B-167249, JAN. 19, 1970

B-167249, JAN. 19, 1970

BID PROTEST--NEGOTIATION--BIDDER QUALIFICATION DECISION TO ELECTRONIC ASSOCIATES, INC; DENYING PROTEST AGAINST REJECTION OF PROPOSAL AND AWARD TO SINGER-GENERAL PRECISION, INC. FOR FURNISHING HYBRID COMPUTERS, ETC; FOR AIR FORCE FLIGHT TEST CENTER. CONTENTION THAT SUCCESSFUL OFFEROR'S PERSONNEL DID NOT QUALIFY UNDER ALL REQUIREMENTS OF SOLICITATION IS NOT VALID SINCE RECORD INDICATES THAT EMPLOYEES DID QUALIFY UNDER ONE OF REQUIREMENTS, AND, IN VIEW OF USE OF "EITHER" AND "OR" IN THE SOLICITATION, THE PERSONNEL HAD TO MEET ONLY ONE RATHER THAN ALL OF SPECIFIED REQUIREMENTS. PROTESTANT WHO, WAS CURRENT CONTRACTOR COULD NOT AS CONTENDED HAVE AMOUNT ADDED TO LOW OFFER TO ACCOUNT FOR CHANGEOVER SINCE SUCH FACTOR WAS NOT INCLUDED IN THE EVALUATION CRITERIA SPECIFIED IN SOLICITATION. WITH RESPECT TO WHETHER PROCEDURE IN ASPR 2-407.9 WAS FOLLOWED, THE RECORD CONTAINS DIRECT CONFLICT. HENCE, THE ADMINISTRATIVE VERSION MUST BE ACCEPTED SINCE PRESUMPTION OF CORRECTNESS HAS NOT BEEN CLEARLY ONESOME.

TO ELECTRONIC ASSOCIATES, INC.:

REFERENCE IS MADE TO YOUR TELEGRAMS OF JUNE 17 AND 18, 1969, AND YOUR LETTERS OF JUNE 23, 1969, AND AUGUST 29, 1969, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER UNITED STATES AIR FORCE REQUEST FOR PROPOSALS (RFP) NO. F04700-69-R 1712. THE PROCUREMENT WAS FOR THE MAINTENANCE OF HYBRID COMPUTERS AND ASSOCIATED EQUIPMENT FOR THE AIR FORCE FLIGHT TEST CENTER (AFFTC), EDWARDS AIR FORCE BASE, CALIFORNIA.

FOLLOWING NEGOTIATIONS WITH YOUR FIRM AND LINK DIVISION OF SINGER GENERAL PRECISION, INC; AWARD WAS MADE TO SINGER-GENERAL PRECISION, INC; FOR THE FIRM FIXED PRICE OF $152,922 FOR 12 MONTHS SERVICE, PLUS AN ESTIMATED $27,572.50 FOR REIMBURSEMENT OF OVERTIME AND REPLACEMENT PARTS, AGGREGATING A TOTAL CONTRACT PRICE OF $180,494.50. THE AGGREGATE NEGOTIATED PRICE OF ELECTRONIC ASSOCIATES, INCORPORATED (EAI) WAS $188,643.

YOUR PROTEST CONSISTS OF THREE MAJOR CONTENTIONS. YOU FIRST ARGUE THAT THE CONTRACTOR PERSONNEL TO BE ASSIGNED BY SINGER-GENERAL PRECISION TO THE EDWARDS INSTALLATION DO NOT POSSESS THE MINIMUM QUALIFICATIONS REQUIRED UNDER THE RFP. YOU NEXT CONTEND THE EXPENSES OF THE CHANGEOVER TO A NEW CONTRACTOR WERE NOT GIVEN SUFFICIENT CONSIDERATION IN THE PROCURING ACTIVITY'S EVALUATION OF THE PROPOSALS. YOUR FINAL CONTENTION IS THAT YOUR FIRM PROTESTED PRIOR TO THE AWARD, BUT THE PROTEST WAS TREATED AS BEING PRESENTED AFTER AWARD, AND THE AWARD WAS THEREFORE ILLEGAL UNDER APPLICABLE ARMED SERVICES PROCUREMENT REGULATIONS (ASPR) AND AIR FORCE PROCUREMENT INSTRUCTIONS (AFPI).

