B-155853, APR. 15, 1965

B-155853, APR. 15, 1965

TO MR. CLAYTON LEWIS, PRESIDENT, LEWIS ENGINEERING COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 28, 1964, TO LETTERS OF DECEMBER 28, 1964, AND JANUARY 4 AND 14, 1965, AND TO ADDITIONAL MATERIAL FURNISHED THROUGH CONGRESSMAN WRIGHT PATMAN, REGARDING YOUR PROTEST WITH RESPECT TO THE CANCELLATION OF INVITATION FOR BIDS AMC/A/28-017-65-104 AND THE SUBSEQUENT READVERTISEMENT IN INVITATION AMC/A/28-017-65-245.

INVITATION AMC/A/28-017-65-104 SOLICITED BIDS FOR TWO ITEMS: 72,500 TUBE CASINGS, DESIGNATED AS ITEM "A," AND AN EQUAL QUANTITY OF TAIL ASSEMBLIES, DESIGNATED AS ITEM "B.' THE DELIVERY SCHEDULE FOR ITEMS "A" AND "B" WAS THE SAME. IT REQUIRED THAT 25 PREPRODUCTION SAMPLES BE DELIVERED WITHIN 60 DAYS AFTER AWARD TO BE FOLLOWED BY A PRODUCTION QUANTITY OF 10,000 UNITS 105 DAYS AFTER AWARD WITH INCREMENTS OF 10,000 UNITS A MONTH THEREAFTER UNTIL CONTRACT COMPLETION. SPACE WAS PROVIDED FOR BIDDERS TO PROPOSE A DIFFERENT DELIVERY SCHEDULE IF THEY DESIRED TO DO SO. HOWEVER, BIDDERS WERE WARNED THAT BIDS OFFERING DELIVERY UNDER TERMS OR CONDITIONS NOT CLEARLY WITHIN THE REQUIRED DELIVERY SCHEDULE WOULD BE CONSIDERED NONRESPONSIVE AND WOULD BE REJECTED.

THE INVITATION FURTHER PROVIDED THAT IF, IN PERFORMING THE WORK BID UPON, THE BIDDER PLANNED TO USE ANY ITEMS OF GOVERNMENT PROPERTY IN ITS POSSESSION UNDER A FACILITIES CONTRACT OR OTHER AGREEMENT WITH THE GOVERNMENT, THE BIDDER SHOULD INDICATE THAT IN ITS BID. SPACE WAS PROVIDED FOR BIDDERS TO IDENTIFY THE TYPE OF AGREEMENT AUTHORIZING THE USE OF THE GOVERNMENT PROPERTY, THE AGREEMENT NUMBER AND THE COGNIZANT GOVERNMENT AGENCY. THE PROVISION WITH RESPECT TO THE USE OF GOVERNMENT OWNED PROPERTY STATED THAT IN ORDER FOR THE BID TO BE RESPONSIVE, THE BIDDER AT THE TIME OF BID OPENING WOULD HAVE TO BE IN FACT AUTHORIZED TO USE EACH ITEM OF GOVERNMENT PROPERTY FOR PERFORMING THE WORK BID UPON.

THE BIDS WERE OPENED ON NOVEMBER 6, 1964, YOUR COMPANY BEING THE LOW BIDDER ON ITEM "B.' IN THE SPACE PROVIDED FOR BIDDERS TO OFFER A DELIVERY SCHEDULE DIFFERING FROM THAT REQUIRED BY THE INVITATION, YOUR COMPANY PROPOSED A DELIVERY OF 20,000 UNITS "PER MONTH AFTER 1ST SHIPMENT.' OTHER BIDDER PROPOSED ANY ALTERNATIVE TO THE DELIVERY SCHEDULE SPECIFIED IN THE INVITATION. YOUR COMPANY SPECIFIED IN ITS BID THAT THE BID WAS BASED UPON USE OF GOVERNMENT PROPERTY IN ITS POSSESSION. IT IDENTIFIED THE TYPE OF AGREEMENT AS A VERBAL ONE, THE AGREEMENT NUMBER AS CONTRACT DA -11-173-AMC-200 (A) AND THE COGNIZANT GOVERNMENT AGENCY AS LONGHORN ARMY AMMUNITION PLANT. IN YOUR LETTER OF NOVEMBER 3, 1964, IT WAS STATED THAT YOUR COMPANY WAS CURRENTLY MANUFACTURING FOR LONGHORN ARMY AMMUNITION PLANT AS SUBCONTRACTOR TO THIOKOL CHEMICAL CORPORATION UNDER THE LATTER FIRM'S CONTRACT DA-11 173-AMC-200/A) THE SAME ITEMS AS THOSE CALLED FOR IN THE INVITATION FOR BIDS, AND THAT THIOKOL HAD GIVEN IT VERBAL AUTHORITY TO USE IN THE PERFORMANCE OF INVITATION AMC/A/28-017-65-104 THE EQUIPMENT IT WAS USING IN ITS THEN CURRENT MANUFACTURE.

