B-165715, APR. 1, 1969

B-165715: Apr 1, 1969

Additional Materials:

Contact:

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

 

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

INC.: REFERENCE IS MADE TO YOUR LETTER OF MARCH 5. YOUR REQUEST FOR RECONSIDERATION IS PREDICATED ON THE BASIS THAT OUR OFFICE FAILED TO CONSIDER ONE OF THE PRIMARY ISSUES ADVANCED BY YOU IN SUPPORT OF YOUR PROTEST AND THAT THE DECISION WAS BASED. YOU STATE THAT OUR DECISION OF FEBRUARY 27 DID NOT RESPOND TO THE ISSUE OF WHETHER THERE ARE. THAT THE INVITATION IS FATALLY DEFECTIVE BECAUSE IT FAILED TO MEET THE REQUIREMENTS OF AN INDEFINITE QUANTITY PROCUREMENT AS ESTABLISHED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-201 (A) (VII) AND (B) (II) AND (VI). THAT ASPR 3-409.3 REQUIRES THAT IF THE PROCUREMENT IS NOT FOR A DEFINITE QUANTITY OF SPECIFIC SUPPLIES THEN A MINIMUM. THE GOVERNMENT WAS OBLIGATED TO PURCHASE A MINIMUM QUANTITY OF 963 UNITS.

B-165715, APR. 1, 1969

TO AMERICAN AIR FILTER COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 5, 1969, REQUESTING RECONSIDERATION OF OUR DECISION B-165715, FEBRUARY 27, 1969 (48 COMP. GEN. ----), WHEREIN WE DENIED YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ANY BIDDER UNDER INVITATION FOR BIDS DSA-400-69-B 2420,ISSUED BY THE DEFENSE SUPPLY AGENCY, DEFENSE GENERAL SUPPLY CENTER. BY LETTER OF THE SAME DATE, REFERENCING YOUR DECISION, WE ALSO DENIED THE PROTEST OF CAL- WEST ELECTRIC, INC., AGAINST AN AWARD TO ANY OTHER BIDDER UNDER THAT SOLICITATION. YOUR REQUEST FOR RECONSIDERATION IS PREDICATED ON THE BASIS THAT OUR OFFICE FAILED TO CONSIDER ONE OF THE PRIMARY ISSUES ADVANCED BY YOU IN SUPPORT OF YOUR PROTEST AND THAT THE DECISION WAS BASED, AT LEAST IN PART, ON A MISINTERPRETATION AS TO THE APPLICABILITY OF SEVERAL PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) CITED IN YOUR LETTER OF FEBRUARY 21, 1969.

SPECIFICALLY, YOU STATE THAT OUR DECISION OF FEBRUARY 27 DID NOT RESPOND TO THE ISSUE OF WHETHER THERE ARE, IN FACT, TWO ITEMS INVOLVED IN THE PRESENT PROCUREMENT. YOUR LETTER OF FEBRUARY 21, SUBMITTED HERE SUBSEQUENT TO A MEETING ATTENDED BY YOU AND REPRESENTATIVES OF OUR OFFICE, CONTENDS, IN THIS RESPECT, THAT THE INVITATION IS FATALLY DEFECTIVE BECAUSE IT FAILED TO MEET THE REQUIREMENTS OF AN INDEFINITE QUANTITY PROCUREMENT AS ESTABLISHED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-201 (A) (VII) AND (B) (II) AND (VI). YOU NOTED, ALSO, THAT ASPR 3-409.3 REQUIRES THAT IF THE PROCUREMENT IS NOT FOR A DEFINITE QUANTITY OF SPECIFIC SUPPLIES THEN A MINIMUM, BUT MORE THAN A NOMINAL, QUANTITY MUST BE ORDERED BY THE GOVERNMENT DURING THE SPECIFIED CONTRACT PERIOD.

