BNUMBER: B-270998
DATE: May 7, 1996
TITLE: Coherent, Inc.
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Matter of:Coherent, Inc.
File: B-270998
Date:May 7, 1996
Dr. Stephen P. Smith for the protester.
Edward L. Fitzmaurice, Esq., and Capt. Stephen T. Davis, Department of
the Air Force, for the agency.
Adam Vodraska, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency properly accepted awardee's certification that its proposed
laser model complied with the solicitation's commercial item
requirement, where although the offered product has not been sold, it
has been offered for sale to the general public.
DECISION
Coherent, Inc. protests the award of a contract to Laser Systems
Devices, Inc. (LSDI) by the Department of the Air Force under request
for proposals (RFP) No. F19650-95-R-0106, for a single frequency
titanium sapphire ring laser. Coherent contends that the laser model
proposed by the awardee fails to meet the commercial product
requirements of the solicitation.
We deny the protest.
The RFP, issued on July 14, 1995, contemplated the award of a firm,
fixed-price contract to the responsible offeror submitting the low,
technically acceptable offer. The RFP specified a brand name,
Coherent model "899-01 [Ring Laser] with 895 [Solid Etalon Assembly],"
or equal. The RFP listed the solicited laser's salient
characteristics and required offerors proposing an equal product to
submit descriptive literature and to specify the manufacturer's name
and model number. The RFP included the clause found at Defense
Federal Acquisition Regulation Supplement (DFARS) sec. 252.211-7012,
"Certifications-Commercial Items" Alternate I, which provided that
"[o]ffers received in response to this solicitation that do not offer
commercial items shall not be considered for award."[1] Pursuant to
that clause, offerors were required by the solicitation to certify
whether the items proposed were commercial items defined by the clause
as follows:
"(b)(1) Commercial items means items regularly used in the course
of normal business operations for other than Government purposes
which:
(i) have been sold or licensed to the general public;
(ii) have not been sold or licensed, but have been offered for
sale or license to the general public;
(iii)Are not yet available in the commercial marketplace, but
will be available for commercial delivery in a reasonable period
of time;
(iv) Are described in paragraphs (i), (ii) or (iii) that would
require only minor modification in order to meet the requirements
of the procuring agency.
(2) 'Minor modification' means a modification to a commercial
item that does not alter the commercial item's function or
essential physical characteristics."
The Air Force received proposals from LSDI, Coherent, and a third
offeror, and determined that all three proposals were technically
acceptable and within the competitive range. LSDI certified in its
proposal that its proposed laser model TS-202 was a commercial product
under subclause (b)(1)(ii), that is, that the item has "not been sold
or licensed, but [has] been offered for sale or license to the general
public." On September 28, 1995, the Air Force awarded the contract to
LSDI as the lowest priced, technically acceptable offeror.
Coherent questions the Air Force's acceptance of LSDI's certification,
claiming, in essence, that since LSDI's proposed laser model has not
actually been sold or licensed to the general public, it is not a
commercial item. However, actual sale or license to the general
public is not required for an item to be considered a commercial
product under the clause, and LSDI has certified, in accordance with
the clause, that it has not actually sold or licensed its proposed
laser model to the general public, but has offered the product for
sale or license to the general public.
The determination of whether a product is a commercial item is largely
within the discretion of the contracting agency, and will not be
disturbed by our Office unless it is shown to be unreasonable. See
Komatsu Dresser Co., B-255274, Feb. 16, 1994, 94-1 CPD para. 119. The
protester does not assert that LSDI's proposed laser model was not
offered for sale or license to the general public, and there is
nothing in the record indicating that the contracting officer was on
notice prior to award of facts which would lead to the conclusion that
the item to be furnished was not a commercial item as defined in the
solicitation. Absent such notice, the contracting officer reasonably
accepted LSDI's certification in making the award. See Attachmate
Corp., B-250030.6; B-250030.7, July 30, 1993, 93-2 CPD para. 63.
Coherent nevertheless alleges that under FAR sec. 11.006, the Air Force
should have requested information from LSDI on the number of sales and
the length of time its product has been sold in the commercial
marketplace in evaluating whether LSDI is indeed offering a commercial
product.[2] FAR sec. 11.006 provides that such information "may be
requested from each offeror" (emphasis added) in evaluating whether an
offered product is a commercial product. The Air Force was thus not
required to request this information from the offerors in the RFP and,
as discussed above, could rely upon LSDI's certification that it was
providing a commercial product. To the extent Coherent disagrees with
the Air Force's failure to request such information, its protest of
the alleged solicitation impropriety is untimely filed after the time
set for receipt of proposals. Bid Protest Regulations, 4 C.F.R. sec.
21.2(a)(1) (1996).
The protest is denied.
Comptroller General
of the United States
1. This clause was subsequently deleted from the DFARS by Defense
Acquisition Circular No. 91-9, Nov. 30, 1995, to conform to changes in
the Federal Acquisition Regulation (FAR) implementing the provisions
of the Federal Acquisition Streamlining Act of 1994 (FASA) with regard
to the acquisition of commercial items.
2. After the solicitation was issued, FAR part 11, Acquisition and
Distribution of Commercial Products, was completely revised by Federal
Acquisition Circular No. 90-32, Sept. 18, 1995, in response to FASA to
address the process of describing agency needs; FAR part 12 now
addresses the acquisition of commercial items and FAR part 10 the
market research to be conducted by the agency in determining if
commercial items meet the agency's requirements.