B-157529, NOV. 24, 1965

B-157529: Nov 24, 1965

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 19. PRICES WERE TO BE SUBMITTED ON THE BASIS OF BID A (FIRST ARTICLE. WERE ELIGIBLE TO BID ON THE BASIS OF FIRST ARTICLE. YOUR LOW BID OF $30 PER UNIT WAS BASED ON RECEIVING A WAIVER OF FIRST ARTICLE APPROVAL. IT IS REPORTED THAT SINCE NO EVIDENCE WAS FOUND IN THE ADMINISTRATIVE OFFICE THAT YOU HAD PREVIOUSLY FURNISHED THE FILTER AND SINCE YOU FAILED TO FURNISH SUCH EVIDENCE. YOUR BID WAS REJECTED AS NONRESPONSIVE. YOU NOW HAVE SUBMITTED EVIDENCE. THE PRICE WAS PLACED NEXT TO BID A. ALTHOUGH THERE WAS AN APPARENT AMBIGUITY IN THE BID. YOUR PROTEST WITH RESPECT TO INVITATION FOR BIDS DSA-9-65-4078 IS DENIED. THIS DECISION IS BASED PRIMARILY UPON THE DECISION OF THE DEPARTMENT OF THE AIR FORCE THAT THEY WILL USE ONLY COLLINS' FILTERS.

B-157529, NOV. 24, 1965

TO WHITEWATER ELECTRONICS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 19, 1965, AND TO OTHER CORRESPONDENCE FROM YOUR COMPANY, PROTESTING THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS DSA-9-65-4078 AND AWARD OF THE CONTRACT TO COLLINS RADIO COMPANY. THE INVITATION SOLICITED BIDS FOR 546 FILTERS, FSN 5915-711-0388, COLLINS PART NO. 5269163009, AND INCLUDED COLLINS DRAWINGS AND SPECIFICATIONS. PRICES WERE TO BE SUBMITTED ON THE BASIS OF BID A (FIRST ARTICLE, APPROVAL NOT REQUIRED) OR BID B (FIRST ARTICLE, APPROVAL REQUIRED). BIDDERS WHO HAD PREVIOUSLY, WITHIN 18 MONTHS, EITHER DIRECTLY OR INDIRECTLY, SATISFACTORILY FURNISHED THE FILTERS TO THE GOVERNMENT, WERE ELIGIBLE TO BID ON THE BASIS OF FIRST ARTICLE, APPROVAL NOT REQUIRED, PROVIDED THEY FURNISHED A CITATION TO THE PREVIOUS CONTRACT OR ORDER NUMBER ENTITLING THEM TO A WAIVER OF TESTING. YOUR LOW BID OF $30 PER UNIT WAS BASED ON RECEIVING A WAIVER OF FIRST ARTICLE APPROVAL. IT IS REPORTED THAT SINCE NO EVIDENCE WAS FOUND IN THE ADMINISTRATIVE OFFICE THAT YOU HAD PREVIOUSLY FURNISHED THE FILTER AND SINCE YOU FAILED TO FURNISH SUCH EVIDENCE, YOUR BID WAS REJECTED AS NONRESPONSIVE. SUCH REJECTION APPEARS PROPER IN THIS CASE. SEE 40 COMP. GEN. 132; B 155846, MARCH 10, 1965; B-155688, FEBRUARY 17, 1965.

YOU NOW HAVE SUBMITTED EVIDENCE, HOWEVER, THAT YOU INTENDED TO BID ON THE BASIS OF FURNISHING A FIRST ARTICLE FOR APPROVAL (BID B) BUT THAT, THROUGH A CLERICAL ERROR, THE PRICE WAS PLACED NEXT TO BID A. IN SUBSTANTIATION OF YOUR ALLEGATION OF ERROR YOU POINT OUT THAT YOU COMPLETED A PROPOSED DELIVERY SCHEDULE ON THE BASIS OF FIRST ARTICLE APPROVAL (EXHIBIT D) AND ATTACHED IT TO THE BID. ALTHOUGH THERE WAS AN APPARENT AMBIGUITY IN THE BID, IT OBVIOUSLY COULD NOT BE ASCERTAINED FROM THE BID THE BASIS UPON WHICH YOU INTENDED TO BID. AN UNRESPONSIVE BID DOES NOT CONSTITUTE AN OFFER WHICH MAY PROPERLY BE ACCEPTED, AND TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY CHANGING A MATERIAL PART OF THE BID ON THE BASIS OF AN ERROR ALLEGED AFTER OPENING WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID. SEE 38 COMP. GEN. 819; 40 ID. 432.