EXHIBIT "A", MAINTENANCE SPECIFICATIONS, A PART OF THE RFP, READS IN PART AS FOLLOWS:

CONTRACTOR PERSONNEL TO BE ASSIGNED TO THE EDWARDS INSTALLATION SHALL POSSESS THE MINIMUM QUALIFICATIONS SET FORTH IN EITHER 4.01, 4.02, 4.03 OR 4.04 BELOW.

4.01 FOUR (4) YEARS OF DIRECT EXPERIENCE IN MAINTAINING ANALOG COMPUTER FACILITIES OF AT LEAST 700 AMPLIFIER CAPACITY.

4.02 FOUR (4) YEARS OF DIRECT EXPERIENCE IN MAINTAINING ELECTRONIC ASSOCIATES' ADIOS, ERO, AND SERVO SET POTENTIOMETER SYSTEMS.

4.03 TWO (2) YEARS OF DIRECT AND CURRENT EXPERIENCE IN MAINTAINING ELECTRONIC ASSOCIATES' 231R-V AND HYDAC 2000 SYSTEMS.

4.04 TWO (2) YEARS OF DIRECT AND CURRENT EXPERIENCE IN MAINTAINING A FULLY EXPANDED HYDAC 2400 SYSTEM."

YOU CONTEND THAT THE ONLY REASONABLE INTERPRETATION OF THE INTENT OF PARAGRAPH 4.0 IS THAT EACH OF THE FOUR SPECIFIC QUALIFICATIONS CONTAINED THEREUNDER, HAD TO BE MET BY THE PROSPECTIVE CONTRACTOR'S PERSONNEL. YOU FEEL THAT THE NUMEROUS TECHNICAL EVALUATIONS OF LINK, COVERING IN DEPTH THE PERSONNEL THEY PROPOSED TO USE IN PERFORMANCE OF THE CONTRACT, SHOWS THAT THIS WAS THE INTENT OF AND THE ORIGINAL INTERPRETATION PLACED ON THE SOLICITATION BY THE PROCURING ACTIVITY. IN THIS REGARD, YOU EMPHASIZE THAT THE PROJECT ENGINEER ON MAY 29, 1969, REVIEWED THE PROPOSAL OF SINGER -GENERAL PRECISION AND RATED THE FIRM NOT QUALIFIED TO PERFORM THE CONTRACT, AND THAT ONLY AFTER A MEETING WITH LINK PERSONNEL DID THE PROJECT ENGINEER ON JUNE 2, 1969, INDICATE HE FELT LINK COULD PROVIDE THE MAINTENANCE REQUIRED BY THE RFP, ALTHOUGH IN HIS OPINION THEY SEEMED TO JUST MEET THE MINIMUM REQUIREMENTS THEREUNDER.

YOU STATE THAT THE PRIOR CONTRACTS AND HISTORY OF THIS PROCUREMENT, PLUS THE PHYSICAL FACILITIES WHERE THE MAINTENANCE IS TO BE PERFORMED AT EDWARDS AIR FORCE BASE, ALL FURTHER INDICATE THAT THE AIR FORCE'S INTENT AND INTERPRETATION OF THE QUALIFICATIONS CONTAINED IN THE RFP WERE THAT SOME OF A PROSPECTIVE CONTRACTOR'S PERSONNEL MUST MEET EACH OF THE FOUR REQUIREMENTS OF THE SUBPARAGRAPHS UNDER PARAGRAPH 4.0.

