B-171448, FEB 24, 1971

B-171448: Feb 24, 1971

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WHEN A MISTAKE IN THE ANALYSIS OF THE PROTESTANT'S BID WAS NOT DISCOVERED UNTIL THE CONTRACT WAS OVER 85% COMPLETED. THE AWARD DOES NOT HAVE TO BE CANCELLED AND THE PROCUREMENT READVERTISED. HAS BEEN CONSISTENTLY TAKEN INTO ACCOUNT WHEN AWARDS HAVE BEEN MADE CONTRARY TO THE ADVERTISING STATUTES. INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 3. RECEIPT IS ALSO ACKNOWLEDGED OF YOUR LETTERS OF DECEMBER 3. BIDS WERE REQUESTED FOR FURNISHING A NUMBER OF MINIATURE AND STANDARD PATCH PANELS. BIDS WERE RECEIVED FROM YOUR FIRM AND WHISTLER ELECTRONICS. IT IS REPORTED THAT DURING AN ANALYSIS OF THE TWO BIDS RECEIVED. AN ERROR WAS MADE BY PERSONNEL OF THE CONTRACTING OFFICE IN THAT ITEM 4 OF YOUR BID.

B-171448, FEB 24, 1971

BID PROTEST - MISTAKEN AWARD - TERMINATION OF CONTRACT DENIAL OF PROTEST OF TROMPETER ELECTRONICS, INC., AGAINST THE AWARD OF AN ADVERTISED CONTRACT ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, LOS ANGELES, CALIF., FOR A NUMBER OF MINIATURE AND STANDARD PATCH PANELS TO WHISLER ELECTRONICS, INC. WHEN A MISTAKE IN THE ANALYSIS OF THE PROTESTANT'S BID WAS NOT DISCOVERED UNTIL THE CONTRACT WAS OVER 85% COMPLETED, THE AWARD DOES NOT HAVE TO BE CANCELLED AND THE PROCUREMENT READVERTISED. CONSIDERATION OF THE EXTENT OF THE CONTRACTOR'S PERFORMANCE IN DECIDING WHETHER THE CONTRACTOR SHOULD BE PRECLUDED FROM FURTHER PERFORMANCE, HAS BEEN CONSISTENTLY TAKEN INTO ACCOUNT WHEN AWARDS HAVE BEEN MADE CONTRARY TO THE ADVERTISING STATUTES.

TO TROMPETER ELECTRONICS, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 3, 1970, PROTESTING THE AWARD OF A CONTRACT TO WHISTLER ELECTRONICS, INC., UNDER INVITATION FOR BIDS (IFB) NO. N00123-71-B-0299, ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, LOS ANGELES, CALIFORNIA. RECEIPT IS ALSO ACKNOWLEDGED OF YOUR LETTERS OF DECEMBER 3, 1970, AND JANUARY 13, 1971.

BY THE CITED INVITATION, BIDS WERE REQUESTED FOR FURNISHING A NUMBER OF MINIATURE AND STANDARD PATCH PANELS, ITEMS 1, 2, AND 3. ITEM 4 CALLED FOR FURNISHING 10 MARKING STRIPS FOR PATCH PANELS. BIDS WERE RECEIVED FROM YOUR FIRM AND WHISTLER ELECTRONICS.

IT IS REPORTED THAT DURING AN ANALYSIS OF THE TWO BIDS RECEIVED, AN ERROR WAS MADE BY PERSONNEL OF THE CONTRACTING OFFICE IN THAT ITEM 4 OF YOUR BID, WHICH HAD A TOTAL EXTENSION OF $24.10, WAS ENTERED AS $2,410. THE ERROR WAS NOT DISCOVERED AND AWARD WAS CONSEQUENTLY MADE, ERRONEOUSLY, TO WHISTLER ELECTRONICS ON NOVEMBER 3, 1970, ALTHOUGH ITS TOTAL BID WAS $496.66 HIGHER THAN THAT OF YOUR FIRM. THE CONTRACT AWARDED TO WHISTLER REQUIRED DELIVERY OF THE SUPPLIES WITHIN 30 DAYS AFTER EFFECTIVE DATE OF THE CONTRACT OR BY DECEMBER 2, 1970.

THE RECORD INDICATES THAT ON NOVEMBER 18, 1970, A REPRESENTATIVE OF YOUR FIRM CONTACTED THE CONTRACTING OFFICE TO INQUIRE ABOUT THE CONTRACT AWARD AND THAT IT WAS AT THIS TIME THAT THE CONTRACTING OFFICE FIRST DISCOVERED THAT IT HAD ERRONEOUSLY AWARDED THE CONTRACT TO WHISTLER. IN VIEW OF THE ERROR, THE CONTRACTING OFFICE ADVISED WHISTLER THAT PENDING A DETERMINATION OF THE VALIDITY OF THE CONTRACT AWARDED TO IT, ALL WORK UNDER THE CONTRACT SHOULD BE SUSPENDED.

