B-172215, DEC 29, 1971

B-172215, DEC 29, 1971

BID PROTEST - UNTESTED EQUIPMENT - RESTRICTIVE SPECIFICATIONS DECISION DENYING PROTEST OF MPO VIDEOTRONICS PROJECTOR CORPORATION AGAINST AWARD TO FAIRCHILD CAMERA AND INSTRUMENT CORPORATION UNDER AN IFB ISSUED BY THE ARMY PROCUREMENT DIVISION. ALTHOUGH PROTESTANT ALLEGES THAT ITEMS PROCURED UNDER THE READVERTISEMENT HAVE NOT BEEN PRODUCED COMMERCIALLY AND WERE NEVER FIELD TESTED, THE ORIGINAL SPECIFICATIONS WERE OVERLY RESTRICTIVE IN THAT THEY LIMITED MANUFACTURE TO PROTESTANT'S EQUIPMENT. SINCE MAXIMUM COMPETITION IS ENCOURAGED BY 10 U.S.C. 2305(A), THERE IS NO LEGAL BASIS FOR OBJECTION AND ACCORDINGLY, THE PROTEST IS DENIED.

TO MPO VIDEOTRONIC PROJECTOR CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 12, 1971, PROTESTING THAT, WHEN BIDS UNDER INVITATION FOR BIDS (IFB) DABB25-71-B-0012, ISSUED BY THE PROCUREMENT DIVISION, FORT MONROE, VIRGINIA, WERE DUE TO BE OPENED, YOUR BID WAS RETURNED UNOPENED TO YOUR CORPORATION AND THE PROCUREMENT SUBSEQUENTLY WAS READVERTISED UNDER IFB DABB25-71-B-0028 CONTAINING REVISED SPECIFICATIONS.

THE ARTICLES BEING PROCURED ARE SUPER 8MM. SOUND MOTION PICTURE PROJECTORS. YOUR PROTEST IS DIRECTED AGAINST THE REVISION OF THE SPECIFICATIONS FOR THE PROJECTORS. YOU HAVE STATED THAT THE ORIGINAL SPECIFICATIONS WERE PREPARED BY THE UTILIZING SERVICE, THE ARMY RECRUITING SERVICE, AFTER THE FIELD TESTING OF 95 UNITS. YOU HAVE PROTESTED AGAINST THE REVISION ON THE BASIS THAT THE EQUIPMENT THE SUCCESSFUL BIDDER ON THE READVERTISEMENT WILL FURNISH HAS NOT BEEN PRODUCED COMMERCIALLY AND THAT IT WAS NEVER FIELD TESTED BY THE USING AGENCY.

THE ORIGINAL SPECIFICATIONS WERE REVIEWED BY THE ENGINEERING OPERATIONS, PROCUREMENT AND PRODUCTION DIRECTORATE, HEADQUARTERS, U.S. ARMY ELECTRONICS COMMAND. AS A RESULT OF THE REVIEW, IT WAS DETERMINED THAT THE SPECIFICATIONS WERE RESTRICTED TO EQUIPMENT MANUFACTURED BY YOUR FIRM. IT WAS FURTHER DETERMINED THAT THE EQUIPMENT WAS COMMERCIALLY AVAILABLE FROM OTHER MANUFACTURERS. THE COMMAND THEREFORE RECOMMENDED THAT THE PROCUREMENT BE MADE NON-RESTRICTIVE. THE PROCUREMENT THEREAFTER WAS LET TO COMPETITION UNDER IFB-0028. YOUR CORPORATION AND FAIRCHILD CAMERA AND INSTRUMENT CORPORATION BID RESPONSIVELY TO THE IFB. AWARD WAS MADE TO FAIRCHILD ON JUNE 25, 1971, AS THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER.

ALTHOUGH YOUR PROJECTOR MAY HAVE BEEN PROVEN TO OPERATE SATISFACTORILY PRIOR TO THE ISSUANCE OF THE ORIGINAL IFB AND WHILE REPRESENTATIVES OF THE ARMY RECRUITING SERVICE MAY HAVE EXPRESSED A PREFERENCE FOR YOUR PROJECTOR, THE PROJECTORS OF OTHER MANUFACTURERS WOULD SERVE EQUALLY AS WELL. FURTHER, WHILE SUCH PROJECTORS MAY HAVE BEEN NEW AND UNTRIED, THE REVISED GOVERNMENT SPECIFICATIONS STATED THE MINIMUM REQUIREMENTS OF THE ARMY AND PROVIDED ALSO FOR INSPECTION AND TESTING TO ASSURE THAT THE CONTRACTOR FURNISHED CONFORMING PROJECTORS.

SECTION 2305(A) OF TITLE 10, U.S.C. PROVIDES THAT, WHENEVER FORMAL ADVERTISING IS REQUIRED, THE SPECIFICATIONS AND INVITATIONS FOR BIDS SHALL PERMIT FREE AND FULL COMPETITION AS IS CONSISTENT WITH THE PROCUREMENT OF THE PROPERTY NEEDED BY THE AGENCY CONCERNED. IN ADDITION, 10 U.S.C. 2305(B) PROVIDES THAT "THE SPECIFICATIONS IN INVITATIONS FOR BIDS *** MUST BE SUFFICIENTLY DESCRIPTIVE IN LANGUAGE AND ATTACHMENTS, TO PERMIT FULL AND FREE COMPETITION." CONSISTENT WITH THE STATUTORY DIRECTION, ASPR 1- 1201 PROVIDES IN PERTINENT PART:

"PLANS, DRAWINGS, SPECIFICATIONS OR PURCHASE DESCRIPTIONS FOR PROCUREMENTS SHALL STATE ONLY THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT AND DESCRIBE THE SUPPLIES AND SERVICES IN A MANNER WHICH WILL ENCOURAGE MAXIMUM COMPETITION AND ELIMINATE, INSOFAR AS POSSIBLE, ANY RESTRICTIVE FEATURES WHICH MIGHT LIMIT ACCEPTABLE OFFERS TO ONE SUPPLIER'S PRODUCT ***

FURTHER, ASPR 2-101(I) STATES THAT INVITATIONS FOR BIDS SHOULD AVOID "UNNECESSARILY RESTRICTIVE SPECIFICATIONS OR REQUIREMENTS WHICH MIGHT UNDULY LIMIT THE NUMBER OF BIDDERS."

IN THE CIRCUMSTANCES, THERE IS NO BASIS FOR ANY LEGAL OBJECTION BY OUR OFFICE TO THE REVISION OF THE SPECIFICATIONS TO PROVIDE FOR COMPETITION AMONG AVAILABLE, QUALIFIED SOURCES. ACCORDINGLY, THE PROTEST IS DENIED.