WE HAVE CAREFULLY EXAMINED YOUR POSITION CONCERNING THE MEANING OF PARAGRAPH 4.0 BUT CAN NEITHER AGREE WITH YOUR CONCLUSION THAT SOME OF SINGER-GENERAL PRECISION'S PERSONNEL MUST MEET EACH OF THE FOUR REQUIREMENTS OF THIS PROVISION, NOR WITH YOUR CONTENTION THAT THE CONTRACTING OFFICER USED AN OUT-OF-CONTEXT AND PURELY GRAMMATICAL READING OF THESE SPECIFICATIONS TO ARRIVE AT HIS CONCLUSION THAT ONLY ONE OF THE SUBPARAGRAPHS NEEDED TO BE COMPLIED WITH FOR QUALIFICATION PURPOSES. THE CONTRARY, WE BELIEVE THE LANGUAGE OF THAT PARAGRAPH IS CLEAR AND UNAMBIGUOUS ON ITS FACE. THE WORDS "EITHER" AND "OR" AS USED IN THE STATEMENT "CONTRACTOR PERSONNEL TO BE ASSIGNED TO THE EDWARDS INSTALLATION SHALL POSSESS THE MINIMUM QUALIFICATIONS SET FORTH IN EITHER 4.01, 4.02, 4.03 OR 4.04 * * *," CLEARLY INDICATES THAT SINGER-GENERAL PRECISION MUST ONLY HAVE PERSONNEL WHO MEET ANY ONE OF THE ABOVE FOUR QUALIFICATIONS. ANY OTHER INTERPRETATION OF THE WORDS "EITHER" AND "OR" WOULD CONFLICT WITH THEIR NATURAL MEANING (SEE JAFFE V PATTERSON REALTY COMPANY, OHIO COM. PL; 142 N.E. 2ND 284, 293) AND THIS OFFICE WILL NOT USE PREVIOUS TRANSACTIONS OR EXTRANEOUS FACTS TO ALTER OR MODIFY THE PLAIN LANGUAGE WHICH HAD BEEN USED IN A SOLICITATION.

WE THEREFORE AGREE WITH THE CONTRACTING OFFICER'S CONCLUSION THAT AS LONG AS SINGER-GENERAL PRECISION'S PERSONNEL QUALIFIED UNDER ONE OF THE FOUR CATEGORIES OF PARAGRAPH 4.0 THE FIRM MET THE REQUIREMENTS OF THE SOLICITATION. THERE SEEMS TO BE NO QUESTION, AND YOU HAVE NOT CONTENDED OTHERWISE, THAT THE FIRM QUALIFIED UNDER ONE OF THESE CATEGORIES. IN THIS CONNECTION, YOU HAVE DISCUSSED IN DETAIL THE QUALIFICATIONS OF A MR. LOISEL TO SHOW THAT NEITHER HE NOR ANY OF THE OTHER EMPLOYEES TO BE USED BY SINGER-GENERAL UNDER THE CONTRACT ARE QUALIFIED UNDER PARAGRAPH 4.04 OF EXHIBIT A. HOWEVER, MR. LOISEL'S QUALIFICATIONS UNDER THIS SUBPARAGRAPH WOULD APPEAR IRRELEVANT SINCE OTHER PERSONNEL OF SINGER-GENERAL PRECISION DO QUALIFY UNDER ONE OF THE OTHER SUBPARAGRAPHS.

WE MUST ALSO DISAGREE WITH YOUR CONCLUSION THAT IF THE GOVERNMENT REPRESENTATIVES FELT AT THE TIME OF AWARD THAT ALL FOUR SUBPARAGRAPHS OF PARAGRAPH 4 HAD TO BE COMPLIED WITH (AND ERRONEOUSLY CONCLUDED THAT MR. LOISEL WAS QUALIFIED UNDER PARAGRAPH 4.04), THEN IT IS THE INTENT OF THE PARTIES AT THE TIME OF AWARD THAT GOVERNS THE INTERPRETATION TO BE GIVEN THE SPECIFICATIONS. WHERE, AS HERE THE SPECIFICATIONS ARE CLEAR AND UNAMBIGUOUS ON THEIR FACE, NEITHER THIS OFFICE NOR THE CONTRACTING AGENCY CAN READ ADDITIONAL LANGUAGE INTO THE SPECIFICATIONS THAT WOULD NULLIFY THE AWARD OF A CONTRACT TO AN OFFEROR WHO HAS COMPLIED WITH THE SPECIFICATIONS AS WRITTEN. WHEN THE SPECIFICATIONS ARE CLEAR ON THEIR FACE, THE SOLE RESPONSIBILITY OF THIS OFFICE IS TO BE SURE THAT ALL PROPOSAL EVALUATIONS ARE BASED ON FACT AND MADE IN GOOD FAITH. IF IT IS LATER DISCOVERED THAT THE EVALUATIONS WERE BASED ON GREATER REQUIREMENTS THAN CALLED FOR BY THE SOLICITATION, THE LOW OFFEROR WHO QUALIFIED UNDER A PROPER INTERPRETATION OF THE SPECIFICATIONS, IS NOT TO BE DISQUALIFIED BECAUSE HE FAILED TO MEET THE GREATER REQUIREMENTS PLACED ON THE SOLICITATION BY THE PROCURING ACTIVITY AT THE TIME OF AWARD.

