B-152438, SEP. 13, 1963

B-152438: Sep 13, 1963

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 5. THE SUBJECT INVITATION FOR BIDS (IFB) WAS ISSUED BY THE AVIATION SUPPLY OFFICE ON JUNE 3. REQUESTED THAT THE PROTEST BE BROUGHT TO THE ATTENTION OF OUR OFFICE AND THAT OUR VIEWS BE OBTAINED BEFORE ANY ACTION WAS TAKEN. TWELVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND THEY WERE OPENED ON JUNE 26. THE LOW BID AT A UNIT PRICE OF $10.89 WAS SUBMITTED BY THE MERCURY CHEMICAL COMPANY. THE SECOND LOW BID WAS SUBMITTED BY THE CLARK CABLE CORPORATION AT A UNIT PRICE OF $11.98. UNIT PRICES OF THE OTHER 10 BIDDERS RANGED FROM $12.48 TO A HIGH OF $23 WHICH WAS SUBMITTED BY GENTEX. IT IS REPORTED BY THE CONTRACTING OFFICER THAT THE LOW BIDDER (MERCURY CHEMICAL COMPANY.

B-152438, SEP. 13, 1963

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 5, 1963, AND ENCLOSURES, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING A DECISION ON A PROTEST FILED WITH THE CONTRACTING OFFICER, AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA, UNDER INVITATION FOR BIDS JD-IFB-383-1053-63.

THE SUBJECT INVITATION FOR BIDS (IFB) WAS ISSUED BY THE AVIATION SUPPLY OFFICE ON JUNE 3, 1963, AND REQUESTED BIDS FOR FURNISHING 24,312 UNITS OF A KIT, SURVIVAL AIRMAN, ESCAPE AND EVASION TYPE SEEK-1, CONFORMING TO THE REQUIREMENTS OF BUREAU OF NAVAL WEAPONS EXPERIMENTAL SPECIFICATION XRAAE- 157 AS MODIFIED IN THE SCHEDULE OF THE IFB. THE IFB INCORPORATED THE STANDARD PATENT CLAUSES ENTITLED "NOTICE AND ASSISTANCE REGARDING PATENT INFRINGEMENT," "AUTHORIZATION AND CONSENT," AND "PATENT INDEMNITY (NOT PREDETERMINED).'

BY LETTER OF JUNE 20, 1963, TO THE CONTRACTING OFFICER, GENTEX CORPORATION ALLEGED THAT THE IFB COVERED A KIT WHICH REQUIRED A CONTAINER IN ACCORD WITH THE TEACHINGS OF PATENT NO. 3,072,285 ISSUED TO GENTEX. ANOTHER LETTER DATED JUNE 25, 1963, GENTEX PROTESTED THE MAKING OF AN AWARD UNDER THE IFB WHICH WOULD CONSTITUTE AN INFRINGEMENT OF THE PATENT AND, IN ADDITION, REQUESTED THAT THE PROTEST BE BROUGHT TO THE ATTENTION OF OUR OFFICE AND THAT OUR VIEWS BE OBTAINED BEFORE ANY ACTION WAS TAKEN.

TWELVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND THEY WERE OPENED ON JUNE 26, 1963. THE LOW BID AT A UNIT PRICE OF $10.89 WAS SUBMITTED BY THE MERCURY CHEMICAL COMPANY, INC. THE SECOND LOW BID WAS SUBMITTED BY THE CLARK CABLE CORPORATION AT A UNIT PRICE OF $11.98. UNIT PRICES OF THE OTHER 10 BIDDERS RANGED FROM $12.48 TO A HIGH OF $23 WHICH WAS SUBMITTED BY GENTEX. IT IS REPORTED BY THE CONTRACTING OFFICER THAT THE LOW BIDDER (MERCURY CHEMICAL COMPANY, INC.) WAS DETERMINED TO BE NONRESPONSIBLE.

THE ISSUE PRESENTED FOR DECISION WAS FULLY CONSIDERED IN A DECISION OF OCTOBER 6, 1958, B-136916 (38 COMP. GEN. 276), AND WE THINK THE HOLDING THEREIN IS CONTROLLING HERE. WE HELD THERE THAT IN A PROCUREMENT BY FORMAL ADVERTISING INVOLVING A PATENTED ARTICLE AND INCLUDING IN THE IFB THE PATENT CONSENT AND INDEMNITY CLAUSES, AN AWARD IS REQUIRED TO BE MADE TO THE LOWEST BIDDER MEETING THE SPECIFICATIONS WITHOUT REGARD TO POSSIBLE PATENT INFRINGEMENT. SEE, ALSO, 39 COMP. GEN. 760.

ACCORDINGLY, YOU ARE ADVISED THAT THE PROTEST BY GENTEX SHOULD BE DENIED AND AWARD OF THE CONTRACT MADE TO THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER.