B-157213, FEB. 15, 1966

B-157213: Feb 15, 1966

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SARKIS AND KOSTOS: REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 24 AND NOVEMBER 2. WAS TREATED BY CERTAIN PROCUREMENT OFFICIALS OF THE AERONAUTICAL CHART AND INFORMATION CENTER. WAS FORWARDED TO THE DEPARTMENT OF THE AIR FORCE FOR THEIR COMMENT. THERE IS NO REASON TO BELIEVE THAT THE IFB WAS NOT ISSUED IN GOOD FAITH. THE CONTRACTING OFFICER DISCUSSED WITH HIM IN GENERAL TERMS THE RELATIONSHIP BETWEEN CAPABILITY AND THE AMOUNT OF WORK FOR WHICH A BID IS SUBMITTED. THE CONTRACTING OFFICER DID POINT OUT THAT A BID SUBMITTED FOR AN AMOUNT OF WORK CLEARLY IN EXCESS OF A BIDDER'S CAPABILITY IS GENERALLY TAKEN AS AN INDICATION OF IRRESPONSIBILITY ON THE PART OF A BIDDER AND THAT RESPONSIBLE REPUTABLE CONCERNS DO NOT KNOWINGLY DO THAT.

B-157213, FEB. 15, 1966

TO STASSEN, KEPHART, SARKIS AND KOSTOS:

REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 24 AND NOVEMBER 2, 1965, RELATIVE TO THE PROTEST OF PANORAMIC STUDIOS, INC., PHILADELPHIA, PENNSYLVANIA, AGAINST THE PROCUREMENT ACTIONS TAKEN BY THE AERONAUTICAL CHART AND INFORMATION CENTER, ST. LOUIS, MISSOURI, UNDER CONTRACT NO. AF 23/601/-4034 AND EARLIER CONTRACTS AWARDED TO THAT CORPORATION.

YOUR LETTER OF NOVEMBER 2, 1965, IN WHICH YOU MADE NUMEROUS ALLEGATIONS IN REGARD TO THE MANNER IN WHICH YOUR CLIENT, MR. LEONARD N. ABRAMS, PRESIDENT OF PANORAMIC STUDIOS, INC., WAS TREATED BY CERTAIN PROCUREMENT OFFICIALS OF THE AERONAUTICAL CHART AND INFORMATION CENTER, ST. LOUIS, MISSOURI, WAS FORWARDED TO THE DEPARTMENT OF THE AIR FORCE FOR THEIR COMMENT. BY LETTER DATED JANUARY 11, 1966, THE DEPARTMENT ADVISED OUR OFFICE AS FOLLOWS:

"5. IN RESPONSE TO PARAGRAPH TWO ON PAGE TWO, THERE IS NO REASON TO BELIEVE THAT THE IFB WAS NOT ISSUED IN GOOD FAITH. DURING MR. ABRAM'S VISIT TO ACIC, THE CONTRACTING OFFICER DISCUSSED WITH HIM IN GENERAL TERMS THE RELATIONSHIP BETWEEN CAPABILITY AND THE AMOUNT OF WORK FOR WHICH A BID IS SUBMITTED. THE CONTRACTING OFFICER DID POINT OUT THAT A BID SUBMITTED FOR AN AMOUNT OF WORK CLEARLY IN EXCESS OF A BIDDER'S CAPABILITY IS GENERALLY TAKEN AS AN INDICATION OF IRRESPONSIBILITY ON THE PART OF A BIDDER AND THAT RESPONSIBLE REPUTABLE CONCERNS DO NOT KNOWINGLY DO THAT. THESE REMARKS MADE TO MR. ABRAMS BY THE CONTRACTING OFFICER WERE MADE WITH THE INTENT OF HAVING THE BID TO BE SUBMITTED BY PANORAMIC APPEAR IN THE BEST POSSIBLE LIGHT AND NOT FOR THE PURPOSE OF FAVORING AERO SERVICE OR THE "SYSTEMATIC EXCLUSION OF PANORAMIC STUDIOS.' ACIC WAS ADVISED BY LETTER DATED 31 MAY 1962 THAT BECAUSE OF THE EXTENSIVE OVERLAP OF GEOGRAPHIC AREAS, ALL OF THE WORK MUST BE PERFORMED BY ONE CONTRACTOR AND THAT THE IFB NO. 23-601-62-30 CALLED FOR BIDS ON AN "ALL OR NONE" BASIS. WITHOUT ANY DOUBT WHATEVER, THREE RADAR MAP SETS AT ONE TIME WOULD HAVE BEEN BEYOND THE CAPACITY OF PANORAMIC STUDIOS AND MR. ABRAMS SO STATED IN A LETTER TO ACIC DATED 28 JUNE 1964. THE CONTRACTING OFFICER DOES NOT RECALL PRESSING MR. ABRAMS FOR A DECISION AS TO WHETHER HE WOULD LIMIT HIS BID TO ONE RADAR MAP SET OR EVEN ASKING HIM TO MAKE ANY COMMITMENT ON THAT POINT.

