B-152899, JAN. 27, 1964

B-152899: Jan 27, 1964

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THE PROTEST WAS DIRECTED TO THIS OFFICE BY LYONS-ALPHA PRODUCTS COMPANY. WE ARE INFORMED THAT AWARD OF A CONTRACT PURSUANT TO THE ABOVE INVITATION WILL NOT BE MADE UNTIL THIS PROTEST HAS BEEN RESOLVED BY THIS OFFICE. THIS INVITATION WAS ISSUED BY THE DIRECTORATE FOR PROCUREMENT. PAGES 7 THROUGH 11 INCLUSIVE (SEE NOTE 1) "BIDDERS ARE REQUESTED TO INDICATE PRICE FOR MANUALS ABOVE. UNDER NO CIRCUMSTANCES WILL AN AWARD FOR EQUIPMENT MANUALS BE MADE TO A BIDDER OTHER THAN A BIDDER WHO RECEIVES AN AWARD FOR ITEM A-001 AND 002. BIDS WILL BE EVALUATED ON THE LOWEST AGGREGATE COST TO THE GOVERNMENT FOR ITEMS A-001. REPLACEMENT PARTS FOR THE SAME OR DIFFERENT MODEL END ITEMS SHALL NOT HAVE THE SAME PART NUMBER UNLESS THEY ARE INTERCHANGEABLE.'.

B-152899, JAN. 27, 1964

TO DIRECTOR, DEFENSE SUPPLY AGENCY:

WE REFER TO A LETTER DATED DECEMBER 17, 1963, WITH ENCLOSURE FROM MR. HERMAN W. BARTH, OFFICE OF COUNSEL, AND A LETTER DATED JANUARY 6, 1964, WITH ENCLOSURE FROM MR. ALBERT RABY, ASSISTANT COUNSEL, DEFENSE SUPPLY AGENCY, CAMERON STATION, ALEXANDRIA, VIRGINIA, DSAH-G, IN REGARD TO A PROTEST TO AN AWARD OF A CONTRACT PURSUANT TO INVITATION FOR BIDS NO. DSA- 4-64-472. THE PROTEST WAS DIRECTED TO THIS OFFICE BY LYONS-ALPHA PRODUCTS COMPANY, INCORPORATED, 2000 CONNECTICUT AVENUE, NORTHWEST, WASHINGTON, D.C., ON NOVEMBER 14, 1963. WE ARE INFORMED THAT AWARD OF A CONTRACT PURSUANT TO THE ABOVE INVITATION WILL NOT BE MADE UNTIL THIS PROTEST HAS BEEN RESOLVED BY THIS OFFICE.

THIS INVITATION WAS ISSUED BY THE DIRECTORATE FOR PROCUREMENT, DEFENSE GENERAL SUPPLY CENTER, RICHMOND 12, VIRGINIA, ON SEPTEMBER 19, 1963. PAGE 1 OF THE SCHEDULE IN THIS INVITATION PROVIDED AS FOLLOWS:

CHART

"A. FSN 7310-274-7107: 76 EACH

GRIDDLE, SELF HEATING:

GAS FIRED, TABLE MODEL -

IN ACCORDANCE WITH SPECIFICATION: MIL-G-2239B

DTD 15 SEP 60.

FOB DESTINATIONS

"001 TRACY DEFENSE DEPOT 27 EA.

OP CODES H-1

"002 MEMPHIS ARMY DEPOT 49 EA.

OP CODES H-1

"B. EQUIPMENT MANUALS IN ACCORDANCE WITH 85 EACH

EQUIPMENT, MAINTENANCE, PROVISIONING AND PARTS

DATA AS SET FORTH IN THE SCHEDULES, PAGES 7

THROUGH 11 INCLUSIVE (SEE NOTE 1)

"BIDDERS ARE REQUESTED TO INDICATE PRICE FOR MANUALS ABOVE.

"NOTICE TO BIDDERS

TO BE CONSIDERED FOR AN AWARD ON ITEM A, 001 AND 002, BIDS MUST BE SUBMITTED ON ITEM B. UNDER NO CIRCUMSTANCES WILL AN AWARD FOR EQUIPMENT MANUALS BE MADE TO A BIDDER OTHER THAN A BIDDER WHO RECEIVES AN AWARD FOR ITEM A-001 AND 002. BIDS WILL BE EVALUATED ON THE LOWEST AGGREGATE COST TO THE GOVERNMENT FOR ITEMS A-001, 002 AND B.' PAGES 7 THROUGH 11 OF THE SCHEDULE GAVE A COMPREHENSIVE DESCRIPTION OF THE MANUALS REQUIRED BY ITEM B.

SECTION 3.9 OF MIL-G-2239B, DATED SEPTEMBER 15, 1960, THE SPECIFICATION LISTED UNDER ITEM A, PROVIDED AS FOLLOWS:

"3.9 INSTRUCTION MANUAL. UNLESS OTHERWISE SPECIFIED (SEE 6.2) THE CONTRACTOR SHALL FURNISH WITH EACH END ITEM A MANUAL CONTAINING COMPLETE OPERATING AND MAINTENANCE INSTRUCTIONS. IN ADDITION, THE INSTRUCTION MANUAL SHALL INCLUDE A COMPLETE LIST OF ALL REPLACEABLE PARTS SHOWING CONTRACTORS PART NUMBER, PART MANUFACTURER'S PART NUMBER AND NAME, QUANTITY REQUIRED AND COST OF PART (PREVAILING AT TIME OF CONTRACT AWARD). REPLACEMENT PARTS FOR THE SAME OR DIFFERENT MODEL END ITEMS SHALL NOT HAVE THE SAME PART NUMBER UNLESS THEY ARE INTERCHANGEABLE.'

