B-169779, AUG. 6, 1970

B-169779, AUG. 6, 1970

BID PROTEST -- SET ASIDE WAIVER DECISION ON BEHALF OF R.S. CORCORAN COMPANY, DENYING PROTEST AGAINST AWARD OF THE NON-SET-ASIDE PORTION OF PROCUREMENT UNDER INVITATION FOR BIDS, BY U.S. ARMY AMMUNITION PROCUREMENT AND SUPPLY AGENCY, JOLIET, ILLINOIS. CONTRACTING OFFICER WHO DETERMINED THAT BIDDER WAS NOT ELIGIBLE FOR WAIVER OF FIRST ARTICLE TESTING BECAUSE MORE THAN 90 DAYS HAD ELAPSED SINCE END OF PRODUCTION OF PRIOR CONTRACT MUST HAVE DETERMINATION REGARDED AS REASONABLE AND NOT ARBITRARY OR CAPRICIOUS NOTWITHSTANDING. THE MATTER OF WAIVER IS NOT A MATTER OF RIGHT IN THE BIDDER BUT GRANTED IN THE DISCRETION OF THE CONTRACTING OFFICER AND THE MATTER OF COMPLIANCE WITH THE 90 DAY CONDITION CONCERNS ELIGIBILITY FOR CONSIDERATION.

TO GORDON, REICIN AND WEST:

REFERENCE IS MADE TO YOUR LETTER OF MAY 9, 1970, IN BEHALF OF THE R. S. CORCORAN COMPANY, PROTESTING THE AWARD MADE OF THE NON-SET-ASIDE PORTION OF THE PROCUREMENT UNDER INVITATION FOR BIDS NO. DAAA09-70-B 0086 ISSUED BY THE U. S. ARMY AMMUNITION PROCUREMENT AND SUPPLY AGENCY, JOLIET, ILLINOIS.

INVITATION FOR BIDS NO. DAAA09-70-B-0086, DATED MARCH 2, 1970, A 50 PERCENT SET ASIDE FOR LABOR SURPLUS AREA CONCERNS, SOLICITED 204 FIRMS FOR BIDS IN THE REQUIREMENT OF 187,412 (93,706 ON SET ASIDE AND 93,706 ON NON- SET ASIDE) CABLE ASSEMBLY M72, WITH BID OPENING SCHEDULED FOR MAR 25, 1970. ON MARCH 20, 1970, THE INVITATION WAS AMENDED TO EXTEND THE TIME OF BID OPENING TO APRIL 6, 1970, BECAUSE OF MAIL DELIVERY DIFFICULTIES. THE INVITATION AND SPECIFICATIONS ACCOMPANYING THE INVITATION CONTAINED CLAUSES PERTAINING TO FIRST ARTICLE APPROVAL AND WAIVER THEREOF. THE INVITATION INSOFAR AS HERE PERTINENT PROVIDES AS FOLLOWS:

"FIRST ARTICLE APPROVAL - GOVERNMENT TESTING (1969 SEP) ASPR 7 104.55(B) & DPC #73 (A) THE FIRST ARTICLE DESIGNATED IN ITEM SPECIFICATION MIL-C- 14242B DTD 20 APR 67 W/AMEND #2 DATED 20 MAY 68 CONSISTING OF:

300 PACKED CABLE ASSEMBLIES

10 SETS OF PARTS

150 MOLDED RECEPTACLES SHALL, WITHIN FORTY-FIVE (45) CALENDAR DAYS FROM DATE OF CONTRACT, BE DELIVERED BY THE CONTRACTOR FOB DESTINATION TO THE GOVERNMENT FOR FIRST ARTICLE APPROVAL TESTS *** .

"WAIVER OF FIRST ARTICLE APPROVAL (1969 SEP) THE REQUIREMENT FOR FIRST ARTICLE APPROVAL MAY BE WAIVED BY THE GOVERNMENT PROVIDED THE ITEM, AS DESCRIBED BY THE TECHNICAL DATA REFERENCED HEREIN, HAS PREVIOUSLY BEEN MANUFACTURED, TESTED AND ACCEPTED TO THE PROVISIONS OF THAT TECHNICAL DATA UNDER A PRIOR PRODUCTION CONTRACT WITH THE GOVERNMENT BY THE SUCCESSFUL OFFEROR. DELIVERY SCHEDULE SHALL REMAIN THE SAME WHETHER OR NOT FIRST ARTICLE APPROVAL IS WAIVED. THIS WAIVER IS SUBJECT TO THE FOLLOWING LIMITATIONS: WHEN ANY OF THE CONDITIONS DESCRIBED IN PARAGRAPH 3.1.2 OF SPECIFICATION MIL-C-14242B FOR THE SUBSEQUENT SUBMISSION OF FIRST ARTICLE SAMPLES EXIST, NOTIFICATION SHOULD BE MADE TO AMMUNITION PROCUREMENT AND SUPPLY AGENCY, *** SO THAT INSTRUCTIONS FOR THE SUBMISSION, INSPECTION AND NOTIFICATION OF RESULTS CAN BE MADE.

