B-154388, AUG. 21, 1964

B-154388: Aug 21, 1964

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INC.: REFERENCE IS MADE TO YOUR LETTER DATED JUNE 3. THE PROCUREMENT WAS RESTRICTED TO SMALL BUSINESS. OF THE TEN BIDS WHICH WERE RECEIVED AND OPENED ON MAY 18. THE BID OF THE CAPEHART CORPORATION WAS LOW AND YOUR BID WAS SECOND LOW. YOU FILED PROTESTS WITH BOTH THE PROCUREMENT AGENCY AND OUR OFFICE STATING THAT THE INVITATION WAS DEFECTIVE IN THAT IT FAILED TO SPECIFY A DELIVERY DATE FOR THE REQUIRED PREPRODUCTION SAMPLES. AWARD IS BEING WITHHELD PENDING OUR DECISION IN THE MATTER. YOU CONTEND THAT THE OMISSION OF THE PREPRODUCTION SAMPLE DELIVERY DATE IS A FATAL FLAW AND THAT AN AWARD WOULD ADVERSELY AFFECT THE INTEGRITY OF THE BIDDING SYSTEM SINCE DELIVERY OF PRODUCTION QUANTITY IS AFFECTED BY PREPRODUCTION DELIVERIES.

B-154388, AUG. 21, 1964

TO AMERICAN DEVELOPMENT ELECTRONICS COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 3, 1964, RELATIVE TO YOUR PROTEST AGAINST ANY AWARD UNDER INVITATION FOR BIDS NO. AMC-11 022-64-1667 -/E), ISSUED APRIL 17, 1964, BY THE UNITED STATES ARMY CHICAGO PROCUREMENT DISTRICT.

THE INVITATION SOLICITED BIDS FROM 40 FIRMS TO FURNISH 24,659 ANTENNAS IN ACCORDANCE WITH SPECIFICATION MIL-R-10273/SIG C), AS AMENDED, AND CERTAIN SPECIFIED CHANGES. THE PROCUREMENT WAS RESTRICTED TO SMALL BUSINESS.

PROVISION B OF THE INVITATION REQUIRED DELIVERY WITHIN 180 DAYS AFTER THE DATE OF THE AWARD DOCUMENT BUT PROVIDED FOR CONSIDERATION, AT THE OPTION OF THE GOVERNMENT, OF ANY EARLIER DELIVERY SCHEDULE OFFERED BY A BIDDER.

PROVISION L OF THE INVITATION REQUIRED THE SUBMISSION OF 4 PRE PRODUCTION SAMPLES OF THE ANTENNA AND STATED THAT THE GOVERNMENT WOULD RETAIN THE SAMPLES FOR A PERIOD OF NOT MORE THAN 30 DAYS FOR EXAMINATION AND TESTING PURPOSES, AFTER WHICH THE CONTRACTOR WOULD BE ADVISED OF APPROVAL OR DISAPPROVAL OF THE SAMPLES.

PROVISION M RESERVED TO THE GOVERNMENT THE RIGHT TO WAIVE THE PRE PRODUCTION SAMPLE REQUIREMENT FOR BIDDERS OFFERING ITEMS PREVIOUSLY PROCURED OR TESTED BY THE GOVERNMENT, AND PROVIDED FOR CORRESPONDING DECREASES IN PRICE AND DELIVERY SCHEDULE, WITH EVALUATION TO BE BASED ON THE REDUCED PRICE AND DELIVERY SCHEDULE.

OF THE TEN BIDS WHICH WERE RECEIVED AND OPENED ON MAY 18, 1964, THE BID OF THE CAPEHART CORPORATION WAS LOW AND YOUR BID WAS SECOND LOW. ALL BIDDERS OFFERED TO MEET THE REQUIRED DELIVERY SCHEDULE. ON JUNE 3, 1964, HOWEVER, YOU FILED PROTESTS WITH BOTH THE PROCUREMENT AGENCY AND OUR OFFICE STATING THAT THE INVITATION WAS DEFECTIVE IN THAT IT FAILED TO SPECIFY A DELIVERY DATE FOR THE REQUIRED PREPRODUCTION SAMPLES. ACCORDINGLY, AWARD IS BEING WITHHELD PENDING OUR DECISION IN THE MATTER.

