B-147845, JAN. 18, 1962

B-147845, JAN. 18, 1962

TO MAGNETIC INSTRUMENTS COMPANY, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM DATED DECEMBER 26, 1961, PROTESTING AWARD OF CONTRACT TO ANY FIRM OTHER THAN YOUR CORPORATION UNDER DEPARTMENT OF THE AIR FORCE INVITATION NO. 33-657-62-76.

IT APPEARS THAT IN RESPONSE TO THE INVITATION, WHICH WAS ISSUED ON SEPTEMBER 19, 1961, BY THE AFSC AERONAUTICAL SYSTEMS DIVISION,WRIGHT PATTERSON AIR FORCE BASE, YOU SUBMITTED A BID DATED OCTOBER 16, 1961, OFFERING TO FURNISH, IN ACCORDANCE WITH APPLICABLE SPECIFICATIONS, SCHEDULES, ETC., VARIOUS ITEMS OF LIQUID OXYGEN INDICATORS, TOGETHER WITH ENGINEERING AND TECHNICAL DATA, AEROSPACE GROUND EQUIPMENT, AND SPARE PARTS FOR A TOTAL PRICE OF $188,816, LESS A DISCOUNT OF ONE-HALF PERCENT-- - 20 CALENDAR DAYS. THE ABSTRACT OF BIDS SHOWS THAT FOUR OTHER BIDS WERE RECEIVED, INCLUDING THE LOW BID OF CONSOLIDATED AIRBORNE SYSTEMS, INC., IN THE TOTAL AMOUNT OF $169,328.45, LESS A DISCOUNT OF ONE-HALF PERCENT--- 10 CALENDAR DAYS, ONE-FOURTH PERCENT-- 20 CALENDAR DAYS, AND THREE BIDS IN THE TOTAL NET AMOUNTS OF $186,330.69, $212,690.11 AND $217,713.64. SUBSEQUENT TO THE OPENING OF BIDS, YOU DIRECTED SEVERAL LETTERS TO THE GOVERNMENT CONTRACTING OFFICER WHEREIN, AMONG OTHER THINGS, YOU PROTESTED AWARD OF A CONTRACT UNDER THE INVITATION TO CONSOLIDATED AIRBORNE SYSTEMS, INC., CONTENDING THAT SUCH AN AWARD WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT AND NOT IN STRICT ACCORDANCE WITH APPLICABLE REGULATIONS. YOU ADVANCE SEVERAL REASONS IN SUPPORT OF YOUR PROTEST, AS SUMMARIZED BELOW:

(A)THE MILITARY SPECIFICATION CONTAINS DISCREPANCIES WHICH SHOULD BE CORRECTED TO ASSURE THAT THE ITEM TO BE DELIVERED TO THE GOVERNMENT WILL OPERATE SATISFACTORILY. YOUR OBSERVATION IN THIS REGARD INCLUDES THE ALLEGATION THAT THERE IS AN INTERCHANGEABILITY PROBLEM.

(B) IT IS YOUR POSITION THAT YOU SHOULD BE PERMITTED TO CLARIFY YOUR BID AS IT RELATES TO THE DATA REQUIREMENTS.

(C) THE GOVERNMENT HAS IMPROPERLY EVALUATED THE DISCOUNTS OFFERED BY THE BIDDERS.

(D) CONSOLIDATED AIRBORNE SYSTEMS, INC., THE LOW BIDDER, IS NOT IN A POSITION FROM A TECHNICAL AND MANUFACTURING ABILITY STANDPOINT TO DELIVER THE ITEMS ON TIME IN ACCORDANCE WITH THE REQUIREMENTS OF THE INVITATION.

(E) YOUR CORPORATION WILL ACCELERATE THE DELIVERY OF THE REQUIRED ITEMS AT YOUR BASIC BID PRICE.

IN REGARD TO (A) ABOVE, THE DEPARTMENT OF THE AIR FORCE REPORTS THAT YOUR PROTEST OF THESE CONDITIONS HAS BEEN THOROUGHLY REVIEWED BY THE COGNIZANT ENGINEERING ACTIVITY WITHIN THE AERONAUTICAL SYSTEMS DIVISION AND HAS BEEN FOUND TO BE WITHOUT MERIT.

WITH RESPECT TO (B), THE INVITATION FOR BIDS CLEARLY INDICATED THE ENGINEERING DATA REQUIREMENTS AND HOW THEY WERE TO BE PRICED. IN BIDDING ON ITEMS 5.1B AND 5.2B, REVISIONS, YOU STATED THAT REVISIONS PRESENTLY WERE REQUIRED AND QUOTED A PRICE THEREFOR UNDER EACH ITEM. OBVIOUSLY, THE GOVERNMENT MUST CONSIDER BIDS ON THE BASIS THAT THEY ARE SUBMITTED AND, THEREFORE, THE EXPLANATION WHICH YOU HAVE PRESENTED IN REGARD TO ITEMS 5.1B AND 5.2B IS NOT SUFFICIENT TO PERMIT EITHER MODIFICATION OR WITHDRAWAL OF YOUR BID ON THESE ITEMS.

