B-147318, JAN. 9, 1962

B-147318, JAN. 9, 1962

TO PAIGE AND PAIGE:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 29, 1961, AND SUBSEQUENT CORRESPONDENCE PROTESTING ON BEHALF OF ASTRONAUTICS CORPORATION THE AWARD OF A CONTRACT TO CONSOLIDATED AIRBORNE SYSTEMS, INC., UNDER IFB NO. 33-657 -62-18 ISSUED BY WRIGHT-PATTERSON AIR FORCE BASE, OHIO.

ITEMS 2.1 THROUGH 2.6 OF THE INVITATION CALLED FOR 288 TEMPERATURE THERMOCOUPLE INDICATORS, INCLUDING AS SUB-ITEMS 2.4, 2.5 AND 2.6 CERTAIN RELATED ENGINEERING, TECHNICAL, AND DESCRIPTIVE DATA. CONSOLIDATED SUBMITTED A BID OF $184,279.68 FOR ITEMS 2.1 THROUGH 2.6 COMPARED TO ASTRONAUTICS' BID OF $190,634 FOR THE SAME ITEMS. THE SOLE BASIS FOR YOUR PROTEST IS THE FACT THAT CONSOLIDATED OFFERED TO FURNISH THE THREE DATA SUB-ITEMS WITHOUT CHARGE IN ADDITION TO THE PRICE QUOTED FOR THE ACTUAL INSTRUMENTS THEMSELVES. IN THE ORDINARY CASE THE MERE STATEMENT OF SUCH A BASIS FOR PROTEST WOULD APPEAR TO REFUTE ITS VALIDITY. THE INVITATION IN QUESTION, HOWEVER, HAD A MOST UNUSUAL PROVISION, WHICH WAS AS FOLLOWS:

"DATA PRICING: (MAR. 1961)

BIDDERS ARE REQUIRED TO INSERT OPPOSITE THE DATA ITEMS THE PRICE OF SUCH DATA.

(I) BIDDERS SHALL NOT SUBMIT BIDS ON DATA ITEMS WITH THE WORDS "NO CHARGE FOR DATA" OR "DATA PRICE INCLUDED IN COSTS OF END ITEMS.'

(II) UNDER ANY CONTRACT WHICH REQUIRES THE DELIVERY OF DATA, THE ACCOUNTING AND FINANCE OFFICE WILL BE ADVISED BY THE CONTRACTING OFFICER TO WITHHOLD FINAL PAYMENT UNTIL DD FORM 250,"MATERIEL INSPECTION AND RECEIVING REPORT," IS OBTAINED THROUGH REGULAR CHANNELS INDICATING THAT DATA HAS BEEN DELIVERED AND ACCEPTED.'

THERE IS NO QUESTION BUT THAT THE BID SUBMITTED BY CONSOLIDATED WAS NON- RESPONSIVE IN THAT IT DIRECTLY VIOLATED THE ABOVE-QUOTED PROHIBITION AGAINST QUOTING "NO CHARGE FOR DATA.' IT HAS LONG BEEN RECOGNIZED, HOWEVER, THAT NOT ALL NON-RESPONSIVE BIDS MUST BE SUMMARILY REJECTED. THE DECISIVE FACTOR IN SUCH CASES IS THE MATERIALITY OF THE NON-CONFORMITY IN THE BID. AS STATED IN SECTION 2 405 OF THE ARMED SERVICES PROCUREMENT REGULATION, MINOR INFORMALITIES OR IRREGULARITIES IN BIDS MAY BE CORRECTED OR WAIVED.

YOU CONTEND THAT THE REQUIREMENT FOR SPECIFIC DOLLAR PRICING OF DATA ITEMS WAS MATERIAL AND SUBSTANTIAL FOR THE REASONS, AMONG OTHERS, THAT THE DATA PRICING CLAUSE ITSELF IS PRESCRIBED BY SECTION 9-202.1 OF AIR FORCE PROCUREMENT INSTRUCTION, ITS LANGUAGE IS MANDATORY, AND A SUBSEQUENT INVITATION CONTAINING THE CLAUSE STATED SPECIFICALLY THAT BIDS NOT IN ACCORDANCE WITH THE CLAUSE WOULD BE REJECTED AS NON RESPONSIVE. YOU MAKE THE ADDITIONAL ARGUMENT THAT CONSOLIDATED'S OFFER TO FURNISH THE DATA ITEMS FREE OF CHARGE GAVE IT AN UNFAIR ADVANTAGE OVER OTHER BIDDERS BECAUSE IF IT HAD QUOTED A PRICE FOR SUCH ITEMS IT MIGHT NOT HAVE BEEN THE LOWEST BIDDER.

THE FALLACY OF THE LAST ARGUMENT SEEMS OBVIOUS. ITEMS 2.1 THROUGH 2.6 WERE REQUIRED BY THEIR VERY NATURE TO BE AWARDED ALL TO THE SAME BIDDER. CONSOLIDATED QUOTED A TOTAL PRICE OF $184,279.68 FOR THESE ITEMS, INCLUDING THE THREE DATA ITEMS. THE ONLY LOGICAL CONCLUSION FROM THIS IS THAT IF IT HAD QUOTED SPECIFIC DOLLAR PRICES FOR THE DATA ITEMS, ITS PRICE FOR THE REMAINING ITEMS WOULD HAVE BEEN CORRESPONDINGLY REDUCED, RESULTING IN EXACTLY THE SAME TOTAL PRICE FOR ALL ITEMS IN THE AGGREGATE. YOU HAVE ADVANCED SEVERAL THEORETICAL REASONS IN YOUR MEMORANDUM OF OCTOBER 9, 1961, AS TO WHY IT MIGHT BE IMPORTANT TO HAVE SPECIFIC DOLLAR PRICES QUOTED FOR DATA ITEMS, SUCH AS DIFFICULTY IN SECURING DATA WHERE NO PRICE THEREFOR IS QUOTED, AND THE CLEARER RELINQUISHMENT OF ANY PROPRIETARY RIGHTS IN THE DATA BY THE CONTRACTOR'S AGREEING TO A SPECIFIC CONSIDERATION THEREFOR. WE DO NOT SEE HOW THE QUOTING OF FIXED DOLLAR AMOUNTS FOR DATA COULD CREATE ANY CLEARER RIGHTS THERETO IN THE GOVERNMENT THAN AN AGREEMENT BY THE CONTRACTOR THAT HE WOULD FURNISH THE DATA WITH THE RELATED INSTRUMENTS FOR A TOTAL DOLLAR PRICE. IT MAY BE NOTED, ALSO, THAT THE DATA PRICING CLAUSE PERMITTED ANY BIDDER TO QUOTE A PURELY NOMINAL PRICE OF A DOLLAR OR LESS/ON THE DATA ITEMS. FINALLY, WE HAVE BEEN ADVISED BY THE AIR FORCE THAT IT DOES NOT CONSIDER THE FAILURE TO QUOTE A SPECIFIC DOLLAR PRICE FOR DATA AS MATERIAL ENOUGH TO REQUIRE REJECTION OF A BID AS NON-RESPONSIVE, AND THAT INSTRUCTIONS HAVE BEEN ISSUED TO OMIT ANY STATEMENTS TO THAT EFFECT IN FUTURE INVITATIONS.

IN CONCLUSION, WE FIND NO BASIS TO QUESTION THE PROPRIETY OF THE AWARD MADE.