B-173746(1), OCT 26, 1971

B-173746(1): Oct 26, 1971

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WAS IMPROPERLY REJECTED AS NONRESPONSIVE AND SHOULD BE CONSIDERED FOR AWARD. THE BID OF SHUEY AIRCRAFT WAS THE LOWEST OF EIGHTEEN BIDS RECEIVED. "WE CERTIFY: WE ARE A REGULAR MANUFACTURER. WE HAVE NO AFFILIATES. ARE A CALIFORNIA BASED CORPORATION. HAVE NON-SEGREGATED FACILITIES. HAVE NO AFFIRMATIVE ACTION PROGRAM. STATE WE HAVE READ A COMPLETE BID SET OBTAINED FROM DACSR. THE QUANTITIES ON WHICH QUOTATIONS WERE MADE REPEATED THOSE REQUESTED ON PAGE II - 1 OF THE IFB AND THE DELIVERY SCHEDULE REPEATED THAT REQUIRED ON PAGE II - 4 OF THE IFB. THE BID SUBMITTED BY SHUEY AIRCRAFT WAS REJECTED AS NON-RESPONSIVE BY THE CONTRACTING OFFICER ON THE GROUND THAT IT DID NOT COMPLY WITH SECTION 2- 301(C) OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH PROVIDES: "BIDS SHOULD BE FILLED OUT.

B-173746(1), OCT 26, 1971

BID PROTEST - BID RESPONSIVENESS - LETTER BID DECISION THAT THE SHUEY AIRCRAFT, INC. LOW BID, UNDER AN IFB ISSUED BY THE AIR FORCE FOR THE PROCUREMENT OF AIRCRAFT ADAPTER ASSEMBLIES, WAS IMPROPERLY REJECTED AS NONRESPONSIVE AND SHOULD BE CONSIDERED FOR AWARD. WHERE SHUEY AIRCRAFT SUBMITTED ITS BID IN THE FORM OF A LETTER WHICH DID NOT QUALIFY THE IFB, AND BY REFERRING TO THE IFB AND QUOTING ON THE ITEMS AS LISTED THEREIN, IT HAS IMPLIED AN AGREEMENT TO BE BOUND BY A CONTRACT CONTAINING ALL CLAUSES OF THE IFB, THE BID SHOULD BE CONSIDERED FOR AWARD.

TO MR. SECRETARY:

WE REFER TO LETTER SPPM OF AUGUST 31, 1971, FROM THE DEPUTY CHIEF, CONTRACT MANAGEMENT DIVISION, DIRECTORATE OF PROCUREMENT POLICY, DEPUTY CHIEF OF STAFF, SYSTEMS AND LOGISTICS, REPORTING ON THE PROTEST OF SHUEY AIRCRAFT, INC., AGAINST THE REJECTION OF ITS BID UNDER INVITATION FOR BIDS (IFB) F41608-71-B-4363, FOR THE PROCUREMENT OF AIRCRAFT ADAPTER ASSEMBLIES.

THE BID OF SHUEY AIRCRAFT WAS THE LOWEST OF EIGHTEEN BIDS RECEIVED. SHUEY AIRCRAFT SUBMITTED ITS BID IN A LETTER AS FOLLOWS:

"WE SUBMIT THE FOLLOWING QUOTE ON IFB #F41608-71-B-4363.

"WE CERTIFY: WE ARE A REGULAR MANUFACTURER, WE HAVE NO AFFILIATES, ARE A CALIFORNIA BASED CORPORATION, PAY NO CONTINGENT FEES, COMPLY WITH EQUAL OPPORTUNITY LAWS, HAVE NON-SEGREGATED FACILITIES, HAVE NO AFFIRMATIVE ACTION PROGRAM, AND STATE WE HAVE READ A COMPLETE BID SET OBTAINED FROM DACSR.

"WE QUOTE: ITEM 0001 FSN 1560-737-2149XE ADAPTER ASSEMBLY, P/N 3 51405- 501.

ITEM 0001AA INITIAL ORDER QUANTITY 0

ITEM 0001AB FOLLOW ON ORDER QUANTITY 189 TO 283 EACH 34.50 EACH

ITEM 0001AB FOLLOW ON ORDER QUANTITY 284 TO 378 EACH 33.20 EACH

ITEM 0001AB FOLLOW ON ORDER QUANTITY 379 TO 472 EACH 31.90 EACH

"ONE HUNDRED EIGHTY-NINE UNITS DELIVERED WITHIN 120 DAYS ARO AND 200 UNITS PER MONTH THEREAFTER TILL COMPLETE."

THE QUANTITIES ON WHICH QUOTATIONS WERE MADE REPEATED THOSE REQUESTED ON PAGE II - 1 OF THE IFB AND THE DELIVERY SCHEDULE REPEATED THAT REQUIRED ON PAGE II - 4 OF THE IFB. THE REMAINDER OF THE LETTER PROVIDED AN UNSOLICITED "LIST FOR QUANTITY PRICE BREAKS IF ORDERED AT ONE RUN AND COMPARABLE DELIVERY." THE LIST INCLUDED THE ADVERTISED QUANTITIES AND ADDITIONAL QUANTITIES.

THE BID SUBMITTED BY SHUEY AIRCRAFT WAS REJECTED AS NON-RESPONSIVE BY THE CONTRACTING OFFICER ON THE GROUND THAT IT DID NOT COMPLY WITH SECTION 2- 301(C) OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH PROVIDES:

"BIDS SHOULD BE FILLED OUT, EXECUTED, AND SUBMITTED IN ACCORDANCE WITH THE INSTRUCTIONS WHICH ARE CONTAINED IN THE INVITATION FOR BIDS. IF A BIDDER USES HIS OWN BID FORM OR A LETTER TO SUBMIT A BID, THE BID MAY BE CONSIDERED ONLY IF (I) THE BIDDER ACCEPTS ALL THE TERMS AND CONDITIONS OF THE INVITATION, AND (II) AWARD ON THE BID WOULD RESULT IN A BINDING CONTRACT THE TERMS AND CONDITIONS OF WHICH DO NOT VARY FROM THE TERMS AND CONDITIONS OF THE INVITATION."

IT IS REPORTED, THAT, NOTWITHSTANDING THE REJECTION OF THE BID, AWARD OF A CONTRACT FOR THE PROCUREMENT IS BEING WITHHELD PENDING THE RESOLUTION OF THE PROTEST.

A BID IS PRESUMED TO BE RESPONSIVE TO THE TERMS AND CONDITIONS OF THE IFB UNLESS CLEARLY QUALIFIED BY THE BIDDER. 36 COMP. GEN. 516 (1957); B- 167067, SEPTEMBER 8, 1969. THERE IS NOTHING IN THE SHUEY AIRCRAFT LETTER QUALIFYING THE IFB AND SHUEY AIRCRAFT HAS OFFERED TO DELIVER ASSEMBLIES EXACTLY AS REQUIRED BY THE IFB. BY REFERRING TO THE IFB AND QUOTING ON THE ITEMS AS LISTED THEREIN, IT HAS IMPLIED AN AGREEMENT TO BE BOUND BY A CONTRACT CONTAINING ALL THE PROVISIONS OF THE IFB. B 113920, FEBRUARY 27, 1953; B-128399, JULY 19, 1956.

THEREFORE, THE SHUEY AIRCRAFT BID SHOULD BE CONSIDERED FOR AWARD.

FOR YOUR FURTHER INFORMATION, THERE IS ENCLOSED A COPY OF OUR LETTER OF TODAY TO HI-TORQUE MFG. CO., CONCERNING THE SHUEY AIRCRAFT BID.