B-151854, OCT. 7, 1963, 43 COMP. GEN. 327

B-151854: Oct 7, 1963

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THE GOVERNMENT HAVING PAID FOR THE EQUIPMENT IS ENTITLED TO THE MAXIMUM BENEFIT AVAILABLE. 10 U.S.C. 2305 (C) REQUIRING THAT ADVERTISED CONTRACTS SHALL BE AWARDED TO THAT RESPONSIBLE BIDDER WHOSE BID WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES. 1963: REFERENCE IS MADE TO YOUR PROTEST AGAINST THE DELIVERY REQUIREMENTS AND THE PROVISIONS RELATIVE TO COST OF TRANSPORTING. WHICH WERE INCLUDED BY THE DEPARTMENT OF THE ARMY IN IFB NO. THE INVITATION IN QUESTION WAS THE SECOND STEP OF A TWO-STEP FORMALLY ADVERTISED PROCUREMENT. DELIVERY OF 3 HORSEPOWER MOTORS WAS REQUIRED TO BEGIN IN APRIL 1964. DELIVERY OF THE 1 1/2 HORSEPOWER MOTORS WAS TO BEGIN IN OCTOBER 1964. DELIVERY OF THE 6 HORSEPOWER MOTORS WAS TO BEGIN IN NOVEMBER 1964.

B-151854, OCT. 7, 1963, 43 COMP. GEN. 327

BIDS - EVALUATION - GOVERNMENT, EQUIPMENT, ETC. - COST OF TRANSPORTATION, MODIFICATION, ETC. IN THE EVALUATION OF BIDS UNDER AN INVITATION PROVIDING FOR THE USE OF GOVERNMENT-OWNED INDUSTRIAL FACILITIES AND SPECIAL TOOLING, AND REQUIRING THE SUCCESSFUL BIDDER TO ABSORB THE COST OF TRANSPORTING, INSTALLING, MODIFYING, AND MAINTAINING THE EQUIPMENT, ALTHOUGH EXCLUDING SUCH COSTS FROM THE BID OF THE CONCERN POSSESSING THE EQUIPMENT RESULTS IN A COMPETITIVE ADVANTAGE TO THAT CONCERN, THE GOVERNMENT HAVING PAID FOR THE EQUIPMENT IS ENTITLED TO THE MAXIMUM BENEFIT AVAILABLE; THEREFORE, 10 U.S.C. 2305 (C) REQUIRING THAT ADVERTISED CONTRACTS SHALL BE AWARDED TO THAT RESPONSIBLE BIDDER WHOSE BID WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED PREVAILS OVER THE POLICY OF COMPLETE EQUALIZATION OF COMPETITIVE ADVANTAGE UNDER PARAGRAPH 13-407 (A) (3) OF THE ARMED SERVICES PROCUREMENT REGULATION PRESCRIBING THE ELIMINATION OF ANY COMPETITIVE ADVANTAGE FOR A CONCERN POSSESSING GOVERNMENT FACILITIES WITHOUT CHARGE IN COMPETING FOR GOVERNMENT BUSINESS.

TO THE CLINTON ENGINES CORPORATION, OCTOBER 7, 1963:

REFERENCE IS MADE TO YOUR PROTEST AGAINST THE DELIVERY REQUIREMENTS AND THE PROVISIONS RELATIVE TO COST OF TRANSPORTING, MODIFYING, INSTALLING, ETC., GOVERNMENT-OWNED INDUSTRIAL FACILITIES, WHICH WERE INCLUDED BY THE DEPARTMENT OF THE ARMY IN IFB NO. ENG-11-184-63-A-354 MYP (STEP 2).

THE INVITATION IN QUESTION WAS THE SECOND STEP OF A TWO-STEP FORMALLY ADVERTISED PROCUREMENT, AND REQUESTED BIDS ON BOTH A 1 YEAR AND 3 YEAR BASIS ON THE GOVERNMENT'S REQUIREMENTS FOR 1 1/2, 3 AND 6 HORSEPOWER, AIR- COOLED GASOLINE ENGINES. UNDER THE TERMS OF THIS INVITATION, DELIVERY OF 3 HORSEPOWER MOTORS WAS REQUIRED TO BEGIN IN APRIL 1964, DELIVERY OF THE 1 1/2 HORSEPOWER MOTORS WAS TO BEGIN IN OCTOBER 1964, AND DELIVERY OF THE 6 HORSEPOWER MOTORS WAS TO BEGIN IN NOVEMBER 1964.

