B-221818.2, MAR 18, 1986

B-221818.2, MAR 18, 1986

PRECIS-UNAVAILABLE

THE HONORABLE JIM BATES:

MEMBER, UNITED STATES HOUSE OF REPRESENTATIVES

430 DAVIDSON STREET

SUITE A

CHULA VISTA, CALIFORNIA 92010

THIS IS IN REPLY TO YOUR LETTER OF JANUARY 31, 1986, REQUESTING THAT WE REVIEW ALLEGATIONS MADE BY INNOVATIVE DATA TECHNOLOGY (IDT) IN CONNECTION WITH THE AWARD OF A CONTRACT UNDER SOLICITATION N00244-85-B 0228 ISSUED BY THE NAVAL SUPPLY CENTER, SAN DIEGO, CALIFORNIA.

IDT'S OFFER IN RESPONSE TO THE SOLICITATION WAS NOT ACCEPTED BECAUSE IT WAS NOT THE LOW OFFER. AWARD WAS MADE TO THE LOW OFFEROR, TELEBYTE TECHNOLOGY INCORPORATED (TELEBYTE).

IN ITS LETTER TO YOU, IDT CONTENDS, ESSENTIALLY, THAT, IN ITS SELECTION OF TELEBYTE, THE NAVY DID NOT TAKE INTO CONSIDERATION ALL OF THE COST FACTORS INVOLVED IN MANUFACTURE OF THE PRODUCT BEING PROCURED AND THAT IN THE LONG RUN, IT WILL PAY MORE TO TELEBYTE FOR THE PRODUCT THAN IT WOULD PAY TO IDT. IDT ALSO QUESTIONS WHY THE STATEMENT BY TELEBYTE, THAT THE FOREIGN CONTENT OF THE PRODUCT WAS ONLY 23 PERCENT OF THE COST, WAS NOT VERIFIED.

BY LETTER DATED JANUARY 15, 1986, IDT MADE ALMOST THE IDENTICAL PROTEST TO OUR OFFICE. THE RECORD BEFORE OUR OFFICE AT THAT TIME INDICATED THAT THE AWARD WAS MADE TO TELEBYTE ON NOVEMBER 8, 1985, BUT NO PROTEST HAD BEEN FILED WITH THE AGENCY OR OUR OFFICE UNTIL THE JANUARY 15, 1986, LETTER. THEREFORE, ON JANUARY 16, 1986, IDT'S PROTEST WAS DISMISSED AS UNTIMELY ON THE BASIS THAT IT WAS NOT FILED AS REQUIRED BY OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.2(A)(2) (1985), WITHIN 10 WORKING DAYS AFTER THE BASIS OF THE PROTEST WAS FIRST KNOWN OR SHOULD HAVE BEEN KNOWN. AS A RESULT OF ADDITIONAL INFORMATION OBTAINED FROM IDT'S CORRESPONDENCE TO YOU AND SUBSEQUENT DISCUSSIONS WITH PROCUREMENT PERSONNEL AT NAVY, WE DISCOVERED THAT IDT WAS NOTIFIED OF THE AWARD BY LETTER DATED DECEMBER 9, 1985, IDT PROTESTED TO THE NAVY ON DECEMBER 10, 1985, AND THE PROTEST WAS DENIED ON DECEMBER 30, 1985. BECAUSE NO TIMELY REQUEST FOR RECONSIDERATION WAS FILED WITH OUR OFFICE, WE DID NOT CONSIDER THE PROTEST.

HOWEVER, FOR YOUR INFORMATION, IN REGARD TO IDT'S CONTENTION THAT NAVY DID NOT TAKE INTO CONSIDERATION ALL FOR THE COSTS FACTORS INVOLVED IN MANUFACTURING OF THE PRODUCT, THIS APPEARS TO BE ESSENTIALLY A CHALLENGE TO THE EVALUATION SCHEME SET FORTH IN THE SOLICITATION AND WOULD BE UNTIMELY UNDER OUR BID PROTEST REGULATIONS, WHICH REQUIRE THAT PROTESTS OF ALLEGED IMPROPRIETIES APPARENT ON THE FACE OF A SOLICITATION BE FILED PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS. 4 C.F.R. SEC. 21.2(A)(1) (1985); ALSO SEE CAPITAL SYSTEMS, INC., B-218295, JULY 12, 1985, 85-2 CPD PARA. 44, AND REQUEST FOR DECISION BY ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS; ALDE PUBLISHING, B-219010, B-219010.2, AUG. 22, 1985, 85-2 CPD PARA. 213. THE ABSENCE OF THE ABOVE COST FACTORS SHOULD HAVE BEEN APPARENT ON THE FACE OF THE SOLICITATION.

ALSO, IN REGARD TO THE QUESTION RAISED BY IDT CONCERNING TELEBYTE'S COMPLIANCE WITH THE BUY AMERICAN ACT, IT APPEARS THAT TELEBYTE DID OFFER TO SUPPLY A DOMESTIC PRODUCT. WE HAVE HELD THAT WHETHER THE END PRODUCT OFFERED COMPLIES WITH THE BIDDER OR OFFEROR'S CERTIFICATION OF FOREIGN CONTENT PRIMARILY IS A MATTER OF CONTRACT ADMINISTRATION, WHICH WE WILL NOT REVIEW. 4 C.F.R. SEC. 21.3(F)(1) (1985); SEE NEWMAN MACHINE COMPANY, B-220854, OCT. 29, 1985, 85-2 CPD PARA. 44; TRITAN CORPORATION, B-218306, MAY 24, 1985, 85-1 CPD PARA. 601; AND BENDER SHIPBUILDING & REPAIR CO., INC., B-219629.2, OCT. 25, 1985, 85-2 CPD PARA. 462.