B-143707, JAN. 18, 1961

B-143707, JAN. 18, 1961

TO THE MOELLER INSTRUMENT COMPANY, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR PROTEST CONCERNING THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 41-608-60 108, ISSUED BY SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, TEXAS.

THE INVITATION REQUESTED BIDS FOR FURNISHING TEST SETS, ARMAMENT WIRING SYSTEM, AN/GWM-4, SPARE PARTS AND DATA. THE TEST SETS WERE TO BE MANUFACTURED IN ACCORDANCE WITH DETAILS OF GUARDIAN ELECTRIC COMPANY DRAWING NO. 111-100 AND OTHER SPECIFICATIONS NOT HERE RELEVANT.

YOUR BID, SUBMITTED IN RESPONSE TO THE INVITATION, WAS ACCOMPANIED BY A LETTER DATED MAY 31, 1960, WHICH STATED, IN PART, AS FOLLOWS:

"THE EQUIPMENT TO BE SUPPLIED UNDER ITEM 1 WILL CONFORM WITH WITH GUARDIAN ELECTRIC MANUFACTURING DRAWING NO. 111-100 AND SUBSIDIARY DRAWINGS AS SUPPLIED BY YOUR OFFICE IN RESPONSE TO OUR LETTER OF REQUEST DATED 10 MAY 1960. IT IS IMPORTANT TO NOTE, HOWEVER, THAT THE INSULATION RESISTANCE PROGRAMMER AND THE CONTINUITY PROGRAMMER MAY NOT BE AS PRODUCED BY GUARDIAN ELECTRIC (DRAWING NUMBERS 111-106 AND 111 107). THE PROGRAMMERS TO BE SUPPLIED WILL BE EQUAL TO AND INTERCHANGEABLE WITH THE GUARDIAN ELECTRIC PROGRAMMERS. IT IS CONSIDERED IMPORTANT TO NOTE FURTHER THAT THE CARRYING CASE TO BE SUPPLIED MAY NOT BE AS PRODUCED BY H. KOCH AND SONS. THE CARRYING CASE TO BE SUPPLIED, WITH THE TEST INSTRUMENT INSTALLED, WILL MEET THE ENVIRONMENTAL REQUIREMENTS AS SPECIFIED IN PARAGRAPH 3.6 OF MIL T 25821/USAF). THIS CASE MAY NOT NECESSARILY MEET THE STRINGENT REQUIREMENTS OF MIL C-4150E. IF THERE EXISTS AN ABSOLUTE NECESSITY TO MEET THE REQUIREMENTS OF MIL C-4150E, THIS CAN BE ACCOMPLISHED AT AN ADDITIONAL TOTAL PRICE OF ITEM 1 OF $250,000. THIS INCREASE IS PRESENTED AS AN ALTERNATIVE BID FOR YOUR CONSIDERATION.

"IT IS UNDERSTOOD THAT THE ABOVE STATEMENTS DO NOT REPRESENT EXCEPTIONS TO THE INTENT OF THE EQUIPMENT SPECIFICATION AND ARE OFFERED FOR CLARIFICATION PURPOSES ONLY.'

A TOTAL OF 30 BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE LOW BID OF $231,982.95 WAS NOT RESPONSIVE AND, THEREFORE, WAS NOT FOR ACCEPTANCE. YOUR BID OF $422,575.99 WAS SECOND LOW AND YOUR "ALTERNATE BID" WAS $672,575.99. THE THIRD LOW BID WAS $431,787.64.

IN VIEW OF THE UNDERSCORED STATEMENTS MADE IN YOUR LETTER OF MAY 31, 1960, WHICH ACCOMPANIED AND CONSTITUTED PART OF YOUR BID, THE CONTRACTING OFFICER CONSIDERED THAT YOUR BID OF $422.575.99 WAS NOT RESPONSIVE TO THE REQUIREMENTS OF THE SPECIFICATIONS AND REJECTED IT.

YOU PROTEST THE ACTION TAKEN BY THE CONTRACTING OFFICER ON THE FOLLOWING BASIS:

"4. WE WOULD LIKE TO POINT OUT THE FOLLOWING FACTS:

A. THE EQUIPMENT SPECIFICATION MIL-T-25821 (USAF), AND ASSOCIATED SPECIFICATIONS LISTED THEREIN, DO NOT LIST MIL-C-4150 AS BEING APPLICABLE.

B. GUARDIAN ELECTRIC COMPANY DRAWING NO. 111-100 DOES NOT SPECIFY MIL-C- 4150 AS BEING APPLICABLE TO THE CASE. IT DOES, HOWEVER, SHOW SPECIFICATION MIL-C-4150 UNDER "NOTES: " WHERE THESE NOTES ARE APPLICABLE ONLY TO NAME PLATE DATA.

C. THE FIFTH PARAGRAPH OF OUR QUOTATION (PAGE 2) MENTIONED THAT OUR STATEMENT DID NOT REPRESENT EXCEPTIONS BUT WERE OFFERED FOR CLARIFICATION PURPOSES ONLY.'

