B-145771, DEC. 7, 1961
Highlights
TO DYNAMETRICS CORPORATION: REFERENCE IS MADE TO TWO LETTERS. THE FACTS IN THIS CASE WERE SET OUT IN OUR DECISION OF OCTOBER 17. WHICH IS A TRANSMITTAL LETTER FOR THE MORE DETAILED LETTER OF THE SAME DATE. IS THAT SINCE YOUR CORPORATION IS A SMALL BUSINESS CONCERN AND SINCE THE CONSOLIDATED ELECTRODYNAMICS CORPORATION (CEC) IS A LARGE BUSINESS CONCERN YOU SHOULD BE ENTITLED TO THE AWARD BECAUSE IT IS THE GOVERNMENT'S POLICY TO ENDEAVOR TO GIVE ITS DEFENSE BUSINESS TO SMALL BUSINESS CONCERNS WHENEVER POSSIBLE IN ORDER TO ENCOURAGE THEIR DEVELOPMENT AND TO PRESERVE THEM FOR THE NATIONAL DEFENSE. THE QUESTION OF WHETHER A PARTICULAR PROCUREMENT IS TO BE LIMITED TO SMALL BUSINESS CONCERNS IS A MATTER WHICH IS DECIDED BY THE CONTRACTING AGENCY GENERALLY IN COOPERATION WITH THE SMALL BUSINESS ADMINISTRATION PRIOR TO THE TIME BIDS ARE INVITED ON A COMPETITIVE BASIS OR REQUESTS FOR PROPOSALS ARE MADE FOR THE PURPOSE OF NEGOTIATING A CONTRACT.
B-145771, DEC. 7, 1961
TO DYNAMETRICS CORPORATION:
REFERENCE IS MADE TO TWO LETTERS, BOTH DATED NOVEMBER 17, 1961, FROM YOUR ATTORNEY, REQUESTING, RECONSIDERATION OF OUR DECISIONS OF OCTOBER 17 AND NOVEMBER 1, 1961, DENYING YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO CONSOLIDATED ELECTRODYNAMICS CORPORATION UNDER INVITATION FOR BIDS NO. 33- 604-61-397 ISSUED ON MARCH 6, 1961, BY GENTILE AIR FORCE STATION, DAYTON, OHIO, FOR FURNISHING PRIMARY PRESSURE STANDARD CALIBRATION SYSTEMS, SPARE PARTS AND ACCESSORIES.
THE FACTS IN THIS CASE WERE SET OUT IN OUR DECISION OF OCTOBER 17, 1961, AND NEED NOT BE RESTATED IN DETAIL HERE.
THE GIST OF THE ONE-PAGE LETTER OF NOVEMBER 17, 1961, WHICH IS A TRANSMITTAL LETTER FOR THE MORE DETAILED LETTER OF THE SAME DATE, IS THAT SINCE YOUR CORPORATION IS A SMALL BUSINESS CONCERN AND SINCE THE CONSOLIDATED ELECTRODYNAMICS CORPORATION (CEC) IS A LARGE BUSINESS CONCERN YOU SHOULD BE ENTITLED TO THE AWARD BECAUSE IT IS THE GOVERNMENT'S POLICY TO ENDEAVOR TO GIVE ITS DEFENSE BUSINESS TO SMALL BUSINESS CONCERNS WHENEVER POSSIBLE IN ORDER TO ENCOURAGE THEIR DEVELOPMENT AND TO PRESERVE THEM FOR THE NATIONAL DEFENSE. THE QUESTION OF WHETHER A PARTICULAR PROCUREMENT IS TO BE LIMITED TO SMALL BUSINESS CONCERNS IS A MATTER WHICH IS DECIDED BY THE CONTRACTING AGENCY GENERALLY IN COOPERATION WITH THE SMALL BUSINESS ADMINISTRATION PRIOR TO THE TIME BIDS ARE INVITED ON A COMPETITIVE BASIS OR REQUESTS FOR PROPOSALS ARE MADE FOR THE PURPOSE OF NEGOTIATING A CONTRACT. IN THIS CASE NO DETERMINATION WAS MADE, WHEN BIDS WERE INVITED, TO LIMIT THE BIDDING TO SMALL BUSINESS CONCERNS AND HENCE THIS MATTER IS NOT NOW FOR CONSIDERATION.
