B-164727, OCT. 11, 1968

B-164727, OCT. 11, 1968

TO MR. WILLIAM DILLENBACK:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 26, 1968, PROTESTING THE AWARD MADE UNDER REQUEST FOR PROPOSALS DAJA37-68-R-0274 ISSUED BY THE UNITED STATES ARMY PROCUREMENT CENTER, FRANKFURT, GERMANY.

THE REQUEST FOR PROPOSALS WAS FOR A REQUIREMENTS CONTRACT FOR VARIOUS STYLE AND SIZE SPECTACLE FRAMES FOR RESALE WHICH WERE DIVIDED INTO ITEMS SOLICITING SEPARATE PRICES FOR FRONTS AND SEPARATE PRICES FOR TEMPLES. NOTE AT THE END OF THE LIST OF ITEMS PROVIDES FOR THE FRONTS BEING MATCHED TO THE CORRESPONDING TEMPLES. THE FRONTS AND CORRESPONDING TEMPLES AND THE PRICES QUOTED ON THEM AND THE RESULTING COMPLETE FRAME PRICES WERE AS FOLLOWS:

FRONT

ITEM 1AA 1AB 1AC 2 3 4AA 4AB 4AC 5 6

TEMPLE

ITEM 7AA 7AB 7AC 7AD 8 9AA 9AB 9AC 9AD 10 BAUSCH FRONT AND PRICE $1.42 $2.05 $2.27 $2.58 $1.42 $1.37 $1.33 $1.37 $2.19 $1.33

LOMB TEMPLE

PRICE .74 .77 .74 .74 .74 .91 .74 .91 2.36 .74

COMPLETE FRAME

PRICE 2.16 2.82 3.01 3.32 2.16 2.28 2.07 2.28 4.55 2.07 AMERICAN OPTICAL COMPANY FRONT

PRICE $1.90 $ .75 $2.65 ---- $ .81 $1.10 $ .95 $1.05 $2.20 $ .83

TEMPLE PRICE .85 .651.20 ---- .85 .90 .80 .85

1.95 .88

COMPLETE FRAME PRICE 2.75 1.40 3.85 ---- 1.66 2.00 1.75

1.90 4.15 1.71

A CONTRACT FOR 1 YEAR COMMENCING APRIL 1, 1968, WAS AWARDED TO AMERICAN OPTICAL COMPANY FOR ALL THE ITEMS BID UPON.

YOU HAVE PROTESTED THAT THE FRAME SPECIFICATIONS IN THE REQUEST FOR PROPOSALS WERE UNDULY RESTRICTIVE BECAUSE THEY SPECIFIED EYE AND BRIDGE SIZES COPIED FROM THE STYLES OF AMERICAN OPTICAL COMPANY, WHEREAS YOU STATE THAT REPUTABLE FRAME MANUFACTURERS PRODUCE THEIR FRAMES IN A RANGE OF SIZES SELECTED TO MEET NEARLY ALL FITTING REQUIREMENTS AND THAT THE EYE AND BRIDGE SIZES HAVE LITTLE, IF ANYTHING, TO DO WITH POSITIONING THE LENS PROPERLY AND COMFORTABLY IN FRONT OF THE EYES AND ARE SIMPLY INFORMATION PROVIDED BY THE MANUFACTURER AS TO THE SIZE AND DECENTRATION TO WHICH THE LENS MUST BE CUT TO FIT THE FRAME.