(1) WAIVER OF FIRST ARTICLE APPROVAL WILL BE A FACTOR IN THE EVALUATION OF BIDS OR OFFERS ONLY WHEN THE OFFEROR IS DETERMINED TO BE ELIGIBLE FOR SUCH WAIVER AS OF THE DATE OF BID OPENING IN THE CASE OF ADVERTISED PROCUREMENT OR AS OF THE DUE DATE FOR PROPOSALS IN THE CASE OF NEGOTIATED PROCUREMENT.

(2) OFFEROR WILL INDICATE BELOW BY ITEM A UNIT AND TOTAL CONTRACT PRICE WHICH WILL PREVAIL SHOULD THE GOVERNMENT EXERCISE ITS RIGHT TO WAIVE THE FIRST ARTICLE APPROVAL REQUIREMENT.

(3) CONTRACT AWARD WILL BE AT THE REDUCED PRICE PROVIDING THE SUCCESSFUL OFFEROR IS DETERMINED BY THE GOVERNMENT TO BE ELIGIBLE FOR WAIVER OF FIRST ARTICLE APPROVAL.

PARAGRAPH 3, REQUIREMENTS, OF MILITARY SPECIFICATION FOR CABLE ASSEMBLIES, FUZE CONTROL, MIL-C-14242BMU), 20 APRIL 1967, PROVIDES:

"3. REQUIREMENTS

"3.1 SAMPLES.

"3.1.1 FIRST ARTICLE APPROVAL SAMPLE. PRIOR TO THE START OF REGULAR PRODUCTION EXCEPT WHERE A NEW CONTRACT FOLLOWS WITHIN 90 DAYS PRODUCTION OF ACCEPTABLE MATERIAL OF IDENTICAL DESIGN, THE CONTRACTOR SHALL MANUFACTURE AND SUBMIT A SAMPLE OF 300 CABLE ASSEMBLIES AND PARTS AS SHOWN IN FIGURE 1, USING AS FAR AS POSSIBLE THE METHODS AND PROCESSES PROPOSED FOR QUANTITY PRODUCTION. HOWEVER, ANY DEVIATION FROM THESE METHODS AND PROCESSES SHALL BE DOCUMENTED AND SUBMITTED WITH THE FIRST ARTICLE APPROVAL SAMPLE. THE SAMPLE SHALL CONFORM TO THE REQUIREMENTS OF THIS SPECIFICATION. ADDITIONAL SAMPLES THAT MAY BE REQUIRED BECAUSE OF FAILURE OF THE SAMPLE TO MEET THE REQUIREMENTS OF THIS SPECIFICATION SHALL BE SUPPLIED BY THE CONTRACTOR AT HIS EXPENSE. UNTIL THE FIRST ARTICLE APPROVAL SAMPLE IS APPROVED, FURTHER PRODUCTION WILL BE AT THE RISK OF THE CONTRACTOR AND THE GOVERNMENT WILL NOT PROCEED WITH INSPECTION FOR ACCEPTANCE OF THE PRODUCTION LOTS UNTIL THIS APPROVAL HAS BEEN OBTAINED.

"3.1.2 SUPPLEMENTAL SAMPLES. PRIOR APPROVAL OF THE PROCURING ACTIVITY SHALL BE REQUIRED WHENEVER THERE IS A CHANGE IN DESIGN, MATERIAL, OR PROCESS WHICH AFFECTS SAFETY, OPERABILITY, OR INTERCHANGEABILITY AS DEFINED BY THE CLASSIFICATION OF DEFECTS. THE DECISION FOR REQUESTING A SUPPLEMENTAL SAMPLE SHALL REST WITH THE GOVERNMENT."

YOU STATE THAT FROM APRIL 1968, THROUGH DECEMBER 31, 1969, CORCORAN SATISFACTORILY COMPLETED FOR THE DEPARTMENT OF THE ARMY THREE CONTRACTS FOR THE MANUFACTURE OF CABLE ASSEMBLY FUZE CONTROL M 72; THAT THE LAST SHIPMENT WAS LOADED FOR TRANSPORT ON JANUARY 2, 1970; THAT ON APRIL 3, 1970, CORCORAN SUBMITTED ITS BID ON THIS SOLICITATION, BASED ON WAIVER OF FIRST ARTICLE APPROVAL; AND THAT CORCORAN HAS BEEN INFORMED THAT THE FIRST ARTICLE EXCEPTION (WAIVER) IS INAPPLICABLE BECAUSE MORE THAN 90 DAYS ELAPSED SINCE THE END OF PRODUCTION ON THE PRIOR CONTRACT. IT IS CONTENDED THAT SINCE THE FUZES WERE LOADED FOR SHIPMENT ON JANUARY 2, 1970, (END OF "PRODUCTION") AND BID SUBMITTED ON APRIL 3, 1970, THE BID WAS WITHIN 90 DAYS OF "PRODUCTION." IT IS FURTHER AND PRINCIPALLY CONTENDED THAT:

"THERE IS NO REFERENCE TO SECTION 3.1.1 NOR TO A 90 DAY PERIOD IN THE SOLICITATION FOR BID. THE ONLY LIMITATION TO WHICH THE WAIVER IS SUBJECT INVOLVES CHANGES IN DESIGN, MATERIAL, ETC. WHICH IS SECTION 3.1.2. THERE ARE NO CHANGES IN THIS ITEM. THEY ARE IDENTICAL TO THE SUBJECT MATTER OF THE PRIOR CONTRACTS. PARAGRAPH (1) ON PAGE 21 SHOULD ALSO BE CONSIDERED. IT STATES (PARAGRAPH (1) OF 'WAIVER OF FIRST ARTICLE APPROVAL' QUOTED ABOVE)

"THE ORIGINAL DATE OF BID OPENING WAS MARCH 20, 1970. R. S. CORCORAN WAS WELL WITHIN THE 90 DAYS PERIOD ON MARCH 20. THEREFORE, THE 90 DAY PROVISION WAS ARBITRARILY AND DISCRIMINATELY APPLIED TO R. S. CORCORAN COMPANY."

CONCERNING YOUR CONTENTION THAT SECTION 3.1.1 OF THE SPECIFICATIONS IS NOT REFERENCED IN THE SOLICITATION, YOUR ATTENTION IS INVITED TO BLOCK 9 ON PAGE ONE OF THE SOLICITATION, OFFER AND AWARD, PARTICULARLY THAT PORTION WHICH STATES:

" *** ALL OFFERS ARE SUBJECT TO THE FOLLOWING:

"1. THE ATTACHED SOLICITATION INSTRUCTIONS AND CONDITIONS, SF 33A.

"2. THE GENERAL PROVISIONS. SF 32 JUNE 64 EDITION, WHICH IS ATTACHED OR INCORPORATED HEREIN BY REFERENCE.

"3. THE SCHEDULE INCLUDED BELOW AND/OR ATTACHED HERETO.

"4. SUCH OTHER PROVISIONS, REPRESENTATIONS, CERTIFICATIONS, AND SPECIFICATIONS AS ARE ATTACHED OR INCORPORATED HEREIN BY REFERENCE. (ATTACHMENTS ARE LISTED IN THE SCHEDULE.)" ON PAGE 16 OF THE SOLICITATION AND AS A PART OF THE SCHEDULE, UNDER THE HEADING "APPLICABLE TECHNICAL DATA" THERE IS INCORPORATED THE "TECHNICAL DATA PACKAGE LISTING NO. 001- 393 DTD 27 JANUARY 1970" WHICH, IN TURN, LISTS THE SPECIFICATIONS AND EO APPLICABLE TO THE MANUFACTURE OF THE CABLE ASSEMBLY, FUZE CONTROL, M 72. IN ADDITION, THE PERTINENT MILITARY SPECIFICATION WAS, IN FACT, ATTACHED TO THE SOLICITATION PACKAGE. HENCE, WE CANNOT AGREE THAT THE PERTINENT 90 DAY CONDITION WAS NOT A PART OF THE SOLICITATION INSOFAR AS ELIGIBILITY FOR FIRST ARTICLE WAIVER IS CONCERNED. THE MILITARY SPECIFICATIONS MUST BE CONSIDERED AN INTEGRAL PART OF THE SCHEDULE AND ITS PROVISIONS GIVEN EFFECT.

NOR DO WE FIND ANY INCONSISTENCY BETWEEN THE CLAUSE ON WAIVERS OF FIRST ARTICLE APPROVAL IN THE SCHEDULE AND THE 90 DAY CONDITION IN THE SPECIFICATIONS. ONE CONCERNS THE POSSIBILITY OF THE GRANTING OF A WAIVER AND THE OTHER CONCERNS ELIGIBILITY FOR CONSIDERATION. FURTHERMORE A WAIVER IS NOT A MATTER OF RIGHT IN THE BIDDER BUT TO BE GRANTED IN THE DISCRETION OF THE CONTRACTING OFFICER. IN THIS CONNECTION WE FIND NO BASIS FOR FINDING THE CONTRACTING OFFICER ABUSED HIS AUTHORITY, OR WAS ARBITRARY OR DISCRIMINATORY.

YOUR CONTENTION THAT YOU WERE DISCRIMINATED AGAINST BY THE EXTENSION OF THE BID OPENING DATE FROM MARCH 20, (25) TO APRIL 6, 1970, IS EQUALLY WITHOUT MERIT. IN CONNECTION WITH THE DELAYED OPENING, BECAUSE OF THE POST OFFICE DELIVERY DIFFICULTIES, OF WHICH ALL PROSPECTIVE BIDDERS WERE ADVISED, WE WILL NOT QUESTION THE CONTRACTING OFFICER'S DISCRETION. HIS ACTION APPEARS REASONABLE UNDER THE CIRCUMSTANCES, AND NOT ARBITRARY, CAPRICIOUS OR IN ABUSE OF AUTHORITY, THE SOLE BASES FOR OUR INTERVENTION.

ACCORDINGLY, IN VIEW OF THE ABOVE, YOUR PROTEST MUST BE DENIED.