BNUMBER:  B-274748.3 
DATE:  May 5, 1997
TITLE:  Matter of:National Aeronautics and Space Administration-- 
	Reconsideration and Modification of Remedy

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Matter of:National Aeronautics and Space Administration-- 
          Reconsideration and Modification of Remedy

File:     B-274748.3

Date:May 5, 1997

Andrew Mohr, Esq., Cohen & White, for the protester.
Vincent A. Salgado, Esq., and Thomas W. Berndt, Esq., National 
Aeronautics and Space Administration, for the agency.
John Van Schaik, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision. 

DIGEST

Although Federal Acquisition Regulation (FAR) Part 12, dealing with 
purchases of commercial products, permits requirements to be stated in 
broad functional or performance terms instead of in detailed 
specifications, it requires a contracting agency to describe its need 
for commercial items in "sufficient detail for potential offerors of 
commercial items to know which commercial products or services to 
offer," such that a solicitation is flawed where it does not include 
sufficient information to allow commercial vendors to understand the 
agency's requirements.

DECISION

The National Aeronautics and Space Administration (NASA) requests 
reconsideration of our decision Access Logic, Inc., B-274748; 
B-274748.2, Jan. 3, 1997, 97-1 CPD  para.  36, in which we sustained the 
protest of Access Logic, Inc. against the award of a contract to EISI, 
Inc., under request for offers (RFO) No. 2-36632 (CDT), issued by NASA 
for a 360-degree rear projection display system which will be used to 
simulate the outside view from an air traffic control tower.  NASA 
also requests that we modify our recommendation that NASA terminate 
the contract and resolicit with an appropriate statement of the 
agency's needs.  

We affirm the decision, but modify the recommendation.

Among other items, the RFO specified projection systems and projection 
screens by brand name and indicated that equal products would be 
considered.  Instead of the brand name projection system and screens, 
Access Logic proposed "equal" projectors and screens.  Access Logic's 
proposal was rejected as technically unacceptable.  Among other 
alleged flaws, NASA's evaluators concluded that Access Logic's offer 
did not meet solicitation requirements for mullions, or spacers 
between the projection screens, and requirements for "gain" and "half 
gain angle" of the projection screens.  We sustained the protest 
because we concluded that NASA improperly found Access Logic's offer 
unacceptable for failing to meet requirements not set forth in the 
RFO. 

NASA first argues that our decision was based on a factual error since 
we erroneously concluded that NASA evaluated proposals and defended 
the protest as if it concerned a brand name or equal solicitation.  
According to NASA, it did not evaluate proposals or defend the protest 
as if the solicitation called for brand name or equal items.  Rather 
than a brand name or equal solicitation, NASA states it was always the 
agency's position that the solicitation was for commercial items and 
argues that we erroneously applied standards concerning brand name or 
equal solicitations, instead of the standards set forth in Part 12 of 
the Federal Acquisition Regulation (FAR), "Acquisition of Commercial 
Items."  According to NASA, our decision also was based on errors of 
law because, instead of relying solely upon the standards set forth in 
Part 12 of the FAR, we erroneously relied on standards set forth in 
Part 15 of the FAR concerning the acquisition of noncommercial items.  

The record provides no support for NASA's current position.  In the 
first reference in the decision to the acquisition having been 
conducted on a "brand name or equal" basis, we stated that "the RFO 
specified the Electrohome Marquee 9501LC ACON brand name projection 
systems, or equal, and Optawave projection screens, or equal."  Then, 
in a footnote, we stated:

     "The RFO in fact only stated that "or equal" offers would be 
     considered for the projectors, and not the screens.  Nonetheless, 
     the solicitation included detailed technical requirements for the 
     screens--suggesting that a brand name or equal method also was 
     intended for the screens.  More importantly, in its evaluation of 
     proposals and its defense of this protest, NASA has treated the 
     solicitation as a brand name or equal solicitation for both the 
     projectors and the screens.  Under these circumstances, we have 
     reviewed the evaluation as if the RFO permitted offers of equal 
     products for both items."

NASA specifically complains about this footnote.  According to NASA, 
"[i]t is clear throughout the written record that NASA issued this 
solicitation, evaluated offers, and defended this protest under FAR 
Part 12 and not as a 'brand name or equal' procurement under Part 15 
of the FAR."  Although NASA appears to believe that the above quoted 
footnote demonstrates some misunderstanding on our part concerning the 
way the procurement was conducted, a fair reading of the decision 
demonstrates that our sole purpose in that footnote was to explain why 
NASA evaluated offers of screens other than the brand name screens 
listed in the RFO.  In other words, our point was simply that in its 
evaluation of offers NASA treated this solicitation as a brand name or 
equal acquisition--and not as a brand name only acquisition--because 
had it not done so, it would have simply rejected Access Logic's offer 
for failing to offer the listed brand name screens. 

