B-130665, FEB. 27, 1957

B-130665, FEB. 27, 1957

TO THE SECRETARY OF THE AIR FORCE:

A LETTER OF FEBRUARY 13, 1957, FROM THE DEPUTY FOR PROCUREMENT AND PRODUCTION REQUESTS OUR ADVICE ON CERTAIN CONFLICTING PROTESTS AGAINST AWARD OF A CONTRACT PURSUANT TO INVITATION FOR BIDS NO. 33-604-57-224, ISSUED DECEMBER 31, 1956, BY DAYTON AIR FORCE DEPOT, GENTILE AIR FORCE STATION, DAYTON, OHIO. INVITATION CALLED FOR BIDS ON 4 ITEMS OF ELECTRICAL SUPPLIES DESCRIBED AS FOLLOWS:

TABLE

"1. S/N T.O. 7CAC-TO-33-1-501A 55000 EACH

POWER CORD ASS-Y. IAW

DWG X 56GSA 1186A

2. S/N T.O. 7CAC-TO-33-1-501B 15000 EACH

POWER CORD ASS-Y. IAW

DWGS X 56GSA1207 AND X 56GSA1208

3. S/N T.O. 7CAC-TO-33-1-501C 100,000 EA.

POWER CORD ASS-Y. IAW

DWG X 56GSA 1206

4. S/N TO BE ASSIGNED 4000 EA.

CONNECTOR, PLUG ELECTRICAL, TYPE UP121M,

P/N MS 91185-1 IN A/W MS 91185 DTD 25 JAN 55,

SHEET 1 AND 2; QUALIFIED UNDER MIL-C-3767.'

THE INVITATION ALSO PROVIDES, UNDER "ADDITIONAL TERMS AND CONDITIONS," THE FOLLOWING:

"18. QUALIFIED PRODUCTS (FOR ITEM/S) 4): WITH RESPECT TO PRODUCTS REQUIRING QUALIFICATION, AWARDS WILL BE MADE ONLY FOR SUCH PRODUCTS AS HAVE, PRIOR TO THE BID OPENING DATE, BEEN TESTED AND APPROVED FOR INCLUSION IN THE QUALIFIED PRODUCTS LIST 3767-2, 5 APR 56, WHETHER OR NOT SUCH PRODUCTS HAVE ACTUALLY BEEN SO LISTED BY THAT DATE. MANUFACTURERS ARE URGED TO COMMUNICATE WITH THE HEADQUARTERS, DAYTON AIR FORCE DEPOT, GENTILE AIR FORCE STATION, WILMINGTON PIKE, DAYTON 10, OHIO ATTN: MDPD-12 AND ARRANGE TO HAVE THE PRODUCTS THAT THEY PROPOSE TO OFFER TESTED FOR QUALIFICATION. MANUFACTURERS HAVING PRODUCTS NOT YET LISTED, BUT WHICH HAVE BEEN QUALIFIED OR APPROVED, ARE REQUESTED TO SUBMIT EVIDENCE OF SUCH QUALIFICATION OR APPROVAL WITH THEIR BIDS, SO THAT THEIR BIDS MAY BE GIVEN CONSIDERATION.'

ON PAGE 1 OF THE SCHEDULE UNDER THE HEADING,"NOTICE TO ALL BIDDERS" IS THE FOLLOWING:

"ALL BIDS MUST SPECIFY THE QUALIFIED SOURCE FOR THE ITEMS WHICH THEY PROPOSE TO FURNISH. FAILURE TO SO COMPLY WILL BE SUFFICIENT CAUSE FOR DISQUALIFICATION OF BID.'

PAGE 5 OF THE INVITATION CONTAINS THE FOLLOWING PROVISION:

"DELIVERY:

"THE GOVERNMENT DESIRES DELIVERY OF THE PRE-PRODUCTION ITEMS BE COMPLETE WITHIN 90 DAYS AFTER DATE OF AWARD. AFTER RECEIPT OF APPROVAL OF THE PRE- PRODUCTION ITEMS DELIVERY OF THE PRODUCTION ITEMS IS DESIRED TO BE COMPLETED AS FOLLOWS:

"ITEMS 1, 2 AND 3 - COMPLETE WITHIN 5 MONTHS AFTER DATE OF AWARD AT 20 PERCENT OF TOTAL PER MONTH.

