES.

THE EVALUATION OF TECHNICAL PROPOSALS AND THE DETERMINATION OF WHO IS AND IS NOT IN THE COMPETITIVE RANGE IS A MATTER WITHIN THE DISCRETION OF THE PROCURING ACTIVITY SINCE THE AGENCY IS RESPONSIBLE FOR IDENTIFYING ITS NEEDS AND THE BEST METHOD OF ACCOMMODATING THEM. GENERAL TECHNOLOGY APPLICATIONS, INC., B-204635, MARCH 22, 1982, 82-1 CPD PARA. 266. ACCORDINGLY, OUR FUNCTION IS NOT TO EVALUATE PROPOSALS ANEW AND MAKE OUR OWN DETERMINATION OF THEIR ACCEPTABILITY, BUT TO EXAMINE THE RECORD AND APPLY A STANDARD OF REASONABLENESS TO THE CONTRACTING AGENCY'S DETERMINATION. A. T. KEARNEY, INC., B-205898.2, FEB. 28, 1983, 83-1 CPD PARA. 190. IN ADDITION, IT IS THE OFFEROR'S RESPONSIBILITY TO AFFIRMATIVELY DEMONSTRATE THE MERITS OF ITS PROPOSAL. ROACH MANUFACTURING CORP., B-208574, MAY 23, 1983, 83-1 CPD PARA. 547.

HERE, THE PROTESTER STATED IN ITS TECHNICAL PROPOSAL THAT IT WOULD INTEGRATE THE MOIRE INDUCING DEVICE INTO EITHER THE GENERAL BACKGROUND ON THE FRONT OR BACK OF THE CURRENCY, THE BACKGROUND OF THE PORTRAIT ON THE FRONT OF THE CURRENCY, OR THE BACKGROUND OF THE GREAT SEAL OR FEDERAL BUILDINGS ON THE BACK OF THE CURRENCY. NOWHERE DID IT STATE THAT IT INTENDED TO SUPPLY A SPECIAL SEAL OR STRUCTURE FOR APPLICATION TO THE CURRENCY. ALTHOUGH THE SOLICITATION DID NOT PRECLUDE INCORPORATION OF THE SOLICITED DEVICE INTO AN EXISTING PATTERN OR STRUCTURE ON THE CURRENCY, IT DID REQUIRE THAT THE DEVICE BE HIGHLY VISIBLE AND RECOGNIZABLE BY THE AVERAGE CITIZEN. WE BELIEVE THAT THE AGENCY COULD REASONABLY CONCLUDE, BASED ON THE PROTESTER'S PROPOSAL, THAT ITS DEVICE DID NOT MEET THOSE REQUIREMENTS (WAS "NON-VISIBLE") SINCE AUTHENTIC CURRENCY CONTAINING THE DEVICE WOULD LOOK VIRTUALLY NO DIFFERENT FROM CURRENCY NOT CONTAINING IT.

MOREOVER, WE FIND THAT THE AGENCY REASONABLY CONCLUDED THAT THE PROTESTER'S DEVICE WOULD NOT BE ACCEPTABLE EVEN IF SUPPLIED IN THE FORM OF A SPECIAL SEAL OR STRUCTURE. AS THE AGENCY NOTES, THE SOLICITATION IS FOR AN OVD, WHICH IS DESCRIBED AS PROVIDING TWO OR MORE DISTINCT OR DIFFERENT IMAGES DEPENDING ON THE MANNER IN WHICH THE IMAGE IS VIEWED. APPLIED RESEARCH ADMITS THAT ITS DEVICE DOES NOT MEET THIS DEFINITION OF AN OVD.

THE PROTESTER ARGUES, HOWEVER, THAT ITS DEVICE MUST BE CONSIDERED ACCEPTABLE BECAUSE THE AGENCY AMENDED THE SOLICITATION AND STATED THAT IT WOULD ACCEPT A DIFFERENT DEFINITION OF OVD IF IT COULD DEFEAT REPROGRAPHICS. ACCORDING TO APPLIED RESEARCH, ITS DEVICE IS OPTICALLY VARIABLE IN THE SENSE THAT ITS APPEARANCE CHANGES UPON BEING COPIED BY REPROGRAPHIC MEANS. THE PROTESTER ALSO POINTS OUT THAT THE OVD SPECIFICATIONS STATE THAT "ANY VISUALLY DISCERNABLE SYSTEM WHICH CANNOT BE SIMULATED BY LITHOGRAPHY OR REPROGRAPHY WILL BE CONSIDERED."

WE THINK THAT THE POINT HERE IS TO CREATE A DEVICE THAT WOULD CLEARLY INDICATE TO EVERYONE THAT A BILL WAS GENUINE IN A WAY THAT WOULD BE EXTREMELY DIFFICULT OR IMPOSSIBLE TO DEFEAT BY A COUNTERFEITER. THUS, THE FACT THAT THE AGENCY EXPRESSED A WILLINGNESS TO CONSIDER ALTERNATIVES TO THE TYPES OF OVD'S DESCRIBED IN ITS SOLICITATION DOES NOT REQUIRE IT TO ACCEPT A DEVICE WHICH DOES NOT MEET ITS MINIMUM NEEDS. THOSE NEEDS, AS REFLECTED IN THE RFP, ARE FOR A HIGHLY VISIBLE AND RECOGNIZABLE DEVICE WHOSE CHARACTERISTICS INCLUDE SOME TYPE OF OPTICALLY VARIABLE FEATURE. THE AGENCY STATES THAT APPLIED RESEARCH'S DEVICE IS INADEQUATE TO SATISFY THESE NEEDS BECAUSE THE DEVICE, ON ITS FACE, IS NOT OPTICALLY VARIABLE AND IT LACKS ANY OTHER CHARACTERISTICS WHICH WOULD RENDER IT HIGHLY VISIBLE AND SET IT APART FROM THE OTHER PATTERNS AND STRUCTURES ON CURRENCY NOTES. IN FACT, THE PROTESTER ITSELF HAS STATED THAT EVIDENCE THAT THE MOIRE INDUCING DEVICE HAS BEEN INCORPORATED ON A CURRENCY NOTE WOULD BE QUITE TRIVIAL.

AS STATED ABOVE, OUR ROLE IS NOT TO EVALUATE PROPOSALS INDEPENDENTLY, BUT RATHER TO REVIEW THE CONTRACTING AGENCY'S EVALUATION TO SEE IF IT WAS REASONABLE. UNDER THE CIRCUMSTANCES, WE CANNOT CONCLUDE THAT THE AGENCY'S EXCLUSION OF APPLIED RESEARCH FROM THE COMPETITIVE RANGE LACKS A REASONABLE BASIS.

THE PROTEST IS DENIED.

/1/ REPROGRAPHY IS A TERM USED TO DESCRIBE THE TECHNOLOGY OF COPYING AND PHOTOREPRODUCTION. THE SOLICITATION VARIOUSLY DESCRIBES THE COUNTERFEITING TECHNIQUE IT SEEKS TO PRECLUDE AS "REPROGRAPHICS," "CONVENTIONAL LITHOGRAPHY AND COPIER MEANS," "LITHOGRAPHY OR REPROGRAPHY," AND "XEROGRAPHY OR PHOTO LITHOGRAPHY."