B-158809, JUN. 2, 1966

B-158809: Jun 2, 1966

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INC.: REFERENCE IS MADE TO A COPY OF YOUR LETTER DATED MARCH 22. BIDDING ON AN "EQUAL" PRODUCT WERE BOTH DETERMINED ACCEPTABLE AND AWARD WAS SUBSEQUENTLY MADE TO CEC ON OCTOBER 19. BASED ON AN ADMINISTRATIVE DETERMINATION THAT YOUR PROTEST LACKED SUFFICIENT MERIT TO WARRANT CANCELLATION OF THE CONTRACT YOUR PROTEST WAS DENIED ON MARCH 1. IT IS YOUR POSITION THAT THE CONTRACT WITH CEC IS VOID AB INITIO. THE AWARD TO CEC WAS MADE AFTER ITS BID HAD EXPIRED. 2. THE PROCUREMENT WAS CONTRARY TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 5-103 BECAUSE YOUR OSCILLOGRAPH IS LISTED ON A FEDERAL SUPPLY SCHEDULE. 3. YOUR CONTENTION THAT THE AWARD WAS MADE ON AN EXPIRED BID IS NOT SUPPORTED BY THE FACTS.

B-158809, JUN. 2, 1966

TO HONEYWELL, INC.:

REFERENCE IS MADE TO A COPY OF YOUR LETTER DATED MARCH 22, 1966, TO HEADQUARTERS, SAN ANTONIO AIR MATERIEL AREA (AFLC), KELLY AIR FORCE BASE, TEXAS, PROTESTING THE AWARD OF CONTRACT NO. AF 36/600/-23749 TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. 36-600-65-729. THREE FIRMS RESPONDED TO THE INVITATION, WHICH SOLICITED BIDS FOR THE PURCHASE OF SEVEN VISICORDERS IN ACCORDANCE WITH HONEYWELL PART NO. 1012-36780 OR EQUAL. THE LOW BID BY CONSOLIDATED ELECTRODYNAMICS CORPORATION (CEC), AND THE SECOND LOW BID BY MIDWESTERN INSTRUMENTS, INCORPORATED, BIDDING ON AN "EQUAL" PRODUCT WERE BOTH DETERMINED ACCEPTABLE AND AWARD WAS SUBSEQUENTLY MADE TO CEC ON OCTOBER 19, 1965. YOU ORIGINALLY PROTESTED THE AWARD TO CEC FOR THE REASONS SET FORTH IN YOUR LETTERS OF NOVEMBER 9, 12 AND 13 AND DECEMBER 2, 1965, TO MIDDLETOWN AIR MATERIEL AREA, PENNSYLVANIA. BASED ON AN ADMINISTRATIVE DETERMINATION THAT YOUR PROTEST LACKED SUFFICIENT MERIT TO WARRANT CANCELLATION OF THE CONTRACT YOUR PROTEST WAS DENIED ON MARCH 1, 1966, WHEREUPON YOU INITIATED THE PRESENT ACTION.

IT IS YOUR POSITION THAT THE CONTRACT WITH CEC IS VOID AB INITIO, OR IT SHOULD NOW BE VOIDED FOR THE FOLLOWING THREE REASONS.

1. THE AWARD TO CEC WAS MADE AFTER ITS BID HAD EXPIRED.

2. THE PROCUREMENT WAS CONTRARY TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 5-103 BECAUSE YOUR OSCILLOGRAPH IS LISTED ON A FEDERAL SUPPLY SCHEDULE.

3. CEC'S BID PROVIDED FOR A CHANGE IN THE SPECIFICATIONS WITHOUT NOTICE TO THE GOVERNMENT.

YOUR CONTENTION THAT THE AWARD WAS MADE ON AN EXPIRED BID IS NOT SUPPORTED BY THE FACTS. THE ADMINISTRATIVE RECORD INDICATES THAT BECAUSE OF THE LENGTH OF TIME INVOLVED IN EVALUATING AND APPROVING CEC'S OFFERED ITEM THE GOVERNMENT PERIODICALLY REQUESTED BID EXTENSIONS, TO WHICH CEC READILY AGREED. THE LAST EXTENSION OF CEC'S BID WAS FOR TWENTY DAYS, UNTIL OCTOBER 25, 1965, AS EVIDENCED BY THEIR TELEGRAM OF OCTOBER 4, 1965, WHEREAS THE CONTRACT WAS AWARDED ON OCTOBER 19, 1965.

YOUR ASSERTION THAT ASPR 5-103 PROHIBITS SOLICITATION OF THE SUBJECT EQUIPMENT BECAUSE YOUR OSCILLOGRAPH IS LISTED ON A FEDERAL SUPPLY SCHEDULE COMPLETELY FAILS TO CONSIDER THAT THE PROHIBITION APPLIES ONLY TO ITEMS WHICH HAVE BEEN DECENTRALIZED, IN ADDITION TO BEING LISTED ON THE SCHEDULE. SINCE THE ITEM BEING PURCHASED HERE IS A CENTRALLY PROCURED ITEM THE CITED ASPR PROVISION IS INAPPLICABLE.

WE AGREE WITH YOUR THIRD CONTENTION THAT CEC'S BID WAS NONRESPONSIVE BECAUSE THE CATALOG SUBMITTED AS PART OF ITS BID INCLUDED THE STATEMENT THAT "ALL SPECIFICATIONS (ARE) SUBJECT TO CHANGE WITHOUT NOTICE.' THE ONLY LOGICAL INTERPRETATION OF THIS STATEMENT IS THAT IT REASONABLY CREATES A DOUBT CONCERNING CEC'S INTENTIONS TO FURNISH EQUIPMENT MEETING THE REQUIREMENTS OF THE INVITATION. WHILE THE DATA APPEARING IN THE CATALOG MIGHT POSSIBLY CONFORM TO THE ADVERTISED REQUIREMENTS, CEC, IN EFFECT, BID ON THE BASIS THAT IT COULD, AT ITS OPTION, MATERIALLY DEVIATE AFTER AWARD FROM THOSE REQUIREMENTS. SEE 30 COMP. GEN. 179. HOWEVER, IT SHOULD BE POINTED OUT THAT FOR THE SAME REASON YOUR BID WAS ALSO NONRESPONSIVE. A STATEMENT SIMILAR TO THE ONE IN CEC'S CATALOG IS TO BE FOUND AT THE BOTTOM OF PAGE NO. 21 OF YOUR CATALOG, WHICH YOU INCLUDED AS A PART OF YOUR BID.

IT FOLLOWS THAT THE CONTRACT IN THE PRESENT CASE SHOULD NOT HAVE BEEN AWARDED TO CEC. HOWEVER, SINCE IT IS ADMINISTRATIVELY REPORTED THAT AS OF MAY 9, 1966, THE CONTRACT WAS COMPLETED WE ARE UNABLE TO TAKE ANY CORRECTIVE ACTION. WE ARE, HOWEVER, ADVISING THE ADMINISTRATIVE OFFICE THAT IT SHOULD TAKE APPROPRIATE ACTION TO PRECLUDE A REPETITION OF THIS SITUATION.