B-176920, DEC 1, 1972

B-176920, DEC 1, 1972

BID PROTEST - NEW SUPPLIES - SOLICITATION DEFECT - PREJUDICE TO CONTRACTOR DECISION DENYING THE PROTEST OF COMPUSCAN, INC., AGAINST AWARD OF A CONTRACT UNDER A RFP ISSUED BY THE AUTOMATIC DATA PROCESSING EQUIPMENT SELECTION OFFICE, DEPARTMENT OF THE NAVY FOR OPTICAL CHARACTER READERS. ALTHOUGH THE RFP WAS DEFECTIVE IN THAT IT VIOLATED ASPR 1-1208, WHICH REQUIRES SOLICITATIONS FOR THE PURCHASE OF SUPPLIES EITHER TO EXPLICITLY REQUIRE NEW SUPPLIES OR TO PERMIT THE FURNISHING OF USED SUPPLIES THROUGH "PROVISIONS CLEARLY INDICATING THE SUPPLIES WHICH NEED NOT BE NEW, AND DETAILS CONCERNING THEIR ACCEPTABILITY," THE PROTESTANT WAS NOT PREJUDICED BY THIS DEFECT. THEREFORE, THIS DEFECT DOES NOT PRECLUDE A VALID AWARD. 43 COMP. GEN. 23 (1963).

TO SIMON AND ALLEN:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 1, 1972, AND SUBSEQUENT CORRESPONDENCE, PROTESTING ON BEHALF OF COMPUSCAN, INC., THE AWARD OF A CONTRACT UNDER RFP N66032-72-R-0006, ISSUED BY THE AUTOMATIC DATA PROCESSING EQUIPMENT SELECTION OFFICE (ADPESO), DEPARTMENT OF THE NAVY.

THE ABOVE-REFERENCED SOLICITATION WAS ISSUED ON NOVEMBER 23, 1971, FOR 4 OPTICAL CHARACTER READERS, WITH AN OPTION FOR 14 ADDITIONAL READERS. OFFERORS WERE REQUESTED TO SUBMIT PROPOSALS ON FOUR ALTERNATIVE BASES: LEASE; PURCHASE; LEASE WITH OPTION TO PURCHASE; AND LEASE-TO-OWNERSHIP PLAN. PRINCIPALLY IN RESPONSE TO VENDORS' REQUESTS FOR CLARIFICATION, THE SOLICITATION WAS AMENDED THREE TIMES. FIVE PROPOSALS WERE SUBMITTED AS OF THE CLOSING DATE FOR RECEIPT OF PROPOSALS, JANUARY 24, 1972. FOLLOWING AN EVALUATION OF PROPOSALS, AWARD WAS MADE TO CONTROL DATA CORPORATION (CDC) ON JUNE 13, 1972, PROVIDING FOR LEASE OF EQUIPMENT BY THE GOVERNMENT WITH AN OPTION TO PURCHASE. CDC'S OFFER INCLUDED CERTAIN USED, RECONDITIONED EQUIPMENT.

THE SOLICITATION WAS SILENT WITH RESPECT TO WHETHER THE GOVERNMENT WOULD PURCHASE ONLY NEW EQUIPMENT OR WHETHER USED OR RECONDITIONED EQUIPMENT WAS ALSO ACCEPTABLE. HOWEVER, THE ABSENCE OF ANY SUCH PROVISION IN THE RFP WAS NOT QUESTIONED BY ANY OFFEROR BEFORE AWARD.

TELEPHONIC NOTIFICATION OF THE AWARD WAS GIVEN TO THE REMAINING OFFERORS, AND WAS CONFIRMED BY LETTER OF JUNE 14, 1972, WHICH EXTENDED TO EACH UNSUCCESSFUL FIRM AN OPPORTUNITY FOR A DEBRIEFING. BY LETTER OF JULY 12, 1972, COMPUSCAN INQUIRED OF ADPESO "WHAT PROVISION OF THE ACCEPTED CONTRACT PROTECTS THE GOVERNMENT FROM DELIVERY OF USED EQUIPMENT?" JULY 28, 1972, ADPESO INFORMED COMPUSCAN THAT A PROVISION REGARDING ACCEPTABILITY OF USED EQUIPMENT HAD BEEN INADVERTENTLY OMITTED FROM THE RFP, BUT THAT THE OMISSION HAD BEEN CORRECTED BY AN AMENDMENT TO CDC'S CONTRACT REQUIRING USED EQUIPMENT TO CONFORM TO CERTAIN STANDARDS.

COMPUSCAN CONTENDS THAT IT HAD SUBMITTED ITS OFFER IN THE BELIEF THAT ONLY NEW EQUIPMENT WAS ACCEPTABLE, AND THAT IF USED EQUIPMENT WAS ALSO ACCEPTABLE TO THE NAVY, CDC'S CONTRACT SHOULD BE CANCELED AND THE REQUIREMENT RESOLICITED.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1208 REQUIRES SOLICITATIONS FOR THE PURCHASE OF SUPPLIES TO EITHER REQUIRE THE FURNISHING OF NEW SUPPLIES THROUGH INCLUSION OF THE CLAUSE "NEW MATERIAL (JANUARY 1965)" OR TO PERMIT THE FURNISHING OF USED SUPPLIES THROUGH "PROVISIONS CLEARLY INDICATING THE SUPPLIES WHICH NEED NOT BE NEW, AND DETAILS CONCERNING THEIR ACCEPTABILITY." THE NAVY CONCEDES THAT THROUGH INADVERTENCE IT DID NOT COMPLY WITH THE REQUIREMENTS OF ASPR 1-1208 AND, THEREFORE, THE RFP FAILED TO INDICATE WHETHER NEW OR USED EQUIPMENT WAS ACCEPTABLE FOR PURCHASE.

THE SOLICITATION WAS ADMITTEDLY DEFECTIVE IN THAT IT DID NOT INFORM OFFERORS THAT USED EQUIPMENT WAS ACCEPTABLE TO THE NAVY. HOWEVER, IT APPEARS THAT COMPUSCAN DID NOT POSSESS ANY USED EQUIPMENT WHICH IT COULD HAVE OFFERED AND IT HAS NOT BEEN SHOWN THAT COMPUSCAN'S OFFERED PRICE ON ITS NEW EQUIPMENT WOULD HAVE BEEN ALTERED BY THE KNOWLEDGE THAT USED EQUIPMENT WAS ACCEPTABLE. THE SETTLED RULE IS THAT AN AMBIGUITY OR DEFECT IN THE SPECIFICATIONS DOES NOT PRECLUDE A VALID AWARD UNLESS IT CAN ALSO BE SHOWN THAT THE UNSUCCESSFUL FIRM WAS PREJUDICED BY THE AMBIGUITY. COMP. GEN. 23 (1963). IN THE INSTANT CASE, WE CANNOT CONCLUDE THAT YOU WERE PREJUDICED BY THE FAILURE OF THE SOLICITATION TO SPECIFY THE ACCEPTABILITY OF USED EQUIPMENT.

ACCORDINGLY, YOUR PROTEST IS DENIED.