B-150674, MAR. 4, 1963

B-150674: Mar 4, 1963

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TO CONSOLIDATED DIESEL ELECTRIC CORPORATION: REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 29 AND FEBRUARY 14. NUMEROUS CHANGES IN THE INVITATION WERE MADE BY THREE AMENDMENTS. ALL TEST SAMPLES WERE TO BECOME THE PROPERTY OF THE GOVERNMENT AND WERE IN ADDITION TO THE CONTRACT QUANTITY. IT IS REPORTED THAT 117 INVITATIONS WERE MAILED AND ONLY 14 BIDS WERE RECEIVED. THIS FORM WAS A ONE-PAGE FORM AND WAS NOT CROSS-REFERENCED IN THE INVITATION PAPERS AND WAS NOT ASSIGNED A PAGE NUMBER IN THE SCHEDULE. THIS FORM STIPULATED THAT IN THE EVENT THAT SPECIAL TOOLING HAVING A TOTAL VALUE OF MORE THAN $100 IS REQUIRED TO MANUFACTURE THE SUPPLIES. THE "COST OF SUCH SPECIAL TOOLING IS NOT TO BE INCLUDED IN THE UNIT PRICE (S) BUT IS TO BE SET FORTH SEPARATELY BY THE BIDDER IN THE SPACES PROVIDED IN SUBPARAGRAPH C.'.

B-150674, MAR. 4, 1963

TO CONSOLIDATED DIESEL ELECTRIC CORPORATION:

REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 29 AND FEBRUARY 14, 1963, PROTESTING THE CANCELLATION OF INVITATION FOR BIDS NO. 195-307 63 (K) ISSUED BY THE U.S. NAVY ORDNANCE SUPPLY OFFICE, MECHANICSBURG, PENNSYLVANIA.

THE SUBJECT INVITATION, AS ISSUED ON NOVEMBER 12, 1962, SOLICITED BIDS FOR FURNISHING 9,428 ROCKET LAUNCHERS AND AN ADDITIONAL QUANTITY OF 9,428 ROCKET LAUNCHERS ON A LABOR SURPLUS AREA SET-ASIDE BASIS, THE LATTER QUANTITY NOT HERE INVOLVED. NUMEROUS CHANGES IN THE INVITATION WERE MADE BY THREE AMENDMENTS. INSOFAR AS HERE MATERIAL THE CHANGES RESULTED IN (1) SOLICITING BIDS FOR FURNISHING 9,860 ROCKET LAUNCHERS ON AN F.O.B. ORIGIN BASIS (BID B) OR ON AN F.O.B. MCALESTER, OKLAHOMA, BASIS (BID A); AND (2) REQUIRING THE SUCCESSFUL BIDDER TO SUBMIT FIVE UNITS AS SAMPLES FOR EACH PRODUCTION LOT OF 500 UNITS IN LIEU OF THE TWO SAMPLES PER PRODUCTION LOT AS PROVIDED UNDER AMENDMENT NO. 2. ALL TEST SAMPLES WERE TO BECOME THE PROPERTY OF THE GOVERNMENT AND WERE IN ADDITION TO THE CONTRACT QUANTITY.

IT IS REPORTED THAT 117 INVITATIONS WERE MAILED AND ONLY 14 BIDS WERE RECEIVED. OF THIS NUMBER 7 BIDS DID NOT INCLUDE THE FORM CAPTIONED "SPECIAL TOOLING CLAUSE (T-42).' THIS FORM WAS A ONE-PAGE FORM AND WAS NOT CROSS-REFERENCED IN THE INVITATION PAPERS AND WAS NOT ASSIGNED A PAGE NUMBER IN THE SCHEDULE. THIS FORM STIPULATED THAT IN THE EVENT THAT SPECIAL TOOLING HAVING A TOTAL VALUE OF MORE THAN $100 IS REQUIRED TO MANUFACTURE THE SUPPLIES, THE "COST OF SUCH SPECIAL TOOLING IS NOT TO BE INCLUDED IN THE UNIT PRICE (S) BUT IS TO BE SET FORTH SEPARATELY BY THE BIDDER IN THE SPACES PROVIDED IN SUBPARAGRAPH C.' PARAGRAPH 2 OF THE FORM PROVIDES THAT IN THE EVENT THE GOVERNMENT DESIRES TO TAKE POSSESSION OF THE TOOLING, THE PROCUREMENT DOCUMENT WILL SO INDICATE AT TIME OF THE AWARD AND THE FORM INDICATES WHAT THE SUCCESSFUL BIDDER WILL THEN BE REQUIRED TO DO. PARAGRAPH 3 MAKES PROVISION FOR THE FURNISHING OF GOVERNMENT-OWNED TOOLING TO THE SUCCESSFUL BIDDER.

