B-165513, JAN. 8, 1969

B-165513, JAN. 8, 1969

TO FTS CORPORATION:

REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 30 AND NOVEMBER 27, 1968, WITH ENCLOSURES, PROTESTING THE INTENTION OF THE NAVY PURCHASING OFFICE, WASHINGTON, D.C., TO AWARD A CONTRACT UNDER INVITATION FOR BIDS (IFB) N00019-69-B-0024 TO MARTIN MARIETTA COMPANY FOR 516 SETS OF WALLEYE WEAPONS WINGS, MK 3 MOD 0 AND FINS, MK 23 MOD 1. YOU CONTEND THAT THE AWARD SHOULD BE DIVIDED BETWEEN MARTIN MARIETTA COMPANY FOR WINGS ONLY, AND FTS CORPORATION FOR FINS, SINCE YOUR BID PRICE ON THE FINS WAS LOWER THAN MARTIN MARIETTA-S.

THE SUBJECT IFB CALLED FOR BIDS ON SIX ITEMS, OF WHICH ITEMS 1, 3, AND 5 WERE FOR SETS OF WINGS AND ITEMS 2, 4, AND 6 WERE FOR SETS OF FINS. EACH SET WAS COMPOSED OF FOUR WINGS OR FINS. THE QUANTITIES FOR ITEMS 1-2, 3- 4, 5-6, WERE SETS OF 341, 150, AND 25, RESPECTIVELY.

THE TWO LOWEST OF THE SIX BIDS RECEIVED IN RESPONSE TO THE INVITATION WERE AS FOLLOWS: ITEM NO.:1 2 3 4 5 6 DESCRIPTION: WINGS FINS WINGS FINS WINGS FINS ITEM QUANTITY: 341 341 150 150 25 25 TOTAL UNIT PRICED: SET SET

SET SET SET SET FOR 516

OF 4 OF 4 OF 4 OF 4 OF 4 OF 4 SETS OF 4 -- ------------------------------ ----------------------------------- FTS CORP. 371.40 194.68 371.40 194.68 371.40 194.68 292,097.28 MARTIN 249.00 246.00 249.00 246.00 249.00 246.00 255,420.00 MARIETTA CO.

AS THE ABOVE BIDS DISCLOSE, FTS CORPORATION IS THE LOW BIDDER FOR ITEMS 2, 4, AND 6 FINS, WHILE MARTIN MARIETTA CORPORATION IS THE LOW BIDDER FOR ITEMS 1, 3, AND 5 WINGS AND FOR THE TOTAL OF ALL ITEMS.

PARAGRAPH 10 (C) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, STANDARD FORM 33A, JULY 1966, ATTACHED TO THIS IFB, PROVIDED: "/C) THE GOVERNMENT MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY OFFER, UNLESS THE OFFEROR QUALIFIES HIS OFFER BY SPECIFIC LIMITATIONS. UNLESS OTHERWISE PROVIDED IN THE SCHEDULE, OFFERS MAY BE SUBMITTED FOR ANY QUANTITIES LESS THAN THOSE SPECIFIED, AND THE GOVERNMENT RESERVES THE RIGHT TO MAKE AN AWARD ON ANY ITEM FOR A QUANTITY LESS THAN THE QUANTITY OFFERED AT THE UNIT PRICES OFFERED UNLESS THE OFFEROR SPECIFIES OTHERWISE IN HIS OFFER.' SCHEDULE SECTION A OF THE SOLICITATION, HOWEVER, PROVIDED: "NOTWITHSTANDING ANY STATEMENT IN PARAGRAPH 10 (C) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS (STANDARD FORM 33A) TO THE CONTRARY, OFFERORS WHICH SUBMIT PRICES FOR ANY QUANTITIES LESS THAN THOSE CALLED FOR IN THE SCHEDULE WILL BE REJECTED AS NON-RESPONSIVE. OFFEROR MUST PLACE AN ENTRY IN THE UNIT PRICE AND THE TOTAL PRICE COLUMNS FOR EACH ITEM SET ...'

YOU MAINTAIN THAT PARAGRAPH 10 (C) PERMITS THE GOVERNMENT TO ACCEPT QUANTITIES LESS THAN THE QUANTITIES OFFERED. YOU ALSO STATE THAT THE SUBJECT IFB DID NOT SPECIFY WHETHER A MULTIPLE OR SINGLE AWARD WOULD BE MADE FOR THE WINGS AND FINS, AND THAT OUR DECISION OF NOVEMBER 9, 1967, B- 162092, GOVERNS YOUR PROTEST. LASTLY, YOU MAINTAIN THAT THE WINGS AND FINS ARE STANDARD TYPE MACHINE PARTS AND THERE IS NO TECHNICAL NECESSITY TO AWARD THE CONTRACT TO ONE MANUFACTURER.

