B-179423, FEB 21, 1974, 53 COMP GEN 614

B-179423, FEB 21, 1974, 53 COMP GEN 614

CONTRACTS - NEGOTIATION - REQUESTS FOR PROPOSALS - AMENDMENT - REQUIRED FOR CHANGES IN RFP UPON DETERMINATION BY A CONTRACTING AGENCY THAT A SALIENT CHARACTERISTIC NOT LISTED IN THE REQUEST FOR PROPOSALS (RFP) WAS ESSENTIAL, THE AGENCY SHOULD HAVE ISSUED AN AMENDMENT TO THE RFP SPECIFYING THE REQUIREMENT AND PROVIDING AN OPPORTUNITY FOR FURTHER PROPOSALS SINCE PARAGRAPH 3-805.4(A) OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES FOR THE MODIFICATION OF AN RFP WHEN A DECISION IS MADE TO RELAX, INCREASE OR OTHERWISE MODIFY THE SCOPE OF WORK OR THE STATEMENT OF REQUIREMENTS. FURTHERMORE, THE USE OF THE TERMS "RAPIDLY" AND "CONVENIENTLY" IN THE SPECIFICATIONS WITHOUT AN EXPLANATION OF THE TERMS WAS AMBIGUOUS AND PROVISION SHOULD LIKEWISE HAVE BEEN MADE TO INDICATE IN THE RFP THE REQUIREMENT OF THE GOVERNMENT IN MORE PRECISE TERMS.

IN THE MATTER OF APOLLO LASERS, INC.; SOLID STATE RADIATIONS, INC., FEBRUARY 21, 1974:

REQUEST FOR PROPOSALS (RFP) DAAD05-73-R-0142, ISSUED BY THE ABERDEEN PROVING GROUND, ABERDEEN, MARYLAND, SOLICITED PROPOSALS FOR A HOLOGRAM RECONSTRUCTION DEVICE ON A BRAND NAME OR EQUAL BASIS FOR USE BY THE BALLISTICS RESEARCH LABORATORIES (BRL). THE BRAND NAME ITEM WAS A TRW 1200M MANUFACTURED BY TRW INSTRUMENTS, WHICH COMPANY WAS PURCHASED BY SOLID STATE RADIATIONS, INC. (SOLID STATE). TWO PROPOSALS WERE RECEIVED BY ABERDEEN IN RESPONSE TO THE RFP, ONE FROM SOLID STATE OFFERING THE TRW 1200M AND ANOTHER FROM APOLLO LASERS, INC. (APOLLO), OFFERING THAT COMPANY'S OWN HOLOCAMERA SYSTEM. THE PROPOSAL PRICES RECEIVED WERE AS FOLLOWS:

SOLID STATE $61,630.00

APOLLO:

ALTERNATE PROPOSAL NO. 1 48,664.55

ALTERNATE PROPOSAL NO. 2 55,524.55

THE PROPOSALS WERE SENT TO BRL FOR EVALUATION AND IT WAS DETERMINED THAT ONLY THE PROPOSAL OF SOLID STATE WAS ACCEPTABLE. AWARD WAS MADE TO SOLID STATE ON JULY 31, 1973, AND A NOTICE OF AWARD WAS SENT TO APOLLO ON THE SAME DATE WHICH STATED THAT THE APOLLO PROPOSAL WAS REJECTED FOR THE FOLLOWING REASON:

IT IS REQUIRED THAT TRANSITION FROM TRANSMISSION TO REFLECTION BE MADE CONVENIENTLY AND RAPIDLY, WHEREAS ON EQUIPMENT YOU OFFERED IT IS NECESSARY TO DETACH SOME OF THE COMPONENTS FROM THE TABLE AND MOVE THEM TO DIFFERENT POSITIONS.

ON AUGUST 7, 1973, APOLLO PROTESTED THE AWARD TO OUR OFFICE ON THE GROUNDS THAT THE RFP FAILED TO RELATE THE REQUIREMENTS OF THE GOVERNMENT; THAT THE USE OF THE "BRAND NAME OR EQUAL" SPECIFICATION WAS USED TO DIRECT, IN EFFECT, A SOLE-SOURCE AWARD TO SOLID STATE; AND THAT APOLLO'S EQUIPMENT WAS COMPARABLE TO THAT OF SOLID STATE AND LOWER IN PRICE.

IN RESPONSE TO THE PROTEST, THE CONTRACTING OFFICER STATED ANOTHER REASON FOR REJECTING THE APOLLO PROPOSAL:

*** THIS PARTICULAR FAILURE TO MEET THE ESSENTIAL REQUIREMENTS OF THE GOVERNMENT'S INTENDED USE OF THE EQUIPMENT BEING PROCURED WAS SELECTED BECAUSE IT WAS INTERPRETED TO BE THE ONE MOST OBVIOUSLY IN CONFLICT WITH THE REQUIREMENTS OF THE SOLICITATION AND THE ONE TO WHICH SPECIFIC REFERENCE IN THE RFP COULD BE MADE. IT IS DEFINITELY NOT THE ONLY FAILURE TO MEET THE REQUIREMENTS OF THE SOLICITATION. ANY "TABLE TOP" CONFIGURATION, AS OPPOSED TO THE "OVERHEAD SUSPENSION" CONFIGURATION, DICTATED BY THE BRAND NAME OR EQUAL REQUIREMENT OF THE SOLICITATION, IS NOT CONSIDERED BY THE GOVERNMENT TO BE TECHNICALLY ACCEPTABLE.

