B-171222, JAN 19, 1971

B-171222, JAN 19, 1971

BID PROTEST - NEGOTIATIONS - PROPRIETARY INFORMATION DENIAL OF PROTEST OF TYCO, INCORPORATED AGAINST THE AWARD OF AN ADVERTISED CONTRACT FOR 25 ELECTRIC MOTORS ISSUED BY DEFENSE SUPPLY AGENCY TO SPECIALIZED ENGINEERING AND THE USE OF PROPRIETARY INFORMATION FROM A PREVIOUS PROCUREMENT. SINCE NO BID WAS RECEIVED FROM TYCO THERE WAS NO WAY FOR THE CONTRACTING AGENCY TO DETERMINE TYCO'S STANDING, OFFERS UNDER A PREVIOUS PROCUREMENT NOT BEING IN CONSIDERATION HERE. FURTHERMORE, AS THE PROCUREMENT ITEM DESCRIPTION USED IN THE CURRENT INVITATION DID NOT DEPEND ON ANY DATA SUBMITTED BY TYCO, NO CHARGE OF USE OF PROPRIETARY INFORMATION CAN BE SUSTAINED.

TO TYCO, INCORPORATED:

WE REFER TO YOUR LETTER OF NOVEMBER 2, 1970, PROTESTING AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. DSA400-71-B-0499.

THE INVITATION WAS ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER OF THE DEFENSE SUPPLY AGENCY ON JULY 24, 1970, FOR 25 ELECTRIC MOTORS MADE IN ACCORDANCE WITH TYPE II OF FEDERAL SPECIFICATION CC-M-641D, AND IDENTIFIED BY FSN 6105-953-1551.

TWO BIDS WERE RECEIVED AND OPENED ON AUGUST 31, 1970. THE LOW BID FROM PENN ELECTRIC MOTOR COMPANY, AT A UNIT PRICE OF $126.00 FOR 5 UNITS TO ONE DESTINATION AND $116.00 FOR 20 UNITS TO ANOTHER DESTINATION, WAS REJECTED FOR FAILURE OF THAT COMPANY TO ACKNOWLEDGE AND RETURN AN AMENDMENT TO THE INVITATION. THE REMAINING BID FROM SPECIALIZED ENGINEERING, AT A UNIT PRICE OF $129.90 FOR ALL DESTINATIONS, WAS FOUND RESPONSIVE AND A CONTRACT WAS AWARDED TO THAT COMPANY ON OCTOBER 20, 1970. NO BID WAS RECEIVED FROM YOUR COMPANY.

YOUR LETTER OF PROTEST OF NOVEMBER 2, 1970, SETS FORTH TEN ALLEGATIONS OF IMPROPER PROCEDURE IN THIS PROCUREMENT, SUMMARIZED AS FOLLOWS: (1) TYCO OFFERED THE REQUIRED ITEM AT $105 EACH AT LEAST 105 DAYS BEFOREHAND; (2) THE ITEM DESCRIBED IN THE CONTRACT WILL NOT FIT THE END ITEM WITHOUT MODIFICATION SINCE THE SHAFT DIAMETER MUST BE 1.1245 TO 1.1250 INCHES RATHER THAN THE DIMENSION OF 1.245 TO 1.250 INCHES CALLED FOR IN THE CONTRACT; (3) THE CONTRACTING AGENCY IMPROPERLY OBTAINED DESCRIPTIVE DATA FROM PROPRIETARY DRAWINGS SUBMITTED BY TYCO IN A PREVIOUS PROCUREMENT; (4) THE CONTRACTING AGENCY SUPPLIED THE IMPROPERLY OBTAINED INFORMATION TO THE ENGINEERING ACTIVITY; (5) ALL BIDS SHOULD HAVE BEEN REJECTED AS UNREASONABLE IN PRICE UNDER ASPR 2-404.1(B)(VI) IN VIEW OF TYCO'S PREVIOUS LOWER OFFER; (6) TYCO WARNED THE CONTRACTING AGENCY 26 DAYS BEFORE BID OPENING AND 76 DAYS BEFORE AWARD THAT THE PROPOSED PURCHASE WAS NOT COMPATIBLE WITH THE ITEM REQUIRED; (7) THE CONTRACTING AGENCY WAS WARNED BY THE SUCCESSFUL BIDDER THAT THE MOTOR WAS "SPECIAL" 50 DAYS BEFORE AWARD; (8) THE CONTRACTING AGENCY WAS ALERTED TWICE IN WRITING BY TYCO BEFORE AWARD THAT THE SPECIFICATION WAS DEFECTIVE; (9) THE CONTRACTING AGENCY KNEW THAT TYCO OFFERED A PRICE OF $105 FOR THE SAME ITEM UNDER ANOTHER CONTRACT 121 DAYS BEFORE THE PRESENT INVITATION WAS ISSUED; AND (10) TYCO COULD HAVE DELIVERED THE REQUIREMENTS OF THIS INVITATION IN JULY OR AUGUST 1970 AT A SAVING OF $871.50.

