B-216948, B-217353, APR 2, 1985, 85-1 CPD 381

B-216948, B-217353, APR 2, 1985, 85-1 CPD 381

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - ADVERSE AGENCY ACTION EFFECT DIGEST: 1. ONCE A TIMELY PROTEST TO THE CONTRACTING AGENCY HAS BEEN FILED, ANY SUBSEQUENT PROTEST TO GAO MUST BE FILED WITHIN 10 WORKING DAYS AFTER THE PROTESTER HAS NOTICE OF INITIAL ADVERSE AGENCY ACTION ON THE PROTEST. THE TIME FOR FILING AT GAO IS NOT TOLLED WHILE A PROTESTER CONTINUES TO PURSUE ITS PROTEST WITH THE AGENCY. CONTRACTS - REQUESTS FOR QUOTATION - SPECIFICATIONS - BRAND NAME OR EQUAL - "EQUAL" PRODUCT EVALUATION 2. AGENCY PROPERLY REFUSED TO CONSIDER PRODUCT ALLEGED TO BE EQUAL TO THE SPECIFIED BRAND NAME PRODUCT WHERE PRODUCT DID NOT COMPLY WITH A PARTICULAR FEATURE OF THE BRAND NAME ITEM THAT WAS IDENTIFIED IN THE SOLICITATION. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - SOLICITATION IMPROPRIETIES - APPARENT PRIOR TO BID OPENING/CLOSING DATE FOR PROPOSALS PROTEST OBJECTING TO SPECIFICATION REQUIREMENT IS UNTIMELY WHEN FILED AFTER CLOSING DATE FOR RECEIPT OF OFFERS.

WESTERN GRAPHTEC, INC.:

WESTERN GRAPHTEC, INC. PROTESTS THE ISSUANCE OF ORDERS DAADO5-84-F 4118 AND DAADO5-84-F-E266 TO GOULD INC. UNDER REQUESTS FOR QUOTATIONS DAADO5-84 -Q-0684 (RFQ-0684) AND DAADO5-84-Q-2554 (RFQ-2554) ISSUED BY THE ARMY MATERIEL COMMAND. BOTH ORDERS WERE FOR GOULD RECORDERS AND RELATED EQUIPMENT AND WERE PLACED UNDER GOULD'S FEDERAL SUPPLY SCHEDULE (FSS) CONTRACT. WESTERN GRAPHTEC CONTENDS THAT IT HAS FSS LISTED EQUIPMENT THAT WOULD MEET THE ARMY'S NEEDS AT A LOWER PRICE. THE PROTESTS ARE DENIED IN PART AND DISMISSED IN PART.

A RECORDER OR OSCILLOGRAPH RECORDS DATA, IN THIS CASE ELECTROPHYSIOLOGICAL DATA, BY TRACING LINES ON MOVING CHART PAPER. RFQ 0684, ISSUED MARCH 13, 1984, REQUESTED QUOTATIONS ON A BRAND NAME OR EQUAL BASIS FOR A GOULD RECORDER AND RELATED EQUIPMENT AND INCLUDED A LIST OF SALIENT CHARACTERISTICS TO BE MET BY EQUIPMENT PROPOSED AS EQUAL. AMONG OTHER THINGS, AN EQUAL RECORDER WAS REQUIRED TO HAVE A NON-THERMAL, "PRESSURIZED FLUID WRITING SYSTEM ASSURING CLEAR TRACES OVER THE ENTIRE PEN VELOCITY RANGE." RFQ-2554, ISSUED AUGUST 8, ALSO REQUESTED QUOTATIONS FOR A GOULD BRAND NAME RECORDER OR EQUAL AND RELATED EQUIPMENT. THIS RFQ DID NOT LIST SALIENT CHARACTERISTICS BUT THE BID SCHEDULE INDICATED THAT THE GOULD RECORDER HAS "INK WRITING CHANNELS."

UNDER BOTH SOLICITATIONS, WESTERN GRAPHTEC QUOTED PRICES ON ITS MODEL WR- 3101 OSCILLOGRAPH AS EQUAL TO THE GOULD RECORDER. LITERATURE SUBMITTED WITH WESTERN GRAPHTEC'S QUOTATIONS INDICATED THAT ITS MODEL HAS A THERMAL WRITING SYSTEM. IN SUCH A SYSTEM, LINES ARE TRACED BY MOVING HEAT SENSITIVE PAPER UNDER A HEATED STYLUS RATHER THAN BY USING A PRESSURIZED INK PEN WRITING SYSTEM SUCH AS IS USED BY GOULD.

