B-155150, DEC. 4, 1964

B-155150: Dec 4, 1964

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TO SEALOMATIC ELECTRONICS CORPORATION: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 9. WHICH WAS ISSUED ON MARCH 11. FOUR BIDS WERE RECEIVED FOR FURNISHING ONE INDUCTION HEATER. UPON A TECHNICAL EVALUATION OF SUCH LITERATURE IT WAS DETERMINED THAT THE UNITS OFFERED BY YOU. WERE NONRESPONSIVE. YOU STATED THAT YOU WERE TAKING NO EXCEPTIONS TO THE SPECIFICATIONS. THAT NO DESCRIPTIVE LITERATURE WAS REQUIRED TO BE FURNISHED WITH THE BID AND THAT THE LITERATURE WHICH YOU DID FURNISH WAS INTENDED ONLY TO INDICATE YOUR LONG EXPERIENCE WITH THE MANUFACTURE OF INDUCTION HEATERS. - THE INFORMATION FURNISHED WITH THIS BID IS LACKING IN DETAIL AND MAKES IT DIFFICULT TO EVALUATE THE UNIT AS TO MEETING REQUIREMENTS.

B-155150, DEC. 4, 1964

TO SEALOMATIC ELECTRONICS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 9, 1964, WITH ENCLOSURES, AND TO YOUR LETTER OF NOVEMBER 13, 1964, WITH RESPECT TO YOUR PROTEST OF THE AWARD OF CONTRACT NO. AF 33/615/-434 BY THE DEPARTMENT OF THE AIR FORCE TO MCDOWELL ELECTRONICS, INC., UNDER INVITATION NO. 33-615- 64-201.

IN RESPONSE TO THE INVITATION, WHICH WAS ISSUED ON MARCH 11, 1964, BY THE LABORATORY SUPPORT BRANCH, SYSTEMS ENGINEERING GROUP, WRIGHT PATTERSON AIR FORCE BASE, FOUR BIDS WERE RECEIVED FOR FURNISHING ONE INDUCTION HEATER, WITH CERTAIN ACCESSORIES, WHICH RANGED FROM YOUR LOW BID OF $9,372 TO $10,331.30. ALTHOUGH NOT REQUIRED BY THE INVITATION, THREE OF THE FOUR BIDDERS, INCLUDING YOUR CORPORATION, SUBMITTED DESCRIPTIVE LITERATURE OF THE EQUIPMENT PROPOSED TO BE FURNISHED. UPON A TECHNICAL EVALUATION OF SUCH LITERATURE IT WAS DETERMINED THAT THE UNITS OFFERED BY YOU, AS WELL AS THOSE OFFERED BY THE SECOND LOW BIDDER, WERE NONRESPONSIVE. THEREFORE, ON JULY 27, 1964, THE CONTRACTING OFFICER AWARDED THE CONTRACT TO MCDOWELL ELECTRONICS, INC., IN THE AMOUNT OF $10.205, AS THE LOWEST RESPONSIVE BIDDER MEETING ALL SPECIFICATION REQUIREMENTS. IN SUPPORT OF YOUR PROTEST YOU POINT OUT THAT IN THE LETTER DATED APRIL 6, 1964, WHICH ACCOMPANIED YOUR BID, YOU STATED THAT YOU WERE TAKING NO EXCEPTIONS TO THE SPECIFICATIONS; ALSO, THAT NO DESCRIPTIVE LITERATURE WAS REQUIRED TO BE FURNISHED WITH THE BID AND THAT THE LITERATURE WHICH YOU DID FURNISH WAS INTENDED ONLY TO INDICATE YOUR LONG EXPERIENCE WITH THE MANUFACTURE OF INDUCTION HEATERS.

