B-153255, FEB. 3, 1964

B-153255: Feb 3, 1964

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TO CENTURY TOOL COMPANY CONTRACT DIVISION: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 30. ONE TESTER WILL BE REQUIRED AS A PREPRODUCTION SAMPLE. CONTRACTOR SHALL NOTIFY THE CONTRACTING OFFICER TWENTY (20) CALENDAR DAYS PRIOR TO THE DATE SAMPLE WILL BE READY FOR TESTING IN ORDER THAT PROVISIONS MAY BE MADE FOR THE PRESENCE OF AN INSPECTOR. "D. THE APPROVED PREPRODUCTION SAMPLE SHALL BE HELD AT CONTRACTOR'S PLANT UNTIL THE REMAINDER OF THE ITEMS DELIVERED UNDER THE CONTRACT HAVE BEEN ACCEPTED BY THE GOVERNMENT AND SHALL BE THE LAST ITEM DELIVERED THEREUNDER.'. WAIVER OF THE PREPRODUCTION SAMPLE TESTING REQUIREMENT IS NOT PROVIDED FOR IN THE INVITATION FOR BIDS. THE BID WAS ACCOMPANIED BY A LETTER OF THE SAME DATE.

B-153255, FEB. 3, 1964

TO CENTURY TOOL COMPANY CONTRACT DIVISION:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 30, 1963, TO THE ARMY AVIATION AND SURFACE MATERIEL COMMAND PROTESTING THE AWARD OF A CONTRACT TO ANY BIDDER OTHER THAN YOURSELF UNDER INVITATION FOR BIDS AMC/T/-23-204- 64-46.

UNDER THE INVITATION INVOLVED, THE ARMY AVIATION AND SURFACE MATERIEL COMMAND REQUESTED BIDS FOR 162 CYLINDER COMPRESSION TESTERS IN ACCORDANCE WITH MILITARY SPECIFICATIONS MIL-T-13011C, SEPTEMBER 29, 1961, ENTITLED "TESTER, CYLINDER COMPRESSION," WITH DEVIATIONS AS LISTED IN THE INVITATION FOR BIDS. ARTICLE 11, PAGE 13 OF THE INVITATION PROVIDES AS FOLLOWS:

"ARTICLE 11. PREPRODUCTION SAMPLE AND TESTS

"A. ONE TESTER WILL BE REQUIRED AS A PREPRODUCTION SAMPLE, TO BE SUBJECTED TO PREPRODUCTION TEST TO DETERMINE COMPLIANCE WITH THE REQUIREMENTS OF THE APPLICABLE SPECIFICATION.

"B. PREPRODUCTION SAMPLE SHALL BE TESTED BY THE CONTRACTOR IN ACCORDANCE WITH PARAGRAPH 4 OF SPECIFICATION MIL-T-13011C, 29 SEPTEMBER 1961, ENTITLED "TESTER, CYLINDER COMPRESSION," UNDER THE SURVEILLANCE OF A GOVERNMENT INSPECTOR. CONTRACTOR SHALL NOTIFY THE CONTRACTING OFFICER TWENTY (20) CALENDAR DAYS PRIOR TO THE DATE SAMPLE WILL BE READY FOR TESTING IN ORDER THAT PROVISIONS MAY BE MADE FOR THE PRESENCE OF AN INSPECTOR. ALL EXPENSES INCIDENT THERETO, INCLUDING SAMPLES DESTROYED AS A RESULT OF TESTING, SHALL BE INCLUDED IN THE UNIT PRICE QUOTED ABOVE.

"C. PREPRODUCTION SAMPLE SHALL BE REQUIRED FOR INSPECTION AND APPROVAL BY THE GOVERNMENT WITHIN SIXTY (60) CALENDAR DAYS AFTER RECEIPT OF NOTICE OF AWARD OF CONTRACT.