Moreover, a review of NASA's report in response to the protest 
demonstrates that, in fact, NASA did defend the protest as an 
acquisition of brand name or equal items. In that report, NASA stated:

     "Because the solicitation calls for the provision of specific 
     items by brand, FAR provisions and case law on brand name or 
     equal specifications may provide additional guidance on the 
     issues presented in this case.  In a brand name or equal 
     acquisition, offerors providing products equal to the name brand 
     products specified must demonstrate through materials submitted 
     with their offers that their products meet or exceed the 
     solicitation's material requirements, including any listed 
     salient characteristics."

Thus, the references in the decision to a brand name or equal 
solicitation were consistent with NASA's evaluation of the offers and 
its explanation of the procurement in its report on the protest.

NASA nonetheless argues that we failed to give due credit to the fact 
that the acquisition was intended to be conducted pursuant to FAR Part 
12, as a commercial item acquisition, and that, in sustaining the 
protest, we improperly applied standards which relate to the 
acquisition of noncommercial items.  NASA gives a lengthy explanation 
of its understanding of the way commercial item acquisitions are 
supposed to be conducted under FAR Part 12, as distinguished from 
acquisitions of noncommercial items.  For the most part, we agree with 
NASA's explanation of FAR Part 12.  In this respect, we agree that the 
purpose of FAR Part 12 is to provide the government with flexibility 
to acquire commercial items and that FAR Part 12 does not impose many 
of the solicitation and evaluation procedures required in other 
negotiated procurements so that the government can receive the benefit 
of commercial pricing.  We also agree with NASA that under FAR  sec.  
12.205(a), whenever possible, contracting officers are to request 
existing product literature in lieu of unique technical proposals for 
purposes of evaluation and that FAR  sec.  12.205(b) permits offerors to 
propose more than one item.[1]  

Although we largely agree with NASA's understanding of commercial item 
acquisitions under FAR Part 12, we part company with NASA concerning 
the information that agencies are required to include in solicitations 
for commercial items.  On this point, NASA argued in its report in 
response to the protest, as it does in its reconsideration request, 
that the RFO met the requirement of FAR  sec.  12.202(b) that the 
solicitation describe the agency's needs in terms of acceptable 
commercial products to offer and the intended use for those products.  
Our original decision addressed this contention.  Specifically, we 
noted that FAR  sec.  12.202(b) requires that "[t]he description of the 
agency need must contain sufficient detail for potential offerors of 
commercial items to know which commercial products or services to 
offer."  Metfab Eng'g, Inc.; Mart Corp., B-265934; B-265934.2, Jan. 
19, 1996, 96-1 CPD  para.  93, at 2-3.

Under our Bid Protest Regulations, a party requesting reconsideration 
must show that our decision contains either errors of fact or law or 
present information not previously considered that warrants reversal 
or modification of our decision.  Bid Protest Regulations, 4 C.F.R.  sec.  
21.14(a) (1997).  While apparently NASA disagrees with our decision 
concerning the information that is required to be included in 
commercial item solicitations, the agency's arguments provide no basis 
for reversal or modification of the substantive portion of our 
decision.  In this respect, while we recognize that a key element of 
efforts to increase purchases of commercial products is stating 
requirements in broad functional or performance terms, rather than 
using detailed government specifications, this preference for broad 
product descriptions and nondevelopmental/commercial items is 
consistent with, and does not relieve the contracting agency of, the 
obligation to specify its requirements in a manner designed to achieve 
full and open competition.  10 U.S.C.  sec.  2305(a) (1994);  Adventure 
Tech, Inc., B-253520, Sept. 29, 1993, 93-2 CPD  para.  202, at 4.  That is, 
where an agency intends to acquire a commercial item, it is obligated 
to describe the item in a way that identifies the agency's needs with 
sufficient detail and clarity so that all vendors have a common 
understanding of what is required under the contract in order that 
they can compete intelligently on a relatively equal basis.  Adventure 
Tech, Inc., supra.  

Although NASA argues that we misunderstood and failed to apply FAR 
Part 12 in our analysis, the very provisions of FAR Part 12 cited by 
NASA refute the agency's position.  For example, citing FAR  sec.  
12.202(b), NASA repeatedly argues that a solicitation for commercial 
items is only required to describe the products to be acquired and 
their intended use.  That section provides:

     "The description of agency need must contain sufficient detail 
     for potential offerors of commercial items to know which 
     commercial products or services to offer.  Generally, for 
     acquisitions in excess of the simplified acquisition threshold, 
     an agency's statement of need for a commercial item will describe 
     the product or service to be acquired and explain how the agency 
     intends to use the product or service in terms of functions to be 
     performed, performance requirements or essential physical 
     characteristics."

