B-154588, AUG. 25, 1964

B-154588: Aug 25, 1964

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TO BURTON MANUFACTURING COMPANY: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 28. THE INVITATION WAS ISSUED BY THE DEPARTMENT OF THE ARMY ON MARCH 16. THE PROCUREMENT WAS RESTRICTED TO SMALL BUSINESS CONCERNS UNDER TOTAL SET- ASIDE PROCEDURES. THREE PREPRODUCTION SAMPLES WERE REQUIRED. AMENDMENT NO. 1 TO THE IFB WAS ISSUED ON APRIL 10. NINETY-NINE FIRMS WERE SOLICITED AND BIDS WERE RECEIVED FROM THIRTEEN. WAS DECLARED BY THE SMALL BUSINESS ADMINISTRATION TO BE A LARGE BUSINESS AND THEREFORE INELIGIBLE FOR AWARD UNDER THE SMALL BUSINESS SET-ASIDE PROVISION OF THE SOLICITATIONS. THE AMOUNT OF THE PROPOSED AWARD IS $397. THESE OFFERS WERE NOT FOR CONSIDERATION SINCE THE DELIVERY CLAUSE PROVIDES THAT OFFERS OF ALTERNATE SCHEDULES WILL BE CONSIDERED FOR AWARD ONLY IF NO BIDS ARE RECEIVED ON THE PREFERRED SCHEDULE.

B-154588, AUG. 25, 1964

TO BURTON MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 28, 1964, AND SUBSEQUENT CORRESPONDENCE PROTESTING AGAINST THE AWARD OF A CONTRACT TO BARNETT INSTRUMENT COMPANY UNDER INVITATION FOR BIDS NO. AMC/E/36 039-64- 989-3, FOR 7405 EACH MULTIMETER TS-352) ( (U (ITEM 1) AND ITEM DESCRIPTION (ITEM 2) UNDER THE PREFERRED DELIVERY SCHEDULE.

THE INVITATION WAS ISSUED BY THE DEPARTMENT OF THE ARMY ON MARCH 16, 1964, AND REQUESTED BIDS FOR OPENING APRIL 15, 1964, ON 1752 EACH MULTIMETER TS-352) ( (U (ITEM 1) AND ITEM ON 1752 EACH MULTIMETER TS 352///U (ITEM 1) AND ITEM DESCRIPTIONS APPROPRIATE THERETO (ITEM 2). THE PROCUREMENT WAS RESTRICTED TO SMALL BUSINESS CONCERNS UNDER TOTAL SET- ASIDE PROCEDURES, AND THREE PREPRODUCTION SAMPLES WERE REQUIRED. AMENDMENT NO. 1 TO THE IFB WAS ISSUED ON APRIL 10, 1964. THIS AMENDMENT INCREASED THE QUANTITY OF MULTIMETER TS-352) ( (U (ITEM 1) TO 7405 EACH, INSERTED A NEW DELIVERY CLAUSE SETTING FORTH PREFERRED AND FIRST AND SECOND ALTERNATE DELIVERY SCHEDULES, AND PROVIDED FOR LIQUIDATED DAMAGES IN THE EVENT OF AWARD ON EITHER THE PREFERRED OR FIRST ALTERNATE DELIVERY SCHEDULES. NINETY-NINE FIRMS WERE SOLICITED AND BIDS WERE RECEIVED FROM THIRTEEN.

THE LOW BIDDER, INDUSTRIAL ELECTRONIC HARDWARE CORPORATION, WAS DECLARED BY THE SMALL BUSINESS ADMINISTRATION TO BE A LARGE BUSINESS AND THEREFORE INELIGIBLE FOR AWARD UNDER THE SMALL BUSINESS SET-ASIDE PROVISION OF THE SOLICITATIONS. THE CONTRACTING AGENCY THEREFORE PROPOSES TO MAKE AN AWARD TO BARNETT INSTRUMENT COMPANY ON THE PREFERRED DELIVERY SCHEDULE. THE AMOUNT OF THE PROPOSED AWARD IS $397,870.65 LESS 1/2 OF 1 PERCENT DISCOUNT FOR PAYMENT IN 20 DAYS. BARNETT ALSO SUBMITTED BIDS UNDER THE FIRST AND SECOND ALTERNATE DELIVERY SCHEDULES TOTALLING $392,465 AND $385,060, LESS THE SAME DISCOUNT. THESE OFFERS WERE NOT FOR CONSIDERATION SINCE THE DELIVERY CLAUSE PROVIDES THAT OFFERS OF ALTERNATE SCHEDULES WILL BE CONSIDERED FOR AWARD ONLY IF NO BIDS ARE RECEIVED ON THE PREFERRED SCHEDULE.

