B-168205(1), JUN. 30, 1970

B-168205(1): Jun 30, 1970

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OFFERS NO BASIS FOR OBJECTION SINCE CONTRACTING OFFICER FEELS LOW BIDDER DOES HAVE CAPABILITY TO COMPLY WITH REQUIRED DELIVERY SCHEDULE AS WELL AS PERFORMANCE. UNSUCCESSFUL BIDDER (PRESENT CONTRACTOR) WHO CONTENDS LOW BIDDER IS NOT RESPONSIBLE. FACT THAT SUCCESSFUL BIDDER'S TECHNICAL REPRESENTATIVE WAS FORMERLY PROTESTANT'S VICE PRESIDENT DID NOT INFLUENCE DETERMINATION OF RESPONSIBILITY. THERE IS NO BASIS TO QUESTION EVALUATION OR TO CONSIDER SUCCESSFUL BID IMPROPER EVEN IF BID ON ITEM 1 IS BELOW COST. UNBALANCING IS AT BIDDER'S RISK AND DOES NOT INVALIDATE BID OF QUANTITIES USED FOR EVALUATION REPRESENT REASONABLE AND BONA FIDE ESTIMATE OF PROBABLE REQUIREMENTS. "UNBALANCED" TERM "UNBALANCED" IS APPLIED TO BIDS WHERE ACTUAL QUANTITY OF CERTAIN ITEMS IS NOT FIXED.

B-168205(1), JUN. 30, 1970

BIDDERS--QUALIFICATIONS--DELIVERY CAPABILITIES UNDER REQUIREMENTS TYPE INVITATION FOR 63 ITEMS OF REPRODUCTION WHICH REQUIRED BIDDERS TO QUOTE UNIT PRICES ON EACH ITEM, WITH BIDS TO BE EVALUATED ON BASIS OF ESTIMATES, AND SERVICES REQUIRED TO BE PRICED FOR BOTH REGULAR AND EMERGENCY DELIVERY, UNSUCCESSFUL BIDDER WHO CONTENDS LOW BIDDER CANNOT MEET STANDARD OR EMERGENCY DELIVERY REQUIREMENTS, OFFERS NO BASIS FOR OBJECTION SINCE CONTRACTING OFFICER FEELS LOW BIDDER DOES HAVE CAPABILITY TO COMPLY WITH REQUIRED DELIVERY SCHEDULE AS WELL AS PERFORMANCE; MOREOVER, GAO BELIEVES CONTRACTING OFFICER HAD SUFFICIENT INFORMATION AVAILABLE FOR DETERMINATION OF RESPONSIBILITY. BIDDERS-- QUALIFICATIONS--ADMINISTRATIVE DETERMINATION--PROPRIETY UNDER 1-YEAR REQUIREMENTS INVITATION FOR 63 ITEMS OF REPRODUCTION SERVICES, UNSUCCESSFUL BIDDER (PRESENT CONTRACTOR) WHO CONTENDS LOW BIDDER IS NOT RESPONSIBLE, OFFERS NO BASIS FOR OBJECTION SINCE CONTRACTING OFFICER MADE FAVORABLE DETERMINATION OF RESPONSIBILITY BASED ON OFFICE RECORDS WHICH REVEALED SATISFACTORY PERFORMANCE HISTORY UNDER PRIOR CONTRACTS FOR SIMILAR SUPPLIES AND SERVICES, WITH LONG BUSINESS EXPERIENCE AND SUBSTANTIAL NET WORTH. FACT THAT SUCCESSFUL BIDDER'S TECHNICAL REPRESENTATIVE WAS FORMERLY PROTESTANT'S VICE PRESIDENT DID NOT INFLUENCE DETERMINATION OF RESPONSIBILITY. CONTRACTING OFFICER FELT HE HAD ENOUGH INFORMATION WITHOUT REQUESTING PREAWARD SURVEY. SEE 38 COMP. GEN. 131. BIDS--UNBALANCED--LEGALITY ONE-YEAR REQUIREMENTS INVITATION FOR 63 ITEMS REQUIRED QUOTATION OF UNIT PRICES ON EACH ITEM--FOR BOTH REGULAR AND EMERGENCY DELIVERY--WITH EVALUATION ON ESTIMATED QUANTITIES, AND SPECIFIED THAT AWARD OF ITEMS 1 63 WOULD BE TO SINGLE BIDDER. PROTESTANT CONTENDS LOW BIDDER PRESENTS UNBALANCED BID. THERE IS NO BASIS TO QUESTION EVALUATION OR TO CONSIDER SUCCESSFUL BID IMPROPER EVEN IF BID ON ITEM 1 IS BELOW COST. UNBALANCING IS AT BIDDER'S RISK AND DOES NOT INVALIDATE BID OF QUANTITIES USED FOR EVALUATION REPRESENT REASONABLE AND BONA FIDE ESTIMATE OF PROBABLE REQUIREMENTS. SEE 48 COMP. GEN. 555. WORDS AND PHRASES--"UNBALANCED" TERM "UNBALANCED" IS APPLIED TO BIDS WHERE ACTUAL QUANTITY OF CERTAIN ITEMS IS NOT FIXED--WHERE BIDDER QUOTES HIGH PRICES ON ITEMS HE BELIEVES WILL BE REQUIRED IN LARGER QUANTITIES THAN THOSE USED FOR BID EVALUATION, AND/OR LOW PRICES ON ITEMS OF WHICH HE BELIEVES FEWER WILL BE CALLED FOR. UNBALANCING IS AT BIDDER'S RISK AND DOES NOT INVALIDATE BID IF QUANTITIES USED FOR EVALUATION REPRESENT REASONABLE AND BONA FIDE ESTIMATE OF PROBABLE REQUIREMENTS. FACT THAT BID ON ITEM WAS BELOW COST DOES NOT AFFECT LEGAL QUESTION CONCERNING UNBALANCED BIDS. SEE 48 COMP. GEN. 555. BIDS--EVALUATION--ESTIMATES CONSIDERING WHETHER NAVY ESTABLISHED FAIR AND ACCURATE MEANS OF EVALUATING BIDS SUBMITTED IN RESPONSE TO REQUIREMENTS INVITATION FOR REPRODUCTION SERVICES BY USING FOR BID EVALUATION PURPOSES ESTIMATED QUANTITY BASED UPON REASONABLY ANTICIPATED NEEDS OF GOVERNMENT, GAO SEES NO BASIS FOR QUESTIONING ESTIMATES ESTABLISHED IN PROPOSAL AND USED FOR EVALUATION PURPOSES; MOREOVER, UNSUCCESSFUL BIDDER PRESENTS NO BASIS FOR CONCLUDING THAT ESTIMATED QUANTITY FOR ITEM 1 WAS UNREASONABLE. PROPER TEST TO DETERMINE LOW BIDDER IS EVALUATION CRITERIA UNDER SOLICITATION-- NOT METHOD ACTIVITY MAY ORDER UNDER ONCE AWARD IS MADE. CONTRACTS-- SPECIFICATIONS--BIDDER'S RIGHT TO DICTATE UNSUCCESSFUL BIDDER (PRESENT CONTRACTOR) UNDER 1 YEAR REQUIREMENTS TYPE INVITATION FOR 63 ITEMS OF REPRODUCTION SERVICES, WITH MOST OF SERVICES REQUIRED TO BE PRICED FOR BOTH REGULAR AND EMERGENCY DELIVERY, STATES HE OFFERED TO ASSIST GOVERNMENT IN PREPARING MICROPHOTOGRAPHIC TECHNICAL REQUIREMENTS FOR SERVICES UNDER INVITATION SO THAT INEXPERIENCED BIDDERS WOULD KNOW HOW TO PREPARE PRICES. GAO AGREES WITH AGENCY ON REFUSAL OF ASSISTANCE. PROCUREMENT OFFICIALS ARE GENERALLY IN BEST POSITION TO KNOW GOVERNMENT'S NEEDS AND BEST ABLE TO DRAFT SPECIFICATIONS; MOREOVER, GOVERNMENT CANNOT ALLOW BIDDERS TO DICTATE SPECIFICATIONS. SEE 36 COMP. GEN. 251; 16 COMP. GEN. 38. PURCHASES--PURCHASE ORDERS--DELAY IN ISSUANCE --PRICE DIFFERENTIALS UNSUCCESSFUL BIDDER CONTENDS CONTRACTOR IS DICTATING HOW TO PREPARE PURCHASE ORDERS UNDER REQUIREMENTS CONTRACT FOR REPRODUCTION SERVICES, WITH DELAY BETWEEN PLACING OF ORAL ORDERS AND ISSUANCE OF PURCHASE ORDERS (DD 1155'S). WHILE PRICING OF ORDERS IS IN ACCORDANCE WITH CONTRACT, THERE WAS SOME DELAY BETWEEN PLACING OF ORAL ORDERS AND ISSUANCE OF DD 1155'S, AND THIS HAS BEEN CALLED TO NAVY'S ATTENTION; HOWEVER, GOVERNMENT'S FAILURE TIMELY TO ISSUE DD 1155'S COULD NOT AFFECT CONTRACT'S VALIDITY. POSSIBLY FUTURE PRICING PROVISIONS SHOULD BE REVISED SO THAT GOVERNMENT CAN ORDER WITHOUT PRIOR CONSULTATION WITH CONTRACTOR. CONTRACTS--AWARDS--SMALL BUSINESS CONCERNS--SET-ASIDES- RESTRICTIVE OF COMPETITION UNSUCCESSFUL BIDDER (PRESENT CONTRACTOR) UNDER REQUIREMENTS TYPE INVITATION FOR REPRODUCTION AND RELATED SERVICES CONTENDS PROCUREMENT SHOULD HAVE BEEN SMALL BUSINESS SET-ASIDE SINCE INDUSTRY IS TRADITIONALLY SMALL BUSINESS AND NAVY RESTRICTED NUMBER OF BIDS. ARMED SERVICES PROCUREMENT REGULATION 1-706.5(A)(1) PROVIDES FOR TOTAL SET ASIDES ONLY IF CONTRACTING OFFICER DETERMINES THAT THERE IS REASONABLE EXPECTATION THAT BIDS WILL BE OBTAINED FROM SUFFICIENT NUMBER OF RESPONSIBLE SMALL BUSINESS CONCERNS SO THAT AWARDS WILL BE AT REASONABLE PRICES. PROTESTANT SUBMITTED ONLY BID LAST YEAR AND THEREFORE LARGE FIRMS WERE INCLUDED IN SOLICITATION.

TO MICRO-SERVICES, INCORPORATED:

REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 24, 1969, AND SUBSEQUENT CORRESPONDENCE CONCLUDING WITH YOUR LETTER OF APRIL 14, 1970, PROTESTING AGAINST THE AWARD OF A CONTRACT TO COOPER-TRENT DIVISION, KUEFFEL & ESSER COMPANY, UNDER INVITATION FOR BIDS (IFB) NO. N00189-70B0036, ISSUED ON SEPTEMBER 23, 1969, BY THE NAVAL SUPPLY CENTER (NSC), NORFOLK, VIRGINIA.

THE REFERENCED SOLICITATION WAS FOR A REQUIREMENTS TYPE CONTRACT FOR 63 ITEMS OF REPRODUCTION AND RELATED SERVICES TO COVER THE NEEDS OF THE NAVY PUBLICATIONS AND PRINTING SERVICE OFFICE (NPPSO), NORFOLK, VIRGINIA, AND THE NAVAL WEAPONS STATION, YORKTOWN, VIRGINIA (NWS), FOR THE PERIOD NOVEMBER 1, 1969, THROUGH OCTOBER 31, 1970. BIDDERS WERE REQUIRED TO QUOTE UNIT PRICES ON EACH OF THE ITEMS, AND BIDS WERE EVALUATED ON THE BASIS OF ESTIMATED QUANTITIES STATED IN THE IFB. BIDS WERE OPENED ON OCTOBER 21, 1969, AND THE THREE BIDS RECEIVED WERE AS FOLLOWS:

BIDDER TOTAL BID PRICE TERMS

(AGGREGATE FOR ESTIMATED

QUANTITIES OF ALL ITEMS)

A. COOPER-TRENT DIVISION $17,255.18 NET

KUEFFEL & ESSER CO.

