B-156070, MAY 12, 1965

B-156070, MAY 12, 1965

TO AIRTRON DIVISION OF LITTON PRECISION PRODUCTS, INC.:

THIS REFERS TO YOUR LETTER OF FEBRUARY 10, 1965, PROTESTING THE AWARD OF CONTRACT NO. AF-33/604/-49304 BY WARNER ROBINS AIR MATERIEL AREA (WRAMA) TO ROYAL MICROWAVE DIVISION OF FILMOHM CORPORATION.

THE INVITATION WAS ISSUED ON OCTOBER 15, 1964, FOR OPENING ON NOVEMBER 16, 1964. AMENDMENTS 1 THROUGH 3 ADDED NEW INSPECTION CLAUSES AND EXTENDED THE OPENING DATE TO NOVEMBER 27, 1964. AMENDMENT NO. 4 TO THE INVITATION, WHICH WAS ISSUED ON NOVEMBER 25, 1964, EXTENDED THE OPENING DATE TO DECEMBER 4, 1964, CHANGED THE DESIRED AND REQUIRED DELIVERY SCHEDULE FOR THE FIRST ARTICLE FROM 45 AND 60 DAYS RESPECTIVELY AFTER RECEIPT OF CONTRACT TO 90 AND 120 DAYS, AND INCLUDED A PORTION OF THE PROCUREMENT DATA LIST ORIGINALLY DELETED, STATING THAT THE "UNITS SHALL BE TESTED AND ALIGNED IN MA-1 AND MG-13 ANTENNA * * * .' PROSPECTIVE BIDDERS WERE NOTIFIED BY TELEGRAM DATED NOVEMBER 25, 1964, OF AMENDMENT NO. 4. AIR FORCE STATES THAT THE SHORT, 9-DAY, SPREAD PERMITTED BETWEEN THE ISSUANCE OF AMENDMENT NO. 4 (NOVEMBER 25) AND THE BID OPENING (DECEMBER 4) WAS DUE TO THE FACT THAT THE MODULATOR ASSEMBLIES WERE URGENTLY REQUIRED. BIDS WERE OPENED AS SCHEDULED ON DECEMBER 4, AND THREE BIDS WERE SUBMITTED, OF WHICH YOURS WAS LOW AT $105,890.40; ROYAL MICROWAVE'S BID OF $120,484 WAS SECOND LOW AND A BID FROM HUGHES AIRCRAFT COMPANY WAS HIGH AT $166,800.

THE CONTRACTING OFFICER CONCLUDED THAT YOUR BID WAS NONRESPONSIVE FOR FAILURE TO ACKNOWLEDGE AMENDMENT NO. 4. (THE SECOND LOW BIDDER ACKNOWLEDGED THE AMENDMENT BY TELEGRAM AND THE HIGH BIDDER ACKNOWLEDGED BY SIGNATURE.) ACTUALLY, YOUR BID WAS CONSISTENT WITH THE MODIFIED DELIVERY AS REQUIRED BY AMENDMENT NO. 4, AND IT WAS SUBMITTED UNDER DATE OF DECEMBER 2, 1964, WITH A REFERENCE TO THE BID OPENING DATE OF DECEMBER 4, BUT YOUR BID DID NOT CONTAIN ANY STATEMENT CONCERNING THE TESTING REQUIREMENT SPECIFIED UNDER AMENDMENT NO. 4.

YOU CONTENDED PROMPTLY AFTER AWARD THAT THE TESTING STATED IN AMENDMENT NO. 4 (ALIGNMENT WITH THE ANTENNA) WAS ALREADY A REQUIREMENT OF THE INVITATION TEST SPECIFICATIONS (SPECIFICATION TS 3-301-1) AND THUS WAS INCLUDED AS A PART OF YOUR BID WITHOUT REGARD TO AMENDMENT NO. 4. FIRST THE AIR FORCE DISPUTED YOUR CONTENTION, BUT UPON FURTHER CONSIDERATION CONCLUDED THAT YOU WERE CORRECT; AIR FORCE NOW RECOGNIZES THAT YOUR BID WAS RESPONSIVE AND SHOULD HAVE BEEN ACCEPTED. IT EXPLAINS THAT ITS ORIGINAL DETERMINATION THAT AMENDMENT NO. 4 UPGRADED THE TESTING REQUIREMENTS WAS DUE TO AN OVERSIGHT, COMPOUNDED BY THE FACT THAT TEST SPECIFICATION TS 3-301-1 WAS A CLASSIFIED SPECIFICATION AND WAS NOT REVIEWED BY THE CONTRACTING OFFICER PRIOR TO THE ISSUANCE OF AMENDMENT NO. 4.

THE RECORD SHOWS THAT YOUR BID WAS RESPONSIVE. HOWEVER, WE ARE ADVISED THAT ANY ACTION TO TERMINATE OR CANCEL THE AWARD AT THIS TIME COULD DELAY RECEIPT OF THE CONTRACT EQUIPMENT, THUS ADVERSELY AFFECTING THE MISSION OF THE F-106 AND F-101B AIRCRAFT. FURTHERMORE, THE CONTRACTOR ALREADY HAS INCURRED CONSIDERABLE EXPENSES (REPORTEDLY IN THE AMOUNT OF $45,000) ON THE CONTRACT. UNDER THE CIRCUMSTANCES, WE DO NOT BELIEVE THAT THE AWARD SHOULD BE DISTURBED.

YOU ASK WHETHER YOUR FIRM IS ENTITLED TO BE REIMBURSED FOR ITS BID PREPARATION EXPENSES. IN HEYER PRODUCTS COMPANY, INC. V. UNITED STATES, 140 F.SUPP. 409, 135 CT.CL. 63, THE COURT STATED THE RULE THAT AN UNSUCCESSFUL BIDDER IS NOT ENTITLED UNDER LAW TO RECOVER THE COST OF PUTTING IN HIS BID UNLESS IT BE SHOWN THAT THE "BIDS WERE NOT INVITED IN GOOD FAITH, BUT AS A PRETENSE TO CONCEAL THE PURPOSE TO LET THE CONTRACT TO SOME FAVORED BIDDER, OR TO ONE OF A GROUP OF PREFERRED BIDDERS, AND WITH THE INTENT TO WILFULLY, CAPRICIOUSLY, AND ARBITRARILY DISREGARD THE OBLIGATION TO LET THE CONTRACT TO HIM WHOSE BID WAS MOST ADVANTAGEOUS TO THE GOVERNMENT.' IN SHORT, BEFORE BID PREPARATION EXPENSES MAY BE ALLOWED, THE FACTS MUST SHOW A CASE OF DISCRIMINATION AGAINST THE UNSUCCESSFUL BIDDER AND OF FAVORITISM TOWARD THE SUCCESSFUL BIDDER. SEE HEYER PRODUCTS COMPANY, INC. V. UNITED STATES, 177 F.SUPP. 251, 147 CT.CL. 256. THE FACTS IN THIS CASE INDICATE THAT THE REJECTION OF YOUR BID RESULTED FROM AN HONEST OVERSIGHT BY THE CONTRACTING OFFICER REGARDING THE REQUIREMENTS OF THE SPECIFICATIONS, WITHOUT ANY INTENT ON HIS PART TO ARBITRARILY DISCRIMINATE AGAINST YOUR FIRM IN FAVOR OF THE SUCCESSFUL BIDDER. WE, THEREFORE, CONCLUDE THAT YOU ARE NOT ENTITLED TO RECOVER ANY COSTS OF BIDDING.