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B-157931, FEB. 17, 1966

B-157931 Feb 17, 1966
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TO UNITED SHOE MACHINERY CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 22. BIDS WERE SOLICITED ON THE BASIS OF "PREPRODUCTION SAMPLE APPROVAL REQUIRED" UNDER BID "A" AND ON THE BASIS OF "PREPRODUCTION SAMPLE APPROVAL NOT REQUIRED" UNDER BID "B.'. BIDDERS WHO HAD NOT PREVIOUSLY FURNISHED TO THE GOVERNMENT AN ACCEPTABLE ARTICLE OF THE KIND DESCRIBED WERE REQUIRED TO SUBMIT THEIR BID UNDER BID "A. BIDDERS WHO HAD PREVIOUSLY FURNISHED AN ACCEPTED ARTICLE WERE REQUIRED TO SUBMIT THEIR BID UNDER BID "B" AND FURNISH EVIDENCE WITH THEIR BIDS THAT PRIOR GOVERNMENT APPROVAL WAS CURRENTLY APPROPRIATE FOR THE PROCUREMENT. BIDDERS WERE ADVISED THAT BIDS SUBMITTED UNDER EITHER CATEGORY WERE EQUALLY ACCEPTABLE TO THE GOVERNMENT.

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B-157931, FEB. 17, 1966

TO UNITED SHOE MACHINERY CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 22, 1965, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER CONCERN UNDER INVITATION NO. 33-657- 65-295, ISSUED BY WRIGHT-PATTERSON AIR FORCE BASE.

THE INVITATION SOLICITED BIDS, TO BE OPENED SEPTEMBER 9, 1965, FOR THE FURNISHING OF 236 AIRCRAFT MOUNTED WINCHES IN ACCORDANCE WITH SPECIFICATION MIL-W-27895A/USAF), DATED MAY 14, 1965. BIDS WERE SOLICITED ON THE BASIS OF "PREPRODUCTION SAMPLE APPROVAL REQUIRED" UNDER BID "A" AND ON THE BASIS OF "PREPRODUCTION SAMPLE APPROVAL NOT REQUIRED" UNDER BID "B.' BIDDERS WHO HAD NOT PREVIOUSLY FURNISHED TO THE GOVERNMENT AN ACCEPTABLE ARTICLE OF THE KIND DESCRIBED WERE REQUIRED TO SUBMIT THEIR BID UNDER BID "A," WHICH INCLUDED COMPLIANCE WITH SCHEDULE PROVISION "PREPRODUCTION TESTING AND APPROVAL.' BIDDERS WHO HAD PREVIOUSLY FURNISHED AN ACCEPTED ARTICLE WERE REQUIRED TO SUBMIT THEIR BID UNDER BID "B" AND FURNISH EVIDENCE WITH THEIR BIDS THAT PRIOR GOVERNMENT APPROVAL WAS CURRENTLY APPROPRIATE FOR THE PROCUREMENT. BIDDERS WERE ADVISED THAT BIDS SUBMITTED UNDER EITHER CATEGORY WERE EQUALLY ACCEPTABLE TO THE GOVERNMENT, AS APPLICABLE, AND AWARD WOULD BE MADE THEREON "WITH THE BEST INTEREST OF THE GOVERNMENT CONSIDERED.'

THE INVITATION PROVIDED THAT THE WINCHES WERE TO BE DELIVERED TO THE GOVERNMENT (1) F.O.B. CARRIER'S EQUIPMENT AT THE PLANT OR PLANTS AT WHICH THEY WERE TO BE FINALLY INSPECTED AND ACCEPTED, OR (2) F.O.B. CITY AND STATE WHICH WAS THE NEAREST POINT OR POINTS THAT CARRIER SERVICE WAS AVAILABLE TO THE PLANT OR PLANTS AT WHICH FINAL INSPECTION AND ACCEPTANCE WAS TO BE ACCOMPLISHED. FINAL INSPECTION AND ACCEPTANCE OF THE WINCHES WAS TO BE AT THE CONTRACTOR'S OR SUBCONTRACTOR'S PLANT, THE BIDDER BEING REQUIRED TO INDICATE THE LOCATION OF HIS PLANT, OR THAT OF HIS SUBCONTRACTOR, WHERE INSPECTION WAS TO TAKE PLACE. BIDS SUBMITTED ON A BASIS OTHER THAN F.O.B. ORIGIN WERE TO BE REJECTED AS NONRESPONSIVE.

