BNUMBER:  B-255709.2
DATE:  September 14, 1995
TITLE:  Infrared Technologies Corporation--
Reconsideration

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Matter of:     Infrared Technologies Corporation--            
Reconsideration

File:          B-255709.2

Date:          September 14, 1995
                                                            
Carlos Ghigliotti for the protester.
Deidre A. Lee, National Aeronautics and Space Administration, for the 
agency.
Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.
                                                            
DIGEST

Protest is sustained where record shows awardee's offer was 
technically unacceptable and did not affirmatively represent that firm 
would meet the required delivery schedule.
                                                            
DECISION

Infrared Technologies Corporation requests reconsideration of our 
decision, Infrared Technologies Corp., B-255709, Mar. 23, 1994, 94-1 
CPD  212, in which we denied its protest against the award of a 
contract to Inframetrics, Inc. under invitation for bids (IFB) No. 
3-523916, issued by the National Aeronautics and Space Administration 
(NASA) for four infrared thermal imagers.  Infrared contends that our 
earlier decision was erroneous.

We have reexamined the record and our conclusions.  For the reasons 
stated below, we reverse our earlier decision and sustain Infrared's 
protest.

The solicitation was originally issued as a brand name or equal IFB 
and requested fixed-price bids to furnish one commercial and three 
"ruggedized" versions of the Mitsubishi Model IR-M300 infrared thermal 
imager, or equal.  The commercial version of the imager is to be used 
for ground testing while the ruggedized imagers are to be used on 
board the space shuttle to conduct various experiments.  The IFB 
contained a list of salient characteristics and a descriptive 
literature clause which required firms offering equal products, rather 
than the brand name product, to provide detailed technical information 
to demonstrate that their offered product met or exceeded the salient 
characteristics.  Among other things, all of the offered imagers 
including the commercial model were required to have an internal 
six-filter wheel and a remote interface.  The ruggedized versions of 
the imagers were additionally required to meet detailed vibration 
requirements, that is, the imager had to operate properly under 
specified external vibration conditions.

In response to the IFB, NASA received four bids.  After reviewing the 
bids, NASA concluded that all were nonresponsive.  Infrared's bid, 
which offered the name brand product, was determined nonresponsive 
because it stated that the vibration requirements for the ruggedized 
versions of the imager would not be met.  Inframetrics's bid was found 
nonresponsive because the firm failed to sign the bid and did not 
submit a certificate of procurement integrity.  The other two bids 
were found nonresponsive for failing to meet one or more of the 
salient characteristics.  Because no responsive bids had been 
submitted, NASA converted the acquisition from sealed bidding to 
negotiation in accordance with Federal Acquisition Regulation  
14.404-1(e)(1) and 15.103.  All four firms were notified of the 
agency's action and the reasons why their bids were found 
nonresponsive.

In response to the agency's letter, Infrared submitted a list of 
questions to NASA relating to the vibration specification.  The agency 
provided a response to Infrared's questions.  Thereafter, the firm 
submitted another letter which stated that Infrared could meet the 
vibration requirement.  (Infrared's second letter also contained 
additional questions to which the agency never responded.)  After 
receiving Infrared's response, NASA found the firm's offer 
unacceptable; although Infrared had offered to comply with the 
vibration specification, NASA was not satisfied with what it viewed as 
a blanket offer of compliance to meet this requirement with no 
supporting data.

As for Inframetrics--which offered an equal product rather than a name 
brand product--NASA obtained the firm's signature on its bid and also 
a properly executed certificate of procurement integrity.  (The other 
two proposals in the competitive range were found technically 
unacceptable for various reasons.)  Based on these results, NASA made 
award to Inframetrics, even though the firm had submitted the highest 
price ($439,500 compared to Infrared's price of $293,436) among the 
competing offerors.  In making its award, NASA found that 
Inframetrics's offered equal product met all of the solicitation's 
salient characteristics.

In its protest, Infrared argued that NASA had improperly rejected its 
offer because it had in fact proposed to meet the vibration 
requirements.  Infrared also contended that Inframetrics's offer was 
technically unacceptable for a number of reasons, including that the 
firm's standard unit would not meet various salient characteristics 
within the required delivery period.  In its reconsideration request, 
Infrared continues to maintain that Inframetrics's offer was 
inadequate to demonstrate that its equal product met all of the 
salient characteristics.  NASA, on the other hand, agrees with the 
conclusion in our previous decision that Inframetrics's offer was 
adequate to show that its product met the salient characteristics.

In a brand name or equal acquisition, firms offering to provide 
products equal to the name brand product must demonstrate through 
materials submitted with their bids or offers that their product meets 
or exceeds the solicitation's material requirements, including any 
listed salient characteristics.  AZTEK, Inc., B-229897, Mar. 25, 1988, 
88-1 CPD  308.