"ITEM 4 - DESIRE DELIVERY TO BE COMPLETE WITHIN 90 DAYS AFTER DATE OF AWARD.'

THE DRAWINGS REFERRED TO UNDER ITEMS 1, 2 AND 3 EACH CALL FOR A PLUG IN THE ASSEMBLY DESCRIBED AS UP-121M AND CITE SPECIFICATION MIL-C 3767. THAT SPECIFICATION PROVIDES, IN SECTION 3, THAT THE ELECTRIC POWER CONNECTORS, WHICH INCLUDES PLUGS, SHALL BE A PRODUCT WHICH HAS BEEN TESTED AND HAS PASSED SPECIFIED QUALIFICATION TESTS.

THIRTY-NINE BIDDERS SUBMITTED BIDS ON ONE OR MORE OF ITEMS 1, 2 AND 3. OF THESE 36 PROPOSED TO SUPPLY ASSEMBLIES UNDER THOSE ITEMS WHICH INCLUDED PLUGS ON THE QUALIFIED PRODUCTS LIST. ONE OTHER, THE LOW BIDDER, PROPOSED TO USE PLUGS NOT ON THE QUALIFIED PRODUCTS LIST, AND THE REMAINING TWO PROPOSED TO MANUFACTURE THE PLUGS THEMSELVES. INTERNATIONAL ELECTRIC INDUSTRIES, INC., BROOKLYN, NEW YORK, PROTESTED CONSIDERATION OF THE LOW BID ON THE GROUNDS THAT THE PARAGRAPH IN THE INVITATION HEADED "NOTICE TO ALL BIDDERS" SPECIFIED THAT ALL THE PLUGS UNDER THE INVITATION WOULD HAVE TO BE ON THE QUALIFIED PRODUCTS LIST. A SIMILAR PROTEST WAS RECEIVED FROM THE AUTOMATIC AND PRECISION MANUFACTURING COMPANY OF YONKERS, NEW YORK, WHO MADE THE SAME CONTENTION AND ALSO STATED THAT, SINCE THE PLUGS UNDER ITEM 4 WERE INTENDED AS REPLACEMENT PARTS FOR THE ASSEMBLIES CALLED FOR UNDER ITEMS 1, 2 AND 3, AND THE PLUGS UNDER ITEM 4, WERE DEFINITELY REQUIRED BY THE TERMS OF THE INVITATION TO BE ON THE QUALIFIED PRODUCTS LIST, IT SHOULD FOLLOW THAT THE PLUGS USED IN THE ASSEMBLIES WOULD ALSO BE REQUIRED TO BE ON THE LIST. THE LOW BIDDER, EMPIRE ELECTRONICS, INC., OF PATERSON, NEW JERSEY, ALSO PROTESTED, CONTENDING THAT THE "NOTICE TO ALL BIDDERS" REFERRED TO ABOVE MEANS ONLY A SOURCE QUALIFIED TO PROPERLY MANUFACTURE THE PRODUCT RATHER THAN ONE WHOSE PRODUCT IS ON THE QUALIFIED PRODUCTS LIST.

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

ACCORDINGLY, WE PERCEIVE NO REASON WHY YOUR AUTHORITY CONTAINED IN 10 U.S.C. 2305 (B) (FORMERLY SECTION 3 (B) OF THE ARMED SERVICES PROCUREMENT ACT OF 1947, 62 STAT. 21, 23), WHICH AUTHORIZES THE REJECTION OF ALL BIDS IF THE HEAD OF THE AGENCY DETERMINES THAT SUCH ACTION IS IN THE PUBLIC INTEREST, MAY NOT BE INVOKED. THEREFORE, AS IS PROPOSED, THE INVITATION MAY BE CANCELLED AND THE PROCUREMENT READVERTISED.