B-171447, JUL 2, 1971

B-171447, JUL 2, 1971

BID PROTEST - INCORRECT DATA EVALUATION - CANCELLATION - BEST INTEREST OF GOVERNMENT DENYING PROTEST AGAINST THE AWARD OF A CONTRACT TO SAWYER INDUSTRIES, INC., UNDER AN RFP ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VA., FOR A QUANTITY OF MOTORS. PROTESTANT'S OFFER MAY NOT NOW BE EVALUATED, EVEN THOUGH AN ERROR WAS MADE IN THE EVALUATION OF THE ORIGINAL TECHNICAL DATA, WHICH RESULTED IN THE REJECTION OF ITS PROPOSAL, SINCE THE GOVERNMENT NOW WOULD NOT KNOW WHETHER PROTESTANT'S PRODUCT WOULD MEET THE GOVERNMENT REQUIREMENTS UNTIL THE TIME DELIVERIES WOULD COMMENCE UNDER THE CONTRACT WITH SAWYER. THE SUGGESTION THAT THE PROTEST BE RESOLVED BY TERMINATING A PORTION OF THE CONTRACT REPRESENTING SUPPLIES NOT URGENTLY NEEDED CANNOT BE FOLLOWED BECAUSE TERMINATION FOR CONVENIENCE COSTS WOULD AMOUNT TO 75 PERCENT OF THE CONTRACT PRICE. TERMINATION THEREFORE WOULD NOT BE IN THE BEST INTEREST OF THE GOVERNMENT.

TO ASTRO MEC MOTORS, INC.:

WE REFER TO YOUR LETTER OF FEBRUARY 10, 1971, AND PRIOR CORRESPONDENCE, PROTESTING THE AWARD OF A CONTRACT TO SAWYER INDUSTRIES, INC., UNDER REQUEST FOR PROPOSALS DSA-400-70-R-5682, ISSUED BY THE DEFENSE SUPPLY AGENCY (DSA), DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA, UNDER A SAN ANTONIO AIR MATERIEL AREA REQUISITION.

THE LETTER DATED FEBRUARY 10, 1971, CONSTITUTED A RESPONSE TO THE CONTRACTING OFFICER'S REPORT WHICH WE FURNISHED TO YOU ON JANUARY 21, 1971, PURSUANT TO YOUR REQUEST OF DECEMBER 29, 1970. AS THE CONTRACTING OFFICER'S REPORT INDICATED, IT WAS CONCEDED THAT AN ERROR HAD BEEN MADE IN THE EVALUATION OF THE TECHNICAL DATA FURNISHED BY ASTRO MEC IN SUPPORT OF ITS PROPOSAL. IT WAS AS A RESULT OF SUCH ERRONEOUS EVALUATION THAT THE ASTRO MEC PROPOSAL WAS REJECTED. HOWEVER, THE CONTRACTING OFFICER'S REPORT ALSO INDICATED THAT THE ACCEPTANCE OF ASTRO MEC'S PART NUMBER C68-7 AS TENDERED UNDER THE RFP WAS CONTINGENT UPON ASTRO MEC SUBMITTING SAMPLES FOR END ITEM COMPATIBILITY TESTING. WE HAVE BEEN INFORMED THAT AS OF MARCH 5, 1971, ASTRO MEC HAD NOT SUBMITTED ITS SAMPLES FOR THE "FORM, FIT AND FUNCTION" END ITEM COMPATIBILITY TESTS. WE WERE FURTHER ADVISED OF YOUR INTENTION TO HAVE SUBMITTED THEM WITHIN 2 WEEKS OF MARCH 4, 1971. MOREOVER, THE SAN ANTONIO AIR MATERIEL AREA INFORMALLY ADVISED THAT THE END ITEM COMPATIBILITY TESTS WOULD TAKE APPROXIMATELY 20 WORKING DAYS AFTER RECEIPT OF THE SAMPLE MOTORS. DELIVERIES, F.O.B. DESTINATION, UNDER THE CONTRACT AWARDED TO SAWYER INDUSTRIES WERE TO BEGIN BY APRIL 29, 1971, AND END BY JUNE 28, 1971. ACCORDINGLY, IT APPEARS THAT IT WOULD NOT HAVE BEEN KNOWN WHETHER THE ASTRO MEC PRODUCT WOULD MEET THE GOVERNMENT REQUIREMENTS FOR FSN 6105-581-9479 UNTIL ABOUT THE TIME WHEN DELIVERIES WERE TO BEGIN UNDER THE CONTRACT WITH SAWYER INDUSTRIES. FURTHER, AS LATE AS JUNE 15, 1971, OUR OFFICE WAS INFORMALLY ADVISED BY THE AGENCY THAT ASTRO MEC STILL HAD NOT SUBMITTED ANY SAMPLES.