THE NAVY AGREES WITH YOUR CONTENTION THAT THERE IS NO TECHNICAL NECESSITY THAT A SINGLE AWARD BE MADE AND THAT A MULTIPLE AWARD IN THIS CASE WOULD RESULT IN AN APPARENT SAVING OF $26,481.12. HOWEVER, THE NAVY REPORTS AS FOLLOWS: "FIRST, AS SUBMITTED, FTS CORPORATION'S BID CONTAINED NO QUALIFICATION LIMITING THE GOVERNMENT'S RIGHT SET FORTH IN THE FIRST SENTENCE OF THE STANDARD FORM 33A SOLICITATION INSTRUCTION 10 (C) TO ACCEPT ANY ITEM OR GROUP OF ITEMS; THUS THE GOVERNMENT QUITE PROPERLY COULD AWARD A CONTRACT FOR ITEMS 2, 4 AND 6 TO FTS. THE MARTIN MARIETTA CORPORATION, HOWEVER, DID ATTACH A COVERING LETTER TO ITS BID WHICH STATED: -THE MARTIN MARIETTA CORPORATION IS PLEASED TO SUBMIT THE ATTACHED FIRM FIXED PRICE BID ... TO PRODUCE 516 SETS OF WALLEYE WINGS AND FINS WITHIN THE TIME FRAME ALLOCATED AND IN COMPLETE RESPONSE TO THE SUBJECT INVITATION FOR BID.- THUS THE GOVERNMENT CANNOT AWARD FEWER THAN ALL SIX ITEMS TO MARTIN. THIS CIRCUMSTANCE, THEREFORE, DOES LEAVE THE GOVERNMENT WITH THE ALTERNATIVE OF AWARDING ALL SIX ITEMS TO THE FTS CORPORATION, WHICH IS SECOND LOW BIDDER FOR THE WINGS, ITEMS 1, 3 AND 5; BUT IN THAT EVENT THE GOVERNMENT WOULD HAVE TO PAY FTS THE PRICE OF $292,097.28 -- A PRICE PREMIUM OF $36,677.28 IN EXCESS OF MARTIN'S AGGREGATE BID. "SECONDLY, HAD MARTIN NOT SUBMITTED A QUALIFIED OFFER, NAVAL AIR SYSTEMS COMMAND CLEARLY INTENDED TO MAKE AN AGGREGATE AWARD TO ONE CONTRACTOR FOR ALL SIX ITEMS SOLICITED. THIS INTENTION IS EVIDENCED IN FIVE WAYS: FIRST, SECTION H OF THE SOLICITATION USED THE TERM -AWARD IN THE SINGULAR; SECOND, ASPR 2-201 (B) (XIX) PROVIDES FOR THE INCLUSION OF A SOLICITATION PROVISION INFORMING BIDDERS THAT A $50 ADMINISTRATIVE COST WILL BE CONSIDERED BY THE CONTRACTING OFFICER IN DETERMINING THE ADVANTAGES TO THE GOVERNMENT OF MAKING MULTIPLE AWARDS. SUCH PROVISION WAS OMITTED FROM THIS SOLICITATION; THIRD, ALL BIDDERS WERE REQUIRED TO BID ON ALL SIX ITEMS -- AND THIS SOLICITATION REQUIREMENT HAS BEEN HELD BY THE COMPTROLLER GENERAL TO SUFFICIENTLY INDICATE THE GOVERNMENT'S INTENTION TO MAKE AN AGGREGATE WARD; AND FOURTH, PURSUANT TO THE GOVERNMENT FURNISHED PROPERTY PROVISION OF THIS SOLICITATION, THE GOVERNMENT IS TO FURNISH EXTERIOR SHIPPING CONTAINERS TO THE SUCCESSFUL BIDDER. BOTH FTS CORPORATION AND THE MARTIN MARIETTA CORPORATION, HAVING PRODUCED AND PACKAGED THE ITEMS BEING PROCURED, WELL KNOW THAT SUCH EXTERIOR CONTAINERS ARE CONSTRUCTED SO AS TO ENCLOSE FOUR SETS OF WALLEYE WEAPON WINGS AND FOUR SETS OF FINS IN THE HAIR-PACK APERTURES. LASTLY, THIS INTENTION WAS MANIFESTED IN THE IFB AMENDMENT, WHICH, INTER ALIA, ADDED THE NOTE (FOLLOWING THE SIX ITEMS IN SECTION A) STATING: -NOTE: EACH SET OF WINGS AND FINS, ITEMS 1 THROUGH 6, CONTAINS FOUR EACH WINGS, MK 3 MOD 0, AND FOUR EACH FINS, MK 23 MOD 1.-"

