B-124790, OCT. 12, 1955

B-124790, OCT. 12, 1955

TO STEIN BROS. MFG. CO.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 20, 1955, WITH ENCLOSURES, PROTESTING THE AWARD OF CONTRACTS TO L. W. FOSTER SPORTSWEAR CO., INC., FOR ARMOR VESTS PURSUANT TO IFB-QM-36-030-55-860 AND CERTAIN PRIOR INVITATIONS FOR BIDS ISSUED BY THE PHILADELPHIA QUARTERMASTER DEPOT.

IT IS STATED IN YOUR LETTER THAT YOU HAVE REPEATEDLY FILED PROTESTS WITH THE QUARTERMASTER CORPS AGAINST THE AWARD OF PRIOR CONTRACTS FOR ARMOR VESTS TO L. W. FOSTER SPORTSWEAR CO., INC. IN SUPPORT OF THAT STATEMENT THERE WAS ENCLOSED WITH YOUR LETTER A COPY OF YOUR STATEMENT OF PROTEST DATED JANUARY 14, 1955, WHICH CONTAINS A BRIEF RECITAL OF THE HISTORY OF PROCUREMENT OF ARMOR VESTS AND CERTAIN FACTS ASSERTED IN SUPPORT OF YOUR CONTENTION THAT THE SAID CONTRACTOR "PERFORMED PRIOR CONTRACTS IN VIOLATION OF THE SPECIFICATIONS AND SHOULD NOT RECEIVE FURTHER AWARDS.' YOU STATE THAT YOUR PROTESTS IN CONNECTION WITH PROCUREMENTS PRIOR TO INVITATION QM-36-030-55-203, DATED OCTOBER 18, 1954, WERE BASED UPON THE CONTENTION THAT UNDER THE ADVERTISED SPECIFICATIONS ,IT WAS PHYSICALLY IMPOSSIBLE TO SAVE 8 3/4 TO 10 PERCENT OF THE NYLON DUCK, AS FOSTER ESTIMATED," AND THAT FOSTER'S ESTIMATES EITHER WERE DELIBERATE OVER- ESTIMATES OF POSSIBLE SAVINGS WITH COMPENSATING ADJUSTMENTS IN UNIT PRICES OR HE WAS ANTICIPATING DEVIATIONS IN THE SPECIFICATIONS WHICH HE KNEW WOULD BE ALLOWED CONTRARY TO THE TERMS OF THE ADVERTISED BID CONDITIONS. YOUR PROTEST AGAINST THE AWARD TO FOSTER PURSUANT TO INVITATION QM-36-030- 55-203 WAS BASED UPON THE GROUND THAT, DUE TO HIS PRACTICE AND PROCEDURE, HE "WAS NOT A QUALIFIED AND RESPONSIBLE BIDDER.'

WITH REGARD TO THE STATEMENT OF JANUARY 14, 1955, YOU STATE IN YOUR LETTER OF JULY 20, 1955, THAT ALTHOUGH A HEARING WAS HELD ON APRIL 26,1955, IN WASHINGTON, TO YOUR KNOWLEDGE NO DECISION HAS BEEN RENDERED ON THE QUESTIONS RAISED. YOU STATE FURTHER THAT WHILE THE MATTER WAS PENDING INVITATION NO. QM-36-030-55-622 WAS ISSUED CALLING FOR BIDS TO BE OPENED MARCH 22, 1955, FOR FURNISHING 140,000 VESTS, THAT FOSTER WAS AGAIN THE LOW BIDDER, AND THAT ON APRIL 1, 1955, YOU FILED A PROTEST REQUESTING THAT AWARD BE DEFERRED UNTIL A DECISION WAS RENDERED ON YOUR PRIOR PROTESTS. YOU STATE THAT ON MAY 24, 1955, YOU WERE ADVISED THAT DUE TO THE URGENT NEED FOR ARMOR VESTS AWARD WAS MADE TO FOSTER FOR THE QUANTITY SPECIFIED IN THE INVITATION. ON THE FOLLOWING DAY INVITATION NO. QM-36-030-55-860 WAS ISSUED REQUESTING BIDS FOR FURNISHING 60,000 ARMOR VESTS TO BE DELIVERED DURING NOVEMBER AND DECEMBER 1955. ON JUNE 8, 1955, YOU AGAIN FILED A PROTEST AND REQUESTED THAT AWARD OF THIS PROCUREMENT BE DEFERRED UNTIL YOUR PRIOR PROTESTS HAD BEEN RESOLVED. AWARD WAS MADE, HOWEVER, TO FOSTER AS THE LOWEST BIDDER. YOU POINT OUT, ALSO, THAT ALTHOUGH MORE THAN 20 BIDDERS RESPONDED TO THE INVITATIONS ISSUED ONE YEAR AGO INVOLVING PROCUREMENT OF SIMILAR QUANTITIES OF VESTS ONLY FOUR BIDDERS RESPONDED TO THE MOST RECENT INVITATION NO. QM-36-030-55-860.