THE SOLICITATION REQUIRED BIDDERS TO SUBMIT A UNIT PRICE FOR THE ADVERTISED FLOODLIGHT SETS WITH LEVEL A PACK (OVERSEAS) AND A SEPARATE UNIT PRICE FOR LEVEL C PACK (DOMESTIC). UNDER THE SOLICITATION, THE GOVERNMENT WAS OBLIGATED TO PURCHASE A MINIMUM QUANTITY OF 963 UNITS. BIDDERS WERE ADVISED THAT AN AGGREGATE PRICE WOULD BE COMPUTED, FOR PURPOSES OF DETERMINING THE LOWEST BID FOR AWARD, IN PART, ON THE ASSUMPTION THAT 50 PERCENT OF THE MINIMUM QUANTITY OF 963 UNITS WOULD BE LEVEL A PACK AND 50 PERCENT LEVEL C PACK.

AS STATED ON PAGE 3 OF OUR DECISION OF FEBRUARY 27, TO YOU, THE UNDERLYING PURPOSE OF THE PROCURING AGENCY'S SOLICITATION OF BID PRICES FOR THE TWO LEVEL PACKS "WAS TO SEPARATELY IDENTIFY THE COST OF LEVEL A PACK FROM THE ITEM PRICE WHETHER THE ITEM WAS ULTIMATELY INTENDED TO BE PACKED LEVEL C OR LEVEL A.'

THE REQUIREMENT FOR TWO BID PRICES WAS TO ESTABLISH THE PER UNIT TOTAL COST OF THE END ITEM FOR THE MINIMUM QUANTITY OF 963 UNITS, PLUS WHATEVER GREATER QUANTITY MAY BE ULTIMATELY PURCHASED UNDER THE TERMS OF THE CONTRACT. WE FURTHER HELD THAT, IN OUR OPINION, THE REQUIREMENTS FOR AN INDEFINITE QUANTITY CONTRACT, AS SET FORTH IN THE REFERENCED REGULATIONS, WERE COMPLIED WITH BY THE REQUIREMENT IN THE SOLICITATION THAT THE GOVERNMENT PURCHASE A MINIMUM QUANTITY OF 963 UNITS. IN OTHER WORDS, UNDER THE TERMS OF THE RESULTING CONTRACT, THE GOVERNMENT IS OBLIGATED TO PURCHASE FROM THE CONTRACTOR THE MINIMUM QUANTITY OF 963 FLOODLIGHT SETS AT THE UNIT PRICE APPLICABLE TO THE LEVEL OF PACKING DESIRED. WHILE THE LEVEL C OR LEVEL A PACK POSSIBLY MIGHT BE TERMED A "SEPARATE ITEM" FROM EACH FLOODLIGHT SET JUST AS THOUGH ANY OTHER PART OF THAT SET IS SEPARATE OR DISTINCT FROM THE SET AS A WHOLE, THE FACT REMAINS THAT THE CONTRACT CONTEMPLATES THE PURCHASE OF A COMPLETE UNIT READY FOR SHIPMENT TO A DESTINATION TO BE SPECIFIED BY THE GOVERNMENT, AND AN INTEGRAL PART OF THAT COMPLETE UNIT IS THE LEVEL OF PACK ORDERED BY THE GOVERNMENT AT THE PROPER UNIT PRICE.

YOUR STATEMENT THAT OUR OFFICE MISINTERPRETED THE APPLICABILITY OF ASPR 2 -201 (A) AND (B) (II) IS WITHOUT MERIT. AS TO ASPR 2-201 (A) WE ASSUME THAT YOU ARE MAKING REFERENCE TO THE APPLICABILITY OF SUBPARAGRAPH (VII), MENTIONED IN YOUR LETTER OF FEBRUARY 21, INASMUCH AS ASPR 2-201 (A) COVERS A TOTAL OF 42 DIFFERENT REQUIREMENTS FOR INFORMATION IN GOVERNMENT INVITATIONS AND RUNS FOR FIVE AND ONE-HALF PAGES IN THE ASPR PUBLICATION. THE CITED REGULATIONS PROVIDE, IN PERTINENT PART, AS FOLLOWS: "2-201 (A) FOR SUPPLY AND SERVICE CONTRACTS, INCLUDING CONSTRUCTION, INVITATION FOR BIDS SHALL CONTAIN THE FOLLOWING INFORMATION IF APPLICABLE TO THE PROCUREMENT INVOLVED.