B. BUTLER BLUE PRINT CO. 26,220.00 NET

C. MICRO-SERVICES, INC. 27,687.00 2%-30 DAYS

SINCE PARAGRAPH 6.2 OF THE SOLICITATION SPECIFIED THAT THE AWARD OF ITEMS 1 THRU 63, INCLUSIVE, WOULD BE MADE TO A SINGLE BIDDER, BUTLER BLUE PRINT'S BID WAS FOUND NONRESPONSIVE DUE TO THAT COMPANY'S SUBMISSION OF PRICES ONLY FOR ITEMS 29-41, AND ITEM 61. ON OCTOBER 24, 1969, AFTER VERIFYING THAT ITS BID PRICE WAS CORRECT, THE LOW BIDDER, COOPER-TRENT, RECEIVED THE CONTRACT AWARD.

IN YOUR LETTER OF JANUARY 30 YOU SUMMARIZED THE GROUNDS OF YOUR PROTEST AS FOLLOWS (ALL OF WHICH WILL BE DISCUSSED ALTHOUGH NOT IN THE ORDER PRESENTED):

(1) APPARENT LOW BIDDER NOT RESPONSIVE TO THE IFB.

(2) APPARENT LOW BIDDER NOT ACTUAL LOW BIDDER.

(3) APPARENT LOW BIDDER SUBMITTED AN UNBALANCED BID.

(4) APPARENT LOW BIDDER UNABLE TO MEET DELIVERY REQUIREMENTS OF THE IFB.

(5) PROTEST OF THE NONACCEPTANCE OF THE CONTRACTING OFFICER OF OUR VERBAL AND WRITTEN PROTESTS AS BEING SUBMITTED PRIOR TO AWARD.

(6) PROTEST NO SMALL BUSINESS SET-ASIDES.

(7) PROTEST THAT THE IFB CONTAINS NO BASIS FOR AWARD.

(8) PROTEST THAT COOPER-TRENT, NPPSO AND NSC NORVA DO NOT UNDERSTAND THE TYPE OF SERVICES TO BE PERFORMED AGAINST THE IFB ITEMS.

PARAGRAPH 1.0 OF THE SOLICITATION CONTAINS A GENERAL DESCRIPTION OF THE ITEMS OF SERVICE TO BE PROVIDED BY THE CONTRACTOR, AS FOLLOWS:

"YEARLY

EST. QTY.

"1.0 SUPPLIES OR SERVICES & PRICES A

SERVICES AND MATERIALS FOR SUNDRY REQUIREMENTS SUCH AS MICROFILMING, INDEXING, PROCESSING, MOUNTING, PACKAGING, DISTRIBUTION, PHOTO SERVICES, GRAPHIC ARTS SERVICES, DUPLICATION, HANDWORK AND EDP SERVICES AND RELATED EDP SERVICES INCIDENTAL THERETO. INCLUDED HEREIN ARE VARIOUS SUPPORT OPERATIONS REQUIRED FROM TIME TO TIME TO COMPLETE ON END-ITEM USED IN MISSION ACCOMPLISHMENT BY THE ORDERING AGENCY."

ITEM 1 DESCRIBED A PARTICULAR COMBINATION OF SERVICES TO BE PROVIDED FOR A SPECIFIC TYPE OF REPORT, WITHIN THE LIMITATIONS STATED, FOR A UNIT PRICE PER REPORT, AS FOLLOWS:

"YEARLY

EST. QTY.

"PROVIDE MICROFILMING, IDENTIFICATION, MOUNTING, BLUE LINE, PACKAGE SEALING, DISTRIBUTION FOR ONE DESIGN DEPARTMENT REPORT TO MEET MIL-M 9863C DTD 15 AUG 1966, MIL-STANDARD 804B DTD 15 AUG 1966, AND INDUSTRIAL SECURITY MANUAL NO. DOD-522-22 REV. M DTD APR 28 '68. REPRODUCTION AND MICRO-PHOTOGRAPHIC SERVICES TO PROVIDE 35MM AND DIAZO WHITE PRINT COPIES FOR UP TO 25 SETS OF 35 MM SILVER HALIDE FRAMES OF 92 DRAWINGS OF GOVERNMENT FURNISHED SOURCE MATERIAL. 32 REPORTS"

ITEM 2 CALLED FOR THE SAME SERVICES AS ITEM 1, FOR DELIVERY ON AN EMERGENCY BASIS.

EACH OF THE OTHER 61 ITEMS CONSISTED OF A SINGLE TYPE OF REPRODUCTION OR OTHER SERVICE, MOST OF WHICH WERE REQUIRED TO BE PRICED FOR BOTH REGULAR AND EMERGENCY DELIVERY. INCLUDED IN THE 61 WERE ALL OF THE ITEMS INVOLVED IN ITEM 1, THE INDIVIDUAL PRICES OF WHICH WOULD APPLY TO ORDERS FOR A DESIGN DEPARTMENTAL REPORT OF MORE OR LESS THAN THE 92 DRAWINGS DESCRIBED IN ITEM 1, OR MORE THAN 25 SETS.

YOUR FIRST STATED CONTENTION IS THAT THE APPARENT LOW BIDDER WAS NOT RESPONSIVE TO THE IFB. WE ASSUME THAT YOU MEANT TO STATE THE APPARENT LOW BIDDER WAS NOT RESPONSIBLE, SINCE THIS IS THE CONTENTION YOU MADE IN THE FIRST PARAGRAPH OF YOUR LETTER OF OCTOBER 24, 1969, TO THE DIRECTOR, PURCHASING DEPARTMENT, NAVAL SUPPLY CENTER, WHICH YOU HAVE REFERENCED IN ADVANCING THE ABOVE ARGUMENT, AND WE FIND NO SPECIFIC REFERENCE TO ANY PARTICULAR REQUIREMENT TO WHICH YOU CLAIM THE BID WAS NOT RESPONSIVE.

IN YOUR OCTOBER 24 LETTER YOU CLAIM COOPER-TRENT IS NOT RESPONSIBLE IN THAT THE FIRM DOES NOT MEET THE MINIMUM STANDARDS FOR A RESPONSIBLE CONTRACTOR, AS REQUIRED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) PARA. 1-903.1(II), DUE TO A LACK OF AWARENESS OF THE TECHNICAL AND DELIVERY REQUIREMENTS OF THE IFB. YOU CLAIM THAT EVIDENCE OF THIS DEFICIENCY OF KNOWLEDGE REGARDING THE PROPER INTERPRETATION OF ITEM DESCRIPTIONS AS WELL AS THE REQUIREMENTS OF THE SPECIFICATIONS IS ILLUSTRATED BY COOPER-TRENT'S SUBMISSION OF PRICES. YOU ALSO STATE THAT IF COOPER-TRENT IS IN FACT FAMILIAR WITH THE REQUIREMENTS OF THE IFB HE HAS PRESENTED THE GOVERNMENT WITH AN UNBALANCED BID AND DOES NOT INTEND TO BID AGAINST ITEM 1. IN EITHER CASE, YOU CLAIM HE IS A NONRESPONSIBLE BIDDER.

IN YOUR LETTER OF OCTOBER 25, 1969, YOU CONTEND "THAT BY PAST PERSONAL KNOWLEDGE, COOPER-TRENT DOES UNDERSTAND THE ITEMS AND SPECIFICATIONS; HOWEVER, THEIR UNBALANCED AND LOW PRICING INDICATES THAT THEY DID INTEND TO INVOICE NOT IN CONFORMITY WITH THE INTENT OF THE IFB." ALTHOUGH YOU HAVE MADE APPARENTLY CONTRADICTORY STATEMENTS CONCERNING WHETHER OR NOT COOPER-TRENT UNDERSTOOD THE ITEMS AND SPECIFICATIONS, WE HAVE UNDERTAKEN TO EXAMINE THE RECORD IN THE LIGHT OF ALL OF YOUR CONTENTIONS.

THE RECORD SHOWS THAT THE PROCURING ACTIVITY ON OCTOBER 22, 1969, REQUESTED COOPER-TRENT TO VERIFY ITS BID PRICES AND TO ADVISE THE PROCURING ACTIVITY IF THE MATERIALS AND SERVICES OFFERED WERE AS SPECIFIED. THE FIRM, BOTH TELEPHONICALLY AND BY WRITTEN CONFIRMATION, ADVISED THE AGENCY THAT THE PRICES BID WERE THE PRICES INTENDED AND WERE CORRECT AS STATED FOR THE MATERIALS AND SERVICES CALLED FOR. THE CONTRACTING OFFICER SUBSEQUENTLY MADE A FINDING THAT COOPER-TRENT WAS A RESPONSIBLE FIRM CAPABLE OF PERFORMING THE CONTRACT.

IN REGARD TO THIS DETERMINATION BY THE CONTRACTING OFFICER, ASPR 1 903.1 AND ASPR 1-903.2 PROVIDE:

"1-903 MINIMUM STANDARDS FOR RESPONSIBLE PROSPECTIVE CONTRACTORS.

"1-903.1 GENERAL STANDARDS. EXCEPT AS OTHERWISE PROVIDED IN THIS PARAGRAPH 1-903, A PROSPECTIVE CONTRACTOR MUST:

(I) HAVE ADEQUATE FINANCIAL RESOURCES, OR THE ABILITY TO OBTAIN SUCH RESOURCES AS REQUIRED DURING PERFORMANCE OF THE CONTRACT (SEE DEFENSE CONTRACT FINANCING REGULATIONS, PART 2, APPENDIX E, AND ANY AMENDMENTS THERETO; SEE ALSO 1-904.3 AND 1-905.2; FOR SBA CERTIFICATES OF COMPETENCY, SEE 1-705.4);

(II) BE ABLE TO COMPLY WITH THE REQUIRED OR PROPOSED DELIVERY OR PERFORMANCE SCHEDULE, TAKING INTO CONSIDERATION ALL EXISTING BUSINESS COMMITMENTS, COMMERCIAL AS WELL AS GOVERNMENTAL (FOR SBA CERTIFICATES OF COMPETENCY, SEE 1-705.4);

(III) HAVE A SATISFACTORY RECORD OF PERFORMANCE (CONTRACTORS WHO ARE SERIOUSLY DEFICIENT IN CURRENT CONTRACT PERFORMANCE, WHEN THE NUMBER OF CONTRACTS AND THE EXTENT OF DEFICIENCY OF EACH ARE CONSIDERED, SHALL, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY OR CIRCUMSTANCES PROPERLY BEYOND THE CONTROL OF THE CONTRACTOR, BE PRESUMED TO BE UNABLE TO MEET THIS REQUIREMENT). PAST UNSATISFACTORY PERFORMANCE, DUE TO FAILURE TO APPLY NECESSARY TENACITY OR PERSEVERANCE TO DO AN ACCEPTABLE JOB, SHALL BE SUFFICIENT TO JUSTIFY A FINDING OF NONRESPONSIBILITY. (IN THE CASE OF SMALL BUSINESS CONCERNS, SEE 1-705.4(C)(VI) AND 1-905.2.);

(IV) HAVE A SATISFACTORY RECORD OF INTEGRITY (IN THE CASE OF A SMALL BUSINESS CONCERN, SEE 1-705.4(C)(VI).); AND

(V) BE OTHERWISE QUALIFIED AND ELIGIBLE TO RECEIVE AN AWARD UNDER APPLICABLE LAWS AND REGULATIONS. E.G; SECTION XII, PART 6. (IN THE CASE OF A SMALL BUSINESS CONCERN, SEE 1-705.4(C)(V).).

