BNUMBER:  B-274748; B-274748.2
DATE:  January 3, 1997
TITLE:  Access Logic, Inc.

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DOCUMENT FOR PUBLIC RELEASE
A protected decision was issued on the date below and was subject to a 
GAO Protective Order.  This version has been redacted or approved by 
the parties involved for public release.
Matter of:Access Logic, Inc.

File:     B-274748; B-274748.2

Date:January 3, 1997

Andrew Mohr, Esq., Cohen & White, for the protester.
Russell F. Sauer, Jr., Esq., Latham & Watkins, for EISI, Inc., an 
intervenor.
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

Protest of rejection of equal products offered in response to a brand 
name or equal procurement for commercial items is sustained where 
rejection was based on failure of proposal to meet requirements that 
were not conveyed by the solicitation.

DECISION

Access Logic, Inc. protests the award of a contract to EISI, Inc., 
under request for offers (RFO) No. 2-36632(CDT), issued by the 
National Aeronautics and Space Administration (NASA), for a 360-degree 
rear projection display system which will be used to simulate the 
outside view from an air traffic control tower.  

We sustain the protest.

NASA conducted this procurement under the procedures set forth in Part 
12 of the Federal Acquisition Regulation (FAR), "Acquisition of 
Commercial Items."  Pursuant to FAR  sec.  12.202 (Federal Acquisition 
Circular (FAC) 90-39), the agency conducted market research to 
determine which products would best meet its needs.  After evaluating 
various projectors and screens during demonstrations held at vendor 
and customer sites and an industry convention, pursuant to the 
streamlined procedures set forth in FAR Subpart 12.6, and in 
particular FAR  sec.  12.603, the agency issued the RFO as a combined 
synopsis/solicitation.  The RFO incorporated FAR  sec.  52.212-1  (FAC 
90-39), "Instructions to Offerors--Commercial Items," which stated 
that offers must show, among other things, "[a] technical description 
of the items being offered in sufficient detail to evaluate compliance 
with the requirements of the solicitation.  This may include product 
literature, or other documents, if necessary."  The RFO also stated 
that award would be made to the responsible offeror which submitted 
the lowest-priced, technically acceptable offer responsive to the 
solicitation.

Among other items, the RFO specified the Electrohome Marquee 9501LC 
ACON brand name projection systems, or equal, and Optawave projection 
screens, or equal.[1]  Although the RFO specified brand name or equal 
items, it did not include the standard "brand name or equal" clause 
which alerts offerors to include information in their offers 
sufficient to establish the equality of the products they are offering 
to the listed brand name.  The RFO included a "Projection Display 
System Requirements Document," which apparently constituted the 
agency's salient characteristics, and included required specifications 
for the projectors and screens.  That document also stated that the 
contractor is to provide all necessary design, engineering, 
installation labor, projector adjustments, project management, 
documentation, screens, equipment and materials, to furnish a complete 
and operational projection display system.  

Six proposals were submitted.  Instead of the brand name projection 
system, Access Logic proposed as an equal a BarcoGraphics 1209 rear 
projection display system; the firm also proposed Dia-Nippon ProScreen 
180 degree viewing cone screens as equal to the brand name screens.  
Access Logic's proposal, which was priced at $665,901, was rejected as 
technically unacceptable for reasons which we will address in detail 
below.  Award was made to EISI at a price of $773,168, as the 
lowest-priced, technically acceptable offeror.

Based on our review of the record, we conclude that NASA improperly 
found Access Logic's offer unacceptable for failing to meet 
requirements not set forth in the RFO.  Once offerors are informed of 
the criteria against which proposals will be evaluated, the agency 
must adhere to them.  Grey Advertising, Inc., 55 Comp. Gen. 1111 
(1976), 76-1 CPD  para.  325.  In a brand name or equal acquisition, the 
contracting agency has an obligation to inform offerors of the 
characteristics that are essential to the government's needs and a 
product offered as an "equal" one need not meet unstated features of 
the brand name product.  Tri Tool, Inc., B-265649.2, Jan. 22, 1996, 
96-1 CPD  para.  14.  Similarly, in an acquisition of commercial items, the 
description of the agency's needs "must contain sufficient detail for 
potential offerors of commercial items to know which commercial 
products or services to offer."  FAR  sec.  12.202(b); Metfab Eng'g, Inc.; 
Mart Corp., B-265934; B-265934.2, Jan. 19, 1996, 96-1 CPD  para.  93.  

