B-170207, OCT. 6, 1970

B-170207: Oct 6, 1970

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A BIDDER WHO DID NOT IDENTIFY ANY EXCLUDED FOREIGN PRODUCTS OR INDICATE THAT NO FOREIGN PRODUCTS WOULD BE INVOLVED MUST HAVE BID REGARDED AS A DOMESTIC BID AND SINCE BIDDER ADVISES THAT HE INTENDS TO COMPLY WITH THE BUY AMERICAN ACT THERE IS NO REASON TO REJECT BID FOR OMISSION. INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER DATED JUNE 30. IT IS REPORTED THAT THE FIRST STEP OF THIS TWO-STEP PROCUREMENT INVOLVED THE ISSUANCE OF REQUEST FOR PROPOSALS NO. THAT THE TECHNICAL PROPOSAL OF YOUR FIRM AND THAT OF THE HARSHAW CHEMICAL COMPANY WERE ACCEPTABLE. WAS ISSUED ON MARCH 25. "NOTE A" ON PAGE 4 OF THE IFB ADVISED BIDDERS THAT A PRICE SHOULD NOT BE QUOTED FOR ITEM 3 SINCE IT IS AN OPTION ITEM TO WHICH THE CLAUSE ENTITLED "OPTION FOR ELECTRONIC REPAIR PARTS" IS APPLICABLE.

B-170207, OCT. 6, 1970

BID PROTEST - NEGOTIATION - TWO STEP PROCUREMENT - DEFICIENCIES DENIAL OF PROTEST OF EG&G, INC., AGAINST THE AWARD OF CONTRACT TO HARSHAW CHEMICAL CO., LOW BIDDER, FOR THE FURNISHING OF THERMOLUMINESCENT DOSIMETERS AND COMPUTER INDICATORS (RADIAC EQUIPMENT) UNDER A TWO-STEP PROCUREMENT BY THE NAVAL ELECTRONICS SYSTEM COMMAND, WASHINGTON, D.C. ALTHOUGH A BIDDER STATED THAT DATA REQUIRED HAD BEEN FURNISHED UNDER A SEPARATE CONTRACT THAT DOES NOT RELIEVE HIM OF RESPONSIBILITY FOR FURNISHING REQUIRED DATA UNDER INSTANT CONTRACT. A BIDDER WHO DID NOT IDENTIFY ANY EXCLUDED FOREIGN PRODUCTS OR INDICATE THAT NO FOREIGN PRODUCTS WOULD BE INVOLVED MUST HAVE BID REGARDED AS A DOMESTIC BID AND SINCE BIDDER ADVISES THAT HE INTENDS TO COMPLY WITH THE BUY AMERICAN ACT THERE IS NO REASON TO REJECT BID FOR OMISSION.

TO EG & G, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER DATED JUNE 30, 1970, WITH ENCLOSURES, PROTESTING AGAINST THE ACTION OF THE NAVAL ELECTRONIC SYSTEMS COMMAND, WASHINGTON, D. C., IN AWARDING CONTRACT NO. N00039-70-C-1545 TO THE HARSHAW CHEMICAL COMPANY UNDER INVITATION FOR BIDS (IFB) NO. N00039-70-B-0005, STEP II.

IT IS REPORTED THAT THE FIRST STEP OF THIS TWO-STEP PROCUREMENT INVOLVED THE ISSUANCE OF REQUEST FOR PROPOSALS NO. N00039-70-R-0005(Q) ON OCTOBER 7, 1969, AND IT CALLED FOR TECHNICAL PROPOSALS FOR THE FURNISHING OF THERMOLUMINESCENT DOSIMETERS AND THERMOLUMINESCENT DOSIMETER COMPUTER INDICATORS (RADIAC EQUIPMENT), AND THAT THE TECHNICAL PROPOSAL OF YOUR FIRM AND THAT OF THE HARSHAW CHEMICAL COMPANY WERE ACCEPTABLE.

