B-154591, OCT. 12, 1964

B-154591, OCT. 12, 1964

TO THE CHARLES BESELER COMPANY:

THIS REFERS TO YOUR LETTERS OF JUNE 17 AND 24, 1964, PROTESTING AGAINST THE AWARD OF A CONTRACT TO TECHNICAL ANIMATIONS, INC., UNDER REQUEST FOR QUOTATIONS NO. 02226, ISSUED BY AFCS, AERONAUTICAL SYSTEMS DIVISION, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, DEPARTMENT OF THE AIR FORCE, ON FEBRUARY 3, 1964.

THE PROCUREMENT COVERS 1,868 EACH POLARIZING SPINNERS, MODEL NO. PSS- 3562, WITH DATA AND REPAIR PARTS. (THE POLARIZING SPINNER IS DESCRIBED BY AIR FORCE AS A COMMERCIAL ITEM USED ON OVERHEAD PROJECTORS TO CREATE THE EFFECT OF MOTION ON THE SCREEN.) THE RFQ, AS ISSUED, LISTED MODELS FROM YOUR FIRM, ROBERT BRADY COMPANY AND TECHNIFAX CORPORATION AS BEING ACCEPTABLE. PRIOR TO THE CLOSING DATE FOR PROPOSALS A REQUEST FOR BID MATERIAL WAS RECEIVED FROM TECHNICAL ANIMATIONS. THE FIRM STATED THAT IT WAS THE INVENTOR AND DEVELOPER OF THE TECHNAMATION PROCESS WITH WHICH THESE SPINNERS ARE USED, AND THAT BOTH YOUR FIRM AND TECHNIFAX PRODUCE SPINNERS UNDER LICENSE FROM TECHNICAL ANIMATIONS. TECHNICAL ANIMATIONS' EQUIPMENT WAS THEN EVALUATED BY THE REQUIRING AGENCY, THE DEPARTMENT OF THE ARMY, AT ITS MONMOUTH, NEW JERSEY, ACTIVITY, AND IT WAS DETERMINED THAT THE TECHNICAL ANIMATIONS, INC., MODEL PSS-3562 WAS IDENTICAL TO YOUR PART, EXCEPT FOR THE NAME PLATE. THE TECHNICAL ANIMATIONS PART WAS THEN ADDED TO THE PURCHASE DESCRIPTION.

FOR THE QUANTITY OF 1,868 PART NUMBERS WHICH WAS AWARDED, THE FOLLOWING QUOTATIONS WERE RECEIVED:

TABLE

FIRM PRICE

TECHNICAL ANIMATIONS, INC. $ 76,464

CHARLES BESELER COMPANY 108,344

ROBERT BRADY COMPANY 118,600

TECHNIFAX CORPORATION 150,840

ON JUNE 10, 1964, THE CONTRACTING OFFICER SIGNED THE CONTRACT AWARDED TO TECHNICAL ANIMATIONS AT $76,464.

YOUR PROTEST IS BASED ON THE FACT THAT TECHNICAL ANIMATIONS (THE CONTRACTOR) SUBMITTED A ,CERTIFICATE OF STANDARD COMMERCIAL ARTICLE," REPRESENTING THAT ITS OFFERED PRODUCT QUALIFIED AS FOLLOWS:

"/1) AN ARTICLE WHICH IS CUSTOMARILY MAINTAINED IN STOCK BY THE CONTRACTOR OR SUBCONTRACTOR OR IS OFFERED FOR SALE IN ACCORDANCE WITH A PRICE SCHEDULE REGULARLY MAINTAINED BY THE CONTRACTOR OR SUBCONTRACTOR, AND

"/2) AT LEAST 35 PERCENT OF THE SALES OF THE ARTICLES ARE FOR END USE OTHER THAN THE GOVERNMENT. IN COMPUTING THE PERCENTAGE OF SALES, AT LEAST THE CURRENT FISCAL YEAR SALES WILL BE CONSIDERED. THE CURRENT FISCAL YEAR SALES MAY BE COMBINED WITH THOSE OF THE PREVIOUS FISCAL YEAR TO MAKE THIS COMPUTATION, IF DESIRED. NOTE: THIS DEFINITION IS DERIVED FROM SECTION 106 OF THE RENEGOTIATION ACT.'

