B-140911, DEC. 3, 1959

B-140911, DEC. 3, 1959

TO L. W. FOSTER SPORTSWEAR CO., INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 3, AND TO LETTER OF NOVEMBER 23, 1959, PROTESTING AGAINST THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. QM (CTH/-36-243-59-HEG 539, AND THE AWARD OF A CONTRACT THEREUNDER TO ANOTHER SOURCE OF SUPPLY. ALSO, REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 7 AND 23, 1959, STATING THAT THE INFORMATION REQUESTED IN YOUR LETTER OF OCTOBER 7, 1959, TO THE CONTRACTING OFFICER HAS NOT BEEN FURNISHED; THAT IN THE ABSENCE OF SUCH INFORMATION YOU ARE UNABLE TO SUBMIT A PROPERLY DOCUMENTED COMPLAINT; AND, THAT IN OUR CONSIDERATION OF THE MATTER YOU REQUEST THAT WE TAKE FULL COGNIZANCE OF THE INFORMATION WHICH YOU HERETOFORE REQUESTED FROM THE PROCUREMENT OFFICIALS.

THE RECORD BEFORE US DISCLOSES THAT CONTRACT NO. DA-36-243-/QM-CTH/ 2312, WAS AWARDED TO YOU ON MAY 21, 1958, CALLING FOR THE FABRICATION AND DELIVERY OF 16,328 MEN'S LEATHER FLYING JACKETS, TO BE MOTH REPELLENT TREATED; THAT THE CONTRACT WAS MODIFIED SEVERAL TIMES DURING PERFORMANCE AT YOUR REQUEST TO AUTHORIZE ACCEPTANCE OF SUBSTANDARD ARTICLES; THAT THE COMPLETION DATE WAS EXTENDED AT YOUR REQUEST BECAUSE OF YOUR FAILURE TO COMPLY WITH THE AGREED DELIVERY SCHEDULE; AND, THAT ULTIMATELY, BY LETTER OF MAY 13, 1959, THE CONTRACTING OFFICER WAS REQUIRED TO TERMINATE YOUR RIGHT TO PROCEED WITH PERFORMANCE OF THE CONTRACT WORK BECAUSE OF YOUR INABILITY TO SUPPLY 5,169 ACCEPTABLE GARMENTS TO COVER THE UNDELIVERED QUANTITY. THE SUBJECT PROCUREMENT IS TO OBTAIN THE 5,169 JACKETS REQUIRED BECAUSE OF YOUR PARTIAL DEFAULT UNDER THE CITED CONTRACT.

IT FURTHER APPEARS THAT WHEN PROPOSALS WERE SOUGHT FOR THE PURPOSE OF OBTAINING THE UNDELIVERED BALANCE OF THE JACKETS UNDER A REPLACING CONTRACT, YOU SUBMITTED AN OFFER OF $17.76 PER JACKET, BEING THE SAME UNIT PRICE STIPULATED IN THE REFERRED-TO CONTRACT UNDER WHICH YOU DEFAULTED. HOWEVER, BY COVERING LETTER DATED JUNE 22, 1959, WITH WHICH YOU SUBMITTED YOUR BID, YOU QUALIFIED YOUR OFFER BY STATING THAT "THE JACKETS WE INTEND TO DELIVER AGAINST THIS PROCUREMENT ARE THOSE THAT WERE MANUFACTURED AGAINST OUR PREVIOUS CONTRACT," AND "IT IS REQUESTED THE GOVERNMENT RECOGNIZE THE CONTRACTING TESTING CERTIFICATIONS, WAIVERS, AND OTHER ACCEPTANCES EFFECTED UNDER THE TWO NAMED CONTRACTS, WITH APPROVED USE OF ALL MATERIALS IN MANUFACTURE AS WELL AS THE PACKAGING, PACKING AND MARKING REQUIREMENTS.' SINCE THE CONTRACTING OFFICER KNEW THAT THE ARTICLES WHICH YOU IDENTIFIED AND CONTEMPLATED FURNISHING WOULD NOT COMPLY WITH THE ADVERTISED SPECIFICATIONS YOUR OFFER, WHICH WAS IN THE NATURE OF A COUNTER OFFER, WAS REJECTED, AND AWARD WAS MADE TO THE LOWEST RESPONSIVE BIDDER.

YOU CONTEND THAT THE REPLACING CONTRACT SHOULD HAVE BEEN AWARDED TO YOU FOR THE REASON THAT: (1) YOUR BID WAS $12,712.77 LOWER THAN THE OFFER OF CALIFORNIA SPORTSWEAR COMPANY; (2) YOU HAVE SUPPLIED THE GOVERNMENT WITH 48,000 JACKETS OVER THE PAST 15 YEARS; (3) YOU WERE THE ONLY BIDDER OFFERING TO COMPLY WITH THE DELIVERY SCHEDULE; AND, THAT THE CONTRACTING OFFICER DID NOT RECOGNIZE THE LOWEST RESPONSIVE PROPOSAL. THE CONTENTIONS YOU MAKE ARE, IN OUR OPINION, IMMATERIAL, AND AFFORD NO PROPER BASIS FOR CONSIDERING YOUR BID SINCE, AS HEREINBEFORE STATED, YOU DID NOT OFFER TO COMPLY WITH THE TERMS AND CONDITIONS OF THE INVITATION, BUT IN LIEU THEREOF QUALIFIED YOUR BID BY OFFERING JACKETS KNOWN TO BE UNACCEPTABLE. IN REGARD TO THE DELIVERY SCHEDULE, THE CALIFORNIA SPORTSWEAR COMPANY OFFERED TO COMPLY THEREWITH; HOWEVER, IT OFFERED, AS AN ALTERNATE PROPOSAL, TO FURNISH THE JACKETS AT REDUCED PRICES IN EXCHANGE FOR A MORE RELAXED DELIVERY SCHEDULE WHICH OFFER WAS ACCEPTED, THEREBY MITIGATING THE EXCESS COSTS INCURRED BY THE GOVERNMENT AND CHARGEABLE TO YOUR ACCOUNT.

WITH RESPECT TO THE INFORMATION AND COPIES OF DOCUMENTS REQUESTED FROM THE ADMINISTRATIVE OFFICE, AS ITEMIZED A TO K IN YOUR LETTER OF OCTOBER 7, 1959, TO THE CONTRACTING OFFICER, WE FIND THAT SUCH INFORMATION AND MATERIAL, EXCEPT FOR THE PERTINENT FACTS AND CIRCUMSTANCES SET FORTH ABOVE, IS OF NO PROBATIVE VALUE TO THE ISSUES INVOLVED IN THE REJECTION OF YOUR BID AND THE AWARD OF THE INSTANT CONTRACT TO CALIFORNIA SPORTSWEAR COMPANY. IT MAY BE OBSERVED THAT THE UNITED STATES IS NOT REQUIRED TO PURCHASE SUPPLIES MERELY BECAUSE THEY ARE OFFERED AT THE LOWEST PRICE WHEN IT IS KNOWN TO THE CONTRACTING AGENCY THAT SUCH SUPPLIES DO NOT CONFORM TO THE SPECIFICATIONS AND CONDITIONS OF THE PARTICULAR INVITATION.

IN VIEW OF THE FACTS AND CIRCUMSTANCES OF RECORD, IT MUST BE CONCLUDED THAT YOUR PROTEST FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE ACTION TAKEN BY THE ADMINISTRATIVE OFFICE.