B-145511, JUN. 12, 1961

B-145511: Jun 12, 1961

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" PAGE 9 OF THE INVITATION READ IN PART: "11 *PHOTOGRAPH PRICING: BIDDERS OR OFFERORS ARE REQUESTED TO INSERT OPPOSITE THE PHOTOGRAPH ITEMS THE PRICE OF SUCH PHOTOGRAPHS. THE GOVERNMENT WILL CONSIDER THAT THE PHOTOGRAPH PRICE IS INCLUDED IN THE COST OF THE END ITEMS AND IF THE BID IS THE LOWEST RECEIVED AND OTHERWISE ACCEPTABLE. AWARD WILL BE MADE ON THAT BASIS AND SO INDICATED IN THE RESULTANT CONTRACT. "12 *TECHNICAL AND COMMERCIAL DATA PRICING: BIDDERS OR OFFERORS WHO DO NOT HAVE COMMERCIAL DATA AVAILABLE FOR INCLUSION WITH THEIR BID OR PROPOSAL SHALL MARK OPPOSITE THE COMMERCIAL DATA ITEM "NONE CURRENTLY AVAILABLE.'. "BIDDERS OR OFFERORS WHO HAVE COMMERCIAL DATA AVAILABLE FOR INCLUSION WITH THEIR BID OR PROPOSAL SHALL SUBMIT A BID OR PROPOSAL ON BOTH COMMERCIAL AND TECHNICAL DATA.

B-145511, JUN. 12, 1961

TO BEAVER PIPE TOOLS, INC.:

BY TELEGRAM DATED APRIL 3, 1961, YOU PROTESTED AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. 09-603-61-539, ISSUED ON JANUARY 20, 1961, BY THE WARNER ROBINS AIR MATERIEL AREA, DEPARTMENT OF THE AIR FORCE, FOR A QUANTITY OF PIPE AND BOLT THREADING MACHINES, TOGETHER WITH PHOTOGRAPHS AND TECHNICAL PUBLICATIONS.

THE INVITATION, AS AMENDED, REQUESTED BIDS UNDER ITEM 1 FOR 87 PIPE AND BOLT THREADING MACHINES IN ACCORDANCE WITH FEDERAL SPECIFICATION 00-T-290 AS MODIFIED THEREIN, AND SPECIFICALLY REQUESTED BIDS ON ITEMS 1A, 1B, 1C AND 1D, AS FOLLOWS:

TABLE

"1A. PHOTOGRAPHS, FOR ITEM 1 ABOVE, IAW ATTACHED

TABLE IVA. 1 SET *----- -

"1B. THE CONTRACTOR SHALL FURNISH DATA FOR

ITEM 1,"COMMERCIAL OPERATING AND SERVICE

INSTRUCTIONS WITH RELATED PARTS BREAKDOWN" ,

IAW PARAGRAPH "A" , WRNSTR EXHIBIT 60-10,

ATTACHED HERETO. 287 EA. *-------

"1C. THE CONTRACTOR SHALL FURNISH NEW BASIC

TECHNICAL DATA, CHANGES OR REVISIONS FOR

ITEM 1, IAW PARAGRAPH "B" , WRNSTR EXHIBIT

60-10, ATTACHED HERETO.

NEW BASIC 1 LOT *-------

CHANGES 1 LOT *-------

REVISIONS 1 LOT *------

"1D. THE CONTRACTOR SHALL FURNISH REVISIONS

TO EXISTING PUBLICATIONS FOR ITEM 1, IAW

PARAGRAPH "C" , WRNSTR EXHIBIT 60-10,

ATTACHED HERETO. 1 LOT *------ "

PAGE 9 OF THE INVITATION READ IN PART:

"11 *PHOTOGRAPH PRICING: BIDDERS OR OFFERORS ARE REQUESTED TO INSERT OPPOSITE THE PHOTOGRAPH ITEMS THE PRICE OF SUCH PHOTOGRAPHS. IF THE BIDDER OR OFFEROR DOES NOT INSERT PRICE AS REQUESTED ABOVE, OR INSERTS THE WORDS "NO CHARGE FOR PHOTOGRAPHS" OR SIMILAR LANGUAGE, THE GOVERNMENT WILL CONSIDER THAT THE PHOTOGRAPH PRICE IS INCLUDED IN THE COST OF THE END ITEMS AND IF THE BID IS THE LOWEST RECEIVED AND OTHERWISE ACCEPTABLE, AWARD WILL BE MADE ON THAT BASIS AND SO INDICATED IN THE RESULTANT CONTRACT.