BIDDERS WERE ADVISED IN AFPI FORM 71-75, INCORPORATED IN THE INVITATION, THAT EACH BID WOULD ,BE EVALUATED TO THE DESTINATION SPECIFIED" BY ADDING TO THE F.O.B. ORIGIN PRICE ALL TRANSPORTATION COSTS TO SAID DESTINATIONS; THAT GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE) WERE REQUIRED FOR DETERMINATION TRANSPORTATION COST; THAT THE BIDDER MUST STATE THE WEIGHTS (AND DIMENSIONS IF APPLICABLE) IN HIS BID OR IT WOULD BE REJECTED; AND THAT AFPI FORM 28A, ATTACHED TO FORM 71-75 AND MADE A PART THEREOF, WAS REQUIRED TO BE COMPLETED BY THE BIDDER. ON FORM 28A, THE BIDDER WAS TO INDICATE AND/OR FURNISH, AMONG OTHER THINGS, WHETHER HE OR HIS SUBCONTRACTOR HAD RAIL SIDING FACILITIES AND ADEQUATE MOTOR CARRIER SERVICE AT HIS PLANT, A DESCRIPTION OF THE ARTICLE BEING FURNISHED IN TERMS OF THE UNIFORM FREIGHT CLASSIFICATION AND NATIONAL MOTOR FREIGHT CLASSIFICATION, THE TYPE OF SHIPPING CONTAINER OR OTHER METHOD OF PACKING, AND THE WEIGHT PACKED FOR SHIPMENT.

AT PAGE 10 OF THE IFB "SCHEDULE," BIDDERS WERE ADVISED, AND INFORMATION WAS ELICITED FROM THEM, AS FOLLOWS:

"B. SUBCONTRACTING CONTEMPLATED: BIDDER REPRESENTS THAT THE ESTIMATED PERCENTAGE OF SUBCONTRACTING CONTEMPLATED ON THIS PROCUREMENT IS ............... PERCENT.

NOTE: THE "PERCENTAGE OF SUBCONTRACTING" WILL BE REPORTED AS A PERCENTAGE OF THE PRIME CONTRACTOR'S SELLING PRICE. "SUBCONTRACTING" MEANS ONLY CONTRACTS FOR THE PRODUCTION OR OF WORK UPON AN ITEM, COMPONENT OR ASSEMBLY AND DOES NOT INCLUDE: (I) ANY PURCHASE OF A STANDARD COMMERCIAL OR CATALOG ITEM, (II) ANY PURCHASE OF A BASIC RAW MATERIAL, (III) ANY PURCHASE OF SUPPLIES, OR SERVICES FOR THE GENERAL OPERATION OF THE CONTRACTOR'S PLANT, OR (IV) ANY PURCHASE FROM A PARENT, SUBSIDIARY, OR AFFILIATE OF THE CONTRACTOR.'

IN THE CASE OF BID "A," DELIVERY OF THE PROPOSED SAMPLE OF THE WINCH AND RELATED TEST REPORT WAS REQUIRED TO BE MADE WITHIN 120 DAYS AFTER DATE OF RECEIPT BY THE CONTRACTOR OF WRITTEN NOTICE OF AWARD, AND DELIVERIES OF THE WINCHES WERE TO COMMENCE 60 DAYS AFTER DATE OF RECEIPT OF WRITTEN GOVERNMENT APPROVAL OF PREPRODUCTION TEST REPORT AND BE COMPLETED 180 DAYS THEREAFTER. PARAGRAPH 29 (E) OF THE GENERAL PROVISIONS (STANDARD FORM 32) INCORPORATED IN THE INVITATION, AS SUPPLEMENTED BY PARAGRAPH K, SHIPPING INSTRUCTIONS, OF THE IFB "SCHEDULE," PROVIDED THAT THE NAMES OF CONSIGNEES OF ALL SUPPLIES TO BE DELIVERED BY THE CONTRACTOR UNDER THE CONTRACT WERE TO BE FURNISHED IN WRITING BY THE CONTRACTING OFFICER AT A LATER DATE, AND THAT REQUESTS BY THE CONTRACTOR FOR SHIPPING INSTRUCTIONS WERE TO BE DIRECTED TO THE COMMANDER, SAN ANTONIO AIR MATERIEL AREA, ATTN: SASPP, KELLY FORCE BASE, TEXAS.