THESE MOTORS ARE CURRENTLY BEING PRODUCED BY CONTINENTAL MOTORS CORPORATION WITH THE USE OF GOVERNMENT-OWNED INDUSTRIAL FACILITIES AND SPECIAL TOOLING. FREE USE OF ANY OR ALL OF SUCH FACILITIES AND TOOLING WAS OFFERED ON THE CONDITIONS STATED IN PARAGRAPH 20 OF THE SPECIAL TERMS AND CONDITIONS OF THE INVITATION, AS FOLLOWS:

B. ANNEX "A" OF TECHNICAL DATA PACKAGE

(1) GOVERNMENT-OWNED INDUSTRIAL FACILITIES AND SPECIAL TOOLING WHICH ARE CURRENTLY BEING USED FOR THE PRODUCTION OF THE 1 1/2, 3 AND 6 HP MILITARY STANDARD ENGINES CALLED FOR IN THE IFB, OR FOR REPAIR PARTS THEREFOR, ARE LISTED AND DESCRIBED IN ANNEX "A" AS SUPPLEMENTAL BY MODIFICATION NO. 2 TO "INVENTORY OF GOVERNMENT-OWNED MANUFACTURING FACILITIES" FORWARDED BY LETTER DATED 23 APRIL 1963 OF THE TECHNICAL DATA PACKAGE. THESE INDUSTRIES FACILITIES AND SPECIAL TOOLING (ANNEX ,A") AS SUPPLEMENTED BY MODIFICATION NO. 2 TO "INVENTORY OF GOVERNMENT OWNED MANUFACTURING FACILITIES" FORWARDED BY LETTER DATED 23 APRIL 1963 OR ANY PORTION THEREOF, ARE AVAILABLE FOR USE BY THE SUCCESSFUL BIDDER HEREUNDER ON A RENT FREE BASIS IN THE PERFORMANCE OF THE RESULTANT CONTRACT, SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN (2) AND (3) BELOW AND THE FURTHER CONDITIONS SET FORTH IN E BELOW.

(2) THESE INDUSTRIAL FACILITIES AND SPECIAL TOOLING ARE SUBSTANTIALLY LOCATED AT CONTINENTAL MOTORS CORPORATION, 12800 KERCHEVAL AVE., DETROIT, MICHIGAN AND IN THE PLANT OR PLANTS OF CONTRACTORS AS SPECIFIED IN ANNEX "A" AND ARE CURRENTLY UNDER INDUSTRIAL FACILITIES CONTRACT NO. DA-11-184- ENG-19911, PURCHASE ORDER NO. 88-PB-49639-11 WITH CONTINENTAL MOTORS CORPORATION. ANY BIDDER DESIRING TO INSPECT THESE INDUSTRIAL FACILITIES AND/OR SPECIAL TOOLING MAY ARRANGE TO DO SO BY CONTACTING U.S. ARMY ENGINEER DISTRICT, DETROIT, ATTENTION: NCESP-I, P.O. BOX 1027, DETROIT, MICHIGAN, TELEPHONE 313--- WOODWARD 3-1261, MR. ROBERT NIEDEROEST, CHIEF, SUPPLY DIVISION. EXPENSE INCURRED IN CONNECTION WITH THE INSPECTION OF THE INDUSTRIAL FACILITIES AND SPECIAL TOOLING SHALL BE BORNE BY THE BIDDER.

(3) (A) THE INDUSTRIAL FACILITIES AND SPECIAL TOOLING SO DESIGNATED BY THE BIDDER WILL BE FURNISHED F.O.B. COMMON CARRIER'S OR BIDDER'S EQUIPMENT AT BIDDER'S OPTION, DETROIT, MICHIGAN AND OTHER LOCATIONS AS SPECIFIED IN ANNEX "A.' SUCCESSFUL BIDDER SHALL BEAR ALL COSTS INCURRED BY IT FOR TRANSPORTATION, UNLOADING, REBUILD, REWORK, MODIFICATIONS, INSTALLATION, SET-UP, TRY-OUT, MAINTENANCE OR THE LIKE, FOR INDUSTRIAL FACILITIES AND SPECIAL TOOLING SO DESIGNATED AND FURNISHED.

