B-176490, SEP 19, 1972

B-176490, SEP 19, 1972

BID PROTEST - SPECIFICATIONS - AMBIGUITY DENIAL OF REQUEST ON BEHALF OF THE CYRIL BATH COMPANY FOR RECONSIDERATION OF THE DECISION OF JULY 27, 1972, DENYING THEIR PROTEST UNDER A SOLICITATION ISSUED BY THE NAVAL PURCHASING OFFICE. EVEN IF IT IS ASSUMED, ARGUENDO, THAT THE SPECIFICATIONS WERE INDEFINITE AND INCONSISTENT, IT APPEARS THAT BOTH PROTESTANT AND L&F INDUSTRIES SUBMITTED PROPOSALS ON THE SAME BASIS. THE RULE IS SETTLED THAT AN AMBIGUITY IN THE SPECIFICATIONS DOES NOT PRECLUDE A VALID AWARD UNLESS IT CAN ALSO BE SHOWN THAT THE UNSUCCESSFUL BIDDER WAS PREJUDICED BY THE AMBIGUITY. SEE 43 COMP. GEN. 23. IN THE INSTANT CASE, SINCE NAVY DOES NOT CONSIDER THE RAM AS AN OPTIONAL ITEM, NO PREJUDICE RESULTED TO EITHER OFFEROR, AND THERE IS NO LEGAL BASIS TO QUESTION THE VALIDITY OF THE AWARD.

TO KRAMER, MCCARTNEY & MURPHEY:

WE ARE IN RECEIPT OF YOUR LETTER OF JULY 31, 1972, REQUESTING RECONSIDERATION OF OUR DECISION DATED JULY 27, 1972, WHEREIN WE HELD THAT YOUR PROTEST ON BEHALF OF THE CYRIL BATH COMPANY UNDER SOLICITATION NO. N00600-72-R-5298, ISSUED BY THE UNITED STATES NAVY PURCHASING OFFICE, WAS UNTIMELY FILED UNDER SECTION 20.2(A) OF OUR "INTERIM BID PROTEST PROCEDURES AND STANDARDS" INASMUCH AS THE ALLEGED IMPROPRIETY (INDEFINITE SPECIFICATIONS) WAS APPARENT ON THE FACE OF THE SOLICITATION PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS.

YOU NOW ASSERT THAT YOUR PROTEST OF JUNE 19, 1972, FILED WITH THE DEPARTMENT OF THE NAVY WAS WITHIN 5 DAYS AFTER THE BASIS OF THE PROTEST WAS KNOWN, SINCE IT WAS NOT UNTIL JUNE 16, 1972, THAT YOU LEARNED FROM A PATENT COUNSEL OF THE NAVAL AIR SYSTEMS COMMAND THAT HE COULD NOT DETERMINE, IN CONNECTION WITH HIS CONSIDERATION OF YOUR PATENT INFRINGEMENT CLAIM ON BEHALF OF YOUR CLIENT, WHETHER THE HYDRAULIC RIGHT ANGLE RAM WAS OR WAS NOT REQUIRED AS A PART OF THE PERFORMANCE SPECIFICATION.

THE BASIS OF YOUR PROTEST BOTH BEFORE OUR OFFICE AND THE DEPARTMENT OF THE NAVY, AS OPPOSED TO YOUR PATENT INFRINGEMENT CLAIM, IS THAT "THE SPECIFICATIONS ARE INDEFINITE AND INCONSISTENT ON WHETHER THE 'HYDRAULIC RIGHT ANGLE RAM' IS REQUIRED." YOU ARGUE, HOWEVER, THAT YOUR PROTEST IS BASED UPON THE NAVY'S PATENT COUNSEL'S VIEW THAT THE SPECIFICATIONS WERE INDEFINITE AND INCONSISTENT. BY LETTER DATED JULY 28, 1972, THE DEPARTMENT OF THE NAVY DENIED YOUR PROTEST, CONCLUDING THAT THE SPECIFICATIONS WERE DEFINITE AND CONSISTENT, AND CONSEQUENTLY THE RAM COULD NOT BE CONSIDERED AN OPTIONAL REQUIREMENT IN ANY RESULTANT CONTRACT.

DURING FURTHER CONSIDERATION OF YOUR PROTEST, WE HAVE BEEN INFORMALLY ADVISED BY THE DEPARTMENT OF THE NAVY THAT WHILE L&F INDUSTRIES (L&F), THE ONLY OTHER OFFEROR, SUBMITTED AN ALTERNATE PROPOSAL WHICH WOULD HAVE EXCLUDED THE RIGHT ANGLE RAM, THAT PROPOSAL WAS REJECTED AND AWARD WAS MADE TO THAT FIRM WITH THE REQUIREMENT THAT THE RAM BE FURNISHED. CYRIL BATH'S PROPOSAL ALSO OFFERED THE RIGHT ANGLE RAM.

CONSEQUENTLY, EVEN IF IT IS ASSUMED, ARGUENDO, THAT THE SPECIFICATIONS WERE INDEFINITE AND INCONSISTENT, IT APPEARS THAT BOTH YOUR CLIENT AND L&F SUBMITTED PROPOSALS ON THE SAME BASIS, I.E., FURNISHING THE RAM. THE RULE IS SETTLED THAT AN AMBIGUITY IN THE SPECIFICATIONS DOES NOT PRECLUDE A VALID AWARD UNLESS IT CAN ALSO BE SHOWN THAT THE UNSUCCESSFUL BIDDER WAS PREJUDICED BY THE AMBIGUITY. SEE 43 COMP. GEN. 23. IN THE INSTANT CASE, SINCE NAVY DOES NOT CONSIDER THE RAM AS AN OPTIONAL ITEM, NO PREJUDICE RESULTED TO EITHER OFFEROR, AND THERE IS NO LEGAL BASIS TO QUESTION THE VALIDITY OF THE AWARD.

ACCORDINGLY, YOUR PROTEST IS DENIED.