YOUR SECOND CONTENTION IS STATED AS FOLLOWS:

THE FINAL PRICE NEGOTIATED BETWEEN EAI AND MR. DICKERSON COVERING THIS PROCUREMENT WAS $185,643, WHICH INCLUDED LABOR, ANTICIPATED OVERTIME COVERAGE AND PARTS TO BE PAID FOR ONLY AS USED. MR. DICKERSON APPARENTLY UTILIZED OPTION 1 CONTAINED IN OUR PROPOSAL TO THE ABOVE RFP FOR THE REQUIRED PARTS IN DETERMINING OUR NEGOTIATED PRICE AS SET FORTH IN USAF LETTER DATED AUGUST 5, 1969. IN FACT,OPTION 1 WAS NOT IN ACCORDANCE WITH THE REQUIREMENTS OF THE RFP AND MR. DICKERSON INDICATED HE WAS NOT INTERESTED IN THIS OPTION DURING NEGOTIATIONS. IN COMPUTING OUR NEGOTIATED PRICE, MR. DICKERSON STATED HE WANTED OPTION 2, WHICH WAS IN ACCORDANCE WITH THE RFP, LESS THE $1,000 FIXED CHARGE, TO WHICH EAI AGREED DURING THE COURSE OF NEGOTIATIONS. THEREFORE, THE ACTUAL NEGOTIATED PRICE EAI OFFERED WAS $185,643 AND NOT $189,143 AS STATED IN THE ABOVE USAF LETTER. THE DIFFERENCE BETWEEN THE PRICE OF THE CONTRACT AWARDED TO LINK AND EAI'S FINAL BID WAS APPROXIMATELY $5,100, WHICH IS A RELATIVELY INSIGNIFICANT AMOUNT CONSIDERING THE SIZE OF THE PROCUREMENT. ADDITION, IN EVALUATION OF MOST PROCUREMENTS OF THIS NATURE, A FACTOR WELL IN EXCESS OF $5,100 IS USUALLY CONSIDERED IN EVALUATING BIDS WHERE INCUMBENT SUPPORT CONTRACTORS MIGHT BE REPLACED BY A DIFFERENT SUPPLIER. THE NORMAL CONFUSION ATTENDANT IN THE CHANGE-OVER OF PERSONNEL, TIME LOST IN USE OF COMPUTERS WHILE THE NEW CONTRACTOR'S PERSONNEL COMPLETELY FAMILIARIZE THEMSELVES WITH THE NEW EQUIPMENT AND SITE AND MANY OTHER CHANGE-OVER FACTORS NORMALLY DICTATE THAT THE PRICE DIFFERENTIAL BETWEEN THE INCUMBENT CONTRACTOR AND THE NEW SUPPLIER SHOULD BE SUBSTANTIALLY GREATER IN ORDER TO MAKE THE CHANGE IN CONTRACTORS REASONABLE AND WORTHWHILE FROM MONETARY AND PERFORMANCE STANDPOINT. APPARENTLY IN THIS SITUATION, NO SUCH CONSIDERATION WAS UTILIZED, OR IF IT WAS, THE AMOUNT CONSIDERED WAS FAR LESS THAN IS USUALLY CONTEMPLATED IN THESE SITUATIONS."