THE ADMINISTRATIVE OFFICE HAS REPORTED THAT IN VIEW OF THE FACT THAT EXACTLY ONE-HALF OF THE BIDS (7 OF 14) SUBMITTED DID NOT CONTAIN THE PROVISIONS OF THE "SPECIAL TOOLING CLAUSE (T-42)" THE CONTRACTING OFFICER CONCLUDED "THAT THE BIDS SUBMITTED CONSTITUTED TWO DIFFERENT BASES OF BID AND THAT AWARD COULD NOT BE MADE ON EITHER BASIS.' ACCORDINGLY, THE INVITATION WAS CANCELED AND THE REQUIREMENTS READVERTISED TO INSURE BIDDING UNDER THE SAME TERMS AND CONDITIONS. IN THIS REGARD IT MAY BE POINTED OUT THAT BIDDERS WERE NOTIFIED IN THE SECOND INVITATION FOR BIDS THAT THE COST OF SPECIAL TOOLING REQUIRED TO MANUFACTURE THE INVOLVED ITEMS MUST BE INCLUDED IN THE BID PRICE AND THE SPECIAL TOOLING CLAUSE AS SET OUT IN PARAGRAPH 13-504 OF THE ARMED SERVICES PROCUREMENT REGULATION WAS INCORPORATED IN THE INVITATION FOR BIDS.

THE MAIN PART OF YOUR PROTEST, AS SET OUT IN YOUR LETTER OF FEBRUARY 14, 1963, CONCERNS THE QUESTION AS TO WHETHER THE INFORMATION REQUIRED IN THE T-42 SPECIAL TOOLING CLAUSE AFFECTED THE SUBSTANCE OF THE BID. YOU CONTEND THAT THE INFORMATION DID AFFECT THE SUBSTANCE OF THE BID AND THAT THE FAILURE TO SUBMIT IT RENDERED A BID NONRESPONSIVE, CITING IN SUPPORT OF YOUR CONTENTION THE DECISIONS IN 37 COMP. GEN. 785 AND 38 COMP. GEN. 372.

AS TO THE REASONS FOR THE FAILURE OF SEVEN BIDDERS TO RETURN WITH THEIR BIDS THE EXECUTED FORM T-42 WE FEEL THAT SUCH FAILURE CANNOT BE REASONABLY ATTRIBUTED TO OVERSIGHT ON THEIR PART IN EVERY CASE. IN THIS REGARD, IT MAY BE POINTED OUT THAT NO DEFINITE AND CONCRETE EVIDENCE CAN NOW BE PRODUCED TO DETERMINE WHETHER EVERY BIDDER RECEIVED THE FORM T-42. IF THE GOVERNMENT HAD PREPARED A CHECK OFF LIST OF ALL THE PAPERS FORMING A PART OF THE INVITATION OR CROSS-REFERENCED IN SOME WAY THE USE OF FORM T-42 THEN THE FAILURE TO SUBMIT AN EXECUTED FORM COULD BE CONSIDERED TO BE THE FAULT OF THE BIDDER OR BIDDERS. THE PRESENT SITUATION IS TO BE DISTINGUISHED FROM THOSE CASES WHERE A SINGLE BIDDER COMPLAINED THAT HE DID NOT RECEIVE RELEVANT MATERIAL IN THE BID INVITATION. COMPARE 40 COMP. GEN. 126. IF THE GOVERNMENT HAD ACCEPTED A BID WHICH DID NOT INCLUDE THE EXECUTED FORM T-42, IT WOULD HAVE BEEN DEPRIVED OF THE RIGHT TO ACQUIRE THE SPECIAL TOOLING INCLUDED IN THE AMOUNT OF THE BID AND THE RIGHT TO FURNISH GOVERNMENT OWNED TOOLING. WE HAVE HELD THAT WHERE THE GOVERNMENT IS TO RECEIVE TITLE RIGHTS TO SPECIAL TOOLING THE NATURE AND EXTENT OF THE GOVERNMENT'S RIGHTS WHICH WOULD BE OBTAINED BY ACCEPTANCE OF A BID IS A PROPER METHOD IN DETERMINING THE LOW BID. SEE B-149186, JULY 11, 1962, TO THE SECRETARY OF DEFENSE. IT COULD HARDLY BE ARGUED SERIOUSLY THAT BIDDERS RECEIVING THE SPECIAL TOOLING CLAUSE IN QUESTION AND SUBMITTING THE EXECUTED FORMS WITH THEIR BIDS COMPETED ON A COMMON BASIS WITH THOSE FAILING TO SUBMIT EXECUTED FORMS WITH THEIR BIDS. TO WHAT EXTENT THE AMOUNTS OF THE SEVERAL BIDS MIGHT HAVE BEEN AFFECTED BY THE RIGHT TO ACQUIRE TITLE TO SPECIAL TOOLING RESERVED TO THE GOVERNMENT BY THE SPECIAL TOOLING CLAUSE NEED NOT BE THE SUBJECT OF CONJECTURE.

WE MUST CONCLUDE FROM THE REPORTED FACTS IN THIS CASE AND IN VIEW OF THE CITED DECISIONS, THAT THE BIDDERS WERE NOT COMPETING ON A COMMON BASIS, THAT BIDS SUBMITTED WITHOUT THE EXECUTED SPECIAL TOOLING CLAUSE AS A PART OF THE BIDS WERE NONRESPONSIVE AND THAT ANY AWARD UNDER THE ORIGINAL INVITATION WOULD HAVE BEEN IMPROPER. IT BECOMES UNNECESSARY THEREFORE TO CONSIDER ANY OTHER CONTENTIONS PRESENTED IN YOUR LETTERS.

ACCORDINGLY, WE DO NOT FIND ANY PROPER BASIS FOR OBJECTING TO THE ADMINISTRATIVE ACTION TAKEN IN THIS CASE.

Jan 19, 2021

Jan 14, 2021

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