CONTRARY TO YOUR CONTENTIONS, THE DIRECTOR FOR OPTICAL ACTIVITIES, UNITED STATES ARMY MEDICAL DEPOT, EINSIEDLERHOF, STATES THAT THE BRIDGE SIZE IS MOST IMPORTANT FOR PROPER POSITIONING OF THE LENS IN FRONT OF THE EYES AND, IN PARTICULAR, TO PERMIT THE OPTIMUM LOCATION OF THE BIFOCAL SEGMENT AS WELL AS SIMPLE PHYSICAL COMFORT. THE DIRECTOR STATES THAT THE USE OF TOO NARROW A BRIDGE WOULD CAUSE THE FRAME TO PERCH HIGH ON THE NOSE AND, IN THE CASE OF HEAVY MINUS OR PLUS LENS, THE WEIGHT WOULD BE DISTRIBUTED IMPROPERLY AND WOULD OFTEN CAUSE DISCOMFORT AND LESIONS. FURTHER, THE DIRECTOR STATES THAT THE OPTICAL CENTER OF EVEN A SINGLE VISION LENS WOULD BE DISPLACED UNLESS ALLOWED FOR AND DECENTERED BY A TRAINED DISPENSER PRIOR TO THE SUBMISSION OF THE PRESCRIPTION TO THE LABORATORY. IN THAT REGARD, THE DIRECTOR STATES: "OUT OF 69 ARMY AND AIR FORCE EYE CLINICS SERVICED BY THE OPTICAL LABORATORY, ONLY 3 HAVE PERSONNEL POSSESSING ANY OPTICAL KNOWLEDGE WHATSOEVER. THESE 3 RECEIVED ONLY TRAINING AS LABORATORY OPTICAL TECHNICIANS, NOT DISPENSING OPTICIANS. THE CLINIC OPTOMETRISTS AND OPTHALMOLOGISTS ARE GENERALLY OVERWORKED AND TOO BUSY WITH THEIR PRIMARY FUNCTION OF EYE EXAMINATIONS TO ENGAGE IN TAKING FRAME AND FACIAL MEASUREMENTS OR DISPENSING COMPLETED SPECTACLES. THIS TASK IS LEFT TO THE CLINIC MEDICAL TECHNICIAN WHO IS USUALLY HASTILY GIVEN ONLY THE BARE RUDIMENTS OF MEASURING, FITTING, AND ADJUSTING. TO COMPENSATE FOR THIS LACK OF SKILL AND TRAINING, IT IS NECESSARY TO RETAIN SIZES AND RELATIVE DIMENSIONS WITH WHICH SUCH PERSONNEL ARE FAMILIAR SO THAT MEASUREMENTS SUCH AS SEGMENT HEIGHT, DECENTRATION, OR PRISM (THE LATTER WHICH THEY CANNOT COMPUTE) WILL RETAIN AT LEAST SOME SEMBLANCE OF ACCURACY. A CHANGE OF ONLY 2MM IN THE VERTICAL DIMENSION OF AN EYEWIRE COULD RESULT IN A RASH OF INCORRECTLY MEASURED SEGMENT HEIGHTS AND A LOSS TO THE GOVERNMENT OCCASIONED BY THE NECESSITY OF MULTIPLE -DO OVER- JOBS AT NO COST TO THE PATIENT. THIS COULD CONTINUE FOR SOME TIME AND, MULTIPLIED BY 69 WOULD REPRESENT A CONSIDERABLE LOSS TO THE GOVERNMENT.' ADDITIONALLY, THE DIRECTOR HAS ADVISED THAT THE EYE AND BRIDGE DIMENSIONS SPECIFIED IN THE REQUEST FOR PROPOSALS WERE BASED UPON ACTUAL RESALE EXPERIENCE AND WERE REQUIRED BECAUSE OF THE AGE GROUPS OF THE CUSTOMERS SERVICED BY THE ARMY OPTICAL FACILITIES. THEREFORE, THE SIZES SPECIFIED IN THE REQUEST FOR PROPOSALS APPEAR TO HAVE BEEN MADE NECESSARY BECAUSE OF THE AGES OF THE CUSTOMERS TO BE SERVICED AND THE LIMITED ABILITY OF THE PERSONNEL WHO ARE RESPONSIBLE FOR FITTING THE FRAMES.

THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND FOR DETERMINING FACTUALLY WHETHER ARTICLES OFFERED BY OFFERORS MEET THOSE SPECIFICATIONS PRIMARILY IS THAT OF THE CONTRACTING AGENCIES OF THE GOVERNMENT. 17 COMP. GEN. 554 AND 40 ID. 294. ALTHOUGH IT IS THE DUTY OF OUR OFFICE TO DETERMINE WHETHER SPECIFICATIONS AS WRITTEN ARE UNDULY RESTRICTIVE OF COMPETITION, THE FACT THAT A PARTICULAR OFFEROR MAY BE UNABLE TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEEDS IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. 30 COMP. GEN. 368 AND 33 ID. 586. THERE IS NO REQUIREMENT THAT THE GOVERNMENT PURCHASE ARTICLES WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING OFFERORS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF ARTICLES WHICH DO NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEED.

