B-182580, APR 3, 1975

B-182580, APR 3, 1975

1. WHERE PROTEST ALLEGES THAT GOVERNMENT PERSONNEL REVEALED BID PRICE, ORALLY SUBMITTED TO GOVERNMENT PRIOR TO IFB, TO SUCCESSFUL BIDDER, CITING LATTER'S SIGNIFICANT REDUCTION IN PRICE OVER THAT IN CONTRACT TERMINATED PRIOR TO ISSUANCE OF IFB, BUT AGENCY REPORTS THERE IS NO EVIDENCE OF PRICE DISCLOSURE AND SUCCESSFUL BIDDER STATES PRICE WAS REDUCED BECAUSE OF INCREASED QUANTITY AND ANTICIPATED COMPETITION, PROTEST IS DENIED, SINCE NO EVIDENCE HAS BEEN FURNISHED ESTABLISHING PRICE DISCLOSURE BY AGENCY. 2. PROTEST AGAINST SPECIFICATIONS FILED AFTER BID OPENING IS UNTIMELY AND WILL NOT BE CONSIDERED, SINCE UNDER SECTION 20.2(A) OF BID PROTEST PROCEDURES AND STANDARDS, PROTESTS BASED ON ALLEGED IMPROPRIETIES KNOWN PRIOR TO BID OPENING MUST BE FILED PRIOR TO BID OPENING.

SPARKLET DEVICES, INC.:

DEFENSE SUPPLY AGENCY (DSA) ISSUED INVITATION FOR BIDS (IFB) DSA 700 75-B -0936, ON SEPTEMBER 12, 1974, FOR 2,085 INFLATION VALVES FOR LIFE RAFTS, DESIGNATED FLU-6/P. BIDS WERE OPENED ON OCTOBER 15, 1974. OF THE TWO BIDS SUBMITTED BY THE ONLY FIRMS ON THE QUALIFIED PRODUCTS LIST (QPL) FOR THIS ITEM, THE UNIT PRICE BID OF $49.35 SUBMITTED BY BENDIX CORPORATION (BENDIX) WAS LOWER THAN THE BID SUBMITTED BY SPARKLET DEVICES, INC. (SPARKLET). BY LETTER DATED OCTOBER 22, 1974, ADDRESSED TO THE DEPUTY DIRECTOR OF PROCUREMENT FOR DSA'S DEFENSE CONSTRUCTION SUPPLY CENTER, SPARKLET PROTESTED ANY AWARD TO BENDIX, ALLEGING THAT BENDIX HAD OBTAINED ADVANCE KNOWLEDGE OF SPARKLET'S UNIT PRICE BID OF $53.30 AND OFFERED TO MEET THE PRICE SUBMITTED BY BENDIX.

SPARKLET WAS INFORMED BY LETTER DATED NOVEMBER 5, 1974, THAT ITS OFFER TO REDUCE ITS BID AFTER BID OPENING COULD NOT BE CONSIDERED. SPARKLET PROTESTED THE REJECTION OF ITS BID TO THIS OFFICE BY LETTER DATED OCTOBER 28, 1974.

PRIOR TO ISSUANCE OF IFB DSA 700-75-B-0936, REQUEST FOR PROPOSALS DSA 700 -74-R-5153, CALLING FOR 1,084 INFLATION VALVES, FLU-6/P, WAS ISSUED ON MAY 8, 1974, BY DSA. ON JUNE 12, 1974, A PROPOSAL WAS RECEIVED FROM BENDIX, WHO AT THAT TIME WAS THE ONLY FIRM ON THE QPL. THE UNIT PRICE SUBMITTED BY BENDIX WAS $75.59. BENDIX WAS AWARDED CONTRACT DSA 700-75 C-1207 ON AUGUST 12, 1974.