YOU CONTEND THAT THE CONTRACTOR DID NOT PRODUCE A SPINNER AND THEREBY COULD NOT DELIVER AN ,OFF-THE-SHELF" ITEM TO QUALIFY AS A STANDARD COMMERCIAL ARTICLE. (YOU ADVISE THAT THE CONTRACTOR ATTEMPTED ON JUNE 22, 1964, TO PURCHASE 6 SPINNER UNITS FROM YOUR FIRM.) THUS, YOU ALSO CONTEND THAT THE CONTRACTOR CANNOT PRODUCE A SATISFACTORY PRODUCT WITHOUT USING YOUR MODEL.

SPECIAL PROVISION II OF THE RFQ REQUIRED OFFERORS TO SUBMIT A COST BREAKDOWN IN SUPPORT OF QUOTED PRICES, UNLESS NOT REQUIRED. THE CONTRACTOR SUBMITTED A "CERTIFICATE OF STANDARD COMMERCIAL ARTICLE" IN LIEU OF A COST BREAKDOWN. UNDER ASPR 3-807 A COST BREAKDOWN IS NOT REQUIRED WHERE THERE IS ADEQUATE PRICE COMPETITION. ASPR 3-807.1 (B) (1) (A) STATES THAT ADEQUATE PRICE COMPETITION EXISTS "IF OFFERS ARE SOLICITED AND (I) AT LEAST TWO RESPONSIBLE OFFERORS (II) WHO CAN SATISFY THE PURCHASER'S (E.G., THE GOVERNMENT-S) REQUIREMENTS (III) INDEPENDENTLY CONTEND FOR A CONTRACT TO BE AWARDED TO THE RESPONSIVE AND RESPONSIBLE OFFEROR SUBMITTING THE LOWEST EVALUATED PRICE (IV) BY SUBMITTING PRICED OFFERS RESPONSIVE TO THE EXPRESSED REQUIREMENTS OF THE SOLICITATION.' APPEARS THAT THE FOUR CONDITIONS FOR PRICE COMPETITION EXISTED IN THIS CASE. HENCE, REGARDLESS OF WHETHER THE CONTRACTOR'S PART QUALIFIES AS AN "OFF-THE-SHELF" ITEM, A COST BREAKDOWN WAS NOT REQUIRED FROM THE CONTRACTOR.

ADDITIONALLY, AIR FORCE REPORTS THAT THE EQUIPMENT PROPOSED TO BE DELIVERED BY THE CONTRACTOR IS A COMMERCIAL PRODUCT MANUFACTURED BY THE CONTRACTOR; THAT THE CONTRACTOR HAS PRODUCED AND SOLD OVER 1,000 IDENTICAL AND SIMILAR UNITS; THAT IT HAS DELIVERED 50 IDENTICAL UNITS TO THE NAVY IN THE PAST YEAR; AND THAT THE AWARD WAS MADE ONLY AFTER THE CONTRACTOR WAS FOUND TO BE RESPONSIBLE.

THE RECORD INDICATES THAT THE CONTRACTOR IS THE INVENTOR AND DEVELOPER OF, AND HOLDS A PATENT ON, THE ITEM. IT APPEARS, THEREFORE, THAT THE CONTRACTOR WILL BE ABLE TO PROVIDE A MODEL AS APPROVED THAT IS SUBSTANTIALLY IDENTICAL TO YOUR MODEL.

ACCORDINGLY, WE FIND NO LEGAL BASIS TO QUESTION THE AWARD. YOUR PROTEST AGAINST THE AWARD IS DENIED.