AFTER THE OPENING OF BIDS, YOUR COMPANY ADVISED THAT ITS PROPOSED DELIVERY SCHEDULE WAS INTENDED TO BE 25 PREPRODUCTION SAMPLES 60 DAYS AFTER AWARD, 10,000 UNITS 105 DAYS AFTER AWARD AND 20,000 UNITS MONTHLY THEREAFTER UNTIL COMPLETION. HOWEVER, THE CONTRACTING OFFICE DID NOT CONSIDER THAT SUCH AN INTERPRETATION OF THE DELIVERY SCHEDULE PROPOSED BY YOUR COMPANY IN ITS BID WOULD NECESSARILY FOLLOW. THE CONTRACTING OFFICE CONSIDERED THAT THE PHRASE "AFTER 1ST SHIPMENT" EMPLOYED BY YOUR COMPANY IN ITS PROPOSED DELIVERY SCHEDULE WAS INDEFINITE AND SUSCEPTIBLE TO SEVERAL DIFFERENT INTERPRETATIONS. IT FURTHER CONSIDERED THAT BY NOT CLEARLY INDICATING IN THE INVITATION FOR BIDS THAT A BIDDER OFFERING AN ALTERNATE DELIVERY SCHEDULE MUST STATE A COMPLETE SCHEDULE IN A FORM SIMILAR TO THE REQUIRED SCHEDULE, IT COULD HAVE MISLED BIDDERS AND IT MIGHT HAVE CONTRIBUTED TO THE INDEFINITENESS OF THE SCHEDULE PROPOSED BY YOUR COMPANY. THEREFORE, IT DECIDED TO READVERTISE THE PROCUREMENT WITH A REVISION OF THE SECTION DEALING WITH THE BIDDER'S PROPOSED DELIVERY SCHEDULE. THIS WAS ACCOMPLISHED WITH THE ISSUANCE OF INVITATION AMC/A/28- 017-65-245.

YOU CONTEND THAT THE DELIVERY SCHEDULE OFFERED BY YOUR COMPANY WAS NOT INDEFINITE AND THAT THE INVITATION FOR BIDS SHOULD NOT HAVE BEEN CANCELED AND READVERTISED. HOWEVER, IT DOES NOT APPEAR THAT YOUR COMPANY WAS PREJUDICED BY THAT ACTION, SINCE YOUR BID COULD NOT HAVE BEEN ACCEPTED UNDER THE INVITATION IN ANY EVENT. THE RECORD SHOWS IT WAS OTHERWISE NONRESPONSIVE WITH RESPECT TO THE USE OF GOVERNMENT PROPERTY. IN THAT REGARD, THE ADMINISTRATIVE REPORT INDICATES THAT THIOKOL HAD NO AGREEMENT WITH THE GOVERNMENT AUTHORIZING IT TO GRANT PERMISSION TO YOUR COMPANY TO UTILIZE THE PROPERTY AND THE REPORT INDICATES FURTHER THAT PERMISSION HAD NOT BEEN GRANTED BY THE GOVERNMENT'S PROPERTY ADMINISTRATOR FOR YOUR COMPANY TO USE THE PROPERTY ON CONTRACTS OTHER THAN THAT ON WHICH IT WAS BEING USED. THUS, IT IS APPARENT THAT AT THE TIME OF THE BID OPENING, YOUR COMPANY DID NOT HAVE THE NECESSARY AUTHORITY TO USE GOVERNMENT PROPERTY AND ITS BID WAS THEREFORE NONRESPONSIVE FOR THAT REASON.

THIS BEING THE CASE AND SINCE THE ACTION TAKEN BY THE ADMINISTRATIVE OFFICE RESULTED IN YOUR OBTAINING A SECOND OPPORTUNITY TO BID ON THIS PROCUREMENT YOUR PROTEST PROPERLY MAY NOT BE SUSTAINED.