WE HAVE REVIEWED THE RFP PURCHASE DESCRIPTION FOR THE HOLOCAMERA SYSTEM. IT DOES NOT STATE ANY REQUIREMENT FOR AN OVERHEAD CONFIGURATION. WHILE THIS CONFIGURATION IS THE MANNER IN WHICH THE TRW 1200M IS CONSTRUCTED, IT IS NOT LISTED AS A SALIENT CHARACTERISTIC. SECTION 1-1206.2(B) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES, IN PART, AS FOLLOWS:

"BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS SHOULD SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCTS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT ***.

MOREOVER, CERTAIN ENGINEERING DATA, INCLUDING STRUCTURAL ARRANGEMENT AND INTERRELATION OF ITEMS ARE CONVEYED TO OFFERORS BY NAMING THE BRAND. HOWEVER, THE AGENCY MAY NOT REJECT AN ITEM FOR FAILING TO MEET ONE OF THE UNLISTED FEATURES OF THE NAMED ITEM. 50 COMP. GEN. 193 (1970).

IN THE CIRCUMSTANCES, WE CONCLUDE THAT IT WOULD HAVE BEEN IMPROPER TO REJECT THE APOLLO PROPOSAL BECAUSE THE EQUIPMENT OFFERED WAS A TABLE TOP CONFIGURATION. HOWEVER, ASPR 3-805.4(A) PROVIDES IN PART:

(A) WHEN, EITHER BEFORE OR AFTER RECEIPT OF PROPOSALS, CHANGES OCCUR IN THE GOVERNMENT'S REQUIREMENTS OR A DECISION IS MADE TO RELAX, INCREASE OR OTHERWISE MODIFY THE SCOPE OF THE WORK OR STATEMENT OF REQUIREMENTS, SUCH CHANGE OR MODIFICATION SHALL BE MADE IN WRITING AS AN AMENDMENT TO THE SOLICITATION ***.

THEREFORE, SINCE THE AGENCY HAD A NEED FOR AN OVERHEAD CONFIGURATION AND THAT WAS NOT LISTED AS A SALIENT CHARACTERISTIC, THE AGENCY SHOULD HAVE ISSUED AN AMENDMENT TO THE RFP SPECIFYING THE REQUIREMENT AND PROVIDING AN OPPORTUNITY FOR FURTHER PROPOSALS. IN THAT CONNECTION, WE OBSERVE THAT APOLLO HAS STATED IN AN OCTOBER 17, 1973, LETTER TO OUR OFFICE THAT IT COULD HAVE PRODUCED AN OVERHEAD SYSTEM AND WOULD HAVE OFFERED ONE IF THE RFP REQUIRED IT.

FURTHER, WITH RESPECT TO THE REQUIREMENT IN THE RFP THAT "THERE SHALL BE PROVISIONS FOR MAKING THE TRANSITION FROM TRANSMISSION TO REFLECTION HOLOGRAMS CONVENIENTLY AND RAPIDLY," THERE IS NOTHING IN THE RFP THAT DEFINES "CONVENIENTLY AND RAPIDLY." APOLLO STATES THAT ITS SYSTEM CAN BE CHANGED IN TEN TO FIFTEEN MINUTES BY AN EXPERIENCED OPERATOR. OUR OFFICE HAS ASCERTAINED INFORMALLY FROM SOLID STATE THAT IT TAKES THREE TO FOUR MINUTES TO CONVERT THE TRW 1200M FROM TRANSMISSION TO REFLECTION HOLOGRAMS. BOTH SYSTEMS REQUIRE AN UNBOLTING, MOVING AND BOLTING OF CERTAIN ELEMENTS TO CHANGE FROM TRANSMISSION TO REFLECTION. WHILE ONE CHANGE MAY BE MORE RAPID AND CONVENIENT THAN THE OTHER, THERE IS NO INDICATION IN THE SOLICITATION AS TO THE DEGREE OF RAPIDITY OR CONVENIENCE REQUIRED AND OFFERORS ARE LEFT WITHOUT SPECIFIC GUIDELINES IN THAT REGARD. SUCH DETERMINATION IS LEFT TO THE SUBJECTIVE JUDGMENT OF THE PROCUREMENT PERSONNEL AFTER THE RECEIPT OF OFFERS. THUS, BECAUSE OF LACK OF DEFINITION, PROCUREMENT PERSONNEL COULD CONSIDER EITHER THE SOLID STATE EQUIPMENT OR THE EQUIPMENT OF BOTH OFFERORS AS MEETING THE RAPIDITY AND CONVENIENCE REQUIREMENT. IN VIEW OF THE AMBIGUOUS NATURE OF THE TERMS "CONVENIENTLY AND RAPIDLY," WE LIKEWISE BELIEVE THAT PROVISION SHOULD HAVE BEEN MADE TO INDICATE IN THE RFP THE REQUIREMENT OF THE GOVERNMENT IN MORE PRECISE TERMS.

AS THE HOLOCAMERA SYSTEM WAS DELIVERED TO BRL ON OCTOBER 18, 1973, NO CORRECTIVE ACTION ON THE PROCUREMENT IS POSSIBLE AT THIS TIME. HOWEVER, WE RECOMMEND THAT THE CONTRACTING AGENCY TAKE APPROPRIATE ACTION TO PRECLUDE A RECURRENCE OF THIS SITUATION IN THE FUTURE.