B-164677, SEPT. 13, 1968

B-164677, SEPT. 13, 1968

TO MICROPAC INDUSTRIES, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST ANY AWARD BEING MADE UNDER INVITATION FOR BIDS NO. DAAB07-68-B-0348, ISSUED BY THE UNITED STATES ARMY ELECTRONICS COMMAND, FOR THE PROCUREMENT OF 2,548 AN/TVS-2 CREW SERVED WEAPON NIGHT VISION SIGHTS AND ANCILLARY EQUIPMENT.

THE SUBJECT INVITATION WAS ISSUED ON MAY 25, 1968, AS A TWO-YEAR, MULTI- YEAR PROCUREMENT AND WAS RESTRICTED TO SMALL BUSINESS CONCERNS. ELEVEN BIDS WERE RECEIVED AND OPENED ON JUNE 19, 1968. ELECTROSPACE CORPORATION WAS DETERMINED THE LOW RESPONSIVE BIDDER FOR THE FULL QUANTITY ON A MULTI- YEAR BASIS AT A UNIT PRICE OF $692 FOR A TOTAL BID OF $1,763,400.83. YOUR BID WAS DETERMINED NONRESPONSIVE AS IT DID NOT CONFORM TO THE REQUIREMENT OF BIDDING INSTRUCTION NO. 5 THAT "THE UNIT PRICE FOR EACH ITEM IN ALTERNATE B SHALL BE THE SAME FOR BOTH PROGRAM YEARS INCLUDED THEREIN (ASPR 1-322.2 (B) (IV) ).' AWARD HAS BEEN WITHHELD PENDING THE DECISION OF OUR OFFICE ON YOUR PROTEST.

YOUR PROTEST IS BASED ON THE CONTENTION THAT THE INVITATION IS DEFECTIVE AND, THEREFORE, AWARD THEREUNDER WOULD NOT BE IN THE BEST INTEREST OF THE GOVERNMENT AND WOULD BE VIOLATIVE OF THE PRINCIPLES OF COMPETITIVE BIDDING. YOU CITE BIDDING INSTRUCTIONS NO. 7 AND NO. 10 AS THE BASIS FOR YOUR CONTENTION THAT THE INVITATION IS DEFECTIVE. THE PERTINENT PART OF INSTRUCTION NO. 7 READS AS FOLLOWS:

"EVALUATION OF BIDS - IN ADDITION TO OTHER FACTORS, AS STATED IN PARAGRAPH 6, BIDS WILL BE EVALUATED ON THE BASIS OF ADVANTAGES OR DISADVANTAGES TO THE GOVERNMENT THAT MIGHT RESULT FROM MAKING MORE THAN ONE AWARD (MULTIPLE AWARDS). FOR THE PURPOSE OF MAKING THIS EVALUATION, IT WILL BE ASSUMED THAT THE SUM OF $50 WOULD BE THE ADMINISTRATIVE COST TO THE GOVERNMENT FOR ISSUING AND ADMINISTERING EACH CONTRACT AWARDED UNDER THIS INVITATION FOR BID. NO AWARD WILL BE MADE FOR LESS THAN THE FULL QUANTITY.' IT IS YOUR POSITION THAT THIS LANGUAGE CREATES AN AMBIGUITY AS TO THE METHOD OF EVALUATION AND AWARD SINCE IT REFERS TO THE POSSIBILITY OF MAKING MORE THAN ONE AWARD AND ALSO STATES THAT NO AWARD FOR LESS THAN THE FULL QUANTITY WILL BE MADE.

BIDDING INSTRUCTION NO. 10 ESTABLISHES THE SIZE STANDARD FOR SMALL BUSINESS CONCERNS AT 750 EMPLOYEES. HOWEVER, AS YOU POINT OUT, IT DOES NOT STATE THE SMALL BUSINESS PRODUCT CLASSIFICATION NUMBER AS PROVIDED IN ASPR 1-703 (C) (1).

