B-153511, APR. 14, 1964

B-153511: Apr 14, 1964

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TO INDUSTRIAL FITTING CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 12. THAT IT WAS NOT PROPER TO CONSIDER OR TO ACCEPT A BID NOT BASED ON COMPLIANCE WITH THE PREPRODUCTION SAMPLE TESTING PROVISION OF THE INVITATION. THE INVITATION WAS ISSUED ON OCTOBER 11. BIDS WERE REQUESTED ON TWO BASES: BID "A" - (PREPRODUCTION SAMPLE TESTING REQUIRED). "NOTE: BIDDERS WHO HAVE PREVIOUSLY FURNISHED TO THE GOVERNMENT. "BIDS SUBMITTED UNDER "A" (PREPRODUCTION SAMPLE TESTING REQUIRED) OR UNDER BID "B" (PREPRODUCTION SAMPLE TESTING NOT REQUIRED) ARE EQUALLY ACCEPTABLE TO THE GOVERNMENT. AWARD WILL BE MADE THEREON WITH THE BEST INTEREST OF THE GOVERNMENT CONSIDERED.'. BIDS WERE RECEIVED FROM THESE TWO SOURCES ONLY.

B-153511, APR. 14, 1964

TO INDUSTRIAL FITTING CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 12, 1964, PROTESTING THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. 36-600 64-158, ON THE GROUND THAT NO BIDDER OR SUPPLIER HAS PREVIOUSLY FURNISHED THE ITEM CALLED FOR IN THE INVITATION, AND THAT IT WAS NOT PROPER TO CONSIDER OR TO ACCEPT A BID NOT BASED ON COMPLIANCE WITH THE PREPRODUCTION SAMPLE TESTING PROVISION OF THE INVITATION.

THE INVITATION WAS ISSUED ON OCTOBER 11, 1963, BY MIDDLETOWN AIR MATERIEL AREA, OLMSTED AIR FORCE BASE, PENNSYLVANIA, AND REQUESTED BIDS FOR FURNISHING 680,612 UNITS OF AN ITEM DESCRIBED AS FOLLOWS:

"/6685-526-8415) INDICATOR, HUMIDITY PLUG, RE-USABLE AND RE-FILLABLE TYPE MS27215-2 IN ACCORDANCE WITH MILITARY STANDARD MS27215 DATED 17 AUGUST 1962, AN DWG 7514 REV 1 DATED 18 AUGUST 1952 AND MILITARY SPECIFICATION MIL-I-6131A DATED 17 AUGUST 1962. APPLICABLE TO RECIPROCATING ENGINES.'

BIDS WERE REQUESTED ON TWO BASES: BID "A" - (PREPRODUCTION SAMPLE TESTING REQUIRED), OR BID B" (PREPRODUCTION SAMPLE TESTING NOT REQUIRED). ADDITION, THE INVITATION FOR BIDS CONTAINED THE FOLLOWING PROVISIONS:

"NOTE: THE MS DWG 27215 DATED 17 AUGUST 1962, REFERENCED IN ITEM 1, SUPERSEDES AN DWG 4062 REFERENCED IN MIL-I-6131A, DATED 17 AUGUST 1962.

"NOTE: BIDDERS WHO HAVE PREVIOUSLY FURNISHED TO THE GOVERNMENT, THE ARTICLES REFERENCED IN ITEM I, SHALL SUBMIT A BID ON BID "B" WHICH DOES NOT REQUIRE COMPLIANCE WITH THE PREPRODUCTION SAMPLE TESTING PROVISION.

"BIDS SUBMITTED UNDER "A" (PREPRODUCTION SAMPLE TESTING REQUIRED) OR UNDER BID "B" (PREPRODUCTION SAMPLE TESTING NOT REQUIRED) ARE EQUALLY ACCEPTABLE TO THE GOVERNMENT, AS APPLICABLE, AND AWARD WILL BE MADE THEREON WITH THE BEST INTEREST OF THE GOVERNMENT CONSIDERED.'