Thus, a solicitation for commercial items is required to "contain 
sufficient detail for potential offerors of commercial items to know 
which commercial products or services to offer."  In addition, 
although such a solicitation is to "describe the product or service to 
be acquired and explain how the agency intends to use the product or 
service," under FAR  sec.  12.202(b), where appropriate, such a description 
is to include "essential physical characteristics."  In this case, as 
we explained in our original decision, and as we address further 
below, the solicitation did not meet these FAR Part 12 standards.[2] 

NASA specifically challenges our conclusion that NASA had unreasonably 
determined that Access Logic's proposal took exception to the RFO 
requirement concerning mullions.  As we explained in our original 
decision, the record demonstrates that the evaluators considered 
Access Logic's offer unacceptable because the proposed 3/4-inch 
mullions "would create a thick defined edge line between screens and 
significantly distract from images of aircraft and ground equipment 
moving across the screens."  As we explained in our initial decision, 
essentially there were two problems with this evaluation.  First, the 
RFO did not require mullions of any specific width.  NASA now argues 
that a requirement for mullions of a specific width would have been 
inconsistent with FAR Part 12 because this would have forced the 
agency to predetermine the best method of construction.  Nonetheless, 
NASA apparently had a predetermined idea of the appropriate width of 
the mullions.  As we stated in our original decision:

     "it appears that NASA simply has its own view, one that would not
     be readily apparent to the commercial sector, as to the width of 
     the mullions that it would be willing to accept.  To the extent 
     that
     NASA had such a specific requirement, it should have specified it 
     in the RFO."

Second, nothing in Access Logic's offer indicated that it would not 
meet the only requirements in the RFO concerning the mullions:  
"minimum vertical mullions" and "[p]hysical separation between the 
screens . . . as small as possible so as to make it difficult to see 
the screen edge lines."  We concluded that Access Logic's proposal 
statement that "[t]he screens will be installed as-close together 
as-possible, with minimal vertical mullions," was entirely consistent 
with the RFO requirements.  NASA has provided no grounds for 
challenging that conclusion.

As we explained in our initial decision, NASA also rejected Access 
Logic's offer because the firm's proposed projection screens did not 
meet RFO requirements concerning gain and half gain angle.  We 
concluded that neither the gain nor the half gain angle of Access 
Logic's proposed screens provided a reasonable basis for finding 
Access Logic's proposal unacceptable.  NASA also challenges our 
decision in this respect.

NASA explains in its reconsideration request--as it did in response to 
the protest--that the planned facility is to "provide a 
state-of-the-art simulation of an airport control tower environment.  
Accordingly, the screen images of the outside view must be as 
realistic as possible," and "brightness of the screen images should be 
as consistent as possible as seen from all viewing angles."  According 
to NASA, its market research revealed that higher gain values, which 
are a measure of image brightness from a frontal view, result in 
diminished brightness consistency when the screens are viewed from 
peripheral angles.  As a result, NASA explains that it determined that 
screens with a gain of 4.0 were the most desirable considering the 
type of projectors and the light conditions of the viewing room and, 
accordingly, specified screens with a gain of 4.0.  

We concluded that the agency's concerns over brightness consistency 
were not conveyed to offerors because the RFO did not specify a half 
gain angle and did not state that a 4.0 gain could not be exceeded.  
NASA now argues, however, that including such detail in the RFO would 
have been contrary to the policies and procedures of FAR Part 12 and 
would have required the agency to "preselect the specific screen 
before issuing the solicitation instead of letting offerors propose 
the commercial products they feel best fit the Government's need."  

Although NASA complains that our decision would compel the agency to 
preselect a particular screen, the record demonstrates that, in fact, 
the agency had specific ideas of what its needs were for a screen but 
simply failed to convey that information to prospective offerors.  In 
this respect, NASA argued in response to the protest--as it does 
now--that "the screen images of the outside view must be as realistic 
as possible," and "brightness of the screen images should be as 
consistent as possible as seen from all viewing angles."  However, 
that information was not in the RFO.  Nor did the RFO specify a half 
gain angle which, as we explained in our original decision, "would be 
the obvious way to indicate a concern with the quality of peripheral 
images."  Thus, as we explained, the RFO simply did not convey "to 
vendors in the commercial marketplace that high half gain angles were 
mandatory," or in any other way inform prospective offerors of the 
importance the agency placed on realistic peripheral images.