Among the reasons for rejecting Access Logic's offer, NASA concluded 
that Access Logic's offer did not meet RFO requirements concerning the 
"gain" and "half gain" angle for the projection screens and took 
exception to an RFO requirement concerning vertical mullions between 
the screens.  Concerning these requirements, the RFO stated that:

     "The [c]ontractor shall provide a 360 degree rear projection 
     screen system, with minimum vertical mullions, . . .  Use only 
     products which comply with the following requirements:

        1.  Custom fresnel/lenticular acrylic optical screens with 4.0 
        gain, . . . 

                    .    .    .    .    .     

        3.  Physical separation between the screens to be as small as 
        possible so as to make it difficult to see the screen edge 
        lines."

The only reference in Access Logic's proposal concerning the mullions 
was a statement that "[t]he screens will be installed as-close 
together as-possible, with minimal vertical mullions."  NASA reports 
that Access Logic's proposal "did not provide any actual designs or 
other supporting information indicating an acceptable construction 
method.  Thus, [Access Logic's] proposal was considered unclear and in 
need of clarification."  NASA orally requested Access Logic to clarify 
the reference in its proposal to mullions.  According to Access Logic, 
it responded to this inquiry by stating that, based on a post-award 
review of the site, including a seismic review, in the best case, it 
would fuse the screens together so there would be no mullions and, in 
the worst case, 3/4-inch wide mullions would be used to connect the 
screens.[2]

According to NASA, Access Logic's response to the agency's questions 
indicated the firm was uncertain as to how to satisfy the installation 
requirements and, absent more specific information about the fusing 
alternative, the agency was obligated to evaluate the ï¿½-inch mullion 
alternative.  NASA found the proposal's reference to mullions and 
Access Logic's explanation to be unacceptable because ï¿½-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."  Also, according to NASA, Access Logic's 
apparent need for post-award input "cast doubt on whether [Access 
Logic] was capable of designing and installing the screens in a manner 
that would satisfy the Government's requirements."  NASA also states 
that Access Logic's experience--which appears to involve mostly 
two-screen, co-planar installations rather than curved, seamless 
installations like that required by the solicitation--did not 
alleviate this concern.

The RFO did not require mullions of any specific width.  The only 
requirements were for "minimum vertical mullions" and for "[p]hysical 
separation between the screens . . . as small as possible so as to 
make it difficult to see the screen edge lines."  Nothing in Access 
Logic's proposal indicated that it would not meet these requirements 
in installing the system.  On the contrary, the proposal statement 
that "[t]he screens will be installed as-close together as-possible, 
with minimal vertical mullions," is entirely consistent with the RFO 
requirements.  Moreover, nothing in the market research submitted by 
NASA indicates there is a consensus in the industry that 3/4-inch 
mullions would not be "as small as possible" or that the screens could 
be attached with no visible line between them.  In fact, NASA's market 
research report states the expectation that in NASA's planned facility 
"the screens will have a small but discernible line between them."  In 
addition, NASA makes no effort to rebut Access Logic's belief that the 
3/4-inch mullion size would be "as small as possible" depending upon 
the seismic protection need.  Thus, 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.  Since it did not, a vendor's 
failure to meet the requirement cannot provide a basis for rejecting 
the vendor's proposal.[3]  Industrial Storage Equip.-Pac., B-228123, 
Dec. 4, 1987, 87-2 CPD  para.  551.  Under the circumstances, we conclude 
that NASA's determination that Access Logic's proposal took exception 
to an RFO requirement concerning the mullions was unreasonable.

We also conclude that NASA unreasonably found Access Logic's proposal 
was unacceptable because the projection screens offered by the firm do 
not meet "gain" and "half gain" angle requirements of the RFO.  "Gain" 
is a measurement of luminance (brightness) when viewed from the center 
of the screen.  Screens with higher "gain" values have a higher 
luminance when viewed from the center of the screen.  The "half gain" 
angle, which is measured in degrees away from the center of the 
screen, is the angle at which the brightness is one half of the level 
at the center of the screen.  A higher half gain angle is better than 
a lower angle.