"1-903.2 ADDITIONAL STANDARDS.

(A) STANDARDS FOR PRODUCTION, MAINTENANCE, CONSTRUCTION, AND RESEARCH AND DEVELOPMENT CONTRACTS. IN ADDITION TO THE STANDARDS IN 1 903.1, IN PROCUREMENT INVOLVING PRODUCTION, MAINTENANCE, CONSTRUCTION (SEE 18-106), OR RESEARCH AND DEVELOPMENT WORK (AND IN OTHER PROCUREMENT AS APPROPRIATE), A PROSPECTIVE CONTRACTOR MUST:

(I) HAVE THE NECESSARY ORGANIZATION, EXPERIENCE, OPERATIONAL CONTROLS AND TECHNICAL SKILLS, OR THE ABILITY TO OBTAIN THEM (THIS STANDARD INCLUDES, WHERE APPROPRIATE, SUCH ELEMENTS AS ADEQUACY OF PRODUCTION CONTROL PROCEDURES; QUALITY ASSURANCE MEASURES, INCLUDING THOSE APPLICABLE TO MATERIALS PRODUCED OR SERVICES PERFORMED BY SUBCONTRACTORS (SEE 1-903.4); AND

(II) HAVE THE NECESSARY PRODUCTION, CONSTRUCTION, AND TECHNICAL EQUIPMENT AND FACILITIES, OR THE ABILITY TO OBTAIN THEM. WHERE A PROSPECTIVE CONTRACTOR PROPOSES TO USE THE FACILITIES OR EQUIPMENT OF ANOTHER CONCERN, NOT A SUBCONTRACTOR, OR OF HIS AFFILIATE (SEE 2-201(A) BII) AND (B)(XVII)), ALL EXISTING BUSINESS ARRANGEMENTS, FIRM OR CONTINGENT, FOR THE USE OF SUCH FACILITIES OR EQUIPMENT SHALL BE CONSIDERED IN DETERMINING THE ABILITY OF THE PROSPECTIVE CONTRACTOR TO PERFORM THE CONTRACT; SEE ALSO 1-904.3."

ASPR 1-904.1 PROVIDES THAT NO CONTRACT SHALL BE AWARDED TO ANY PERSON OR FIRM UNLESS THE CONTRACTING OFFICER FIRST MAKES, SIGNS, AND PLACES IN THE CONTRACT FILE, AN AFFIRMATIVE DETERMINATION THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE AND STATES THE REASONS JUSTIFYING SUCH DETERMINATION. UNDER ASPR 1-905.1 BEFORE MAKING A DETERMINATION OF RESPONSIBILITY THE CONTRACTING OFFICER SHALL HAVE IN HIS POSSESSION OR OBTAIN INFORMATION SUFFICIENT TO SATISFY HIMSELF THAT A PROSPECTIVE CONTRACTOR CURRENTLY MEETS THE MINIMUM STANDARDS SET FORTH IN THE PERTINENT PORTIONS OF ASPR 1-903, CITED ABOVE. ASPR 1-905.4(B) STATES A PREAWARD SURVEY SHALL BE REQUIRED WHEN THE INFORMATION AVAILABLE TO THE PURCHASING OFFICE IS NOT SUFFICIENT TO ENABLE THE CONTRACTING OFFICER TO MAKE A DETERMINATION REGARDING THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR.

ACCORDING TO THE DETERMINATION OF RESPONSIBILITY FORM, SIGNED ON OCTOBER 23, 1969, BY THE CONTRACTING OFFICER, A FAVORABLE DETERMINATION OF RESPONSIBILITY WAS MADE CONCERNING COOPER-TRENT BASED ON RECORDS IN HIS OFFICE WHICH REVEALED A SATISFACTORY PERFORMANCE HISTORY BY COOPER TRENT UNDER PRIOR CONTRACTS WITH THE NORFOLK CENTER FOR SIMILAR SUPPLIES AND SERVICES, COMBINED WITH THE FACT THAT THE FIRM HAS BEEN IN BUSINESS SINCE 1889, WITH A 1968 ESTIMATED NET WORTH OF OVER $1,000,000. ALTHOUGH THE CONTRACTING OFFICER STATES HE HAD KNOWLEDGE THAT COOPER-TRENT'S TECHNICAL REPRESENTATIVE MR. J. O. WALL, WAS FORMERLY VICE-PRESIDENT OF MICRO- SERVICES, INC; AND HE FELT THIS INDIVIDUAL WAS THOROUGHLY FAMILIAR WITH THE IFB REQUIREMENTS, BOTH TECHNICAL AND OTHERWISE, FROM HIS EXPERIENCE WITH AND ACTIVITY UNDER CONTRACTS HELD BY MICRO-SERVICES, INC; COVERING THE SAME AND SIMILAR REPRODUCTION SERVICES IN YEARS PAST, HE STATES THAT THIS INFORMATION WAS NOT THE BASIS OF HIS WRITTEN DETERMINATION OF COOPER- TRENT'S RESPONSIBILITY. SINCE THE CONTRACTING OFFICER FELT HE HAD SUFFICIENT INFORMATION ON HAND TO DETERMINE COOPER-TRENT A RESPONSIBLE CONTRACTOR FOR THE PURPOSES OF THIS PROCUREMENT, HE DID NOT REQUEST A PREAWARD SURVEY.

ANOTHER GROUND ASSERTED FOR YOUR CONTENTION THAT COOPER-TRENT SHOULD NOT BE CONSIDERED RESPONSIBLE IS THAT COOPER-TRENT IS UNABLE TO MEET THE DELIVERY REQUIREMENTS OF THE IFB. IN THIS REGARD THE SOLICITATION CONTAINED THE FOLLOWING PARAGRAPHS CONCERNING DELIVERY:

"4.2 TIME OF DELIVERY

ALL GOVERNMENT - FURNISHED SOURCE MATERIAL, E.G; PRINTS DESIGNED DOCUMENTS, MASTER DRAWINGS, MAPS AND SIMILAR MATERIALS REQUIRING REPRODUCTION, MICROFILMING, ETC; SHALL BE PICKED UP BY A REPRESENTATIVE OF THE CONTRACTOR ON THE DATES SPECIFIED IN DELIVERY ORDERS HEREUNDER. THE GOVERNMENT DESIRES THAT PICK-UP MATERIAL, REPRODUCTION SERVICES BE PERFORMED, AND DELIVERY (TO INCLUDE DELIVERY TO A POST OFFICE) OF MATERIAL BE MADE WITHIN TIME SPECIFIED BELOW:

DESIRED DELIVERY SCHEDULE

ITEM NO. QUANTITY TIME

(LOT 3)

ITEMS: 26, 27, & 28 ALL 17 DAYS AFTER DATE OF

EACH DELIVERY ORDER

ITEMS 2,4,6,10,12,14, ALL 16 HOURS AFTER RECEIPT 18,20,22,24,47,49,51, OF EACH ORAL ORDER

53,55 AND 63

ALL OTHER ITEMS ALL 5 DAYS AFTER DATE OF

EACH DELIVERY ORDER

IF THE BIDDER IS UNABLE TO MEET THE ABOVE DELIVERY SCHEDULE, HE MAY WITHOUT PREJUDICE TO THE EVALUATION OF HIS BID, SET FORTH HIS PROPOSED DELIVERY SCHEDULE BELOW BUT SUCH DELIVERY SCHEDULE MUST NOT EXTEND THE DELIVERY PERIOD BEYOND THE TIME FOR DELIVERY CALLED FOR IN THE FOLLOWING REQUIRED DELIVERY SCHEDULE SET FORTH BELOW: REQUIRED DELIVERY SCHEDULE

ITEM NO. QUANTITY TIME

(LOT 3)

26, 27, & 28 ALL 24 DAYS AFTER DATE OF EACH

DELIVERY ORDER.

ITEM NO. QUANTITY TIME

2,4,6,10,12,14,18, ALL 24 HOURS AFTER RECEIPT

20,22,24,47,49,51, OF EACH ORAL ORDER.

53,55 AND 63

ALL OTHER ITEMS ALL 10 DAYS AFTER EACH DELIVERY

ORDER.

BIDS OFFERING DELIVERY OF A QUANTITY UNDER SUCH TERMS OR CONDITIONS THAT DELIVERY SHALL NOT CLEARLY FALL WITHIN THE APPLICABLE REQUIRED DELIVERY PERIOD SPECIFIED ABOVE WILL BE CONSIDERED NON-RESPONSIVE AND WILL BE REJECTED.

IF THE BIDDER DOES NOT PROPOSE A DIFFERENT DELIVERY SCHEDULE, THE GOVERNMENT'S DESIRED DELIVERY SCHEDULE SHALL APPLY.

BIDDER'S PROPOSED DELIVERY SCHEDULE

(TO BE COMPLETED BY BIDDER)

ITEM NO. QUANTITY WITHIN THE TIME STATED

(LOT 3) BELOW

26, 27, & 28 ALL DAYS AFTER DATE OF

EACH DELIVERY ORDER

2,4,6,10,12,14,

18,20,22,24,47,49,

51,53,55 AND 63 ALL HOURS AFTER RECEIPT

OF EACH ORAL ORDER.

ALL OTHER ITEMS ALL DAYS AFTER DATE OF

EACH DELIVERY ORDER."

IN REGARD TO MEETING THE DELIVERY REQUIREMENTS, YOU STATE THAT COOPER TRENT'S MAIN MICROFILM-REPRODUCTION PLANT IN ARLINGTON, VIRGINIA, IS AT LEAST A THREE (3) HOUR DRIVE FROM NORFOLK, VIRGINIA OR YORKTOWN, VIRGINIA, ALTHOUGH THE FIRM ALSO OPERATES A REPRODUCTION PLANT, DRAFTING SUPPLY SALES OFFICE AND WAREHOUSING PLANT IN NORFOLK, VIRGINIA. YOU MAINTAIN THE KEY FUNCTIONS REQUIRED IN THE REPRODUCTION OF A REPORT CANNOT BE PERFORMED BY COOPER-TRENT'S PLANT IN NORFOLK AND MUST BE PROCURED FROM ARLINGTON, IN THAT COOPER-TRENT'S BRANCH DOES NOT HAVE EQUIPMENT CAPABLE OF PRODUCING IFB ITEMS 1, 2, 3, 4, 9, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27, OR 28 WHICH ARE REQUIRED IN THE PRODUCTION OF A REPORT. YOU ALSO CLAIM MANY OTHER ITEMS WITH STANDARD DELIVERY AS WELL AS EMERGENCY DELIVERY REQUIREMENTS CANNOT BE PERFORMED BY COOPER-TRENT IN NORFOLK, SINCE THE FIRM AT THAT LOCATION HAS NEITHER THE EXPERIENCE, QUALIFIED PERSONNEL, SUPERVISION, FACILITIES, OR EQUIPMENT TO PERFORM THESE ITEMS, ALTHOUGH THE FIRM CAN PERFORM CERTAIN STANDARD REPRODUCTION ITEMS CONTAINED IN THE IFB AT THE NORFOLK LOCATION.

YOU STATE THE ABOVE-LISTED ITEMS OF SERVICE ARE THE MINIMUM COMPONENTS OF ITEM 1 OR 2 AND REQUIRE A MINIMUM PRODUCTION TIME OF 18 CLOCK HOURS. SINCE THE GOVERNMENT, BY PARAGRAPH 4.3 OF THE IFB, REQUIRES TWENTY-FOUR HOUR SERVICE AFTER RECEIPT OF AN ORAL ORDER YOU FEEL IT IS A PHYSICAL IMPOSSIBILITY FOR ANY CONTRACTOR LOCATED A MINIMUM OF THREE (3) HOURS TRAVEL FROM THE GOVERNMENT ACTIVITY TO MEET THE REQUIREMENT. UNDER A PREVIOUS CONTRACT, YOU CLAIM YOU WERE ABLE TO DELIVER WITHIN THIS SPECIFIED TIME BECAUSE YOU COULD COMMUTE TO THE CUSTOMER IN LESS THAN ONE HOUR, AND YOU HAD THE EXPERIENCE, EQUIPMENT AND QUALIFIED PERSONNEL AVAILABLE ON A 24-HOUR DAY BASIS.