IN VIEW OF THESE CIRCUMSTANCES, YOUR PROTEST WITH RESPECT TO INVITATION FOR BIDS DSA-9-65-4078 IS DENIED.

YOU ALSO QUESTIONED THE PRESENT DETERMINATION BY THE DEFENSE ELECTRONICS SUPPLY CENTER THAT THESE MECHANICAL FILTERS MUST BE PROCURED ONLY FROM COLLINS RADIO COMPANY. THIS DECISION IS BASED PRIMARILY UPON THE DECISION OF THE DEPARTMENT OF THE AIR FORCE THAT THEY WILL USE ONLY COLLINS' FILTERS.

THE DEFENSE ELECTRONICS SUPPLY CENTER IS A PROCURING FACILITY FOR ALL THE ARMED SERVICES, HAVING TAKEN OVER THE RESPONSIBILITY FOR PROCURING THE MECHANICAL FILTERS FROM THE U.S. ARMY SIGNAL CORPS. THESE PROCUREMENTS ARE GENERALLY FOR STOCK REPLENISHMENTS AT VARIOUS DEPOTS, ALTHOUGH SOME ARE FOR PARTICULAR SERVICE REQUIREMENTS. IT APPEARS THAT THE AIR FORCE HAS CONSISTENTLY FAVORED THE COLLINS FILTERS; HOWEVER, DEFENSE ELECTRONICS SUPPLY CENTER, NOT BEING AWARE OF THE AIR FORCE'S INSISTENCE IN THE MATTER, UNTIL JULY 1965, AND IN AN EFFORT TO INCREASE THE COMPETITIVE BIDDING, HAS PROCURED THESE FILTERS BY FORMAL ADVERTISING. ALTHOUGH YOUR COMPANY HAS PRODUCED THESE FILTERS PREVIOUSLY, THERE HAVE BEEN NO CONTRACTS FOR SPECIFIC AIR FORCE REQUESTS, SO THIS PRESENT CONTROVERSY HAS NOT BEEN CONSIDERED PREVIOUSLY. FURTHER, YOU HAVE NOT IN THE PAST PRODUCED UNDER A CONTRACT REQUIRING FIRST ARTICLE APPROVAL.

THE AIR FORCE INSISTENCE ON SOLE-SOURCE PROCUREMENT FROM COLLINS RADIO COMPANY APPARENTLY IS BASED UPON THE FACT THAT THE MECHANICAL FILTERS ARE TO BE USED AS REPLACEMENTS IN COLLINS RADIOS PRESENTLY IN USE, AND THAT COLLINS SPECIFICATIONS MUST BE USED UNTIL MILITARY SPECIFICATIONS, CURRENTLY IN PREPARATION, ARE COMPLETED. ALSO, THE AIR FORCE ENGINEERS ARE OF THE OPINION THAT THESE SPECIFICATIONS ARE NOT ADEQUATE FOR COMPETITIVE BIDDING. ALTHOUGH DEFENSE ELECTRONICS SUPPLY CENTER HAS AN ENGINEERING STAFF, WE HAVE BEEN ADVISED THAT THEIR JURISDICTION DOES NOT EXTEND TO THIS TYPE OF EVALUATION, AND THEY FIND THEMSELVES BOUND BY THE AIR FORCE DETERMINATION. SECONDLY, IN TWO INSTANCES, THE AIR FORCE, HAVING DRAWN WHITEWATER FILTERS FROM STOCK, HAS REPORTED UNSATISFACTORY RESULTS.

WE RECEIVED, THROUGH THE DEFENSE SUPPLY AGENCY, A REPORT FROM THE DEFENSE ELECTRONICS SUPPLY CENTER, DATED NOVEMBER 1, 1965, EXPLAINING THEIR POSITION IN THE MATTER. WE ARE ENCLOSING A COPY OF THAT REPORT, FOR ANY COMMENTS YOU MAY DESIRE TO MAKE IN WRITING TO US. ..END :