B-173076, DEC 9, 1971

B-173076: Dec 9, 1971

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AWARD WAS MADE TO ESSCO AS THEIR FINAL BID WAS LOW. THIS WAS DENIED BY THE AIR FORCE BECAUSE OF HIGH INCIDENCE OF BREAKAGE IN PACKAGING PREVIOUSLY USED. PROTEST IS DENIED AS NO BASIS EXISTS FOR DISPUTING THE AIR FORCE'S TECHNICAL DETERMINATION THAT A HIGHER PACKAGE REQUIREMENT WAS NEEDED. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 21. OFFERS WERE RECEIVED FROM YOUR FIRM. THE TOTAL PRICES OF YOUR PROPOSAL AND ESSCO'S WERE AS FOLLOWS: "ESSCO - BID B $ 87. 589.00" THE PRICE SUBMITTED BY SELCO WAS NOT CONSIDERED IN A COMPETITIVE RANGE AND. DISCUSSIONS WERE NOT HELD WITH THAT CONCERN. NEGOTIATIONS WERE HELD WITH YOUR CONCERN ON APRIL 21. IN THIS REGARD WE HAVE BEEN FURNISHED THE FOLLOWING INFORMATION REGARDING THE CONSIDERATION OF SUCH REQUEST: "THE KOPPERS COMPANYS REQUEST FOR A WAIVER ON THE PACKAGING REQUIREMENTS INVOKED BY DSPCS ON P/R FD2040-71-23373.

B-173076, DEC 9, 1971

BID PROTEST - PACKAGING REQUIREMENT - WAIVER DENIED DECISION DENYING PROTEST OF KOPPERS COMPANY, INC. AGAINST AWARD OF A CONTRACT TO ELECTRIC SPACE SYSTEMS CORPORATION (ESSCO) UNDER AN RFP ISSUED BY THE SACRAMENTO AIR MATERIEL AREA, UNITED STATES AIR FORCE FOR TWO RIGID REINFORCED PLASTIC RADOMES TO BE PACKED IN REUSABLE CONTAINERS OR TWO METAL SPACE FRAME RADOMES TO BE PACKED IN "LEVEL A" PACKAGING. AWARD WAS MADE TO ESSCO AS THEIR FINAL BID WAS LOW. PROTESTANT REQUESTED DURING NEGOTIATIONS THAT THE PACKAGING REQUIREMENT BE WAIVED, BUT THIS WAS DENIED BY THE AIR FORCE BECAUSE OF HIGH INCIDENCE OF BREAKAGE IN PACKAGING PREVIOUSLY USED. PROTEST IS DENIED AS NO BASIS EXISTS FOR DISPUTING THE AIR FORCE'S TECHNICAL DETERMINATION THAT A HIGHER PACKAGE REQUIREMENT WAS NEEDED.

TO KOPPERS COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 21, 1971, CONCERNING YOUR PROTEST UNDER REQUEST FOR PROPOSALS (RFP) F04606-71-R 0429, ISSUED ON MARCH 19, 1971, BY THE SACRAMENTO AIR MATERIEL AREA FOR A REQUIREMENT OF EITHER TWO CW396A/GPS RIGID REINFORCED PLASTIC RADOMES TO BE PACKED IN REUSABLE CONTAINERS, OR TWO CW860A/GPS METAL SPACE FRAME RADOMES TO BE PACKED IN "LEVEL A" PACKAGING. THE RFP ALSO PERMITTED OFFERORS TO SUBMIT A PROPOSAL FOR A FIRST ARTICLE REQUIREMENT (BID A), OR A PROPOSAL FOR FIRST ARTICLE NOT REQUIRED (BID B).

ON APRIL 15, 1971, THE CLOSING DATE SET FOR RECEIPT OF PROPOSALS, OFFERS WERE RECEIVED FROM YOUR FIRM, ELECTRONIC SPACE SYSTEMS CORPORATION (ESSCO) AND SELCO U.S., INC. (SELCO). THE TOTAL PRICES OF YOUR PROPOSAL AND ESSCO'S WERE AS FOLLOWS:

"ESSCO - BID B $ 87,966.00

KOPPERS - BID B 89,589.00"

THE PRICE SUBMITTED BY SELCO WAS NOT CONSIDERED IN A COMPETITIVE RANGE AND, CONSEQUENTLY, DISCUSSIONS WERE NOT HELD WITH THAT CONCERN.

