Comptroller General

United States Government Accountability Office

Washington, DC 20548 

of the United States

DOCUMENT FOR PUBLIC RELEASE

The decision issued on the date below was subject to a 

GAO Protective Order. This redacted version has been 

approved for public release. 

Decision 

Matter of: Freedom Scientific, Inc. 

File: B-401173.3 

Date: May 4, 2010 

Claude P. Goddard Jr., Esq., Daniel J. Donohue, Esq., and Sarah M. Graves, Esq., 

Husch Blackwell Sanders LLP, and David E. Hilliard, Wiley Rein & Fielding LLP, for 

the protester. 

Kristen E. Ittig, Esq., Stuart W. Turner, Esq., and Maureen Jeffreys, Esq., Arnold & 

Porter LLP, for Enhanced Vision Systems, Inc., an intervenor. 

Maura C. Brown, Esq., Department of Veterans Affairs, for the agency. 

Jacqueline Maeder, Esq., and John M. Melody, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

1. General solicitation provisions mandating that the “contractor” comply with the 

requirements of federal, state, and local laws, codes and regulations do not require 

that an offeror demonstrate compliance prior to award; compliance with applicable 

federal, state or local requirements is a performance requirement that may be 

satisfied during contract performance. 

2. Protest challenging evaluation of awardee’s proposal is denied where record 

shows that agency evaluated proposal in accordance with the solicitation criteria, 

and that its conclusions were reasonable. 

DECISION 

Freedom Scientific, Inc., of St. Petersburg, Florida, protests the award of a contract 

to Enhanced Vision Systems, Inc., of Huntington Beach, California, under request for 

proposals (RFP) No. VA-797-08-RP-002, issued by the Department of Veterans Affairs 

(VA) for closed-circuit electronic magnification devices (CCTVs) for use by 

visually-impaired veterans at VA medical centers. Freedom argues that the products 

offered by Enhanced do not meet the technical requirements of the solicitation and 

are not compliant with applicable Federal Communication Commission (FCC) 

regulations. 

We deny the protest. 
BACKGROUND 

The solicitation, issued on May 28, 2008 as a small business set-aside for commercial 

items, contemplated the award of a fixed-price requirements contract for a base 

year, with four 1-year options, for two CCTV systems, one with a 17-inch monitor 

and one with a 19-inch monitor. RFP at 1, 4, 7. The RFP included minimum 

technical specification requirements regarding monitor, control, and camera 

features, and XY table and warranty requirements. RFP at 5-6. 

Proposals were to include business and technical volumes, including past 

performance information, warranty information, and Buy American Act (BAA) 

Certificates. Offerors also were to provide descriptive literature, including cuts, 

illustrations, drawings, and brochures identifying the models and types of products 

being offered and clearly showing that the offered products are in compliance with 

the specifications listed in the solicitation. RFP at 39. If descriptive literature was 

not available to demonstrate compliance with all items listed as evaluation factors, a 

technical proposal detailing the required information had to be submitted. Id. 

Offerors whose proposed products were determined to meet the BAA requirements 

were required to demonstrate the exact makes and models being offered at the VA 

National Acquisition Center in Hines, Illinois. Id. at 39. The product demonstration 

would be used to determine which products met the specification requirements. Id.

at 42. Once the agency determined that an offered product met the specifications, it 

would be evaluated by the technical integrated products team. Id. While the 

demonstration would not be part of the technical review, the RFP advised that all 

sample CCTVs would be evaluated as submitted; if a CCTV did not work optimally, 

there would be no opportunity to submit additional samples. Id. The RFP also 

stated that “The Contractor shall comply with all applicable Federal, State and local 

laws, executive orders, rules and regulations applicable to its performance under 

this contract.” Id. at 11. 

Award was to be made to the offeror whose proposal was evaluated as the “best 

value” to the government, considering: (1) technical factors (picture quality, 

machine controls, XY table, adjustability of monitor, and number of warranty years); 

(2) price; (3) quality/past performance; and, (4) small disadvantaged business 

participation. Id. at 42-43. The technical factors combined were more important 

than price. Id. at 42. 