(B) UPON COMPLETION OF THE SERVICES REQUIRED HEREIN OR AT SUCH EARLIER DATES AS IT IS DETERMINED THAT THE CONTRACTOR NO LONGER REQUIRES THE INDUSTRIAL FACILITIES AND SPECIAL TOOLING, THE CONTRACTOR SHALL, IN ACCORDANCE WITH THE DIRECTIONS OF THE CONTRACTING OFFICER, DISMANTLE, PRESERVE, PACKAGE, PACK AND RETURN SUCH INDUSTRIAL FACILITIES AND SPECIAL TOOLING TO THE GOVERNMENT F.O.B. CARRIERS OF EQUIPMENT CONTRACTOR'S PLANT; AN EQUITABLE ADJUSTMENT IN THE CONTRACT PRICE WILL BE NEGOTIATED BETWEEN THE PARTIES FOR ONLY THE COSTS OF PRESERVATION, PACKAGING AND PACKING, ANY DISAGREEMENT CONCERNING WHICH SHALL BE CONSIDERED A DISPUTE WITHIN THE MEANING OF THE "DISPUTE" CLAUSE OF THE CONTRACT.

D. EVALUATION FACTOR FOR USE OF GOVERNMENT-OWNED FACILITIES AND SPECIAL TOOLING:

(1) FOR THE PURPOSE OF EVALUATION OF BIDS, THE FOLLOWING FACTORS WILL BE USED IF THE BIDDER ELECTS TO USE ANY OR ALL OF THE GOVERNMENT PROPERTY REFERRED TO IN B AND C ABOVE. THESE ADDITIONAL FACTORS, TO THE EXTENT APPLICABLE, WILL BE ADDED TO THE AGGREGATE AMOUNT OF EACH BID IN ORDER TO DETERMINE THE EVALUATED AMOUNT OF SUCH BID.

(A) FOR EACH ITEM OF INDUSTRIAL FACILITIES, A RATE OF ONE (1) PERCENT PER MONTH OF THE ACQUISITION COST THEREOF MULTIPLIED BY THE NUMBER OF MONTHS OF THE CONTRACT DELIVERY SCHEDULE. (28 MONTHS FOR ALTERNATE "A"; 10 MONTHS FOR ALTERNATE "B")

(B) FOR EACH ITEM OF SPECIAL TOOLING, A RATE ON ONE AND TWO-THIRDS (1 2/3 ( PERCENT PER MONTH OF THE ACQUISITION COST THEREOF MULTIPLIED BY THE NUMBER OF MONTHS OF THE DELIVERY PERIOD SCHEDULE UNDER THE CONTRACT. (28 MONTHS FOR ALTERNATE "A"; 10 MONTHS FOR ALTERNATE "B")

(C) THE RESULTS OF THE APPLICATION OF THE FORMULAS SET FORTH IN (A) AND (B) ABOVE WILL BE DIVIDED AMONG THE TOTAL NUMBER OF ENGINES BEING PROCURED UNDER THE ALTERNATE BEING EVALUATED AND THE RESULTANT FACTOR WILL BE ADDED TO THE UNIT PRICE OF EACH ENGINE FOR EVALUATION PURPOSES ONLY.

(2) THE EVALUATION FACTOR PRESCRIBED ABOVE WILL NOT BE PRORATED EVEN IN THOSE CASES WHERE GOVERNMENT-OWNED INDUSTRIAL FACILITIES AND/OR SPECIAL TOOLING ARE (IS) USED CONCURRENTLY ON TWO OR MORE GOVERNMENT CONTRACTS. IN ADDITION, ALL GOVERNMENT-OWNED INDUSTRIAL FACILITIES AND/OR SPECIAL TOOLING SELECTED BY THE BIDDER FOR USE IN ANY CONTRACT RESULTING FROM THIS INVITATION FOR BIDS WILL BE EVALUATED AS PROVIDED HEREIN NOTWITHSTANDING ANY LEASE AGREEMENT OR OTHER CONTRACTUAL ARRANGEMENT WITH THE GOVERNMENT PROVIDING FOR FREE USE OR USE ON A RENTAL BASIS.

