B-195983, JAN 11, 1980

B-195983, JAN 11, 1980

DIGEST: 1. UNDER BID PROTEST PROCEDURES, PROTEST AGAINST REJECTION OF BID AS NONRESPONSIVE AND ACCEPTANCE OF ALLEGEDLY NONRESPONSIVE BID IS TIMELY FILED SINCE, CONTRARY TO AGENCY POSITION, NEITHER BASIS INVOLVES APPARENT SOLICITATION IMPROPRIETY, AND PROTEST WAS FILED WITHIN 10 WORKING DAYS OF LETTER INFORMING PROTESTER OF AWARD AND REASON FOR BID REJECTION. 2. AGENCY POSITION THAT PROTESTER'S BID IS NONRESPONSIVE IS UPHELD WHERE PROTESTER HAS NOT ESTABLISHED THAT PARTICULAR KEY ON ITS TYPEWRITER PERFORMS SAME FUNCTION AS KEY CALLED FOR BY SPECIFICATIONS WHICH IS NOT ON PROTESTER'S TYPEWRITER. 3. WHERE CONCLUSION OF CONTRACTING OFFICER THAT EXTRA KEY ON AWARDEE'S TYPEWRITER KEYBOARD CONFORMS TO APPLICABLE STANDARD (SETTING FORTH ACCEPTABLE KEY ARRANGEMENT AND SILENT ON PRESENCE OF EXTRA KEYS) IS NOT SHOWN TO BE UNREASONABLE, CONCLUSION WILL NOT BE QUESTIONED.

OLYMPIA USA INC.:

OLYMPIA USA INC. (OLYMPIA) PROTESTS THE REJECTION OF ITS BID AS NONRESPONSIVE AND THE ACCEPTANCE FOR AWARD OF A HIGHER-PRICED BID BY THE OFFICE OF PERSONNEL MANAGEMENT (OPM) UNDER INVITATION FOR BIDS (IFB) NO. IFB-OPM-22-79 FOR NONPORTABLE ELECTRIC TYPEWRITERS. OPM REJECTED THE OLYMPIA BID FOR FAILURE OF ITS TYPEWRITER TO HAVE A REPEAT INDEXING KEY, WHICH ADVANCES THE CARRIAGE TO THE NEXT LOWER LINE AT THE SAME LOCATION.

FIRST, OLYMPIA CONTENDS THAT ITS BID WAS RESPONSIVE. WHILE ITS TYPEWRITER DOES NOT HAVE A REPEAT INDEXING KEY, THE SAME FUNCTION IS ALLEGEDLY PERFORMED BY THE REPEAT CARRIAGE RETURN/LINESPACE KEY. SECOND, OLYMPIA STATES THAT THE AWARDEE'S TYPEWRITER DOES NOT MEET THE IFB REQUIREMENT THAT IT CONFORM TO THE AMERICAN NATIONAL STANDARDS INSTITUTE, INC., STANDARD ANSI X4.7-1973 FOR THE ELECTRIC TYPEWRITER KEYBOARD BECAUSE THE AWARDEE'S TYPEWRITER HAS ONE KEY MORE THAN THE STANDARD REQUIRES. THIS ALLEGEDLY CHANGES THE OVERALL CONFIGURATION OF THE KEYBOARD, INCLUDING THE REACH FOR THE CARRIAGE RETURN KEY.

BY WAY OF BACKGROUND, OPM INITIALLY NOTES THAT THE USING ACTIVITY "REVIEWED AND VALIDATED" THE SPECIFICATION. AS REGARDS THE FIRST CONTENTION, OPM REPLIES AS FOLLOWS. A CARRIAGE RETURN KEY DOES NOT PERFORM THE SAME FUNCTION AS A REPEAT INDEXING KEY. WHILE THE FUNCTION OF THE LATTER IS TO ADVANCE THE CARRIAGE TO THE NEXT LOWER LINE AT THE SAME LOCATION, THE REPEAT CARRIAGE RETURN KEY ADVANCES THE CARRIAGE TO THE NEXT LOWER LINE, BUT AT THE LEFT HAND MARGIN. THE REPEAT INDEXING KEY IS A TIMESAVING FEATURE SO THAT A TYPIST DOES NOT HAVE TO SPACE OVER FROM THE LEFT-HAND MARGIN AS WOULD BE REQUIRED USING A CARRIAGE RETURN KEY. THE TYPEWRITERS ARE FOR THE USER'S TRANSCRIPTION CENTERS WHERE THEY ARE IN CONSTANT USE DURING BUSINESS HOURS, A FACT WHICH MAKES THE TIMESAVING NATURE OF A REPEAT INDEXING KEY IMPORTANT.