THEREAFTER, THE SECOND STEP OF THE PROCUREMENT, IFB N00039-70-B-0005, WAS ISSUED ON MARCH 25, 1970, TO TWO ACCEPTABLE OFFERORS. THE IFB REQUESTED BIDS ON THE THERMOLUMINESCENT DOSIMETER, ITEM 1, AND ON THE THERMOLUMINESCENT DOSIMETER COMPUTER INDICATOR, ITEM 2. "NOTE A" ON PAGE 4 OF THE IFB ADVISED BIDDERS THAT A PRICE SHOULD NOT BE QUOTED FOR ITEM 3 SINCE IT IS AN OPTION ITEM TO WHICH THE CLAUSE ENTITLED "OPTION FOR ELECTRONIC REPAIR PARTS" IS APPLICABLE. WITH RESPECT TO ITEM 4AA, DATA REQUIREMENTS, PROSPECTIVE BIDDERS WERE ADVISED THAT THE PRICE FOR THIS ITEM SHOULD BE INCLUDED IN THE PRICES FOR ITEMS 1 AND 2. ALSO, PROSPECTIVE BIDDERS WERE REFERRED TO EXHIBIT "A" (DD FORM 1423, CONTRACT DATA REQUIREMENTS LIST) AND SECTION "I," PARAGRAPH (10), OF THE IFB SCHEDULE FOR CONTRACT DATA REQUIREMENTS. PARAGRAPH 10 OF SECTION "I," ON PAGE 29 OF THE SCHEDULE PROVIDES AS FOLLOWS:

"(10) THE OFFEROR SHALL STATE THAT THE DATA ORDERED ON DD FORM 1423 HAS OR HAS NOT BEEN SUBMITTED PREVIOUSLY BY HIM TO THE GOVERNMENT. IF SUCH DATA HAS BEEN PREVIOUSLY SUBMITTED, OFFEROR SHALL STATE WHEN, AND UNDER WHAT CONTRACT.

PROSPECTIVE BIDDERS WERE REQUESTED TO QUOTE PRICES FOR THE REQUIRED EQUIPMENT ON A SINGLE YEAR (ALTERNATE "A") AND ON A MULTIYEAR (ALTERNATE "B") BASIS.

IN RESPONSE TO THE IFB, YOUR FIRM AND THE HARSHAW CHEMICAL COMPANY SUBMITTED THE FOLLOWING BIDS:

HARSHAW

EG&G, INC. CHEMICAL CO. ITEM 1

ALTERNATE "A" $ 326,400 $ 102,000

ALTERNATE "B" 844,200 331,650 ITEM 2

ALTERNATE "A" (SHOCK TESTED WITH P.M. TUBE) 990,000 945,000

ALTERNATE "A" (SHOCK TESTED W/O P.M. TUBE) 910,000 755,000

ALTERNATE "B" (SHOCK TESTED WITH P.M. TUBE) 1,740,000 1,656,000

ALTERNATE "B" (SHOCK TESTED W/O P.M. TUBE) 1,608,000 1,332,000 TOTAL PRICE OF ALTERNATE "A"

SHOCK TESTED WITH P.M. TUBE 1,316,400 1,047,000

SHOCK TESTED W/O P.M. TUBE 1,236,400 857,000 TOTAL PRICE OF ALTERNATE "B"

SHOCK TESTED WITH P.M. TUBE 2,584,200 1,987,650

SHOCK TESTED W/O P.M. TUBE 2,452,200 1,663,650 UNDER PARAGRAPH 10, SECTION "I," OF THE BIDDING SCHEDULE, HARSHAW INDICATED THAT THE DATA ORDERED ON DD FORM 1423 HAD BEEN SUBMITTED PREVIOUSLY BY IT TO THE GOVERNMENT UNDER CONTRACT "G.E. KNOLLS MAY 1970."