PROTEST UNDER RFQ-0684

THE PROTEST UNDER RFQ-0684 WAS UNTIMELY FILED AND IS DISMISSED. THE RECORD SHOWS THAT THE ORDER WAS PLACED WITH GOULD ON JULY 2. WESTERN GRAPHTEC PROTESTED THE REJECTION OF ITS LOWER PRICED QUOTATION TO THE ARMY ON JULY 3. BY LETTER DATED SEPTEMBER 17, THE ARMY DENIED THE PROTEST. WESTERN GRAPHTEC CONTINUED TO PURSUE THE MATTER WITH THE ARMY AND DID NOT PROTEST TO OUR OFFICE UNTIL OCTOBER 26.

UNDER OUR BID PROTEST PROCEDURES, ONCE A PROTEST WAS TIMELY FILED WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO OUR OFFICE HAD TO BE FILED WITHIN 10 WORKING DAYS AFTER THE PROTESTER RECEIVED NOTICE OF INITIAL ADVERSE AGENCY ACTION ON THE PROTEST. 4 C.F.R. SEC. 21.2(A) (1984). THE FACT THAT A PROTESTER CONTINUED TO PURSUE ITS PROTEST WITH THE CONTRACTING AGENCY DOES NOT ALTER THIS RULE. ENERGY MASTER OF MARYLAND, INC., B-215642, JULY 20, 1984, 84-2 CPD PARA. 76. SINCE WESTERN GRAPHTEC DID NOT FILE ITS PROTEST WITH THIS OFFICE WITHIN 10 WORKING DAYS AFTER RECEIPT OF THE CONTRACTING OFFICER'S DENIAL OF ITS AGENCY PROTEST, THE PROTEST TO OUR OFFICE OF THE ORDER FROM GOULD UNDER RFQ-0684 IS UNTIMELY.

PROTEST UNDER RFQ-2554

THE PROTEST UNDER RFQ-2554 IS DISMISSED IN PART AND DENIED IN PART. THE ARMY MADE AWARD TO GOULD AFTER EVALUATING FROM GOULD AND WESTERN GRAPHTEC. GOULD PRICED ITS EQUIPMENT AT $18,756.72. WESTERN GRAPHTEC SUBMITTED TWO QUOTATIONS, ONE AT #13,756.00 FOR ITS MODEL WR-3101-8 AND A SECOND AT $12,500.00 FOR ITS MODEL WR-3101-4. THE CONTRACTING OFFICER REJECTED WESTERN GRAPHTEC'S OFFERS BECAUSE THAT FIRM PROPOSED THERMAL SYSTEMS.

THE ARMY'S REFUSAL TO ACCEPT WESTERN GRAPHTEC'S QUOTATIONS WAS PROPER BECAUSE, ALTHOUGH RFQ-2554 DID NOT CONTAIN A LIST OF "SALIENT CHARACTERISTICS" EXPLICITLY DENOMINATED AS SUCH, IT DID IDENTIFY THE GOULD BRAND NAME PRODUCTS AS HAVING "INK WRITING CHANNELS." WHEN A SOLICITATION SETS FORTH PARTICULAR FEATURES OF THE BRAND NAME ITEM, THESE FEATURES ARE PRESUMED TO BE MATERIAL AND ESSENTIAL TO THE GOVERNMENT'S NEEDS. NEXUS INC., B-196593, APR. 15, 1980, 80-1 CPD PARA. 269. IT IS CLEAR THAT WESTERN GRAPHTEC'S RECORDERS DID NOT CONFORM TO THIS REQUIREMENT, AND THUS, COULD NOT HAVE BEEN ACCEPTED WITHOUT AN RFQ AMENDMENT AND RESUBMISSION OF QUOTES. PARKSON CORP., B-187101, FEB. 11, 1977, 77-1 CPD PARA. 103.

TO THE EXTENT WESTERN GRAPHTEC SEEKS TO QUESTION THE PROPRIETY OF REQUIRING AN INK RATHER THAN A THERMAL SYSTEM, ITS PROTEST IS UNTIMELY UNDER OUR BID PROTEST PROCEDURES, WHICH REQUIRED THAT PROTESTS OF ALLEGED DEFICIENCIES THAT ARE APPARENT IN A SOLICITATION BE FILED BEFORE THE CLOSING DATE FOR RECEIPT OF QUOTATIONS. 4 C.F.R. SEC. 21.2(B)(1). WESTERN GRAPHTEC'S SUBMISSIONS INDICATE THAT FIRM WAS AWARE THAT INK WRITING RECORDERS WERE REQUIRED BUT DID NOT PROTEST TO OUR OFFICE UNTIL AFTER QUOTATIONS WERE DUE.

THE PROTEST UNDER RFQ-0684 IS DISMISSED; THE PROTEST UNDER RFQ-2554 IS DENIED IN PART AND DISMISSED IN PART.