OLYMPIA'S SECOND CONTENTION IS REFUTED BY OPM WHICH STATES THAT THE KEYBOARD PROVIDED WITH THE TYPEWRITER OFFERED BY THE AWARDEE MEETS ALL OF THE REQUIREMENTS SET FORTH IN STANDARD ANSI X4.7-1973.

IN CONCLUSION, OPM BELIEVES THAT OLYMPIA'S PROTEST AFTER BID OPENING AGAINST APPARENT SOLICITATION IMPROPRIETIES IS UNTIMELY FILED HERE UNDER OUR BID PROTEST PROCEDURES. WE DO NOT AGREE BECAUSE OLYMPIA PROTESTED WITHIN 10 WORKING DAYS OF KNOWING ITS PROTEST BASES, THAT IS, RECEIPT OF THE AGENCY LETTER APPRISING THE FIRM OF THE AWARD AND THE REASON FOR BID REJECTION. SEE 4 C.F.R. SEC. 20.2(B)(2) (1979). NEITHER OF OLYMPIA'S CONTENTIONS INVOLVES AN APPARENT SOLICITATION IMPROPRIETY - THE FIRST GOES TO ACCEPTANCE OF ITS BID UNDER THE SPECIFICATIONS AND THE SECOND CONCERNS THE RESPONSIVENESS OF THE AWARDEE'S BID.

ACCORDINGLY, WE WILL CONSIDER THE PROTEST. FOR THE REASONS SET FORTH BELOW, THE PROTEST IS DENIED.

OLYMPIA ADMITS THAT ITS TYPEWRITER DOES NOT HAVE A REPEAT INDEXING KEY WHICH WAS REQUIRED IN THE SPECIFICATION TO BE PART OF ANY OFFERED TYPEWRITER. WE DO NOT BELIEVE THAT OLYMPIA HAS PRESENTED EVIDENCE TO ESTABLISH THAT ITS REPEAT CARRIAGE RETURN/LINESPACE KEY CAN PERFORM THE SAME FUNCTION AS THE REPEAT INDEXING KEY. IN OUR VIEW, THE CONTRACTING ACTIVITY'S POSITION IN THIS REGARD IS REASONABLE AND SUPPORTS REJECTION OF THE OLYMPIA BID AS NONRESPONSIVE.

WITH RESPECT TO OLYMPIA'S SECOND CONTENTION, WE NOTE THAT THE STANDARD DEALS ONLY WITH "THE ARRANGEMENT OF THE 44 BASIC PRINTING KEYS AND *** THE TWO SHIFT KEYS AND THE SPACE BAR." THE AWARDEE'S TYPEWRITER COMPLIES WITH THE STANDARD. THE STANDARD IS SILENT AS TO THE PRESENCE OF ANY ADDITIONAL KEYS. IN VIEW OF THE ABOVE, WE CONCLUDE THAT THE KEY ARRANGEMENT ON THE AWARDEE'S TYPEWRITER CONFORMS TO THE STANDARD. THUS, WE CANNOT SAY THAT THE CONTRACTING ACTIVITY'S CONCLUSION ON THIS MATTER IS UNREASONABLE AND, THEREFORE, WE WILL NOT QUESTION THAT CONCLUSION. E. I. DU PONT DE NEMOURS & COMPANY, B-191169, JUNE 23, 1978, 78-1 CPD 458.