THE CONTRACTING OFFICER STATES IN REGARD TO YOUR CONTENTIONS THAT COOPER- TRENT CAN COMPLY WITH THE DELIVERY SCHEDULE OF "24-HOURS AFTER RECEIPT OF EACH ORAL ORDER" APPLICABLE TO CERTAIN ITEMS. HE STATES THAT YOUR ALLEGATIONS ARE BASED UPON YOUR OWN TIMETABLES AND ON YOUR ASSUMPTION THAT COOPER-TRENT MUST PICK UP AND DELIVER BETWEEN ARLINGTON AND NORFOLK OR YORKTOWN, VIRGINIA BY "DRIVING" THE TOTAL DISTANCE BETWEEN THESE POINTS. THE IFB SPECIFIES DELIVERY F.O.B. ORIGIN; THUS, BY YOUR OWN TIMETABLE OF 18-HOURS PRODUCTION TIME PLUS 3-HOURS DRIVING TIME ONE-WAY BETWEEN EITHER OF THE ABOVE-MENTIONED POINTS, THE CONTRACTING OFFICER FEELS COOPER-TRENT WOULD HAVE 3 HOURS REMAINING IN WHICH TO PICK UP THE GOVERNMENT-FURNISHED PROPERTY FROM EITHER OF THE ORDERING ACTIVITIES AFTER RECEIPT OF AN ORAL ORDER. HE STATES COOPER TRENT HAS A REPRODUCTION FACILITY IN THE NORFOLK, VIRGINIA, AREA AND CAN EASILY DISPATCH AND HAVE A COMPANY REPRESENTATIVE AT EITHER OF THE TWO ORDERING OFFICES WITHIN ONE HOUR OR LESS DRIVING TIME TO PICK UP GOVERNMENT-FURNISHED PROPERTY. HE THEREFORE FEELS COOPER-TRENT DOES HAVE THE CAPABILITY TO COMPLY WITH THE IFB REQUIRED DELIVERY SCHEDULE, AND IT IS NOT A "PHYSICAL IMPOSSIBILITY" TO DO SO AS YOU HAVE ALLEGED.

IN REGARD TO THE CONTRACTING OFFICER'S STATEMENT CONCERNING COOPER TRENT'S NORFOLK OFFICE, YOU REITERATE YOUR POSITION THAT THE FIRM AT THAT LOCATION DOES NOT HAVE THE ABILITY PRESENTLY IN NORFOLK TO MEET THE EMERGENCY DELIVERY REQUIREMENTS OF KEY ITEMS OF SERVICE REQUIRED UNDER THE SOLICITATION. IN THIS REGARD YOU STATE YOU HAVE BEEN INFORMED THAT COOPER -TRENT WILL SOON CLOSE ITS NORFOLK PLANT AND SERVICE OPERATION BECAUSE THE NORFOLK REDEVELOPMENT AND HOUSING AUTHORITY IS ACQUIRING THE LAND THAT COOPER-TRENT'S BUILDING OCCUPIES. YOU STATE WHEN COOPER-TRENT RELOCATES IN NORFOLK IT WILL ONLY BE INVOLVED IN THE WAREHOUSING AND SALE OF CATALOG ITEMS.

COOPER-TRENT HAS REPLIED TO THIS RELOCATION CONTENTION CLAIMING SUCH AN ARGUMENT IS "CONJECTURE AND WISHFUL THINKING BASED ON HALF TRUTHS" AND EMPHASIZES IT RECOGNIZES ITS CONTRACTUAL OBLIGATIONS AND WILL MEET THE TERMS AND CONDITIONS AS ITEMIZED.

IN YOUR LETTER OF OCTOBER 30, 1969, YOU STATED "IT MAY BE THAT THE VARIOUS PIECES OF PHOTOGRAPHIC, DATA PROCESSING AND RELATED EQUIPMENT IS AVAILABLE FOR TRANSFER TO ITS NORFOLK PLANT" (FROM ITS ARLINGTON PLANT). SUCH STATEMENT IN NO WAY NEGATES THE CONTRACTING OFFICER'S DETERMINATION OF OCTOBER 23, 1969, ON THE DETERMINATION OF RESPONSIBILITY FORM, THAT COOPER-TRENT "IS ABLE TO COMPLY WITH THE REQUIRED DELIVERY OR PERFORMANCE SCHEDULE."

AT ANY RATE, IN EXAMINING THE ISSUE OF WHETHER THE CONTRACTING OFFICER WAS CORRECT IN FINDING THAT COOPER-TRENT COULD MEET THE DELIVERY SCHEDULE, WE MUST EXAMINE THE INFORMATION THE CONTRACTING OFFICER HAD AT THE TIME OF HIS DETERMINATION OF RESPONSIBILITY, AND CONSIDERING ALL THIS INFORMATION WE CANNOT STATE THAT THERE WAS INSUFFICIENT INFORMATION FOR A POSITIVE DETERMINATION BY THE CONTRACTING OFFICER THAT COOPER-TRENT COULD MEET THE DELIVERY SCHEDULE.

IN REGARD TO A CONTRACTING OFFICER'S DETERMINATION OF RESPONSIBILITY, THIS OFFICE STATED IN 38 COMP. GEN. 131, 133 (1958):

"CONCERNING THE MATTER OF THE RESPONSIBILITY OF THE SUCCESSFUL BIDDER, OUR OFFICE HAS CONSISTENTLY HELD THAT THE DETERMINATION OF A BIDDER'S OVER -ALL RESPONSIBILITY IS PRIMARILY THAT OF THE CONTRACTING OFFICER AND NOT OF THE GENERAL ACCOUNTING OFFICE. SEE 33 COMP. GEN. 549. THE RECORD ESTABLISHES THAT THE NECESSARY DETERMINATION REQUIRED BY REGULATION AS TO THE RESPONSIBILITY *** WAS MADE BY THE CONTRACTING OFFICER AND, IN THE ABSENCE OF EVIDENCE OF CAPRICIOUS OR ARBITRARY ACTION TAKEN, WE ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE DETERMINATION THAT THE SUCCESSFUL BIDDER WAS FINANCIALLY ABLE AND TECHNICALLY CAPABLE OF PERFORMING THE CONTRACT."

IN VIEW OF THE FOREGOING, THERE IS NO REASON TO QUESTION THE CONTRACTING OFFICER'S FAILURE TO OBTAIN A PREAWARD SURVEY, SINCE THE DETERMINATION OF RESPONSIBILITY FORM, FILLED OUT IN ACCORDANCE WITH ASPR 1-904.1, INDICATES IN OUR OPINION THAT HE HAD SUFFICIENT INFORMATION AVAILABLE TO SATISFY HIMSELF AS TO THE PROSPECTIVE CONTRACTOR'S RESPONSIBILITY, AND WE FIND NO LEGAL BASIS TO QUESTION HIS FINDINGS OF COOPER-TRENT'S RESPONSIBILITY FOR THE PERFORMANCE OF THIS CONTRACT.

IF IN ANY FUTURE PROCUREMENT YOU SHOULD FEEL AT THE TIME OF BID OPENING THAT THE LOW BIDDER CANNOT MEET THE DELIVERY SCHEDULE YOU SHOULD IMMEDIATELY LODGE A PROTEST WITH THE CONTRACTING OFFICER SO THAT HE CAN EXAMINE ALL AVAILABLE INFORMATION ON THE MATTER PRIOR TO MAKING HIS REQUIRED DETERMINATIONS AND SUBSEQUENT AWARD.

AS A BASIS FOR YOUR CONTENTION THAT COOPER-TRENT SUBMITTED AN UNBALANCED BID, YOU CONTEND THAT THEIR UNBALANCED AND LOW PRICING INDICATES THEY DO NOT INTEND TO INVOICE IN CONFORMITY WITH THE INTENT OF THE IFB AND SPECIFICALLY DO NOT INTEND TO BILL AGAINST ITEM 1. THE TERM "UNBALANCED" IN THIS CONTEXT IS APPLIED TO BIDS ON PROCUREMENTS WHICH INCLUDE A NUMBER OF ITEMS AS TO WHICH THE ACTUAL QUANTITIES TO BE FURNISHED IS NOT FIXED, IN WHICH A BIDDER QUOTES HIGH PRICES ON ITEMS WHICH HE BELIEVES WILL BE REQUIRED IN LARGER QUANTITIES THAN THOSE USED FOR BID EVALUATION, AND/OR LOW PRICES ON ITEMS OF WHICH HE BELIEVES FEWER WILL BE CALLED FOR. SUCH UNBALANCING IS ENTIRELY AT THE BIDDER'S RISK, AS ARE ALL BIDS ON FIXED PRICE CONTRACTS, AND ARE NOT CONSIDERED TO INVALIDATE THE BIDS IF THE QUANTITIES USED FOR EVALUATION REPRESENT A REASONABLE AND BONA FIDE ESTIMATE OF THE PROBABLE REQUIREMENTS. SEE B-165715(1), FEBRUARY 27, 1969. YOU PRESENT NO BASIS FOR CONCLUDING THAT THE ESTIMATED QUANTITY FOR ITEM 1 WAS UNREASONABLE. ALTHOUGH YOU STATE THAT UNDER YOUR CONTRACT OF LAST YEAR NO BILLINGS WERE MADE AGAINST ITEM 1, YOU POINT OUT ALSO THAT ITEM 1 IN THE PRESENT IFB ALLOWS FOR DIFFERENT NUMBERS OF DRAWINGS THAN THOSE PROVIDED FOR BY THE PREVIOUS CONTRACT AND IS MORE IN LINE WITH THE NUMBER OF DRAWINGS ACTUALLY TO BE REQUIRED IN A REPORT.

WHILE YOU STATE COOPER-TRENT'S BID OF $34.80 FOR THE COMPLETE REPORT CALLED FOR BY ITEM 1 WAS ONLY ABOUT ONE-THIRD OF THE ACTUAL COST OF COMPLETING THE FULL REPORT FOR DISTRIBUTION, YOU FAIL TO SHOW ANY BASIS ON WHICH COOPER-TRENT COULD REFUSE TO PERFORM ANY ORDERS FOR THAT ITEM AT THAT PRICE. THE MERE FACT THAT THE BID ON THAT ITEM MAY HAVE BEEN BELOW COST DOES NOT APPEAR TO AFFECT THE LEGAL QUESTION CONCERNING UNBALANCED BID, I.E; WHETHER THE PROCURING ACTIVITY ESTABLISHED A FAIR AND ACCURATE MEANS OF EVALUATING BIDS SUBMITTED IN RESPONSE TO THE INVITATION BY USING FOR BID EVALUATION PURPOSES AN ESTIMATED QUANTITY BASED UPON THE REASONABLY ANTICIPATED NEEDS OF THE GOVERNMENT. SINCE THERE IS NO INDICATION THAT THE ESTIMATES USED IN THE PRESENT PROCUREMENT WERE OTHERWISE, THERE IS NO LEGAL BASIS TO QUESTION THE METHOD OF EVALUATION OF BIDS OR TO CONSIDER THE COOPER-TRENT BID AS IMPROPER IN ANY WAY. IT IS ALSO TO BE NOTED THAT YOU HAVE NOT IDENTIFIED ANY PARTICULAR ITEM OR ITEMS ON WHICH YOU CLAIM THAT COOPER TRENTS BID WAS EXCESSIVE.