THE ABOVE SPECIFICATION WAS SUPERSEDED BY MIL-G-2239C DATED JUNE 28, 1963, AND SECTION 3.9 OF THE NEW SPECIFICATION CONTAINED SUBSTANTIALLY THE SAME PROVISION REGARDING INSTRUCTION MANUALS AS THE SUPERSEDED SPECIFICATION, BUT WITHOUT THE EXCEPTION "UNLESS OTHERWISE SPECIFIED.' OCTOBER 4, 1963, THE PROCURING ACTIVITY ISSUED AMENDMENT NO. 1 TO THIS INVITATION WHICH DELETED THE SPECIFICATION AS STATED IN ITEM A AND SUBSTITUTED THEREFOR THE NEW SPECIFICATION. AMENDMENT NO. 2 TO THIS INVITATION WAS ISSUED BY THE PROCURING ACTIVITY ON OCTOBER 16, 1963, WHICH DELETED THE DESCRIPTION IN ITEM B, INCLUDING THE DESCRIPTION OF THE MANUALS APPEARING ON PAGES 7 THROUGH 11 OF THE SCHEDULE, SUBSTITUTING IN PERTINENT PART THE FOLLOWING:

"INSTRUCTION MANUAL IN ACCORDANCE WITH PARAGRAPH 3.9 OF SPEC. MIL-G 2239C AND PARA. 1, 2, 3, AND 4 UNDER "MANUALS" LISTED BELOW.' LYONS ALPHA SIGNED AND RETURNED AMENDMENTS NOS. 1 AND 2. THE LYONS-ALPHA BID DID NOT SPECIFICALLY PRECLUDE THE GOVERNMENT FROM ACCEPTING ANY ITEM OR GROUP OF ITEMS.

BIDS WERE OPENED ON NOVEMBER 5, 1963. THE LOW BID FOR ITEMS A-001 AND A- 002, SUBMITTED BY COMSTOCK-CASTLE STOVE COMPANY, WAS DETERMINED TO BE NON- RESPONSIVE. LYONS-ALPHA SUBMITTED A BID OF $164.75 DISCOUNTED AT 1 PERCENT, 30 DAYS, FOR EACH OF THE UNITS LISTED UNDER ITEM A-001 AND A-002, BUT DID NOT SHOW ANY PRICE ON ITEM B. VULCAN-HART CORPORATION'S BID WAS $250 FOR THE UNITS UNDER ITEM A-001 AND $240 FOR THE UNITS UNDER ITEM A- 002, WITH A PRICE OF $2.00 FOR EACH OF THE MANUALS UNDER ITEM B. ANETSBERGER BROTHERS, INCORPORATED BID $274.47 FOR THE UNITS UNDER A-001, $269.83 FOR ITEM A-002, AND $0.50 EACH FOR ITEM B. THIS BID WAS TO BE DISCOUNTED AT 1 PERCENT, 10 DAYS.

WE ARE INFORMED THAT SEPARATE PRICES WERE ORIGINALLY REQUESTED FOR ITEM B TO SECURE COST DATA FOR THIS ITEM TO FACILITATE A DETERMINATION BY DSA WHETHER REQUIREMENT OF THE MANUAL DESCRIBED UNDER ITEM B RATHER THAN THE USUAL COMMERCIAL MANUAL WOULD BE JUSTIFIED FROM A COST STANDPOINT. THIS REGARD YOU REPORT THAT IT IS NOT NOW CONSIDERED ESSENTIAL TO KNOW THE PRICE OF ITEM B, SINCE THE COST OF THE MANUAL REPRESENTS ONLY A SMALL PORTION OF THE COST OF THE GRIDDLE SPECIFIED UNDER ITEM A, AND SINCE THE BASIC SPECIFICATION FOR THE GRIDDLE LISTED UNDER ITEM A NOW INCLUDES AS A MANDATORY PART THEREOF THE REQUIREMENT FOR A MANUAL WITH EACH GRIDDLE.

IN VIEW OF THE FACT THAT BEFORE BID OPENING AMENDMENT NO. 2 CHANGED THE DESCRIPTION OF THE MANUAL UNDER ITEM B TO CONFORM TO THE DESCRIPTION OF THE MANUAL CONTAINED IN SECTION 3.9 OF THE REVISED BASIC SPECIFICATION MADE A PART OF THIS INVITATION BY AMENDMENT NO. 1, WHICH LYONS-ALPHA ACKNOWLEDGED, AND IN VIEW OF THE FACT THAT THE BASIC SPECIFICATION REQUIRED A MANUAL WITH EACH GRIDDLE, IT IS OUR VIEW THAT AWARD OF ITEM A ALONE WOULD OBLIGATE THE CONTRACTOR TO DELIVER SUCH MANUALS AND RENDER AN AWARD ON ITEM B UNNECESSARY UNLESS THE ADDITIONAL MANUALS COVERED THEREBY ARE CONSIDERED NECESSARY. IN THESE CIRCUMSTANCES, UPON YOUR DETERMINATION THAT ITEM B IS NO LONGER NEEDED, THIS ITEM MAY PROPERLY BE CANCELLED AND THE FAILURE OF LYONS ALPHA TO QUOTE A SEPARATE PRICE UNDER ITEM B MAY BE REGARDED AS A MINOR AND IMMATERIAL DEVIATION. IN THAT SITUATION, CLAUSE 8/C) OF THE "TERMS AND CONDITIONS OF THE INVITATION FOR BIDS" WHICH PROVIDES THAT THE GOVERNMENT MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY BID UNLESS THE BIDDER QUALIFIES HIS BID BY SPECIFIC LIMITATIONS, WOULD APPEAR TO AUTHORIZE AWARD TO LYONS-ALPHA OF A CONTRACT FOR ITEM A. ..END :