B-151430, OCT. 2, 1963

B-151430, OCT. 2, 1963

TO J. M. BEACH MANUFACTURING, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTERS DATED APRIL 30, AND JULY 8, 1963, PROTESTING AGAINST THE ACTION OF THE DEPARTMENT OF THE AIR FORCE IN AWARDING CONTRACTS TO THE LOW BIDDERS ON ITEMS 1 AND 5 OF IFB NO. 41 608- 63-430, AND AGAINST AN AWARD TO ANY OTHER BIDDER UNDER IFB NO. 41 608-63- 890.

THE INVITATION IN QUESTION REQUESTED BIDS ON FIVE ITEMS OF REPLACEMENT SPARE PARTS FOR MODEL 2000, 3000 AND 4000 SERIES TRAILERS. ITEMS 1 AND 5 WERE DESCRIBED AS FOLLOWS:

ITEM 1--- 126 EACH TUBE ASSY.--- DRAWBAR, IN ACCORDANCE WITH AIR LOGISTICS CORP. DWGS. S104438 REV.K AND S102408 REV.G (-3 TUBE ASSY.).

ITEM 5--- 375 EACH TOWBAR, IN ACCORDANCE WITH AIR LOGISTICS CORP. DWGS. S104438 REV.K; S105092 REV.D; S105601 REV.C; S105600 REV.E; S105599 REV.A; AND S102408 REV.G.

BIDS WERE OPENED ON JANUARY 25, 1963, AND ALTHOUGH YOUR COMPANY BID ON BOTH ITEMS 1 AND 5 YOUR BIDS WERE NOT LOW ON EITHER ITEM. UNDER DATE OF JANUARY 28, YOU PROTESTED TO THE CONTRACTING ACTIVITY AGAINST AN AWARD TO ANY OTHER BIDDER, CLAIMING THAT THE ITEMS WERE PROPRIETARY TO YOUR COMPANY; THAT THE INFORMATION APPEARING ON THE DRAWINGS WAS INADEQUATE TO PERMIT THE MANUFACTURE OF SATISFACTORY ITEMS; AND THAT YOUR COMPANY HELD PATENT NO. 2,886,344 ON THE TOWBAR IN QUESTION. UPON REVIEW OF YOUR PROTEST BY THE CONTRACTING ACTIVITY IT WAS DETERMINED THAT THE INFORMATION SHOWN ON THE DRAWINGS WAS ADEQUATE TO PERMIT MANUFACTURE; THAT NO DATA PROPRIETARY TO YOUR COMPANY WAS SHOWN ON THE DRAWINGS; THAT THE GOVERNMENT HAD RECEIVED THE RIGHT TO USE THE DRAWINGS FROM AIR LOGISTICS CORPORATION; AND THAT THE FACT YOUR COMPANY HELD A PATENT ON THE TOWBAR DID NOT OPERATE TO PRECLUDE COMPETITIVE PROCUREMENT OF THE ITEM. ITEM 1 WAS THEREFOR AWARDED TO WALD RESEARCH, INC., AND ITEM 5 WAS AWARDED TO SOUTH BAY MANUFACTURING COMPANY, INC., ON APRIL 25, 1963.

YOUR PROTEST TO THIS OFFICE AGAINST SUCH AWARDS ADVISES OF THE BASIS FOR YOUR PREVIOUS PROTEST; DENIES THAT YOUR COMPANY GRANTED REPRODUCTION RIGHTS TO AIR LOGISTICS CORPORATION; POINTS OUT THAT WALD RESEARCH, INC., IS IN INVOLUNTARY BANKRUPTCY WITHOUT COMPLETING ITS CONTRACT WHILE SOUTH BAY MANUFACTURING COMPANY, INC., HAS VOTED TO LIQUIDATE; AND THAT YOU ARE ADVISED THE CONTRACTING AGENCY HAS DIRECTED CANCELLATION OF SOUTH BAY'S CONTRACT FOLLOWING A DETERMINATION THAT THE DRAWINGS ARE INADEQUATE FOR MANUFACTURING PURPOSES.

IN VIEW OF YOUR ADVICE CONCERNING THE STATUS OF THE CONTRACTS TO WHICH YOUR PROTEST WAS DIRECTED, NO USEFUL PURPOSE WOULD APPEAR TO BE SERVED AT THIS TIME BY A DECISION FROM THIS OFFICE ON THE MERITS OF YOUR PROTEST.

SINCE WE ARE ADVISED THAT YOUR COMPANY RECEIVED THE AWARD UNDER IFB NO. 41-608-63-890, ANY CONSIDERATION OF SUCH PROTEST WOULD BE OF ACADEMIC INTEREST ONLY.

AS INDICATED IN THE CONTRACTING AGENCY'S DENIAL OF YOUR PROTEST, UNDER IFB NO. 41-608-63-430, THE EXISTENCE OF A PATENT ON AN ITEM TO BE PROCURED BY THE GOVERNMENT DOES NOT PRECLUDE A CONTRACTING AGENCY FROM SOLICITING COMPETITIVE BIDS ON SUCH ITEM. THE REMAINING QUESTIONS TO WHICH YOUR PROTESTS HAVE GIVEN RISE ARE WHETHER THE DRAWINGS IN POSSESSION OF THE CONTRACTING AGENCY ARE, IN FACT, ADEQUATE FOR USE IN MANUFACTURING AND SOLICITING COMPETITIVE BIDS AND, IF SO, WHETHER THE GOVERNMENT OBTAINED THE RIGHT TO USE THEM FOR SUCH PURPOSES.

IN THIS CONNECTION WE ARE ENCLOSING A COPY OF OUR LETTER OF TODAY TO THE SECRETARY OF THE AIR FORCE RECOMMENDING THAT THESE QUESTIONS BE REVIEWED BEFORE THE DRAWINGS ARE AGAIN USED IN A COMPETITIVE PROCUREMENT.