WHILE PARAGRAPH 1 (B) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS PROVIDED THAT EACH BIDDER "SHALL FURNISH THE INFORMATION REQUIRED BY THE BID FORM," PARAGRAPH 8 (B) THEREOF PROVIDED THAT THE GOVERNMENT RESERVED THE RIGHT TO WAIVE INFORMALITIES AND MINOR IRREGULARITIES IN BIDS RECEIVED.

THE FOLLOWING BIDS IN THE TOTAL AMOUNTS SHOWN WERE RECEIVED IN RESPONSE TO THE INVITATION:

TABLE

FIRM BID A BID B

PIQUA ENGINEERING, INC. $ 688,412

GUENTHER MANUFACTURING CO., INC. $ 796,192

VAINO A. HOOVER, D/B/A

HOOVER ELECTRIC COMPANY$ 893,326

INSTRUMENT SYSTEMS CORPORATION $ 1,132,180

ACME MACHINE WORKS, INC. $ 1,171,974 $ 1,149,474

UNITED SHOE MACHINERY CORPORATION

(HARMONIC DRIVE DIVISION) $ 1,380,600

THE FIRST TWO BIDDERS LISTED ABOVE ALLEGED MISTAKES IN THEIR BIDS AND WERE AUTHORIZED BY THE STAFF JUDGE ADVOCATE, HEADQUARTERS, AIR FORCE LOGISTICS COMMAND, TO WITHDRAW THEIR BIDS PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 2.406-3, PARAGRAPHS (A) (1) AND (B) (3), OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), 32 CFR 2.406 3, REVISED AS OF JANUARY 1, 1965.

IN HIS BID DATED OCTOBER 26, 1965, VAINO A. HOOVER, D/B/A HOOVER ELECTRIC COMPANY (REFERRED TO HEREAFTER AS HOOVER), INDICATED IN THE SPACES PROVIDED IN PARAGRAPH D OF THE IFB "SCHEDULE" FOR SUCH INFORMATION TO BE SHOWN THAT THE WINCHES WOULD BE DELIVERED F.O.B. CARRIER'S EQUIPMENT AT HIS LOS ANGELES, CALIFORNIA, PLANT, WHERE FINAL INSPECTION AND ACCEPTANCE OF THE SUPPLIES WAS TO TAKE PLACE. A ZERO WAS INSERTED BY HOOVER IN THE SPACE PROVIDED IN PARAGRAPH B OF THE IFB ,SCHEDULE," SUPRA, FOR SHOWING THE ESTIMATED PERCENTAGE OF SUBCONTRACTING CONTEMPLATED. ON FORM 28A, HOOVER INDICATED IN THE SPACES PROVIDED FOR SUCH INFORMATION TO BE SHOWN THAT IT HAD RAIL SIDING FACILITIES, AS WELL AS ADEQUATE MOTOR CARRIER SERVICE, AT HIS LOS ANGELES PLANT, BUT HE DID NOT SUPPLY THE OTHER INFORMATION CALLED FOR IN THE FORM, REFERRED TO ABOVE.

THE CONTRACT WAS AWARDED TO HOOVER ON OCTOBER 21, 1965, AS THE LOWEST RESPONSIBLE BIDDER.

