B-156798, JUL. 12, 1965

B-156798: Jul 12, 1965

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THE RECORD BEFORE OUR OFFICE SHOWS THAT THE PROCUREMENT WAS INITIATED AT THE REQUEST OF THE WARNER ROBINS AIR MATERIEL AREA. NEGOTIATION OF THE PROCUREMENT WAS AUTHORIZED UNDER THE PUBLIC EXIGENCY PROVISION IN 10 U.S.C. 2304 (A) (2). WHICH SPECIFIED THAT THE PROCUREMENT WAS TOTALLY RESTRICTED TO SMALL BUSINESS. WAS SENT TO 27 FIRMS. THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION 1-1003.1. CLOSING DATE FOR SUBMISSION OF PROPOSALS WAS APRIL 12. THE QUANTITY WAS STATED AS 3. THE QUANTITY WAS ALSO STATED AS 3. THE UNIT WAS SHOWN AS "PR" (FOR PAIR). SINCE FIRM DESTINATIONS WERE NOT STATED BY THE USING ACTIVITY. OFFERS WERE SOLICITED ON AN F.O.B.

B-156798, JUL. 12, 1965

TO BROWNLINE CORPORATION:

YOUR LETTER OF MAY 14, 1965, PROTESTS AWARD OF A CONTRACT BY THE DEFENSE SUPPLY AGENCY (DSA) TO EASTERN ROTORCRAFT COMPANY, DOYLESTOWN, PENNSYLVANIA, UNDER REQUEST FOR PROPOSALS (RFP) NO. DSA 4-65-2017, ISSUED MARCH 26, 1965.

THE RECORD BEFORE OUR OFFICE SHOWS THAT THE PROCUREMENT WAS INITIATED AT THE REQUEST OF THE WARNER ROBINS AIR MATERIEL AREA, WHICH HAD A NEED FOR 3,350 COMPLETE CARGO NETS, EACH NET TO CONSIST OF A TOP NET AND TWO SIDE ASSEMBLIES WITH EACH SIDE ASSEMBLY HAVING TWO SIDES TO ENCLOSE THE CARGO ON ALL FOUR SIDES. ON THE BASIS OF THE PRIORITY CLASSIFICATION ASSIGNED TO THE PURCHASE REQUEST, NEGOTIATION OF THE PROCUREMENT WAS AUTHORIZED UNDER THE PUBLIC EXIGENCY PROVISION IN 10 U.S.C. 2304 (A) (2).

THE RFP, WHICH SPECIFIED THAT THE PROCUREMENT WAS TOTALLY RESTRICTED TO SMALL BUSINESS, WAS SENT TO 27 FIRMS. ALSO, THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION 1-1003.1. CLOSING DATE FOR SUBMISSION OF PROPOSALS WAS APRIL 12.

PAGE 1 OF THE RFP SCHEDULE LISTED THE PROCUREMENT ITEMS AS FOLLOWS:

"A. FSN 3990-969-4103

NET CARGO TIEDOWN TOP HCU 15/C

IN ACCORDANCE WITH MIL-SPEC MIL-N-38255

(USAF) DATED 11 FEBRUARY 1964. BROWN

LINE DRAWING 22046C AND AFLC/AFSC

(SEE PAGES 8 AND 9) FORM 5 DATED

8 DECEMBER 1964.

"B. FSN 3990-996-2780

NET CARGO TIEDOWN ASSY SIDE (2 SIDES FOR

EACH ASSY) HCU 7/E

IN ACCORDANCE WITH MIL-N-27444B USAF

DATED 11 FEBRUARY 1964. BROWN LINE

DRAWING 22045B AND AFLC/AFSC

(SEE PAGES 11 AND 12) FORM 5 DATED 8

DECEMBER 1964.'

