B-166185, APR. 30, 1969

B-166185: Apr 30, 1969

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INC.: REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 13. WAS ISSUED ON OCTOBER 2. FOUR BIDS WERE RECEIVED AND WERE OPENED ON THE SPECIFIED DATE. THE NEXT LOW BID WAS SUBMITTED BY PENINSULA AT A PRICE OF $46. YOUR BID WAS DETERMINED TO BE NONRESPONSIVE TO THE SOLICITATION AND WAS THEREFORE REJECTED. THE INVITATION WAS CANCELED. THE PROCUREMENT WAS THEN READVERTISED ON DECEMBER 16. F19650-69-B-0880 AND BID OPENING WAS SET FOR JANUARY 3. 250 WAS THE ONLY ONE RECEIVED. A BID ENVELOPE WAS RECEIVED FROM PENINSULA VIA AIRMAIL. IT WAS DETERMINED THAT THE BID ENVELOPE SHOULD HAVE ARRIVED IN TIME FOR OPENING ON JANUARY 3 BUT FOR THE DELAY IN THE MAILS. THE ACCEPTABLE LATE BID OF PENINSULA WAS OPENED AND IT WAS FOUND THAT IT HAD SUBMITTED THE LOWEST BID IN THE AMOUNT OF $34.

B-166185, APR. 30, 1969

TO RF SYSTEMS, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 13, 1969, AND LETTER OF FEBRUARY 21, 1969, PROTESTING THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. F19650-69-B-0451 AND AWARD OF CONTRACT NO. F19650-69-C-0459 FOR A MOTOR-DRIVEN ANTENNA TO PENINSULA STEEL PRODUCTS AND EQUIPMENT COMPANY (PENINSULA) UNDER INVITATION NO. F19650-69-B 0880.

THE INITIAL INVITATION FOR BIDS, NO. F19650-69-B-0451, A TOTAL SMALL BUSINESS SET-ASIDE, WAS ISSUED ON OCTOBER 2, 1968, SETTING OCTOBER 29, 1968, AS THE DATE FOR THE OPENING OF BIDS. IN RESPONSE TO THE SOLICITATION, FOUR BIDS WERE RECEIVED AND WERE OPENED ON THE SPECIFIED DATE. YOUR COMPANY SUBMITTED THE LOW BID IN THE AMOUNT OF $34,300. THE NEXT LOW BID WAS SUBMITTED BY PENINSULA AT A PRICE OF $46,519. YOU ACCOMPANIED YOUR BID WITH A LETTER WHEREIN YOU OFFERED ONLY LIMITED RIGHTS IN TECHNICAL DATA, TOOK EXCEPTIONS TO THE RENEGOTIATION ACT AS TO CERTAIN ITEMS ,NORMALLY SOLD BY R F SYSTEMS" AND CONDITIONED THE BID TO THE EXTENT THAT IT CONFLICTED WITH THE DEFAULT CLAUSE. SUBSEQUENTLY, ON NOVEMBER 21, 1969, YOUR BID WAS DETERMINED TO BE NONRESPONSIVE TO THE SOLICITATION AND WAS THEREFORE REJECTED. IN THIS RESPECT, PARAGRAPH 2-404.2 (D) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) STATES IN PERTINENT PART:

"/D) ORDINARILY, A BID SHOULD BE REJECTED WHERE THE BIDDER ATTEMPTS TO IMPOSE CONDITIONS WHICH WOULD MODIFY REQUIREMENTS OF THE INVITATION FOR BIDS OR LIMIT HIS LIABILITY TO THE GOVERNMENT, SINCE TO ALLOW THE BIDDER TO IMPOSE SUCH CONDITIONS WOULD BE PREJUDICIAL TO OTHER BIDDERS. * * "

THE THREE OTHER BIDDERS SUBMITTED UNREASONABLY HIGH BIDS. HENCE, PURSUANT TO ASPR 2-404.1 (B) (VI), THE INVITATION WAS CANCELED. SEE36 COMP. GEN. 364. THE PROCUREMENT WAS THEN READVERTISED ON DECEMBER 16, 1968, UNDER SOLICITATION NO. F19650-69-B-0880 AND BID OPENING WAS SET FOR JANUARY 3, 1969. AT THE TIME OF BID OPENING, YOUR BID IN THE AMOUNT OF $36,250 WAS THE ONLY ONE RECEIVED. HOWEVER, ON JANUARY 6, 1969, A BID ENVELOPE WAS RECEIVED FROM PENINSULA VIA AIRMAIL, SPECIAL DELIVERY, CERTIFIED MAIL. PURSUANT TO THE CRITERIA PRESCRIBED BY ASPR 2-303.2 (II), AND BASED ON ADVICE FROM THE POST OFFICE DEPARTMENT, IT WAS DETERMINED THAT THE BID ENVELOPE SHOULD HAVE ARRIVED IN TIME FOR OPENING ON JANUARY 3 BUT FOR THE DELAY IN THE MAILS. SEE ASPR 2 303.3. THEREFORE, THE ACCEPTABLE LATE BID OF PENINSULA WAS OPENED AND IT WAS FOUND THAT IT HAD SUBMITTED THE LOWEST BID IN THE AMOUNT OF $34,300. IN VIEW THEREOF, AWARD WAS MADE TO IT ON FEBRUARY 4, 1969.