IN YOUR LETTER OF FEBRUARY 10, 1971, YOU SUGGESTED THAT THE PROTEST BE RESOLVED BY TERMINATING A PORTION OF THE CURRENT CONTRACT WITH SAWYER INDUSTRIES AND AWARDING A CONTRACT FOR THE TERMINATED PORTION TO ASTRO MEC. THE PORTION OF THE CONTRACT WHICH YOU SUGGEST THAT THE GOVERNMENT TERMINATE IS THAT REPRESENTING SUPPLIES NOT URGENTLY NEEDED. THIS SUGGESTION WAS CONSIDERED BUT REJECTED FOR THE REASONS THAT FOLLOW. SAWYER INDUSTRIES ADVISED DSA ON MARCH 5, 1971, THAT MANUFACTURING UNDER ITS CONTRACT WAS IN ITS FINAL STAGES AND THAT TERMINATION FOR CONVENIENCE COSTS WOULD BE FROM 75 TO 85 PERCENT OF THE CONTRACT PRICE IF TERMINATIONS WERE EFFECTED AT THAT TIME. SAWYER INDUSTRIES ALSO ADVISED THAT IT WAS ANTICIPATED THAT DELIVERY OF APPROXIMATELY 500 UNITS WOULD BE MADE BY THE END OF APRIL. IT WAS EXPECTED, THEREFORE, THAT A TERMINATION FOR CONVENIENCE OF ANY PART OF SAWYER INDUSTRIES' CONTRACT IN APRIL WHEN DSA WOULD HAVE KNOWN WHETHER ASTRO MEC'S MOTOR WAS ACCEPTABLE TO FULFILL THE GOVERNMENT'S REQUIREMENTS FOR FSN 6105-581-9479 WOULD RESULT IN EVEN GREATER TERMINATION COSTS.

FURTHERMORE, WE NOTE THAT THE ERROR IN THE DATA EVALUATION OF ASTRO MEC'S PART NUMBER C68-7 WAS MADE BY ENGINEERING EXPERTS ON WHOM THE CONTRACTING OFFICER HAD A RIGHT TO RELY AND DID RELY IN GOOD FAITH. THEREFORE, IT IS OUR OPINION THAT THE CONTRACT IS NOT VOID AB INITIO, BUT RATHER VOIDABLE AT THE OPTION OF THE GOVERNMENT, AND THAT CANCELLATION SHOULD ONLY BE DIRECTED IF DETERMINED TO BE IN THE BEST INTERESTS OF THE GOVERNMENT. COMP. GEN. 123, 132 (1966).

IT IS UNFORTUNATE THAT THE SAN ANTONIO AIR MATERIEL AREA AND THE ENGINEERING SUPPORT ACTIVITY (U.S. NAVAL SHIPS ENGINEERING CENTER, HYATTSVILLE, MARYLAND) DID NOT INITIALLY PROPERLY EVALUATE ASTRO MEC'S DATA FOR ITS PART NUMBER C68-7. IT APPEARS FROM THE RECORD THAT THE INCORRECT EVALUATION WAS DUE, AT LEAST IN PART, TO CONFUSION GENERATED BY THE FACT THAT ASTRO MEC SUBMITTED DATA ON ANOTHER PART NUMBER, C68 1A, ALONG WITH THE DATA ON PART NUMBER C68-7. IN THE CIRCUMSTANCES, AND CONSIDERING THAT THE AWARD WAS MADE IN GOOD FAITH, WE DO NOT BELIEVE THAT CANCELLATION OF THE CONTRACT AT THIS DATE WOULD BE IN THE GOVERNMENT'S BEST INTERESTS. B-159178, SEPTEMBER 6, 1966 AND 49 COMP GEN. 541 (1970).