FOR ITEM A, THE QUANTITY WAS STATED AS 3,350 AND THE UNIT AS "EA" (FOR EACH). FOR ITEM B, THE QUANTITY WAS ALSO STATED AS 3,350, BUT THE UNIT WAS SHOWN AS "PR" (FOR PAIR). SINCE FIRM DESTINATIONS WERE NOT STATED BY THE USING ACTIVITY, OFFERS WERE SOLICITED ON AN F.O.B. ORIGIN BASIS ONLY AND DELIVERY POINTS WERE CITED FOR EVALUATION PURPOSES ONLY.

THE MILITARY SPECIFICATION FOR ITEM B, MIL-N-27444B/USAF), READS, IN PERTINENT PART, AS OLLOWS:

"3.4.3.1 NET ASSEMBLY.--- A TIEDOWN NET ASSEMBLY SHALL CONSIST OF TWO SIDE NETS AS SHOWN ON FIGURE 1. EACH SIDE NET SHALL ENCLOSE TWO SIDES OF A PALLET LOAD AND SHALL CONNECT TOGETHER AT OPPOSITE CORNERS.'

PROPOSALS WERE RECEIVED FROM THREE FIRMS, EASTERN, KINGS POINT INDUSTRIES, INCORPORATED, AND YOU. EASTERN'S PROPOSAL ALSO OFFERED LOWER PRICED ALTERNATE HARDWARE, BUT UPON TECHNICAL EVALUATION SUCH ITEMS WERE DETERMINED BY DSA TO BE UNACCEPTABLE.

SUBSEQUENT TO THE RECEIPT AND OPENING OF THE PROPOSALS, CERTAIN CHANGES IN THE TESTING REQUIREMENTS FOR THE PROCUREMENT ITEMS WERE FOUND TO BE NECESSARY. ACCORDINGLY, ALL THREE OFFERORS WERE NOTIFIED BY LETTER OF THE TESTING CHANGES AND WERE AFFORDED AN OPPORTUNITY TO SUBMIT REVISED PROPOSALS BY A NEW CLOSING DATE, APRIL 21, WHICH WAS LATER EXTENDED TO APRIL 23.

BOTH EASTERN AND KINGS POINT REDUCED THEIR PRICES, BUT YOUR OFFER REMAINED FIRM. IN ADDITION, EASTERN OFFERED FURTHER REDUCTIONS IN THE PRICES OF BOTH ITEMS FOR ANY QUANTITY BETWEEN 1,000 AND 3,350 EXCLUSIVE OF TESTING WITH PREPRODUCTION SAMPLE TESTING COST OF $5,494 TO BE AMORTIZED OVER THE QUANTITY ORDERED.

IN THE EVALUATION OF THE FINAL PROPOSALS, THERE WERE CONSIDERED APPLICABLE DISCOUNTS AND FREIGHT RATES TO ALL EVALUATION POINTS BASED ON COMBINING BOTH ITEMS FOR SHIPMENT. ON THIS BASIS, EASTERN WAS THE LOW OFFEROR TO ALL SPECIFIED DELIVERY POINTS EXCEPT AS TO ITEM A FOR TRAVIS AND GEORGE AIR FORCE BASES, CALIFORNIA. HOWEVER, IT WAS DETERMINED THAT A SPLIT AWARD, NECESSITATING SEPARATE SHIPMENTS OF THE ITEMS, WOULD INCREASE THE EVALUATED COST OF ITEM A TO SUCH POINTS. CONSIDERING THAT FACTOR TOGETHER WITH THE BENEFITS ATTACHED TO EASTERN'S OFFER OF A QUANTITY PRICE REDUCTION ON EACH ITEM, IT WAS DETERMINED THAT A SPLIT AWARD WOULD RESULT IN TOTAL EVALUATED COSTS TO THE GOVERNMENT OF $1,252.33 IN EXCESS OF THE EVALUATED COSTS OF A SINGLE AWARD TO EASTERN. ACCORDINGLY, AWARD OF THE ENTIRE PROCUREMENT WAS MADE TO EASTERN ON MAY 5.