BY TELEGRAM AND LETTERS DATED MAY 27 AND JUNE 2, 1970, ADDRESSED TO THE CONTRACTING OFFICER, YOU PROTESTED AGAINST THE MAKING OF ANY AWARD TO THE HARSHAW CHEMICAL COMPANY. BY LETTER DATED JUNE 26, 1970, THE DIRECTOR OF CONTRACTS, NAVAL ELECTRONIC SYSTEMS COMMAND, DENIED YOUR PROTEST. ON JUNE 26, 1970, AWARD WAS MADE TO THE HARSHAW CHEMICAL COMPANY AS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER.

IN YOUR TELEGRAM AND LETTER OF JUNE 30, 1970, YOU STATE THREE BASES FOR YOUR BELIEF THAT THE BID OF THE HARSHAW CHEMICAL COMPANY WAS NONRESPONSIVE TO THE IFB.

FIRST, YOU MAINTAIN THAT HARSHAW HAD FALSELY INDICATED IN ITS BID THAT IT HAD PREVIOUSLY SUBMITTED THE DATA CALLED FOR BY DD FORM 1423 (CONTRACT DATA REQUIREMENTS LIST) FOR THE SUBJECT PROCUREMENT. YOU STATE THAT HARSHAW INDICATED IN ITS BID THAT IT HAD PREVIOUSLY SUBMITTED THE DATA REQUIRED UNDER THE SUBJECT IFB TO THE GOVERNMENT THROUGH THE GENERAL ELECTRIC COMPANY IN RESPONSE TO IFB NO. 71545-V. YOU POINT OUT THAT NO CONTRACT AWARD HAS AS YET BEEN MADE UNDER IFB NO. 71545-V AND THAT EG&G, INC., HAS DISCUSSED THAT PROCUREMENT AT THE GENERAL ELECTRIC COMPANY'S INVITATION AS RECENTLY AS MAY 27, 1970, THE DAY FOLLOWING THE DATE ON WHICH BIDS WERE OPENED UNDER THE SUBJECT PROCUREMENT. YOU ALLEGE THAT EVEN IF HARSHAW WERE NOW PERFORMING UNDER THE GENERAL ELECTRIC CONTRACT, THE REQUIREMENTS THEREOF ARE SO DIFFERENT FROM THOSE OF THE SUBJECT IFB THAT THE DATA GENERATED THEREUNDER WOULD BE INAPPLICABLE TO THE OTHER. ALSO, YOU STATE THAT TO THE BEST OF YOUR KNOWLEDGE, GENERAL ELECTRIC HAS NOT AS YET IDENTIFIED THE DATA TO BE FURNISHED BY HARSHAW.

YOU CONTEND THAT BY STATING IN ITS BID THAT IT HAD PREVIOUSLY FURNISHED THE REQUIRED DATA TO THE GOVERNMENT THROUGH GENERAL ELECTRIC HARSHAW CONDITIONED ITS BID ON RECEIVING AN AWARD OF A CONTRACT FROM THAT COMPANY AND UPON THE GOVERNMENT'S ACCEPTANCE OF DATA IN ACCORDANCE WITH THE GENERAL ELECTRIC BID UNDER IFB 71545-V. YOU STATE THAT IT APPEARS THAT HARSHAW HAS NOT PRICED THE REQUIRED DATA INTO ITS BID PRICE AND THAT IF THE CONTRACT WERE AWARDED TO HARSHAW, AND THE GOVERNMENT REQUESTED DELIVERY OF THE DATA REQUIRED BY THE SUBJECT IFB, HARSHAW COULD REFUSE TO FURNISH IT UNLESS IT RECEIVED ADDITIONAL COMPENSATION BECAUSE IT DID NOT OFFER TO SUPPLY THE DATA REQUIRED BY THE SUBJECT IFB. IN THIS REGARD, IT IS YOUR VIEW THAT HARSHAW WOULD HAVE A DEFENSE SIMILAR TO THE ONE OFFERED BY THE APPELLANT AND ACCEPTED BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS (ASBCA) IN THE CASE OF GRENELL MANUFACTURING, INC., ASBCA NO. 12862, FEBRUARY 25, 1969.

