B-149529, AUG. 8, 1962

B-149529: Aug 8, 1962

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WAS RESPONSIVE TO INVITATION FOR BIDS NO. UNDER THE INVITATION IS VALID. "F. AWARD WILL BE BASED ON THE LOWEST TOTAL BID OF ALL ITEMS.'. THREE BIDS WERE RECEIVED AND OPENED ON APRIL 30. DA-20-089-ORD- 39854 WAS MADE ON JUNE 15. " AND THAT TOOLING WAS CONSIDERED AS A SUBSTANTIAL PART OF ANY AWARD. ASPR 13-302 (I) PROVIDES THAT WHERE SPECIAL TOOLING REQUIRED FOR PERFORMANCE OF A FIXED-PRICE CONTRACT IS NOT FURNISHED BY THE GOVERNMENT. IN THE INVITATION UNDER CONSIDERATION BIDDERS WERE NOT CLEARLY ADVISED THAT THE TOOLING COVERED BY ITEMS 1A AND 2A WAS SPECIAL TOOLING. THE TOOLING COVERED BY THE INVITATION WAS THAT WHICH WAS "TO BE PURCHASED AND/OR MANUFACTURED TO PRODUCE" THE END ITEM AND REASONABLY COULD BE REGARDED BY INTERESTED BIDDERS AS INCLUDING NOT ONLY TOOLING OF A SPECIALIZED NATURE BUT ALSO CONSUMABLE OR GENERAL PURPOSE TOOLS.

B-149529, AUG. 8, 1962

TO THE SECRETARY OF THE ARMY:

BY LETTER DATED JULY 24, 1962, WITH ACCOMPANYING PROTEST FILE, THE ACTING CHIEF, CONTRACTS DIVISION, OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, REQUESTED OUR DECISIONS AS TO WHETHER THE BID OF C AND H ENGINEERING AND MANUFACTURING CO. WAS RESPONSIVE TO INVITATION FOR BIDS NO. ORD-20-089-62-50B AND WHETHER CONTRACT NO. DA-20-089-ORD-39854 AWARDED ON JUNE 15, 1962, TO YANKEE TELECOMMUNICATION LABORATORIES, INC., UNDER THE INVITATION IS VALID.

THE INVITATION ISSUED ON APRIL 4, 1962, BY THE U.S. ARMY ORDNANCE ARSENAL, DETROIT, MICHIGAN, REQUESTED BIDS ON THE FOLLOWING ITEMS:

"1 HAND SET BOX, ORD P/N 10915545, MANUFACTURED AS SHOWN ON ORD DRG FI0915545 DTD 20 NOV 1961 AND TO SPECIFICATIONS AND ALL DETAIL DRAWINGS REFERENCED THEREON. UNLESS SPECIFIED ON DRAWINGS ALL METAL PARTS SHALL BE PROTECTIVE FINISHED PER ORD DRG A 10900954.

"1A TOOLING, TO BE PURCHASED AND/OR MANUFACTURED TO PRODUCE ITEM 1, WHICH SHALL BE SYMBOLED 10915545-1 AND CONSISTING OF THE FOLLOWING: (ITEMIZE AND INDICATE COST)

"2 HAND SET BOX, ORD P/N 10915329, MANUFACTURED AS SHOWN ON ORD DRG DI0915329 DTD 1 NOV 1961 AND TO SPECIFICATIONS AND ALL DETAIL DRAWINGS REFERENCED THEREON. UNLESS SPECIFIED ON DRAWINGS, ALL METAL PARTS SHALL BE PROTECTIVE FINISHED PER ORD DRG A 10900954.

"2A TOOLING, TO BE PURCHASED AND/OR MANUFACTURED TO PRODUCE ITEM 2, SHALL BE SYMBOLED 10915329-1 AND CONSISTING OF THE FOLLOWING: (ITEMIZE AND INDICATE COST) "

PAGE 3B OF THE INVITATION PROVIDED:

"E. ANY BIDDER WHO DOES NOT BID ON ALL ITEMS SHALL BE CONSIDERED NON- RESPONSIVE.

"F. AWARD WILL BE BASED ON THE LOWEST TOTAL BID OF ALL ITEMS.'

THREE BIDS WERE RECEIVED AND OPENED ON APRIL 30, 1962, AND IT APPEARED THAT YANKEE AND M. W. TRUCK PARTS, INC., SUBMITTED BIDS ON ALL ITEMS ON THE BID SCHEDULE, WHEREAS, C AND H ENGINEERING SUBMITTED BIDS ONLY ON ITEMS 1 AND 2. YANKEE'S AGGREGATE BID, INCLUDING TOOLING, AMOUNTED TO $26,880, AND C AND H ENGINEERING'S BID ON THE END ITEMS ALONE AMOUNTED TO $25,773.80. SINCE C AND H ENGINEERING FAILED TO BID ON ITEMS 1A AND 2A, THE CONTRACTING OFFICER REJECTED ITS BID AS NONRESPONSIVE IN VIEW OF THE REQUIREMENT OF PARAGRAPH "E" ABOVE. AWARD OF CONTRACT NO. DA-20-089-ORD- 39854 WAS MADE ON JUNE 15, 1962, TO YANKEE AS THE LOWEST RESPONSIVE BIDDER UNDER THE INVITATION.