"D. THE APPROVED PREPRODUCTION SAMPLE SHALL BE HELD AT CONTRACTOR'S PLANT UNTIL THE REMAINDER OF THE ITEMS DELIVERED UNDER THE CONTRACT HAVE BEEN ACCEPTED BY THE GOVERNMENT AND SHALL BE THE LAST ITEM DELIVERED THEREUNDER.'

WAIVER OF THE PREPRODUCTION SAMPLE TESTING REQUIREMENT IS NOT PROVIDED FOR IN THE INVITATION FOR BIDS.

IN RESPONSE TO THE INVITATION, CENTURY TOOL COMPANY SUBMITTED A BID DATED SEPTEMBER 6, 1963, OFFERING TO FURNISH THE 162 CYLINDER COMPRESSION TESTERS FOR A DELIVERED PRICE OF $81.50 EACH, LESS A DISCOUNT OF ONE PERCENT FOR PAYMENT WITHIN 30 CALENDAR DAYS, FOR A NET TOTAL PRICE OF $13,070.97. THE BID WAS ACCOMPANIED BY A LETTER OF THE SAME DATE, WHICH IN PERTINENT PART IS AS FOLLOWS:

"PLEASE BE ADVISED THAT IF QUALIFICATION TEST REPORT NO. PRS-120 DATED APRIL 19, 1963, SUPPLIED ON CONTRACT DA23-204-TC-2094 IS ACCEPTABLE AND IN WHICH CASE IT WOULD NOT BE NECESSARY TO CONDUCT NEW TESTS, A PRICE REDUCTION OF $800.00 FROM THE TOTAL AMOUNT OF OUR BID IF (SIC) OFFERED.

"THE PRODUCTION QUANTITY OF THE GAUGES WHICH IS THE MAJOR COMPONENT WILL BE SOURCE INSPECTED AT THE PLANT OF THE MANUFACTURER, OR CERTIFIED TEST DATA SUPPLIED BY THE MANUFACTURER. THE GAGES (SIC) WILL BE IN ACCORDANCE WITH PARAGRAPH 4 OF SPECIFICATION MIL-T-13011C AND REFERENCED DEVIATIONS IN SUBJECT IFB. THE BALANCE OF THE COMPONENTS ASSEMBLED TO THE GAUGE ARE 100 PERCENT INSPECTED AND PRESSURE CHECKED DURING MANUFACTURE AND ASSEMBLY OPERATIONS.

"WE TRUST THAT THIS PROPOSAL WILL BE ACCEPTED INASMUCH AS WE FEEL THAT FURTHER TESTING AT THE PREPRODUCTION LEVEL WOULD NOT ADD TO THE GOVERNMENT'S KNOWLEDGE REGARDING THIS TESTER DUE TO THE CURRENT TEST REPORT SUPPLIED YOUR AGENCY ON THE ABOVE REFERENCED CONTRACT.'

CONSIDERING THE DEDUCTION OF THE $800.00 OFFERED IN THE ABOVE QUOTED LETTER, THE TOTAL NET BID PRICE OF CENTURY TOOL COMPANY, INCLUDING THE DEDUCTION, WOULD BE $12,278.97 DELIVERED.

THE LOWEST OF THE THREE OTHER BIDS SUBMITTED QUOTED A UNIT PRICE OF $79.95 DELIVERED, LESS A DISCOUNT OF A HALF OF ONE PERCENT FOR PAYMENT WITHIN 20 CALENDAR DAYS, OR A NET TOTAL PRICE OF $12,887.14. THUS, UNLESS THE $800.00 REDUCTION OFFERED BY YOU IS TO BE CONSIDERED IN THE EVALUATION OF YOUR BID, YOUR CONCERN IS NOT THE LOW BIDDER.