THE CITED DECISION CONCERNED A DISPUTE BETWEEN THE APPELLANT AND THE GOVERNMENT AS TO THE PRICE TO BE CHARGED THE APPELLANT FOR GOVERNMENT FURNISHED MATERIAL. THE ASBCA HELD THAT SINCE THE GOVERNMENT MISLED THE APPELLANT INTO BELIEVING THAT $0.58 PER YARD WAS THE CORRECT CHARGE FOR THE MATERIAL, SUCH PRICE SHOULD HAVE BEEN CHARGED FOR THE GOVERNMENT- FURNISHED MATERIAL. HOWEVER, IN THE PRESENT CASE, THERE IS NOTHING OF RECORD WHICH WOULD INDICATE THAT THE GOVERNMENT MISLED HARSHAW. THEREFORE CONCLUDE THAT THE CITED BOARD DECISION IS INAPPLICABLE HERE.

WE HAVE BEEN INFORMALLY ADVISED BY THE NAVAL ELECTRONIC SYSTEMS COMMAND THAT HARSHAW'S STATEMENT IN ITS BID TO THE EFFECT THAT IT HAD PREVIOUSLY FURNISHED THE REQUESTED DATA ITEMS THROUGH GENERAL ELECTRIC WAS ERRONEOUS. IT IS OUR OPINION THAT THE STATEMENT PROPERLY WAS WAIVED AS A MINOR IRREGULARITY NOT AFFECTING THE PRICE, QUANTITY, OR QUALITY OF THE SUPPLIES OR SERVICES OFFERED. IN THIS REGARD, THE DATA TO BE DELIVERED BY GENERAL ELECTRIC HAS NOT BEEN IDENTIFIED AS YET AND ITS APPLICABILITY TO THE INSTANT PROCUREMENT HAS NOT BEEN ESTABLISHED. THE TERMS OF THE INVITATION REQUIRED THE FURNISHING OF ALL DATA ITEMS LISTED ON DD FORM 1423 AT THE PRICES QUOTED FOR ITEMS 1 AND 2. HENCE, HARSHAW IS OBLIGATED TO FURNISH THE REQUIRED DATA AT ITS CONTRACT PRICES EVEN THOUGH SUCH DATA MAY BE DUPLICATED BY THE DATA REQUIRED TO BE DELIVERED BY GENERAL ELECTRIC UNDER A SEPARATE AND DISTINCT CONTRACT. SINCE BY ITS BID PRICES, HARSHAW HAS AGREED TO FURNISH THE REQUIRED DATA, ITS STATEMENT AS TO GENERAL ELECTRIC DATA DID NOT QUALIFY ITS DATA UNDERTAKING. IN THIS REGARD, SEE B -161063 DATED JUNE 8, 1967, WHERE WE HELD:

"TURNING NEXT TO THE ERRONEOUS STATEMENT IN THE OTIS BID THAT IT HAD PREVIOUSLY FURNISHED THE DATA ITEMS REQUESTED UNDER A PREVIOUS CONTRACT, IT IS OUR OPINION THAT THIS DEFECT IS A MINOR IRREGULARITY NOT AFFECTING THE PRICE, QUANTITY, OR QUALITY OF THE SUPPLIES OR SERVICES OFFERED. INSOFAR AS AN INFERENCE OF AN INTENT NOT TO FURNISH THE DATA ITEMS IS SUGGESTED BY YOU AND CHESAPEAKE, WE CANNOT AGREE THAT SUCH INTENT IS A RELEVANT INQUIRY. HERE, THE TERMS OF THE INVITATION REQUIRE THE FURNISHING OF DATA ITEMS FROM ALL BIDDERS REGARDLESS OF WHETHER THE ITEMS MAY HAVE BEEN FURNISHED UNDER A PREVIOUS CONTRACT. FOR EVALUATION PURPOSES, ANY ADVANTAGE ACCRUING TO A PREVIOUS SUPPLIER WOULD HAVE TO BE REFLECTED IN A PROPORTIONATELY LOWER PRICE FOR ITEM 1, BUT SUCH FACT WOULD NOT CONDITION THE OBLIGATION TO FURNISH THE DATA. CF. 41 COMP. GEN. 412, ILLUSTRATING THE IMPACT THAT THE CERTIFICATION OF PREVIOUSLY FURNISHED DATA MAY HAVE WHEN VIEWED IN CONNECTION WITH A REQUIREMENT FOR SEPARATE LINE ITEM PRICES."

THE SECOND GROUND OF YOUR PROTEST IS THAT AS TO THE BUY AMERICAN CERTIFICATE, PAGE 2 OF ITS BID, HARSHAW FAILED EITHER TO IDENTIFY ANY EXCLUDED FOREIGN END PRODUCTS OR TO INDICATE THAT THERE WERE NO FOREIGN PRODUCTS INVOLVED. YOU CONTEND THAT SUCH OMISSION RENDERS HARSHAW'S BID AMBIGUOUS AND PLACES THE CONTRACTING OFFICER IN A DIFFICULT POSITION OF EITHER CONDUCTING AN INVESTIGATION TO DETERMINE THE ACTUAL FACTS OR RUNNING THE RISK OF APPROVING THE PROCUREMENT OF FOREIGN-MADE PRODUCTS AT A TIME WHEN THE UNITED STATES BALANCE OF PAYMENTS IS IN AN UNFAVORABLE CONDITION.

AS TO THE BUY AMERICAN INFORMATION WHICH HARSHAW WAS TO FURNISH ON STANDARD FORM 33, PAGE 2 OF THE FORM IS ENTITLED "REPRESENTATIONS, CERTIFICATIONS, AND ACKNOWLEDGMENTS," AND PARAGRAPH 7 READS AS FOLLOWS:

"THE OFFEROR HEREBY CERTIFIES THAT EACH END PRODUCT, EXCEPT THE END PRODUCTS LISTED BELOW, IS A DOMESTIC SOURCE END PRODUCT (AS DEFINED IN THE CLAUSE ENTITLED 'BUY AMERICAN ACT'); AND THAT COMPONENTS OF UNKNOWN ORIGIN HAVE BEEN CONSIDERED TO HAVE BEEN MINED, PRODUCED, OR MANUFACTURED OUTSIDE THE UNITED STATES.

EXCLUDED END PRODUCTS COUNTRY OF ORIGIN AN EXAMINATION OF HARSHAW'S BID SHOWS THAT IT DID NOT FILL IN ANY OF THE BLANK SPACES RESPECTING THE BUY AMERICAN CERTIFICATE.

IN OUR DECISION B-157815, JANUARY 21, 1966, WE CONSIDERED THE EFFECT OF THE FAILURE OF A BIDDER TO FILL IN ANY OF THE BLANK SPACES RESPECTING THE BUY AMERICAN CERTIFICATE. WE HELD THAT, IN THE ABSENCE OF ANY REPRESENTATION IN THE CERTIFICATE THAT THE BIDDER INTENDED TO OFFER FOREIGN END PRODUCTS, THE BIDDER, UPON ACCEPTANCE OF ITS BID, WOULD BE BOUND TO FURNISH DOMESTIC END PRODUCTS AS FIXED UNDER THE BUY AMERICAN CLAUSE INCLUDED AS A PART OF THE INVITATION. SEE, ALSO, 47 COMP. GEN. 624, 626 (1968), WHICH DISCUSSED THE EFFECT OF THE FAILURE OF A PROCURING ACTIVITY TO INCLUDE THE BUY AMERICAN CERTIFICATE IN AN INVITATION. CONSEQUENTLY, THE BID OF HARSHAW MUST BE REGARDED AS A DOMESTIC BID IN THE ABSENCE OF ANY REPRESENTATION THAT IT INTENDED TO OFFER FOREIGN END PRODUCTS. IN THIS CONNECTION, IT IS REPORTED THAT HARSHAW HAS ADVISED UPON INQUIRY THAT IT PLANS TO COMPLY FULLY WITH THE BUY AMERICAN ACT.