BY LETTER DATED JULY 3, 1974, THE DEPARTMENT OF THE NAVY ADVISED SPARKLET THAT ITS VALVE HAD BEEN APPROVED FOR ADDITION TO THE QPL. SPARKLET PROTESTED THE AWARD TO BENDIX BY LETTER TO DSA DATED AUGUST 23, 1974, STATING IT HAD INFORMED THE CONTRACTING OFFICER BY TELEPHONE ON AUGUST 2, 1974, THAT ITS PRICE WOULD BE $53.30 PER VALVE AND THAT IT WOULD LIKE THE OPPORTUNITY TO UNDERBID BENDIX. AFTER A REVIEW OF ALL THE FACTS PERTINENT TO THE AWARD TO BENDIX, IT WAS DETERMINED THAT THE CONTRACT SHOULD BE TERMINATED FOR CONVENIENCE. NOTICE OF SUCH TERMINATION WAS MAILED TO BENDIX ON AUGUST 29, 1974. IFB DSA 700-75-B 0936 WAS ISSUED TO COVER THE QUANTITIES ON THE BENDIX CONTRACT, PLUS ADDITIONAL REQUIREMENTS.

SPARKLET STATES THAT FROM THE TIME OF DSA'S TERMINATION OF THE BENDIX CONTRACT IT WAS CONCERNED THAT BENDIX MIGHT HAVE BEEN GIVEN INFORMATION REGARDING TERMS AND PRICE MADE KNOWN TO THE CONTRACTING OFFICER IN THE TELEPHONE CONVERSATION OF AUGUST 2, 1974. IN SUPPORT OF ITS ALLEGATION THAT BENDIX DID OBTAIN KNOWLEDGE OF SPARKLET'S BID PRICE, SPARKLET CITES THE BENDIX UNIT PRICE BID OF $49.35 ON THE PROTESTED CONTRACT DESPITE THE $75.59 BID ON THE TERMINATED CONTRACT ONLY A FEW WEEKS BEFORE. SPARKLET HAS OFFERED NO OTHER EVIDENCE IN SUPPORT OF ITS ALLEGATION.

ON THE OTHER HAND, THE CONTRACTING OFFICER'S REPORT STATES THAT THERE IS NO EVIDENCE TO INDICATE THAT SPARKLET'S PRICE WAS REVEALED TO BENDIX OR TO THE PUBLIC BY GOVERNMENT PERSONNEL. THE CONTRACTING OFFICER QUERIED A REPRESENTATIVE OF BENDIX BY TELEPHONE ON OCTOBER 21, 1974, WITH REGARD TO THE PRICE REDUCTION AND WAS INFORMED THAT BENDIX HAD REVIEWED ITS PRICE BID UNDER THE TERMINATED CONTRACT IN RECOGNITION OF THE FACT THAT THE ITEM WAS SUBJECT TO COMPETITIVE BIDDING. ADDITIONALLY, THE BENDIX REPRESENTATIVE STATED THAT THE INCREASE IN THE QUANTITY SOLICITED CONTRIBUTED TO THE PRICE REDUCTION. IN VIEW OF THE FOREGOING AND SINCE SPARKLET HAS FURNISHED NO EVIDENCE ESTABLISHING THAT THERE WAS A PRICE DISCLOSURE BY THE CONTRACTING AGENCY, WE ARE UNABLE TO CONCLUDE FROM THE RECORD THAT THE SPARKLET CONTENTION IS CORRECT. B-176593, NOVEMBER 17, 1972. THE PROTEST AGAINST THE DSA AWARD THEREFORE IS DENIED.

BY ITS OCTOBER 28, 1974, LETTER TO THIS OFFICE, SPARKLET ALSO PROTESTS TWO BID SOLICITATIONS ISSUED BY THE DEPARTMENT OF THE AIR FORCE FOR PNEUMATIC VALVE ASSEMBLIES, PN FR 125A1, IFB F41608-74-B-2121 ISSUED ON JULY 23, 1974, FOR 517 VALVES, AND IFB F41608-75-B-0184 ISSUED ON AUGUST 8, 1974, FOR 1,217 VALVES. CONTRACTS WERE AWARDED TO A.C. BALL COMPANY ON OCTOBER 24, 1974, AND NOVEMBER 5, 1974, RESPECTIVELY.