IN YOUR LETTER OF OCTOBER 22, 1965, YOU CONTEND THAT HOOVER'S BID WAS DEFECTIVE AND SHOULD HAVE BEEN REJECTED FOR THE FOLLOWING REASONS:

(1) AMENDMENT NO. 1 TO THE INVITATION, ISSUED UNDER DATE OF AUGUST 25, 1965, WAS NOT ACKNOWLEDGED, AS REQUIRED.

(2) THE DRAWINGS WHICH FORM A PART OF SPECIFICATION MIL-W 27895A/USAF) SPECIFY MANY ITEMS, CLEARLY AND UNQUESTIONABLY WITHIN THE DEFINITION OF "SUBCONTRACTING," THAT HOOVER CANNOT MANUFACTURE, WHICH (IN VIEW OF THE INFORMATION SUPPLIED IN HIS BID TO THE EFFECT THAT NO SUBCONTRACTING WAS CONTEMPLATED) INDICATES THAT HOOVER EITHER WILL NOT BE ABLE TO PERFORM THE CONTRACT TO DELIVER HCU-9/A WINCHES IN ACCORDANCE WITH THE REQUIREMENTS OF THE IFB, OR THAT HE HAS NOT COMPLIED WITH THE REQUIREMENTS OF NOTE 1 OF THE IFB COVER PAGE WHICH PROVIDES AS FOLLOWS:

"BIDS MUST SET FORTH FULL, ACCURATE, AND COMPLETE INFORMATION AS REQUIRED BY THIS INVITATION FOR BIDS (INCLUDING ATTACHMENTS). THE PENALTY FOR MAKING FALSE STATEMENTS IN BIDS IS PRESCRIBED IN 18 U.S.C. 1001.'

(3) HOOVER FAILED TO SUPPLY THE INFORMATION ELICITED ON FORM 28A, REFERRED TO ABOVE, WHICH WAS MANDATORY UNDER THE TERMS OF THE INVITATION.

IN CONCLUSION, YOU STATE:

"THE CONTEMPLATED CONTRACT COVERS A SUBSTANTIAL PROCUREMENT OF RELATIVELY COMPLEX EQUIPMENT REQUIRING DELIVERY OF 236 UNITS WITHIN A SIX MONTH PERIOD, WHICH IN ITSELF IS A CONSIDERABLE TASK. IN ADDITION TO HIS OTHER BUSINESS, IT IS OUR UNDERSTANDING THAT THIS BIDDER CURRENTLY HAS FOUR OTHER AIR FORCE CONTRACTS REQUIRING DELIVERY OF WINCHES. IN VIEW OF THE ABOVE REQUIREMENT, HIS CURRENT FACTORY LOAD AND THE CURRENTLY AVAILABLE PHYSICAL FACILITIES OF THE BIDDER, WE CONSIDER THAT THERE IS A SERIOUS QUESTION AS TO THIS BIDDER'S CAPABILITY TO FULFILL THE REQUIREMENTS OF THE CONTRACT.

"FURTHERMORE, HAD THIS BIDDER CONTEMPLATED PERFORMING THE PROPER AMOUNT OF SUBCONTRACTING, HE WOULD BE FACED WITH OUTSIDE PURCHASES OF APPROXIMATELY $2,800.00 PER WINCH. IN ADDITION, COSTS MUST BE INCURRED FOR IN-HOUSE MANUFACTURING, TOOLING, DOCUMENTATION, ADMINISTRATIVE EXPENSES, QUALIFICATION AND ACCEPTANCE TESTING, ETC. IN VIEW OF THE FOREGOING, IT IS OUR OPINION THAT, AT THE QUOTED PRICE, THIS BIDDER WILL INCUR A SUBSTANTIAL LOSS.

