B-148135, AUG. 13, 1962

B-148135, AUG. 13, 1962

TO GLOBE INDUSTRIES, INC.:

YOU REQUEST RECONSIDERATION OF OUR DECISION DATED APRIL 30, 1962, WHICH DENIED YOUR PROTEST AGAINST THE AWARD OF CONTRACT NO. DSA2-116 TO AERO INDUSTRIES, INC., WHICH WAS DETERMINED TO HAVE SUBMITTED THE LOWEST RESPONSIVE OFFER.

YOU CONTEND THAT YOUR LOW OFFER WAS RESPONSIVE, IN VIEW OF THE FOLLOWING LANGUAGE CONTAINED IN PARAGRAPH 76.4-1A (H) OF STANDARD FORM 36, WHICH SERVED BOTH AS THE REQUEST FOR PROPOSALS AND THE SUPPLY CONTRACT: "NOTWITHSTANDING ANY TABLES OR SPECIFICATIONS INCLUDED OR INCORPORATED IN THE CONTRACT BY REFERENCE,"PROPRIETARY DATA" NEED NOT BE FURNISHED UNLESS SUITABLY IDENTIFIED IN THE SCHEDULE OF THE CONTRACT AS BEING REQUIRED.'

SINCE THE DRAWINGS YOU PROPOSED TO OFFER WERE ALLEGEDLY PROPRIETARY, AND SINCE THE SCHEDULE DID NOT SPECIFICALLY REQUIRE PROPRIETARY DATA, YOU ARGUE THAT YOUR REFUSAL TO OFFER WITHOUT ADDITIONAL COST THE DRAWINGS REQUIRED BY THE SPECIFICATIONS DID NOT MAKE YOUR BID NONRESPONSIVE, UNLESS OR UNTIL THE GOVERNMENT FORMALLY AMENDED THE REQUEST FOR PROPOSALS TO REQUIRE PROPRIETARY DATA. WE CANNOT AGREE. THE PROCUREMENT HERE IN QUESTION WAS CONDUCTED UNDER PRINCIPLES OF NEGOTIATION RATHER THAN ADVERTISING. IT IS TRUE THAT AN AMENDMENT TO AN ADVERTISED INVITATION FOR BIDS REQUIRES A FORMAL WRITTEN NOTICE PUBLISHED ACCORDING TO THE PROCEDURE SET FORTH IN ASPR 2-207. ON THE OTHER HAND, NEGOTIATION BY ITS VERY NATURE REQUIRES THAT UNCERTAINTIES RELATING TO THE PURCHASE OR THE PRICE TO BE PAID BE RESOLVED MORE INFORMALLY BY ORAL DISCUSSIONS OR WRITTEN COMMUNICATIONS. SEE ASPR 3 804.1. BY SUCH DISCUSSIONS AND COMMUNICATIONS THE PROCURING ACTIVITY MADE IT ABUNDANTLY CLEAR THAT THE TYPE OF DRAWINGS STATED TO BE REQUIRED IN THE SPECIFICATIONS WAS IN FACT REQUIRED, AND THAT AN OFFER REFUSING TO SUPPLY THEM WOULD BE CONSIDERED NONRESPONSIVE. THEREFORE, YOUR OFFER WITHOUT THE DRAWINGS WAS NONRESPONSIVE, AND YOUR OFFER WITH THE DRAWINGS AT AN ADDITIONAL COST WAS NOT LOW.

YOU ALSO ALLEGE THAT YOU LOANED TO THE GOVERNMENT FOR EVALUATION A PROTOTYPE OF YOUR PRODUCT WHICH WAS ALREADY ASSEMBLED INTO A COMPLETE KIT. YOU NOW CONTEND THAT IT WAS THE DISCLOSURE OF THE MANNER IN WHICH THE SEVERAL COMPONENTS WERE ASSEMBLED INTO THE COMPLETE KIT WHICH CONSTITUTED A VIOLATION OF A CONFIDENTIAL RELATIONSHIP.

UPON RECEIVING THIS ALLEGATION, WE REQUESTED THE ADMINISTRATIVE AGENCY TO REINVESTIGATE THE FACTS SURROUNDING THE LOAN OF THE PROTOTYPE. ITS INVESTIGATION CONFIRMED ITS EARLIER REPORT THAT THE GOVERNMENT HAD NOT RECEIVED FROM YOUR COMPANY A COMPLETE KIT, BUT HAD ONLY RECEIVED VARIOUS PARTS WHICH, TOGETHER WITH CERTAIN GOVERNMENT COMPONENTS, WERE LATER ASSEMBLED BY THE GOVERNMENT INTO A COMPLETE KIT.

OBVIOUSLY THERE EXISTS BETWEEN YOU AND THE GOVERNMENT AGENCY A DISPUTE OF FACT. WE FEEL THAT WE MUST ACCEPT AS TRUE THOSE FACTS REPORTED BY THE ADMINISTRATIVE AGENCY. THE RATIONALE FOR THIS CONCLUSION IS SIMILAR TO THE ONE WHICH SUPPORTS A WELL-ESTABLISHED RULE OF THIS OFFICE THAT IN DISPUTES OVER WHETHER THE BIDDER'S PRODUCT CONFORMS TO THE REQUIRED SPECIFICATIONS, WE MUST ACCEPT THE FACTUAL CONCLUSIONS OF THE ADMINISTRATIVE REPORT UNLESS THERE IS CONVINCING EVIDENCE TO THE CONTRARY. 17 COMP. GEN. 554, 557. IN OUR DECISION B 139830, DATED AUGUST 19, 1959, WE EXPLAINED THAT WE MUST ACCEPT THESE FACTUAL CONCLUSIONS BECAUSE OUR OFFICE HAS NEITHER THE ENGINEERING STAFF NOR THE TESTING LABORATORY NECESSARY TO EVALUATE FOR OURSELVES THE TECHNICAL ASPECTS OF SPECIFICATIONS. BY THE SAME TOKEN, SINCE WE DO NOT HAVE THE FACILITIES NEEDED TO CONDUCT INVESTIGATIONS EACH TIME A BIDDER OR PROSPECTIVE BIDDER ALLEGES THAT AN ADMINISTRATIVE REPORT IS FACTUALLY INCORRECT, WE ARE FORCED TO RELY ON THE FACTS REPORTED TO US BY THE PROCURING ACTIVITY.

SINCE THERE IS NO EVIDENCE, OTHER THAN YOUR OWN ALLEGATION, THAT YOU LOANED A COMPLETE KIT TO THE GOVERNMENT, WE MUST ACCEPT THE FINDING OF THE ADMINISTRATIVE REPORT THAT YOU LOANED ONLY COMPONENT PARTS OF THE KIT. THEREFORE, THE MANNER IN WHICH YOUR COMPONENT PARTS WERE ASSEMBLED INTO A KIT COULD NOT HAVE BEEN DISCLOSED BY THE GOVERNMENT TO THIRD PARTIES.

FOR THE FOREGOING REASONS, OUR DECISION OF APRIL 30, 1962, MUST BE AFFIRMED.