B-167524, AUG. 28, 1969

B-167524: Aug 28, 1969

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TO DOUBLE H PRODUCTS CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 17. PRICES WERE TO BE SUBMITTED ON THE BASIS OF ITEM 1 (INCLUDING FIRST ARTICLE APPROVAL TESTS) OR ITEM 2 (EXCLUDING FIRST ARTICLE APPROVAL TESTS). THE INVITATION PROVIDED: "AWARD WILL BE MADE ON EITHER ITEM 1 OR ITEM 2 BUT NOT ON BOTH. THE OPTION AS TO WHETHER TESTING WILL BE WAIVED REMAINS WITH THE CONTRACTING OFFICER. MUST FURNISH EVIDENCE WITH THE OFFER THAT PRIOR GOVERNMENT ACCEPTANCE IS PRESENTLY APPROPRIATE FOR THE PRODUCTS TO BE FURNISHED HEREUNDER BY INDICATING BELOW THE CONTRACT NUMBERS OF IDENTICAL OR SIMILAR SUPPLIES ACCEPTED BY THE GOVERNMENT.'. IMMEDIATELY BELOW THIS PROVISION WERE BLANKS IN WHICH BIDDERS WERE TO INSERT THE NUMBERS OF CONTRACTS UNDER WHICH THEY HAD PREVIOUSLY FURNISHED THE SAME OR SIMILAR SUPPLIES TO THE GOVERNMENT.

B-167524, AUG. 28, 1969

BID PROTEST - EXPERIENCE DATA DECISION TO DOUBLE H. PRODUCTS CORP., DENYING PROTEST AGAINST REJECTION OF LOW BID FOR FURNISHING MISSILE HANDLING DOLLIES TO NAVY. LOW BIDDER WHO DID NOT INDICATE THAT HE HAD SUPPLIED IDENTICAL OR SIMILAR SUPPLIES AS REQUIRED BY INVITATION FOR BIDS HAD BID PROPERLY REJECTED.

TO DOUBLE H PRODUCTS CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 17, 1969, PROTESTING AGAINST THE AWARD TO ANYONE OTHER THAN YOURSELF OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. N00197-69-0163, ISSUED BY THE NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY. THE INVITATION SOLICITED BIDS FOR 16 MISSILE SECTION HANDLING DOLLIES, FSN 8T-1450-106 6142. PRICES WERE TO BE SUBMITTED ON THE BASIS OF ITEM 1 (INCLUDING FIRST ARTICLE APPROVAL TESTS) OR ITEM 2 (EXCLUDING FIRST ARTICLE APPROVAL TESTS). THE INVITATION PROVIDED: "AWARD WILL BE MADE ON EITHER ITEM 1 OR ITEM 2 BUT NOT ON BOTH. THE OPTION AS TO WHETHER TESTING WILL BE WAIVED REMAINS WITH THE CONTRACTING OFFICER. THE GOVERNMENT RESERVES THE RIGHT TO WAIVE THE REQUIREMENT HEREIN FOR FIRST ARTICLE APPROVAL TESTS AS TO THOSE OFFERORS OFFERING A PRODUCT WHICH HAS BEEN PREVIOUSLY FURNISHED BY THE OFFEROR AND HAS BEEN ACCEPTED BY THE GOVERNMENT. OFFERORS OFFERING SUCH PRODUCTS, WHO WISH TO RELY ON SUCH PRIOR ACCEPTANCE BY THE GOVERNMENT, MUST FURNISH EVIDENCE WITH THE OFFER THAT PRIOR GOVERNMENT ACCEPTANCE IS PRESENTLY APPROPRIATE FOR THE PRODUCTS TO BE FURNISHED HEREUNDER BY INDICATING BELOW THE CONTRACT NUMBERS OF IDENTICAL OR SIMILAR SUPPLIES ACCEPTED BY THE GOVERNMENT.'

IMMEDIATELY BELOW THIS PROVISION WERE BLANKS IN WHICH BIDDERS WERE TO INSERT THE NUMBERS OF CONTRACTS UNDER WHICH THEY HAD PREVIOUSLY FURNISHED THE SAME OR SIMILAR SUPPLIES TO THE GOVERNMENT.