THE THIRD BASIS FOR YOUR PROTEST IS THAT HARSHAW HAD FAILED TO LIST THE PLACE OF MANUFACTURE AND INSPECTION CALLED FOR ON PAGE 20, SECTION "E" OF THE BID SCHEDULE. YOU STATE THAT THE GOVERNMENT IS ENTITLED TO THE FOREGOING INFORMATION FOR THE FOLLOWING REASONS: THAT THE GOVERNMENT HAS A RIGHT TO INSPECT THE MANUFACTURING FACILITY PRIOR TO AWARD TO DETERMINE IF IN FACT HARSHAW HAS THE CAPABILITY OF PERFORMING THE CONTRACT; AND THAT THE GOVERNMENT HAS THE RIGHT TO INSPECT THE ARTICLES, DURING AND AFTER PRODUCTION, TO WITNESS TESTS AND TO MAKE FINAL INSPECTION PRIOR TO ACCEPTANCE OF THE ARTICLES. YOU CONTEND THAT THE FAILURE OF HARSHAW TO FURNISH THIS REQUIRED INFORMATION RENDERS ITS BID NONRESPONSIVE TO THE IFB.

SECTION "D" OF THE IFB SCHEDULE, ON PAGES 13 THROUGH 19, IS ENTITLED DELIVERIES AND UNDER THE SUBSECTION ENTITLED "F.O.B. ORIGIN," PROSPECTIVE BIDDERS WERE ADVISED THAT ITEMS 1 AND 2 ARE TO BE DELIVERED F.O.B. ORIGIN. UNDER THIS SUBSECTION, ON PAGE 14, SPACE WAS PROVIDED FOR THE BIDDER TO INSERT THE LOCATION OF ITS PLANT AND IN THIS SPACE HARSHAW STATED THAT THE LOCATION OF ITS PLANT WAS SOLON, OHIO.

SECTION "E," ENTITLED INSPECTION AND ACCEPTANCE, PAGE 20 OF THE IFB SCHEDULE, PROVIDES AS FOLLOWS:

"INSPECTION: FACTORY BY GOVERNMENT.

(NAME OF MANUFACTURER - NOT THE DEALER)

(PLACE OF MANUFACTURE, INCLUDING STREET ADDRESS - BY

ITEMS)

(LOCATION OF ARTICLES TO BE INSPECTED, INCLUDING STREET

ADDRESS - BY ITEMS)

"IF A CONTRACTOR ADMINISTERS THE RESULTING CONTRACT AT A FACILITY OTHER THAN ABOVE, INDICATE BELOW THE NAME AND ADDRESS OF SUCH FACILITY:

"POINT OF ACCEPTANCE: AT POINT OF DELIVERY." AN EXAMINATION OF HARSHAW'S BID INDICATES THAT THE COMPANY DID NOT FILL IN ANY OF THE BLANKS IN SECTION "E."

