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B-169444, JUL. 29, 1970

B-169444 Jul 29, 1970
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OFFEROR WHO INCLUDED IN HIS BID A WARRANTY CLAUSE THAT WAS NOT REQUIRED HAD BID PROPERLY REJECTED ON THE BASIS OF THE RECORD WHICH SUBSTANTIATES THAT WARRANTY CLAUSE WAS NEITHER REQUIRED NOR INCORPORATED BY REFERENCE IN REQUEST. M. CROWLEY: REFERENCE IS MADE TO YOUR LETTER OF JUNE 24. THE CRUX OF OUR DECISION WAS THAT SINCE A WARRANTY WAS NOT REQUIRED BY THE RFP. THE PURPORTED OFFER OF A WARRANTY BY AIC WAS PURELY GRATUITOUS AND NOT SIGNIFICANT IN THE EVALUATION OF ITS OFFER. THE PROCURING ACTIVITY ADVISED OUR OFFICE THAT THE INCLUSION OF A WARRANTY IN RFP -0717 HAD BEEN CONSIDERED BY OCAMA DURING THE PRESOLICITATION PLANNING STAGE BUT THAT IT WAS DETERMINED NOT TO USE A WARRANTY CLAUSE IN THIS PROCUREMENT.

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B-169444, JUL. 29, 1970

CONTRACTS -- BID PROTEST -- DEVIATIONS -- WARRANTY CLAUSE DECISION ON BEHALF ARIZONA INSTRUMENT CORPORATION, SUSTAINING PRIOR DECISION OF MAY 22, 1970, DENYING PROTEST AGAINST REJECTION OF PROPOSAL BY OKLAHOMA CITY AIR MATERIEL AREA, TINKER AFB, OKLA. OFFEROR WHO INCLUDED IN HIS BID A WARRANTY CLAUSE THAT WAS NOT REQUIRED HAD BID PROPERLY REJECTED ON THE BASIS OF THE RECORD WHICH SUBSTANTIATES THAT WARRANTY CLAUSE WAS NEITHER REQUIRED NOR INCORPORATED BY REFERENCE IN REQUEST.

TO MR. FREDERICK T. M. CROWLEY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 24, 1970, ON BEHALF OF ARIZONA INSTRUMENT CORPORATION (AIC), REQUESTING RECONSIDERATION OF OUR DECISION B -169444 DATED MAY 22, 1970. IN THAT DECISION WE DENIED AIC'S PROTEST AGAINST THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER REQUEST FOR PROPOSALS (RFP) NO. F34601-70-R-0717, ISSUED BY THE OKLAHOMA CITY AIR MATERIEL AREA (OCAMA), TINKER AIR FORCE BASE, OKLAHOMA.

THE CRUX OF OUR DECISION WAS THAT SINCE A WARRANTY WAS NOT REQUIRED BY THE RFP, THE PURPORTED OFFER OF A WARRANTY BY AIC WAS PURELY GRATUITOUS AND NOT SIGNIFICANT IN THE EVALUATION OF ITS OFFER. IN THIS RESPECT, THE PROCURING ACTIVITY ADVISED OUR OFFICE THAT THE INCLUSION OF A WARRANTY IN RFP -0717 HAD BEEN CONSIDERED BY OCAMA DURING THE PRESOLICITATION PLANNING STAGE BUT THAT IT WAS DETERMINED NOT TO USE A WARRANTY CLAUSE IN THIS PROCUREMENT.

YOU REQUEST RECONSIDERATION ON THE BASIS THAT OUR DECISION WAS BASED UPON "INCORRECT FACTS." IN THIS RESPECT, YOU STATE IN YOUR LETTER OF JUNE 24 THAT:

"THE LAST SENTENCE OF THE SECOND PARAGRAPH OF YOUR LETTER DATED MAY 22, 1970 STATES 'NO WARRANTY WAS REQUESTED IN THE RFP.' IN FACT THE RFP INCLUDED A LIST OF ASPR CLAUSES LISTING AS ITEM 2. ASPR 1-324.8(A) WARRANTY OF SERVICES, A COPY OF WHICH IS ATTACHED HERETO."

OUR RECORDS CONTAIN THE AIR FORCE PROCUREMENT FILE ON THIS PROTEST AND IT CLEARLY ESTABLISHES FACTS CONTRARY TO YOUR STATEMENT. RFP -0717 INCLUDED AIR FORCE FORM OCP 71-101 (69 JUL) WHICH LISTS THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVISIONS INCORPORATED BY REFERENCE AS A PART OF THE RFP. THIS LISTING DOES NOT INCLUDE ASPR 1 324.8(A), ENTITLED "WARRANTY OF SERVICES." THE ATTACHMENT TO YOUR LETTER, AIR FORCE FORM OCP 71-101 (68 DEC), DOES INCLUDE A REFERENCE TO ASPR 1-324.8(A) BUT THIS EDITION OF THE AIR FORCE FORM WAS NOT MADE A PART OF RFP -0717. EXAMINATION OF THE OFFER SUBMITTED BY AIC TO THE RFP ESTABLISHES THAT THE JULY 1969 FORM WAS RETURNED WITH ITS OFFER. HENCE, THE ABOVE-QUOTED BASIS OF YOUR REQUEST FOR RECONSIDERATION IS NOT SUPPORTED BY THE RECORD; RATHER, THE OFFER OF AIC ITSELF CONTRADICTS ITS POSITION THAT THE ASPR WARRANTY OF SERVICES PROVISION WOULD BE A CONTRACT REQUIREMENT.

ACCORDINGLY, OUR DECISION OF MAY 22, 1970, DENYING THE PROTEST OF AIC, IS SUSTAINED.

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