THE PROTEST FILE INDICATES THAT THE WORD "TOOLING" AS USED IN ITEMS 1A AND 2A MEANS "SPECIAL TOOLING," AND THAT TOOLING WAS CONSIDERED AS A SUBSTANTIAL PART OF ANY AWARD.

ASPR 13-302 (I) PROVIDES THAT WHERE SPECIAL TOOLING REQUIRED FOR PERFORMANCE OF A FIXED-PRICE CONTRACT IS NOT FURNISHED BY THE GOVERNMENT, THE CONTRACT MAY PROVIDE FOR THE ACQUISITION OF SUCH NEWLY MADE OR ACQUIRED SPECIAL TOOLING BY THE CONTRACTOR AND THE DELIVERY THEREOF TO THE GOVERNMENT AS AN END ITEM UNDER THE CONTRACT. HOWEVER, IN THE INVITATION UNDER CONSIDERATION BIDDERS WERE NOT CLEARLY ADVISED THAT THE TOOLING COVERED BY ITEMS 1A AND 2A WAS SPECIAL TOOLING. IN OTHER WORDS, THE TOOLING COVERED BY THE INVITATION WAS THAT WHICH WAS "TO BE PURCHASED AND/OR MANUFACTURED TO PRODUCE" THE END ITEM AND REASONABLY COULD BE REGARDED BY INTERESTED BIDDERS AS INCLUDING NOT ONLY TOOLING OF A SPECIALIZED NATURE BUT ALSO CONSUMABLE OR GENERAL PURPOSE TOOLS. THE BASES OF EVALUATING TOOLING BIDS WERE NOT MADE KNOWN TO BIDDERS BY THE TERMS OF THE INVITATION IN CERTAIN SIGNIFICANT RESPECTS. FIRST, BIDDERS WERE NOT ADVISED OF THE EXACT CHARACTER OF TOOLS COVERED BY THE INVITATION; AND SECONDLY, BIDDERS WHO MAY NOT HAVE HAD TO ACQUIRE TOOLING FOR PERFORMANCE WERE NOT ADVISED HOW TO SUBMIT BIDS FOR ITEMS 1A AND 2A.

WE RECOGNIZE THAT THE DRAFTING OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT IS PRIMARILY WITHIN THE JURISDICTION OF THE PROCUREMENT AGENCY. HOWEVER, PROCUREMENTS SUCH AS THIS, ADVERTISED UNDER 10 U.S.C. 2305 (A), MUST PERMIT FULL AND FREE COMPETITION CONSISTENT WITH THE PROCUREMENT OF THE PROPERTY. THE FULL AND FREE COMPETITION REQUIRED CANNOT BE OBTAINED UNLESS THE INVITATION IS SUFFICIENTLY DEFINITE TO PERMIT THE PREPARATION AND EVALUATION OF BIDS ON A COMMON BASIS. THERE CAN BE NO EFFECTIVE COMPETITION UNLESS BIDDERS ARE COMPETING ON A COMMON BASIS; NO INTELLIGENT BIDDING FOR A CONTRACT UNLESS ALL BIDDERS KNOW WHAT THE CONTRACT REQUIREMENTS WILL BE.IF BIDDERS ARE INVITED TO OFFER TOOLING WITHOUT REFERENCE TO WHETHER SPECIAL OR GENERAL TYPE TOOLING IS DESIRED, OR WHETHER THE TOOLING REQUIREMENT IS APPLICABLE IN ALL SITUATIONS, THERE IS LACKING A PROPER BASIS FOR BIDDERS TO KNOW WHAT THEY ARE BIDDING FOR OR AGAINST. WE, THEREFORE, ARE OF THE VIEW THAT THE INVITATION WAS DEFECTIVE AND THAT NO AWARD SHOULD HAVE BEEN MADE THEREUNDER. HOWEVER, HAVING REGARD FOR THE FACT THAT C AND H ENGINEERING DID NOT BID ON ALL ITEMS DESPITE THE WARNING IN THE INVITATION THAT FAILURE TO DO SO WOULD RENDER THE BID NONRESPONSIVE AND CONSIDERING THAT YANKEE HAS COMPLETED A SIZEABLE PORTION OF THE CONTRACT WORK AND THAT IT WILL FURNISH TOOLING WORTH $15,190 AS CONTRASTED WITH THE $1,106.20 DIFFERENCE BETWEEN ITS BID AND THE BID OF C AND H ENGINEERING, AND SINCE THE ITEMS ARE URGENTLY NEEDED AS EVIDENCED BY THE CONTRACT DELIVERY SCHEDULE, WE WILL NOT OBJECT TO THE AWARD MADE IN THIS INSTANCE. CF. B-149186, JULY 11, 1962.