B-179877, MAY 23, 1974

B-179877: May 23, 1974

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PROTEST AGAINST ACCEPTANCE OF BID BASED ON WAIVER OF FIRST ARTICLE TESTING BECAUSE BIDDER ALLEGEDLY HAD NOT PREVIOUSLY FURNISHED PRODUCTION QUANTITIES OF REQUIRED ITEM TO GOVERNMENT AND THEREFORE WAS NOT ENTITLED TO SUCH WAIVER IS DENIED SINCE RECORD INDICATES LOW BIDDER HAD PREVIOUSLY FURNISHED PRODUCTION QUANTITIES MEETING CURRENT SPECIFICATION REQUIREMENTS. WAS ISSUED BY THE SAN ANTONIO AIR MATERIEL AREA. BIDS WERE RECEIVED FROM ESSEX ELECTRO ENGINEERS. ESSEX WITHDREW ITS PROTEST "WITHOUT PREJUDICE TO ITS RENEWAL" AND SOUGHT TO HAVE THE MATTER RESOLVED BY THE AIR FORCE. STATING THAT IT WAS INFORMED BY THE CONTRACTING OFFICER ON DECEMBER 14. CONTRACT WAS AWARDED TO UMC ON JANUARY 18. THE AIR FORCE CLAIMS THAT THE LETTER FROM ESSEX REQUESTING REINSTATEMENT WAS UNTIMELY BECAUSE IT WAS NOT FILED WITH GAO WITHIN 5 DAYS AFTER THE BASIS FOR PROTEST BECAME KNOWN. 4 CFR 20.2.

B-179877, MAY 23, 1974

PROTEST AGAINST ACCEPTANCE OF BID BASED ON WAIVER OF FIRST ARTICLE TESTING BECAUSE BIDDER ALLEGEDLY HAD NOT PREVIOUSLY FURNISHED PRODUCTION QUANTITIES OF REQUIRED ITEM TO GOVERNMENT AND THEREFORE WAS NOT ENTITLED TO SUCH WAIVER IS DENIED SINCE RECORD INDICATES LOW BIDDER HAD PREVIOUSLY FURNISHED PRODUCTION QUANTITIES MEETING CURRENT SPECIFICATION REQUIREMENTS.

TO ESSEX ELECTRO ENGINEERS, INC.:

INVITATION FOR BIDS NO. F41608-74-B-0138, SOLICITING OFFERS TO FURNISH QUANTITIES OF A-2 GENERATOR TEST STANDS, WAS ISSUED BY THE SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, TEXAS, ON AUGUST 16, 1973. BIDS WERE RECEIVED FROM ESSEX ELECTRO ENGINEERS, INC. (ESSEX) AND UMC ELECTRONICS COMPANY (UMC). BY WIRE OF OCTOBER 15, 1973, ESSEX PROTESTED TO THIS OFFICE AGAINST ANY AWARD TO UMC. BY LETTER OF OCTOBER 22, 1973, ESSEX WITHDREW ITS PROTEST "WITHOUT PREJUDICE TO ITS RENEWAL" AND SOUGHT TO HAVE THE MATTER RESOLVED BY THE AIR FORCE. ESSEX REINSTATED THE PROTEST ON DECEMBER 19, 1973, STATING THAT IT WAS INFORMED BY THE CONTRACTING OFFICER ON DECEMBER 14, 1973, THAT AWARD WOULD BE MADE "TO OTHER THAN ESSEX." CONTRACT WAS AWARDED TO UMC ON JANUARY 18, 1974.

THE AIR FORCE CLAIMS THAT THE LETTER FROM ESSEX REQUESTING REINSTATEMENT WAS UNTIMELY BECAUSE IT WAS NOT FILED WITH GAO WITHIN 5 DAYS AFTER THE BASIS FOR PROTEST BECAME KNOWN. 4 CFR 20.2. ACCORDING TO THE AIR FORCE, ESSEX HAD BEEN INFORMED OF THE AIR FORCE DECISION ON NOVEMBER 30, 1973, AND THE DECEMBER 14, 1973 COMMUNICATION (A TELEPHONE CALL FROM THE CONTRACTING OFFICER) WAS ONLY AN INQUIRY AS TO ESSEX'S INTENTIONS. THE RECORD, HOWEVER, DOES NOT CONTAIN SUFFICIENT DOCUMENTATION TO ENABLE US TO CONCLUDE THAT ESSEX RECEIVED NOTIFICATION OF ADVERSE ACTION MORE THAN 5 DAYS PRIOR TO OUR RECEIPT OF ITS REINSTATEMENT REQUEST. THEREFORE, WE MUST TREAT THE PROTEST ON THE MERITS.

THE IFB PERMITTED BIDS ON THE BASIS OF BOTH FIRST ARTICLE APPROVAL REQUIRED AND FIRST ARTICLE APPROVAL NOT REQUIRED. BOTH ESSEX AND UMC SUBMITTED BIDS ON THE BASIS THAT FIRST ARTICLE APPROVAL WOULD NOT BE REQUIRED, WITH UMC SUBMITTING THE LOW BID. ESSEX, CITING SOLICITATION PROVISION C-42 WHICH PERMITTED WAIVER OF FIRST ARTICLE TESTING FOR BIDDERS "WHO HAVE PREVIOUSLY FURNISHED PRODUCTION QUANTITIES OF THE SAME ARTICLE TO THE GOVERNMENT," CLAIMS THAT UMC'S BID DID NOT QUALIFY FOR THE WAIVER BECAUSE UMC HAD NEVER FURNISHED PRODUCTION QUANTITIES OF THE A-2 TEST STAND TO THE GOVERNMENT.

THE AIR FORCE REPORTS, AND THE RECORD REFLECTS, THAT UMC HAD PREVIOUSLY FURNISHED PRODUCTION QUANTITIES OF THE TEST STANDS WHICH MET THE SPECIFICATION REQUIREMENTS OF THE INSTANT PROCUREMENT. IN FACT, IT IS REPORTED THAT CERTAIN PORTIONS OF THE SPECIFICATIONS WERE BASED ON THE PERFORMANCE OF A UMC PRODUCTION UNIT. IN VIEW OF THIS INFORMATION, WE HAVE NO BASIS FOR OBJECTING TO THE AIR FORCE'S DETERMINATION THAT UMC WAS QUALIFIED FOR WAIVER OF FIRST ARTICLE TESTING OR TO THE ACCEPTANCE OF UMC'S BID. ACCORDINGLY, THE PROTEST IS DENIED.