B-164658, AUG. 29, 1968

B-164658: Aug 29, 1968

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TO PRECISION INSTRUMENT COMPANY: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. THREE BIDS WERE RECEIVED AND OPENED ON MAY 9. YOU WERE THE LOWEST BIDDER AT $29. READS AS FOLLOWS: "/1) THE GOVERNMENT SHALL HAVE UNLIMITED RIGHTS IN: (V) MANUALS OR INSTRUCTIONAL MATERIALS PREPARED FOR INSTALLATION. " YOUR BID WAS ACCOMPANIED BY A LETTER DATED MAY 7. WHICH INCLUDED THE FOLLOWING LANGUAGE: "TERMS AND CONDITIONS OF SALE THE FORMAT AND CONTENT OF MANUALS AND DOCUMENTATION PROVIDED IN ACCORDANCE WITH PARAGRAPH 7.0 WILL BE IN ACCORDANCE WITH PRECISION INSTRUMENT COMPANY STANDARD COMMERCIAL PRACTICE. ALL INFORMATION REQUESTED BY YOUR REFERENCED SOLICITATION WILL BE PROVIDED.

B-164658, AUG. 29, 1968

TO PRECISION INSTRUMENT COMPANY:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. F19650-68-B-1160, BY THE ELECTRONIC SYSTEMS DIVISION, AIR FORCE SYSTEMS COMMAND, BEDFORD, MASSACHUSETTS.

THE SUBJECT INVITATION, ISSUED ON APRIL 9, 1968, CALLED FOR BIDS ON A SPECIAL TAPE RECORDER SYSTEM, REELS OF BLANK TAPE, AND OPERATING AND MAINTENANCE MANUALS. THREE BIDS WERE RECEIVED AND OPENED ON MAY 9, 1968, AND YOU WERE THE LOWEST BIDDER AT $29,700. HOWEVER, THE CONTRACTING OFFICER DETERMINED YOUR BID NONRESPONSIVE AND PROPOSES TO MAKE AWARD TO THE NEXT LOWEST RESPONSIVE BIDDER, IRA SYSTEMS, AT A PRICE OF $38,549.

THE INVITATION INCLUDED ARTICLE 37, RIGHTS IN TECHNICAL DATA, AS PRESCRIBED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 9-203 (B), WHICH, IN PERTINENT PART, READS AS FOLLOWS:

"/1) THE GOVERNMENT SHALL HAVE UNLIMITED RIGHTS IN:

(V) MANUALS OR INSTRUCTIONAL MATERIALS PREPARED FOR INSTALLATION, OPERATION, MAINTENANCE OR TRAINING PURPOSES; " YOUR BID WAS ACCOMPANIED BY A LETTER DATED MAY 7, 1968, WHICH INCLUDED THE FOLLOWING LANGUAGE: "TERMS AND CONDITIONS OF SALE THE FORMAT AND CONTENT OF MANUALS AND DOCUMENTATION PROVIDED IN ACCORDANCE WITH PARAGRAPH 7.0 WILL BE IN ACCORDANCE WITH PRECISION INSTRUMENT COMPANY STANDARD COMMERCIAL PRACTICE. ALL INFORMATION REQUESTED BY YOUR REFERENCED SOLICITATION WILL BE PROVIDED. "DATA AND DOCUMENTATION RELATED TO PRECISION INSTRUMENT COMPANY, PI-1207 RECORDER, AND RAYTHEON COMPUTER COMPANY MODULE CASE MINIVERTER, MULTIPLEXER, SEQUENCER AND ASSOCIATED ITEMS PURCHASED FROM RAYTHEON COMPUTER COMPANY, WILL BE SUPPLIED WITH -LIMITED RIGHTS' AS DEFINED BY ASPR, SECTION 9-203 (B).' THE CONTRACTING OFFICER VIEWED THIS LANGUAGE AS AN EXCEPTION TO THE PROVISION FOR UNLIMITED RIGHTS IN THE OPERATING AND MAINTENANCE MANUALS REQUIRED TO BE FURNISHED UNDER PARAGRAPH 7.0 OF THE SPECIFICATIONS AND, THEREFORE, REJECTED YOUR BID AS NONRESPONSIVE.

IN TELEGRAMS DATED MAY 29 AND JUNE 12, 1968, TO THE PROCURING ACTIVITY, CONFIRMING TELEPHONE CONVERSATIONS WITH THE CONTRACTING OFFICER, YOU CONTEND THAT THERE WAS NO INTENT TO LIMIT THE GOVERNMENT'S RIGHTS IN THE MANUALS AND THAT THE LETTER OF MAY 7, 1968, ACCOMPANYING THE BID WAS NOT A PART THEREOF. IN YOUR LETTER TO OUR OFFICE, IN ADDITION TO THE ABOVE ARGUMENTS, YOU ALSO CONTEND THAT NOTHING IN THE LETTER "STRICTLY LIMITED THE REQUIRED PROVISIONS OF THE IFB AND THUS DID NOT CONSTITUTE GROUNDS FOR REJECTION ...'

WE ARE OF THE VIEW THAT THE LETTER WHICH ACCOMPANIED YOUR BID, AND WAS SIGNED BY THE SAME PERSON SIGNING THE BID, MUST BE REGARDED AS A PART OF YOUR BID. 36 COMP. GEN. 535. WHILE IT MAY NOT HAVE BEEN YOUR INTENTION TO QUALIFY YOUR BID, THE LANGUAGE HERE IN QUESTION MUST BE VIEWED AS EXPRESSING THE CONDITIONS AND LIMITATIONS THE WORDS THEMSELVES CONVEY. 160567, FEBRUARY 8, 1967. THE LANGUAGE IN YOUR LETTER CLEARLY TOOK EXCEPTION TO THE REQUIREMENT FOR "UNLIMITED" RIGHTS IN THE OPERATING AND MAINTENANCE MANUALS, WHICH MUST NECESSARILY INCLUDE DATA AS DEFINED IN ASPR, SECTION 9-203 (B), CLAUSE 37 (A) (1), CONSISTING OF DRAWINGS AND TECHNICAL WRITING. IN THESE CIRCUMSTANCES, ACCEPTANCE OF YOUR BID WOULD BE CONTRARY TO THE RULE THAT THE CONTRACT AWARDED TO THE SUCCESSFUL BIDDER MUST BE THE CONTRACT OFFERED TO ALL BIDDERS. SEE UNITED STATES V BROOKRIDGE FARMS, 111 F.2D 461; 38 COMP. GEN. 508, 510.

ACCORDINGLY, WE MUST CONCLUDE THAT REJECTION OF YOUR BID WAS PROPER.