PURSUANT TO OUR REQUEST YOUR PROTESTS WERE INVESTIGATED BY THE DEPARTMENT OF THE ARMY AND THERE NOW HAS BEEN RECEIVED FROM THAT DEPARTMENT A REPORT WHICH STATES THAT PRIOR TO 1953, THE METHOD OF PROCUREMENT OF CLOTHING ITEMS HAD UTILIZED AN INFLEXIBLE STANDARD GOVERNMENT MATERIAL ALLOWANCE THAT THE CONTRACTOR WAS NOT PERMITTED TO VARY BY HIS BID. UNDER THAT SYSTEM THE CONTRACT PROVIDED FOR ALL SAVINGS OF/GOVERNMENT MATERIAL TO REVERT TO THE GOVERNMENT, BUT INASMUCH AS ALL BIDDERS WERE ENTITLED TO THE SAME ALLOWANCE THERE WAS NO PRACTICAL WAY BY WHICH THE MOST EFFICIENT USER OF MATERIALS COULD TRANSLATE HIS EFFICIENCY INTO A LOWER BID. RECOGNIZING THAT THE IMMEDIATE COST OF A CLOTHING ITEM IS THE SUM OF THE COST OF GOVERNMENT MATERIAL AND THE COST OF CUT, MAKE AND TRIM SERVICES IN MANUFACTURING THE MATERIAL INTO A GARMENT, THE PRESENT POLICY WAS ADOPTED WHEREBY BIDDERS ARE REQUIRED TO SUBMIT BIDS BASED ON THEIR ESTIMATED USAGE OF GOVERNMENT MATERIALS WHICH IS A FACTOR TO BE CONSIDERED IN THE EVALUATION OF BIDS. YOUR CONTENTION THAT FOSTER COULD NOT POSSIBLY PRODUCE THE ITEM WITH THE AMOUNT OF MATERIAL STIPULATED IGNORES THE EFFECT OF OTHER PROVISIONS IN THE INVITATION, NAMELY, THOSE REQUIRING THE CONTRACTOR TO PAY FOR EXCESS MATERIAL USAGE AND FIXING A PRICE FOR GOVERNMENT-FURNISHED MATERIAL. FURTHERMORE, THE RECORDS OF PERFORMANCE BY FOSTER ON THREE INVITATIONS FOR BIDS QM-36-030-55-254, QM-36-030-55-346, AND QM-36-030-55-4, REVEAL THAT FOSTER DID NOT REQUEST GOVERNMENT- FURNISHED NYLON DUCK IN EXCESS OF ITS STATED REQUIREMENTS.