"12 *TECHNICAL AND COMMERCIAL DATA PRICING: BIDDERS OR OFFERORS WHO DO NOT HAVE COMMERCIAL DATA AVAILABLE FOR INCLUSION WITH THEIR BID OR PROPOSAL SHALL MARK OPPOSITE THE COMMERCIAL DATA ITEM "NONE CURRENTLY AVAILABLE.' SUCH BIDDERS OR OFFERORS MUST THEN SUBMIT A BID OR PROPOSAL ON TECHNICAL DATA TO BE ELIGIBLE FOR AWARD OF THE END ITEM.

"BIDDERS OR OFFERORS WHO HAVE COMMERCIAL DATA AVAILABLE FOR INCLUSION WITH THEIR BID OR PROPOSAL SHALL SUBMIT A BID OR PROPOSAL ON BOTH COMMERCIAL AND TECHNICAL DATA.

"NOTICE: THE GOVERNMENT CONTEMPLATES MAKING AN AWARD ON EITHER TECHNICAL DATA OR COMMERCIAL DATA (NOT BOTH), THEREFORE, SEPARATE PRICES SHOULD BE QUOTED ON THESE ITEMS AS APPLICABLE.

"THE GOVERNMENT RESERVES THE RIGHT TO MAKE AWARD ON EITHER TECHNICAL DATA OR COMMERCIAL DATA WITH THE BEST INTEREST OF THE GOVERNMENT CONSIDERED.

"BIDDERS OR OFFERORS ARE REQUESTED TO INSERT OPPOSITE THE DATA ITEMS THE PRICE OF SUCH DATA. IF THE BIDDER OR OFFEROR DOES NOT INSERT PRICE AS REQUESTED ABOVE, OR INSERTS THE WORDS "NO CHARGE FOR DATA" OR SIMILAR LANGUAGE, THE GOVERNMENT WILL CONSIDER THAT THE DATA PRICE IS INCLUDED IN THE COST OF THE END ITEMS AND IF THE BID IS THE LOWEST RECEIVED AND OTHERWISE ACCEPTABLE, AWARD WILL BE MADE ON THAT BASIS AND SO INDICATED IN THE RESULTANT CONTRACT.'

WRNSTR EXHIBIT 60-10, ATTACHED TO AND MADE A PART OF THE INVITATION, PROVIDED IN PARAGRAPH "C" , REVISION TO EXISTING PUBLICATIONS, THAT "IF IDENTICAL OR SIMILAR EQUIPMENT IS COVERED IN PUBLICATIONS PREVIOUSLY ACCEPTED BY AIR FORCE OR NAVY, SUCH PUBLICATIONS SHALL BE REVISED TO INCLUDE THE ABOVE EQUIPMENT IN LIEU OF FURNISHING DATA AS SPECIFIED IN ITEMS "A" (COMMERCIAL DATA PUBLICATION REQUIREMENTS) AND "B" (TECHNICAL PUBLICATIONS REQUIREMENTS) ABOVE. THE TECHNICAL CONTENT AND FORMAT OF SUCH REVISIONS WILL BE PREPARED IN ACCORDANCE WITH THE SAME SPECIFICATION UTILIZED IN PREPARATION OF THE BASIC BOOKS.'

FIVE BIDS WERE RECEIVED AND OPENED ON FEBRUARY 6, 1961, AS SCHEDULED, AND IT APPEARED THAT YOU SUBMITTED THE LOWEST BID FOR YOUR BEAVER MODEL S-4 PIPE AND BOLT THREADING MACHINE. HOWEVER, AS TO THE REMAINING ITEMS YOU BID AS FOLLOWS:

ITEM 1A NOT CURRENTLY AVAILABLE.