THE ADMINISTRATIVE REPORT IN THIS MATTER POINTED OUT, WITH RESPECT TO YOUR ALLEGATIONS NUMBER 1, 9 AND 10, THAT SINCE YOUR FIRM DID NOT SUBMIT A BID ON THE PRESENT INVITATION THERE WAS NO WAY FOR THE CONTRACTING AGENCY TO DETERMINE HOW YOUR PRICE, IF YOU HAD CHOSEN TO BID, WOULD HAVE COMPARED WITH THE SUCCESSFUL BIDDER'S PRICE. YOUR OFFERS UNDER A DIFFERENT PROCUREMENT WERE NOT FOR CONSIDERATION IN THIS ADVERTISED PROCUREMENT. ALTHOUGH YOUR ALLEGATION NUMBER 5 CONTENDED THAT ALL BIDS RECEIVED UNDER THIS INVITATION SHOULD HAVE BEEN REJECTED AS BEING AT UNREASONABLE PRICES, THE CONTRACTING OFFICER FOUND NO BASIS FOR SUCH DETERMINATION PURSUANT TO ASPR 2-404.1(B)(VI). IN THIS CONNECTION THE PRICES RECEIVED UNDER THIS INVITATION COMPARED FAVORABLY WITH THE PRICE OF $178.81 PER UNIT PAID TO THE ORIGINAL MANUFACTURER, THERMO KING, IN SEVERAL PAST PROCUREMENTS. WHILE YOU POINT OUT THAT YOU HAD OFFERED LOWER PRICES IN OFFERS YOU HAD SUBMITTED SEVERAL MONTHS EARLIER UNDER RFP'S WHICH WERE CANCELLED, IN VIEW OF YOUR FAILURE TO SUBMIT A BID UNDER THE INSTANT SOLICITATION, WE SEE NO VALID BASIS FOR YOUR CONTENTION THAT THE CONTRACTING OFFICER SHOULD HAVE CONSIDERED YOUR PRIOR PRICES AS STILL AVAILABLE TO THE GOVERNMENT, AND SHOULD HAVE REJECTED ALL BIDS AS UNREASONABLE WHICH DID NOT COMPARE FAVORABLY WITH YOUR PRIOR PRICES.

THE ADMINISTRATIVE REPORT FURTHER RELATED THAT DESPITE YOUR ALLEGATIONS NUMBERED 2, 6 AND 8 THAT THE SHAFT DIMENSION WAS INCORRECTLY STATED IN THE INVITATION, ALL OF YOUR CORRESPONDENCE WITH THE CONTRACTING AGENCY WAS NON -SPECIFIC IN THIS REGARD AND AT NO TIME PRIOR TO AWARD DID YOU INQUIRE ABOUT THE ACCURACY OF THE SHAFT DIMENSION. THE CLERICAL ERROR IN STATING THE SHAFT DIMENSION IS BEING CORRECTED BY A CHANGE ORDER TO THE PROPER DIMENSION OF 1.1245 TO 1.1250 INCHES. THE SUCCESSFUL BIDDER'S NOTE THAT THE MOTOR WAS "SPECIAL", TO WHICH YOUR ALLEGATION NUMBER 7 REFERS, DID NOT ANTICIPATE ANY PRODUCTION OR DELIVERY PROBLEMS, BUT MERELY STATED THAT SINCE A SEPARATE PRODUCTION RUN IS REQUIRED, ANY INCREASE IN QUANTITY IS SUBJECT TO ACCEPTANCE BY THE CONTRACTOR.

