B-157134, OCT. 12, 1965

B-157134, OCT. 12, 1965

TO EASTERN ROTORCRAFT CORPORATION:

REFERENCE IS MADE TO A TELEGRAM DATED JUNE 29, 1965, FROM MR. THEODORE M. KOSTOS, YOUR ATTORNEY, AND TO SUBSEQUENT CORRESPONDENCE FROM YOU, PROTESTING CONSIDERATION BY THE DEPARTMENT OF THE AIR FORCE OF TWO ALLEGEDLY NONRESPONSIVE BIDS, BOTH OF WHICH ARE LOWER THAN YOUR BID, SUBMITTED UNDER INVITATION FOR BIDS (IFB) NO. 36-600-65-868, ISSUED MAY 21, 1965, BY HEADQUARTERS, MIDDLETOWN AIR MATERIEL AREA, OLMSTED AIR FORCE BASE, PENNSYLVANIA.

THE IFB SOLICITED BIDS TO FURNISH 11,985 CARGO TIE DOWNS FOR AIRCRAFT DESCRIBED AS FOLLOWS:

"/1670-725-1437) TIE DOWN, CARGO, ACFT., TYPE CGU-1/B, SPECIFICATION MIL- T-27260 (USAF) DTD 24 NOV. 59, AMEND NO. 2 DTD 20 MAY 64 WITH FOLLOWING ADDITION TO PARA 3.4.4.2.2 AT THE END OF THE FIRST SENTENCE,"THE TENSIONING MECHANISM SHALL BE CAPABLE OF WITHSTANDING AN APPLIED FORCE OF 300 POUNDS WITHOUT PERMANENT DEFORMATION OF METAL PARTS.' FIRST ARTICLE INSPECTION WILL BE PERFORMED TO DETERMINE COMPLIANCE WITH ADDITION TO PARA 3.4.4.2.2 AS NOTED ABOVE. (QUP-1 EA)"

ON PAGE 1 OF THE IFB, BIDDERS WERE NOTIFIED THAT ALL PRODUCTS LISTED IN THE IFB REQUIRED QUALIFICATION AND THAT BIDDERS SHOULD FURNISH NECESSARY DATA REGARDING TESTING OF QUALIFIED PRODUCTS OFFERED.

ON PAGE 2 OF THE IFB, AFTER THE DESCRIPTION OF THE ITEM, THE FOLLOWING LANGUAGE APPEARS:

"BID "A:" FIRST ARTICLE APPROVAL REQUIRED.

"BID "B:" FIRST ARTICLE APPROVAL NOT REQUIRED.

"NOTE: BIDDERS WHO HAD NOT PREVIOUSLY FURNISHED THE SUPPLIES DESCRIBED IN THIS IFB UNDER A CONTRACT CONTAINING REQUIREMENTS FOR "FIRST ARTICLE APPROVAL" ARE REQUIRED TO SUBMIT BID ONLY ON BID "A" WHICH INCLUDES COMPLIANCE WITH THE PROVISION HEREOF ENTITLED "FIRST ARTICLE APPROVAL.'

"BIDDERS WHO HAVE PREVIOUSLY FURNISHED THE SUPPLIES DESCRIBED IN THIS IFB UNDER A CONTRACT CONTAINING REQUIREMENT FOR "FIRST ARTICLE APPROVAL" WILL SUBMIT A BID ON BOTH BID "A" AND BID .' THESE BIDDERS WILL INDICATE IN THE SPACES PROVIDED IMMEDIATELY BELOW, THE PREVIOUS CONTRACT NUMBER, DATE OF CONTRACT AND ACTUAL DATE PREVIOUS FIRST ARTICLE WAS APPROVED BY THE GOVERNMENT.

CONTRACT NUMBER ...............................

DATE OF CONTRACT ..............................

DATE FIRST ARTICLE APPROVED ...................

"BIDS SUBMITTED UNDER BID "A" FIRST ARTICLE APPROVAL REQUIRED OR UNDER BID "B" FIRST ARTICLE APPROVAL NOT REQUIRED ARE EQUALLY ACCEPTABLE TO THE GOVERNMENT, AS APPLICABLE, AND AWARD WILL BE MADE THEREON WITH THE BEST INTEREST OF THE GOVERNMENT CONSIDERED.'

A TRANSPORTATION DATA PROVISION REQUIRED BIDDERS TO STATE A GUARANTEED MINIMUM SHIPPING WEIGHT OR HAVE THEIR BIDS REJECTED.

THREE BIDS WERE RECEIVED AND OPENED ON JUNE 22, AS SCHEDULED. ALL THREE BIDDERS QUOTED UNDER BID "B," FIRST ARTICLE APPROVAL NOT REQUIRED. ONLY TWO OF THE BIDDERS, BROWNLINE CORPORATION AND YOU, ALSO QUOTED UNDER BID "A," FIRST ARTICLE APPROVAL REQUIRED.

