B-147845, JAN. 31, 1962

B-147845, JAN. 31, 1962

TO MAGNETIC-INSTRUMENTS COMPANY, INC.:

BY TELEGRAM OF JANUARY 21, 1962, YOUR ATTORNEY REQUESTS THAT WE RECONSIDER OUR DECISION B-147845 OF JANUARY 18, 1962, WHICH HELD THAT THERE WAS NO LEGAL OBJECTION TO THE PROPOSED AWARD OF A CONTRACT TO CONSOLIDATED AIRBORNE SYSTEMS, INC., UNDER INVITATION FOR BIDS (IFB) NO. 33-657-62-76.

THERE IS REPEATED IN THE TELEGRAM ONE OF THE SEVERAL ARGUMENTS PRESENTED IN THE ORIGINAL PROTEST, NAMELY, THAT UNLESS REVISIONS TO PREVIOUSLY FURNISHED DATA WERE OFFERED, WHICH REVISIONS WERE PERMITTED BY THE IFB IF THE BIDDER CONSIDERED THEM NECESSARY, THE PRESENT SPECIFICATIONS WOULD NOT ASSURE THAT THE LIQUID OXYGEN INDICATORS MANUFACTURED BY ONE COMPANY WOULD BE INTERCHANGEABLE WITH THOSE OF ANOTHER COMPANY. ALSO, IT IS NOT CONTENDED THAT CERTAIN UNSPECIFIED DISCUSSIONS AND CORRESPONDENCE WITH "THE PRIME GOVERNMENT USERS OF THESE EQUIPMENTS AND THE GOVERNMENT" MISLED MAGNETIC INSTRUMENTS COMPANY, INC., INTO BELIEVING THAT, UNDER THE SPECIFICATIONS AS WRITTEN, THE PROCURING AGENCY MIGHT EXPECT THE CHANGES IN DATA REQUIREMENTS WHICH CAUSED THE ADDITIONAL COSTS IN ITS BID.

WE FIND IT UNNECESSARY TO CONSIDER THESE ARGUMENTS, SINCE THE ALLEGED AMBIGUITY IN SPECIFICATIONS DOES NOT APPEAR TO HAVE RESULTED IN YOUR FAILING TO OBTAIN THE AWARD. THE RECORD INDICATES THAT MAGNETIC INSTRUMENTS COMPANY, INC., WOULD NOT HAVE BEEN LOW BIDDER EVEN IF THE COSTS FOR CHANGES IN DATA REQUIREMENTS ON BOTH A/A24J-8 AND GMU-11/A INDICATORS WERE ELIMINATED FROM ITS BID. FURTHERMORE, THE DEPARTMENT OF THE AIR FORCE HAS ESTABLISHED AS A MATTER OF FACT THAT SPECIFICATIONS FOR INDICATOR GMU-11/A WERE NOT AMBIGUOUS, AND WERE SO DRAWN THAT IT WOULD FUNCTION INTERCHANGEABLY IN THE F-105D AIRCRAFT REGARDLESS OF WHO MANUFACTURED THIS INDICATOR. THE DETERMINATION OF WHETHER OR NOT SPECIFICATIONS ARE CORRECT IS A FACTUAL MATTER WHICH IS LEFT TO THE DISCRETION OF THE AGENCY OR DEPARTMENT CONCERNED, AND IN THE ABSENCE OF BAD FAITH OR CONVINCING EVIDENCE TO THE CONTRARY, WILL NOT BE QUESTIONED BY OUR OFFICE.

IN REGARD TO THE DISCUSSIONS AND CORRESPONDENCE WITH THE GOVERNMENT WHICH IT IS SAID MISLED MAGNETIC INSTRUMENTS COMPANY, INC., WE MAY POINT OUT THAT THE RECORD DOES NOT DISCLOSE ANY EVIDENCE THAT THESE DISCUSSIONS TOOK PLACE, NOR ANY PROOF OF WHAT WAS SAID OR PROMISED. WITHOUT SUCH EVIDENCE, WE COULD NOT CONSIDER THE PRESENT OBJECTIONS TO THE AWARD OF THE CONTRACT EVEN IF THIS WERE A CASE IN WHICH PROOF OF THE ALLEGATIONS MIGHT RESULT IN YOUR BEING LOW BIDDER.