IN SUBMITTING YOUR TECHNICAL PROPOSAL UNDER STEP ONE OF THIS PROCUREMENT, YOUR COMPANY TOOK EXCEPTION TO PROVISIONS SUBSTANTIALLY THE SAME AS SUBPARAGRAPH B (3) (A) ABOVE IN THE FOLLOWING MANNER:

CLINTON ENGINES CORPORATION WOULD LIKE TO TAKE EXCEPTION TO THE PROVISION OF THE TERMS OF EXHIBIT C REGARDING THE MOVEMENT OF TOOLING. IT IS STIPULATED THAT THE SUCCESSFUL BIDDER SHALL BEAR ALL COSTS INCURRED BY IT FOR TRANSPORTATION UNLOADING, REBUILDING, REWORK, MODIFICATION, INSTALLATION, SETUP, TRY OUT, MAINTENANCE OR THE LIKE FOR THE GOVERNMENT OWNED INDUSTRIAL FACILITIES AND SPECIAL TOOLING REQUIRED FOR THIS IFB. FEEL THE COSTS INVOLVED TO ACCOMPLISH THIS WILL RESULT ONLY TO THOSE BIDDERS WHO DO NOT HAVE THE MATERIAL CURRENTLY LOCATED IN THEIR PLANT. FEEL SOME CONSIDERATION SHOULD BE GIVEN REGARDING THE COSTS INVOLVED TO ACCOMPLISH THIS MOVE AND SETUP.

ADDITIONALLY, YOUR TECHNICAL PROPOSAL COMMENTED UPON THE DELIVERY SCHEDULE IN THE FOLLOWING MANNER:

THE DELIVERY REQUIREMENTS SET FORTH IN EXHIBIT C INDICATES THE INITIAL UNITS TO BE DELIVERED IN MARCH OF 1964. WE FEEL THAT THIS LEAD TIME SOMEWHAT RESTRICTS THE ABILITY OF THE BIDDER. THE MANUFACTURING PROGRAM FROM INITIAL PLANNING TO PRODUCING FIRST ENGINE IS COMPLEX AND REQUIRES A HIGH DEGREE OF COORDINATION TO SUCCESSFULLY ESTABLISH AN ECONOMICAL AND EFFICIENT MANUFACTURING FACILITIES. THE ENTIRE PROGRAM, BROKEN DOWN INTO SECTIONS, WOULD REQUIRE A MINIMUM OF 18 MONTHS FROM RECEIPT OF ORDER. THIS WOULD PERMIT THE MOVEMENT OF TOOLING AND THE ESTABLISHMENT OF NECESSARY SOURCES.

THE INVITATION FOR BIDS UNDER STEP TWO OF THIS PROCUREMENT WAS ISSUED UNDER DATE OF MAY 8, 1963, TO YOUR COMPANY AND TO FOUR OTHER CONCERNS WHICH SUBMITTED ACCEPTABLE TECHNICAL PROPOSALS. NO SUBSTANTIVE CHANGE FROM THE STEP ONE INVITATION WAS MADE WITH RESPECT TO COSTS OF TRANSPORTING, MODIFYING, INSTALLING, ETC., GOVERNMENT-OWNED INDUSTRIAL FACILITIES AND SPECIAL TOOLING, AND THE ONLY CHANGE IN THE DELIVERY SCHEDULE WAS AN EXTENSION OF ONE MONTH.

UNDER DATE OF JUNE 10, 1963, YOUR COMPANY THEREFORE ADVISED THE CONTRACTING AGENCY AS FOLLOWS:

REFERENCE IS MADE TO THE ABOVE INVITATION ON THE MULTI-YEAR PURCHASE OF GOVERNMENT ENGINES.