ITEM 1B NO CHARGE.

ITEM 1C NOT CURRENTLY AVAILABLE.

ITEM 1D NOT CURRENTLY AVAILABLE.

INASMUCH AS YOU DID NOT FURNISH A QUOTATION ON ITEMS 1C AND 1D, THE COMMERCIAL DATA SUBMITTED WITH YOUR BID WAS FORWARDED BY THE CONTRACTING OFFICER TO THE TECHNICAL DATA BRANCH FOR EVALUATION AND DETERMINATION WHETHER THE DATA WAS ACCEPTABLE FOR AIR FORCE INTENDED USE. THAT BRANCH REPORTED AS FOLLOWS:

"A. SAID DATA DOES NOT CONTAIN AN ILLUSTRATED PARTS BREAKDOWN. THE REPAIR PARTS CATALOG IS SO OUTLINED THAT EXTENSIVE RESEARCH WOULD BE REQUIRED BY UNFAMILIAR PERSONNEL WHEN TRYING TO IDENTIFY PARTS FOR REPLACEMENT. FURTHER, THIS DATA CONTAINS VERY LITTLE OPERATING INSTRUCTIONS AND NO MAINTENANCE OR OVERHAUL INSTRUCTIONS.

"B. ATTACHED DATA DOES NOT REFERENCE A MODEL S-4 THREADING MACHINE, AND INFORMATION HAS BEEN RECEIVED THAT CONTRACTOR INTENDS TO FURNISH SAID MODEL UNDER THIS IFB. IN ORDER FOR DATA TO BE ACCEPTABLE, THE MODEL, TYPE, ETC., MUST BE DESIGNATED SO THAT NO ERROR OR DOUBT MAY EXIST AS TO THE EQUIPMENT ACTUALLY COVERED.

"2. AMCR 5-23, PARAGRAPH 3.A. STATES THAT "COMMERCIAL TECHNICAL DATA WILL NOT BE PREPARED SPECIFICALLY FOR AN AF PROCUREMENT. IF THESE ARE NOT ALREADY PREPARED AND AVAILABLE, DATA PREPARED TO GOVERNMENT SPECIFICATIONS WILL BE PROCURED.' SINCE DATA SUBMITTED FOR REVIEW DOES NOT MAKE REFERENCE TO A MODEL S-4 THREADING MACHINE, IT IS EVIDENT THAT CONTRACTOR DOES NOT HAVE EXISTING DATA FOR THIS EQUIPMENT. * * *"

IN VIEW THEREOF, IT WAS DETERMINED BY THE CONTRACTING OFFICER THAT YOUR BID WAS NOT ENTIRELY RESPONSIVE TO THE INVITATION REQUIREMENTS RESPECTING TECHNICAL DATA. THEREFORE, AWARD WAS MADE TO THE NEXT LOWEST BIDDER, THE RIDGE TOOL COMPANY, ON FEBRUARY 21, 1961, AT ITS BID PRICE OF $602.94 EACH FOR THE 87 MACHINES, INCLUDING PHOTOGRAPHS, AND FOR NEW BASIC TECHNICAL DATA AT $1,048.57.

YOU CONTENDED THAT THE REJECTION OF YOUR BID WAS IMPROPER BECAUSE:

"PAGE 9 OF THE BID INVITATION STATES "IF THE BIDDER DOES NOT INSERT PRICE FOR DATA THE GOVERNMENT WILL CONSIDER THAT THE DATA PRICE IS INCLUDED IN THE COST OF THE END ITEM.' NO PRICE WAS INSERTED FOR TECHNICAL DATA. THE WORDS "NOT CURRENTLY AVAILABLE" WERE INSERTED AS SUGGESTED BY THE AIR FORCE WHEN THE DATA WAS NOT AVAILABLE AT THE TIME FOR INCLUSION WITH THE BID PROPOSAL.