THE SECOND LETTER OF NOVEMBER 17, 1961, AGAIN STATES THAT THE INVITATION WAS AMBIGUOUS AND INCOMPLETE. IT IS RECOGNIZED, AS STATED IN OUR PRIOR DECISIONS, THAT THE INVITATION COULD HAVE BEEN ISSUED IN MORE DEFINITE TERMS WITH RESPECT TO THE BRAND NAME REQUIREMENTS AND COMPONENTS BUT THAT NEITHER YOU NOR THE ONLY OTHER BIDDER (CEC) WAS MISLED OR OTHERWISE PREJUDICED. YOU STATE THAT THE INVITATION WAS LEGALLY DEFECTIVE BECAUSE ON PAGE 5 THEREOF IN DESCRIBING THE MAIN ITEM OF THE CALIBRATION SYSTEM IT REFERRED TO CEC MODEL NO. 6-201 OR EQUAL AND THIS DID NOT CONTAIN ALL THE COMPONENTS. AS A PART OF THAT SAME DESCRIPTION THE INVITATION LISTED YOUR MODEL NO. PPS-500 OR EQUAL WHICH LIKEWISE DID NOT CONTAIN ALL THE COMPONENTS. YOU KNOW OR SHOULD HAVE KNOWN THAT THE TYPE OF CALIBRATION SYSTEM DESIRED WAS YOUR MODEL NO. PPS-500 PLUS THE COMPONENTS OUTLINED ON PAGES 2 TO 4, INCLUSIVE, OF THE SCHEDULE. THAT YOU KNEW THIS IS ATTESTED BY THE FACT THAT YOU INSERTED YOUR FEDERAL STOCK NUMBER 6625-473-8208 ON THE BID WHICH IS THE SYSTEM YOU FURNISHED HERETOFORE ON A GOVERNMENT PROCUREMENT ON A SIMILAR INVITATION AT GENTILE AIR FORCE BASE AND IS YOUR MODEL NO. PPS 500 PLUS THE COMPONENTS LISTED ON PAGES 2 TO 4, INCLUSIVE, OF THE SCHEDULE. THE FACT THAT CEC PLACED ITS BID ON PAGE 2, OPPOSITE THE DESCRIPTION OF THE COMPONENTS, INDICATES RATHER CLEARLY THAT IT UNDERSTOOD WHAT WAS REQUIRED. WITH RESPECT TO THE STATEMENT IN THE LETTER THAT THE FACT THAT YOU COULD HAVE REQUESTED CLARIFICATION OF THE INVITATION DOES NOT SERVE TO VALIDATE THE INVITATION WHICH WAS LEGALLY DEFICIENT FROM THE OUTSET FOR THE LACK OF CLARITY, IT MAY BE STATED THAT IF YOU FELT THAT THE INVITATION WAS PATENTLY AMBIGUOUS YOU SHOULD HAVE CALLED THE MATTER TO THE ATTENTION OF THE CONTRACTING OFFICER BEFORE BIDS WERE OPENED SO AS TO AVOID PROTESTS ON THIS GROUND. THIS WOULD HAVE PERMITTED THE CONTRACTING OFFICER TO CORRECT THE INVITATION BEFORE THE TWO BIDDERS HERE KNEW THE AMOUNT OF THE BIDS AND THUS AVOID A POSSIBLE SECOND CHANCE AT THE CONTRACT.
THE OTHER MATTER REFERRED TO IN THE LETTER IS THE CONTENTION THAT CEC'S BID WAS AMBIGUOUS AND NONRESPONSIVE AND THEREFORE SHOULD HAVE BEEN REJECTED. THE QUESTION OF HOW THE BID OF CEC SHOULD BE CONSIDERED IS, AS YOU STATE, A MATTER TO BE DECIDED FROM THE MANNER IN WHICH IT SUBMITTED ITS BID. SINCE CEC HAD NEVER FURNISHED THE COMPLETE CALIBRATION SYSTEMS TO THE GOVERNMENT, ITS EQUIPMENT HAD NOT RECEIVED A FEDERAL STOCK NUMBER AND CONSEQUENTLY IT COULD NOT FURNISH SUCH A STOCK NUMBER, AS YOU DID. IS UNDERSTOOD FROM INFORMATION INFORMALLY OBTAINED FROM A REPRESENTATIVE OF YOUR CORPORATION IN CONFERENCE WITH REPRESENTATIVES OF OUR OFFICE THAT THE INVITATION INVOLVED WHEN YOU PREVIOUSLY FURNISHED COMPLETE CALIBRATION SYSTEMS WAS DRAWN UP IN THE SAME MANNER BY GENTILE AIR FORCE BASE AS THE ONE HERE INVOLVED. IN REGARD TO THE STATEMENT THAT THE INSERTION OF THE BID PRICE BY CEC ON PAGE 2 OF THE SCHEDULE HAD NO SIGNIFICANCE AND THAT THERE HAS NOT BEEN FURNISHED ANY RATIONALIZATION, REASONABLE, OR OTHERWISE, FOR THE CONCLUSION THAT CEC WAS OFFERING ITS BRAND NAME ITEM AS MODIFIED BY THE REQUIREMENTS SET FORTH IN THE FOUR-PAGE DESCRIPTION, YOUR ATTENTION IS INVITED TO THE MANNER IN WHICH THE INVITATION WAS DRAWN. BEGINNING ON PAGE 2 OF THE SCHEDULE THERE IS SET OUT THE ITEM NUMBER. OPPOSITE THIS NUMBER IN THE QUANTITY COLUMN WAS THE NUMBER "12" AND IN THE UNIT COLUMN WAS THE WORD "EACH," WITH THE AMOUNT COLUMN TO BE FILLED IN BY THE BIDDER. THE NUMBER "12" WAS CHANGED BY CEC TO "60" BECAUSE OF AMENDMENT NO. 1 TO THE INVITATION INCREASING THE QUANTITY TO "60.'
