B-147515, JAN. 12, 1962

B-147515, JAN. 12, 1962

TO CONSOLIDATED COMPONENTS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 30, 1961, AND SUBSEQUENT CORRESPONDENCE REGARDING YOUR PROTEST AGAINST AWARD OF A CONTRACT UNDER IFB 36-600-62-25, ISSUED BY THE MIDDLETOWN AIR MATERIEL AREA, OLMSTED AIR FORCE BASE, PENNSYLVANIA.

THE BASIS FOR YOUR PROTEST, AS SET FORTH IN THE LETTER OF NOVEMBER 20, 1961, FROM YOUR ATTORNEY TO THE CONTRACTING OFFICER, IS THAT, DESPITE THE STATEMENT IN SPECIAL NOTE 13 OF THE TERMS AND CONDITIONS THAT THE INVITATION WAS ACCOMPANIED BY ALL DRAWINGS AND/OR SPECIFICATIONS APPLICABLE TO THE SUPPLIES DESCRIBED IN THE INVITATION, THERE WERE NO SPECIFICATIONS ISSUED ON GOVERNMENT FURNISHED MATERIAL AND THERE WERE MISSING DRAWINGS WHICH MATERIALLY AFFECTED THE EQUIPMENT TO BE DELIVERED, AND THE SPECIFICATIONS IN THE INVITATION WERE THEREFORE NOT SUFFICIENTLY DEFINITE TO PERMIT FREE AND OPEN COMPETITION. YOUR ATTORNEY REFERS TO YOUR LETTER OF SEPTEMBER 1, 1961, TO THE BUYER IN WHICH YOU POINT OUT CERTAIN PARTICULARS OF THE INVITATION THAT YOU CONSIDERED AMBIGUOUS. THE BASIC PROBLEM DISCUSSED IN YOUR LETTER TO THE BUYER IS THAT ITEM 1 OF THE INVITATION CALLS FOR HGU-2A/P FLYING HELMETS WITH H-149 AIC HEADSETS INSTALLED IN LIEU OF THE STANDARD M-154 AIC HEADNET. YOU POINT OUT THAT THE DRAWINGS FURNISHED WITH THE INVITATION SHOW INSTALLATION OF THE H-154 HEADSET, BUT THE H-149 HEADSET REQUIRES 4 LACING HOLES ON EACH SIDE OF THE HELMET INSTEAD OF THE 2 LACING HOLES SHOWN ON THE DRAWINGS. YOU RAISE ADDITIONAL QUESTIONS REGARDING VARIOUS SCREWS, NUTS, STUDS, GROMMETS, PRESSURE PADS, AND CORD-RETAINING CLIPS WHICH DIFFER IN INSTALLATION OF THE TWO HEADSETS. SOME OF THESE ARTICLES USED IN INSTALLING THE H-149 HEADSET WERE REFERENCED IN THE INVITATION BUT NO DRAWINGS OF THEM WERE FURNISHED.

YOUR PROJECT, REDUCED TO ITS SIMPLEST TERMS, IS THAT THE INVITATION MISLED BIDDERS OTHER THAN YOURSELF INTO BIDDING A PRICE LOWER THAN THEY WOULD HAVE BID (AND PERHAPS LOWER THAN YOUR BID), IF THEY HAD KNOWN AS MUCH ABOUT THE WORK TO BE DONE AS YOU DID. IT MUST BE NOTED, IN THIS CONNECTION, THAT THE TWO BIDDERS LOWER THAN YOURSELF HAVE NOT ALLEGED ANY MISUNDERSTANDING OF THE INVITATION REQUIREMENTS.

IN YOUR LETTER OF OCTOBER 31, 1961, TO THE SECRETARY OF THE AIR FORCE, A COPY OF WHICH YOU FURNISHED WITH YOUR LETTER OF NOVEMBER 3, 1961, TO OUR OFFICE, YOU SUGGEST AN ADDITIONAL BASIS FOR PROTEST BY BY ALLEGING THAT THE LOW BIDDER, SIERRA ENGINEERING COMPANY HAS NEVER BEEN IN PRODUCTION OF MILITARY OR COMMERCIAL TYPES OF HELMETS AND THEREFORE IT IS YOUR OPINION THAT SIERRA WOULD HAVE DIFFICULTY OBTAINING TOOLING AND MATERIALS IN TIME TO MEET THE DELIVERY SCHEDULE.