THE CONTRACTING OFFICER STATES IN REGARD TO YOUR POSITION:

EAI IS CORRECT IN THAT THE FINAL PRICE NEGOTIATED WITH THEM WAS NOT $189,143. THE ABSTRACT OF PROPOSALS WAS IN ERROR SINCE TRAVEL REIMBURSABLE IS NOT TO EXCEED $2,000 AND NOT THE $2,500 STATED. HOWEVER, THE FINAL NEGOTIATED PRICE WITH EAI WAS NOT $185,643 BUT $188,643, A DIFFERENCE OF $8,148.50 NOT $5,100.00 AS STATED BY EAI. THE BREAKDOWN IS AS FOLLOWS:

MONTHLY SERVICE $159,188.00

REPLACEMENT PARTS (REIMBURSABLE) 25,000.00

250 HOURS OVERTIME (REIMBURSABLE) 2,455.00

TRAVEL (REIMBURSABLE) 2,000.00

$188,643.00

EAI'S CONTENTION THAT I UTILIZED OPTION 2 IN DETERMINING THE FINAL PRICE IS NOT CORRECT AS WE NEGOTIATED OPTION 3 WITH THE DELETION OF EAI'S REQUEST THAT THEY NOT BE RESPONSIBLE FOR FAILING TO MEET THE 97.5 PERCENT UPTIME. MR. GEORGE KOPACH, THE PRODUCT MANAGER FOR EAI'S COMPUTER SERVICE DIVISION AGREED TO THE AMOUNTS AS NEGOTIATED ON JUNE 12, 1969.

EAI SETS FORTH A UNIQUE INTERPRETATION OF COMPETITION WHICH INDICATES THAT IT IS NOT ENOUGH TO BE THE LOW BIDDER. THEY FEEL AN EVALUATION FACTOR SHOULD BE ADDED TO OTHER CONTRACTORS' BIDS WHICH WOULD ALLOW EAI TO BE SOME REASONABLE AMOUNT HIGHER AND STILL RETAIN THE CONTRACT. THE REASON GIVEN IS THAT CHANGING CONTRACTORS OTHERWISE WOULD NOT BE WORTHWHILE. OF COURSE, NO SUCH EVALUATION FACTOR WAS PROVIDED IN THE RFP. A FACTOR, AS PROPOSED, WOULD DEFEAT AIR FORCE POLICY OF FOSTERING COMPETITION SINCE IT WOULD TEND TO GUARANTEE A SOLE SOURCE SITUATION. THE IDEA OF A SOLE SOURCE APPARENTLY DOES APPEAL TO EAI. IMPLEMENTING EAI'S SUGGESTION COULD ONLY RESULT IN STIFFLED COMPETITION AND ULTIMATE GREATER COSTS TO THE AIR FORCE."

WE MUST AGREE WITH THE CONTRACTING OFFICER THAT HE COULD NOT HAVE COMPUTED THE PROPOSALS OF CONTRACTORS OTHER THAN EAI BY ADDING A COST FACTOR FOR THE CHANGEOVER OF CONTRACTORS - AN EVALUATION FACTOR WHICH WAS NOT SET OUT IN THE SOLICITATION. TO HOLD OTHERWISE WOULD NOT ONLY ALLOW A PROCURING ACTIVITY TO CHOOSE ANY AMOUNT IT FELT WOULD COMPENSATE FOR THE CHANGEOVER IN CONTRACTORS, BUT WOULD DIRECTLY CONFLICT WITH THE DECISIONS OF THIS OFFICE THAT ALL EVALUATION FACTORS MUST BE CLEARLY SPELLED OUT IN THE INVITATION. SEE 49 COMP. GEN. (B 167473, NOVEMBER 12, 1969; 49 COMP. GEN. (B-167175, OCTOBER 13, 1969); B-166213, JULY 18, 1969. TO COMPLY WITH THESE DECISIONS, IF IT IS CONSIDERED FINANCIALLY ADVANTAGEOUS TO MAINTAIN AN INCUMBENT CONTRACTOR, A SPECIFIC DOLLAR AMOUNT SHOULD BE SPELLED OUT IN THE SOLICITATION SO THAT THE INCUMBENT CONTRACTOR COMPETITORS WOULD BE INFORMED OF THE FINANCIAL VALUE TO THE GOVERNMENT OF NOT CHANGING CONTRACTORS.

