B-169779, SEP. 3, 1970

B-169779, SEP. 3, 1970

BID PROTEST - NON-SET-ASIDE SUSTAINING DECISION OF AUGUST 6, 1970, THAT DENIED PROTEST OF R. S. CORCORAN COMPANY, AGAINST THE AWARD OF THE NON-SET-ASIDE PORTION OF PROCUREMENT TO AVIONICS, INC., UNDER IFB, ISSUED U.S.A. AMMUNITION PROCUREMENT AND SUPPLY AGENCY. BIDDER, WHO PROTESTED AWARD OF CONTRACT TO ANOTHER COMPANY ON NON-SET ASIDE PORTION OF PROCUREMENT MUST HAVE PROTEST REJECTED ON THE GROUNDS THAT EVEN THOUGH A FIRM MET THE CRITERIA FOR ELIGIBILITY FOR A WAIVER OF FIRST ARTICLE APPROVED, THERE IS NO ASSURANCE IN THE INVITATION THAT A WAIVER MAY BE GRANTED, SINCE THE WAIVER IS NOT A MATTER OF RIGHT IN THE BIDDER, BUT REMAINS WITHIN THE DESCRETION OF THE CONTRACTING OFFICER.

TO R. S. CORCORAN COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 20, 1970, CONCERNING OUR DECISION OF AUGUST 6, 1970, B-169779. OUR DECISION DENIED YOUR PROTEST OF THE AWARD MADE OF THE NON-SET-ASIDE PORTION OF THE PROCUREMENT UNDER INVITATION FOR BIDS NO. DAAA09-70-B-0086 ISSUED BY THE UNITED STATES ARMY AMMUNITION PROCUREMENT AND SUPPLY AGENCY, JOLIET, ILLINOIS.

YOU URGE THAT WE HAVE OVERLOOKED THE FACT THAT THE WAIVER CLAUSE OF THE SOLICITATION DOES NOT MENTION OR REFERENCE PARAGRAPH 3.1.1 OF SPECIFICATION MIL-C-14242B. THIS PARAGRAPH PLACES A LIMITATION ON GRANTING OF WAIVERS OF FIRST ARTICLE SAMPLES TO THOSE FIRMS HAVING PRODUCED THE ITEM SOLICITED WITHIN 90 DAYS IMMEDIATELY PRECEDING THE NEW CONTRACT. THIS ARGUMENT WAS ADVANCED BY YOUR ATTORNEYS, WAS CAREFULLY CONSIDERED AND REJECTED IN OUR DECISION. IT CERTAINLY WAS NOT OVERLOOKED. HOWEVER, EVEN IF YOUR FIRM MET THE CRITERIA FOR ELIGIBILITY FOR A WAIVER OF FIRST ARTICLE APPROVAL, THERE WAS NO PROMISE OR ASSURANCE IN THE INVITATION THAT YOU WOULD ACTUALLY BE GRANTED A WAIVER. AS WE SAID IN OUR DECISION OF AUGUST 6, 1970, A WAIVER IS NOT A MATTER OF RIGHT IN THE BIDDER, BUT IS DISCRETIONARY WITH THE CONTRACTING OFFICER. THAT BEING SO, THE AWARD MADE TO AVIONICS, INCORPORATED, PRIOR TO YOUR PROTEST TO US, COULD NOT BE CONSIDERED AS OTHER THAN LEGALLY VALID AND BINDING ON THE GOVERNMENT, EVEN IF WE DISAGREED WITH THE CONTRACTING OFFICER'S JUDGMENT.

WE MUST TAKE ISSUE WITH YOUR STATEMENT THAT WE DID NOT CONTACT YOUR COMPANY. WE WROTE TO YOUR ATTORNEYS ON MAY 19, 1970, AND JULY 1, 1970, COPIES HEREWITH. OUR OFFICE DOES NOT HOLD FORMAL HEARINGS, ALTHOUGH CONFERENCES MAY BE HELD TO DISCUSS PROTESTS INFORMALLY. WE WOULD HAVE BEEN GLAD TO CONFER WITH YOU, BUT THE FACTS OF THE CASE ARE SUCH THAT OUR DECISION COULD NOT HAVE BEEN OTHER THAN IT WAS.