YOUR ALLEGATIONS THAT FOSTER HAD REASON TO ANTICIPATE DEVIATIONS FROM THE REQUIREMENT THAT THE CUTTING PATTERN BE USED IS NOT BORNE OUT BY THE ACTUAL FACTS. THE RECORD SHOWS THAT FOSTER WAS GRANTED PERMISSION TO DEVIATE FROM THE REQUIRED USE OF THE PATTERN IN ONE INSTANCE, NAMELY, IN THE PERFORMANCE OF CONTRACT NO. QM-34419 FOR 34,000 VESTS. HOWEVER, YOU WERE LIKEWISE GRANTED THE SAME DEVIATION WITH RESPECT TO PERFORMANCE UNDER CONTRACT QM-34420 FOR THE SAME QUANTITY OF VESTS. ALSO, IT IS NOTED THAT IN YOUR PERFORMANCE OF AN EARLIER CONTRACT IN 1953 FOR 134,000 ARMOR VESTS YOU REQUESTED AND WERE GRANTED PERMISSION TO DEVIATE FROM THE USE OF THE CUTTING PATTERN.

THE CONTRACTING OFFICER REPORTS THAT AS A RESULT OF CONFERENCES WITH REPRESENTATIVES OF YOUR CONCERN IT WAS LEARNED THAT YOU BELIEVED THAT FOSTER HAD BEEN GRANTED DEVIATIONS WITH RESPECT TO THE METHOD OF CUTTING CLOTH ALONG INDICATED DIRECTIONAL LINES. A REVIEW OF THE PROCUREMENT FILES FAILS TO DISCLOSE ANY RECORD OF SUCH DEVIATIONS GRANTED TO FOSTER UNDER THE AFOREMENTIONED CONTRACTS.

YOUR CONTENTION THAT FOSTER'S ALLEGED METHOD OF UNDERSTATING ITS GOVERNMENT-FURNISHED MATERIAL REQUIREMENTS WOULD RESULT IN FREE FINANCING BY THE GOVERNMENT, WOULD APPEAR TO BE MERELY A SPECULATIVE CONCLUSION SINCE FOSTER HAS CONSISTENTLY PERFORMED WITHIN ITS STATED USAGE REQUIREMENTS UNDER PRIOR CONTRACTS. YOUR CONTENTION ALSO IGNORES THE LONG COURSE OF GOVERNMENT PROCUREMENT PRACTICES, NAMELY, THAT FIXED-PRICE, FIXED QUANTITY CONTRACTS LET BY FORMAL ADVERTISING ARE AWARDED TO THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER WITHOUT REGARD TO THE FACTORS HE INCLUDED IN CALCULATING HIS BID.

THE QUARTERMASTER CORPS HAS INVESTIGATED YOUR ALLEGATIONS THAT FOSTER DEVIATED FROM THE SPECIFICATION REQUIREMENTS WITHOUT AUTHORITY IN ITS MANUFACTURING PROCESS UNDER THE CONTRACTS AWARDED PURSUANT TO THE INVITATIONS QM-36-030-55-254, QM-36-030-55-346, QM-36-030-55-4, PARTICULARLY WITH REGARD TO THE FAILURE TO USE THE CUTTING PATTERN WHEN REQUIRED BY THE SPECIFICATIONS AND FAILURE TO CUT ALONG DIRECTIONAL LINES. THE GOVERNMENT EMPLOYEES, NAMELY, MR. ALFRED A. SPADA, A SUPERVISING GOVERNMENT-FURNISHED PROPERTY USAGE SPECIALIST AT THE PHILADELPHIA QUARTERMASTER DEPOT AND MR. BENJAMIN ROTHFELD, A MARINE CORPS INSPECTOR, HAVE BEEN INTERROGATED REGARDING PURPORTED STATEMENTS MADE TO YOUR REPRESENTATIVES CONCERNING SUCH UNAUTHORIZED PRACTICES BY FOSTER. MR. SPADA AND MR. ROTHFELD BOTH DENY UNDER OATH THAT THEY EVER MADE SUCH STATEMENTS. SWORN STATEMENTS TO THAT EFFECT HAVE BEEN OBTAINED FROM BOTH INDIVIDUALS. A SWORN AFFIDAVIT HAS ALSO BEEN OBTAINED FROM MR. RUSSELL J. DIMARTINO, THE MARINE CORPS INSPECTOR-IN-CHARGE AT THE PLANT OF FOSTER DURING THE PERFORMANCE OF THOSE CONTRACTS STATING THAT FOSTER UTILIZED GOVERNMENT PATTERNS IN ACCORDANCE WITH THE TERMS OF THE APPLICABLE SPECIFICATIONS AND CONTRACTS.