IT APPEARS THAT YOUR MAJOR CONCERN IN THIS MATTER, AS EXPRESSED IN YOUR ALLEGATIONS NUMBERED 3 AND 4, WAS THAT THE INFORMATION USED IN THE INVITATION FOR BIDS WAS IMPROPERLY OBTAINED FROM TYCO'S PROPRIETARY DRAWINGS AND DATA SUBMITTED ON A PREVIOUS SOLICITATION. THE ADMINISTRATIVE REPORT SHOWS THAT THE PREVIOUS SOLICITATION IN QUESTION WAS RFP DSA400-70-R-4505 WHICH WAS ISSUED ON DECEMBER 26, 1969, AND CLOSED ON JANUARY 12, 1970, AND THAT TYCO FURNISHED A COPY OF ITS DRAWING, TOGETHER WITH A COPY OF REVISION D OF PAGE ONE AND REVISION C OF PAGE TWO OF THERMO KING'S DRAWING 1080A69, SOMETIME AFTER THE SOLICITATION WAS ISSUED. HOWEVER, THERMO KING HAD ALREADY FURNISHED A COPY OF REVISION H OF ITS DRAWING 1080A69 TO DGSC ON DECEMBER 16, 1969, WHICH DRAWING INCLUDED THE INFORMATION THAT THERMO KING'S G03 MOTOR CAN BE IDENTIFIED TO TYPE 2 OF FEDERAL SPECIFICATION CC-M-641. ALTHOUGH THERMO KING'S DRAWING BORE ITS RESTRICTIVE LEGEND AND THEREFORE COULD NOT BE FURNISHED TO OTHER POTENTIAL BIDDERS, IT IS THE POSITION OF DGSC THAT A PROSPECTIVE CONTRACTOR CANNOT PREVENT THE GOVERNMENT FROM USING A PREVIOUSLY DEVELOPED FEDERAL SPECIFICATION TO PURCHASE AN ITEM SIMPLY BY REFERENCING SUCH FEDERAL SPECIFICATION IN ITS PROPRIETARY LITERATURE. INCLUSION OF THE SAME INFORMATION IN YOUR DATA DID NOT ADD ANYTHING NEW TO THE INFORMATION ALREADY IN THE POSSESSION OF THE CONTRACTING AGENCY.

THE ADMINISTRATIVE REPORT FURTHER STATED THAT ALTHOUGH THERMO KING AND TYCO EACH FURNISHED INFORMATION UNDER A RESTRICTIVE LEGEND, IN THE SAME PROCUREMENT IN WHICH TYCO SUBMITTED ITS DATA THE DYNA CORPORATION ALSO ESTABLISHED THAT ITS PART NUMBER D215M1004-9587 WAS ACCEPTABLE AND ITS DETAILED INFORMATION WAS SUPPLIED WITHOUT ANY RESTRICTION. THEREFORE, THE PROCUREMENT ITEM DESCRIPTION USED IN THE CURRENT INVITATION DID NOT DEPEND ON ANY DATA SUBMITTED BY TYCO AND REQUIRED NO MODIFICATION BEYOND CORRECTION OF THE CLERICAL ERROR IN THE SHAFT DIMENSION.

ALTHOUGH THE INVITATION CONTAINED A DEFECT IN THE FORM OF AN INCORRECT DIMENSION, IT DOES NOT APPEAR THAT THIS CIRCUMSTANCE ALLOWED ANY BIDDER TO OBTAIN AN UNFAIR ADVANTAGE. IN A SIMILAR CASE INVOLVING AN AWARD UNDER AN INVITATION CONTAINING A DEFECT, WE FOUND NO BASIS ON WHICH TO DISTURB THE AWARD AFTER CORRECTION OF THE DEFECT. B-160727, APRIL 4, 1967. WE HAVE ALSO PERMITTED AWARDS WITH OMISSION OR CORRECTION OF DEFECTS WHICH WOULD OTHERWISE HAVE AFFECTED THE VALIDITY OF THE AWARDS, IN CASES WHERE THE QUESTIONS ABOUT THE DEFECTS WERE RAISED PRIOR TO AWARD. 43 COMP. GEN. 23, 26 (1963); 40 ID. 561, 563 (1961).

IN THE PRESENT CASE, THE CORRECTION COULD, AND PRESUMABLY WOULD, HAVE BEEN ACCOMPLISHED PRIOR TO BID OPENING IF YOUR QUESTION ABOUT THE SPECIFICATIONS HAD BEEN SET FORTH IN SPECIFIC, RATHER THAN NON SPECIFIC, TERMS. UNDER THE CIRCUMSTANCES, IT IS OUR OPINION THAT THE CONTRACTING OFFICER ACTED PROPERLY IN CORRECTING THE DEFECT IN THE SHAFT DIMENSION WHEN THE MATTER WAS BROUGHT TO HIS ATTENTION.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.