THIS LETTER IS TO SPECIFY OUR POSITION IN THIS MATTER. WE FEEL, INASMUCH AS THE CONDITIONS OF THE INVITATION OF 20, FEBRUARY, 1963, STEP 1 PRESENTATION WHICH WERE SPECIFIED IN OUR APRIL 10TH TECHNICAL PROPOSAL WERE NOT CHANGED, WE WILL NOT PRESENT A PRICE FOR CONSIDERATION ON THIS CONTRACT. WE WOULD LIKE TO POINT OUT, HOWEVER, THAT WE DO HAVE A COMPLETE MANUFACTURING FACILITY LOCATED IN THE EXTREME LABOR SURPLUS AREA OF CLINTON, MICHIGAN WHICH COULD BE MADE AVAILABLE FOR THE MANUFACTURE OF THESE ENGINES. WE WOULD LIKE TO REMAIN IN CONTENTION BUT IN VIEW OF THE ABOVE ARE FORCED TO TAKE THIS POSITION.

BIDS WERE RECEIVED FROM THE REMAINING FOUR COMPANIES AND WERE OPENED ON JUNE 11, 1963.

UNDER DATE OF JUNE 21, 1963, YOUR COMPANY FORMALLY PROTESTED AGAINST THE PROCUREMENT, TO BOTH THE CONTRACTING AGENCY AND TO THIS OFFICE, AS FOLLOWS:

WE HEREBY PROTEST CERTAIN STIPULATIONS IN SUBJECT INVITATION SINCE IT IS OUR UNDERSTANDING HAT:

(1) PRESENT MANUFACTURER HAS, AT GOVERNMENT EXPENSE, WITH GOVERNMENT OWNED EQUIPMENT AND TOOLING PRODUCED THESE ENGINES AND THE PROCEEDINGS UNDER THIS INVITATION ALLOWED HIM TO BID ON THESE ENGINES ON THE BASIS THAT HE IS TOOLED UP WITH ESTABLISHED SUPPLY LINES READY TO MANUFACTURE.

(2) ALL BIDDERS OTHER THAN THE PRESENT MANUFACTURER MUST, AT THE BIDDER'S EXPENSE, BE PREPARED TO TRANSFER GOVERNMENT OWNED EQUIPMENT AND TOOLING FROM DETROIT, MICHIGAN, TO THE BIDDER'S PLANT, INSTALL AND REHABILITATE SAME, MODIFY AND SUPPLEMENT SAME TO ESTABLISH FULL PRODUCTION.

(3) ALL BIDDERS MUST DEVELOP COMPONENT SUPPLY LINES TO DELIVER ENGINES AT THE RATE OF 12,000 PER MONTH AT THE END OF THE FIRST YEAR PER SPECIFICATIONS OF THE INVITATION.

THIS IN OUR OPINION, DOES NOT CONSTITUTE COMPETITIVE BIDDING AS NO OTHER MANUFACTURER WOULD BE IN A POSITION TO MATCH PRODUCTION COSTS AND DELIVERY DATES OF THE ONE MANUFACTURER WHO HAS BEEN PREVIOUSLY ESTABLISHED AS OUTLINED ABOVE.

WE RESPECTFULLY REQUEST THAT CURRENT PROCEEDINGS BE CANCELLED AND THAT NEW PROCUREMENT PROCEEDINGS BE ESTABLISHED THAT WILL GIVE ALL QUALIFIED PROSPECTIVE MANUFACTURERS AN EQUAL BASIS ON WHICH TO QUOTE ON THIS INVITATION.

WITH RESPECT TO YOUR PROTEST AGAINST THE DELIVERY SCHEDULE, IT SHOULD BE NOTED THAT THE BID SUBMITTED BY CONTINENTAL MOTORS OFFERED DELIVERY IN SHORTER PERIODS, WHILE THE BIDS SUBMITTED BY THE THREE OTHER BIDDERS ALL OFFERED TO MEET THE DELIVERY SCHEDULE AND DID NOT INDICATE SUCH UNDERTAKING WOULD IMPOSE UNDUE HARDSHIP OR RESULT IN ADDITIONAL EXPENSE. WHILE IT WOULD, OF COURSE, BE DESIRABLE TO EXTEND DELIVERY SCHEDULES IN ALL PROCUREMENTS TO A POINT WHERE ALL INTERESTED BIDDERS COULD MEET OR BETTER SUCH SCHEDULES, NO SUCH REQUIREMENT CAN BE IMPOSED UPON THE CONTRACTING AGENCIES. IT IS THE POSITION OF THE CONTRACTING AGENCY IN THE INSTANT PROCUREMENT THAT FULL CONSIDERATION WAS GIVEN TO EXTENDING THE DELIVERIES TO THE MAXIMUM EXTENT CONSISTENT WITH THE GOVERNMENT'S NEEDS. IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, AND SINCE IT WOULD APPEAR THAT ALL OTHER BIDDERS BELIEVED COMPLIANCE WITH THE SCHEDULE WAS PRACTICABLE, WE MUST CONCLUDE THAT THE DELIVERY SCHEDULE DOES NOT PRESENT A VALID BASIS FOR QUESTIONING THE PROPRIETY OF THIS PROCUREMENT.