YOUR FINAL CONTENTION IS THAT YOUR PROTEST CONCERNING THIS PROCUREMENT WAS MADE BEFORE AWARD AND THAT THE CONTRACTING OFFICER FAILED TO FOLLOW THE PROCEDURES OUTLINED IN ASPR 2-407.9 (B) AND AFPI 2-407.9 FOR PROCESSING PROTESTS MADE BEFORE AWARD. ASPR 2-407.9 (B) STATES IN PART AS FOLLOWS:

"2-407.9 PROTESTS AGAINST AWARD

(A) GENERAL. CONTRACTING OFFICERS SHALL CONSIDER ALL PROTESTS OR OBJECTIONS TO THE AWARD OF A CONTRACT, WHETHER SUBMITTED BEFORE OR AFTER AWARD. IF THE PROTEST IS ORAL AND THE MATTER CANNOT OTHERWISE BE RESOLVED, WRITTEN CONFIRMATION OF THE PROTEST SHALL BE REQUESTED. THE PROTESTER SHALL BE NOTIFIED IN WRITING OF THE FINAL DECISION ON THE WRITTEN PROTEST.

(B) PROTESTS BEFORE AWARD. IF AWARD HAS NOT BEEN MADE, THE CONTRACTING OFFICER MAY REQUIRE THAT WRITTEN CONFIRMATION OF AN ORAL PROTEST BE SUBMITTED BY A SPECIFIED TIME AND INFORM THE PROTESTER THAT AWARD WILL BE WITHHELD UNTIL THE SPECIFIED TIME. IF THE WRITTEN PROTEST IS NOT RECEIVED BY THE TIME SPECIFIED, THE ORAL PROTEST MAY BE DISREGARDED AND AWARD MAY BE MADE IN THE NORMAL MANNER UNLESS THE CONTRACTING OFFICER, UPON INVESTIGATION FINDS THAT REMEDIAL ACTION IS REQUIRED, IN WHICH EVENT SUCH ACTION SHALL BE TAKEN."

AFPI 2-407.9 REQUIRES SIMILAR SPECIFIC ACTIONS OF THE CONTRACTING OFFICER WHEN A PROTEST IS MADE BEFORE AWARD.

THE CONTRACTING OFFICER CLAIMS THAT AT THE CONCLUSION OF TELOPHONIC NEGOTIATIONS WITH SINGER-GENERAL PRECISION, INC; ON JUNE 16, 1969, AT APPROXIMATELY 12:45 P.M. PDST (PACIFIC DAYLIGHT SAVING TIME), HE NOTIFIED THE CORPORATION THAT AWARD WAS BEING MADE TO THE FIRM, SUBJECT TO THE AVAILABILITY OF FUNDS. ACCORDING TO THE CONTRACTING OFFICER, AT APPROXIMATELY 1:45 P.M. (PDST), A CONFIRMATION LETTER WAS MAILED AND AT APPROXIMATELY 1:15 P.M. (PDST), AFTER SINGER-GENERAL PRECISION WAS NOTIFIED ORALLY OF THE CONTRACT AWARD, EAI WAS TELEPHONICALLY ADVISED THAT THE CONTRACT HAD BEEN AWARDED TO SINGER GENERAL PRECISION, INC. AT 2:17 P.M. (PDST) A FORMAL TELEGRAPHIC PROTEST WAS RECEIVED BY THE PROCURING ACTIVITY FROM YOUR FIRM. THE CONTRACTING OFFICER, BASED ON THE ABOVE, CLAIMS THAT YOUR PROTEST WAS MADE AFTER AWARD AND THAT THEREFORE HE WAS NOT REQUIRED TO FOLLOW ASPR OR AFPI PROCEDURES CONCERNING PROTESTS BEFORE AWARD.

YOU DISPUTE THE TIME THE CONTRACTING OFFICER MADE THE CALL TO YOUR FIRM AND CLAIM THAT IT WAS PLACED SOME FOUR HOURS PRIOR TO THE ALLEGED TELEPHONIC AWARD TO SINGER-GENERAL PRECISION, INC; AND HAVE OFFERED TO PRESENT AFFIDAVITS TO SUPPORT YOUR POSITION. YOU DENY THE CONTRACTING OFFICER'S ALLEGATION THAT WHEN HE CALLED YOUR FIRM ON JUNE 16, 1969, HE NOTIFIED YOU AWARD HAD ALREADY BEEN MADE. YOU QUESTION WHY IT TOOK ONE WEEK FOR SINGER-GENERAL PRECISION'S REPRESENTATIVE AT EDWARDS AIR FORCE BASE TO RECEIVE THE NOTICE OF AWARD AFTER IT WAS MAILED FROM THE PROCURING ACTIVITY AT THE SAME BASE. YOU EMPHASIZE THAT THE SUBJECT OF THE LETTER FROM THE CONTRACTING OFFICER ACKNOWLEDGING YOUR PROTEST WAS ENTITLED "PROTEST BEFORE AWARD" AND THAT THE HEADING ON THIS LETTER INDICATED THAT THE PROTEST WOULD BE PROCESSED UNDER AFPI 2 407.9 (B) "PROTESTS BEFORE AWARD."