YOU PROTEST ON FOUR BASES. FIRST, THAT YOUR ORIGINAL BID WAS RESPONSIVE AND SHOULD NOT HAVE BEEN REJECTED. IN YOUR LETTER OF PROTEST, YOU STATE: "OUR COMPANY RESPONDED IN ACCORDANCE WITH THE BID WITHOUT EXCEPTIONS AND AT THE BID OPENING WE WERE THE LOW BIDDER.'

IT IS EVIDENT FROM THE RECORD THAT YOUR COVER LETTER QUALIFIED YOUR BID IN MATERIAL RESPECTS AND SUCH DEVIATIONS FROM THE ADVERTISED TERMS MAY NOT BE WAIVED. SEE 46 COMP. GEN. 368, 369. WE THEREFORE MUST CONCUR IN THE ACTION TAKEN BY THE CONTRACTING OFFICER IN REJECTING YOUR BID UNDER THE INITIAL INVITATION BECAUSE OF ITS NONRESPONSIVENESS IN MATERIAL RESPECTS. SEE 30 COMP. GEN. 179.

THE SECOND BASIS FOR YOUR PROTEST IS THAT THE BID OF PENINSULA UNDER THE SUBSEQUENT SOLICITATION SHOULD NOT BE CONSIDERED SINCE IT WAS NOT RECEIVED IN TIME FOR THE SCHEDULED BID OPENING. FOR THE REASONS STATED ABOVE, SUCH BID WAS DETERMINED TO BE ACCEPTABLE UNDER THE PROVISIONS OF ASPR 2-303.2 AND, AS SUCH, PROPERLY WAS CONSIDERED FOR AWARD. THE RECORD IN THIS RESPECT IS AMPLY DOCUMENTED BY CERTIFICATION FROM THE POSTMASTERS INVOLVED AND FULLY SUPPORTS THE CONTRACTING OFFICER'S FINDING THAT THE BID WAS ACCEPTABLE.

YOUR THIRD GROUND FOR PROTEST IS THAT YOUR COMPANY HAD A PROPRIETARY INTEREST IN THE SPECIFICATIONS USED BY THE AIR FORCE. IN YOUR TELEGRAM OF PROTEST YOU STATE:

"WE HAVE REASON TO BELIEVE THAT SPECIFICATIONS FOR THIS EQUIPMENT WERE GENERATED AFTER CONSULTATION WITH OUR TECHNICAL PERSONNEL AT OUR FACILITY ON 29 APRIL 1968, AND THAT THE SPECIFICATION IS TO SOME DEGREE BASED ON OUR AVAILABLE PROPRIETARY PRODUCT ON WHICH WE HAVE APPLIED FOR A PATENT.

IN RESPONSE TO THIS ASSERTION, THE CHIEF, OPERATIONAL SERVICES DIVISION, DEPUTY FOR LOGISTICS, HEADQUARTERS AIR FORCE CAMBRIDGE RESEARCH LABORATORIES, WHO WAS RESPONSIBLE FOR INITIATING THE PROCUREMENT AND GENERATING THE SPECIFICATIONS, ADVISED:

"* * * TO THE BEST OF MY KNOWLEDGE AND BELIEF, THERE ARE NO PROPRIETARY SPECIFICATIONS UTILIZED IN THIS PURCHASE REQUEST FOR A POLAR MOUNTED 30 FOOT ANTENNA. IN FACT, A REVIEW OF THE PR SUBMISSION AND MY SUBSEQUENT LETTER OF 23 SEPTEMBER 1968, RE-AFFIRMS THAT WE BELIEVED THAT THERE WERE AT LEAST NINE CORPORATIONS THAT COULD HAVE MET THE REQUIRED SPECIFICATIONS. AFCRL ENGINEERING AND TECHNICAL PERSONNEL DID SURVEY THE COMMERCIAL LITERATURE AVAILABLE AS WELL AS HOLDING DISCUSSIONS WITH AT LEAST THREE OF THE RECOMMENDED FIRMS TO ASCERTAIN IF WHAT WAS BEING REQUESTED WAS WITHIN THE STATE-OF-THE-ART AND COMMERCIALLY AVAILABLE.