We recognize that NASA has attempted to make use of the simplified 
procedures available under FAR Part 12 for the acquisition of 
commercial items.  We also recognize that a key element of efforts to 
increase purchases of commercial products is to state requirements in 
broad functional or performance terms, rather than using detailed 
specifications.  Adventure Tech, Inc., supra, at 3.  Nonetheless, as 
we explained above, FAR Part 12--on which NASA relies--obligates a 
contracting agency to describe its need for commercial items in 
"sufficient detail for potential offerors of commercial items to know 
which commercial products or services to offer."  FAR  sec.  12.202(b).  In 
other words, FAR Part 12 does not relieve the agency of the obligation 
to specify its requirements in a manner designed to achieve full and 
open competition.  Here, the competition was flawed because NASA 
failed to meet these obligations since the RFO did not include 
sufficient information for commercial vendors to understand NASA's 
requirements.[3] 

Finally, NASA has requested that we modify the corrective action 
recommended in our original decision.  We noted that although the 
projectors and screens and related equipment had been delivered to 
NASA before the contract was suspended, the equipment had not yet been 
installed.  As a result, we recommended that NASA terminate the 
contract and resolicit with an appropriate statement of the agency's 
needs.  NASA now explains that it intends to terminate the contract 
but retain the projectors and screens that have been received and paid 
for by the agency.

NASA explains that the screens, which cost $353,685, cannot be 
returned because they were custom-made and are not part of the 
manufacturer's inventory.  According to NASA, each of the screens was 
cut from the same large glass sheet or lot so that each screen would 
have the same consistency.  As a result, NASA explains, these screens 
cannot be used with other screens without affecting the consistency of 
the overall image.  For these reasons, NASA reports, the manufacturer 
has indicated that it will not accept return of the screens.  NASA 
also reports that it has paid $201,404 for seven of the projectors 
which it received in good condition (the other five were returned as 
damaged).  NASA also reports that it would have to pay $40,280.80 for 
a restocking charge and the remaining $161,123.20 would only be 
received as a credit for future purchases, not as cash.  According to 
NASA, since it would not likely be able to take advantage of the 
credit, it could not recover the $201,404 already disbursed for the 
projectors.  Thus, NASA argues that if required to terminate the 
contract and return both the projectors and screens, it would incur a 
$555,089 cost ($353,685 for the screens, plus $201,404 for the seven 
projectors) which is approximately 72 percent of the contract value.  
NASA indicates that it will conduct a recompetition for the remainder 
of the requirement, including installation and integration of the 
equipment.  

Under the circumstances, and based on our review of the record, we 
modify our recommendation.  It is not practicable to return the 
projectors and screens that have already been delivered and paid for.  
We now recommend that NASA retain  the projectors and screens that 
were delivered and paid for under the contract and  recompete the 
remainder of the requirement encompassed by the awarded contract, 
including installation and integration of the equipment.  In addition, 
we recommend that Access Logic be reimbursed the costs of preparing 
its offer, as well as its costs of responding to the agency's request 
that we modify the recommendation.  Bid Protest Regulations, 4 C.F.R.  sec.  
21.8(d)(1) and (2).  Access Logic's certified claim for such costs, 
detailing the time expended and costs incurred, should be submitted 
directly to the agency within 60 days after receipt of this decision.  
Bid Protest Regulations, 4 C.F.R.  sec.  21.8(f)(1).  Access Logic remains 
entitled to the costs associated with pursuing its initial protest to 
our Office.

The prior decision is affirmed; the recommendation is modified.

Comptroller General
of the United States

1. We also agree with NASA that commercial item acquisitions are 
different from other procurements because, as distinct from 
procurements where the government seeks unique products or services to 
satisfy its particular requirements, under FAR Part 12 the government 
seeks products or services that are already available in the 
commercial marketplace.  In addition, we agree with NASA that, 
compared to typical negotiated procurements, FAR Part 12 calls for 
streamlined solicitation and evaluation procedures that are intended 
to reflect commercial marketplace practices. 

2. NASA also argues that FAR  sec.  12.602(b) indicates that the 
government's evaluation of commercial products is to focus on which 
product best meets the government's needs.  Although FAR  sec.  12.602(b) 
states that "[t]echnical capability may be evaluated by how well the 
proposed products meet the Government requirement instead of 
predetermined subfactors," it also states that such subfactors are not 
necessary "when the solicitation adequately describes the item's 
intended use."  Thus, a prerequisite for an appropriate evaluation of 
commercial items, consistent with FAR Part 12, is an adequate 
description of the agency's needs.  Again, as we explained in our 
initial decision, that is the very problem here.  

3. NASA argues that our decision was in error "with respect to each 
reason NASA found [Access Logic's proposal] not to be the best 
commercial fit to its needs."  As we noted in our decision sustaining 
the protest, in addition to rejecting the offer for not meeting 
requirements relating to the mullions and half gain angle, NASA found 
Access Logic's offer technically unacceptable because agency 
evaluators concluded that the projectors proposed by the firm failed 
to meet an RFO requirement for automatic convergence and because the 
offer did not list the firm's key personnel or design and engineering 
staff.  In sustaining the protest, we concluded that neither of these 
two latter alleged flaws in Access Logic's offer provided a basis for 
finding that offer unacceptable.  NASA has not challenged our decision 
concerning the automatic convergence issue or the staffing issue.