THE CONTRACTING OFFICER IN ANSWER TO YOUR ALLEGATIONS HAS FURNISHED THIS OFFICE WITH A COPY OF THE PROCURING ACTIVITY'S AIR FORCE FORM 1072, AUTHORIZED LONG DISTANCE TELEPHONE CALLS, FOR THE MONTH OF JUNE 1969. THE FORM INDICATES THAT A CALL WAS MADE TO EAI AT 1:15 P.M. (PDGT) ON JUNE 16, 1969. IN ADDITION, THE PROCURING ACTIVITY HAS FURNISHED THIS OFFICE A COPY OF AN OPERATOR'S TICKET FURNISHED BY PACIFIC BELL TELEPHONE CO. WHICH VERIFIES THAT THE AGENCY CALLED EAI ON JUNE 16, 1969, AT APPROXIMATELY 1:15 P.M. (PDST).

THE PROCURING ACTIVITY HAS ALSO FURNISHED A COPY OF SINGER GENERAL'S TELEPHONE STATEMENT FOR JULY 1969, WHICH INDICATES THAT A COLLECT CALL WAS ACCEPTED BY SINGER-GENERAL FROM THE PROCURING ACTIVITY ON JUNE 16, 1969, AND HAS SUBMITTED A COPY OF AN OPERATOR'S TICKET FROM THE TELEPHONE COMPANY WHICH SERVICES SINGER-GENERAL IN BINGHAMTON, NEW YORK, TO SHOW THE CALL WAS PLACED AT APPROXIMATELY 12:45 P.M. (PDST), WITH THE CONVERSATION ACTUALLY BEGINNING AT APPROXIMATELY 1:00 P.M. (PDST).

THE CONTRACTING OFFICER EXPLAINS THE REFERENCE TO AFPI 2-407.9 (B) (PROTESTS BEFORE AWARDS) AND THE SUBJECT HEADING OF "PROTEST BEFORE AWARD, REQUEST FOR PROPOSAL F04700-69-R-1712" ON HIS LETTER TO YOUR FIRM OF JUNE 17, 1969, AS AN INADVERTENT ERROR. HIS POSITION IS THAT THE AFPI SECTION MENTIONED IN THE LETTER WAS A TYPOGRAPHICAL ERROR AND SHOULD HAVE BEEN 2- 407.9 (C) (PROTESTS AFTER AWARD) INSTEAD OF 2-407.9 (B), AND THAT THE REFERENCED SUBJECT HEADING, CITED ABOVE, WAS USED MERELY AS A CONVENIENCE TO EAI IN READILY LOCATING AND IDENTIFYING THE SUBJECT FILE. THE CONTRACTING OFFICER CLAIMS THAT IN NO MANNER WAS HIS CHOICE OF WORDING INTENDED TO IMPLY THAT EAI'S PROTEST WAS ACKNOWLEDGED AS BEING ACCEPTED BEFORE AWARD.

THE STATEMENTS REGARDING WHETHER THIS WAS OR WAS NOT A PROTEST BEFORE AWARD ARE IN SUCH DIRECT CONFLICT THAT THIS OFFICE IS FORCED TO FOLLOW THE RULE THAT WE MUST ACCEPT THE ADMINISTRATIVE VERSION OF DISPUTED FACTS UNLESS THE PRESUMPTION OF CORRECTNESS ATTACHING THERETO IS CLEARLY OVERCOME (47 COMP. GEN. 627, 630 (1968)), WHICH HAS NOT BEEN DONE IN THIS CASE.