THE AIR FORCE HAD PREVIOUSLY PROCURED THIS ITEM FROM TWO SOURCES: INDUSTRIAL FITTING CORPORATION, THE PROTESTING BIDDER, AND DRIAIRE, INC. BIDS WERE RECEIVED FROM THESE TWO SOURCES ONLY. DRIAIRE BID A PRICE OF ?1585 PER UNIT, OR A TOTAL PRICE OF $107,877.00. YOUR ORIGINAL BID QUOTED A UNIT PRICE OF ?171, OR A TOTAL PRICE OF $116,384.65, WHICH WAS MODIFIED BY TELEGRAM DATED NOVEMBER 11, 1963, PURPORTING TO REDUCE YOUR PRICE TO ?167 PER UNIT, OR A TOTAL PRICE, AS MODIFIED, OF $113,662.20. DRIAIRE'S BID WAS ON BASIS OF BID "B" - PREPRODUCTION SAMPLE TESTING NOT REQUIRED. YOU BID ON SAME BASIS, BUT YOUR TELEGRAPHIC MODIFICATION REFERRED TO YOUR ORIGINAL BID AS SUBMITTED UNDER BID "A.'

BY TELEGRAM DATED DECEMBER 31, 1963, AND LETTER OF JANUARY 3, 1964, YOU PROTESTED AN AWARD TO DRIAIRE ON THE GROUND THAT DRIAIRE WAS NOT QUALIFIED TO BID ON BID "B" AND SHOULD HAVE BID ON BID ,A" - PREPRODUCTION SAMPLE TESTING REQUIRED - SINCE THE ITEM BEING PROCURED IS IDENTIFIED IN THE INVITATION FOR BIDS AS MS27215-2 AND ALLEGEDLY NEITHER DRIAIRE NOR YOU HAVE PRODUCED THAT ITEM. THE CONTRACTING OFFICER REPLIED TO THE PROTEST BY LETTER DATED FEBRUARY 6, 1964. THIS LETTER EXPLAINED THAT BOTH BIDDERS HAD PREVIOUSLY PRODUCED THE SAME ITEM UNDER THE SAME MILITARY SPECIFICATION--- MIL-1-6131A--- CITED IN THE INVITATION, AND DRAWING AN 4062; THAT NO CHANGE HAD BEEN MADE IN THE SPECIFICATION; AND THAT DRAWING MS27215, WHICH SUPERSEDED DRAWING AN 4062, MADE NO CHANGES THEREIN EXCEPT TO RELAX THE TOLERANCES PREVIOUSLY REQUIRED. SINCE BOTH BIDDERS HAD MANUFACTURED THE ARTICLE UNDER THE MORE STRICT TOLERANCES, THE CONTRACTING OFFICER'S LETTER ADVISED THAT BOTH BIDDERS WERE QUALIFIED TO BID UNDER THE LESS EXACTING OR DEMANDING TOLERANCES, WITHOUT BEING REQUIRED TO SUBMIT THEIR PRODUCTS TO FURTHER PREPRODUCTION SAMPLE TESTING.

YOU DISAGREE WITH THE CONCLUSION OF THE CONTRACTING OFFICER THAT BOTH BIDDERS WERE QUALIFIED TO BID UNDER BID "B.' YOU CONTEND THAT THE ITEM MUST BE MANUFACTURED IN ACCORDANCE WITH MS DRAWING 27215 AND NOT IN ACCORDANCE WITH AN DRAWING 4062; THAT THIS IS A NEW ITEM WHICH HAS NOT BEEN PREVIOUSLY PRODUCED BY EITHER BIDDER; AND THAT NEITHER BIDDER THEREFORE IS QUALIFIED TO BID UNDER BID "B.' IN SUPPORT OF YOUR PROTEST, YOU STATE THAT YOU MADE YOUR BID ON THE ASSUMPTION THAT YOU WERE NOT QUALIFIED TO BID UNDER BID "B," AND THEREFORE INCLUDED IN YOUR BID PRICE THE COST OF PREPRODUCTION SAMPLE TESTING.