"THE INFORMATION SET FORTH HEREIN, WHICH HAS BEEN MADE AVAILABLE TO THE CONTRACTING OFFICER, AS WELL AS OTHER INFORMATION AVAILABLE TO HIM SHOULD BE SUFFICIENT TO PUT HIM ON NOTICE OF THE POSSIBILITY OF ERROR IN THIS BID AND ANY AFFIRMATIVE FINDING REGARDING THE RESPONSIBLENESS OF THIS BIDDER SHOULD RESULT ONLY AFTER A DETERMINATION THAT THE BID WAS NOT ERRONEOUS OR THAT, IF ADMITTED TO BE ERRONEOUS, THE BIDDER HAS THE ABILITY TO WITHSTAND THE PREDICTED LOSS. THIS IS PARTICULARLY PERTINENT IN VIEW OF THE ABSENCE OF A REQUEST FOR PROGRESS PAYMENTS IN HIS BID.

"FINALLY, INASMUCH AS THIS BIDDER HAS STATED THAT HE CONTEMPLATES ZERO PERCENT SUBCONTRACTING, AND SINCE IT IS INCUMBENT UPON THE AIR FORCE TO EVALUATE THE BIDDER ON THE BASIS OF THE BID AS SUBMITTED, AN AFFIRMATIVE FINDING OF RESPONSIBLENESS SHOULD INCLUDE A DETERMINATION THAT HE HAS THE NECESSARY FACILITIES AND CAPABILITIES TO PERFORM IN HOUSE WHAT WOULD NORMALLY HAVE BEEN SUBCONTRACT EFFORT (I.E., FOUNDRY, SPECIALIZED EQUIPMENT AND KNOWLEDGE NECESSARY TO MANUFACTURE HARMONIC DRIVE, ETC.).'

IN A REPORT IN RESPONSE TO YOUR PROTEST, THE CONTRACTING OFFICER WHO EXECUTED THE CONTRACT WITH HOOVER ON BEHALF OF THE GOVERNMENT STATES THAT AMENDMENT NO. 1 TO THE INVITATION WAS SIGNED (ACKNOWLEDGED) BY HOOVER AND RECEIVED BY THE PROCURING ACTIVITY PRIOR TO THE TIME OF BID OPENING, BUT THE "OPENING CONTRACTING OFFICER" INADVERTENTLY FAILED TO CARRY THE SIGNED AMENDMENT TO THE BID OPENING; THAT ADVANCE COPIES OF ALL BID SETS HAD BEEN PROVIDED ON SEPTEMBER 9, 1965, BY THE ,IFB UNIT" FOR REVIEW BY THE PROCURING OFFICE AND ON THE MORNING OF SEPTEMBER 10, REPRESENTATIVES OF UNITED SHOE WERE PERMITTED TO EXAMINE THE BID SETS AND INFORMED THAT THEY WERE COMPLETE TO THE BEST OF THE CONTRACTING OFFICER'S KNOWLEDGE; AND THAT THE STATEMENT WAS MADE BY THE OPENING CONTRACTING OFFICER AT THE BID OPENING THAT THE AMENDMENT HAD NOT BEEN ACKNOWLEDGED BY HOOVER, AS INDICATED IN YOUR LETTER, BUT SUCH STATEMENT WAS IN ERROR AS EVIDENCED BY A CERTIFICATION FURNISHED BY THE OPENING CONTRACTING OFFICER. THE CERTIFICATION REFERRED TO WAS MADE BY LEOLA S. ALLEN, OPENING CONTRACTING OFFICER, UNDER DATE OF AUGUST 13, 1965, AND IS AS FOLLOWS:

"AMENDMENT NO. 1 TO IFB 33-657-65-295 WAS RECEIVED FROM HOOVER ELECTRIC COMPANY OF LOS ANGELES, CALIFORNIA, APPROXIMATELY 3 OR 4 DAYS PRIOR TO 9 SEPTEMBER 1965 BY THE OPENING CONTRACTING OFFICER.

"THIS AMENDMENT NO. 1 WAS RECEIVED IN ASKI (THE ISSUING OFFICE) WITHOUT THE ENVELOPE AND WAS FOLDED AND FILED UNDER THE ABOVE DATE (9 SEPTEMBER 1965) BY THE OPENING CONTRACTING OFFICER. ON THE DAY OF THE OPENING, THE OPENING CONTRACTING OFFICER INADVERTENTLY FAILED TO TAKE THIS AMENDMENT NO. 1 TO THE BID ROOM. AS A RESULT, THE STATEMENT WAS MADE TO THE EFFECT THAT HOOVER ELECTRIC COMPANY FAILED TO ACKNOWLEDGE THIS AMENDMENT NO. 1.