IT IS YOUR POSITION THAT THE IFB DESCRIPTION OF ITEM B IS AMBIGUOUS, IN THAT IT CALLS FOR 3,350 PAIRS OF ASSEMBLIES, WHICH YOU STATE COULD BE INTERPRETED TO MEAN EITHER 3,350 PIECES OF PART 22045 (YOUR DRAWING NUMBER) OR 6,700 PIECES OF PART 22045. YOU STATE THAT YOUR INTERPRETATION WAS THAT EACH PAIR "CONSISTED OF TWO PIECES PART NUMBER 22045," AS EVIDENCED BY THE FOLLOWING STATEMENT ATTACHED TO YOUR BID:

"EXHIBIT "A"

"REFERENCE DSA-465-2017

"BROWNLINE INTERPRETATION OF THE DESCRIPTION OF ITEM B IS THAT EACH ASSEMBLY CONSISTS OF TWO PIECES ASSEMBLY PART NUMBER 22045-51, EACH 22045- 51 CONSISTING OF ONE 22045-1 ASSEMBLY AND ONE 22045-2 ASSEMBLY; SUCH AS TO FULLY ENCLOSE ALL FOUR SIDES OF THE CARGO LOAD ANTICIPATED BY MIL-N- 27444B.'

THE GROUNDS FOR YOUR PROTEST ARE SUMMARIZED AS FOLLOWS:

"1. THE SUCCESSFUL BIDDER MAY HAVE INTERPRETED THE DESCRIPTION AS EACH PART 22045 IS A PAIR, ENCLOSES A PAIR OF SIDES, AND THEREFORE MAY PLAN TO SUPPLY ONLY HALF THE REQUIREMENT (IF THE REQUIREMENT IS FOR 6700 PIECES OF 22045). IF THIS IS THE CASE THE COST TO THE GOVERNMENT WILL EXCEED $250,000.00 TO CORRECT.

"2. BY MAKING THE CONSERVATIVE EVALUATION OF THE ITEM DESCRIPTION THIS COMPANY IS IN EFFECT LOW BIDDER AND IS DEPRIVED OF AWARD BECAUSE OF THE AMBIGUOUS DESCRIPTION. OUR BID INTERPRETATION IS BASED ON THE FOLLOWING POINT OF LOGIC.

"SEE ATTACHED DRAWING 22044 (NOT SENT WITH BID). WE ASSUMED THAT THE GOVERNMENT WANTED 3350 ASSEMBLIES 22044. THE SUCCESSFUL BIDDER DID NOT HAVE THIS DRAWING.

"3. THE OTHER POTENTIAL BIDDERS, HAVING NOTED THE AMBIGUOUS ITEM DESCRIPTION, MAY NOT HAVE BID IN FEAR OF MISINTERPRETATION AND HEAVY FINANCIAL RISK ACCORDINGLY.'

ACCORDINGLY, YOU REQUEST THAT THE AWARD TO EASTERN BE CANCELLED, THAT THE ALLEGED AMBIGUOUS ITEM BE CORRECTED, AND THAT A NEW RFP BE SUBMITTED TO POTENTIAL BIDDERS.

IN A REPORT DATED JUNE 9, THE CONTRACTING OFFICER ADVISES THAT FOLLOWING RECEIPT OF A COPY OF YOUR PROTEST, INQUIRY WAS MADE OF EASTERN AS TO ITS UNDERSTANDING OF ITEM B. EASTERN REPLIED THAT IT UNDERSTOOD THAT THE ITEM CONSISTS OF TWO SIDES FOR EACH ASSEMBLY WITH EACH OF TWO SIDE NETS TO BE CONSTRUCTED IN ACCORDANCE WITH THE SPECIFIED DRAWING. ALSO, SUBSEQUENT DISCUSSIONS OF THE PROCUREMENT REQUIREMENT WITH EASTERN'S REPRESENTATIVES MADE IT CLEAR THAT EASTERN QUOTED ON, AND INTENDS TO FURNISH, 6,700 EACH, NET ASSEMBLIES AS SHOWN ON BROWNLINE DRAWING 22045.