IT WAS ALSO CONSIDERED PERTINENT TO THE FINAL RESOLUTION OF YOUR PROTEST TO THE AWARD MADE PURSUANT TO INVITATION FOR BID NO. QM-36-030 55-203, THAT REPRESENTATIVE SAMPLES OF ARMOR VESTS DELIVERED BY FOSTER UNDER PRIOR CONTRACTS BE DISASSEMBLED AND CAREFULLY INSPECTED FOR DEVIATIONS FROM SPECIFICATIONS REQUIREMENTS, WITH PARTICULAR ATTENTION PAID TO POSSIBLE DEVIATIONS FROM CUTTING REQUIREMENTS. AN INITIAL INSPECTION REPORT ON TWO SAMPLES PRODUCED UNDER CONTRACT QM-55 (INVITATION FOR BID NO. 346) REVEALED THAT SOME OF THE PLIES IN THE BACK PORTION OF THE FILLER WERE CUT IN THE FILLING DIRECTION CONTRARY TO SPECIFICATION REQUIREMENTS; THAT UPON INSPECTION OF THREE ADDITIONAL SAMPLES PRODUCED UNDER THIS CONTRACT NO EVIDENCE OF CUTTING IRREGULARITIES WERE DISCOVERED. ON INSPECTION OF TWO SAMPLES TAKEN FROM CONTRACT NO. QM-34419 (INVITATION NO. 254) NO EVIDENCE OF CUTTING IRREGULARITIES OR DEVIATIONS WERE DISCOVERED. FIVE SAMPLES SELECTED FROM CONTRACT 4843 (INVITATION FOR BID NO. 203) REVEALED NO EVIDENCE OF UNSATISFACTORY CUTTING. THE INSPECTION REVEALED EVIDENCE OF CUTTING THE FILLER IN THE FILLING DIRECTION BUT THIS METHOD OF CUTTING WAS AUTHORIZED ON THIS PROCUREMENT BY THE PERTINENT INVITATION FOR BIDS AND CONTRACT AS WELL AS ALL SUBSEQUENT PROCUREMENTS. THESE INSPECTION RESULTS FURNISH NO CONCRETE BASIS ON WHICH TO FIND THAT FOSTER IS NOT A RESPONSIBLE BIDDER AND/OR INELIGIBLE FOR AWARD ON THE LAST THREE PROCUREMENTS.

