B-156924, AUG. 20, 1965

B-156924: Aug 20, 1965

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PRESIDENT: REFERENCE IS MADE TO YOUR LETTER OF MAY 28. YOUR UNDERSTANDING THAT THE CONTRACT AWARDED UNDER INVITATION C 243457 RESULTED FROM A READVERTISEMENT OF CANCELED INVITATION C-268611 IS NOT CORRECT. INVITATION C-268611 WAS ISSUED ON JANUARY 25. LED THE CONTRACTING OFFICER TO CONCLUDE THAT THE INVITATION WAS AMBIGUOUS IN THAT SOME OF THE CHARACTERISTICS SET FORTH IN THE DESCRIPTION WERE NOT PRESENT IN THE BRAND NAME AND MODEL NUMBERS LISTED IN THE BRAND NAME OR EQUAL DESCRIPTION. THE BRAND NAME AND MODELS SPECIFIED IN THE INVITATION WERE WESTON INSTRUMENTS MODELS 1483 AND 327 OR EQUALS. A NOTICE THAT THE INVITATION WAS CANCELED WAS ISSUED ON MARCH 29. C-243457 WAS NOT A READVERTISEMENT FOR C-268611 WHICH.

B-156924, AUG. 20, 1965

TO MR. GUY OBOLENSKY, PRESIDENT:

REFERENCE IS MADE TO YOUR LETTER OF MAY 28, 1965, PROTESTING THE ACTION TAKEN BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) LEWIS RESEARCH CENTER IN CANCELING INVITATION FOR BIDS C-268611, AND PURCHASING FROM ANOTHER SOURCE UNDER INVITATION C-243457 WITHOUT SOLICITING YOUR COMPANY OR ADVERTISING IN THE COMMERCE DAILY.

YOUR UNDERSTANDING THAT THE CONTRACT AWARDED UNDER INVITATION C 243457 RESULTED FROM A READVERTISEMENT OF CANCELED INVITATION C-268611 IS NOT CORRECT. INVITATION C-268611 WAS ISSUED ON JANUARY 25, 1965. AFTER THE RECEIPT OF BIDS, A REVIEW OF THE PURCHASE DESCRIPTION BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER BY THE LEWIS RESEARCH CENTER BUYER HANDLING THE PROCUREMENT, LED THE CONTRACTING OFFICER TO CONCLUDE THAT THE INVITATION WAS AMBIGUOUS IN THAT SOME OF THE CHARACTERISTICS SET FORTH IN THE DESCRIPTION WERE NOT PRESENT IN THE BRAND NAME AND MODEL NUMBERS LISTED IN THE BRAND NAME OR EQUAL DESCRIPTION. THE BRAND NAME AND MODELS SPECIFIED IN THE INVITATION WERE WESTON INSTRUMENTS MODELS 1483 AND 327 OR EQUALS. AS A RESULT OF THE CONTRACTING OFFICER'S DETERMINATION, A NOTICE THAT THE INVITATION WAS CANCELED WAS ISSUED ON MARCH 29, 1965, TO EACH OF THE THREE BIDDERS WHICH HAD BID ON THE PROCUREMENT.

