B-136465, JUN. 26, 1958

B-136465, JUN. 26, 1958

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO LETTER DATED JUNE 13, 1958, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO A PROTEST BY KILGORE, INC., AGAINST THE AWARD TO ANY BIDDER OTHER THAN ITSELF OF A CONTRACT UNDER INVITATION FOR BIDS NO. 42- 600-58-242 ISSUED BY THE OGDEN AIR MATERIEL AREA ON FEBRUARY 27, 1958, AND OPENED ON MARCH 17, 1958.

IN RESPONSE TO THE INVITATION, THE UNIVERSAL MATCH COMPANY SUBMITTED THE LOWEST BID FOR FURNISHING 21,127 MA-1 BOMB SPOTTING CHARGES AT A UNIT COST OF $10,965 OR FOR A TOTAL COST OF $220.692.56, AND KILGORE, INC., SUBMITTED THE SECOND LOWEST BID AT $11.47 EACH OR $230,856.69 FOR THE TOTAL REQUIREMENT ADVERTISED.

THE INVITATION SCHEDULE DESIGNATED THE FIRST FIVE ARTICLES PRODUCED AS FIRST ARTICLES TO BE SUBMITTED TO THE GOVERNMENT FOR TESTING AND APPROVAL PRIOR TO DELIVERY OF PRODUCTION ARTICLES. THE SCHEDULE FURTHER PROVIDED THAT THE FIRST ARTICLE REQUIREMENT MAY BE WAIVED BY THE CONTRACTING OFFICER UNDER ANY OF THE FOLLOWING CONDITIONS:

"/A) IF THE CONTRACT IS AWARDED TO A CONTRACTOR CURRENTLY IN PRODUCTION OF THE ITEM/S) OF AN AIR FORCE CONTRACT CONTAINING REQUIREMENTS FOR FIRST ARTICLE APPROVAL. (B) IF THE CONTRACT IS AWARDED TO A CONTRACTOR WHO HAS BEEN GRANTED PRIOR QUALIFICATION APPROVAL FOR THE ITEM/S). NEWLY- QUALIFIED CONTRACTORS NOT LISTED ON THE CURRENT QUALIFIED PRODUCTS LIST (QPL) FOR THE SPECIFICATION COVERING THE ITEM MAY SUBMIT A TRUE COPY OF THE GOVERNMENT AGENCY'S LETTER OF QUALIFICATION APPROVAL TO THE CONTRACTING OFFICER AS EVIDENCE OF QUALIFICATION. (C) IF THE CONTRACT IS AWARDED TO A CONTRACTOR NOT PRESENTLY IN PRODUCTION OF THE ITEM, BUT WHO HAS PREVIOUSLY BEEN GIVEN FIRST ARTICLE APPROVAL, AND WHO PROPOSES TO REPRODUCE IDENTICAL ITEMS, USING THE SAME TOOLS, FACILITIES, DESIGN DATA AND COMPONENT TYPES PREVIOUSLY USED. WHEN MORE THAN 12 MONTHS HAVE ELAPSED SINCE THE COMPLETION OF A PRIOR CONTRACT, THIS CONDITION SHALL NOT APPLY AND FIRST ARTICLE WILL BE REQUIRED.'

THE DELIVERY CLAUSE OF THE SCHEDULE REQUIRED THAT THE FIRST ARTICLES BE FURNISHED 30 DAYS AFTER RECEIPT OF NOTICE OF AWARD, AND AFTER NOTIFICATION OF ACCEPTANCE OF THE FIRST ARTICLES, THE BALANCE WAS TO BE COMPLETED AS FOLLOWS: 1,820 EACH, 45 DAYS; 2,080 EACH, 75 DAYS; 2,080 EACH 105 DAYS; 2,080 EACH, 135 DAYS; 2,080 EACH, 165 DAYS; 2,090 EACH, 195 DAYS; 2,090 EACH, 225 DAYS; 2,090 EACH, 255 DAYS; 2090 EACH, 285 DAYS; 810 EACH, 315 DAYS; 817 EACH, 345 DAYS. SAID CLAUSE FURTHER CAUTIONED ALL BIDDERS TO CAREFULLY CONSIDER THE ABOVE DELIVERY REQUIREMENTS "AS BIDS SPECIFYING DELIVERY AFTER THE TIME SPECIFIED ABOVE WILL BE REJECTED.'

THE BID OF UNIVERSAL CONTAINED THE FOLLOWING PROPOSED DELIVERY SCHEDULE:

"ITEM 1, FIVE (5) EACH FIRST ARTICLES, 45 DAYS AFTER RECEIPT OF WRITTEN NOTICE OF AWARD. AFTER NOTIFICATION OF ACCEPTANCE OF FIRST ARTICLES, THE BALANCE OF ITEM 1 TO BE COMPLETED AS FOLLOWS: 7500 EACH, PER MONTH UNTIL COMPLETE.'

KILGORE HAS PROTESTED AGAINST CONSIDERATION OF UNIVERSAL'S BID IN VIEW OF THE ACCELERATED DELIVERY SCHEDULE OFFERED BY THE LOW BIDDER. WE ALSO NOTE THAT UNIVERSAL'S BID WAS INITIALLY CONSIDERED NON RESPONSIVE BY THE CONTRACTING OFFICER AND THE COMMAND JUDGE ADVOCATE SINCE THE DELIVERY TIME PROPOSED FOR SUBMISSION OF THE FIRST ARTICLES EXCEEDED THE INVITATION SCHEDULE BY 15 DAYS.

IT IS REPORTED THAT AT THE TIME UNIVERSAL SUBMITTED ITS BID, IT WAS IN PRODUCTION OF IDENTICAL ARTICLES FOR WHICH FIRST ARTICLE APPROVAL HAD BEEN GRANTED UNDER A PRIOR AIR FORCE CONTRACT. HENCE, THERE IS NO QUESTION THAT THE REQUIREMENT FOR FIRST ARTICLE SUBMISSION MAY BE WAIVED AS TO UNIVERSAL BY THE CONTRACTING OFFICER. SUCH ACTION IS PROVIDED FOR BY THE TERMS OF THE INVITATION AND, CLEARLY, THE RIGHTS OF OTHER BIDDERS WOULD NOT BE PREJUDICED THEREBY. CF. 30 COMP. GEN. 179.

THAT BEING THE CASE, AND SINCE THE RECORD REASONABLY ESTABLISHES THAT UNIVERSAL INTENDED TO BID ON THE BASIS THAT IT WOULD FURNISH THE BOMB SPOTTING CHARGES AT THE RATE OF 7,500 PER MONTH COMMENCING 45 DAYS AFTER RECEIPT OF NOTICE OF AWARD, IT MUST BE HELD THAT THE BID OF UNIVERSAL PROPERLY MAY BE CONSIDERED FOR AWARD. SEE 37 COMP. GEN. 251. THE PROTEST OF KILGORE, INC., THEREFORE, SHOULD BE REJECTED.