B-154567, AUG. 21, 1964

B-154567, AUG. 21, 1964

TO JOHN FRANCIS WOOG, ESQUIRE:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 25 AND LETTER OF JUNE 26, 1964, ON BEHALF OF AUDIO EQUIPMENT COMPANY, INCORPORATED, PROTESTING THE AWARD MADE TO ARKAY INTERNATIONAL, INCORPORATED, UNDER INVITATION FOR BIDS NO. 123-64 ISSUED BY THE UNITED STATES MARINE CORPS.

THE INVITATION REQUESTED BIDS FOR FURNISHING BATTERY OPERATED HAND HELD PUBLIC ADDRESS SYSTEMS AND RELATED ITEMS "TO BE IN ACCORDANCE WITH ENCLOSED PURCHASE DESCRIPTION CSY-3-FY59-10 DATED 22 JUNE 1959 AND AMENDMENT NO. 1 DATED 4 OCTOBER 1963; TO BE SAME AS OR EQUAL TO AUDIO EQUIPMENT COMPANY MODEL S-183.' THE FOLLOWING "NOTE" WAS CONTAINED ON PAGES 3 AND 4 OF THE INVITATION:

"ATTENTION OF BIDDERS IS INVITED TO MILITARY SPECIFICATION MIL-I 11748A (SIGC) FOR QUALIFICATION OF RADIO INTERPRETATIONS SUPPRESSION COMPONENTS. WITH RESPECT TO PRODUCTS REQUIRING QUALIFICATION, AWARD WILL BE MADE ONLY FOR SUCH PRODUCTS AS HAVE, PRIOR TO THE TIME SET FOR OPENING BIDS, BEEN TESTED AND APPROVED FOR INCLUSION ON THE MILITARY QUALIFIED PRODUCTS LIST QPL-11748, WHETHER OR NOT SUCH PRODUCTS HAVE ACTUALLY BEEN SO LISTED BY THAT DATE. MANUFACTURERS ARE URGED TO COMMUNICATE WITH COMMUNICATIONS DEPARTMENT, SCEL, FT. MONMOUTH, NEW JERSEY. (SUPPRESSION AND GENERAL ENGINEERING BRANCH), AND ARRANGE TO HAVE THE PRODUCTS THAT THEY PROPOSE TO OFFER TESTED FOR QUALIFICATION.

"BIDDERS ARE REQUIRED TO CERTIFY THAT COMPONENTS MEET THE REQUIREMENTS OF THE SPECIFICATION AND HAVE BEEN TESTED AND APPROVED.'

THE INVITATION PROVIDED FOR THE SUBMISSION OF A PREPRODUCTION SAMPLE WITHIN 30 DAYS AFTER DATE OF CONTRACT FOR TEST PROPOSES; HOWEVER, IT WAS PROVIDED THAT THE PREPRODUCTION SAMPLE WOULD BE WAIVED AS TO A BIDDER WHO HAD PREVIOUSLY FURNISHED THE IDENTICAL EQUIPMENT TO THE MARINE CORPS, AND SUCH A BIDDER WAS TO STATE IN ITS BID THE CONTRACT NUMBER UNDER WHICH THE EQUIPMENT WAS FURNISHED.

THREE BIDS WERE RECEIVED AND OPENED ON MAY 12, 1964, AS FOLLOWS:

AUDIO EQUIPMENT COMPANY, INC. $109,022.70

ARKAY INTERNATIONAL, INC. 96,959.40

APPLIED ELECTRO MECHANICS, INC. 332,670.44

NONE OF THE THREE BIDS RECEIVED CONTAINED A STATEMENT CERTIFYING THAT THE COMPONENTS MET THE REQUIREMENTS OF THE SPECIFICATIONS AND HAD BEEN TESTED AND APPROVED IN ACCORDANCE WITH THE "NOTE" QUOTED ABOVE. AUDIO EQUIPMENT COMPANY STATED IN ITS BID AND IN AN ACCOMPANYING LETTER THAT IT HAD PREVIOUSLY FURNISHED THE SAME EQUIPMENT UNDER CONTRACT NO. NOM-71527.