THIS PROCEDURE OF PROCURING REPRESENTATIVE SAMPLES OF VESTS FOR RE INSPECTION, ALTHOUGH INITIATED IN MARCH 1955 HAS BEEN TIME CONSUMING AND NECESSARILY DELAYED RESOLUTION OF THE PROTESTS FILED BY YOU UNDER INVITATION FOR BID NO. QM-36-030-55-203, AS WELL AS THE PROTESTS FILED AGAINST THE TWO SUBSEQUENT PROCUREMENTS UNDER INVITATION FOR BID NO. QM 36 -030-55-622 AND INVITATION FOR BID NO. QM-36-030-55-860. THE ARMOR VEST IS A CRITICAL ITEM ON THE DEPARTMENT OF DEFENSE PLANNING LIST AND THE QUARTERMASTER CORPS HAS INITIAL RESPONSIBILITY FOR THE ESTABLISHMENT OF MOBILIZATION RESERVE STOCKS ADEQUATE TO MOST ANTICIPATED M-DAY REQUIREMENTS. THE LOW LEVEL OF STOCK INVENTORY IN EARLY 1955, DICTATED THAT PROCUREMENT ACTIVITY FOR ARMOR VESTS BE CONTINUED IN ACCORDANCE WITH THE LONG RANGE PROGRAM TO ASSURE ADEQUATE MOBILIZATION RESERVE STOCKS THEREOF. ON FEBRUARY 14, 1955, PROCUREMENT DIRECTIVE PL-1-0170-03-5-07 WAS ISSUED, INSTRUCTING THE PHILADELPHIA QUARTERMASTER DEPOT TO MAKE ARRANGEMENTS FOR PROCUREMENT OF 200,000 VESTS WITH DELIVERIES SCHEDULED FROM JULY THROUGH DECEMBER 1955. UNDER THIS DIRECTIVE THE DEPOT WAS TO EFFECT IMMEDIATE PROCUREMENT OF 140,000 VESTS, AND TO DELAY PROCUREMENT OF THE REMAINING 60,000 UNTIL ASSURANCE WAS RECEIVED THAT THERE WOULD BE SUFFICIENT GOVERNMENT-FURNISHED MATERIAL AVAILABLE FOR PRODUCTION OF THE 60,000 VESTS. INVITATION NO. QM-36-030-55-622 FOR 140,000 ARMOR VESTS WITH DELIVERIES SCHEDULED FROM JULY TO NOVEMBER 1955, WAS ISSUED MARCH 4, 1955. BIDS WERE OPEN ON MARCH 29, 1955, AND ON APRIL 1, 1955, YOU FILED A PRE-AWARD PROTEST ON THE SAME BASIS AS YOUR PRIOR PROTESTS TO INVITATION FOR BIDS NO. QM-36-030-55-203. FOSTER WAS THE LOW BIDDER BUT AWARD WAS DELAYED PENDING RESOLUTION OF THE TWO OUTSTANDING PROTESTS. WHEN IT BECAME APPARENT, HOWEVER, THAT SUCH RESOLUTION WOULD BE DELAYED FOR A FURTHER PERIOD OF TIME AND SINCE THE URGENT NEED FOR SUCH A CRITICAL ITEM WOULD NOT PERMIT EXTENSION OF DELIVERY SCHEDULE, IT WAS FOUND NECESSARY TO MAKE AWARD TO THE SUCCESSFUL BIDDER NOTWITHSTANDING THE PENDING PROTESTS.

PURSUANT TO THE INSTRUCTIONS IN THE PROCUREMENT DIRECTIVE MENTIONED ABOVE, INVITATION FOR BID NO. 36-030-55-860 WAS ISSUED MAY 25, 1955, FOR BIDS FOR FURNISHING 60,000 VESTS WITH DELIVERY SCHEDULE FOR NOVEMBER AND DECEMBER 1955. AWARD ON THIS QUANTITY WAS TEMPORARILY SUSPENDED IN VIEW OF THE AFOREMENTIONED UNRESOLVED PROTESTS ON INVITATION FOR BID NO. 203 AND INVITATION FOR BID NO. 622, AS WELL AS PRE-AWARD PROTEST ON INVITATION NO. 860 BASED ON THE SAME GROUNDS AS PRIOR PROTESTS. SINCE MOBILIZATION RESERVE STOCKS, HOWEVER, WERE AT A DANGEROUSLY LOW LEVEL AND SINCE NO ADEQUATE PLANNING PROGRAM FOR FUTURE PROCUREMENTS COULD BE PROPERLY EFFECTED TO ASSURE A CONSTANT FLOW OF THIS ITEM INTO SUCH RESERVE STOCKS WHILE THE 60,000 PROCUREMENT REMAINED UNAWARDED, IT WAS DETERMINED THAT THE CRITICAL NEED FOR THESE ITEMS IN MOBILIZATION STOCKS WOULD PERMIT NO FURTHER DELAY. ACCORDINGLY, AWARD WAS MADE ON JUNE 24, 1955, TO FOSTER.