IN THE INTERIM BETWEEN THE OPENING OF BIDS ON MARCH 4 AND THE CANCELLATION ON MARCH 29, THE LEWIS RESEARCH CENTER ON MARCH 11, ISSUED INVITATION C-243457, AS A RESULT OF A SEPARATE REQUIREMENT GENERATED IN ADDITION TO THE REQUIREMENT IN C-268611. HENCE, C-243457 WAS NOT A READVERTISEMENT FOR C-268611 WHICH, IT SHOULD BE OBSERVED, HAD NOT BEEN CANCELED AT THE TIME C-243457 WAS ISSUED. BECAUSE OF ADMINISTRATIVE OVERSIGHT THE PROCUREMENT IN C-243457 WAS NOT SYNOPSIZED IN THE COMMERCE DAILY. MOREOVER, INVITATION C-243457 WAS NOT ISSUED TO BROMION BECAUSE IT WAS NOT INCLUDED ON THE SOURCE LIST FOR THE TYPE OF EQUIPMENT BEING PURCHASED. WHILE IT DID SUBMIT A BID UNDER C-268611 AFTER HAVING OBTAINED AN INVITATION FOLLOWING A SYNOPSIS OF THAT PROCUREMENT, THAT INFORMATION DID NOT BECOME AVAILABLE TO THE OFFICE PREPARING THE SOURCE LIST ON C- 243457 SINCE THE INPUT OF SUCH INFORMATION STEMS FROM A REVIEW OF RESPONSES TO AN INVITATION FOR BIDS AFTER AN AWARD IS MADE. FURTHER, IT IS REPORTED THAT BECAUSE OF THE LARGE VOLUME OF CONTRACTS BEING PROCESSED AT THE TIME, AND THE FACT THAT ANOTHER LEWIS RESEARCH CENTER BUYER PROCESSED INVITATION C-243457, THE FACT THAT C-243457 WAS AS AMBIGUOUS AS C 268611 WAS OVERLOOKED. NASA HAS ADVISED THAT IT REGRETS THE OVERSIGHT, BUT SINCE DELIVERY WAS SCHEDULED FOR JULY 16, 1965, CONTRACT PERFORMANCE IS TOO FAR ADVANCED TO WARRANT UPSETTING THE AWARD UNDER INVITATION C- 243457. HOWEVER, IT HAS ADVISED THAT IT INTENDS TO BRING THE MATTER TO THE ATTENTION OF THE LEWIS RESEARCH CENTER TO PRECLUDE A REPETITION IN THE FUTURE.

WITH RESPECT TO YOUR QUESTION AS TO WHETHER WESTON INSTRUMENTS PROVIDED INFORMATION ABOUT ITS PRODUCT IN ITS BID UNDER INVITATION C 243457, SPECIFYING A WESTON MODEL OR EQUAL, AND IF IT DID NOT, WHY ITS BID WAS NOT REJECTED AS NONRESPONSIVE, YOU ARE ADVISED THAT THE FURNISHING OF SUCH INFORMATION WAS UNNECESSARY. WESTON WAS RESPONSIVE IN THAT IT OFFERED THE MODEL NUMBER SPECIFIED IN THE INVITATION. THE BRAND NAME OR EQUAL CLAUSE INCLUDED IN THE INVITATION DOES NOT REQUIRE A BIDDER OFFERING THE MODEL NAMED IN THE INVITATION TO FURNISH ANY DESCRIPTIVE MATERIAL WITH ITS BID.

AS TO THE ACTUAL READVERTISEMENT OF INVITATION C-268611, IT IS OUR UNDERSTANDING THAT A CORRECTED INVITATION SIMILARLY NUMBERED WAS ISSUED TO YOUR COMPANY AND YOU ARE THE SECOND LOW BIDDER AT THE JUNE 18, 1965, BID OPENING.

WHILE YOU SUGGEST THAT THE CIRCUMSTANCES SURROUNDING THESE PROCUREMENTS INDICATE AN OBVIOUS ATTEMPT TO RESTRICT AWARDS FOR THE EQUIPMENT INVOLVED TO WESTON INSTRUMENTS, IT DOES NOT APPEAR TO US, IN VIEW OF THE EXPLANATION OFFERED BY NASA, THAT THE AWARD TO WESTON INSTRUMENTS WAS MADE IN OTHER THAN GOOD FAITH, OR THAT THE OTHER PROCUREMENT WAS CANCELED FOR ANYTHING OTHER THAN WHAT WAS BELIEVED TO BE GOOD AND SUFFICIENT REASONS.

IN THE CIRCUMSTANCES, WE HAVE NO ALTERNATIVE BUT TO DENY YOUR PROTEST IN THIS CASE.