YOUR FIRM SUBMITTED THE THIRD LOW BID (PREFERRED DELIVERY SCHEDULE) IN THE AMOUNT OF $404,092.75 LESS DISCOUNT OF 1/2 OF 1 PERCENT FOR PAYMENT IN 20 DAYS. NO BID WAS SUBMITTED BY YOUR FIRM UNDER THE FIRST AND SECOND ALTERNATE DELIVERY SCHEDULES.

YOU CONTEND THAT IF THE AWARD IS MADE TO BARNETT THE CONTRACT WOULD BE HOPELESSLY AMBIGUOUS SINCE THREE DELIVERY SCHEDULES WOULD BE INCORPORATED AND BARNETT WOULD BE OBLIGATED TO DELIVER ONLY IN ACCORDANCE WITH ITS OFFER UNDER THE LATEST SCHEDULE. ALSO, YOU QUESTION THE TECHNICAL AND FINANCIAL CAPABILITY OF BARNETT TO PERFORM THE CONTRACT, AND YOU THEREFORE PROTEST AGAINST AN AWARD TO ANY FIRM OTHER THAN YOURS.

YOUR CONTENTION THAT THE INSERTION OF PRICES BY BARNETT UNDER ALL THREE DELIVERY SCHEDULES IN THE AMENDED SOLICITATION GIVES THAT FIRM THE RIGHT TO SELECT THE APPLICABLE DELIVERY SCHEDULE IN THE EVENT OF AWARD IS WITHOUT MERIT. THE DELIVERY CLAUSE SPECIFICALLY AND EFFECTIVELY DENIES ANY CHOICE IN REGARD TO DELIVERY BY EITHER THE BIDDER OR THE GOVERNMENT BY PROVIDING THAT OFFERS OF ALTERNATE SCHEDULES WILL BE CONSIDERED FOR AWARD ONLY IF NO BIDS ARE RECEIVED ON THE PREFERRED SCHEDULE. SINCE BARNETT SUBMITTED A BID UNDER THE PREFERRED SCHEDULE AND ALTERNATE SCHEDULES ARE NOT FOR CONSIDERATION AND THE DELIVERY TERMS THEREUNDER WILL NOT BECOME A PART OF THE CONTRACT.

EVALUATION OF THE TECHNICAL AND FINANCIAL CAPACITY OF BIDDERS IS AN ADMINISTRATIVE FUNCTION OF THE CONTRACTING AGENCY INVOLVED. THE RECORD SHOWS THAT BARNETT WAS FOUND FINANCIALLY RESPONSIBLE AND ITS BID WAS DETERMINED TECHNICALLY ACCEPTABLE BY RESPONSIBLE ENGINEERING PERSONNEL. IN CONNECTION WITH THE ADMINISTRATIVE DETERMINATION OF FINANCIAL RESPONSIBILITY IT APPEARS THAT THE AGENCY WAS FURNISHED THE SAME BALANCE SHEET AS IS SHOWN IN THE DUN AND BRADSTREET REPORT FORWARDED BY YOU; HOWEVER, THERE WAS ALSO FURNISHED EVIDENCE OF AVAILABILITY OF ADEQUATE FINANCIAL SUPPORT BY THE COMPANY'S BANKING CONNECTIONS.

SINCE WE FIND NO BASIS FOR OBJECTION TO THE PROPOSED ADMINISTRATIVE ACTION YOUR PROTEST MUST BE DENIED.