THERE IS NO RECORD OF ANY INQUIRY FROM ANY OTHER FIRMS REGARDING THE INTERPRETATION OF ITEM B, AND NONE OF THE FIRMS WHICH FAILED TO SUBMIT PROPOSALS CITED THE DESCRIPTION OF ITEM B AS A REASON THEREFOR.

AS TO YOUR STATEMENT THAT EASTERN DID NOT HAVE DRAWING 22044, THE CONTRACTING OFFICER ADVISES THAT SUCH DRAWING IS NOT AVAILABLE TO THE PROCURING ACTIVITY. FURTHERMORE, ATTENTION IS DIRECTED TO THE FACT THAT DRAWING 22045B, CITED IN THE ITEM B DESCRIPTION, CARRIES A REFERENCE TO DRAWING 22044 WITH THE LETTERS N/A MEANING "NOT APPLICABLE.'

THE IFB DESCRIPTION FOR ITEM B MADE SPECIFIC REFERENCE TO THE APPLICABLE MILITARY SPECIFICATION, MIL-N-27444B/USAF). FROM THE LANGUAGE QUOTED ABOVE FROM SUCH SPECIFICATION, IT IS CLEAR THAT EACH TIEDOWN NET ASSEMBLY MUST CONSIST OF TWO SIDE NETS. THEREFORE, THE REQUIREMENT FOR 3,350 PAIRS OF TIEDOWN SIDE ASSEMBLIES CAN HAVE NO OTHER MEANING THAN 6,700 ASSEMBLIES. MOREOVER, IT IS TO BE NOTED THAT THE ITEM B REQUIREMENT IS COMPATIBLE WITH ITEM A REQUIREMENT FOR 3,350 TOP NETS, SINCE A COMPLETE NET CONSISTS OF AN ITEM A TOP NET AND TWO SIDE ASSEMBLIES (OR ONE PAIR) OF THE ITEM B ARTICLES, THE TWO ITEMS TOGETHER CONSTITUTING 3,350 COMPLETE FOUR-SIDED CARGO NETS WITH TOPS.

FROM THE FACTS OF RECORD, IT IS APPARENT THAT BOTH YOU AND EASTERN UNDERSTOOD THAT 6,700 NET ASSEMBLIES WERE TO BE FURNISHED UNDER ITEM B. FURTHERMORE, THERE IS NO EVIDENCE THAT KINGS POINT, THE THIRD OFFEROR, OR ANY OF THE OTHER FIRMS WHO HAD NOTICE OF THE PROCUREMENT, EITHER THROUGH DIRECT SOLICITATION OR BY MEANS OF THE SYNOPSIS PUBLISHED IN THE COMMERCE BUSINESS DAILY, HAD ANY CONTRARY UNDERSTANDING. ACCORDINGLY, THE RECORD DOES NOT SUPPORT YOUR ASSERTION THAT PROSPECTIVE OFFERORS MIGHT HAVE BEEN DETERRED FROM BIDDING BY THE ALLEGED AMBIGUITY IN THE ITEM B DESCRIPTION.

IN THE CIRCUMSTANCES, WE ARE UNABLE TO CONCLUDE THAT THERE WAS SUCH AMBIGUITY IN THE RFP AS WOULD HAVE PRECLUDED ACCEPTANCE OF EASTERN'S FINAL OFFER FROM RESULTING IN A BINDING AND ENFORCEABLE CONTRACT OBLIGATING EASTERN TO SUPPLY THE PROCUREMENT ITEMS, INCLUDING 3,350 PAIRS OF NET ASSEMBLIES, OR 6,700 ASSEMBLIES, AT THE PRICES QUOTED IN ITS OFFER. THEREFORE FIND NO LEGAL BASIS TO QUESTION THE AWARD TO EASTERN, AND YOUR PROTEST MUST BE DENIED.