THE RECORD SHOWS THAT THE CONTRACTING OFFICER FORWARDED THE DESCRIPTIVE LITERATURE THAT ACCOMPANIED YOUR BID TO COGNIZANT AIR FORCE TECHNICAL PERSONNEL FOR EVALUATION AND ADVICE. WITH RESPECT TO THE SEALOMATIC UNIT, THE TECHNICAL PERSONNEL REPORTED AS FOLLOWS:

"A.SEALOMATIC:--- THE INFORMATION FURNISHED WITH THIS BID IS LACKING IN DETAIL AND MAKES IT DIFFICULT TO EVALUATE THE UNIT AS TO MEETING REQUIREMENTS. HOWEVER, AS DESCRIBED, THE UNIT IS CONTROLLED BY AN AUTOMATIC POWER PEAKING CIRCUIT WHICH WILL NOT PROVIDE THE TYPE OF CONTROL REQUIRED. THIS BID IS CONSIDERED UNACCEPTABLE FOR THESE REASONS.'

MOREOVER, THE CONTRACTING OFFICER ADVISED THAT THE REFERENCE IN YOUR LETTER DATED APRIL 6, 1964, WHICH ACCOMPANIED YOUR BID, TO "OUR VARIOUS MODELS OF INDUCTION HEATERS" WAS INTERPRETED BY THE CONTRACTING OFFICER TO MEAN THAT YOUR BID WAS BASED UPON SUPPLYING YOUR STANDARD LINE OF INDUCTION HEATERS, AS REFLECTED IN SUCH LITERATURE, WHICH INDICATED THAT THE HEATERS ARE CONTROLLED BY AUTOMATIC POWER PEAKING CIRCUITS THAT WILL NOT GIVE THE CONTROL REQUIRED BY THE SPECIFICATIONS. IN ADDITION, THE CONTRACTING OFFICER ADVISES THAT HE FURTHER INTERPRETED THE POSTSCRIPT ON YOUR LETTER OF APRIL 6, 1964, THAT YOU WERE TAKING NO EXCEPTIONS TO THE SPECIFICATIONS, TO MEAN THAT YOU WERE CONTENDING THAT AN AUTOMATIC POWER PEAKING CIRCUIT WILL GIVE THE CONTROL REQUIRED.

PARAGRAPH 2-202.5 (F) OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES AS FOLLOWS:

"/F) UNSOLICITED DESCRIPTIVE LITERATURE. IF THE FURNISHING OF DESCRIPTIVE LITERATURE IS NOT REQUIRED BY THE INVITATION FOR BIDS, BUT SUCH LITERATURE IS FURNISHED WITH A BID, IT WILL NOT BE CONSIDERED AS QUALIFYING THE BID, AND WILL BE DISREGARDED, UNLESS IT IS CLEAR FROM THE BID OR ACCOMPANYING PAPERS THAT IT WAS THE BIDDER'S INTENTION SO TO QUALIFY THE BID.'

THE DEPARTMENT OF THE AIR FORCE AND THE CONTRACTING OFFICER HAVE NOW EXPRESSED THE OPINION THAT PROPER CONSIDERATION OF THE ABOVE QUOTED REGULATION WOULD HAVE WARRANTED THE CONCLUSION THAT YOU DID NOT IN FACT QUALIFY YOUR BID BY THE SUBMISSION OF THE LITERATURE IN QUESTION. CONCUR WITH THAT OPINION. HOWEVER, IN VIEW OF THE EVALUATION REPORT FURNISHED TO THE CONTRACTING OFFICER BY COGNIZANT AIR FORCE TECHNICAL PERSONNEL, AND SINCE THE CONTRACTING OFFICER'S INTERPRETATION AS TO THE MEANING OF YOUR LETTER OF APRIL 6, 1964, MAY NOT BE SAID TO HAVE BEEN WHOLLY WITHOUT MERIT, THERE CAN BE NO DOUBT THAT THE CONTRACTING OFFICER ACTED IN GOOD FAITH WITH RESPECT TO THE TRANSACTION. IN VIEW OF THIS, AND SINCE CONTRACT NO. AF 33/615/-434 HAS BEEN FULLY PERFORMED BY MCDOWELL ELECTRONICS, DELIVERY HAVING BEEN MADE ON SEPTEMBER 16, 1964, AND INSTALLATION COMPLETED, NO FURTHER ACTION IN RESPECT TO AWARD IS FEASIBLE AT THIS TIME. THE DEPARTMENT ADVISES THAT APPROPRIATE INSTRUCTIONS HAVE BEEN ISSUED TO THE PROCURING ACTIVITY TO PRECLUDE THE RECURRENCE OF A SIMILAR SITUATION.