Both Freedom’s and Enhanced’s products were determined to comply with the BAA 

and the firms thus were invited to demonstrate their offered CCTVs. A technical 

panel reviewed the submitted samples and determined that all of the two firms’ 

offered products complied with the specifications, including a requirement for an 

auto focus feature. Agency Report (AR) at 3; AR, Tab 7, Declaration of Technical 

Panel Chairperson, at 1. The contracting officer determined that Enhanced’s 

proposal offered the best value and made award to Enhanced on March 6, 2009. 

Page 2 B-401173.3 
Freedom challenged the award in a protest filed in our Office, alleging that the 

agency improperly had awarded the contract before the closing date set for receipt 

of revised price proposals. Following an alternate dispute resolution conference, the 

agency decided to take corrective action and we dismissed the protest as academic 

(B-401173, June 11, 2009). VA reopened discussions regarding price and warranty 

issues, requested and evaluated revised proposals, again determined that Enhanced’s 

proposal offered the best value, and awarded a contract to Enhanced on January 20, 

2010. 

DISCUSSION 

Compliance with FCC Requirements 

Freedom asserts that the award to Enhanced was improper because its products do 

not comply with FCC technical requirements, and thus do not comply with “all 

applicable Federal, State and local laws,” as required under the solicitation. Protest 

at 7. Specifically, Freedom argues that Enhanced’s 19-inch monitor does not comply 

with the FCC’s emissions requirements and that its products violate the FCC’s 

labeling requirements. 

This argument is without merit. The RFP did not expressly require that offered 

products comply with FCC requirements as a precondition to award. Rather, the 

RFP clause requiring compliance with all federal, state, and local laws is included in 

the solicitation under “Section C - Contract Clauses” and, by its terms, applies to “the 

contractor.” General solicitation provisions mandating that “the contractor” comply 

with federal, state, and local laws do not require that an offeror demonstrate 

compliance prior to award. Rather, compliance is a performance requirement that 

may be satisfied during contract performance and does not affect the award decision 

(except, possibly, as a general responsibility matter). Further, whether Enhanced 

ultimately complies with the provision is a matter of contract administration that we 

will not review. 4 C.F.R § 21.5(a) (2009); Solar Plexus, LLC, B-402061, Dec. 14, 2009, 

2009 CPD ¶ 256 at 2-3.1

 

 

(continued...) 

1

 During the evaluation of revised proposals, Freedom furnished VA with 

independent laboratory test results allegedly demonstrating that Enhanced’s 19-inch 

video magnifier failed to meet FCC emissions requirements. AR, Tab 12, E-Mail from 

Freedom Scientific, at 1. Before making award, the agency provided the report to a 

VA senior biomedical engineer; he evaluated the report and advised the contracting 

officer that there was insufficient technical cause to remove the awardee’s product 

from consideration because the test was performed on a single sample and there was 

no independently validated audit trail regarding how the model was chosen, 

transported and handled before testing. AR, Tab 13, Senior Biomedical Eng’r 

Page 3 B-401173.3 
Auto Focus Feature 

Freedom also contends that the awardee’s monitors do not meet the minimum 

technical requirement of the solicitation because they lack the required auto focus 

on/off feature. Protest at 2. 

Where a protest challenges an agency’s technical evaluation, we will review the 

evaluation record to determine whether the agency’s judgments were reasonable and 

consistent with the stated evaluation criteria and applicable procurement statutes 

and regulations. W. Gohman Constr. Co., B-401877, Dec. 2, 2009, 2010 CPD ¶ 11 at 3. 

The solicitation here required offerors to submit product samples for evaluation, as 

well as descriptive literature or technical details showing compliance with the 

technical specifications. The record shows that Enhanced’s proposal specified the 

firm’s Merlin LCD 17 and Merlin LCD 19, two “state of the art” systems that 

“generally meet and exceed the requirements for” the 17-inch and 19-inch flat 

panel/LCD models. Agency Supplemental Report (ASR), exh. 1, Enhanced Vision 

Technical Proposal--Relevant Pages, at 2. The proposal specifically stated that the 

Merlin machines included the auto focus on/off switch, which allowed the camera to 

stay focused on a fixed point, and that the user could easily turn the auto focus 

feature on or off with a simple rocker switch. Id. at 3. The proposal also indicated 

that the auto focus switch was easily accessible directly under the front panel on the 

machine, that it provided rapid response to changes in magnification and depth of 

field, and that it responds instantly and quietly to adjustments made by the user. Id.

at 2. 