THE CONTRACTING OFFICER POINTS OUT THAT WORKING CAPITAL FUNDS WERE UTILIZED FOR THIS PROCUREMENT OF 60,000 VESTS AND, CONTRARY TO YOUR CONTENTION, NO YEAR FUNDS WERE USED OR ARE BEING USED FOR PAYMENT FOR THESE VESTS. IT IS ALSO STATED THAT THE SO-CALLED "DOVE-TAILING" OF DELIVERY SCHEDULES ON INVITATION FOR BIDS NOS. 622 AND 860, CONFORMS TO PROCUREMENT INSTRUCTIONS FIXED LONG BEFORE IT WAS KNOWN WHO WOULD BE THE SUCCESSFUL BIDDER.

WE ARE ADVISED THAT THE QUARTERMASTER CORPS IS WELL AWARE OF THE FACT THAT THE NUMBER OF RESPONSIVE BIDDERS HAS DIMINISHED WITH SUCCESSIVE PROCUREMENTS OF THIS ITEM OF WEARING APPAREL. IT IS REPORTED FURTHER THAT THIS SITUATION HAS BEEN A CAUSE OF GREAT CONCERN FOR SOME TIME AND THAT DEFINITE MEASURES ARE BEING DEVELOPED TO ASSURE AMPLE SOURCES OF SUPPLY FOR AN ITEM AS CRITICAL AS THE ARMOR VEST.

THE FOLLOWING COMMENTS ARE MADE IN THE REPORT IN REGARD TO YOUR STATEMENTS AS TO YOUR EXPERIENCE ON PRIOR PROCUREMENTS OF THIS ITEM: "TAP 30-352-53 NEG 6:

"A BID WAS SUBMITTED BY STEIN, BUT THERE WERE SEVERAL BIDDERS WHO OFFERED A LOWER PRICE. ON 29 OCTOBER 1952, AWARD WAS MADE TO LOW BIDDER, L. W. FOSTER SPORTSWEAR CO., INC., UNDER CONTRACT DA 30-352 TAF-99 FOR THE FULL QUANTITY OF 20,000 ARMOR VESTS. THERE IS NO RECORD THAT STEIN REQUESTED ANY INFORMATION PRIOR TO AWARD. HOWEVER THE RECORDS DO INDICATE THAT, SUBSEQUENT TO THE AWARD, STEIN SUBMITTED A REQUEST FOR PATTERNS, PRINTS AND SPECIFICATIONS TO STUDY IN REGARD TO PREPARATION OF BIDS FOR FUTURE PROCUREMENTS. MOREOVER, IN ITS LETTER MAKING SUCH REQUEST, STEIN STATED THAT THEY "FULLY UNDERSTAND THE JUSTIFICATION FOR THE AWARD (ON TAF-NEG 6 TO FOSTER).' STEIN FURTHER STATED THAT ITS REPRESENTATIVES WOULD COME TO THE DEPOT AT A FUTURE DATE TO DISCUSS THIS MATTER WITH THE CONTRACTING OFFICER.

"TAF 30-352-53-125:

"ON THIS PROCUREMENT FOR 27,000 ARMOR VESTS STEIN BROS. WAS LOW BIDDER. HOWEVER A PRE-AWARD SURVEY WAS MADE ON 23 JANUARY 1953 BY MR. PAVESE, INDUSTRIAL SPECIALIST, WHO RECOMMENDED THAT STEIN BROS. BE GIVEN "NO PART OF THE CONTEMPLATED AWARD OF ARMOR VEST M-1952, BECAUSE THE EQUIPMENT INTENDED TO BE USED FOR LAMINATION IS NOT SATISFACTORY NOR APPARENTLY COULD IT BE CONVERTED SATISFACTORILY.' ON 28 JANUARY 1953, THE CHIEF OF THE INSPECTION DIVISION VISITED STEIN'S PLANT AND OBSERVED "THAT THIS COMPANY HAS NO EQUIPMENT SUITABLE FOR LAMINATION OF THIS VEST.' FURTHERMORE, ON 12 FEBRUARY 1953, A COMMUNICATION WAS RECEIVED AT PHILADELPHIA QUARTERMASTER DEPOT FROM WM. J. LAWSON, SDPA, REPRESENTATIVE- IN-CHARGE, WHO STATED AS FOLLOWS:

" "THIS OFFICE HAS BEEN ADVISED BY OUR WASHINGTON, D.C., OFFICE THAT SDPA WILL NOT ISSUE A CERTIFICATE OF COMPETENCY TO STEIN BROS. MFG. CO., CHICAGO, ILL. IN CONNECTION WITH THE CURRENT PROCUREMENT OF SUBJECT ITEMS.'

"ON THE BASIS OF THE ABOVE, THE BID OF STEIN WAS REJECTED PURSUANT TO THE PROVISIONS OF APP 2-403 I/1) AND APP 1-357 (10) (NON RESPONSIBILITY), AND AWARD WAS MADE TO THE NEXT LOW BIDDER, TEXTRON CO., INC. ON 12 FEBRUARY 1953 UNDER CONTRACT DA 30-352-TAP 600. IT IS THE FURTHER UNDERSTANDING OF THIS OFFICE THAT IN FEBRUARY 1953, STEIN BROS. FILED A FORMAL PROTEST ON THIS PROCUREMENT WITH THE COMPTROLLER GENERAL, CASE B-113923, BUT WITHDREW SAME BEFORE FINAL RESOLUTION.

"TAP 30-352-53-552:

"STEIN BROS. WAS LOW BIDDER FOR THIS PROCUREMENT AND RECEIVED AWARD FOR ENTIRE QUANTITY OF 134,000 VESTS UNDER CONTRACT DA 30-352-TAP 1708. STEIN WAS SLIGHTLY DELINQUENT IN THE PERFORMANCE OF ITS DELIVERY SCHEDULES UNDER THIS CONTRACT AND RECEIVED SEVERAL DEVIATIONS INCLUDING PERMISSION TO USE THE SHAPER PATTERN IN LIEU OF THE CUTTING PATTERN, BUT IN GENERAL ITS PERFORMANCE HEREUNDER WAS SATISFACTORY.

"Q, 30-280-54-254:

"L. W. FOSTER SPORTSWEAR CO., INC. WAS LOW BIDDER ON THIS PROCUREMENT OF 68,000 VESTS. A PRE-AWARD SURVEY INDICATED THAT FOSTER WOULD BE UNABLE TO PRODUCE THE ENTIRE AMOUNT REQUIRED BY THE FIRST MONTH'S DELIVERY SCHEDULE BECAUSE OF THE TIME NEEDED TO PERFORM PRE PRODUCTION STEPS. ACCORDINGLY, IT WAS DEEMED NECESSARY TO SPLIT THE AWARD BETWEEN FOSTER AND THE NEXT LOW BIDDER, STEIN BROS.; CONTRACT DA 30-280-QM-34419 WAS AWARDED TO FOSTER FOR 34,000 VESTS, AND CONTRACT DA 30-280-QM-34420 WAS AWARDED TO STEIN BROS. FOR 34,000 VESTS. PERFORMANCE OF BOTH CONTRACTORS WAS SATISFACTORY AND BOTH CONTRACTORS WERE GRANTED PERMISSION TO DEVIATE FROM USE OF THE CUTTING PATTERN.

"QM 30-280-54-346:

"L. W. FOSTER SPORTSWEAR CO., INC. WAS LOW BIDDER ON THIS PROCUREMENT FOR 75,000 VESTS AND RECEIVED AWARD FOR THE ENTIRE QUANTITY UNDER CONTRACT DA 30-280-QM-65. STEIN FILED A PROTEST TO THIS AWARD WHICH WAS DENIED BY THE OFFICE OF THE QUARTERMASTER GENERAL ON 3 MAY 1954, AND STEIN TOOK NO APPEAL FROM THIS DENIAL.