CONCERNING THAT PORTION OF YOUR PROTEST WHICH IS DIRECTED TO THE COST OF TRANSPORTING, MODIFYING, INSTALLING, ETC., INDUSTRIAL FACILITIES AND SPECIAL TOOLING, IT WOULD APPEAR THAT TWO BASIC PRINCIPLES ARE FOR CONSIDERATION. FIRST, THE STATUTORY REQUIREMENT IN 10 U.S.C. 2305 (C) THAT ADVERTISED CONTRACTS SHALL BE AWARDED TO THAT RESPONSIBLE BIDDER WHOSE BID WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED. SECOND, THE DEPARTMENT OF DEFENSE POLICY, AS SET OUT IN PAR. 13-407 (A) (3), ARMED SERVICES PROCUREMENT REGULATION, THAT A SUITABLE METHOD FOR ELIMINATING ANY COMPETITIVE ADVANTAGE SHALL BE EMPLOYED TO INSURE THAT A CONCERN POSSESSING GOVERNMENT FACILITIES WITHOUT CHARGE IS NOT THEREBY PLACED IN A FAVORABLE POSITION IN COMPETING FOR GOVERNMENT BUSINESS.

THERE WOULD APPEAR TO BE NO DOUBT THAT THE METHOD SET OUT IN THE INVITATION FOR EVALUATING GOVERNMENT-OWNED FACILITIES AND SPECIAL TOOLING RESULTS IN THE SAME AMOUNT BEING ADDED FOR BID EVALUATION PURPOSES TO THE BID PRICE OF EACH BIDDER WHO PROPOSES TO USE THE SAME ITEM OR ITEMS OF FACILITIES OR TOOLING. TO THAT EXTENT, NO COMPETITIVE ADVANTAGE IN THE EVALUATION OF BIDS WOULD ACCRUE TO CONTINENTAL FROM ITS POSSESSION OF GOVERNMENT-OWNED EQUIPMENT. CONVERSELY, IT IS OBVIOUS THAT A COMPETITIVE ADVANTAGE DOES ACCRUE TO CONTINENTAL IF OTHER BIDDERS ARE REQUIRED TO INCLUDE IN THEIR BID PRICES, OR OTHERWISE ABSORB, THE COST OF TRANSPORTING, MODIFYING, INSTALLING, ETC., EQUIPMENT WHICH IS PRESENTLY LOCATED IN CONTINENTAL'S PLANT, WHILE NO SIMILAR COSTS ARE REQUIRED TO BE ABSORBED BY CONTINENTAL. ON THE OTHER HAND, THE GOVERNMENT, HAVING PAID FOR SUCH EQUIPMENT, IS ENTITLED TO THE MAXIMUM BENEFIT AVAILABLE FROM THE USE THEREOF. AS PREVIOUSLY INDICATED, THE PROVISIONS OF 10 U.S.C. 2305 (C) REQUIRE THE AWARD OF ADVERTISED CONTRACTS TO THAT RESPONSIBLE BIDDER WHOSE BID WILL RESULT IN THE MOST ADVANTAGEOUS CONTRACT FOR THE GOVERNMENT. ELEMENTS OF COST OR SAVINGS TO THE GOVERNMENT WHICH ARE NOT INCLUDED IN THE BID PRICES, SUCH AS COST OF TRANSPORTATION OF THE CONTRACT AND ITEMS, OR COSTS IN CONNECTION WITH USE OF GOVERNMENT OWNED EQUIPMENT, MAY PROPERLY BE CONSIDERED IN EVALUATING BID PRICES TO DETERMINE WHICH BID WILL RESULT IN THE MOST ADVANTAGEOUS CONTRACT. HOWEVER, IT IS OUT OPINION THAT ANY AMOUNTS WHICH ARE PROPERLY FOR APPLICATION IN SUCH EVALUATION MUST BE FAIRLY REPRESENTATIVE ON AN ACTUAL OR ESTIMATED BASIS, OF TRUE COSTS OR SAVINGS TO THE GOVERNMENT.