BY LETTERS DATED MAY 19 AND MAY 22, 1964, ARKAY INTERNATIONAL ADVISED THAT THE EQUIPMENT IT PROPOSED TO FURNISH WOULD CONFORM IN ALL RESPECTS TO MIL-I-11748A (SIGC) AND THAT THE PERTINENT COMPONENTS TO BE USED WERE Q.P.L. NO. CPO81A1KC223K, MANUFACTURED BY ASTRON DIVISION OF RENWELL INDUSTRIES, APPROVED NOVEMBER 18, 1958.

IT WAS DETERMINED THAT THE FAILURE OF ARKAY INTERNATIONAL AND ALSO OF THE OTHER TWO BIDDERS, TO MAKE THE CERTIFICATION REQUIRED BY THE ABOVE QUOTED "NOTE" DID NOT RENDER THEIR BIDS NONRESPONSIVE AND, THEREFORE, THE AWARD WAS MADE TO ARKAY INTERNATIONAL, AS THE LOW RESPONSIVE BIDDER.

IN YOUR LETTER OF JUNE 26 YOU REQUEST THAT A FORMAL DECISION BE MADE WITH RESPECT TO THE FOLLOWING:

"1. THAT THE REQUIREMENTS SET FORTH IN THE NOT CONTAINED IN PAGES 3 AND 4 OF THE SCHEDULE WERE AN INTEGRAL AND MATERIAL PART OF THE INVITATION.

"2. THAT FAILURE OF ARKAY INTERNATIONAL TO CERTIFY WITH RESPECT TO THE REQUIREMENTS SET FORTH IN THE NOTE WAS AND IS A FATAL DEFECT TO THE AWARD OF THE CONTRACT TO IT.

"3. THAT THE "DELETION OF PREPRODUCTION REQUIREMENTS" PARAGRAPH GAVE TO AUDIO EQUIPMENT CO., INC., THE RIGHT TO OMIT THE CERTIFICATION REQUIRED INASMUCH AS THE COMPANY HAD PREVIOUSLY PERFORMED A CONTRACT FOR THE PRODUCTION OF THE SAME EQUIPMENT.

"4. THAT THE CONTRACT MUST BE AWARDED TO AUDIO EQUIPMENT CO., INC.'

WITH RESPECT WITH YOUR FIRST AND SECOND CONTENTIONS, ALL BIDDERS, BY SUBMITTING UNCONDITIONAL BIDS, OFFERED TO FURNISH EQUIPMENT COMPLYING FULLY WITH THE REQUIREMENTS OF THE SPECIFICATIONS, INCLUDING THE FURNISHING OF CERTAIN PARTS THAT WERE LISTED, OR APPROVED FOR LISTING, ON THE Q.P.L. AS OF THE DATE OF THE BID OPENING. A FURTHER CERTIFICATION THAT THE COMPONENTS OFFERED WOULD ,MEET THE REQUIREMENTS OF THE SPECIFICATION AND HAVE BEEN TESTED AND APPROVED," WOULD ADD NOTHING TO THE BID. IT CAN BE ARGUED THAT SUCH CERTIFICATION SHOULD HAVE INCLUDED A REFERENCE TO THE SPECIFIC Q.P.L. ITEM THAT THE BIDDER PROPOSED TO FURNISH. HOWEVER, THE INVITATION DID NOT REQUIRE IT AND THEREFORE, THE FAILURE TO MENTION THE SPECIFIC Q.P.L. ITEM COULD NOT RENDER A BID NONRESPONSIVE. THUS, CONSIDERATION AND EVALUATION OF THE BIDS WERE NOT CONDITIONED ON FURNISHING A Q.P.L. NUMBER WITH THE BID, BUT SOLELY WHETHER THE PRODUCT HAD, IN FACT, BEEN QUALIFIED PRIOR TO THE OPENING OF THE BIDS. THIS FACT COULD BE VERIFIED BY THE GOVERNMENT ITSELF AND A CERTIFICATION WITH RESPECT THERETO WOULD SERVE NO REAL PURPOSE. ACCORDINGLY, WE BELIEVE THAT THE CERTIFICATION REQUIREMENT SET FORTH IN THE "NOTE" WAS NOT A MATERIAL PART OF THE INVITATION, AND IT IS UNNECESSARY TO CONSIDER YOUR THIRD CONTENTION.

IN VIEW OF THE FOREGOING, IT IS OUR OPINION THAT THE AWARD WAS PROPERLY MADE TO ARKAY INTERNATIONAL, INCORPORATED, AS THE LOW RESPONSIVE BIDDER.