"IN PREPARING THE ABSTRACT OF BIDS, IT WAS REALIZED THAT THE AMENDMENT NO. 1 IN QUESTION HAD BEEN RECEIVED THAT THE OPENING CONTRACTING OFFICER HAD IN FACT, FILED IT.

"IN VIEW OF THE ABOVE FACTS, IT IS HEREBY DETERMINED THAT AMENDMENT NO. 1 FROM HOOVER ELECTRIC COMPANY WAS MAILED IN SUFFICIENT TIME AND THAT AMENDMENT NO. 1 DID ARRIVE IN ASKI (THE ISSUING OFFICE), IN TIME FOR THE OPENING OF IFB 33-657-65-295, SCHEDULED AND HELD AT 3:00 P.M., EST, 9 SEPTEMBER 1965. THE AMENDMENT NO. 1 IS CONSIDERED ACCEPTABLE AS TO TIME.'

REGARDING THE SECOND CONTENTION IN SUPPORT OF YOUR PROTEST, PARAGRAPH 1- 902.1 (A) OF AIR FORCE PROCUREMENT INSTRUCTION (AFPI), WHICH WAS IN EFFECT AT THE TIME THE INVITATION WAS ISSUED, PROVIDED THAT (EXCEPT IN CERTAIN SITUATIONS APPARENTLY NOT HERE PREVAILING) A COMPLETE FACILITY CAPABILITY REPORT (FCR) WAS REQUIRED WHEN AWARD OF A NEW CONTRACT FOR SUPPLIES OR SERVICES WOULD EXCEED $20,000. ADDITIONALLY, AFPI 2-201 (A) (XVII) (13) PROVIDED THAT WHEN AN FCR WAS CONTEMPLATED AS PRESCRIBED IN AFPI 1-902.1 (A), THE IFB WAS REQUIRED TO CONTAIN THE PROVISION ENTITLED "SUBCONTRACTING CONTEMPLATED," INCLUDING THE "NOTE," QUOTED HEREINABOVE. IT IS THUS APPARENT THAT THE INFORMATION REGARDING THE PERCENTAGE OF SUBCONTRACTING CONTEMPLATED WAS ELICITED FROM BIDDERS UNDER PARAGRAPH "B" OF THE IFB "SCHEDULE" FOR THE PURPOSE OF ENABLING THE PROCURING ACTIVITY TO DETERMINE THE RESPONSIBILITY OF A BIDDER WHO HAD BECOME OTHERWISE ELIGIBLE FOR THE AWARD OF THE CONTRACT, AND THAT THE INFORMATION SOUGHT WAS NOT TO BE USED AS A FACTOR IN EVALUATING THE RESPONSIVENESS OF BIDS. IN THIS CONNECTION OUR OFFICE HAS CONSISTENTLY HELD THAT INFORMATION REQUESTED WITH THE BID IN ORDER TO DETERMINE A BIDDER'S RESPONSIBILITY MAY PROPERLY BE OBTAINED AFTER BID OPENING. 43 COMP. GEN. 206; 42 ID. 728; 39 ID. 247; ID. 881.

ADDITIONALLY, IT APPEARS THAT THE CONTRACTING OFFICER DID REQUEST THE FACILITY SURVEY TEAM TO ASCERTAIN THE PERCENTAGE OF SUBCONTRACTING WHICH WOULD BE INVOLVED IN PERFORMANCE OF THE CONTRACT BY HOOVER AND SUPPLY THIS INFORMATION WITH THE FCR TO BE FURNISHED; THAT HOOVER INDICATED TO THE SURVEY TEAM THAT HE HAD NOT CONSIDERED "VENDOR PURCHASE E.G. G. E. MOTOR AND HARMONIC DRIVE UNIT" AS SUBCONTRACTING, BUT HE AGREED, AFTER DISCUSSIONS HELD WITH AIR FORCE PERSONNEL DURING THE SURVEY, THAT THE APPROXIMATE PERCENTAGE OF SUBCONTRACTING WOULD BE 45 PERCENT "BASED ON THE ACCEPTED DEFINITION OF SUBCONTRACTING.'