THE SOLICITATIONS WERE ISSUED USING THE DETAILED DRAWINGS AND SPECIFICATIONS OF THE BENDIX CORPORATION VALVE INCLUDED ON QUALIFIED PRODUCT LIST SPECIFICATION MIL-V-81722(AS) USED IN IFB DSA 700-75-B 0936, PREVIOUSLY DISCUSSED, UNDER WHICH SPARKLET HAD ALSO QUALIFIED ITS VALVE NO. 3208.

BY LETTER DATED AUGUST 27, 1974, ADDRESSED TO THE SAN ANTONIO AIR LOGISTICS CENTER, DEPARTMENT OF THE AIR FORCE, REFERENCING IFB F41608 74-B -2121, SPARKLET REQUESTED THAT ITS VALVE BE INCLUDED ON ALL FUTURE REQUIREMENTS. ON THAT SAME DATE, IN A SECOND LETTER, REFERENCING IFB F41608-75-B-0184, SPARKLET INFORMED THE AIR FORCE THAT SPARKLET VALVE NO. 3208 WAS MANUFACTURED TO SPECIFICATION MIL-V-81722(AS) AND REQUESTED A DELAY IN THE OPENING DATE OF THE SOLICITATION AND A CHANGE IN SOLICITATION REQUIREMENTS TO ACCEPT THE SPARKLET VALVE. SPARKLET WAS ADVISED ON SEPTEMBER 3, 1974, THAT SPECIFICATION MIL-V-81722(AS) WAS A NAVY SPECIFICATION, NOT APPLICABLE TO IFB F41608-75-B-0184 AND THAT THE ITEM WAS TO BE FURNISHED IN ACCORDANCE WITH THE DRAWINGS AND SPECIFICATIONS SET FORTH IN THE INVITATION. SPARKLET DID NOT ELECT TO SUBMIT BIDS ON EITHER IFB. ON OCTOBER 28, 1974, BY LETTER TO THE CONTRACTING OFFICER FOR IFB F41608-75-B-0184, SPARKLET PROTESTED "YOUR REFUSAL TO PERMIT US TO BID," AS COMMUNICATED TO SPARKLET BY THE AIR FORCE'S SEPTEMBER 3, 1974, RESPONSE.

SECTION 20.2(A) OF THE BID PROTEST PROCEDURES AND STANDARDS OF THIS OFFICE (4 C.F.R. SEC. 20.2(A) (1974)) PROVIDES THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN AN INVITATION FOR BIDS WHICH ARE APPARENT PRIOR TO BID OPENING SHALL BE FILED PRIOR TO BID OPENING. SINCE SPARKLET ACKNOWLEDGES THAT IT WAS MADE AWARE OF THE AIR FORCE'S ALLEGED REFUSAL TO ALLOW SPARKLET TO BID ON SEPTEMBER 3, 1974, PRIOR TO BID OPENING ON SEPTEMBER 9, 1974, ITS OCTOBER 28, 1974, PROTEST WAS UNTIMELY FILED. SIMILARLY, SPARKLET'S OCTOBER 28, 1974, PROTEST TO THIS OFFICE WITH REGARD TO IFB F41608-74-B-2121 WAS UNTIMELY FILED SINCE THE ACTUAL BASIS OF ITS PROTEST, ALLEGEDLY RESTRICTIVE SPECIFICATIONS, WAS APPARENT ON THE FACE OF THE IFB AND SPARKLET WAS REQUIRED TO FILE ITS PROTEST PRIOR TO BID OPENING ON AUGUST 22, 1974. SINCE THE PROTEST AGAINST THE AIR FORCE PROCUREMENTS IS UNTIMELY, IT WILL NOT BE CONSIDERED.

IT IS OBSERVED IN PASSING THAT SPARKLET'S CONCERN WAS THAT, IF THE SPECIFICATIONS WERE NOT CHANGED IN THE AIR FORCE PROCUREMENTS, BENDIX WOULD BE AWARDED THE CONTRACTS. HOWEVER, THAT WAS PRECLUDED BY THE FACT THAT BOTH PROCUREMENTS WERE SMALL BUSINESS SET-ASIDES AND, AS NOTED ABOVE, BOTH AWARDS WERE MADE TO THE A.C. BALL COMPANY.