B-145714, JUN. 21, 1961

B-145714, JUN. 21, 1961

TO THE JENSEN MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 25, 1961, AND ITS ENCLOSURES, PROTESTING AGAINST AN AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. 33-600-61-164 ISSUED BY WRIGHT-PATTERSON AIR FORCE BASE, DAYTON, OHIO.

THE INVITATION WAS ISSUED FEBRUARY 9, 1961, REQUESTING BIDS--- TO BE OPENED MARCH 13, 1961--- FOR FURNISHING 3,010 LOUDSPEAKERS AND ENGINEERING DATA. BID "A" APPLIED TO CASES IN WHICH FIRST ARTICLE APPROVAL WAS REQUIRED AND BID "B" APPLIED TO CASES IN WHICH SUCH APPROVAL WAS NOT REQUIRED. IN THIS CONNECTION THE INVITATION PROVIDED- -

"FIRST ARTICLE APPLICABILITY:

"BIDDERS WHO HAVE NOT PREVIOUSLY FURNISHED TO THE GOVERNMENT AN ACCEPTED ARTICLE AS REFERRED TO IN ITEM 1.1 ABOVE, SHALL SUBMIT A BID ON BID "A" WHICH INCLUDES COMPLIANCE WITH THE PROVISIONS OF SCHEDULE PROVISION "G" HEREOF.

"BIDDERS WHO HAVE PREVIOUSLY FURNISHED TO THE GOVERNMENT AN ACCEPTED ARTICLE AS REFERRED TO IN ITEM 1.1 ABOVE, SHALL SUBMIT A BID ON BID "B" WHICH DOES NOT INCLUDE COMPLIANCE WITH SCHEDULE PROVISION "G" HEREOF.

"BIDS SUBMITTED UNDER BID "A" (FIRST ARTICLE APPROVAL REQUIRED) OR UNDER BID "B" (FIRST ARTICLE APPROVAL NOT REQUIRED) ARE EQUALLY ACCEPTABLE TO THE GOVERNMENT AS APPLICABLE, AND AWARD WILL BE MADE THEREOF WITH THE BEST INTEREST OF THE GOVERNMENT CONSIDERED.'

THE INVITATION REQUIRED DELIVERY UNDER BID "A" "COMPLETE WITHIN 6 MONTHS AFTER RECEIPT OF WRITTEN GOVERNMENT APPROVAL OF FIRST ARTICLES" AND UNDER BID "B" "COMPLETE WITHIN 6 MONTHS AFTER RECEIPT OF WRITTEN NOTICE OF AWARD.'

IN RESPONSE TO THE INVITATION, YOU SUBMITTED A BID OF $20.22 EACH ON BID "A" OR $18.14 EACH ON BID "B.' RACON ELECTRIC COMPANY SUBMITTED THE LOW BID ($18.85 EACH) ON BID "A.' SINCE YOUR BID ON BID "B" WAS THE LOWEST BID RECEIVED, YOU CONTEND THAT YOU ARE ENTITLED TO THE AWARD.

IN YOUR LETTER OF MARCH 10, 1961, ACCOMPANYING YOUR BID, YOU OFFERED UNDER BID "B" A ,MODIFICATION" OF A LOUDSPEAKER PREVIOUSLY FURNISHED TO THE GOVERNMENT BY YOU AS A SUBCONTRACTOR UNDER A PRIOR CONTRACT (AF 33 (600/-38334). YOU STATED THAT THE MODIFICATION WOULD BE OF STRUCTURAL NATURE AND THAT YOU WOULD CONDUCT TESTS "TO VERIFY THE STRUCTURAL SOUNDNESS OF THE REDESIGN" AND THAT "DELIVERY WILL BE ON THE BASIS OF SUBMITTING TWO SAMPLES INCORPORATING THE DESIGN CHANGES WITH TEST DATA * * * WITHIN THREE MONTHS AFTER NOTICE OF AWARD AND ITEMS 1.1 AND 1.1A COMPLETE WITHIN THREE MONTHS AFTER RECEIPT OF APPROVAL OF DESIGN CHANGES.'

IT IS OUR VIEW THAT YOUR BID UNDER BID "B" WAS NOT RESPONSIVE, SINCE IT DID NOT DEFINITELY OFFER DELIVERY "WITHIN 6 MONTHS AFTER RECEIPT OF WRITTEN NOTICE OF AWARD" AS REQUIRED BY THE INVITATION. UNDER THE CONDITIONS SET OUT IN YOUR REFERRED-TO LETTER OF MARCH 10, 1961, THERE WOULD BE NO CERTAINTY THAT DELIVERY WOULD BE MADE WITHIN 6 MONTHS AFTER RECEIPT OF THE NOTICE OF AWARD. SUCH CONTINGENT DELIVERY SCHEDULE IS A SUBSTANTIAL DEVIATION FROM THE REQUIREMENTS OF THE INVITATION WHICH CANNOT BE WAIVED OR WITHDRAWN AFTER BID OPENING. SEE 33 COMP. GEN. 441; 30 ID. 179.

FURTHERMORE, IT APPEARS THAT THE LOUDSPEAKER OFFERED BY YOU WAS NOT SUCH AS HAD BEEN PREVIOUSLY FURNISHED BY YOU TO THE GOVERNMENT, SINCE, AS STATED IN YOUR LETTER OF MARCH 10, 1961, THE LOUDSPEAKER WAS A MODIFICATION OF THE LOUDSPEAKER PREVIOUSLY FURNISHED BY YOU AS A SUBCONTRACTOR ON A GOVERNMENT CONTRACT. ACCEPTANCE OF THE OFFERED LOUDSPEAKER WOULD HAVE ENTAILED CERTAIN CHANGES AND TESTS AND APPROVAL BY GOVERNMENT. THEREFORE, UNDER THE TERMS OF THE INVITATION, THE SUBMISSION BY YOU OF A BID UNDER BID "B" WAS NOT AUTHORIZED.

FOR THE REASONS ABOVE SET FORTH, IT IS CONCLUDED THAT YOUR BID WAS NOT RESPONSIVE TO THE INVITATION AND IS NOT FOR CONSIDERATION IN MAKING THE AWARD.