"6. MR. KOSTOS NEXT ALLEGES THAT THE CONTRACTING OFFICER, MR. AGATHEN, TELEPHONED PANORAMIC THREE TIMES AND ATTEMPTED TO PERSUADE PANORAMIC TO WITHDRAW ITS BID. THE CONTRACTING OFFICER IS POSITIVE THAT HE DID NOT TELEPHONE ABRAMS TO REQUEST THAT THE BID BE WITHDRAWN, STATING FIRST, IT WOULD HAVE BEEN IMPOSSIBLE FOR ABRAMS TO WITHDRAW HIS BID EVEN IF HE HAD WISHED TO DO SO, AND SECONDLY, SINCE THE SMALL BUSINESS ADMINISTRATION HAD ISSUED A CERTIFICATE OF COMPETENCY, SUCH A COURSE OF ACTION WOULD HAVE BEEN COMPLETELY POINTLESS.

"9. IN REGARD TO COMPARING THE TOLERANCES BETWEEN AERO SERVICE'S MODELS AND THE MODEL PANORAMIC WAS REQUIRED TO FURNISH UNDER ITS CONTRACT, PANORAMIC FAILED TO MENTION THAT THE AIR FORCE ACTIVITY USING RADAR MAP SET NO. 115 REQUESTED A CHANGE IN THE RADAR RETURN PATTERN OF THE RELIEF MODEL OF THE SET, TO BE ACCOMPLISHED BY REPAINTING THE MODEL IN ACCORDANCE WITH NEW SPECIFICATIONS FOR RADAR MAP SETS WHICH HAD BEEN DEVELOPED AFTER DELIVERY OF AERO SERVICE MODEL 115 TO THE AIR FORCE. ALTHOUGH NORMAL PROCEDURE WOULD HAVE BEEN TO HAVE THE RELIEF MODEL RETURNED TO AERO SERVICE CORPORATION FOR REPAINTING, COMPETITION WAS SOLICITED BY IFB AND AWARD OF CONTRACT AF 23/601/-4160 WAS MADE TO PANORAMIC. ABRAMS STATED TO THE CONTRACTING OFFICER THAT HE WAS SURPRISED AT BEING SOLICITED. HE WAS INFORMED THAT THE ACIC WAS ATTEMPTING TO OBTAIN MAXIMUM COMPETITION. PANORAMIC APPARENTLY CHOOSES TO DISREGARD THE FACT THAT THE STATE OF THE ART IS CONSTANTLY CHANGING AND THAT ITS CONTRACT CALLS FOR CERTAIN REFINEMENTS WHICH IT OBLIGATED ITSELF TO FURNISH.'

IN REGARD TO THE PERFORMANCE OF PANORAMIC STUDIOS, INC., UNDER CONTRACT NO. AF 23/601/-4034, YOUR CLIENT CONTENDS THAT HE HAS MET THE REQUIREMENTS OF THE SPECIFICATIONS AND THAT INSPECTORS OF THE AERONAUTICAL CHART AND INFORMATION CENTER HAVE BEEN TOO HARSH DURING INSPECTION OF THE COMPONENT PARTS. HOWEVER, THE CONTRACTING OFFICE STATES THAT YOUR CLIENT FAILED TO DELIVER ACCEPTABLE SUB-ITEMS 1C (NEGATIVE MASTER MOLD), 1D (RELIEF MODEL), AND 1H (PROJECTION SLIDE SET) BY JUNE 14, 1965, AND THAT, THEREFORE, IT WAS DETERMINED THAT THE CONTRACT SHOULD BE TERMINATED FOR DEFAULT. IN OUR JUDGMENT THE MATTER CONSTITUTES ESSENTIALLY A DISPUTE ON A QUESTION OF FACT WHICH SHOULD BE DISPOSED OF INITIALLY UNDER THE PROCEDURE ESTABLISHED IN THE "DISPUTES" CLAUSE OF THE CONTRACT BEFORE WE WOULD BE AUTHORIZED TO CONSIDER THE MERITS OF YOUR PROTEST. THE BASIS FOR THIS CONCLUSION IS SET FORTH IN THE ATTACHED COPY OF OUR LETTER OF TODAY TO THE SECRETARY OF THE AIR FORCE.