YOU HAVE PROTESTED THAT PROPER CONSIDERATION WAS NOT GIVEN TO THE OFFER FROM BAUSCH AND LOMB. IN THAT REGARD, OUR OFFICE HAS BEEN ADVISED BY THE DEPARTMENT OF THE ARMY THAT YOUR COMPANY WAS PERMITTED TO FURNISH SAMPLES REQUIRED BY THE REQUEST FOR PROPOSALS AFTER THE TIME PROVIDED BY THE REQUEST FOR PROPOSALS AND THAT THE CONTRACTING OFFICER DETERMINED THAT THE SAMPLES DID NOT MEET THE SIZE REQUIREMENTS OF THE REQUEST FOR PROPOSALS AND, THEREFORE, MADE AN AWARD TO AMERICAN OPTICAL COMPANY ON THE BASIS THAT IT WAS MORE ADVANTAGEOUS TO THE GOVERNMENT. REVIEW OF THE MATTER REVEALS THAT, WHILE YOUR COMPANY WAS LOW OFFEROR ON SEVERAL DIFFERENT FRONT AND TEMPLE ITEMS, IT WAS LOW OFFEROR ON ONLY THREE COMPLETE FRAMES. OF THOSE THREE, IT DID NOT MEET THE DIMENSIONS OF ONE OF THEM, FRONT ITEM 1AA, AND THE CONSTRUCTION OF ANOTHER ONE, FRONT ITEM 2, WAS DETERMINED TO BE TOO FLIMSY FOR USE BY MILITARY PERSONNEL. THE THIRD COMPLETE FRAME, FRONT ITEM 1AC AND TEMPLE ITEM 7AC, APPARENTLY WOULD HAVE BEEN SATISFACTORY AND THE DEPARTMENT OF THE ARMY RECOGNIZES THAT A CONTRACT FOR THAT FRAME COULD HAVE BEEN AWARDED TO YOUR COMPANY. HOWEVER, THE DEPARTMENT CONSIDERS THAT AN AWARD FOR THAT SINGLE FRAME SHOULD NOT BE MADE TO YOUR COMPANY BECAUSE IT IS THE LEAST ORDERED FRAME AND IT WOULD BE AN ADMINISTRATIVE BURDEN TO HAVE A SEPARATE CONTRACT FOR THAT FRAME ALONE.

FURTHER, IT IS REPORTED THAT THE BAUSCH AND LOMB FRAME USES A DIFFERENT SCREW THAN THE AMERICAN OPTICAL FRAME USES TO HOLD THE TEMPLE HINGE TO THE FRONT HINGE AND THAT THIS WOULD REQUIRE ADDITIONAL TOOLS AND ADDITIONAL TRAINING OF PERSONNEL. ALTHOUGH UNDER THE TERMS AND CONDITIONS OF THE REQUEST FOR PROPOSALS THE GOVERNMENT RESERVED THE RIGHT TO MAKE AN AWARD FOR LESS THAN ALL THE ITEMS TO ANY OFFEROR, THERE IS NO REQUIREMENT IN THE REQUEST FOR PROPOSALS THAT THE AWARD BE MADE ON THAT BASIS. THEREFORE, THE CONTRACTING OFFICER WAS NOT PRECLUDED FROM MAKING AN AWARD FOR ALL ITEMS TO ONE OFFEROR AND AN AWARD FOR THE SINGLE FRAMES TO YOUR COMPANY IS NOT REQUIRED IN THE REPORTED CIRCUMSTANCES.

YOU ALSO PROTESTED THAT THE CONTRACTING OFFICER FAILED TO DISCLOSE INFORMATION REGARDING THE SUCCESSFUL OFFEROR AS PROVIDED BY THE ARMED SERVICES PROCUREMENT REGULATION. THE DEPARTMENT OF THE ARMY HAS ACKNOWLEDGED THAT THERE WAS A FAILURE IN THIS RESPECT AND HAS ADVISED THAT THE COMMANDING GENERAL, UNITED STATES ARMY COMMUNICATIONS ZONE, EUROPE, WILL BE DIRECTED TO TAKE APPROPRIATE ACTION TO INSURE THAT SIMILAR SITUATIONS DO NOT RECUR IN THE FUTURE.