GENERALLY, PARAGRAPH 10 (C) OF THE SUBJECT IFB HAS BEEN INTERPRETED AS PERMITTING AWARDS TO BE MADE TO ONE OR MORE BIDDERS, DEPENDING UPON WHICH IS MORE IN THE INTEREST OF THE GOVERNMENT. SEE B-154644, SEPTEMBER 28, 1964, B-145859, MAY 22, 1961. HOWEVER, NOTWITHSTANDING PARAGRAPH 10 (C), THE USE OF "AWARD" ,"THE LOWEST BIDDER" , AND "THE CONTRACT" BY THE AGENCY IN THE BIDDING SCHEDULE HAS BEEN CONSTRUED AS INDICATING AN INTENTION TO AWARD THE CONTRACT TO ONLY ONE BIDDER. SEE B-145859, MAY 22, 1961, B- 164830, DECEMBER 5, 1968.

IN THE INSTANT CASE, MARTIN MARIETTA COMPANY IN A LETTER FORWARDING ITS BID REFERRED TO IT AS A "FIRM FIXED PRICE BID * * * TO PRODUCE 516 SETS OF WINGS AND FINS.' WHILE WE HAVE SOME QUESTION AS TO THE CORRECTNESS OF THE NAVY'S INTERPRETATION OF THIS LANGUAGE AS A CLEAR QUALIFICATION OR DENIAL OF THE NAVY'S RIGHT TO AWARD ANYTHING LESS THAN THE TOTAL QUANTITY OF BOTH WINGS AND FINS, WE DO NOT BELIEVE IT NECESSARY TO DECIDE THIS POINT. BELIEVE THAT ADDITIONAL INDICATION OF THE NAVY'S INTENTION TO AWARD THE CONTRACT TO ONE BIDDER IS FOUND IN THE REQUIREMENT THAT OFFERS OF ANY QUANTITIES LESS THAN CALLED FOR IN THE SCHEDULE WOULD BE REJECTED AS NONRESPONSIVE. THE BID SCHEDULE ALSO STATED THAT "AWARD" WILL BE MADE "TO THE SUCCESSFUL LOW BIDDER" , WHICH RESULTS "IN A BINDING CONTRACT" UPON THE MAILING OF "A WRITTEN CONTRACT.'

FINALLY, THE SUBJECT IFB STATED THAT THE NAVY WOULD FURNISH EXTERIOR SHIPPING CONTAINERS TO THE SUCCESSFUL BIDDER. THE "WINGS AND FINS CONTAINER MK 425 MOD 0" , AS STATED IN WS-3186B, DATED MAY 31, 1961, NAVAL AIR SYSTEMS COMMAND SPECIFICATION, IS CONSTRUCTED TO HOLD FOUR SETS OF WINGS AND FOUR SETS OF FINS ONLY. THE CONTAINER CANNOT HOLD EIGHT WINGS AND EIGHT FINS. THE TOTAL COST OF THESE CONTAINERS IS ALMOST $71,000. A MULTIPLE AWARD WERE MADE BY THE NAVY, IT WOULD BE REQUIRED TO PROCURE ADDITIONAL CONTAINERS FOR 516 SETS OF WINGS OR 516 SETS OF FINS, THE COST OF WHICH WOULD MORE THAN OFFSET THE SAVING ON THE COST OF THE ITEM. VIEW OF THIS FACT, IT MUST BE CONSIDERED AS CLEAR THAT THE AGENCY INTENDED TO AWARD THE CONTRACT TO ONLY ONE BIDDER FOR BOTH WINGS AND FINS, AND SINCE BOTH BIDDERS ARE REPORTED TO HAVE HAD PRIOR EXPERIENCE WITH THESE WINGS AND FINS WE BELIEVE THAT THE PROVISION FOR GOVERNMENT FURNISHED CONTAINERS SHOULD HAVE MADE THEM AWARE OF SUCH INTENTION.

IN THE CIRCUMSTANCES, WE FIND NO BASIS FOR LEGAL OBJECTION TO AWARD OF THE CONTRACT TO MARTIN MARIETTA CORPORATION FOR THE 516 SETS OF WALLEYE WINGS AND FINS. WE ARE ADVISING NAVY, HOWEVER, THAT IN FUTURE PROCUREMENTS PROSPECTIVE BIDDERS SHOULD BE MORE CLEARLY ADVISED AS TO THE BASIS OF EVALUATION AND AWARD.