YOU CONTEND THAT THE OMISSION OF THE PREPRODUCTION SAMPLE DELIVERY DATE IS A FATAL FLAW AND THAT AN AWARD WOULD ADVERSELY AFFECT THE INTEGRITY OF THE BIDDING SYSTEM SINCE DELIVERY OF PRODUCTION QUANTITY IS AFFECTED BY PREPRODUCTION DELIVERIES. IN ADDITION, YOU STATE THAT THE UNCERTAINTY OF THE PREPRODUCTION DELIVERY REQUIREMENT COULD HAVE AFFECTED THE PRICES QUOTED BY ALL BIDDERS. THEREFORE, YOU ASSERT, THE INVITATION SHOULD BE CANCELLED AND THE PROCUREMENT READVERTISED.

THE INVITATION PLACED THE BIDDERS ON NOTICE THAT 180 DAYS WOULD BE ALLOWED FROM THE DATE OF AWARD TO FULFILL THE CONTRACT REQUIREMENTS AND THAT DURING SUCH PERIOD THE GOVERNMENT COULD TAKE UP TO 30 DAYS TO APPROVE OR DISAPPROVE THE REQUIRED PREPRODUCTION SAMPLES, APPROVAL OF WHICH WAS PREREQUISITE TO PROCEEDING WITH PRODUCTION. THE ABSENCE OF A DEADLINE FOR SUBMISSION OF THE PREPRODUCTION SAMPLES DID NOT AFFECT THIS PROCEDURE BUT MERELY LEFT TO THE BIDDERS THE MATTER OF DETERMINING WHEN PREPRODUCTION SAMPLES SHOULD BE SUBMITTED. THE FACT THAT NO ONE OF THE TEN BIDS SUBMITTED TOOK EXCEPTION TO THE INVITATION REQUIREMENTS INDICATES THAT THE BIDDERS CONSIDERED THAT SUCH REQUIREMENTS COULD BE FULFILLED, AND IT IS NOTED THAT YOU RAISED NO QUESTION UNTIL AFTER BIDS WERE OPENED, ALTHOUGH THE INVITATION WAS ISSUED AND DISTRIBUTED A FULL MONTH BEFORE THE OPENING DATE.

WE RECOGNIZE THAT EARLY SUBMISSION OF THE SAMPLES WOULD MOST LIKELY INSURE EARLIER APPROVAL AND THUS ALLOW THE MAXIMUM POSSIBLE PRODUCTION TIME. HOWEVER, SINCE THE FINAL DELIVERY DATE WAS INFLEXIBLE, WE SEE NO DIFFERENCE WHETHER THE DATE FOR SUBMISSION OF PREPRODUCTION SAMPLES WAS LEFT TO THE DISCRETION OF THE BIDDER OR FIXED BY THE GOVERNMENT. EITHER CASE, BIDDERS WOULD BE REQUIRED TO CONSIDER THE TIME INVOLVED FOR SAMPLE SUBMISSION AND APPROVAL AND ITS EFFECT ON DELIVERY OF THE CONTRACT REQUIREMENTS.

ADDITIONALLY, IT DOES NOT APPEAR THAT THE ABSENCE OF A PREPRODUCTION SAMPLE DELIVERY DATE WOULD AFFECT BID PRICES, SINCE SAMPLES WERE REQUIRED (EXCEPT AS STATED IN PROVISION M) AND BOTH THEIR COST AND FABRICATION TIME WERE FACTORS TO BE CONSIDERED IN THE SUBMISSION OF BIDS.

ACCORDINGLY, WE CONCLUDE THAT THE INVITATION DID PERMIT BIDDERS TO COMPETE ON A COMMON BASIS AND THAT AN AWARD PURSUANT THERETO WOULD NOT BE IMPROPER. THEREFORE, YOUR PROTEST IS DENIED.