B-156430, JUN. 9, 1965

B-156430, JUN. 9, 1965

TO METRO-TEL CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 30 AND LETTERS OF APRIL 29 AND MARCH 31, 1965, PROTESTING CANCELLATION OF INVITATIONS FOR BIDS NO. AMC (E/-36-039-65-306-5 AND AMC (E/-36-039-65-309-5.

A REVIEW OF THE ADMINISTRATIVE RECORD DISCLOSED THAT IFB NO. AMC (E/ 36- 039-65-306-5 WAS ISSUED ON NOVEMBER 12, 1964, WITH A SCHEDULED OPENING DATE SET FOR DECEMBER 14, 1964. BY AMENDMENT NO. 1 DATED DECEMBER 10, 1964, THE SCHEDULED BID OPENING DATE WAS EXTENDED TO DECEMBER 28, 1964. PROVISION Y OF THE INVITATION ENTITLED "EVALUATION OF BIDS/OFFERS" PROVIDES THAT ITEMS 1 THROUGH 4 WILL BE CONSIDERED AS A GROUP AND THAT BIDS WILL BE EVALUATED ON THE BASIS OF THE TOTAL PRICE FOR EACH DESIGNATED "ITEM GROUP" RATHER THAN ON AN INDIVIDUAL ITEM BASIS. METRO-TEL HAVING SUBMITTED A BID OF $100,680 WAS FOUND TO BE THE LOW BIDDER. THE SECOND LOW BID OF $128,760 WAS SUBMITTED BY STELMA, INCORPORATED.

BY LETTER DATED JANUARY 4, 1965, STELMA REGISTERED A PROTEST AGAINST THE PROPOSED AWARD CONTENDING THAT THE IFB WAS DEFECTIVE AND PREJUDICIAL. SPECIFICALLY IT STATES:

"ON PAGE 55 OF THE IFB SCHEDULE OF PROVISIONS A SPECIAL "NOTE" UNDER PROVISION W SPECIFIES THE FOLLOWING:

"NOTE: FIRST SENTENCE OF PARAGRAPH 3.4.2 IN SPECIFICATION MIL-D 12464A (SIGC) IS HEREBY DELETED AND FOLLOWING SUBSTITUTED THEREFORE: "THE DRAWINGS SHALL COMPLETELY AND FULLY COVER ALL CONSTRUCTIONAL DETAILS AND PROCESSES (NOT SEQUENCE OF OPERATIONS) OF MANUFACTURE AND ASSEMBLY OF UNITS, SUBASSEMBLIES AND PARTS USED BY THE CONTRACTOR (OR HIS VENDORS) DURING THE COURSE OF PRODUCTION EXCEPT THAT MANUFACTURING INFORMATION COVERING VENDORS' CATALOG-STANDARD ITEMS NEED NOT BE FURNISHED.'

"IT IS ESTABLISHED BY THIS NOTE THAT A CONTRACTOR WHO DOES NOT USE ANY OF HIS OWN CATALOG-STANDARD ITEMS DOES NOT HAVE TO PROVIDE MANUFACTURING INFORMATION--- BUT A CONTRACTOR WHO DOES USE HIS OWN CATALOG-STANDARD ITEMS MUST PROVIDE COMPLETE MANUFACTURING DRAWINGS AND INFORMATION WITH THE ADDITIONAL HIGH COSTS INVOLVED.

"THIS PROVISION IS OBVIOUSLY INEQUITABLE AND UNJUSTIFIABLE. IT IS INEQUITABLE BECAUSE IT MEANS THAT ONE OR MORE BIDDERS MUST PRICE THE IFB HIGHER WITH AN ARTIFICIAL, BUILT-IN, HANDICAP:HE MUST INCLUDE COSTS WHICH OTHER BIDDERS CAN ESCAPE. IT IS UNJUSTIFIABLE BECAUSE IT DOES NOT MAKE SENSE THAT THE GOVERNMENT SHOULD SAY IT DOES NOT NEED OR WANT MANUFACTURING INFORMATION FROM ONE MANUFACTURER BUT DOES WANT IT FROM ANOTHER MANUFACTURER. WHY SHOULD THERE BE DIFFERENT GOVERNMENT REQUIREMENTS FOR MANUFACTURING INFORMATION IN THE CASE OF A VENDOR MANUFACTURER AS CONTRASTED TO A CONTRACTOR-MANUFACTURER.