REGARDING THE DISCOUNT BID EVALUATION PROCEDURE FOLLOWED, AS COVERED BY (C) ABOVE, WE FIND NOTHING IN THE RECORD BEFORE US TO JUSTIFY THE CONCLUSION THAT THERE WAS AN IMPROPER EVALUATION OF THE DISCOUNTS OFFERED BY THE BIDDERS UNDER THE INVITATION. YOU OFFERED A DISCOUNT OF ONE-HALF PERCENT--- 20 CALENDAR DAYS, WHILE CONSOLIDATED AIRBORNE OFFERED ONE-HALF PERCENT--- 10 CALENDAR DAYS, ONE-FOURTH PERCENT--- 20 CALENDAR DAYS. BOTH BIDS WERE EVALUATED ON THE BASIS OF THE ONE-HALF PERCENT DISCOUNT OFFERED WHICH APPEARS TO HAVE BEEN COMPLETELY PROPER UNDER THE ALLOWABLE DISCOUNT PERIODS SPECIFIED IN THE INVITATION. THE 10-CALENDAR DAY PERIOD ALLOWED BY CONSOLIDATED AIRBORNE FOR THE ONE-HALF PERCENT DISCOUNT IS A RESPONSIVE DISCOUNT PERIOD, AS EXPRESSLY SOLICITED IN THE INVITATION. UNDER NO CIRCUMSTANCES IS IT MANDATORY, IN EVALUATING TIME DISCOUNTS OF THIS KIND, TO CONSIDER DISCOUNTS OFFERED BY DIFFERENT BIDDERS ONLY ON AN EQUAL TIME PERIOD BASIS OR, IN THE ALTERNATIVE, TO EVALUATE DISCOUNTS INVOLVING DIFFERENT TIME PERIODS ON THE BASIS OF THE INTEREST THAT WOULD ACCRUE TO THE GOVERNMENT ON THE PRINCIPAL INVOLVED FOR THE DIFFERENCE IN TIME SHOWN.

WITH RESPECT TO (D) ABOVE, THE DEPARTMENT OF THE AIR FORCE REPORTS THAT THE MATTER OF THE TECHNICAL AND MANUFACTURING ABILITY OF CONSOLIDATED AIRBORNE SYSTEMS, INC., TO PERFORM IS COVERED BY A FACILITY CAPABILITY REPORT. THE REPORT WAS RUN ON CONSOLIDATED AIRBORNE AND FOUND TO BE AFFIRMATIVE. MOREOVER, AFTER RECEIVING YOUR PROTEST THE FACILITY CAPABILITY REPORT WAS AFFIRMED AND AGAIN FOUND TO BE FAVORABLE IN ALL RESPECTS. IT ALSO MIGHT BE STATED IN THIS REGARD THAT THE DETERMINATION OF A BIDDER'S QUALIFICATIONS TO COMPLY WITH ALL CONTRACT REQUIREMENTS IS PRIMARILY A FUNCTION OF THE DEPARTMENT OR AGENCY CHARGED WITH ADMINISTRATION OF THE CONTRACT--- IN THIS INSTANCE THE DEPARTMENT OF THE AIR FORCE. SUCH A DETERMINATION MUST, OF NECESSITY, BE BASED UPON FACTUAL INFORMATION AVAILABLE TO THAT DEPARTMENT OR AGENCY PRIOR TO AWARD AND, IN THE ABSENCE OF A SHOWING OF BAD FAITH OR THE LACK OF A REASONABLE FACTUAL BASIS FOR THE DETERMINATION, OUR OFFICE WILL NOT OBJECT TO THE CONCLUSION REACHED.

REGARDING YOUR SUBSEQUENT OFFER TO DELIVER THE EQUIPMENT AT AN ACCELERATED RATE FOR THE SUM BASIC BID PRICE, WHICH IS THE SUBJECT OF SUBPARAGRAPH (E) ABOVE, YOU ARE ADVISED THAT COMPLIANCE WITH SUCH AN OFFER WHEN YOUR BID INCLUDED A HIGHER ALTERNATE PRICE FOR THE EQUIPMENT IF THE DELIVERY WAS ACCELERATED--- SUCH AN ACCELERATED DELIVERY WAS ALREADY PERMITTED UNDER THE TERMS OF THE INVITATION--- WOULD BE TO PERMIT MODIFICATION OF YOUR BID, AFTER OPENING, CONTRARY TO FUNDAMENTAL PRINCIPLES OF COMPETITIVE BIDDING.

IN VIEW OF THE FOREGOING, WE FIND NO LEGAL OBJECTION TO THE PROPOSED AWARD OF CONTRACT TO CONSOLIDATED AIRBORNE SYSTEMS, INC., UNDER INVITATION NO. 33-657-62-76, IF OTHERWISE PROPER.