B-149980, NOV. 27, 1962

B-149980: Nov 27, 1962

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TO THE MKC ELECTRONICS CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 16. IT IS YOUR CONTENTION THAT UNDER THE TERMS OF THE INVITATION THE THREE ITEMS SET FORTH THEREIN COULD HAVE BEEN AWARDED SEPARATELY AND. SINCE YOU WERE THE LOW BIDDER ON ITEM NO. 1. AWARD WAS MADE FOR ITEMS 1 AND 2. IT IS REPORTED THAT IT WAS CONTEMPLATED BY THE CONTRACTING OFFICER. IT WAS ADMINISTRATIVELY DETERMINED TO DISREGARD ITEM 3 IN THIS PROCUREMENT. WHICH RIGHT WAS RESERVED IN THE GOVERNMENT UNDER PARAGRAPH 1 OF THE GENERAL CONDITIONS OF THE INVITATION. SINCE THE BEST PRICE QUOTED THEREON WAS CONSIDERED TO BE EXCESSIVE. YOUR BID WOULD HAVE BEEN ACCEPTED AS THE LOWEST ON ITEM 1 ALONE. ACCEPTANCE OF YOUR BID ON ITEM 1 WOULD HAVE PRECLUDED ACCEPTANCE OF ANY BID ON ITEM 2 OR 3.

B-149980, NOV. 27, 1962

TO THE MKC ELECTRONICS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 16, 1962, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. 60-1127, ISSUED BY THE UNITED STATES COAST GUARD ACADEMY. IT IS YOUR CONTENTION THAT UNDER THE TERMS OF THE INVITATION THE THREE ITEMS SET FORTH THEREIN COULD HAVE BEEN AWARDED SEPARATELY AND, SINCE YOU WERE THE LOW BIDDER ON ITEM NO. 1, THE PROCUREMENT OFFICIALS ERRED IN NOT ACCEPTING YOUR BID AS TO THAT ITEM.

THE INVITATION SOUGHT BIDS ON THREE ITEMS. ITEM 1 CALLED FOR THE FURNISHING OF MATERIAL AND LABOR NECESSARY TO MODIFY TWO EXISTING RADAR TRAINING SETS IN ACCORDANCE WITH THE SPECIFICATIONS MADE A PART THEREOF, DESIGNATED AS PROJECT A. ITEM NO. 2 CALLED FOR SEPARATE QUOTATIONS FOR LABOR AND EQUIPMENT FOR MODIFICATION OF SONAR TRAINING SETS, DESIGNATED AS PROJECT B, TO BE PERFORMED ,IN ADDITION" TO ITEM NO. 1. ITEM NO. 3 ASKED FOR QUOTATIONS TO PERFORM THE WORK REQUIRED THEREIN,--- INSTALLATION OF SONAR TRAINING TRACKING PANELS--- DESIGNATED AS PROJECT C, TO BE ACCOMPLISHED "IN ADDITION" TO ITEMS 1 AND 2. AWARD WAS MADE FOR ITEMS 1 AND 2, TO THE LOW BIDDER ON THE COMBINATION OF THOSE TWO ITEMS. IT IS REPORTED THAT IT WAS CONTEMPLATED BY THE CONTRACTING OFFICER, CONSISTENT WITH THE LANGUAGE OF ITEMS 2 AND 3, THAT AWARD WOULD BE MADE ON AN "ALL OR NONE" BASIS FOR ITEM 1, ITEMS 1 AND 2, OR 1, 2 AND 3, AS MIGHT BE DETERMINED TO BE IN THE BEST INTEREST OF THE GOVERNMENT.

IT WAS ADMINISTRATIVELY DETERMINED TO DISREGARD ITEM 3 IN THIS PROCUREMENT, WHICH RIGHT WAS RESERVED IN THE GOVERNMENT UNDER PARAGRAPH 1 OF THE GENERAL CONDITIONS OF THE INVITATION, SINCE THE BEST PRICE QUOTED THEREON WAS CONSIDERED TO BE EXCESSIVE. HAD THE SAME CONCLUSION BEEN REACHED AS TO ITEM 2, YOUR BID WOULD HAVE BEEN ACCEPTED AS THE LOWEST ON ITEM 1 ALONE. HOWEVER, IN VIEW OF THE CUMULATIVE OR ADDITIVE LANGUAGE INCORPORATED IN ITEMS 2 AND 3 OF THE INVITATION, ACCEPTANCE OF YOUR BID ON ITEM 1 WOULD HAVE PRECLUDED ACCEPTANCE OF ANY BID ON ITEM 2 OR 3.

IT IS UNFORTUNATE THAT THE INVITATION FAILED TO STATE ANY QUALIFICATION OF THE STANDARD FORM EVALUATION AND AWARD CLAUSE, WHICH WAS IN DIRECT CONFLICT WITH THE ADDITIVE LANGUAGE SET FORTH IN ITEMS 2 AND 3 WHICH CONTEMPLATED AWARDING A SINGLE CONTRACT FOR ALL OF THE WORK. OF COURSE, THE ADMINISTRATIVE OFFICE NOW RECOGNIZES THE AMBIGUITY AND WE ARE ADVISED THAT ACTION HAS BEEN TAKEN TO PREVENT REPETITION OF SUCH AN ERROR.

IT IS AGREED THAT THE INVITATION WAS DEFECTIVE, AND THAT BETTER PROCEDURE WOULD HAVE BEEN TO READVERTISE UNDER A CORRECTED STATEMENT OF THE BASIS FOR AWARD. HOWEVER, THE ADMINISTRATIVE REPORT SHOWS THAT AS OF OCTOBER 5, 1962, THE WORK ON ITEM 1 WAS 25 PERCENT COMPLETED, AND THAT COVERED BY ITEM 2 WAS 95 PERCENT COMPLETED. SINCE THE FINAL COMPLETION DATE IS DECEMBER 1, 1962, AND ASSUMING THEREFORE, THAT THE WORK HAS BEEN SUBSTANTIALLY COMPLETED AS OF THIS DATE, IT IS OUR CONCLUSION THAT IT WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT TO DIRECT CANCELLATION OF THE CONTRACT, WHICH APPEARS TO HAVE BEEN AWARDED IN ENTIRE GOOD FAITH AND IN ACCORDANCE WITH THE CONTRACTING OFFICER'S UNDERSTANDING OF THE NECESSITIES OF THE SITUATION.

ACCORDINGLY, WE WILL NOT DISTURB THE ACTION TAKEN BY THE UNITED STATES COAST GUARD ACADEMY IN ..END :