"IT IS PERFECTLY CLEAR THAT THE NOTE OF PROVISION W SHOULD SPECIFY THAT MANUFACTURING INFORMATION COVERING "CONTRACTORS AND VENDORS CATALOG- STANDARD ITEMS NEED NOT BE FURNISHED"--- OR--- IT SHOULD REQUIRE BOTH "CONTRACTORS AND VENDORS" TO EQUALLY PROVIDE SUCH INFORMATION.'

THE CONTRACTING OFFICER REPORTS THAT IN ACCORDANCE WITH DEFENSE PROCUREMENT CIRCULAR (DPC) NO. 6, DATED MAY 14, 1964, A NEW BASIC DATA CLAUSE WAS INCLUDED IN THE INVITATION AS PROVISION W. AN ATTEMPT WAS THEREUPON MADE TO CONFORM THE DRAWING SPECIFICATION TO THE REQUIREMENTS OF THE NEW DATA CLAUSE. ALTHOUGH A NEW CONTRACT CLAUSE TO CONFORM WITH DPC NO. 6 WAS PUBLISHED ON OCTOBER 16, 1964, OPERATING PERSONNEL DID NOT DETECT THE VARIATION BETWEEN THE PROVISION IN THE SUBJECT INVITATION AND THE REVISED CLAUSE. THE REVISED CLAUSE READS AS FOLLOWS:

"THE DRAWINGS SHALL COMPLETELY AND FULLY COVER ALL CONSTRUCTIONAL DETAILS AND PROCESSES (BUT NOT SEQUENCE OF OPERATIONS) OF MANUFACTURER AND ASSEMBLY OF UNITS, ASSEMBLIES, SUB-ASSEMBLIES AND PARTS USED BY THE CONTRACTOR (OR HIS VENDORS) DURING THE COURSE OF PRODUCTION, EXCEPT THAT MANUFACTURING INFORMATION COVERING CONTRACTOR'S OR VENDORS' CATALOG STANDARD ITEMS NEED NOT BE FURNISHED.'

UPON REVIEW WE AGREE THAT THE INVITATION WAS PREJUDICIAL TO STELMA AND THAT IT WAS APPROPRIATE TO CANCEL THE SUBJECT INVITATION. WHILE IT MAY BE ARGUED THAT STELMA COULD HAVE RESTRICTED THE INFORMATION RELATING TO COMPONENTS DEVELOPED AT PRIVATE EXPENSE THE FACT REMAINS THAT STELMA OR ANY OTHER CONTRACTOR WHO USES HIS OWN CATALOG-STANDARD ITEM WOULD HAVE HAD TO FURNISH MANUFACTURING INFORMATION AND DRAWINGS WHEREAS OTHER OFFERORS WHO DO NOT USE THEIR OWN CATALOG-STANDARD ITEMS WOULD NOT. THE PURPOSE OF STATUTES REQUIRING THE AWARD OF CONTRACTS TO THE LOWEST RESPONSIBLE BIDDER AFTER ADVERTISING IS TO GIVE ALL PERSONS EQUAL RIGHT TO COMPETE FOR GOVERNMENT CONTRACTS AND TO PREVENT UNJUST FAVORITISM, COLLUSION OR FRAUD. SEE UNITED STATES V. BROOKRIDGE FARMS, 111 F.2D 461. IT IS AXIOMATIC THAT IF ALL PERSONS ARE TO HAVE AN EQUAL RIGHT TO COMPETE FOR GOVERNMENT CONTRACTS BIDS MUST BE EVALUATED ON A COMMON BASIS AND AN INVITATION CANNOT REQUIRE CERTAIN MANUFACTURING INFORMATION FROM ONE BIDDER WHILE NOT REQUIRING THAT SAME INFORMATION FROM ANOTHER.

IT IS REPORTED THAT IFB NO. AMC (E/-36-039-65-309-5, WAS CANCELLED ONLY AFTER IT WAS FOUND THAT THE REQUIREMENT WAS NO LONGER NEEDED. IN THESE CIRCUMSTANCES THE SUBSEQUENT CANCELLATION OF THIS INVITATION FOR BIDS APPEARS TO HAVE BEEN IN THE BEST INTERESTS OF THE GOVERNMENT AND CONSISTENT WITH THE ARMED SERVICES PROCUREMENT REGULATION.

SINCE THE AVAILABLE EVIDENCE ESTABLISHES THAT THE DECISIONS TO CANCEL THE SUBJECT INVITATIONS WERE MADE TO GOOD FAITH AND ON A SOUND LEGAL BASIS, WE FIND NO BASIS TO SUSTAIN YOUR PROTEST.