WHILE THE POLICY OF COMPLETE EQUALIZATION OF COMPETITIVE ADVANTAGE, TO WHICH THE ABOVE-REFERENCED PROVISIONS OF THE ASPR ARE DIRECTED, IS A DESIRABLE OBJECTIVE IN PROCUREMENTS INVOLVING THE USE OF GOVERNMENT OWNED EQUIPMENT, TO THE EXTENT THAT SUCH POLICY MAY CONFLICT WITH 10 U.S.C. 2305 (C), THE STATUTE MUST PREVAIL. IN THE INSTANT PROCUREMENT, IT IS APPARENT THAT ADDITIONAL COSTS FOR TRANSPORTING, MODIFYING, INSTALLING, ETC., THE INDUSTRIAL FACILITIES AND SPECIAL TOOLING LOCATED IN CONTINENTAL'S PLANT WOULD NECESSARILY RESULT IF AN AWARD WERE MADE TO ANY OTHER BIDDER WHO PROPOSED TO USE SUCH FACILITIES AND TOOLING, WHILE NO SUCH COSTS WOULD RESULT FROM AN AWARD TO CONTINENTAL. IT NECESSARILY FOLLOWS THAT IN EVALUATING BIDS FOR THE PURPOSE OF DETERMINING THE MOST ADVANTAGEOUS BID UNDER 10 U.S.C. 2305 (C), THESE CIRCUMSTANCES WERE REQUIRED TO BE CONSIDERED AND RECOGNIZED IN ANY BID EVALUATION PROCEDURE. THE METHOD OF EVALUATION ADOPTED IN THE INSTANT CASE (I.E., EXCLUDING ANY ADDITIONAL COSTS OF TRANSPORTING, MODIFYING, INSTALLING, ETC., FROM THE EVALUATION BY REQUIRING EACH BIDDER TO EITHER ABSORB THEM OR INCLUDE THEM IN HIS BID PRICE) WAS ONE METHOD OF ARRIVING AT EVALUATED BID PRICES WHICH WOULD REFLECT TRUE COST TO THE GOVERNMENT. CONVERSELY, IT IS OBVIOUS THAT IF THE INVITATION HAD ADVISED BIDDERS THAT THE GOVERNMENT WOULD ASSUME SUCH ADDITIONAL COSTS, A PROPER EVALUATION OF CONTINENTAL'S BID WOULD HAVE REQUIRED THE DEDUCTION OF AN AMOUNT REPRESENTING SUCH COSTS, IN EVALUATING CONTINENTAL'S BID. UNDER EITHER EVALUATION METHOD, IT IS APPARENT THAT WHILE THE LOW EVALUATED BID PRICE WOULD REPRESENT THE MOST ADVANTAGEOUS BID TO THE GOVERNMENT, A COMPETITIVE ADVANTAGE WOULD RESULT TO CONTINENTAL FROM ITS POSSESSION OF GOVERNMENT EQUIPMENT.

IN VIEW OF THE FOREGOING, AND SINCE WE ARE UNAWARE OF ANY EVALUATION METHOD WHICH WOULD HAVE EQUALIZED CONTINENTAL'S COMPETITIVE ADVANTAGE IN THE INSTANT PROCUREMENT AND, AT THE SAME TIME, RESULTED IN EVALUATED BID PRICES REFLECTING TRUE COST TO THE GOVERNMENT, WE ARE UNABLE TO CONCLUDE THAT THE METHOD OF BID EVALUATION PRESCRIBED BY THE INVITATION WAS IMPROPER, OR THAT THE AWARD TO CONTINENTAL BASED UPON SUCH BIDS SO SOLICITED AND EVALUATED WAS IMPROPER.