B-160783, MAY 3, 1967

B-160783, MAY 3, 1967

TO DYNATION CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 28, 1967, IN WHICH YOU CONTEND THAT OUR DECISION OF MARCH 24, 1967, TO YOU, FAILED TO DETERMINE THE MAIN ISSUE OF YOUR PROTEST. YOU CONTEND THAT THE MAIN ISSUE IS WHETHER THE AIR FORCE COULD HAVE LEGALLY ORDERED THE 26,751 PACKAGES OF HUMIDITY INDICATOR PLUGS UNDER YOUR INDEFINITE QUANTITY CONTRACT AF 41/608/-41886.

THE QUESTION WHICH YOU CONSIDER TO BE THE MAIN ISSUE WAS NOT DISPOSITIVE OF YOUR PROTEST. AN AWARD HAD ALREADY BEEN MADE TO DRIAIRE INCORPORATED FOR ITEMS IDENTICAL TO THOSE COVERED BY YOUR INDEFINITE QUANTITY CONTRACT AND THE LEGAL QUESTION BEFORE OUR OFFICE WAS WHETHER THE TERMS OF YOUR CONTRACT REQUIRED THAT THESE ADDITIONAL QUANTITIES BE ORDERED FROM YOUR COMPANY NOTWITHSTANDING THE AWARD MADE TO DRIAIRE. WE HELD THAT SINCE IT DID NOT APPEAR THAT YOUR COMPANY HAD A REQUIREMENTS CONTRACT WITH THE GOVERNMENT UNDER WHICH IT WAS OBLIGATED TO BUY ALL ITS NEEDS FOR INDICATOR PLUGS OF THE TYPE SPECIFIED IN YOUR CONTRACT, THE AIR FORCE COULD PROPERLY PROCURE ADDITIONAL QUANTITIES OF THE PLUGS UNDER COMPETITIVE BIDDING PROCEDURES.

THE AIR FORCE ISSUED INVITATION FOR BIDS F41608-67-B-0777 ON OCTOBER 17, 1966, FOR THESE ADDITIONAL HUMIDITY INDICATOR PLUGS. DRIAIRE SUBMITTED THE LOWEST RESPONSIVE BID OF $2.615 PER UNIT AND WAS AWARDED THE CONTRACT ON JANUARY 23, 1967. YOUR COMPANY COMPETED UNDER THE INVITATION AND SUBMITTED THE SECOND LOW BID. IT IS REPORTED THAT AFTER THE BID OPENING AND DISCLOSURE OF PRICES YOUR COMPANY INDEFINITE QUANTITY CONTRACT. THIS OFFER COULD NOT BE CONSIDERED BECAUSE IT WOULD HAVE DISPLACED THE LOW COMPETITIVE BIDDER CONTRARY TO THE WELL ESTABLISHED PRINCIPLES GOVERNING FORMAL ADVERTISEMENTS FOR BIDS. UNDER THESE CIRCUMSTANCES, THE LEGALITY OF THE AWARD WAS NOT SUBJECT TO QUESTION BY OUR OFFICE. SEE 10 U.S.C. 2305 (C).