"FURTHERMORE, WARNER ROBINS ALREADY HAD THE TECHNICAL DATA PER THEIR OWN PUBLICATION T.O. 34C2-12-6-1 WHICH COVERS THE TECHNICAL DATA FOR THE S-4 SPEED-O-MATIC MACHINE QUOTED BY BEAVER. WHY SHOULD THE GOVERNMENT PAY ADDITIONAL MONEY TO HAVE SUCH DATA COMPILED AND ALSO PAY A HIGHER PRICE FOR EACH MACHINE.'

WHEN THE GOVERNMENT PURCHASES MACHINE TOOLS, IT REQUIRES SUPPORTING WRITTEN INFORMATION EXPLAINING, FOR THE BENEFIT OF GOVERNMENT PERSONNEL TO WHOM THE MACHINE TOOLS MAY BE ASSIGNED, HOW TO OPERATE AND MAINTAIN THEM, INCLUDING IDENTIFICATIONS OF ALL OF THE COMPONENT PARTS BY DESCRIPTION AND NUMBER SO THAT SPARE PARTS MAY BE ORDERED ACCURATELY WHEN NEEDED. IF DATA PREPARED BY A BIDDER FOR USE WITH ITS COMMERCIAL PRODUCT IS ADEQUATE, THERE IS NO NEED TO PURCHASE DIFFERING SPECIAL DATA. IF THE BIDDER HAS ALREADY PREPARED AND FURNISHED THE NEEDED DATA UNDER PRIOR CONTRACTS, ADDITIONAL UPDATED COPIES OF THAT DATA WOULD SUFFICE. RECOGNIZING THESE FACTORS, THREE ALTERNATIVE BIDS ON DATA WERE REQUESTED IN THE INSTANT INVITATION.

A. A PRICE FOR FURNISHING AVAILABLE COMMERCIAL DATA, IF ANY;

B. A PRICE FOR FURNISHING NEW SPECIAL TECHNICAL DATA; AND

C. A PRICE FOR UPDATING SPECIAL DATA FURNISHED UNDER A PRIOR CONTRACT.

THE ABOVE THREE POSSIBILITIES WERE SET FORTH AS ITEMS 1B, 1C AND 1D. THE INTENT OF THE GOVERNMENT WAS EXPLAINED FULLY ON PAGE 9 OF THE INVITATION SCHEDULE, AND IN WRNSTR EXHIBIT 60-10 WHICH WAS ATTACHED TO THE INVITATION. RECOGNIZING THAT COMMERCIAL DATA MIGHT NOT EXIST, AND THAT THE GOVERNMENT SHOULD NOT PAY TO HAVE THE NEEDED DATA PUT INTO A COMMERCIAL FORMAT, THE INVITATION ON PAGE 9 AUTHORIZED AN ENTRY OF "NONE CURRENTLY AVAILABLE" FOR ITEM 1B (COMMERCIAL DATA). BUT SUCH AN ENTRY WAS NOT AUTHORIZED FOR ITEMS 1C (NEW TECHNICAL DATA) OR 1D (AMENDMENT TO EXISTING TECHNICAL DATA). RATHER, THE INVITATION CLEARLY ADVISED ALL BIDDERS, WHETHER THEY HAD COMMERCIAL DATA AVAILABLE OR NOT, TO SUBMIT BIDS ON ITEMS 1C OR 1D AS APPROPRIATE. ALSO, AN ENTRY OF "NONE CURRENTLY AVAILABLE" WAS NOT AUTHORIZED FOR ITEM 1A (PHOTOGRAPHS).

YOUR "NOT CURRENTLY AVAILABLE" QUOTATION FOR ITEMS 1C AND 1D MUST BE INTERPRETED, IN THE LIGHT OF THE INVITATION PROVISIONS, AS NOT OFFERING TO PREPARE NEW DATA OR AMENDED DATA, BUT ONLY TO PROVIDE ADDITIONAL COPIES OF COMMERCIAL DATA WHICH WAS DETERMINED BY TECHNICAL PERSONNEL TO BE UNACCEPTABLE.