IN REGARD TO YOUR CONTENTION THAT THERE WAS NO PROPER BASIS FOR AWARD, THE IFB IN PARAGRAPH 6.2 STATES "AWARD OF ITEMS ONE THRU SIXTY THREE INCLUSIVE SHALL BE MADE TO A SINGLE BIDDER." PARAGRAPH 10(A) ENTITLED "AWARD OF CONTRACT" IN STANDARD FORM 33A "SOLICITATION INSTRUCTIONS AND CONDITIONS" STATES "THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE OFFEROR WHOSE OFFER CONFORMING TO THE SOLICITATION WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED." PARAGRAPH 9.1(A) OF THE SOLICITATION STATES THIS IS A REQUIREMENTS CONTRACT; THAT THE DELIVERY OF SUPPLIES AND SERVICES SHALL BE MADE ONLY AS AUTHORIZED BY ORDERS ISSUED IN ACCORDANCE WITH THE CLAUSE ENTITLED "ORDERING," AND THAT THE QUANTITIES OF SUPPLIES OR SERVICES SPECIFIED ARE ESTIMATES ONLY, ARE NOT PURCHASED, AND IF NOT ORDERED SHALL NOT CONSTITUTE THE BASIS FOR AN EQUITABLE ADJUSTMENT UNDER THE CONTRACT.

YOUR CONTENTION IS THAT THERE IS NO BASIS FOR AWARD SINCE, WHILE AMENDMENT 001 DOES STATE THE AWARD WILL BE MADE FOR ALL ITEMS TO ONE BIDDER, IT STILL DOES NOT GIVE A BASIS FOR DETERMINATION OF THE LOW BIDDER. YOU EMPHASIZE PREVIOUS IFB'S FROM NSC CONTAINED CLAUSES TO THE EFFECT THAT THE QUANTITIES LISTED IN THE IFB AGAINST THE INDIVIDUAL ITEMS WERE FOR EVALUATION PURPOSES ONLY AND COULD NOT BE CONSTRUED AS GUARANTEES OF WORK TO BE ISSUED BY THE GOVERNMENT TO THE SUCCESSFUL BIDDER. YOU CLAIM THERE IS NO SUCH STATEMENT CONTAINED IN THE PRESENT IFB AND THEREFORE THERE IS NO STATEMENT REGARDING THE METHOD OF EVALUATION TO DETERMINE THE LOW BIDDER.

WE HAVE EXAMINED THE PRESENT SOLICITATION AGAINST CONTRACT NO. N00189 69- D-0022, DATED JULY 17, 1968, ISSUED PURSUANT TO IFB N00189-68-B0304, DATED JUNE 19, 1968, AWARDED BY THE SAME PROCURING ACTIVITY TO YOUR FIRM FOR THE NEARLY IDENTICAL TYPE OF SERVICES, WITH A FEW MINOR EXCEPTIONS TO BE DISCUSSED LATER. THIS CONTRACT WAS ALSO A REQUIREMENTS TYPE CONTRACT FOR THE PERIOD JULY 17, 1968 - JULY 15, 1969, LATER EXTENDED UNTIL OCTOBER 31, 1969, WITH COOPER-TRENT'S PRESENT CONTRACT TO BEGIN NOVEMBER 1, 1969.

EACH ITEM UNDER EACH OF THESE SOLICITATIONS HAD AN ESTIMATED YEARLY QUANTITY AND A SPACE FOR THE BIDDER TO INSERT A UNIT PRICE FOR THE ITEM, WITH THE TOTAL OF THE UNIT PRICE TIMES THE ESTIMATED YEARLY QUANTITY TO BE INSERTED UNDER AN AMOUNT COLUMN. UNDER BOTH SOLICITATIONS, THE TOTAL OF THE PRICES IN THE AMOUNT COLUMN WAS CONSIDERED BY THE CONTRACTING OFFICER TO BE THE PRICE BID, LESS ANY DISCOUNTS OFFERED.

THE PARAGRAPH CONCERNING ESTIMATED QUANTITIES YOU CLAIM WAS IN THE OLD SOLICITATION BUT WAS LEFT OUT OF THE NEW SOLICITATION APPEARS TO BE PARAGRAPH 9.1(A), CITED ABOVE, WHICH WAS CONTAINED IN BOTH SOLICITATIONS. IN FACT PARAGRAPHS 6.2 AND 9.1(A), PLUS PARAGRAPH 10(A) OF STANDARD FORM 33A, CITED ABOVE, WERE ALL CONTAINED WITHIN YOUR CONTRACT, AS WELL AS THE PRESENT SOLICITATION. READING THESE PARAGRAPHS TOGETHER MAKES THE BASIS OF AWARD SEEM QUITE CLEAR, AS EXPLAINED ABOVE, AND APPARENTLY WAS CLEAR TO YOU UNDER YOUR PREVIOUS CONTRACT SINCE YOU DID NOT OBJECT UPON RECEIVING THE AWARD OF THAT CONTRACT. IN FURTHERANCE OF YOUR ARGUMENTS THAT THERE WAS NO BASIS FOR AWARD AND THAT THERE WAS AN UNBALANCED BIDDING SITUATION, YOU HAVE ALSO CONTENDED THAT THE APPARENT LOW BIDDER WAS NOT THE ACTUAL LOW BIDDER. YOU HAVE STATED IN THIS REGARD:

"IF ITEM NO. 1 IS REQUISITIONED AND UTILIZED IN THE MANNER DETAILED IN OUR LETTER OF PROTEST, COOPER-TRENT'S PRICE FOR A REPORT WILL EXCEED THAT OF MICRO-SERVICES.

"EXAMPLE:

ORDERING ACTIVITY REQUISITIONING A

REPORT OF 25 SETS OF 110 DRAWINGS

IFB MICRO-SERVICES, INC. COOPER-TRENT

ITEM NO. REPORT UTILIZING BASIC REPORT PRICE UTILIZING INDIVIDUAL

REQUIREMENTS ITEMS PRICES WITHOUT

BASIC REPORT

1 $129.00 - - - - - -

3 100.00 $ 37.00

5 - - - - - - 22.00

9 3.00 10.60

11 20.00 132.50

13 40.00 13.50

17 67.50 137.50

19 6.00 9.00

IFB MICRO-SERVICES, INC. COOPER-TRENT

ITEM NO. REPORT UTILIZING BASIC REPORT PRICE UTILIZING INDIVIDUAL

REQUIREMENTS ITEMS PRICES WITHOUT

BASIC REPORT

21 $ 20.00 $ 24.00

23 9.00 15.00

25 20.00 21.00

30 2.25 3.75

31 3.00 1.00

61 7.00 68.00

TOTAL $426.75 $498.35"

THE AGENCY STATES IN REPLY TO THIS CONTENTION:

" *** HE (MICRO-SERVICES) ARBITRARILY SELECTS 110 DRAWINGS AND THEN PROCEEDS TO COMPARE HOW HE WOULD PRICE THE JOB AND HOW HE 'THINKS' COOPER- TRENT WOULD PRICE THE JOB. FOR HIS PRICE HE UTILIZES ITEM NUMBERS 1, 3, 5, 9, 11, 13, 17, 19, 21, 23, 25, 30, 31 AND 61. THIS IS HARD TO COMPREHEND SINCE ITEM 1 IS ABSOLUTELY NOT APPLICABLE FOR 110 DRAWINGS. NEXT, HE LISTS ITEM 3 AT $100.00 WHICH SHOULD BE $200.00. HE THEN LISTS ITEMS 9, 11 AND 13 FOR WHICH THERE SHOULD BE NO CHARGE. HIS CHARGE FOR ITEM 17 IS LISTED AT $67.50 WHEN IT SHOULD ONLY BE $16.50. ITEM 19 IS CORRECT BUT ITEM 21 SHOULD BE $60.00 IN LIEU OF $20.00. ITEM 23 SHOULD BE $54.00 IN LIEU OF $9.00. ITEM 25 SHOULD BE $60.00 IN LIEU OF $20.00.

"HE CONTINUES BY LISTING HIS HAND TIME CHARGES (ITEM 61) AT $7.00 COMPARED TO $68.00 FOR COOPER-TRENT. IF THIS WERE IN FACT AN ACTUAL BILLING FROM MICRO-SERVICES IF THEY HELD THE CONTRACT, IT IS OUR OPINION THE HAND TIME CHARGES PRESENTED WOULD BE FAR GREATER THAN $7.00 (ONE HOUR) SINCE UNDER THE PREVIOUS CONTRACT HE HELD HE CHARGED AN AVERAGE OF 16 HOURS PER JOB UNDER THIS ITEM. ALSO, HIS ANALYSIS OF COOPER-TRENT'S INDIVIDUAL ITEM PRICES WITHOUT THE BASIC REPORT IS ERRONEOUS. EXCLUDING HAND TIME (ITEM 61) AND ITEMS 30 AND 31, THE FOLLOWING ITEMS SHOULD BE USED IN COMPUTING COSTS FOR 25 SETS OF 110 DRAWINGS:

"ITEM MICRO-SERVICES COOPER-TRENT

3 2 $100.00 $200.00 2 $18.50 $37.00

5 2 20.00 40.00 2 7.50 15.00

17110 .15 16.50 110 .05 5.50

19 2 6.00 12.00 2 3.00 6.00

21 3 20.00 60.00 3 8.00 24.00

23 6 9.00 54.00 6 6.00 36.00

25 3 20.00 60.00 3 7.00 21.00

26 2,640 .10 264.00 2,640 .06 158.40

$706.50 $302.90

"COOPER-TRENT BID $3,814.40 LESS THAN MICRO-SERVICES ON ITEMS 1 AND 2. CONSIDERING THAT THESE ITEMS WERE EXCLUDED IN THEIR ENTIRETY, COOPER- TRENT'S BID WOULD STILL BE MUCH LOWER THAN MICRO-SERVICES:

"ITEM MICRO-SERVICES COOPER-TRENT

1 32 REPORTS $129.00 $4,128.00 32 REPORTS $34.80 $1,113.60

2 8 REPORTS $139.00 1,112.00 8 REPORTS $39.00 312.00

$5,240.00 $1,425.60

-1,425.60

DIFFERENCE: $3,814.40

"THIS WOULD ONLY REDUCE THE DIFFERENCE IN THE TOTAL CONTRACT BID BY $3,814.40. THE PREVIOUS DIFFERENCE WAS $10,431.82. THIS WOULD LEAVE COOPER-TRENT STILL $6,617.42 LESS THAN MICRO-SERVICES FOR THE BALANCE OF THE ITEMS."

WE MUST AGREE WITH THE CONTRACTING OFFICER THAT ITEM 1 IS CLEARLY NOT APPLICABLE FOR 110 DRAWINGS, IN THAT ITEM 1 IS APPLICABLE ONLY FOR UP TO 25 SETS OF EXACTLY 92 DRAWINGS. AT ANY RATE, THE PROPER TEST TO DETERMINE THE LOW BIDDER IS THE EVALUATION OF BIDS CRITERIA ESTABLISHED UNDER THE SOLICITATION AND NOT THE METHOD THE PROCURING ACTIVITY MAY ORDER UNDER ONCE AWARD HAS BEEN MADE. AS INDICATED EARLIER, WE SEE NO BASIS FOR QUESTIONING THE ESTIMATES ESTABLISHED IN THE PROPOSAL AND USED BY THE AGENCY FOR EVALUATION PURPOSES TO DETERMINE THE LOW BIDDER.