THE DEPARTMENT OF THE AIR FORCE HAS ADVISED, IN A REPORT DATED DECEMBER 14, 1961, THAT THE INVITATION AND THE SPECIFICATIONS AS AMENDED WERE SUFFICIENTLY DEFINITE TO PERMIT PREPARATION AND EVALUATION OF BIDS ON A COMMON BASIS, AND THAT ALL OF THE DRAWINGS NECESSARY FOR BIDDING AND MANUFACTURE OF THE ITEMS WERE FURNISHED TO YOUR COMPANY AS WELL AS TO OTHER BIDDERS. THE REPORT POINTS OUT THAT YOUR PROTEST AS STATED IN YOUR ATTORNEY'S LETTER OF NOVEMBER 20, 1961, IS DIRECTED TO ITEM 1 COMPRISING 2293 FLYING HELMETS OUT OF A TOTAL PROCUREMENT OF 7183 HELMETS UNDER ITEMS 1, 4 AND 5 AND 5465 VISOR HOUSINGS UNDER ITEMS 2 AND 3.

FOUR BIDS WERE RECEIVED AND OPENED ON OCTOBER 26, 1961, AND SIERRA ENGINEERING COMPANY, SIERRA MADRE, CALIFORNIA, WAS THE LOW BIDDER WITH A TOTAL BID PRICE OF $206,471.25 FOR THE FIVE ITEMS. GENTEX CORPORATION, CARBONDALE, PENNSYLVANIA, WAS A SECOND LOW BIDDER WITH A TOTAL BID OF $247,790.44, WHILE YOUR TOTAL BID WAS $255,893.32. LYOYD V. HUNT COMPANY, SANTEE, CALIFORNIA, WAS HIGH BIDDER WITH A BID OF $366,853.23.

IN COMMENTING ON YOUR CONTENTIONS, THE CONTRACTING OFFICER POINTED OUT THAT YOUR FIRM HAS PREVIOUSLY MANUFACTURED IN EXCESS OF 20,000 HGU 2/P HELMETS WITH THE H-149 HEADSET, SO NO ADDITIONAL TOOLING WOULD BE REQUIRED BY YOU TO DRILL THE FOUR HOLES PER SIDE NECESSARY TO ATTACH THE H-149 HEADSET TO THE HGU-2A/P HELMET. THE PRIMARY DIFFERENCE BETWEEN INSTALLATION OF THE H-149 AND THE H-154 HEADSET IS THE USE OF TWO LACING HOLES AND ONE BOLT HOLE PER SIDE FOR THE H-154 INSTEAD OF FOUR LACING HOLES FOR THE H-149. THE USE OF EYELETS IN THE LACING HOLES FOR THE H-154 IS COMPENSATED FOR BY THE REDUCTION OF THE NUMBER OF HOLES NECESSARY TO BE DRILLED. THE CONTRACTING OFFICER STATED THAT THE REMAINING DIFFERENCES IN INSTALLATION OF THE TWO HEADSETS ARE INSIGNIFICANT, SINCE THE USE OF ROUND GROMMETS VERSUS SQUARE GROMMETS OR THE USE OF SCREWS, NUTS, STUDS AND PRESSURE PADS DESIGNATED BY DIFFERENT NUMBERS DOES NOT ADD ANY ADDITIONAL PRODUCTION COSTS. THE ONLY ADDITIONAL WORK OPERATION REQUIRED IS THE ADDITION OF A CLIP UNDER THE EDGE ROLL, WHICH IS OF SUCH INSIGNIFICANT VALUE THAT NO PRICE DIFFERENTIAL WOULD BE WARRANTED. IT IS THE POSITION OF THE CONTRACTING OFFICER, CONCURRED IN BY THE DEPARTMENT OF THE AIR FORCE, THAT ALL DRAWINGS NECESSARY TO MANUFACTURE HELMETS MEETING THE NEEDS OF THE GOVERNMENT WERE FURNISHED WITH THE INVITATION AND THE FIVE AMENDMENTS AND THE DRAWINGS WHICH YOU ALLEGE WERE MISSING RELATE TO GOVERNMENT FURNISHED MATERIAL WHICH THE SUCCESSFUL BIDDER WILL NOT BE REQUIRED TO MANUFACTURE AND WHICH WOULD HAVE NO MATERIAL EFFECT ON PRODUCTION COSTS.

YOUR ATTORNEY'S LETTER OF DECEMBER 20, 1961, TO OUR OFFICE INDICATES THAT YOU WISH TO BROADEN YOUR PROTEST TO INCLUDE YOUR OBJECTION TO THE CONTRACTING OFFICE'S FAILURE TO INCLUDE DRAWINGS OF THE H-154 HEADSET AND MOUNTING HARDWARE WHICH ARE TO BE FURNISHED BY THE GOVERNMENT UNDER ITEMS 4 AND 5, ALTHOUGH THIS OBJECTION HAD NOT BEEN MENTIONED PREVIOUSLY.