IN SUPPORT OF THE PROPOSITION THAT YOUR BID SHOULD BE EVALUATED ON THE BASIS OF THE OFFERED PRICE REDUCTION OF $800.00, YOU DIRECTED THE CONTRACTING OFFICER'S ATTENTION TO OUR DECISION OF NOVEMBER 10, 1959, B- 140361. THAT DECISION HOLDS THAT THE BID OF A CONTRACTOR ALREADY IN PRODUCTION OF THE IDENTICAL ITEM UNDER ANOTHER CONTRACT SHOULD BE EVALUATED ON THE BASIS OF THE NET PRICE, INCLUDING A DEDUCTION WHICH WAS OFFERED IN THE EVENT THE TEST DATA ON THE PREPRODUCTION SAMPLE OF THE IDENTICAL ITEM PREVIOUSLY FURNISHED UNDER THE OTHER CONTRACT WOULD BE ACCEPTABLE TO THE GOVERNMENT.

AS YOU KNOW, THE ITEM YOU PREVIOUSLY FURNISHED UNDER CONTRACT DA23 204-TC -2094, WHILE SIMILAR, IS NOT IDENTICAL TO THE ITEM TO BE FURNISHED UNDER THE SUBJECT INVITATION FOR BIDS. IT APPEARS TO BE UNDISPUTED THAT THE COMPRESSION GAUGE, ALTHOUGH OF THE SAME DIAMETER, WAS CHANGED FROM A 250 TO 160 UNIT SCALE. SINCE THE GAUGE HAS THE SAME PHYSICAL DIMENSIONS, THE WALL-THICKNESS OF THE BOURDON TUBE ACTIVATING THE GAUGE INDICATOR MUST NECESSARILY BE THINNER. SINCE 160 PSI GAUGES, WITH THE THINNER-WALLED BOURDON TUBES, HAVE NEVER BEEN TESTED, THE TECHNICAL PERSONNEL OF THE PROCURING ACTIVITY HAVE DETERMINED THAT THIS ITEM REQUIRES PREPRODUCTION TESTING TO INSURE SATISFACTORY PERFORMANCE; IN OTHER WORDS, THAT THE TEST REPORTS PREVIOUSLY FURNISHED ON 250 PSI GAUGES ARE NOT ADEQUATE FOR THE GOVERNMENT'S NEEDS. PURSUANT TO SUCH DETERMINATION, THE CONTRACTING OFFICER PROPOSES TO EVALUATE YOUR BID WITHOUT REFERENCE TO THE $800.00 DEDUCTION.

YOU PROTEST SUCH ACTION, STATING THAT THE TEST DATA PREVIOUSLY FURNISHED SATISFIES THE GOVERNMENT'S REQUIREMENTS; THAT FURTHER TESTING WOULD ADD NOTHING TO THE GOVERNMENT'S KNOWLEDGE REGARDING THIS COMMODITY; AND THAT FURTHER TESTING ON THE PREPRODUCTION LEVEL IS AN UNNECESSARY EXPENSE. HOWEVER, YOU DO CONCEDE THAT THERE IS A DIFFERENCE IN THE SPECIFICATIONS.

THE RECORD INDICATES THAT YOUR TENDER OF THE PREVIOUSLY FURNISHED TEST DATA WAS EVALUATED BY COMPETENT ENGINEERING PERSONNEL OF THE PROCURING ACTIVITY, AND WAS REFUSED ON THE BASIS OF THEIR RECOMMENDATION. SINCE IT IS NOT APPARENT FROM THE RECORD THAT THE ADMINISTRATIVE OPINION IS ARBITRARY OR CAPRICIOUS OR WITHOUT SUBSTANTIAL BASIS, WE WILL NOT ATTEMPT TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY. 17 COMP. GEN. 554; 19 ID. 587; 35 ID. 174.

FOR THE REASONS STATED, WE DO NOT PERCEIVE ANY BASIS ON WHICH WE COULD OBJECT TO AN AWARD MADE PURSUANT TO THE PROPOSED EVALUATION PROCEDURE, WHICH WOULD EXCLUDE FROM CONSIDERATION YOUR OFFERED PRICE REDUCTION, AND YOUR PROTEST IS THEREFORE DENIED.