IN HIS REPORT THE CONTRACTING OFFICER STATES THAT IN VIEW OF OUR DECISION B-147411 OF NOVEMBER 24, 1961, HIS OFFICE SOUGHT, THROUGH THE OFFICE OF COUNSEL, NAVAL SUPPLY SYSTEMS COMMAND, INSTRUCTION FROM THE COMPTROLLER GENERAL OF THE UNITED STATES CONCERNING WHAT ACTION SHOULD BE TAKEN IN THE INSTANT CASE; THAT HE ALSO REQUESTED THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT (DCASD), VAN NUYS, CALIFORNIA, TO PERFORM A SPOT CHECK OF THE COMPLETION OF THE WORK UNDER THE CONTRACT SINCE WHISTLER HAD REPRESENTED THAT THE WORK WAS VIRTUALLY COMPLETED, AND DELIVERY WAS DUE BEFORE DECEMBER 3, 1970; THAT DCASD INSPECTION OF THE WORK TO DATE SHOWED THE CONTRACT TO BE 86.15 PERCENT COMPLETED; AND THAT THE FOREGOING INFORMATION WAS GIVEN TO COUNSEL FOR THE NAVAL SUPPLY SYSTEMS COMMAND. THE CONTRACTING OFFICER ALSO STATES THAT ON DECEMBER 1, 1970, HIS OFFICE WAS ADVISED BY THE COUNSEL FOR THE NAVAL SUPPLY SYSTEMS COMMAND THAT THE GENERAL ACCOUNTING OFFICE HAD INDICATED THAT CONSIDERING THE IMMINENCE OF DELIVERY IT WOULD NOT QUESTION THE AWARD IN THE EVENT OF A PROTEST. THE BASIS OF THE ADVICE RECEIVED FROM OUR OFFICE, THE CONTRACTING OFFICE INSTRUCTED WHISTLER TO COMPLETE PRODUCTION OF THE PATCH PANELS. IT IS REPORTED THAT THE PATCH PANELS HAVE BEEN DELIVERED BY WHISTLER AND ACCEPTED BY THE USING ACTIVITY.

UNDER 10 U.S.C. 2305(C), THE ADVERTISING STATUTE APPLICABLE TO THE PROCUREMENT IN QUESTION, AWARD IS REQUIRED TO BE MADE 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 2-407.1 OF THE ARMED SERVICES PROCUREMENT REGULATION, WHICH YOU STATE WAS NOT FOLLOWED BY THE PROCUREMENT ACTIVITY IN MAKING AN AWARD UNDER IFB -0299, IS TO THE SAME EFFECT. WE HAVE HELD THE QUOTED PHRASE REQUIRES THAT, WITH CERTAIN EXCEPTIONS NOT APPLICABLE HERE, AWARD, IF ANY, BE MADE TO THE LOW BIDDER. 28 COMP. GEN. 662, 664 (1949).

HOWEVER, WHEN AWARDS MADE CONTRARY TO THE ADVERTISING STATUTES HAVE BEEN RULED UPON BY US, WE CONSISTENTLY HAVE TAKEN INTO CONSIDERATION THE EXTENT OF THE CONTRACTOR'S PERFORMANCE IN DECIDING WHETHER THE CONTRACTOR SHOULD BE PRECLUDED FROM FURTHER PERFORMANCE. AT THE TIME COUNSEL FOR THE NAVAL SUPPLY SYSTEMS COMMAND HAD REQUESTED OUR ADVICE AS TO WHETHER THE CONTRACT AWARDED TO WHISTLER SHOULD BE CANCELED, THAT CORPORATION HAD COMPLETED 86.15 PERCENT OF THE CONTRACT WORK. HAD NO PERFORMANCE COMMENCED UNDER THE CONTRACT, WE WOULD HAVE RECOMMENDED TERMINATION, BUT IN VIEW OF THE ADVANCED STAGE OF PERFORMANCE OF THE CONTRACT BY WHISTLER, WE FELT THAT IT WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT TO PERMIT THE CORPORATION TO CONTINUE PERFORMANCE OF THE CONTRACT. WE SEE NO REASON AT THIS TIME TO DEPART FROM THAT VIEW.

IT IS UNFORTUNATE THAT YOU DID NOT RECEIVE THE CONTRACT AWARD BUT UNDER THE CIRCUMSTANCES WE ARE UNABLE TO COMPLY WITH YOUR REQUEST FOR CANCELLATION OF THE AWARD AND FOR AN AWARD TO YOUR FIRM.