"QM 36-030-55-4:

"L. W. FOSTER SPORTSWEAR CO., INC. WAS LOW BIDDER AND ON 7 SEPTEMBER 1954 RECEIVED AWARD FOR THE ENTIRE QUANTITY OF 9,730 VESTS UNDER CONTRACT DA 36 -030-QM-4424. NO PROTEST WAS FILED BY STEIN ON THIS PROCUREMENT.'

UNDER THE PROVISIONS OF INVITATION NO. QM-36-030-55-860, THE ONLY INVITATION PRESENTLY AVAILABLE, IT IS APPARENT THAT THE SAVINGS TO THE GOVERNMENT ON THE ALLOWABLE GOVERNMENT-FURNISHED MATERIAL WAS FOR CONSIDERATION IN EVALUATING THE BIDS RECEIVED IN RESPONSE TO THAT INVITATION. AS STATED IN THE REPORT FURNISHED BY THE DEPARTMENT OF THE ARMY THE COST OF GOVERNMENT-FURNISHED MATERIAL IN EXCESS OF THE QUANTITIES INDICATED BY THE BIDDER TO BE ITS REQUIREMENTS IS CHARGEABLE TO THE BIDDER AT A PRICE SUFFICIENT TO REIMBURSE THE GOVERNMENT. THE INVITATION STATED THAT THE GOVERNMENT'S CALCULATED ALLOWANCES WERE FURNISHED AS A GUIDE ONLY. MANIFESTLY, THIS WAS DONE IN ANTICIPATION OF THE FACT THAT SOME BIDDERS MIGHT BE ABLE TO USE THE MATERIAL MORE EFFICIENTLY THAN CONTEMPLATED BY THE TECHNICAL COMPUTATIONS UPON WHICH SUCH ALLOWANCES WERE BASED.

CONTRARY TO YOUR ALLEGATIONS, IT DOES NOT APPEAR FROM THE RECORD THAT THE EVALUATION OF BIDS BY TAKING INTO CONSIDERATION SAVINGS OF GOVERNMENT- FURNISHED MATERIAL WAS UNFAIR TO ANY BIDDERS. THE PROCUREMENTS WERE FOR THE MOST PART PURSUANT TO SEALED BIDS WHICH APPLIED THE SAME EVALUATIONS, AND THE SAVINGS OF GOVERNMENT-FURNISHED MATERIAL WERE NOT GIVEN ANY GREATER WEIGHT THAN REQUIRED BY THE TERMS OF THE INVITATIONS.

WITH REGARD TO YOUR CONTENTION THAT FOSTER WAS NOT A QUALIFIED AND RESPONSIBLE BIDDER, THE DETERMINATION AS TO WHETHER A BIDDER IS QUALIFIED IS PRIMARILY A RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY CONCERNED. SEE O-BRIEN V. CARNEY, 6 F.SUPP. 761. THE DEPARTMENT OF THE ARMY IN EFFECT REPORTS THAT FOSTER IS FINANCIALLY AND OTHERWISE CAPABLE OF PRODUCING THE ARMOR VESTS IN ACCORDANCE WITH THE EXPRESS TERMS OF THE CONTRACTS INVOLVED.

WE HAVE CAREFULLY CONSIDERED ALL OF THE CONTENTIONS PRESENTED BY YOU AND ALL THE REPORTED FACTS, IN THE LIGHT OF THE APPLICABLE LAW, AND WE HAVE CONCLUDED THAT WE HAVE NO ALTERNATIVE BUT TO HOLD THAT THOSE FACTS PRESENT NO SUFFICIENT BASIS FOR RAISING ANY OBJECTION TO THE ADMINISTRATIVE PROCEDURE FOLLOWED IN THE MATTER.