IN REGARD TO THE FAILURE OF HARSHAW TO COMPLETE THE INFORMATION AS TO THE NAME OF THE MANUFACTURER AND THE LOCATION OF THE ARTICLES TO BE INSPECTED AS SET FORTH ON PAGE 20 OF THE SCHEDULE, YOU CITED OUR DECISION B-166858, JUNE 19, 1969, FOR THE PROPOSITION THAT SUCH FAILURE RENDERS THE BID NONRESPONSIVE. THE CITED DECISION IS INAPPLICABLE HERE. THAT DECISION CONCERNED AN IFB REQUIRING FINAL INSPECTION AND ACCEPTANCE AT DESTINATION TO WHICH THE BIDDER RESPONDED BY A COVER LETTER INDICATING THAT INSPECTION AND ACCEPTANCE WOULD BE AT THE CONTRACTOR'S PLANT. IN THAT CASE, THE BIDDER IMPOSED A CONDITION WHICH MODIFIED MATERIAL CONDITIONS OF THE INVITATION AND LIMITED THE BIDDER'S LIABILITY TO THE GOVERNMENT. HERE, INSPECTION WAS STIPULATED TO BE AT THE CONTRACTOR'S FACTORY AND THE POINT OF ACCEPTANCE WAS STATED TO BE THE F.O.B. ORIGIN POINT OF DELIVERY, THAT IS, THE CONTRACTOR'S FACTORY. HARSHAW'S FAILURE TO COMPLETE THE INFORMATION AS TO THE NAME OF THE MANUFACTURER AND THE LOCATION OF THE ARTICLES TO BE INSPECTED DID NOT MODIFY THE CONDITIONS OF THE IFB OR LIMIT HARSHAW'S LIABILITY TO THE GOVERNMENT, SINCE HARSHAW COMPLETED THE INFORMATION ON PAGE 14 OF THE SCHEDULE BINDING ITSELF TO A POINT OF F.O.B. ORIGIN DELIVERY AT ITS FACTORY IN SOLON, OHIO, WHEREAT INSPECTION AND ACCEPTANCE WOULD ALSO BE CONDUCTED BY THE GOVERNMENT.

IN YOUR LETTER OF JUNE 30, 1970, TO OUR OFFICE, YOU STATE:

"IN ADDITION TO THE ABOVE, WE CALL YOUR ATTENTION TO NAVMATINST 4000.15 DATED 20 NOVEMBER 1964 WHICH STATES AMONG OTHER THINGS,

"'IN PROPOSED PROCUREMENTS WHICH INVOLVE THE ACQUISITION OF DATA, CONTINUING EFFORTS SHALL BE DIRECTED TO ASSURING THAT THE AMOUNTS OBLIGATED FOR DATA ARE NOT DISPROPORTIONATE TO THE AMOUNTS OBLIGATED FOR THE WEAPON SYSTEM, EQUIPMENT, OR OTHER ITEM TO WHICH THE DATA RELATES. ACHIEVING THIS GOAL, REQUIREMENTS FOR DATA SHALL BE SEPARATELY PRICED IN ALL PROCUREMENTS ESTIMATED TO EXCEED $1,000,000 AND, TO THE EXTENT PRACTICABLE, IN ALL PROCUREMENTS BELOW SUCH AMOUNT.'"

YOU DO NOT STATE YOUR REASONS FOR CITING THIS NAVY PROCUREMENT INSTRUCTION. HOWEVER, WE ASSUME THAT THE REASON FOR CITING SUCH PROCUREMENT INSTRUCTION WAS BECAUSE THE CONTRACT AWARD IN THIS CASE WAS IN EXCESS OF $1,000,000 AND UNDER THE QUOTED PROCUREMENT INSTRUCTION, THE DATA REQUIRED UNDER THIS IFB SHOULD HAVE BEEN SEPARATELY PRICED. IN THIS CONNECTION, WE HAVE BEEN INFORMALLY ADVISED BY THE NAVAL ELECTRONIC SYSTEMS COMMAND THAT THE ORIGINAL ESTIMATE FOR THIS PROCUREMENT WAS IN AN AMOUNT LESS THAN $1,000,000 AND THAT IT WAS NOT PRACTICABLE TO SEPARATELY PRICE THE REQUIREMENTS FOR DATA UNDER THE SUBJECT IFB.

IN VIEW OF THE FOREGOING, YOUR PROTEST IS DENIED.