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