GUARDIAN ELECTRIC COMPANY DRAWING NO. 111-100, NOTE 1, PROVIDES:

"1 MARKING DATA PER PARA. 3.9.2.2./MIL-C-4150)

CONTENTS:

ONE TEST SET TYPE AN/GWM-4

ONE CABLE, 111-160

ONE CABLE, 111-161

NAME PLATE DATA PER PARA. 3.9.2./MIL-C-4150)

CASE, CARRYING

SPECIFICATION MIL-C-4150

MFG. PART NO. ------------

(MFG. IDENTIFICATION TO APPEAR HERE) "

MIL-C-4150E, PARAGRAPH 3.9.2.2. PROVIDES:

"ADDITIONAL MARKING DATA LISTING THE CONTENTS OF THE CASE SHALL BE PLACED ON THE ENDS OF THE CASE IN SUCH A MANNER THAT THE MARKING DATA IS VISIBLE.'

3.9.2. PROVIDES:

"CASE NAMEPLATE. A METAL DECAL, LEGIBLY MARKED WITH THE FOLLOWING INFORMATION SHALL BE PERMANENTLY ATTACHED TO THE TOP SURFACE OF THE CASE, TO SERVE AS A NAMEPLATE: "

WITH RESPECT TO YOUR CONTENTION THAT THE DRAWING DOES NOT REQUIRE THAT THE CARRYING CASE CONFORM TO MIL-C-4150E BUT ONLY THAT THE NAMEPLATE DO SO, IT IS REPORTED THAT THE DRAWING IN FACT MAKES NO SPECIFIC PROVISION WITH RESPECT TO THE NAMEPLATE'S COMPLYING WITH MIL C-4150E. RATHER, IT SUPPLIES DATA TO BE USED ON THE CASE IN ACCORDANCE WITH PARAGRAPH 3.9.2.2., AND DATA TO BE USED ON ITS NAMEPLATE IN ACCORDANCE WITH PARAGRAPH 3.9.2. PRESUMABLY THIS DATA IS INTENDED TO BE ACCURATE AND IT IS NOT REASONABLE TO INTERPRET THE DRAWING TO REQUIRE THAT THE NAMEPLATE CONTAIN INACCURATE INFORMATION. THEREFORE, EVEN IF THE DRAWING FAILS OTHERWISE TO INDICATE THAT THE CARRYING CASE MUST CONFORM TO MIL-C-4150E, IT NECESSARILY REQUIRES THIS BY REQUIRING THAT ITS NAMEPLATE STATE IT SO CONFORMS.

FURTHERMORE, NOTE 3 OF THE GUARDIAN ELECTRIC DRAWING PROVIDES:

"COML PRODUCTS MUST BE EQUAL TO AND INTERCHANGEABLE WITH PART NO. D 000- 9031-1A-3 H. KOCH AND SONS, CORTE MADERA, CALIF.'

IT IS REPORTED THAT THE H. KOCH AND SONS ITEM MEETS THE REQUIREMENTS OF MIL-C-4150E. YOUR BID GAVE NO INDICATION OF THE RESPECTS IN WHICH THE CARRYING CASE OFFERED DID NOT COMPLY WITH THE REQUIREMENTS OF THE SPECIFICATIONS OR IN WHAT RESPECTS IT DIFFERED FROM THE H. KOCH AND SONS PRODUCT. THUS, YOUR BID GAVE THE CONTRACTING OFFICER NO WAY IN WHICH TO JUDGE WHETHER THE CARRYING CASE OFFERED BY YOU DIFFERED MATERIALLY FROM THE REQUIREMENTS OF THE SPECIFICATIONS, EXCEPT BY STATING THAT IF STRICT COMPLIANCE WAS REQUIRED THE BID SHOULD BE INCREASED BY $250,000. IN SUCH CIRCUMSTANCES, THE ONLY POSSIBLE CONCLUSION WAS THAT THE CARRYING CASE OFFERED FAILED TO COMPLY WITH THE EQUAL TO AND INTERCHANGEABLE WITH REQUIREMENT OF THE DRAWING.

IT IS CLEAR THAT THE DRAWING REQUIRES THE CARRYING CASE TO COMPLY WITH MIL-C-4150E. IN THIS CONNECTION IT IS REPORTED THAT OF THE 30 BIDDERS WHO RESPONDED TO THE INVITATION YOU WERE THE ONLY ONE THAT QUESTIONED THE NEED TO COMPLY WITH MIL-C-4150E AND IT APPEARS FROM THE STATEMENTS MADE IN YOUR ACCOMPANYING LETTER THAT YOU HAD SERIOUS DOUBT CONCERNING THE NEED OF SO COMPLYING. THUS, IT MUST BE HELD THAT YOUR BID OF $422,575.99 WAS NOT RESPONSIVE. YOUR "ALTERNATE BID" OF $672,575.99 WHICH APPARENTLY WAS RESPONSIVE, WAS NOT LOW.

ACCORDINGLY, WE FIND NO BASIS TO QUESTION THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.