NEGOTIATIONS WERE HELD WITH YOUR CONCERN ON APRIL 21, 1971. AT THAT TIME YOU REQUESTED THE PROCURING ACTIVITY TO PERMIT YOUR CONCERN TO FURNISH LEVEL A PACKAGING WITH THE CW396A/GPS RADOME INSTEAD OF SUPPLYING THE MODEL IN A REUSABLE CONTAINER AS SPECIFIED IN THE RFP.

THE RECORD INDICATES THAT THE PROCURING ACTIVITY SUBSEQUENTLY REQUESTED A WAIVER ON THE BID PACKAGING REQUIREMENTS FROM PERSONNEL ATTACHED TO THE USING ACTIVITY. IN THIS REGARD WE HAVE BEEN FURNISHED THE FOLLOWING INFORMATION REGARDING THE CONSIDERATION OF SUCH REQUEST:

"THE KOPPERS COMPANYS REQUEST FOR A WAIVER ON THE PACKAGING REQUIREMENTS INVOKED BY DSPCS ON P/R FD2040-71-23373, IN A TELECON ON 21 APRIL 1971, WAS DENIED BECAUSE THE CONTRACTOR HAD INTENDED TO PACKAGE THE RADOME PANELS IN THE SAME MANNER THAT HAD BEEN UTILIZED IN THE PAST."

SEVERAL INCIDENTS OF DAMAGE TO PANELS FOR THE CW396A RADOME IN THE PAST, INDICATED THAT A NEED FOR THE DEVELOPMENT OF CONTAINERS TO ADEQUATELY PROTECT THE MATERIAL AND FACILITATE FORKLIFT HANDLING, WAS APPARENT.

IN VIEW OF THE HISTORY OF DAMAGE IN THE MOVEMENT OF RADOMES HERE AT SMAMA, DSPC WAS DIRECTED TO DESIGN CONTAINERS FOR THE PANELS THAT WOULD AFFORD ADEQUATE PROTECTION AGAINST DAMAGE, FACILITATE HANDLING AND REDUCE TRANSPORTATION COSTS.

COST REDUCTION SAVINGS HAVE BEEN REALIZED AS A RESULT OF CONTAINERS FABRICATED IAW TPO 5840-556-9640 FOR SURFACE, SURFACE WATER AND AIR SHIPMENTS. THE PREVIOUS DESIGNED CONTAINERS WEIGHED 19,758 POUNDS AND DISPLACED 4,892 CUBE. A RADOME PREPARED FOR SHIPMENT IAW TPO 5840-556 9640 WEIGHS 18,065 POUNDS AND DISPLACES 3,616 CUBE. A SAVINGS ON THIRTY- TWO (32) MEASUREMENT TONS IS REALIZED ON EACH SURFACE WATER SHIPMENT OF RADOME PANELS. THERE HAVE BEEN NO INCIDENTS OF DAMAGE TO THE RADOME PANELS SINCE THE IMPLEMENTATION OF THE TPO (TRANSPORTATION PACKAGING ORDER) DEVELOPED BY DSPCS.

THE MARKING, 'REUSABLE CONTAINER, DO NOT DESTROY,' IS INDICATED ON THE CONTAINER IAW THE TPO IN THE EVENT RESHIPMENT OF REPLACED MATERIAL BECOMES NECESSARY.

"LEVELS A/A WERE INVOKED FOR PRESERVATION, PACKAGING AND PACKING FOR RADOME CW-860 IAW MIL-P-116 AND MIL-STD 794 TO PROVIDE GENERAL PACKAGING REQUIREMENTS BECAUSE FULL KNOWLEDGE OF THE RADOME CONFIGURATION ASSEMBLIES AND PARTS BEING PROCESSED, WAS NOT AVAILABLE SINCE THIS WAS THE FIRST PROCUREMENT. WHETHER THE CONTRACTOR WILL FURNISH THE GOVERNMENT DEMOUNTABLE CONTAINERS ON 'THROW AWAY' CONTAINERS FOR PACKING HIS RADOME PANELS, HE IS OBLIGATED UNDER THE PROVISIONS OF MIL-STD-794, PARA 5.17 TO PERFORM THE REQUIREMENTS OF THE ROUGH HANDLING TEST. CONVERSELY, THE ROUGH HANDLING TESTS WERE NOT INVOKED FOR THE CW-396A RADOME, SINCE THE SUPPLIER WAS FURNISHED PACKAGING REQUIREMENTS."