THE ERRONEOUS INFORMATION SUPPLIED BY HOOVER WITH RESPECT TO THE PERCENTAGE OF SUBCONTRACTING CONTEMPLATED THUS APPEARS TO HAVE RESULTED SOLELY FROM A MISINTERPRETATION OF THE TERM ,SUBCONTRACTING" AS USED IN THE INVITATION. IN VIEW THEREOF, WE MUST CONCLUDE THAT YOUR SECOND CONTENTION IS UNTENABLE.

REGARDING THE THIRD CONTENTION IN SUPPORT OF YOUR PROTEST, IT WILL BE NOTED ABOVE THAT BIDDERS WERE ADVISED IN THE INVITATION THAT THE NAMES OF CONSIGNEES OF ALL SUPPLIES TO BE DELIVERED BY THE CONTRACTOR UNDER THE CONTRACT WERE TO BE FURNISHED IN WRITING BY THE CONTRACTING OFFICER AT A LATER DATE. THE REPORT FURNISHED TO US BY THE DEPARTMENT OF THE AIR FORCE STATES THAT THE PROCURING ACTIVITY HAD NO KNOWLEDGE OF THE DESTINATIONS TO WHICH THE WINCHES WERE TO BE SHIPPED AT THE TIME OF BID EVALUATION OR AWARD, DUE TO THE FACT THAT THE ITEMS BEING PROCURED WERE TO BE INSTALLED IN OPERATIONAL AIRCRAFT AND THE LOCATIONS OF SUCH AIRCRAFT COULD NOT BE PREDICTED WITH ANY DEGREE OF CERTAINTY ON A LONG TERM BASIS. THE FACTUAL SITUATION AND THE LEGAL ISSUE IS THEREFORE IDENTICAL, IN ALL MATERIAL RESPECTS, WITH THAT INVOLVED IN OUR DECISION B-154064, DATED JUNE 23, 1964, WHEREIN THE ATTORNEYS FOR THE PROTESTING BIDDER THERE INVOLVED WERE ADVISED AS FOLLOWS:

"A PROVISION IN AN INVITATION REQUIRING BIDDERS TO STATE A GUARANTEED SHIPPING WEIGHT IS INTENDED TO FIX EXACTLY THE TOTAL MAXIMUM COST TO THE GOVERNMENT. AS A GENERAL RULE GUARANTEED WEIGHT IS AN ESSENTIAL ELEMENT OF A BID AND IS MATERIAL IN DETERMINING THE TOTAL AMOUNT THE GOVERNMENT WILL BE REQUIRED TO PAY FOR A PARTICULAR ITEM. 38 COMP. GEN. 819. HOWEVER, WHERE THE INVITATION FAILS TO INDICATE A KNOWN OR THEORETICAL DESTINATION POINT, AND WHERE NO SUCH POINT HAS BEEN FIXED AT THE TIME BIDS ARE EVALUATED THE INCLUSION OR EXCLUSION OF SHIPPING WEIGHT GUARANTEES CAN HAVE NO EFFECT UPON EVALUATION SINCE FREIGHT RATES COULD NOT POSSIBLY BE COMPUTED WITHOUT USING SOME DESTINATION POINT.