* * * * * * * "/VII) A DESCRIPTION OF SUPPLIES OR SERVICES TO BE FURNISHED UNDER EACH ITEM, IN SUFFICIENT DETAIL TO PERMIT FULL AND FREE COMPETITION. * * * "2 201 (B) FOR SUPPLY AND SERVICE CONTRACT EXCLUDING CONSTRUCTION, THE INVITATION FOR BIDS SHALL CONTAIN THE FOLLOWING IN ADDITION TO THE INFORMATION REQUIRED BY (A) ABOVE IF APPLICABLE TO THE PROCUREMENT INVOLVED.

* * * * * * * "/II) THE QUANTITY OF SUPPLIES OR SERVICES TO BE SUPPLIED UNDER EACH ITEM AND ANY PROVISION FOR EXTENT OF QUANTITY VARIATION (SEE 1- 325).'

BECAUSE ASPR 2-201 (A) (VII) REQUIRES THAT EACH ARTICLE OR SERVICE TO BE PROVIDED UNDER THE PROCUREMENT BE DESCRIBED IN ADEQUATE DETAIL TO INSURE THE REQUISITE DEGREE OF COMPETITION, IT IS OBVIOUSLY APPLICABLE TO THE PROCUREMENT. THAT ASPR REQUIREMENT WAS CONSIDERED IN OUR REVIEW OF THE PROCUREMENT AS EVIDENCED BY THE FACT THAT WE HELD THAT THE SOLICITATION WAS LEGALLY SUFFICIENT. HOWEVER, WE DID NOT MAKE SPECIFIC REFERENCE TO ASPR 2-201 (A) (VII) IN OUR DECISION OF FEBRUARY 27 BECAUSE IT BORE NO SIGNIFICANT RELATION TO BASIS OF THE PROTEST AS ADVANCED, I.E., THE QUANTUM OF THE SUPPLIES COVERED BY THE SOLICITATION. IN THIS RESPECT, AND SINCE THE REGULATION HAS REFERENCE TO THE SPECIFICATION DETAILS OF A SOLICITATION AS DISTINGUISHED FROM THE QUANTITY OF SUPPLIES DESIRED, IT IS INAPPLICABLE TO YOUR PROTEST.

ASPR 2-201 (B) (II), REQUIRING THAT THE QUANTITY OF SUPPLIES OR SERVICES TO BE PROVIDED SHALL BE STATED, WAS, AS WE HELD ON PAGE 3 OF OUR DECISION, CLEARLY INAPPLICABLE TO AN INDEFINITE QUANTITY CONTRACT SUCH AS INVOLVED IN THE PRESENT PROTEST. IN FACT, ASPR 1-325, REFERENCED IN SUBPARAGRAPH (B) (II), ADDRESSES ITSELF TO DEFINITE QUANTITY PROCUREMENTS AND PROVIDES THAT ANY PERMISSIBLE OVERRUN OR UNDERRUN DESIGNED TO PROTECT THE CONTRACTOR BY REASON OF CONDITIONS OF LOADING, SHIPPING OR PACKING OR ALLOWANCES ON MANUFACTURING PROCESSES MAY NOT EXCEED PLUS OR MINUS 10 PERCENT.

IN VIEW OF THE FACT THAT NOTHING HAS BEEN PRESENTED IN ADDITION TO THAT STATED IN YOUR LETTER OF FEBRUARY 21 -- WHICH WAS FULLY CONSIDERED IN OUR DECISION -- YOU ARE ADVISED THAT OUR DECISION OF FEBRUARY 27, 1969, IS AFFIRMED.