CONCERNING YOUR ALLEGATION THAT THE AIR FORCE ALREADY HAD THE TECHNICAL DATA PERTAINING TO "S-4 SPEED-O-MATIC" IN TECHNICAL ORDER 34C2-12-6-1, ENTITLED "OPERATING AND MAINTENANCE INSTRUCTIONS AND PARTS CATALOG UNDER SPECIFICATION MIL-H-7298," WE HAVE BEEN INFORMED THAT NEW BASIC TECHNICAL DATA WAS PROCURED FROM YOU UNDER CONTRACT NO. AF 09/603/-32744 DATED JUNE 28, 1957, FOR 54 THREADING MACHINES, BEAVER SPEED-O-MATIC, IAW, FEDERAL SPECIFICATION 00-T-290 DATED NOVEMBER 14, 1955. SINCE YOUR MACHINE HAD A TECHNICAL ORDER NUMBER ASSIGNED TO IT, YOU SHOULD HAVE PROPERLY QUOTED ON ITEM 1D, "REVISIONS TO EXISTING PUBLICATIONS FOR ITEM 1," IN ACCORDANCE WITH PARAGRAPH ,C" OF WRNSTR EXHIBIT 60-10 QUOTED ABOVE. WE ALSO NOTE THAT YOU DID NOT INDICATE IN YOUR BID OR ACCOMPANYING PAPERS THAT YOU HAD PREVIOUSLY SOLD THREADING MACHINES TO THE AIR FORCE.

IT IS INTIMATED IN YOUR TELEGRAM THAT THE MATTER OF TECHNICAL DATA COULD HAVE BEEN NEGOTIATED. HOWEVER, THAT ACTION UNDER ADVERTISED PROCUREMENT POLICIES AND PROCEDURES WOULD HAVE BEEN IMPROPER AND PREJUDICIAL TO BIDDERS WHO HAD FULLY RESPONDED TO THE REQUIREMENTS OF THE INVITATION.

PARAGRAPH 8 OF THE TERMS AND CONDITIONS OF THE INVITATION PROVIDED:

"AWARD OF CONTRACT.--- (A) THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.'

THE COURTS AND OUR OFFICE HAVE CONSISTENTLY ADHERED TO THE PROPOSITION THAT THE PROCUREMENT AGENCIES OF THE GOVERNMENT ARE PRIMARILY RESPONSIBLE FOR DETERMINING WHETHER EQUIPMENT TO BE FURNISHED BY A CONTRACTOR MEETS THE NEEDS OF THE GOVERNMENT AND COMPLIES WITH THE ADVERTISED REQUIREMENTS OF THE SPECIFICATIONS. SEE O-BRIEN V. CARNEY, 6 F.SUPP. 761; ROYAL SUNDRIES CORPORATION V. UNITED STATES, 111 F.SUPP. 136; PERKINS V. LUKENS STEEL COMPANY, 310 U.S. 113; FRIEND V. LEE, 221 F.2D 96; 17 COMP. GEN. 554; 36 ID. 251.

IN THE CIRCUMSTANCES, THERE IS NO APPARENT REASON WHY THE GOVERNMENT SHOULD HAVE BEEN REQUIRED TO ACCEPT YOUR BID WITHOUT THE SUBMISSION OF ADEQUATE TECHNICAL INFORMATION. AS POINTED OUT IN OUR DECISION 36 COMP. GEN. 415, WHERE, AS HERE, THE FURNISHING OF DRAWINGS, DATA, ETC., ARE ESSENTIAL TO AN AGENCY'S DETERMINATION AS TO WHETHER THE EQUIPMENT TO BE PURCHASED MEETS THE REQUIREMENTS OF THE GOVERNMENT, THE FAILURE OF A BIDDER TO FURNISH INFORMATION WHICH IS ADEQUATE FOR THAT PURPOSE IS NOT OVERCOME BY THE BIDDER'S GENERAL OFFER TO COMPLY WITH THE SPECIFICATIONS.