As set forth above, the RFO specified a "gain" of 4.0.  That was the 
only requirement concerning gain; the RFO specified no half gain 
angle.  Access Logic's proposed screens have a gain of 5.0 which NASA 
argues was unacceptable simply because it exceeds the 4.0 gain set 
forth in the specifications.  NASA explains that based on its market 
research, it determined that screens with a marked concentration of 
brightness in the center were less desirable because of the adverse 
effects this characteristic would have on the simulated control tower 
environment.  In this respect, while screens that are bright in the 
center (a higher gain value) provide the best frontal images, images 
viewed from peripheral angles on such screens lack brightness 
consistency.  According to the agency, by contrast, screens with lower 
gain values, such as the 4.0 gain specified in the RFO, offer better 
quality images at relatively high peripheral viewing angles (high half 
gain angles).  NASA states that image quality as viewed from 
peripheral angles relative to the screens is especially important here 
because the staff is expected to move around in the simulated control 
tower.

NASA also states that its market research revealed that higher half 
gain angles can be achieved only at the expense of lower gain, or 
lower brightness, when viewed from the center of the screen.  
According to NASA, "[t]his is a limitation on technology that is well 
known throughout the industry," and is the reason the agency specified 
the Stewart Optawave screen, which has a gain of only 4.0.  These 
concerns also led to the conclusion that the higher gain of 5.0 of 
Access Logic's proposed screens is unacceptable.  NASA argues that 
Access Logic should have known the limits on the technology and the 
protester's argument that its proposed screens, with a gain of 5.0, 
were acceptable indicates a lack of understanding of the agency's 
requirements.  

NASA also notes that Access Logic's proposed screens have a 35-degree 
half gain angle, which is not equivalent to the 52-degree half gain 
angle of the brand name screens called for by the RFO.  Although the 
agency acknowledges that no half gain angle was specified in the RFO, 
according to the agency, Access Logic should have been aware that by 
specifying Optawave screens with a gain of 4.0, "the solicitation also 
was requiring that any screen have an equivalent corresponding half 
gain angle."  NASA explains that, since the projection system is to be 
used in a control tower simulator with 12 screens in a 360-degree 
configuration, "[Access Logic] had to know that realistic peripheral 
images would be crucial in a state-of-the-art control tower 
simulator."  

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.  The RFO did not specify a half gain angle.  
NASA argues that Access Logic should have understood the need for 
realistic peripheral images in a state-of-the-art 360-degree control 
tower and should have known, since the Optawave screen with a gain of 
4.0 was specified, that the half gain angle of the brand name screens 
was required, and that the 4.0 gain specified in the RFO could not be 
exceeded.  Nonetheless, these limits on gain and half gain angle, 
which NASA now argues represent its minimum needs, were not stated in 
the RFO and nothing in the RFO indicated that the higher level of 
brightness (gain) of Access Logic's proposed screens would be 
inconsistent with the intended use of the screens.  In this respect, 
NASA's explanation of why offerors should have known that a gain of 
4.0 could not be exceeded relates entirely to the impact which a gain 
over 4.0 would have on the half gain angle.  Since the RFO did not 
specify a half gain angle--which would be the obvious way to indicate 
a concern with the quality of peripheral images--we do not see how the 
agency's need for realistic peripheral images (the half gain angle) 
could have been conveyed to offerors by specifying a gain of 4.0.  If 
the agency considered it essential that the screens have a gain of 
exactly 4.0, the RFO should have stated that the 4.0 gain could not be 
exceeded.  Industrial Storage Equip.-Pac., supra.

In other words, while NASA's concern about the brightness consistency 
of the projection screens and its desire for projection screens with a 
high half gain angle are reasonable, these concerns were not 
reasonably conveyed to vendors.  In this respect, the record does not 
show that the specification of a gain of 4.0--the only information in 
the RFO concerning brightness of the screens--should have conveyed to 
vendors in the commercial marketplace that high half gain angles were 
mandatory.

NASA also concluded that the projectors proposed by Access Logic 
failed to meet a requirement of the RFO for automatic convergence.  
The RFO required that "[e]ach projector shall have an automatic 
convergence system and image shifter built in."  Automatic convergence 
is a function that automatically converges or focuses a picture on a 
screen for maximum clarity and avoids the need for manual focusing.

