B-135326, MAY 21, 1958

B-135326, MAY 21, 1958

TO THE WAYNE PUMP COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 15, 1958, AND LETTER OF APRIL 28, 1958, FROM YOUR ATTORNEY, REQUESTING RECONSIDERATION OF OUR DECISION OF MARCH 25, 1958, TO THE SECRETARY OF THE AIR FORCE.

IT WAS HELD IN THE DECISION OF MARCH 25 THAT THE DESCRIPTIVE LITERATURE REQUIRED TO BE SUBMITTED WITH THE BID FOR EVALUATION PURPOSES NEED NOT BE MADE AVAILABLE FOR PUBLIC INSPECTION UNDER THE PROVISIONS OF SECTION 2305, TITLE 10, UNITED STATES CODE.

APPARENTLY NEITHER YOU NOR YOUR ATTORNEY QUESTIONED THE CORRECTNESS OF THE DECISIONS BUT REQUESTED RECONSIDERATION ON THE BASIS THAT IT HAS BEEN THE GENERAL FIELD PRACTICE TO MAKE ALL INFORMATION FURNISHED BY A BIDDER WITH ITS BID AVAILABLE TO THE PUBLIC.

WE ARE NOT AWARE OF ALL THE PRACTICES EMPLOYED BY THE VARIOUS CONTRACTING AGENCIES THROUGHOUT THE COUNTRY AND, OF COURSE, THE CIRCUMSTANCES ARE NOT THE SAME IN ALL INSTANCES. IN THIS CASE, THE BIDDER SPECIFICALLY REQUESTED THAT THE DATA INVOLVED NOT BE MADE PUBLIC. FURTHERMORE, THE INFORMATION SHOWN ON AND INCORPORATED WITH THE BID FORM REPRESENTED THE COMPLETE REQUIREMENTS OF THE CONTRACT; TO FURNISH COMPRESSORS IN ACCORDANCE WITH THE SPECIFICATIONS FOR THE CONSIDERATION SPECIFIED. THE DATA REQUIRED TO BE SUBMITTED BY PARAGRAPH Q WAS FOR "EVALUATION PURPOSES.' IT PERTAINED TO THE BIDDER'S "KNOW-HOW" AND COULD NOT MODIFY THE SPECIFICATIONS. THE DATA WAS FOR THE PURPOSE OF ENABLING THE GOVERNMENT TO DETERMINE THEREFROM PRIOR TO ACCEPTANCE THAT THE BIDDER HAD THE TECHNICAL ABILITY TO PERFORM IN ACCORDANCE WITH THE REQUIREMENTS OF THE SPECIFICATIONS. EVEN IF THE DATA HAD NOT BEEN REQUIRED TO BE SUBMITTED WITH THE BID, THE GOVERNMENT STILL COULD HAVE REQUIRED THE SAME DATA TO BE SUBMITTED BY THE BIDDER TO ESTABLISH HIS TECHNICAL ABILITY TO PERFORM THE CONTRACT WORK PRIOR TO THE ACCEPTANCE OF HIS BID.

WE HAVE CONSIDERED THE MATTER THOROUGHLY AND STILL ARE OF THE OPINION THAT THE CONCLUSION REACHED IN THE DECISION OF MARCH 25, 1958, WAS PROPER.