The technical evaluation panel evaluated Enhanced’s Merlin CCTV sample, and 

found that there was a labeled, rocker-arm auto focus switch on the underside of the 

front left corner of the monitor that engaged and disengaged the auto focus feature. 

AR, Tab 7, Declaration of Technical Evaluation Panel Chairperson, at 1. The 

chairperson of the evaluation panel further explains that the panel found that the 

auto focus and the control worked reliably, with a screen display indicating that the 

unit was in non-auto focus mode when appropriate. Id. The agency also has 

furnished a photograph of the offered product, which shows a labeled auto focus 

 

(...continued) 

Memorandum, at 3-4. Additionally the engineer was informally advised by FCC 

personnel that until the FCC determines that a product is non-compliant, there is no 

basis to remove the product from competition. Id. at 3. Finally, Enhanced has 

submitted the FCC order and consent decree (issued in response to Freedom’s FCC 

complaint) terminating its investigation without finding that Enhanced violated FCC 

emissions requirements and reaching agreement with the awardee regarding its 

labeling practices. Id. at 1, 8. 

Page 4 B-401173.3 
switch on the underside of the monitor. AR, Tab 14, Photograph of Auto Focus 

Switch, at 1. Based on this information, we find that the agency reasonably 

determined that the Enhanced product met the requirement. 

Freedom raises numerous ancillary arguments regarding the auto focus feature that 

we find are without merit. For example, it maintains that the agency’s findings are 

not substantiated by the record because the agency provided none of Enhanced’s 

product descriptive literature in response to the protest. Protester Comments at 9. 

Indeed, Freedom asserts that none of Enhanced Vision’s descriptive literature, 

product brochures, user manuals, or website information lists or describes any auto 

focus on/off feature or control for any of its Merlin LCD products and that, therefore, 

the VA “could not reasonably have determined that the Merlin has an auto-focus 

on/off feature . . . .” Protester Supplemental Comments at 13. However, as noted, 

the solicitation did not provide that the evaluation of offered products would be 

based solely on descriptive product literature; rather, it provided that, as here, 

sample CCTVs would be evaluated and that required technical information should be 

included in the technical proposal if the descriptive literature did not address all of 

the technical requirements. The documentation submitted by the agency, including 

relevant pages from Enhanced’s technical proposal and a summary of its evaluation 

of Enhanced’s sample CCTV regarding the auto focus, are sufficient to support VA’s 

determination that Enhanced’s offered product met the auto focus requirement. 

The protester also argues that while Enhanced Vision may have provided a 

demonstration model with the auto focus feature, “there is no evidence that [the 

awardee] has, or had, a commercially available product that incorporates the 

required auto-focus on/off feature and control.” Protester Comments at 3. Freedom 

Scientific argues that the demonstration model has not been announced for 

marketing purposes and is not commercially available or sold in substantial enough 

quantities in commercial markets to qualify as a commercial item.2

 Protester 

Comments at 12 n.3; Protester Supplemental Comments at 11. 

In commercial item procurements, offerors properly may modify their products to 

meet government requirements, and the product as modified does not have to have 

been sold or offered for sale to qualify as a commercial item. Federal Acquisition 

Regulation (FAR) § 2.101; NLB Corp., B-286846, Feb. 26, 2001, 2001 CPD ¶ 67 at 5. 

(We note that Enhanced has advised our Office that three of its existing models are 

currently marketed with the auto focus feature, and that this feature was in fact 

 

2

 Freedom also states that it received an anonymous e-mail claiming that Enhanced 

did not intend to provide VA with the same Merlin model that it demonstrated. 

Protester Comments at 2. This unsupported allegation from an unidentified source 

does not provide a valid basis for questioning the agency’s selection decision. 

Page 5 B-401173.3 
Page 6 B-401173.3 

previously offered on its Merlin line of products. Intervenor Supplemental 

Comments, exh. 1, Declaration of the President, at 1. Enhanced simply rewired the 

auto focus feature back into the device. Id.) 

The protest is denied. 

Lynn H. Gibson 

Acting General Counsel