Our original decision held that Infrared's offer was properly found 
technically unacceptable for failing to demonstrate compliance with 
the vibration requirement.  As noted, Infrared maintains that this 
finding was improper, and that its offer in fact met this requirement; 
Infrared maintains that it can support the assertion in its offer with 
test data.  We think the firm should have submitted its test data with 
its best and final offer (BAFO), or at least indicated to the agency 
that such data were available.  (Infrared has not provided our Office 
with the test data.)  On the record before us, we have no basis to 
question our earlier finding that Infrared's imager did not meet the 
vibration specification.  It thus remains our conclusion that 
Infrared's offer did not adequately demonstrate compliance with the 
solicitation.

At the same time, we find that Inframetrics's offer also was 
unacceptable because it failed to adequately demonstrate that the 
firm's standard, commercial model (the first camera to be furnished 
under the contract) would meet the salient characteristics, or that if 
it ultimately did, it would do so within the prescribed delivery 
schedule.   Inframetrics's BAFO stated that:

     "Inframetrics proposes to supply for the first deliverable, the 
     standard version of the camera without the filter wheel and 
     remote interface, operating in the 3.0 to 5.0 microns waveband.  
     This camera will later be upgraded to include the filter wheel 
     and remote interface to support ground based testing.  A complete 
     radiometric analysis will be supplied when the exact imaging 
     requirements are determined.  This analysis shall be used in 
     conjunction with input from NASA['s] . . . technical 
     representatives to define the optimum camera configuration. . . 
     ."

This aspect of Inframetrics's offer was technically unacceptable.  
First, the quoted language clearly indicated that the first 
deliverable would not include two of the salient characteristics--a 
filter wheel and a remote interface.  The proposal therefore was 
noncompliant with the RFP on its face.  See IRT Corp., B-246991, Apr. 
22, 1992, 92-1 CPD  378.  Second, the quoted language also clearly 
indicated that Inframetrics would need input from NASA's technical 
representatives before defining the optimum camera configuration.  
This requirement for post-award input from the agency made it 
uncertain whether Inframetrics was offering a conforming, acceptable 
imager.

Further, Inframetrics's offer was silent with respect to precisely 
when the imager would be upgraded.  The offer therefore was 
unacceptable because it did not commit Inframetrics to supply 
conforming units within the agency's delivery schedule.  Where a 
firm's offer fails to affirmatively demonstrate compliance with the 
solicitation's delivery schedule (which is a material term of any 
solicitation), the offer should be rejected as unacceptable.  VR 
Envtl. Servs., 71 Comp. Gen. 354 (1992), 92-1 CPD  370.  We note in 
this connection that Inframetrics in fact did not meet the required 
delivery schedule.  Specifically, the record shows that although award 
was made to the firm on October 14, 1993 (and our Office issued its 
first decision in connection with this protest on March 23, 1994), 
Inframetrics did not deliver the first unit until June 27, 256 days 
after award, notwithstanding the solicitation requirement for delivery 
of this unit within 60 days after award.

In our view, NASA failed to treat the two firms equally.  It is a 
fundamental principal of government procurement law that an agency 
must treat all offerors equally and evaluate their offers consistently 
against the solicitation's requirements.  CXR Telecom, B-249610.5, 
Apr. 9, 1993, 93-1 CPD  308.  As discussed, both firms submitted 
technically unacceptable offers; Infrared offered inadequate 
information to show that it would meet the vibration specification, 
while Inframetrics offered to supply a nonconforming first 
deliverable, and indicated that it would require NASA's input before 
ultimately defining the optimum camera configuration.[1]  NASA ignored 
the defects in Inframetrics's offer, while finding the protester's 
offer technically unacceptable.  This disparate treatment of the firms 
was inconsistent with the requirement that all firms be treated 
equally, and thus was improper.  Id.  The proper course of action for 
the agency would have been either to cancel the acquisition, or engage 
in further discussions with both firms (after amending the 
solicitation, if necessary) in an effort to obtain a technically 
acceptable offer.

We are advised by NASA that Inframetrics has delivered three of the 
four imagers to the agency.  In view of this substantial performance, 
it is not practicable for us to make a recommendation for corrective 
action.  We therefore find Infrared entitled to the costs of preparing 
its proposal.  4 C.F.R.  21.6(d)(2) (1995).  We also find Infrared 
entitled to the costs of filing and pursuing its bid protest, 
including reasonable attorneys' fees.  4 C.F.R.  21.6(d)(1).  In 
accordance with 4 C.F.R.  21.6(f), Infrared should submit its 
certified claim for these costs, detailing the time expended and the 
costs incurred, to the agency within 60 days of its receipt of our 
decision.

Our prior decision is reversed; the protest is sustained.

 \s\ James F. Hinchman
 for Comptroller General
     of the United States

1. Infrared continues to maintain in its reconsideration that 
Inframetrics was technically unacceptable for reasons beyond the 
defects discussed above.  We need not resolve these issues, since we 
find that NASA improperly accepted Inframetrics's offer for the 
reasons discussed.