ANOTHER CONTENTION YOU HAVE ADVANCED IS THAT COOPER-TRENT, NPPSO AND NSC DO NOT UNDERSTAND THE TYPE OF SERVICES TO BE PERFORMED UNDER THE IFB. THIS CONTENTION APPEARS TO CONSIST OF TWO PARTS: YOU CLAIM THE IFB SPECIFICATIONS ARE VAGUE AND AMBIGUOUS, AND THAT THE SOLICITATION SHOULD HAVE CONTAINED ADDITIONAL TECHNICAL DESCRIPTIONS SO THAT ALL BIDDERS WERE EQUALLY INFORMED AS TO THE GOVERNMENT'S REQUIREMENTS. ALSO, THAT THE GOVERNMENT IS UNABLE TO ISSUE PURCHASE ORDERS ON THE BASIS OF THE SPECIFICATIONS CONTAINED IN THE IFB SO THAT COOPER-TRENT IS DICTATING TO NMEF (NAVAL MINE ENGINEERING FACILITY) HOW TO PREPARE PURCHASE ORDERS UNDER THE CONTRACT.

IN REGARD TO YOUR CONTENTION THAT THE IFB ISSUED IS AMBIGUOUS, AS WELL AS MISLEADING, YOU STATE NOT ONLY WERE THE BIDDERS NOT BIDDING EQUALLY, BUT THE DESCRIPTIONS OF THE ITEMS DO NOT DETAIL SUFFICIENT MINIMUM STANDARDS AND SPECIFICATIONS IN ORDER TO REPORT WORK PERFORMED BY THE CONTRACTOR. YOU ARGUE THAT THERE ARE CURRENT EXISTING DOD SPECIFICATIONS WHICH SHOULD HAVE BEEN CITED BY NUMBER AND PARAGRAPHS AND THAT THE INACCURATE DESCRIPTIONS AND LACK OF DESCRIPTIONS RESTRICTED THE NUMBER OF QUALIFIED BIDDERS.

BY REASON OF THESE DEFECTS, YOU CONTEND THAT A BIDDER NOT FAMILIAR BY EXPERIENCE WITH NMEF'S REQUIREMENTS HAD NO BASIS ON WHICH TO SUBMIT PRICES AND, CONSEQUENTLY, WAS PLACED IN AN UNTENABLE POSITION, SINCE HE COULD QUOTE AT A PRICE TO FURNISH SERVICES BELOW MINIMUM COMMERCIAL STANDARDS OR HE COULD SUBMIT PRICES THAT WOULD NOT QUALIFY HIM AS LOW BIDDER. YOU EMPHASIZE THAT LOW PRICE ALONE WITHOUT QUALITY AND OTHER ASSURANCES DOES NOT NECESSARILY RESULT IN FINANCIAL SAVINGS TO THE GOVERNMENT, AND THAT THE MEMBERS OF THE REPRODUCTION AND MICROFILMING INDUSTRIES, INCLUDING MICRO-SERVICES, WOULD BE PLEASED TO PROVIDE THE GOVERNMENT INFORMATION RELATING TO SPECIFICATIONS AND STANDARDS.

IN REGARD TO THIS QUESTION OF AMBIGUOUS SPECIFICATIONS, WE HAVE CAREFULLY COMPARED THE SOLICITATION ITEM DESCRIPTIONS WITH THE ITEM DESCRIPTIONS UNDER THE REQUIREMENTS CONTRACT PREVIOUSLY DISCUSSED, WHICH YOU HELD WITH THIS SAME COMMAND UNTIL THE DAY THE NEW CONTRACT WENT INTO EFFECT. NOTE ONLY THE FOLLOWING ITEM CHANGES FROM YOUR CONTRACT WITH COOPER- TRENT'S CONTRACT:

LOT 1, ITEM NO. 1 FOR REPRODUCTION OF A COMPLETE DESIGN DEPARTMENT REPORT WAS CHANGED. LOT 5, ITEM NO. 26, AA, AB, AC, AD IN YOUR CONTRACT - ELIMINATED IN NEW CONTRACT.

LOT 5, ITEM NO. 44 AND ITEM NO. 45 ARE IN NEW CONTRACT - SIMILAR TO ITEM NO. 26 IN YOUR CONTRACT WITH SEVERAL SUB-ITEMS ELIMINATED.

LOT 5, ITEM NO. 27 IN YOUR CONTRACT, FILM NEGATIVES - ELIMINATED IN NEW CONTRACT.

LOT 5, ITEM NO. 28 IN YOUR CONTRACT, FILM POSITIVES - ELIMINATED IN NEW CONTRACT.

LOT 6, DUPLICATING SERVICE - ENTIRE LOT IN YOUR CONTRACT - ELIMINATED IN NEW CONTRACT.

LOT 7, ITEM 62, IN NEW CONTRACT, PHOTOGRAPHIC DRAWING RESTORATION - NOT IN YOUR CONTRACT.

AN ADDITIONAL ITEM FOR 24 HOUR SERVICE WAS ADDED FOR EACH ITEM WANTED IN OTHER THAN NORMAL DELIVERY TIME. OTHER THAN THESE FEW CHANGES, BOTH CONTRACTS CONTAINED IDENTICAL ITEMS WITH IDENTICAL WORDING.

YOU HAVE DISCUSSED IN GREAT DETAIL WHAT YOU CONSIDER TO BE AMBIGUOUS ABOUT ITEMS 3, 7, 9, 11, 13, 15, 16, 19-26, 29-59. ALL OF THESE ITEMS EXCEPT ITEM 26 WERE IDENTICALLY WORDED IN YOUR CONTRACT AND SIMILARLY, ITEM 26 IS COMPARABLE WITH ITEM 44 AND 45 OF YOUR CONTRACT IN THAT THEY BOTH REQUIRE COLD TYPE COMPOSITION, BUT WITH MINOR CHANGES IN THE DESCRIPTION AND PRICING METHOD OF THE MAIN ITEM AND WITH THE ELIMINATION OF THREE OF FOUR SUB-ITEMS. THE APPROPRIATE TIME FOR A DETAILED EXAMINATION OF THE SOLICITATION AND CLARIFICATION OF ANY PROVISION THEREOF CONSIDERED TO BE AMBIGUOUS OR CONFUSING IS PRIOR TO THE TIME SPECIFIED FOR SUBMISSION OF BIDS. (SEE B-162566, DECEMBER 13, 1967 AND B-151355, JUNE 25, 1963.) SINCE ALL OF THESE ITEMS YOU HAVE SPECIFICALLY DISCUSSED AS BEING AMBIGUOUS WERE INVOLVED IN YOUR OLD CONTRACT, WE BELIEVE IT WAS YOUR DUTY TO REQUEST CONFIRMATION OR CLARIFICATION ON THESE ITEMS FROM THE PROCURING ACTIVITY BEFORE YOU SUBMITTED YOUR BID, IN ACCORDANCE WITH SOLICITATION INSTRUCTIONS AND CONDITIONS NO. 3 OF THE IFB, AS FOLLOWS:

"3. EXPLANATION TO OFFERORS. ANY EXPLANATION DESIRED BY AN OFFEROR REGARDING THE MEANING OR INTERPRETATION OF THE SOLICITATION, DRAWINGS, SPECIFICATIONS, ETC; MUST BE REQUESTED IN WRITING AND WITH SUFFICIENT TIME ALLOWED FOR A REPLY TO REACH OFFERORS BEFORE THE SUBMISSION OF THEIR OFFERS. ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE THE AWARD OF THE CONTRACT WILL NOT BE BINDING. ANY INFORMATION GIVEN TO A PROSPECTIVE OFFEROR CONCERNING A SOLICITATION WILL BE FURNISHED TO ALL PROSPECTIVE OFFERORS AS AN AMENDMENT OF THE SOLICITATION, IF SUCH INFORMATION IS NECESSARY TO OFFERORS IN SUBMITTING OFFERS ON THE SOLICITATION OR IF THE LACK OF SUCH INFORMATION WOULD BE PREJUDICIAL TO UNINFORMED OFFERORS."

IN VIEW THEREOF, AND SINCE TWENTY-SIX POTENTIAL SOURCES WERE SOLICITED UNDER THE PRESENT SOLICITATION, WITH NO ITEMS BEING CHALLENGED, UNDER THE PROCEDURES PROVIDED UNDER NO. 3 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS QUOTED ABOVE, WE MUST CONCLUDE THAT IT WAS PROPER FOR THE AGENCY TO ASSUME THAT EVERY ITEM WAS UNDERSTOOD.

YOU HAVE MENTIONED THAT YOU AND YOUR TECHNICAL REPRESENTATIVE HAD A MEETING WITH THE DIRECTOR FOR THE PURCHASE DEPARTMENT FOR THE PROCURING ACTIVITY ON SEPTEMBER 9, 1969, WHICH WAS BEFORE THE SOLICITATION ISSUANCE DATE OF SEPTEMBER 23, 1969. YOU STATE THAT AT THIS MEETING YOU OFFERED TO ASSIST THE GOVERNMENT IN PREPARING THE MICROPHOTOGRAPHIC TECHNICAL REQUIREMENTS FOR SERVICES UNDER THE IFB BUT THE DIRECTOR STATED HE WAS UNABLE TO ACCEPT YOUR OFFER, SINCE THE GOVERNMENT PROVIDED HIS STAFF WITH ALL THE TECHNICAL ASSISTANCE NECESSARY. YOU EMPHASIZE THAT YOU INFORMED THE DIRECTOR AT THE MEETING THAT THE IFB REQUIRED PROPER DESCRIPTIONS OF ALL ITEMS SO THAT A BIDDER NOT HAVING THE INDIVIDUAL EXPERIENCE DEALING WITH THE ACTIVITIES INVOLVED WOULD KNOW HOW TO PROPERLY PREPARE HIS PRICES. YOU CLAIM YOU STATED TO THE DIRECTOR THAT THERE WOULD BE NO PROBLEM AS LONG AS ALL BIDDERS WERE FAMILIAR WITH EACH NAVY ACTIVITY'S PROGRAMS, BUT WHEN FIRMS WERE INVITED TO BID WITHOUT THIS PRIOR KNOWLEDGE, THE GOVERNMENT WOULD BE FACED WITH SERIOUS PROBLEMS INVOLVING THE ADMINISTRATION OF CONTRACTS WHICH DID NOT CONTAIN DETAILED SPECIFICATIONS.

THIS MEETING WOULD HAVE BEEN THE PROPER TIME FOR YOU TO SPECIFICALLY EMPHASIZE THOSE ITEMS IN YOUR EXISTING CONTRACT WHICH YOU FELT WERE VAGUE IN THE NEW SOLICITATION, WHICH ITEMS WE HAVE DISCUSSED ABOVE, AND THE PROCURING ACTIVITY AT THAT TIME COULD HAVE CONSIDERED THOSE SPECIFIC OBJECTIONS BEFORE SENDING OUT THE NEW IFB. WE WOULD HAVE TO AGREE WITH THE PROCURING ACTIVITY, HOWEVER, THAT THEY COULD NOT LET YOU ASSIST IN PREPARING THE MICROPHOTOGRAPHIC TECHNICAL REQUIREMENT FOR SERVICES UNDER THE NEW IFB. WE FEEL CERTAIN THE AGENCY WOULD HAVE WELCOMED SPECIFIC SUGGESTIONS CONCERNING VAGUENESS IN YOUR THEN EXISTING CONTRACT TO AVOID ANY POSSIBLE VAGUENESS IN THE NEW SOLICITATION, BUT THIS OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THE PREPARATION AND ESTABLISHMENT OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT IS A MATTER PRIMARILY WITHIN THE JURISDICTION OF THE PROCUREMENT AGENCY. 38 COMP. GEN. 190 (1958); 37 ID. 757 (1958); 17 ID. 554 (1938). WE ALSO RECOGNIZE THAT GOVERNMENT PROCUREMENT OFFICIALS WHO ARE FAMILIAR WITH THE CONDITIONS UNDER WHICH SUPPLIES OR EQUIPMENT WILL BE USED AND WITH PAST RESULTS OBTAINED IN THE USE OF SIMILAR EQUIPMENT ARE GENERALLY IN THE BEST POSITION TO KNOW THE GOVERNMENT'S NEEDS AND BEST ABLE TO DRAFT APPROPRIATE SPECIFICATIONS.

