B-148900, SEP. 14, 1962

B-148900, SEP. 14, 1962

TO L. J. VAN SICKLE COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 8, 1962, PROTESTING THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. 34- 601-62-434/OCPAS), DATED MARCH 12, 1962, ISSUED BY THE OKLAHOMA CITY AIR MATERIAL AREA, TINKER AIR FORCE BASE, OKLAHOMA.

THE INVITATION, BEARING BID OPENING DATE OF APRIL 12, 1962, REQUESTED BIDS FOR THE MANUFACTURE AND DELIVERY, F.O.B. ORIGIN, OF 1486 HOOD ASSEMBLIES IN ACCORDANCE WITH PRESCRIBED SPECIFICATIONS AND DRAWINGS. THE INVITATION STRESSED THE IMPORTANCE OF DELIVERY WITHIN THE TIME SET FORTH THEREIN AND, IN CONNECTION THEREWITH, ADVISED ALL BIDDERS THAT "IF THE BID SUBMITTED IN RESPONSE TO THIS INVITATION IS FAVORABLY CONSIDERED, A SURVEY TEAM MAY CONTACT YOUR FACILITY FOR THE PURPOSE OF DETERMINING YOUR TECHNICAL AND FINANCIAL ABILITY TO PERFORM," INCLUDING, AMONG OTHER FACTORS TO BE EVALUATED BY THE TEAM, THE "ABILITY TO MEET REQUIRED DELIVERY SCHEDULE.'

THE RECORD SHOWS THAT WHILE, OF THE FOUR BIDS RECEIVED IN RESPONSE TO THE INVITATION, YOUR BID WAS LOW, THE PRE-AWARD SURVEY OF YOUR FIRM, BASED ON FINDINGS OF A CONTINUING HISTORY OF DELINQUENCIES IN MEETING DELIVERY REQUIREMENTS UNDER PRIOR AIR FORCE AWARDS AND THAT THE STEPS TAKEN BY YOUR FIRM TO OVERCOME THIS DEFICIENCY WERE CONSIDERED INADEQUATE TO ASSURE YOUR ABILITY TO COMPLY WITH DELIVERY REQUIREMENTS OF THE CURRENT INVITATION, RESULTED IN THE ISSUANCE OF A NEGATIVE FACILITY CAPABILITY REPORT. YOU WERE ADVISED OF THIS REPORT AND, FOR THE PURPOSE OF DETERMINING WHETHER FURTHER ADMINISTRATIVE ACTION TO OVERCOME THE EFFECTS THEREOF WAS WARRANTED, REQUESTED TO VERIFY THAT YOU COULD, IN FACT, MEET THE REQUIRED DELIVERY SCHEDULE. IN REPLY, BY LETTER OF MAY 1, 1962, YOU STATED, IN EFFECT, THAT, IF PERMITTED CERTAIN DESIGNATED CHANGES FROM THE ADVERTISED SPECIFICATIONS, YOU COULD ACCOMPLISH DELIVERY WITHIN THE REQUIRED TIME. BASED ON THE ADMINISTRATIVE DETERMINATION THAT THESE REQUESTED CHANGES CONSTITUTED MATERIAL DEVIATIONS FROM THE TERMS OF THE INVITATION AND THUS WERE UNAUTHORIZED, THE SECOND LOW BIDDER, NANCE MACHINE AND PAINT COMPANY, AFTER QUALIFYING FOR AN AFFIRMATIVE FACILITY CAPABILITY REPORT, WAS AWARDED THE CONTRACT ON MAY 14, 1962.