On its face, Access Logic's proposal stated that the proposed 
projectors have an automatic convergence feature and NASA does not 
question whether that feature would be provided.  Rather, the agency 
explains that it considered Access Logic's proposal unacceptable 
because it did not include documentation demonstrating that the 
automatic convergence system proposed by the firm would work in the 
rear projection system required by the agency.  In our view, however, 
since the proposal otherwise recognized the system would use rear 
projection and did not take exception to the requirement for automatic 
convergence in the rear projection format, the absence of a specific 
statement that the automatic convergence feature of the proposed 
equipment would work in the rear projection system provided no basis 
for concluding that the proposal was unacceptable.[4]  See 
Inframetrics, Inc., B-257400, Sept. 30, 1994, 94-2 CPD  para.  138.

Finally, NASA found Access Logic's proposal unacceptable because it 
did not list the firm's key personnel or design and engineering staff 
that would install the projection system.  As Access Logic points out, 
however, the RFO did not require the submission of information about 
key personnel or staff.  Although the contractor is to provide all 
necessary design, engineering, installation labor, projector 
adjustments, project management, etc., to provide a complete and 
operational projection display system, there was no requirement for 
offerors to submit any information concerning staff.  Under the 
circumstances, the absence of such information in Access Logic's 
proposal provided no basis for finding that proposal unacceptable.  
Grey Advertising, Inc., supra.[5]

Although the record indicates that EISI delivered the projectors and 
screens and related equipment to NASA before the contract was 
suspended as a result of this protest, the equipment has not yet been 
installed.  Accordingly, we recommend that NASA terminate the contract 
and resolicit with an appropriate statement of the agency's needs.  We 
also recommend that Access Logic be reimbursed its cost of pursuing 
this protest, including reasonable attorneys' fees.  Bid Protest 
Regulations,  sec.  21.8(d)(1), 61 Fed. Reg. 39039, 39046 (1996) (to be 
codified at 4 C.F.R.  sec.  21.8(d)(1)).  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,  sec.  21.8(f)(1), 61 Fed. Reg. 
supra (to be codified at 4 C.F.R.  sec.  21.8(f)(1)).

The protest is sustained.[6]

Comptroller General
of the United States

1. 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.

2. Access Logic explains that it informed the agency that it intended 
to perform an on-site engineering review, including a seismic review 
(given that the facility will be located in an earthquake zone) to 
determine the most effective installation to meet technical 
requirements and building codes, including seismic considerations.  
The firm also states that it explained that it expected the mullions 
to be barely visible with the screens fused together and that "at 
worst case we expected the mullions would be 3/4 of an inch, which 
would provide sufficient support from a seismic perspective."

3. Although the agency also argues the proposal should have included 
design or other supporting information to show compliance with this 
requirement, the RFO had no such requirement.  The RFO only required 
design information during performance of the contract.  

4. Agency officials assert they orally asked Access Logic's president 
about the automatic convergence capability of the projectors proposed 
by the firm and the firm failed to provide information responsive to 
that question.  While the record concerning the communications between 
NASA and Access Logic is unclear, Access Logic's president states 
that, when asked, he orally informed the agency that the firm's 
proposed projectors do provide automatic convergence for a rear screen 
projection format and that, had NASA asked, the firm would have 
submitted commercial literature specifically stating that it does.  We 
note that Access Logic has submitted to this Office commercial 
literature that shows that its proposed automatic convergence unit 
will work in a rear projection screen system.  While NASA asserts that 
it communicated the need for further information concerning this 
matter and argues that Access Logic could have provided this 
information in response to the agency's questions, the appropriate 
literature clearly was available to the firm and we conclude that 
Access Logic would have provided that literature had the agency 
clearly conveyed the need for such literature.

5. NASA also concluded that Access Logic's proposal was unacceptable 
because it did not include information concerning service personnel.  
As a matter of contract performance, the RFO required that "the 
Contractor shall have an office with full time service personnel 
located within 100 miles of the [NASA] site."  Since the RFO did not 
require the submission of information about personnel or staff and 
NASA has referred to nothing in Access Logic's offer that suggests the 
firm would not meet this requirement, we conclude it was unreasonable 
to find the proposal unacceptable on this basis.

6. Access Logic filed a supplemental protest in which it argues (1) 
NASA illegally conducted this procurement as a "brand name only" 
procurement under the guise of a "brand name or equal" procurement 
without properly documenting the "brand name only" procurement, and 
(2) NASA was biased against Access Logic because agency officials were 
predisposed to award only to an offeror proposing the brand name 
products.  Since we have sustained the protest and since it is not 
practicable for us to make a recommendation for corrective action, no 
useful purpose would be served by addressing these issues.