IN THIS RESPECT, WE HAVE HELD THAT THE GOVERNMENT CANNOT BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WOULD HAVE THE EFFECT OF REQUIRING ACCEPTANCE OF GOODS NOT MEETING THE CONSIDERED NEEDS OF THE PROCUREMENT AGENCY. 36 COMP. GEN. 251 (1956); 16 ID. 38 (1936). IN REGARD TO YOUR CONTENTION THAT THE GOVERNMENT IS UNABLE TO ISSUE PURCHASE ORDERS ON THE BASIS OF THE DESCRIPTIONS AND SPECIFICATIONS CONTAINED IN THE IFB, SO THAT COOPER-TRENT IS DICTATING TO NMEF HOW TO PREPARE PURCHASE ORDERS UNDER THE CONTRACT, YOU CLAIM IN YOUR LETTER OF JANUARY 26, 1970, THAT NMEF HAS NOT PREPARED PURCHASE ORDERS (DD 1155'S) FOR AT LEAST FIVE WORK ORDERS PLACED WITH COOPER TRENT. YOU STATE EACH WORK ORDER CONSISTS OF ONE DESIGN DEPARTMENT REPORT AS DEFINED BY IFB ITEM 1 AND DELIVERY HAS BEEN COMPLETED, BUT SINCE NO PURCHASE ORDERS HAVE BEEN PREPARED, NO INVOICES HAVE BEEN SUBMITTED.

SINCE THIS WAS A REQUIREMENTS CONTRACT WITH MINIMUM AND MAXIMUM ORDER LIMITATIONS, THE FOLLOWING CLAUSES WERE INSERTED CONCERNING THE ACTUAL PLACING OF ORDERS:

"8.3 TELEPHONE ORDERS

ORAL ORDERS MAY BE PLACED BY THE ORDERING ACTIVITY. THE FOLLOWING SPECIAL TERMS AND CONDITIONS WILL APPLY TO SUCH ORDERS:

1. NO SINGLE ORDER WILL EXCEED $2,500.00.

2. ORAL ORDERS WILL BE PLACED BY THE PERSONNEL STATED IN 8.1 (A) ABOVE.

3. CONTRACTOR WILL FURNISH A DELIVERY TICKET IN TRIPLICATE, WHEN EACH SHIPMENT UNDER AN ORAL ORDER CONTAINING THE FOLLOWING INFORMATION:

A. CONTRACT NUMBER,

B. ORDER NUMBER AND DATE,

C. QUANTITY ORDERED WHEN DIFFERENT FROM THE QUANTITY STATED ON THE

PURCHASE REQUEST DOCUMENT,

D. UNIT AND TOTAL CONTRACT PRICE AND TIME OF DELIVERY,

E. SIGNATURE AND TITLE OF PERSON PLACING THE ORDER.

4. INVOICES SUBMITTED FOR SUPPLIES DELIVERED IN RESPONSE TO ORAL ORDERS MUST BE ACCOMPANIED WITH A RECEIPTED COPY OF EACH RELATED DELIVERY TICKET.

"8.4 TELEPHONE NUMBER

BIDDER MUST STATE BELOW THE TELEPHONE NUMBER TO BE CALLED BY ACTIVITY PLACING ORDERS. TELEPHONE NUMBER (INDICATE WHETHER TOLL FREE OR COLLECT).

"8.5 PLACEMENT OF ORDERS:

AFTER THE PLACEMENT OF ORAL DELIVERY ORDERS, A WRITTEN COPY OF THE ORDER ON DD 1155, COMPLETE WITH THE WORK TO BE PERFORMED, SHALL BE DELIVERED TO THE CONTRACTOR'S REPRESENTATIVE WITH THE MATERIAL TO BE REPRODUCED, WITHIN 24 HOURS.

"8.6 THE FOLLOWING INFORMATION IS TO BE STATED ON EACH ORDER ISSUED UNDER THE CONTRACT RESULTING FROM THIS INVITATION:

A. DATE OF ORDER;

B. CONTRACT NUMBER AND ORDER NUMBER;

C. ITEM NUMBER AND DESCRIPTION, QUANTITY ORDERED AND CONTRACT PRICE; REQUISITION NUMBER;

D. DELIVERY OR PERFORMANCE DATE;

E. PLACE OF DELIVERY OR PERFORMANCE;

F. PACKAGING, PACKING, AND SHIPPING INSTRUCTIONS, IF ANY;

G. ACCOUNTING AND APPROPRIATION DATA;

H. INSPECTION, INVOICING AND PAYMENT PROVISIONS TO THE EXTENT NOT COVERED IN THE CONTRACT;

I. ANY OTHER PERTINENT INFORMATION."

YOU CLAIM NMEF HAS NOT PREPARED AND IS UNABLE TO ISSUE ITS PURCHASE ORDERS BECAUSE OF THE AMBIGUITIES CONTAINED IN THE IFB AND HAS ASKED NSC NORVA TO MAKE A DETERMINATION OF THE PROPER BILLING PROCEDURES TO BE FOLLOWED UNDER THIS CONTRACT. YOU STATE THAT COOPER-TRENT HAS INFORMED NMEF BY LETTER HOW TO PREPARE A DD 1155 FOR REPORTS NUMBERED DDR NO. 25 AND DDR NO. 26, AND REQUESTED THE DD 1155'S BE PREPARED IN ACCORDANCE WITH THE QUANTITIES AND ITEMS LISTED BY COOPER-TRENT, WHICH LIST YOU ALLEGE IS NOT IN CONFORMITY WITH THE CONTRACT ITEM DESCRIPTIONS. YOU EMPHASIZE THAT DDR NO. 26 CONTAINS LESS THAN 92 DRAWINGS YET COOPER-TRENT IS ADVISING THE GOVERNMENT TO PREPARE A PURCHASE ORDER LISTING THE INDIVIDUAL COMPONENT ITEMS REQUIRED BY A REPORT, AS WELL AS THE PACKAGE ITEM 1. YOU STATE THE INDIVIDUAL ITEMS OF THE IFB FOR WHICH THE CONTRACTOR DESIRES PAYMENT ARE 5, 11, 13, 19, 21, 23, 25, 28 AND 61, AND YOU FEEL ALL OF THESE ITEMS SHOULD BE FURNISHED AT THE UNIT PRICE OF ITEM 1. YOU BASE THIS CONTENTION ON THE FACT THAT ITEM 1 STATES THE CONTRACTOR SHALL "PROVIDE MICROFILMING, IDENTIFICATION (KEYPUNCHING RELATED SERVICES) MOUNTING, BLUE LINE, PACKAGE SEALING, DISTRIBUTION FOR ONE DESIGN DEPARTMENT REPORT, ETC." IN SUMMARY, YOU FEEL COOPER-TRENT'S TECHNICAL REPRESENTATIVE CAN SUGGEST A COMBINATION OF ITEMS, INCLUDING NO. 61 OR 62, THAT WILL ESTABLISH A PRICE WHICH WILL ASSURE THE FIRM OF A PROFIT, AS WELL AS ADVISE THE PROCURING ACTIVITY OF THE NUMBER OF UNITS OF EACH ITEM THAT WILL BE NECESSARY IN THE PERFORMANCE OF THE TASKS TO BE COMPLETED.

THE PROCURING ACTIVITY STATES THE FOLLOWING CONCERNING THE ISSUANCE OF THE DD 1155'S AND COOPER-TRENT'S PARTICIPATION THEREIN:

"4. ADMITTEDLY, THERE WAS CONFUSION ON THE PART OF THE ORDERING ACTIVITY WITH REGARD TO THEIR INITIAL ORDERS. HOWEVER, THIS WAS ASCERTAINED AND CORRECTIVE MEASURES TAKEN PRIOR TO THE DATE OF EITHER OF MICRO-SERVICES, INC. LETTERS. SECTION 8.1 OF THE IFB WILL REVEAL THAT DD 1155'S COULD BE PREPARED BY THE SUPPLY OFFICER, NAVAL WEAPONS STATION, YORKTOWN, VA. OR HIS AUTHORIZED REPRESENTATIVE. THE SUPPLY OFFICER CHOSE TO ISSUE THE DD- 1155'S RATHER THAN AUTHORIZING NMEF TO DO SO. TRUE - THE CONTRACT, ITEM 8.6, DOES SPECIFY THAT A WRITTEN COPY OF THE DD-1155 SHALL BE DELIVERED TO THE CONTRACTOR'S REPRESENTATIVE WITH THE MATERIAL TO BE REPRODUCED WITHIN 24 HOURS. THE MATERIAL FOR THESE REPORTS WAS RELEASED TO COOPER-TRENT WITHOUT THE DD-1155 AS IT HAD BEEN RELEASED TO MICRO-SERVICES FROM TIME TO TIME IN THE PAST EVEN THOUGH ITEM 8.3 OF THE PREVIOUS CONTRACT IN EFFECT AT THAT TIME ALSO REQUIRED THAT A COPY OF THE WRITTEN ORDER BE DELIVERED TO THE CONTRACTOR'S REPRESENTATIVE WITH MATERIAL TO BE REPRODUCED. SEVERAL QUESTIONS DID ARISE CONCERNING THE INITIAL ORDERS PLACED WITH COOPER-TRENT BUT THESE WERE RESOLVED AND DD-1155'S HAVE BEEN PREPARED TO THE SATISFACTION OF ALL CONCERNED IN ACCORDANCE WITH CONTRACT WORDING. -1155'S WILL BE PREPARED AND A COPY SUBMITTED TO THE CONTRACTOR WITH THE MATERIAL FOR ALL FUTURE ORDERS.

COOPER-TRENT REPRESENTATIVES STATED THAT THEY HAD BID ITEM NO. 1. EXACTLY AS SET FORTH IN THE CONTRACT WHICH WAS UP TO 25 SETS OF 92 DRAWINGS. FOR ORDERS OF LESS THAN OR MORE THAN 92 DRAWINGS, THE JOBS WOULD NOT FALL IN ITEM NO. 1.

"IN MICRO-SERVICES' LETTER OF 26 JANUARY 1970, MR. LAYTON STATES THAT COOPER-TRENT HAD INFORMED THE NAVAL MINE ENGINEERING FACILITY AT YORKTOWN, VA. BY LETTER HOW TO PREPARE A DD-1155 FOR REPORTS NUMBERED DDR 25 AND DDR 26. NO OFFICIAL SIGNED AND DATED CORRESPONDENCE WAS EVER SENT TO NMEF BY COOPER-TRENT. AN UNOFFICIAL LISTING OF WORK ACCOMPLISHED WAS PROVIDED FOR DISCUSSION BETWEEN COOPER-TRENT AND NMEF REPRESENTATIVES PRIOR TO THE PREPARATION OF THE DD-1155'S. SINCE THESE WERE THE FIRST JOBS TO BE ACCOMPLISHED UNDER THIS CONTRACT, IT WAS CONSIDERED DESIRABLE TO HAVE A COMPLETE MUTUAL UNDERSTANDING OF THE ITEMS INVOLVED. SINCE THIS TIME, DD- 1155'S HAVE BEEN PREPARED IN ACCORDANCE WITH THE PROPER CONTRACT ITEMS AND TO THE COMPLETE SATISFACTION OF ALL CONCERNED."

WE HAVE CAREFULLY EXAMINED THE FIRST TEN ORDERS ISSUED UNDER THIS CONTRACT AND FIND THAT THE PRICING OF THESE ORDERS APPEARS TO BE IN ACCORDANCE WITH THE CONTRACT PROVISIONS, BUT WE NOTE THERE WAS SOME DELAY BETWEEN THE PLACING OF THE ORAL ORDERS AND THE ISSUANCE OF THE DD 1155'S. WE HAVE BROUGHT THIS TO THE ATTENTION OF THE SECRETARY OF THE NAVY BY LETTER OF TODAY, COPY ENCLOSED, IN WHICH WE HAVE EXPRESSED THE FEELING THAT THE DD 1155'S COULD HAVE BEEN INITIALLY ISSUED WITHOUT THE CONTRACTOR'S HELP, AND THAT IF ADVICE FROM THE CONTRACTOR IS NECESSARY FOR THIS PURPOSE CONSIDERATION SHOULD BE GIVEN TO REVISING FUTURE SOLICITATIONS SO THAT THE GOVERNMENT IS ABLE TO ORDER WITHOUT PRIOR CONSULTATION WITH THE CONTRACTOR.