YOUR PROTEST TO THE AWARD IS BASED ON THE ALLEGATION THAT THE INVITATION WAS TECHNICALLY AMBIGUOUS; THAT A CONTRACT COULD BE ACCOMPLISHED ONLY BY NEGOTIATION; AND THAT YOUR EFFORT AT NEGOTIATION WERE REJECTED. SUPPORT OF THE ALLEGED AMBIGUITY IN THE INVITATION, YOU CONTEND THAT THE DRAWINGS PRESCRIBED THEREIN AND FURNISHED TO BIDDERS AS MANUFACTURING CRITERIA WERE ILLEGIBLE IN CERTAIN RESPECTS AND WERE NOT THE LATEST REVISION OF SUCH DRAWINGS; AND THAT A MANUFACTURING REQUIREMENT, STATED IN THE INVITATION AS CONTAINED IN "FLAGNOTE 10," WAS NOT INCLUDED IN THE DRAWINGS FURNISHED. IN FURTHER SUPPORT OF YOUR POSITION, YOU CONTEND THAT THE FIRM WHICH HAD MANUFACTURED THE ZIPPER PRESCRIBED IN THE SPECIFICATIONS WAS NO LONGER IN USINESS; THAT THE SUCCESSOR FIRM HAD INDICATED A COMPLETE UNFAMILIARITY WITH THIS ZIPPER; AND THAT YOUR OFFER TO FURNISH A SUBSTITUTE ZIPPER OF EQUAL QUALITY HAD BEEN DENIED.

THE ADMINISTRATIVE REPORT IS TO THE EFFECT THAT, BASED ON THE DETERMINATION THAT THE DRAWINGS FURNISHED TO BIDDERS WERE ADEQUATE TO OBTAIN A PRODUCT MEETING ITS NEEDS, BIDS WERE REQUESTED ON THE BASIS THEREOF AND NOT ON THE LATEST REVISION OF SUCH DRAWINGS; THAT "FLAGNOTE 10," WHILE NOT SHOWN IN THE DRAWINGS FURNISHED, MERELY PROVIDED THAT "HOOD ASSY SHALL FIT HOUSING BEARING 8787," A REQUIREMENT OTHERWISE CLEARLY EVIDENT FROM THE INVITATION; AND THAT, WHILE THE DRAWINGS FURNISHED COULD HAVE BEEN CLEARER, EACH OF THE FOUR FIRMS, INCLUDING YOUR FIRM, WHICH RESPONDED TO THE INVITATION, SUBMITTED UNQUALIFIED BIDS AND NEITHER PRIOR NOR SUBSEQUENT TO THE OPENING OF BIDS INDICATED ANY DOUBT OR UNCERTAINTY AS TO THE REQUIREMENTS OF THE INVITATION. FURTHER, CONCERNING THE OMISSION OF "FLAGNOTE 10" FROM THE DRAWINGS FURNISHED, THE REPORT POINTS OUT THAT YOU COULD NOT HAVE BEEN PREJUDICED THEREBY SINCE THIS FLAGNOTE WAS CONTAINED IN THE LATEST REVISION OF THE DRAWINGS, A COPY OF WHICH IS INDICATED AS HAVING BEEN OBTAINED BY YOU.

SO FAR AS CONCERNS THE ZIPPER PRESCRIBED BY THE INVITATION AND THE REJECTION OF THE CONMAR ZIPPER OFFERED AS A SUBSTITUTE THEREFOR, THE RECORD SHOWS THAT DRAWING 6-26379, FURNISHED WITH THE INVITATION, DESIGNATED UNDER FLAGNOTES 1 AND 6 "CROWN SLIDE FASTENER SIZE 10 PART NO. 31 F-3," AND THAT THE ITEM WAS MANUFACTURED BY THE CROWN FASTENER DIVISION OF THE SPOOL COTTON COMPANY. IN CONNECTION WITH YOUR CONTENTION THAT THE PRESCRIBED TYPE OF ZIPPER WAS NOT AVAILABLE, IT IS ADMINISTRATIVELY REPORTED, AS FOLLOWS:

"THAT PORTION OF THE PROTESTANT'S LETTER, DATED 21 MAY 1962, STATING THAT THE CROWN FASTENER COMPANY IS NO LONGER IN EXISTENCE IS NOT ENTIRELY CORRECT. THIS HEADQUARTERS ASKED THE NANCE MACHINE AND PAINT COMPANY WHERE THEY INTENDED TO OBTAIN THEIR ZIPPERS AND THEY ADVISED "FROM THE CROWN FASTENER PEOPLE.' THE LATEST "THOMAS REGISTER" LISTS--- CROWN FASTENER DIVISION, COATS AND CLARK, INC., 430 PARK AVE., NEW YORK, NEW YORK. WE CONTACTED MR. CRIBB OF THE CROWN FASTENER DIVISION, WHO ADVISED THAT THEIR SIZE 10, P/N 31F-3 ZIPPER, AS LISTED ON THE BOEING DRAWING FURNISHED WITH THE IFB SETS, COULD BE FURNISHED. THIS INFORMATION IS PROVIDED AS IT IS CONTRARY TO THE PROTESTANT'S LETTER WHICH STATES IN PART --- "I HAVE A LETTER FROM CLARK AND COATS, WHO BOUGHT THEM OUT WHICH INDICATES A COMPLETE UNFAMILIARITY WITH THE ZIPPER IN QUESTION.' MR. CRIBBS FURTHER ADVISED THE PRICE TO NON-GOVERNMENT PURCHASERS WOULD BE $127.50 PER HUNDRED AS COMPARED TO MR. VAN SICKLE'S ALTERNATE PROPOSAL ZIPPER CONMAR AT $60.00 PER HUNDRED. THE DELIVERY OF THE CROWN ZIPPER WOULD BE 30 DAYS AFTER RECEIPT OF ORDER.'

WE HAVE CONSISTENTLY HELD THAT THE DRAFTING OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT, AS WELL AS THE DETERMINATION WHETHER THE BIDS RECEIVED OFFER A PRODUCT MEETING SPECIFICATION REQUIREMENTS, IS PRIMARILY THE FUNCTION AND RESPONSIBILITY OF THE AGENCY CONCERNED. 17 COMP. GEN. 554; 38 ID. 71; 40 ID. 294. IN CONFORMITY THEREWITH, IN ANY CASE WHERE DIFFERENCES OF OPINION EXIST AS TO WHETHER SPECIFICATIONS ARE ADEQUATE TO PERMIT OR REQUIRE MANUFACTURE OF A PRODUCT WHICH WILL MEET THE NEEDS OF THE PROCURING AGENCY, THIS OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE AGENCY UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY IS IN ERROR. NO SUCH EVIDENCE IS HERE PRESENTED. TO THE CONTRARY, AS POINTED OUT IN THE ADMINISTRATIVE REPORT, THE ALLEGED AMBIGUITY IN THE INVITATION IS NEGATIVED BY THE FACT THAT THE BIDS RECEIVED, INCLUDING YOUR BID AS INITIALLY AND FORMALLY SUBMITTED, CONTAINED NO EXCEPTION TO THE PRESCRIBED TERMS AND CONDITIONS OR ANY INDICATION OF MISUNDERSTANDING OR CONFUSION AS TO THE SPECIFICATION REQUIREMENTS. UNDER SUCH CIRCUMSTANCES, NEGOTIATION OF THE AWARD, ON THE BASIS OF THE CONDITIONS SUBSEQUENTLY REQUESTED BY YOU, WOULD HAVE BEEN PATENTLY IMPROPER, A VIOLATION OF THE STATUTORY COMPETITIVE BIDDING PROCEDURES, AND THUS WAS PROPERLY DENIED.

SINCE THE REPORTED FACTS DO NOT SUBSTANTIATE YOUR ALLEGATION OF AMBIGUITY IN THE INVITATION AND SINCE THE AWARD, AS REQUIRED BY THE STATUTES GOVERNING PUBLIC PROCUREMENTS, HAS BEEN MADE TO THE LOW RESPONSIVE BIDDER, YOUR PROTEST MUST BE AND IS DENIED.