"AS ABOVE INDICATED WHERE BIDS ARE REQUESTED ON AN F.O.B. ORIGIN BASIS, THE COST OF TRANSPORTATION SHOULD BE CONSIDERED AS AN ELEMENT IN BID EVALUATION AND THE INVITATION SHOULD SO PROVIDE. UNDER THE CIRCUMSTANCES, HOWEVER, THE NAVY CONCLUDED THAT IT WAS NOT PRACTICAL, FOR THE REASONS STATED, TO TAKE SUCH COSTS INTO CONSIDERATION INSOFAR AS THE IGNITERS WERE CONCERNED. THE SHIPPING WEIGHT APPLICABLE TO IGNITERS SERVED NO USEFUL PURPOSE IN BID EVALUATION, AND, THEREFORE, BIDDER'S FAILURE TO INCLUDE SUCH INFORMATION IN HIS BID COULD NOT, IN LIGHT OF WHAT HAS ALREADY BEEN SAID, ADVERSELY AFFECT ITS CONSIDERATION. B-152911, JANUARY 27, 1964.' WHAT WAS SAID IN THE ABOVE-QUOTED DECISION IS EQUALLY FOR APPLICATION HERE.

RELATIVE TO THE CONTENTIONS SET FORTH IN THE CONCLUDING PARAGRAPHS OF YOUR LETTER, IT APPEARS THAT HOOVER WAS REQUESTED BY THE PROCURING ACTIVITY ON SEPTEMBER 15, 1965, TO CONFIRM HIS BID PRICE AND INTENTION TO COMPLY WITH ALL SPECIFICATIONS, DRAWINGS, ETC., AND THAT BY TELEGRAM OF THE SAME DATE HE ADVISED THE CONTRACTING OFFICER AS FOLLOWS:

"IN RESPONSE TO IFB 33-657-65-295 HOOVER ELECTRIC CO. WISHES TO CONFIRM ITS BID OF $3,760.00 EACH ON ITEM 1.1 FOR 236 UNITS ALL OR NONE BASIS THE TOTAL BID PRICE INCLUDING ALL ITEMS IS $893,326.06 DELIVERY OF THE PRE- PRODUCTION SAMPLE AND PRODUCTION EQUIPMENT WILL BE IN ACCORDANCE WITH PARAGRAPH J OF IFB 33-657-65-295 HOOVER ELECTRIC CO. WILL COMPLY WITH ALL OF THE SPECIFICATIONS OUTLINED IN IFB-33-657-65 295 AND MANUFACTURE OF THE EQUIPMENT WILL BE IN ACCORDANCE WITH THE SET OF UNITED SHOE MACHINERY CORPORATION DETAIL ASSEMBLY PRINTS AS FURNISHED WITH IFB.' FURTHERMORE, IN HIS REFERRED-TO REPORT THE CONTRACTING OFFICER STATES:

"HOOVER ELECTRIC COMPANY WAS AWARDED THE CONTRACT AFTER A DETERMINATION OF RESPONSIBILITY WAS MADE IN ACCORDANCE WITH PART 9, ASPR, PARAGRAPH 1- 904. A DETAILED AND AFFIRMATIVE PRE-AWARD SURVEY WAS ACCOMPLISHED BY LACMD. IN ADDITION, THE BUYING OFFICE CONVENED A MANAGEMENT MEETING AT ASD ON 28 OCT 1965, AT WHICH TIME THE HOOVER CO., WAS GIVEN A COMPLETE BRIEFING ON THE PROGRAM, EQUIPMENT USAGE, ESSENTIALITY OF MEETING SCHEDULE AND IMPORTANCE OF QUALITY PERFORMANCE IN PRODUCTION OF THIS ITEM AS IT BECOMES A PART OF THE TOTAL EFFECTIVENESS OF THE C-141/463L TEMS.'

HOOVER'S CONFIRMATION OF THE BID AND THE ADMINISTRATIVE FINDINGS RELATIVE TO HIS RESPONSIBILITY AND HIS ABILITY TO PERFORM THE CONTRACT (MADE PURSUANT TO THE PROVISIONS OF ASPR 1.904, 32 CFR 1.904) WOULD APPEAR TO CONSTITUTE AN ADEQUATE ANSWER TO YOUR CONTENTIONS IN THE PREMISES.

ACCORDINGLY, WE FIND NO BASIS FOR QUESTIONING THE ACTION OF THE DEPARTMENT OF THE AIR FORCE IN AWARDING THE CONTRACT TO HOOVER.

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