IT IS CLEAR THAT THE FIRST AND LAST SENTENCES OF BIDDING INSTRUCTION NO. 7 ARE INCONSISTENT. THE FIRST SENTENCE RESERVES TO THE GOVERNMENT THE RIGHT TO AWARD CONTRACTS TO SEVERAL BIDDERS FOR THE CUMULATIVE QUANTITY OF 2,548 UNITS STATED IN THE SCHEDULE. IN OUR OPINION, THE LAST SENTENCE SIMPLY NEGATES THIS RIGHT BUT DOES NOT, AS YOU CONTEND, MEAN THAT MULTIPLE CONTRACTS EACH FOR THE QUANTITY OF 2,548 MAY BE AWARDED. EVEN IF THIS INCONSISTENCY IN LANGUAGE MAY BE CONSIDERED AN AMBIGUITY AS YOU CONTEND, WE DO NOT SEE HOW IT HAS PREJUDICED YOU OR ANY OF THE OTHER BIDDERS. OTHER BIDDERS HAVE MADE ANY SUCH ALLEGATION, AND YOU DID NOT COMPLAIN ABOUT THE LANGUAGE OR REQUEST CLARIFICATION PRIOR TO THE TIME OF BID OPENING. IN YOUR TELEGRAM AND LETTER TO OUR OFFICE YOU HAVE NOT STATED WHEREIN YOU OR ANY OF THE OTHER BIDDERS WERE PREJUDICED BY THIS PROVISION.

WE BELIEVE THE SAME RATIONALE IS APPLICABLE TO THE OMISSION OF THE PRODUCT CLASSIFICATION NUMBER IN BIDDING INSTRUCTION NO. 10. YOU HAVE NOT ALLEGED, EITHER BEFORE OR SINCE BID OPENING, ANY PREJUDICE TO YOU OR ANY OTHER BIDDER OR PROSPECTIVE BIDDER BY REASON OF SUCH OMISSION AND NO SUCH COMPLAINT HAS BEEN MADE BY ANY OTHER FIRMS TO OUR KNOWLEDGE.

WE RECEIVED A LETTER DATED AUGUST 31, 1968, FROM YOUR ATTORNEYS IN WHICH THEY REFER TO AND INCORPORATE THEREIN THEIR LETTER OF THE SAME DATE TO OUR OFFICE IN CONNECTION WITH THE PROTEST OF ANOTHER OF THEIR CLIENTS AGAINST THE AWARD OF A CONTRACT FOR THE SAME ITEMS UNDER ANOTHER SOLICITATION. THEY CONTEND THAT THE ARGUMENTS MADE IN CONNECTION WITH THAT PROTEST ARE ALSO APPLICABLE TO THE SUBJECT INVITATION. WE DO NOT AGREE WITH THIS CONTENTION. THE ARGUMENT IN THAT CASE RELATING TO BIDDING INSTRUCTION NO. 20 IS NOT APPLICABLE SINCE THE SUBJECT INVITATION DOES NOT INCLUDE SUCH A PROVISION. THE OTHER ARGUMENT THERE MADE IS NOT APPLICABLE SINCE IT CONCERNS THE PROCURING ACTIVITY'S FAILURE TO SOLICIT BIDS ON THE TOTAL MONTHLY REQUIREMENT OF 1,000 UNITS UNDER THE NON-SET-ASIDE PORTION OF THE PROCUREMENT. NO QUESTION IS RAISED AS TO THE PROPRIETY OF THE SMALL BUSINESS SET-ASIDE UNDER THE INSTANT INVITATION, WHICH APPEARS TO BE AUTHORIZED UNDER APPLICABLE REGULATION. ARMED SERVICES PROCUREMENT REGULATION 1-706.1 (A).

SINCE REJECTION OF BIDS AFTER OPENING AND EXPOSURE OF BID PRICES IS A SERIOUS MATTER, WE HAVE CONSISTENTLY HELD THAT IT SHOULD NOT BE DONE EXCEPT FOR COMPELLING REASONS. IN OUR OPINION, SUCH DEFECTS AS DO EXIST IN THE SUBJECT INVITATION ARE NOT SO SERIOUS AS TO COMPEL OR JUSTIFY CANCELLATION.

ACCORDINGLY, OUR OFFICE MAY NOT PROPERLY OBJECT TO THE PROPOSED AWARD.