THE RECORD INDICATES THAT YOU WERE INFORMED OF THE DENIAL OF YOUR REQUEST DURING NEGOTIATIONS. SUBSEQUENTLY, THE PROCURING ACTIVITY CONCLUDED AN AWARD TO ESSCO BASED ON THE REVISED PRICE SUBMITTED BY THAT OFFEROR FOR THE REQUIREMENT, WHICH WAS SLIGHTLY LOWER IN PRICE THAN YOUR FINAL OFFER.

YOU MAINTAIN THAT YOU SHOULD HAVE BEEN GRANTED A WAIVER OF THE PACKAGING REQUIREMENT FOR THE CW396A/GPS RADOMES, OR ALTERNATIVELY, BEEN GRANTED A CREDIT FOR PROVIDING PERMANENTLY REUSABLE CRATING FOR FUTURE USE WHICH YOUR COMPETITOR WAS NOT PROVIDING.

AS NOTED ABOVE, IT IS THE POSITION OF THE AIR FORCE THAT THE PREVIOUS PROBLEMS ENCOUNTERED IN SHIPPING THE CW396A/GPS RADOMES NECESSITATED A HIGHER PACKAGING REQUIREMENT FOR THE ITEMS IN THIS PROCUREMENT. FROM OUR REVIEW OF THE RECORD, WE PERCEIVE NO BASIS FOR DISPUTING THE DEPARTMENT'S TECHNICAL POSITION IN THIS MATTER.

WITH RESPECT TO WHETHER YOU SHOULD HAVE BEEN GRANTED A CREDIT FOR THE RESIDUAL VALUE OF THE REUSABLE CONTAINERS AFTER THE INITIAL SHIPMENT, THE AIR FORCE POINTS OUT THAT THE PACKAGING OFFICE STATES THAT THE MARKING "REUSABLE CONTAINERS, DO NOT DESTROY" IS INDICATED ON THE CONTAINER IN ACCORDANCE WITH THE TRANSPORTATION PACKAGING ORDER IN THE EVENT RESHIPMENT OF REPLACEMENT MATERIAL BECOMES NECESSARY; THAT THE CONTAINERS ARE NOT REUSABLE CONTAINERS IN THE SENSE THAT THEY ARE TO BE RETURNED TO THE GOVERNMENT FOR REUSE; AND THAT SINCE THE RADOMES ARE BEING FURNISHED TO THE GOVERNMENT OF ISRAEL UNDER THE FOREIGN MILITARY SALES PROGRAM THE DISPOSITION OR USE OF THE CONTAINERS SUBSEQUENT TO INITIAL SHIPMENT OF THE RADOMES WILL BE AT THE PREROGATIVE OF THE GOVERNMENT OF ISRAEL.

WE HAVE NOTED THAT THE BASIC REASON FOR INCLUDING AN EVALUATION FACTOR FOR RESIDUAL VALUE IS TO REFLECT THE VALUE OF THE USEFUL LIFE OF THE EQUIPMENT BEYOND THE INITIAL CONTRACT LIFE PERIOD. SEE B 171798(1), AUGUST 18, 1971, OBVIOUSLY, IF THE REUSABLE SHIPPING CONTAINERS DO NOT HAVE A FURTHER VALUE TO THE GOVERNMENT BEYOND THE INITIAL SHIPMENT PERIOD THERE WOULD BE NO BASIS FOR A RESIDUAL VALUE CREDIT TO BE APPLIED TO AN OFFEROR'S BASE PRICE FOR THE RADOMES.

IN THIS CONNECTION, IT IS THE APPARENT POSITION OF THE AIR FORCE THAT THE CONTAINERS IN QUESTION DO NOT HAVE A RESIDUAL VALUE TO THE AIR FORCE SINCE THEY ARE NOT TO BE RETURNED TO THE GOVERNMENT FOR REUSE AFTER THE INITIAL SHIPMENT. IN VIEW THEREOF, WE PERCEIVE NO BASIS FOR OBJECTING TO THE DECISION OF THE AIR FORCE NOT TO APPLY A RESIDUAL VALUE CREDIT TO YOUR BASE PRICE FOR THE CONTAINERS.

FOR THE REASONS SET FORTH ABOVE, YOUR PROTEST MUST BE DENIED.