YOUR ATTORNEY HAS CITED 38 COMP. GEN. 190 FOR THE RULE THAT IT IS WITHIN THE PROVINCE OF OUR OFFICE TO DETERMINE WHETHER SPECIFICATIONS WERE SUFFICIENTLY DEFINITE TO JUSTIFY REJECTION OF CERTAIN MODELS OFFERED, AND TO INSURE THE FREE AND FULL COMPETITION REQUIRED BY 10 U.S.C. 2305 (B) IN ORDER TO EFFECT A VALID AWARD. IN THAT CASE, WE HELD THAT AN INVITATION WHICH SPECIFIED A ,CONVENTIONAL CAB" CONFIGURATION FOR CERTAIN TRUCKS WAS NOT SUFFICIENTLY DEFINITE TO JUSTIFY REJECTION OF A LOW BID OFFERING A "CAB FORWARD" TRUCK SINCE "CONVENTIONAL CAB" WAS A TERM THAT DID NOT HAVE A DEFINITE AND UNIFORM MEANING THROUGHOUT THE INDUSTRY. IN THE PRESENT CASE, WE ARE NOT CALLED UPON TO DETERMINE WHETHER THE SPECIFICATIONS ARE DEFINITE ENOUGH TO JUSTIFY REJECTION OF A LOW BIDDER OFFERING A STANDARD COMMERCIAL PRODUCT. UNDER THE RULE CITED, THERE REMAINS ONLY THE NECESSITY TO DETERMINE WHETHER FREE AND FULL COMPETITION WAS ACHIEVED.

IN OUR OPINION, THE RECORD DOES NOT SUPPORT YOUR CONTENTION THAT MISSING DRAWINGS RENDERED THE INVITATION AMBIGUOUS OR PREVENTED ALL BIDDERS FROM COMPETING ON AN EQUAL BASIS. NO OTHER BIDDER QUESTIONED THE SPECIFICATIONS AND DRAWINGS FURNISHED UNDER THE INVITATION AND IT IS APPARENT FROM THE QUESTIONS YOU RAISED THAT YOU WERE NOT MISLED BY THE INVITATION BUT WERE AWARE OF THE DIFFERENCES IN MOUNTING THE TWO KINDS OF HEADSETS AND ALSO THAT YOU WERE AWARE OF THE INCONSEQUENTIAL NATURE OF THE DIFFERENCE IN MOUNTING HARDWARE USED FOR THE TWO HEADSETS. THE DRAWINGS WHICH WERE NOT FURNISHED RELATE TO ITEMS TO BE SUPPLIED BY THE GOVERNMENT AND THE AIR FORCE WAS ADVISED THAT FURNISHING DRAWINGS OF THESE ITEMS WOULD NOT EFFECT ANY BIDDER'S CALCULATION OF HIS PRICE.

WITH REFERENCE TO YOUR PROTEST THAT THE LOW BIDDER MAY NOT BE CAPABLE OF MEETING THE DELIVERY SCHEDULE, THE CONTRACTING OFFICER REPORTS THAT A FACILITY CAPABILITY REPORT WAS REQUESTED ON SIERRA ENGINEERING COMPANY IN ACCORDANCE WITH APPI 52-102. PRIOR TO RECEIPT OF THE FULL REPORT, THE AIR FORCE DETERMINED THAT SIERRA HAS ADEQUATE NUMBERS OF ENGINEERS AND TRAINED PRODUCTION PERSONNEL EMPLOYED IN THE MANUFACTURE OF VARIOUS TYPES OF MASKS AND HELMETS FOR THE ARMY, NAVY AND AIR FORCE. THE COMPANY HAS DEVELOPED AS WELL AS PRODUCED MASKS AND HELMETS AND IS CURRENTLY WORKING ON A RESEARCH AND DEVELOPMENT PROGRAM THROUGH THE AERO-MEDICAL LABORATORY OF THE AIR FORCE SYSTEMS COMMAND. SIERRA IS EQUIPPED AND WILL HAVE IN ITS PLANT HELMET MOLDING EQUIPMENT WHICH THE AIR FORCE BELIEVES IS SUPERIOR TO ANY MOLDING EQUIPMENT PRESENTLY AVAILABLE IN THE INDUSTRY. IN VIEW OF THIS INFORMATION DEVELOPED BY THE AIR FORCE, WE FEEL IT IS MERE SPECULATION TO SUGGEST AT THIS TIME THAT SIERRA MAY NOT BE ABLE TO MEET THE DELIVERY SCHEDULE.

FOR THE REASONS STATED, YOUR PROTEST AGAINST THE SPECIFICATIONS AND DRAWINGS FURNISHED UNDER THIS INVITATION AND YOUR PROTEST AGAINST AWARD TO SIERRA IN PARTICULAR MUST BE DENIED.

WITH REFERENCE TO THE OPINION OF THE DEPARTMENT OF THE AIR FORCE THAT YOUR FIRM IS QUALIFIED TO PARTICIPATE IN THE NEGOTIATIONS FOR THE SET- ASIDE PORTION OF ITEMS 1, 4 AND 5, WE HAVE ADVISED THE SECRETARY OF THE AIR FORCE IN OUR LETTER OF TODAY THAT WE WILL NOT OBJECT TO NEGOTIATION ON THIS ..END :