IT THEN PLACED THE UNIT PRICE OF $1,909 IN THE COLUMN FOR THAT PURPOSE AND INSERTED IN THE AMOUNT COLUMN THE FIGURES $114,540. THE SEVERAL PAGES THEREAFTER DESCRIBE THE SPARE PARTS, ACCESSORIES AND MODIFICATIONS TO THE TWO MODELS' NUMBERS REFERRED TO ON PAGE 5, EITHER OF WHICH WAS ACCEPTABLE FOR INCORPORATION IN THE COMPLETE CALIBRATION SYSTEMS. IMMEDIATELY THEREAFTER A SPACE WAS LEFT BLANK FOR THE BIDDER TO INDICATE WHAT MODEL NUMBER HE WAS INCORPORATING IN THE SYSTEMS. THEN IMMEDIATELY BELOW THIS SPACE WERE TWO LINES AS FOLLOWS:
"BID "A" (FIRST ARTICLE REQUIRED) .........
"BID "B"(FIRST ARTICLE NOT REQUIRED) .....'
IT WAS EXPLAINED THAT BIDDERS WHO HAD NOT PREVIOUSLY FURNISHED TO THE GOVERNMENT THE ARTICLES REFERRED TO IN ITEM 1 SHOULD SUBMIT THEIR BIDS ON "BID "A" " WHICH INCLUDED COMPLIANCE WITH THE ATTACHED EXHIBIT "A" WHEREAS THOSE WHO HAD PREVIOUSLY FURNISHED SUCH ARTICLES SHOULD SUBMIT THEIR BIDS ON "BID "B," " AS COMPLIANCE WITH THE FIRST ARTICLE APPROVAL PROVISION IN EXHIBIT "A" WAS NOT INCLUDED. THE INSERTION OF BID PRICES ON THE "BID "A," " LINE OR ON THE "BID "B" " LINE DID NOT HAVE ANY PARTICULAR MEANING EXCEPT TO INDICATE WHETHER THE BIDDER HAD EVER FURNISHED TO THE GOVERNMENT THE CALIBRATION SYSTEMS HERE INVOLVED. AND IF A BIDDER HAD FURNISHED SUCH SYSTEMS A SPACE WAS PROVIDED FOR HIM TO SHOW THE FEDERAL STOCK NUMBER. THIS INFORMATION HAD NOT BEEN DESIRED THERE WOULD HAVE BEEN NO OCCASION TO INSERT THE "BID "A" " OR THE "BID "B" " LINE AND IT WOULD HAVE SUFFICED IF THE BIDDER WOULD HAVE MERELY FILLED OUT THE APPROPRIATE COLUMNS (UNIT PRICE AND AMOUNT) PROVIDED ON PAGE 2 OF THE SCHEDULE. THE BID AS SUBMITTED LEAVES NO DOUBT BUT THAT IT INTENDED TO FURNISH COMPLETE CALIBRATION SYSTEMS BY REASON OF THE FACT THAT IT FILLED OUT THE COLUMNS ON PAGE 2.
IN VIEW OF THE FOREGOING THERE APPEARS NO BASIS FOR CHANGING OUR CONCLUSION IN THIS CASE AND ACCORDINGLY OUR PRIOR DECISIONS OF OCTOBER 17 AND NOVEMBER 1, 1961, ARE AFFIRMED.