B-167920, NOV. 7, 1969

B-167920, NOV. 7, 1969

SPECIFICATIONS--ADEQUACY--ACCESSORY ITEMS REQUEST FOR CANCELLATION OF CONTRACT AWARD SUBMITTED AFTER CLOSING DATE AND QUESTIONING ADEQUACY OF DESCRIPTION OF ACCESSORY ITEMS (CARRYING CASE, LENS TISSUE, ETC.) FOR COMMERCIAL SLIDE PROJECTOR IS DENIED IN VIEW OF ADMINISTRATIVE REPORT INDICATING ACCESSORY ITEMS WOULD LOGICALLY BE THOSE NORMALLY SUPPLIED WITH STANDARD COMMERCIAL ITEMS, AND SINCE DRAFTING OF SPECIFICATIONS TO MEET GOVERNMENT MINIMUM NEEDS AND DETERMINING THEIR ADEQUACY ARE WITHIN ADMINISTRATIVE DISCRETION, AND GAO WILL NOT SUBSTITUTE ITS JUDGMENT FOR AGENCY'S WHERE DIFFERENCES OF OPINION EXIST, ABSENT CLEAR EVIDENCE OF ERROR. MOREOVER, COMPLAINT OF INADEQUACY SHOULD BE TIMELY RAISED, ESPECIALLY IN NEGOTIATED PROCUREMENT, WHERE OPPORTUNITY FOR DISCUSSION IS PROVIDED.

TO CHARLES BESELER COMPANY:

YOUR TELEGRAM DATED SEPTEMBER 12, 1969, REQUESTS CANCELLATION OF REQUEST FOR PROPOSALS (RFP) NO. DAAB05-69-0228, ISSUED BY THE UNITED STATES ARMY ELECTRONICS COMMAND, AND THE AWARD MADE THEREUNDER ON THE GROUND THAT THE RFP DID NOT ADEQUATELY DESCRIBE THE ACCESSORY ITEMS LISTED THEREIN TO BE FURNISHED WITH THE END ITEM.

THE SUBJECT PROCUREMENT, NEGOTIATED PURSUANT TO 10 U.S.C. 2304 (A) (2), THE PUBLIC EXIGENCY EXCEPTION TO THE FORMAL ADVERTISING REQUIREMENT, REQUESTED OFFERS FOR 1,383 COMMERCIAL STILL PICTURE SLIDE PROJECTORS TO BE USED FOR THE PROJECTION OF SLIDES FOR CLASSROOM TRAINING. FIVE COMMERCIAL MODELS OF SLIDE PROJECTORS, INCLUDING THE CHARLES BESELER VU-GRAPH CENTURY, CATALOG NO. VGC612, WERE LISTED IN THE RFP SCHEDULE AS ACCEPTABLE. ACCESSORY ITEMS WERE LISTED IN THE SCHEDULE AS FOLLOWS: "2 EACH ROLL ATTACHMENT 2 EACH ACETATE ROLL, 100 FT. 1 EACH CASE CARRYING 5 PKG LENS TISSUE, PER UU-P-313 (TYPE I) WHITE, LIGHT WEIGHT, SOFT FINISH, 3 INCHES X 5 INCHES, 100 SHEETS PER PACKAGE, LINTLESS.'

THE RFP WAS ISSUED ON MAY 26, 1969, TO EIGHT PROSPECTIVE OFFERORS, BY THE CLOSING DATE OF JUNE 16, 1969, PROPOSALS HAD BEEN RECEIVED FROM FIVE OFFERORS, FOUR OF WHICH OFFERED THE COMMERCIAL MODELS OF PROJECTORS LISTED IN THE RFP. IN ADDITION TO OFFERING THE LISTED BESELER PROJECTOR, YOUR COMPANY SUBMITTED PRICE QUOTES ON FOUR ALTERNATE PROJECTOR MODESL. ALSO, THE BUHL PROJECTOR COMPANY, THE OFFEROR TO WHICH AWARD WAS ULTIMATELY MADE, SUBMITTED OFFERS ON TWO OF ITS PROJECTOR MODELS NOT LISTED IN THE SCHEDULE. AFTER AMENDMENT OF THE RFP TO INCLUDE FIVE OF THE SIX ALTERNATELY OFFERED PROJECTORS AND TO ADD THE BRAND NAME OR EQUAL PROVISION SET OUT IN PARAGRAPH 1-1206.3 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), THE DATE OF SEPTEMBER 3, 1969, WAS SET AS THE FINAL DATE FOR REVISION OF PROPOSALS. PROPOSAL MODIFICATIONS WERE SUBMITTED BY BUHL AND BESELER, ALTHOUGH THE BESELER MODIFICATION WAS DETERMINED TO BE LATE AND THEREFORE NOT FOR CONSIDERATION. SEE PARAGRAPH 8 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS. THE BUHL PROPOSAL PRICE, AS REVISED, HOWEVER, WAS LOWER THAN THE UNACCEPTABLE REVISED BESELER PRICE.

YOU MAINTAIN THAT THE LISTED ACCESSORY ITEMS "ARE INADEQUATELY DESCRIBED AND THEREFORE PROVIDE NO BASIS FOR EVALUATION OF COMPETITIVE OFFERS" AND THAT "DESCRIPTIONS OF ACCESSORY ITEMS ARE SO LOOSE THAT THE GOVERNMENT HAS NO EFFECTIVE YARDSTICK AGAINST WHICH TO MEASURE THE PRODUCT TO BE DELIVERED BY THE SUCCESSFUL OFFEROR.' YOU CONTEND THEREFORE THAT THE GOVERNMENT FACES THE RISK OF EITHER ACCEPTING INADEQUATE CONTRACT ITEMS OR OF HAVING TO AMEND ITS CONTRACT TO PROVIDE FOR A PRICE INCREASE IN ORDER TO ASSURE THAT ADEQUATE CONTRACT ITEMS ARE RECEIVED.