YOU CONTEND THAT SINCE THE IFB LANGUAGE QUOTED ABOVE FROM PAGE 2 REQUIRED BIDDERS WHO HAD PREVIOUSLY MET THE FIRST ARTICLE APPROVAL REQUIREMENT TO SUBMIT BIDS UNDER BOTH BID "A" AND BID ,B," AEROQUIP CORPORATION, WHO WAS THE LOW BIDDER UNDER BID "B," BUT FAILED TO BID UNDER BID "A," IS NONRESPONSIVE.

YOUR FURTHER CONTEND THAT BROWNLINE, ALTHOUGH LOW UNDER BID "A" AND SECOND LOW UNDER BID "B," IS ALSO NONRESPONSIVE SINCE IT FAILED TO COMPLY WITH THE IFB TRANSPORTATION DATA REQUIREMENT BY NOT STATING A GUARANTEED MINIMUM SHIPPING WEIGHT.

IN A REPORT DATED SEPTEMBER 16 TO OUR OFFICE, THE DEPARTMENT OF THE AIR FORCE HAS ADVISED THAT A REVIEW OF THE PROCUREMENT BY THE PROCURING ACTIVITY SUBSEQUENT TO BID OPENING DISCLOSED THAT WHILE FOUR SOURCES ARE LISTED ON THE QUALIFIED PRODUCTS LIST (QPL) FOR THE CARGO TIE DOWN COMPLYING WITH THE MILITARY SPECIFICATION CITED IN THE IFB, NO SUPPLIER HAS EVER QUALIFIED, OR SUBMITTED FOR QUALIFICATION TESTING, AN ITEM COMPLYING WITH THE IFB DESCRIPTION CALLING FOR AN INCREASE IN THE STRENGTH OF THE TENSIONING MECHANISM OVER THE STRENGTH REQUIRED BY THE EXISTING MILITARY SPECIFICATION. IT WAS CONCLUDED, THEREFORE, THAT TO THE EXTENT THE IFB PROVIDED FOR BOTH QUALIFIED PRODUCTS PROCEDURES AND FIRST ARTICLE TESTING, IT WAS AMBIGUOUS. IT WAS FURTHER CONCLUDED THAT SINCE THE AIR FORCE REQUIREMENT WAS FOR AN ITEM THAT EXCEEDED THE ITEM WHICH HAD BEEN TESTED AND APPROVED FOR INCLUSION ON THE QPL, INCLUSION OF THE QUALIFIED PRODUCTS LANGUAGE IN THE IFB WAS BOTH IMPROPER AND MISLEADING, WHICH WAS EVIDENCED BY THE APPARENT MISINTERPRETATION OF THE IFB BY ALL THREE BIDDERS, AND BY THE FACT THAT AT LEAST ONE BIDDER APPEARS TO HAVE BEEN MISLED BY SUCH AMBIGUITY.

IN THE LIGHT OF THESE DETERMINATIONS, THE IFB WAS CANCELLED ON JULY 21 PURSUANT TO ARMED SERVICES PROCUREMENT REGULATIONS 2-404.1 (B) (1) RELATING TO INADEQUATE OR AMBIGUOUS SPECIFICATIONS, AND ALL BIDDERS WERE NOTIFIED. IN THIS CONNECTION, IT IS STATED THAT WHILE THE BID ACCEPTANCE PERIODS DID NOT EXPIRE UNTIL AUGUST 21, NO ONE OF THE BIDDERS PROTESTED THE AIR FORCE ACTION DURING THE MONTH WHICH ELAPSED BETWEEN THE DATE OF THE IFB CANCELLATION AND AUGUST 21.

REGARDING FUTURE PROCUREMENTS OF THE ITEM IN QUESTION, THE AIR FORCE REPORTS THAT WHILE IT IS THE INTENT OF THE PROCURING ACTIVITY TO READVERTISE THE IMMEDIATE REQUIREMENT WITH A FIRST ARTICLE TESTING PROVISION ONLY, PLANS ARE IN PROCESS TO QUALIFY SOURCES TO THE CHANGED SPECIFICATION.

IN THE CIRCUMSTANCES, IT IS OUR VIEW THAT THE EVIDENCE OF RECORD AFFORDS A REASONABLE JUSTIFICATION FOR THE CANCELLATION OF THE IFB BY THE PROCUREMENT ACTIVITY. WHILE SUCH ACTION SERVES TO VALIDATE THAT PORTION OF YOUR PROTEST WHICH WAS DIRECTED AGAINST AN AWARD TO EITHER OF THE OTHER BIDDERS, OUR CONCURRENCE WITH THE CANCELLATION ACTION NECESSARILY PRECLUDES AN AWARD BASED UPON THE BID SUBMITTED BY YOUR COMPANY. ACCORDINGLY, TO THE EXTENT YOUR PROTEST REQUESTED THAT AN AWARD BE MADE TO YOUR COMPANY, IT MUST BE DENIED.