WE DO NOT FEEL, HOWEVER, THAT THE FAILURE OF THE GOVERNMENT TO ISSUE DD 1155'S IN A TIMELY MANNER COULD POSSIBLY AFFECT THE VALIDITY OF THIS CONTRACT SINCE THE GOVERNMENT IS THE PARTY DOING THE FINAL PRICING UNDER THE CONTRACT AND, AS PREVIOUSLY STATED, THE PRICES CHARGED THE GOVERNMENT APPEAR TO BE IN ACCORDANCE WITH THE CONTRACT PROVISIONS.

YOU HAVE FURTHER CONTENDED THAT YOU SUBMITTED BOTH A VERBAL AND A WRITTEN PROTEST BEFORE AWARD AND THAT THE CONTRACTING OFFICER FAILED TO FOLLOW THE ASPR REGULATIONS CONCERNING PROTESTS BEFORE AWARD. IN REGARD TO YOUR ARGUMENT THAT YOU MADE A PROTEST BEFORE AWARD YOU CONTEND THAT ON THE MORNING OF THURSDAY, OCTOBER 23, 1969, MR. JOHN C. LAYTON, JR; EXECUTIVE VICE-PRESIDENT OF YOUR FIRM, VISITED THE PURCHASE DEPARTMENT AT NSC AND, IN REQUESTING TO EXAMINE COOPER-TRENT'S BID, WROTE ON A PIECE OF SCRATCH PAPER THE NUMBER OF THE IFB AND THE WORDS "POSSIBLE PROTEST." YOU CLAIM MR. LAYTON, JR; RAISED AN OBJECTION TO COOPER-TRENTIS IFB AT THIS TIME WITH THE CONTRACTING OFFICER, IN THAT MR. LAYTON STATED THAT YOUR FIRM DID NOT FEEL THE CONTRACTOR COULD MEET THE EMERGENCY DELIVERY SCHEDULES. YOU STATE THAT, AFTER LEAVING THE BID ROOM, MR. JOHN C. LAYTON, JR; IMMEDIATELY CALLED HIS FATHER, MR. JOHN C. LAYTON, SR; TO INFORM HIM THAT A WRITTEN PROTEST SHOULD BE FILED.

THE PROCURING ACTIVITY DISPUTES THAT ANY NOTE WAS RECEIVED OF ANY TYPE STATING "POSSIBLE PROTEST" OR ANYTHING ELSE ON THURSDAY, OCTOBER 23, 1969, BUT STATES THAT A WRITTEN PROTEST WAS HAND-DELIVERED TO CDR. R. A. JONES, SC, USN, DIRECTOR, PURCHASE DEPARTMENT, NSC NORVA, ON OCTOBER 24, 1969, AT APPROXIMATELY 3:50 P.M; WHICH WAS AFTER MAILING OF THE AWARD TO COOPER- TRENT EARLIER THE SAME DAY. THE AGENCY STATES THAT CDR. JONES DID NOT KNOW AN AWARD HAD ALREADY BEEN MADE WHEN THE PROTEST WAS HAND-DELIVERED TO HIM, AND HE WOULD NOT NORMALLY HAVE REASON IN HIS POSITION TO POSSESS "UP TO THE HOUR" KNOWLEDGE OF THE STATUS OF AWARD OF SMALL DOLLAR AMOUNT, FORMALLY ADVERTISED, PROCUREMENTS. ACCORDING TO THE AGENCY, UPON MR. LAYTON, JR.'S DEPARTURE ON OCTOBER 24, 1969, CDR. JONES LEARNED THAT AN AWARD WAS MADE EARLIER THAT DAY AND ACCORDINGLY, THE CONTRACTING OFFICER, AT APPROXIMATELY 4:00 P.M. TELEPHONED MR. LAYTON, SR; AND ADVISED HIM THAT THE AWARD HAD ALREADY BEEN MADE AND MAILED TO COOPER-TRENT.

YOU CONTEND, IN REGARD TO YOUR DELIVERY OF THE WRITTEN PROTEST, THAT TECHNICALLY SPEAKING THE REPRODUCTION ORDER FOR THE DUPLICATION AND MAILING OF THE CONTRACT COULD HAVE BEEN PREPARED BUT THAT THE EVIDENCE PROVES THE ACTUAL MAILING COULD NOT HAVE OCCURRED ON FRIDAY, OCTOBER 24, 1969. YOU STATE NMEF DID NOT RECEIVE THEIR COPY OF THE CONTRACT UNTIL OCTOBER 30, 1969 AND THAT YOU HAVE BEEN INFORMED BY NSC ON SEVERAL OCCASIONS (REGARDING THE TIME REQUIRED FOR THE ACTUAL MAILING OF CONTRACTUAL DOCUMENTS) NOT TO EXPECT COPIES UNDER FIVE DAYS. FURTHER, YOU EMPHASIZE THE CONTRACTING OFFICER HAD THE AUTHORITY AND THE OPPORTUNITY TO CANCEL THE MAILING ORDER.

THE AGENCY STEADFASTLY CONTENDS THAT THE AWARD WAS MADE, SIGNED AND PLACED IN THE MAIL BY THE CONTRACTING OFFICER ON OCTOBER 24, 1969, PRIOR TO A PROTEST OF ANY KIND. IT IS ALSO THE POSITION OF THE AGENCY THAT RECEIPT OF COPIES BY NMEF ON ANY SPECIFIED DATE IS RATHER IMMATERIAL, SINCE STATION DISTRIBUTION ALONE OCCASIONALLY DELAYS RECEIPT ON ANY MILITARY INSTALLATION.

IN REGARD TO YOUR CONTENTION THAT THE CONTRACTING OFFICER, WHEN NOTIFIED OF THE "POSSIBLE PROTEST," (ASSUMING ARGUENDO THIS OCCURRED) SHOULD THEN HAVE REQUESTED WRITTEN CONFIRMATION AND WITHHELD AWARD IN ACCORDANCE WITH ASPR 2-407.9, CITED ABOVE, WE DO NOT FEEL THAT THE MERE POSSIBILITY THAT AN AWARD MIGHT BE PROTESTED IS SUFFICIENT TO BRING THIS ASPR SECTION INTO OPERATION. SIMILARLY, WE FEEL NO EVIDENCE HAS BEEN PRESENTED DISPROVING THE AGENCY'S CONTENTION THAT AWARD HAD ALREADY BEEN MADE WHEN THE WRITTEN PROTEST WAS RECEIVED. WE SPECIFICALLY FIND NO RESPONSIBILITY ON THE AGENCY'S PART TO TRY TO RETRIEVE OR CANCEL THE SIGNED AWARD FORM AFTER IT HAD BEEN PLACED IN THE MAIL. ALTHOUGH THIS COULD POSSIBLY HAVE BEEN A FAST AWARD IN TERMS OF AMOUNT OF TIME FROM THE OPENING OF THE BIDS TO CONTRACT AWARD (3 DAYS) BY PAST STANDARDS OF THIS COMMAND, THERE IS NOTHING WRONG IN AND OF ITSELF IN MAKING AN AWARD ONCE ALL REQUIREMENTS FOR MAKING THE AWARD HAVE BEEN ESTABLISHED. WE THEREFORE SEE NO LEGAL OBJECTION TO THE AGENCY'S PROCEDURES IN MAKING THE AWARD UNDER THIS SOLICITATION.

YOUR LAST CONTENTION IS THAT THIS PROCUREMENT SHOULD HAVE BEEN A SMALL BUSINESS SET-ASIDE. YOU STATE THAT UP UNTIL LAST YEAR MICRO SERVICES WAS ABLE TO PARTICIPATE IN NAVY INVITATIONS FOR BIDS WHICH WERE SET ASIDE FOR SMALL BUSINESS AND IN WHICH COMPETITION WAS FROM AREA CONTRACTORS. YOU STATE THAT YOU ATTEMPTED TO INTEREST THREE QUALIFIED SMALL BUSINESSES TO SUBMIT A BID ON THE CURRENT PROCUREMENT, BUT THEY LOST INTEREST WHEN YOU INFORMED THEM THERE WAS NO SMALL BUSINESS SET-ASIDE. YOU CLAIM YOUR INDUSTRY IS TRADITIONALLY COMPOSED PRIMARILY OF SMALL BUSINESSES AND BY NOT MAKING A SET-ASIDE THE PROCURING ACTIVITY RESTRICTED THE NUMBER OF BIDS. YOU STATE YOU APPRECIATE THE AGENCY'S POSITION IN THAT IT MUST RECEIVE COMPETITIVE BIDS, BUT YOU CANNOT UNDERSTAND ITS UNWILLINGNESS TO REQUIRE A SET ASIDE, AFTER AREA RESTRICTIONS HAD BEEN ELIMINATED AS A REQUIREMENT.

THE DIRECTOR OF THE PURCHASING DEPARTMENT, NSC, ADVISED YOU BY LETTER OF SEPTEMBER 11, 1969, THAT THE REASON HE WAS SOLICITING LARGE, AS WELL AS SMALL, BUSINESS CONCERNS IN THE PRINTING FIELD WAS BECAUSE THE ACTIVITY RECEIVED ONLY ONE BID ON THE CONTRACT FOR LAST YEAR, THAT IS, THE BID FROM YOUR COMPANY. HE ALSO ADVISED YOU THAT UNDER ASPR HE WAS ALLOWED TO SET ASIDE FOR SMALL BUSINESS ONLY WHEN THERE WAS A REASONABLE EXPECTATION THAT HE WOULD RECEIVE TWO OR MORE BIDS AT REASONABLE PRICES, AND SINCE THE ACTIVITY ONLY RECEIVED ONE SMALL BUSINESS BID LAST YEAR THE DECISION WAS MADE THAT IN ORDER TO SECURE COMPETITION LARGE BUSINESS CONCERNS SHOULD BE ALLOWED TO COMPETE ON THE NEW PROCUREMENT. THE PURCHASING DIRECTOR ALSO ADVISED YOU THAT HE HAS NO AUTHORITY TO RESTRICT THE SERVICES SO AS TO REQUIRE THAT THEY BE PERFORMED BY FIRMS IN THE LOCAL AREA. ASPR 1- 706.5(A)(I) PROVIDES FOR TOTAL SET-ASIDES FOR SMALL BUSINESS FIRMS ONLY IF THE CONTRACTING OFFICER DETERMINES THAT THERE IS A REASONABLE EXPECTATION THAT BIDS WILL BE OBTAINED FROM A SUFFICIENT NUMBER OF RESPONSIBLE SMALL BUSINESS CONCERNS SO THAT AWARDS WILL BE AT REASONABLE PRICES. SINCE YOUR FIRM MADE THE ONLY BID ON LAST YEAR'S CONTRACT AND THE CONTRACTING OFFICER HAD NO REASON TO BELIEVE THERE WOULD BE GREATER COMPETITION THIS YEAR, WE SEE NO REASON TO QUESTION THE CONTRACTING OFFICER'S DECISION NOT TO MAKE A SMALL BUSINESS SET-ASIDE. NEITHER ARE WE ABLE TO DISAGREE WITH THE CONTRACTING OFFICER'S CONCLUSION THAT HE WAS WITHOUT AUTHORITY TO REQUIRE THE SERVICES TO BE PERFORMED BY FIRMS LOCATED IN THE LOCAL AREA.