WE ARE ADVISED BY THE DEPARTMENT OF THE ARMY THAT THE ACCESSORY ITEMS SET OUT IN THE RFP COMPRISE BUT A SMALL PORTION OF THE TOTAL CONTRACT PRICE AND THAT SINCE THE PROJECTORS BEING PROCURED ARE STANDARD COMMERCIAL ITEMS, IT WOULD BE LOGICAL TO PRESUME THAT THE ACCESSORY ITEMS REQUESTED WOULD BE THOSE NORMALLY SUPPLIED WITH STANDARD COMMERCIAL ITEMS. CONCERNING THE ADEQUACY OF THE RFP DESCRIPTION OF THE ACCESSORY ITEMS, THE DEPARTMENT REPORTS THAT:

"* * * THE ROLL ATTACHMENT AND ACETATE ROLL ARE BOTH STANDARD ACCESSORIES WHICH ACCOMPANY ALL OF THE MODELS ACCEPTED. THE LENS TISSUE IS SO SPECIFICALLY DESCRIBED THAT THERE SHOULD NOT BE ANY ROOM FOR DOUBT. THE CARRYING CASE IS STANDARD WITH MOST OF THE SAID MODELS. THIS ITEM WAS NOT A TOPIC OF MAJOR DISCUSSION DURING NEGOTIATIONS BECAUSE ALL THE GOVERNMENT WANTED WAS A CASE THAT WOULD BE COMMERCIALLY ACCEPTABLE FOR ORDINARY AND NORMAL USE. THAT IS, A CASE WHICH WOULD BE SUITABLE FOR CARRYING THE PROJECTOR AND THE ACCESSORIES FROM ROOM TO ROOM OR FROM BUILDING TO BUILDING. * * *" FINALLY, THE DEPARTMENT POINTS OUT THAT NO MENTION OF THE ALLEGED RFP INADEQUACY WAS MADE BY YOUR COMPANY UNTIL AFTER THE FINAL DATE FIXED FOR SUBMISSION OF PROPOSALS, OR MORE THAN 3 MONTHS AFTER ISSUANCE OF THE RFP, AND REFERS TO OUR DECISIONS B-161642, AUGUST 17, 1967, AND B-162566, DECEMBER 13, 1967. THE LATTER CASE HELD:

"IT MAY ALSO BE POINTED OUT THAT OUR OFFICE HAS TAKEN THE POSITION THAT THE APPROPRIATE TIME FOR A DETAILED EXAMINATION OF THE SOLICITATION AND CLARIFICATION OF ANY PROVISION THEREOF CONSIDERED TO BE AMBIGUOUS OR CONFUSING IS PRIOR TO THE TIME SPECIFIED FOR SUBMISSION OF BIDS. SEE B- 151355, JUNE 25, 1963. THE SUBMISSION OF A PROTEST AFTER SUCH TIME, ON MATTERS WHICH YOU COULD REASONABLY BE EXPECTED TO HAVE HAD CLARIFIED DURING THE PERIOD IN WHICH YOU WERE COMPUTING YOUR PRICE, TENDS TO SUGGEST A QUESTION AS TO THE SINCERITY OF THE PROTEST, FREQUENTLY OPERATES AS A HINDRANCE TO THE PROCURING ACTIVITY IN OBTAINING NEEDED ITEMS IN A TIMELY MANNER, INCREASES THE ADMINISTRATIVE COSTS OF THE PROCUREMENT, AND SERIOUSLY DETRACTS FROM THE BENEFITS DERIVED BY THE GOVERNMENT FROM THE COMPETITION.'

GENERALLY, THE DRAFTING OF SPECIFICATIONS TO MEET THE GOVERNMENT'S MINIMUM NEEDS AND THE DETERMINATION WHETHER ITEMS OFFERED MEET SPECIFICATIONS ARE WITHIN THE DISCRETION OF THE PROCURING AGENCY. THEREFORE, OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE AGENCY WHERE A DIFFERENCE OF OPINION AS TO SPECIFICATION ADEQUACY EXISTS ABSENT CLEAR EVIDENCE OF EFFORT. IN OUR OPINION, THE ADMINISTRATIVE POSITION, SUMMARIZED ABOVE, DEMONSTRATES THAT THE ACCESSORY ITEMS CALLED FOR BY THE INSTANT RFP WERE ADEQUATELY DESCRIBED. SEE B-161642, SUPRA.

ALSO, WE ARE IN AGREEMENT WITH THE ADMINISTRATIVE POSITION THAT COMPLAINTS OF SPECIFICATION INADEQUACIES SHOULD BE TIMELY RAISED BY OTHERWISE INTERESTED FIRMS. THIS IS PARTICULARLY TRUE IN A NEGOTIATED PROCUREMENT, AS HERE INVOLVED, WHERE OPPORTUNITY IS PROVIDED TO DISCUSS PROPOSALS AND SPECIFICATIONS AND, AS WAS DONE IN THE INSTANT CASE, TO OFFER ALTERNATE SOLUTIONS TO PROCUREMENT PROBLEMS.

IN ACCORDANCE WITH THE ABOVE CONSIDERATIONS, YOUR PROTEST MUST BE DENIED.