WHILE THERE MAY WELL BE REASON FOR A DIFFERENCE IN TECHNICAL OPINION AS TO THE EXTENT OR MATERIALITY OF THE CHANGES INCORPORATED INTO MS DRAWING 27215, YOU HAVE SUBMITTED NO CONVINCING EVIDENCE TO SUPPORT YOUR CONTENTIONS IN THIS AREA. IN THE ABSENCE OF SUCH EVIDENCE THIS OFFICE MUST ACCEPT THE CONCLUSION OF THE CONTRACTING AGENCY THAT THE CHANGES REFLECTED RELAXED REQUIREMENTS WHICH DID NOT REQUIRE PREPRODUCTION SAMPLE TESTING. WE MUST THEREFORE CONCLUDE THAT BOTH BIDDERS KNEW OR REASONABLY SHOULD HAVE KNOWN THEY HAD PREVIOUSLY FURNISHED THE SAME ITEM TO THE AIR FORCE, AND THAT THEY WERE QUALIFIED TO BID UNDER BID "B.' DRIAIRE BID ON THAT BASIS AND IT APPEARS YOU LIKEWISE BID ON THE SAME BASIS. YOUR BID, PRIOR TO MODIFICATION, WAS UNDER BID B" ONLY. WHILE YOUR TELEGRAPHIC MODIFICATION, AND CONFIRMING LETTER REFERRED TO YOUR ORIGINAL BID AS BEING UNDER ITEM NO. 1 "A," IT IS AT LEAST HIGHLY DOUBTFUL WHETHER THIS COULD PROPERLY BE CONSTRUED AS CHANGING YOUR BID FROM 1 "B" TO 1 "A.' IT IS SIGNIFICANT THAT AT NO TIME HAVE YOU CLAIMED THAT YOU MADE A MISTAKE WHEN YOU ORIGINALLY INSERTED BOTH YOUR PRICE AND YOUR DELIVERY SCHEDULE UNDER BID "B," OR THAT THE MODIFICATION WAS INTENDED TO CORRECT THAT MISTAKE. IF YOUR BID HAD BEEN ACCEPTED YOU WOULD HAVE BEEN FREE TO CLAIM THAT THE ERROR WAS IN YOUR MODIFICATION, AND WE ARE INCLINED TO THE VIEW THAT YOU COULD NOT HAVE BEEN REQUIRED TO COMPLY WITH THE PREPRODUCTION SAMPLE REQUIREMENT.

EVEN IF IT WERE ESTABLISHED THAT YOU REALLY INTENDED TO BID ON THE BASIS OF BID "A," THIS WOULD NOT AFFECT THE RIGHT OF THE GOVERNMENT TO ACCEPT THE DRIAIRE BID. IF YOU HAD ANY DOUBTS AS TO YOUR QUALIFICATION TO BID UNDER BID "B," YOU SHOULD HAVE REQUESTED CLARIFICATION FROM THE CONTRACTING OFFICER PRIOR TO BIDDING.

WHILE THE LANGUAGE OF THE INVITATION DID NOT CONFORM STRICTLY TO THE REQUIREMENT OF ASPR 2-201 (B) (XIV) THAT ANY REQUIREMENT FOR PREPRODUCTION SAMPLES OR TESTS INCLUDE A STATEMENT THAT THE GOVERNMENT RESERVES THE RIGHT TO WAIVE THE REQUIREMENT AS TO THOSE BIDDERS OFFERING A PRODUCT WHICH HAS BEEN PREVIOUSLY PROCURED OR TESTED BY THE GOVERNMENT, DECISIONS OF THIS OFFICE HAVE HELD THAT EVEN WITHOUT SUCH A PROVISION IT IS THE DUTY OF A CONTRACTING OFFICER TO AVOID BURDENING THE GOVERNMENT WITH COSTS OF UNNECESSARY AND UNREASONABLE TESTING OR SAMPLING REQUIREMENTS. SINCE IT SEEMS CLEAR FROM THE RECORD THAT NO USEFUL PURPOSE WOULD BE SERVED BY REQUIRING FURTHER PREPRODUCTION SAMPLES AND TESTS OF THE ITEM HERE INVOLVED, WHICH IS IDENTICAL, EXCEPT FOR LESS STRICT TOLERANCES, TO THOSE PREVIOUSLY PRODUCED, YOUR PROTEST IS DENIED.

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