THE PROCUREMENT WAS SYNOPSIZED AND INVITATIONS WERE SENT TO 74 FIRMS, OF WHICH 21 SUBMITTED BIDS. ALL 21 BID ON ITEM 1 AND 15 BID ON ITEM 2. YOU WERE THE LOW BIDDER ON ITEMS 1 AND 2 AT $1,689 AND $1,589 RESPECTIVELY. HOWEVER, YOU DID NOT INDICATE IN YOUR BID THAT YOU HAD SUPPLIED IDENTICAL OR SIMILAR SUPPLIES TO THE GOVERNMENT IN PRIOR PROCUREMENTS, AS REQUIRED BY THE IFB PROVISION QUOTED ABOVE. IN ADDITION, THE RECORD SHOWS THAT THE NAVAL ORDNANCE STATION HAD NO EVIDENCE, APART FROM YOUR BID, THAT YOU HAD SUPPLIED THE ITEM IN PREVIOUS PROCUREMENTS. YOUR BID ON ITEM 2 WAS THEREFORE FOUND TO BE NONRESPONSIVE AND AWARD OF THE CONTRACT WAS MADE TO THE SECOND LOW BIDDER ON ITEM 2 AT A PRICE OF $1,681, WHICH WAS LOWER THAN ANY BID ON ITEM 1.

THIS PROCUREMENT IS GOVERNED BY 10 U.S.C. 2305 (C), WHICH PROVIDES IN PART: "* * * AWARDS SHALL BE MADE WITH REASONABLE PROMPTNESS BY GIVING WRITTEN NOTICE TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE THE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED. * * *" PARAGRAPH 1-1903 (A) (II) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) REQUIRES THAT AN IFB WHICH PERMITS THE WAIVER OF FIRST ARTICLE TESTING MUST PROVIDE FOR "THE SUBMISSION OF THE CONTRACT NUMBERS, IF ANY, UNDER WHICH IDENTICAL OR SIMILAR SUPPLIES WERE PREVIOUSLY ACCEPTED FROM THE BIDDER * * * BY THE GOVERNMENT.' YOUR BID HAD TO BE RESPONSIVE TO, OR "CONFORM" TO, THIS INVITATION REQUIREMENT IN ORDER TO BE CONSIDERED FOR AWARD. IN OUR DECISION B-157529, NOVEMBER 24, 1965, WE STATED: "BIDDERS WHO HAD PREVIOUSLY, WITHIN 18 MONTHS, EITHER DIRECTLY OR INDIRECTLY, SATISFACTORILY FURNISHED THE FILTERS TO THE GOVERNMENT, WERE ELIGIBLE TO BID ON THE BASIS OF FIRST ARTICLE, APPROVAL NOT REQUIRED, PROVIDED THEY FURNISHED A CITATION TO THE PREVIOUS CONTRACT OR ORDER NUMBER ENTITLING THEM TO A WAIVER OF TESTING. YOUR LOW BID OF $30 PER UNIT WAS BASED ON RECEIVING A WAIVER OF FIRST ARTICLE APPROVAL. IT IS REPORTED THAT SINCE NO EVIDENCE WAS FOUND IN THE ADMINISTRATIVE OFFICE THAT YOU HAD PREVIOUSLY FURNISHED THE FILTER AND SINCE YOU FAILED TO FURNISH SUCH EVIDENCE, YOUR BID WAS REJECTED AS NONRESPONSIVE. SUCH REJECTION APPEARS PROPER IN THIS CASE. SEE 40 COMP. GEN. 132; B 155846, MARCH 10, 1965; B-155688, FEBRUARY 17, 1965.'

IN VIEW OF THE FOREGOING, THE REJECTION OF YOUR COMPANY'S BID ON ITEM 2 AND AWARD TO THE LOWEST RESPONSIVE BIDDER APPEARS TO HAVE BEEN PROPER. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.