"2. RF SYSTEMS INC., AINSLIE CORPORATION AND COMMUNICATION STRUCTURES WERE ALL QUERIED TO ASCERTAIN THESE FACTS. IT SHOULD BE NOTED, HOWEVER, THAT THIS SURVEY WAS CONDUCTED TO REAFFIRM OUR OPINION THAT IT WAS POSSIBLE TO ACQUIRE THE REQUESTED END PRODUCT. IT SHOULD BE NOTED THAT AT LEAST FOUR BIDDERS RESPONDED THE FIRST TIME THE I.F.B. WAS ISSUED. THIS FURTHER REAFFIRMED THAT THE ANTENNA SYSTEM COULD BE ACQUIRED BASED ON THE SPECIFICATIONS PREPARED. AT NO TIME DID ANY BIDDER INDICATE THE I.F.B. CONTAINED PROPRIETARY INFORMATION.'

WHEN A FACTUAL DISPUTE EXISTS BETWEEN THE ALLEGATIONS OF A BIDDER AND THAT OF THE ADMINISTRATIVE OFFICE, IT IS OUR INVARIABLE RULE TO ACCEPT THE ADMINISTRATIVE VERSION IN THE ABSENCE OF A CLEAR SHOWING OF EVIDENCE TO THE CONTRARY. 42 COMP. GEN. 124, 134; 37 ID. 568. SUCH CONTRARY EVIDENCE HAS NOT BEEN PRESENTED IN THIS CASE AND, THEREFORE, WE MUST ACCEPT THE STATEMENT BY THE AIR FORCE THAT YOUR PROPRIETARY PRODUCT WAS NOT USED IN DRAFTING THE SPECIFICATIONS FOR THIS SOLICITATION. HOWEVER, EVEN IF THE SPECIFICATIONS HAD BEEN DRAFTED AS A CONSEQUENCE OF AIR FORCE CONSULTATION WITH YOUR PERSONNEL, WE HAVE PREVIOUSLY HELD THAT IT IS THE RESPONSIBILITY OF THE CONTRACTOR TO MAKE IT KNOWN THAT IT CONSIDERED THE DATA FURNISHED TO BE ITS EXCLUSIVE PROPERTY. IN 43 COMP. GEN. 451, IT WAS HELD, IN PERTINENT PART:

"* * * IF DATA CLAIMED TO BE -PROPRIETARY- * * * HAS BEEN FURNISHED * * * IT IS INCUMBENT UPON IT (THE CONTRACTOR) TO ADVISE THE CONTRACTING OFFICER PROMPTLY OF ITS CLAIM TO DATA PROTECTION AND TO FURNISH SUFFICIENT INFORMATION IN SUPPORT OF ITS CLAIM OR PROPRIETARY RIGHTS TO CERTAIN DATA. * * *"

IN THIS REGARD SEE, ALSO, 46 COMP. GEN. 885, 889, AND B-163200, MARCH 12, 1968. THERE IS NO EVIDENCE THAT YOU INTERPOSED ANY OBJECTION TO THE USE OF THE SPECIFICATIONS IN THE FIRST SOLICITATION AND IT WOULD THEREFORE SEEM THAT YOUR FAILURE TO DO SO EFFECTIVELY WAIVED ANY PROPRIETARY INTEREST YOU MAY HAVE HAD IN THE INFORMATION FURNISHED TO THE AIR FORCE. FOR THIS REASON AND BECAUSE OF THE ADMINISTRATIVE DETERMINATION THAT YOUR PROPRIETARY INFORMATION WAS NOT USED, WE ARE UNABLE TO FIND ANY MERIT IN THIS GROUND OF PROTEST.

YOUR FINAL OBJECTION QUESTIONS THE CAPABILITY OF THE SUCCESSFUL BIDDER TO PERFORM THE CONTRACT. THE DETERMINATION OF A PROSPECTIVE CONTRACTOR'S ABILITY TO PERFORM IS PRIMARILY THE FUNCTION OF THE ADMINISTRATIVE OFFICERS CONCERNED AND, IN THE ABSENCE OF ANY SHOWING OF BAD FAITH OR LACK OF REASONABLE BASIS THEREFOR, THERE IS NO BASIS UPON WHICH WE MAY OBJECT. 37 COMP. GEN. 430, 435.

THEREFORE, BECAUSE WE HAVE DETERMINED THAT YOUR BID UNDER THE FIRST SOLICITATION WAS NONRESPONSIVE AND THAT PENINSULA SUBMITTED THE LOW RESPONSIVE, RESPONSIBLE BID UNDER THE SUBSEQUENT SOLICITATION WHICH DID NOT INVOLVE THE USE OF YOUR PROPRIETARY PRODUCT, NO BASIS EXISTS TO QUESTION THE CONTRACTING OFFICER'S DETERMINATION TO MAKE AWARD TO PENINSULA.