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B-151020, MAY 31, 1963

B-151020 May 31, 1963
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WHICH MATTER IS THE SUBJECT OF YOUR DEPARTMENT REPORT OF APRIL 25. ITEMS NOS. 1 THROUGH 4 WERE SET FORTH. IF THE CONTRACT IS AWARDED TO A CONTRACTOR CURRENTLY IN PRODUCTION OF THE ITEM ON AN AIR FORCE CONTRACT CONTAINING REQUIREMENTS FOR FIRST ARTICLE APPROVAL. "C. IF THE CONTRACT IS AWARDED TO A CONTRACTOR NOT PRESENTLY IN PRODUCTION OF THE ITEM. WHEN MORE THAN 12 MONTHS HAVE ELAPSED SINCE THE COMPLETION OF A PRIOR CONTRACT. THIS CONDITION SHALL NOT APPLY AND FIRST ARTICLE/S) WILL BE REQUIRED. THE TIME PERIOD WILL BE EXTENDED TO 18 MONTHS BEFORE REQUIREMENT OF FIRST ARTICLE/S).'. OF THE INVITATION PROVISIONS PROVIDED AS FOLLOWS: "FIRST ARTICLE APPLICABILITY: BIDDERS WHO HAVE PREVIOUSLY FURNISHED TO THE GOVERNMENT THE ARTICLES REFERRED TO IN ITEMS 1 AND 3 ABOVE SHALL SUBMIT BID ON BID "B" WHICH DOES NOT INCLUDE COMPLIANCE WITH THE ABOVE FIRST ARTICLE PROVISION.'.

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B-151020, MAY 31, 1963

TO THE SECRETARY OF THE AIR FORCE:

WE REFER TO THE PROTEST OF WHITE PLAINS ELECTRICAL SUPPLY COMPANY, INCORPORATED, UNDER INVITATION FOR BIDS NO. 40-604-63-2583, ISSUED ON NOVEMBER 13, 1962, BY HEADQUARTERS, 2709TH AIR FORCE VEHICLE CONTROL GROUP, MEMPHIS, TENNESSEE, WHICH MATTER IS THE SUBJECT OF YOUR DEPARTMENT REPORT OF APRIL 25, 1963 (REFERENCE: AFSPPGA).

THE INVITATION REQUESTED BIDS ON QUANTITIES OF SPOTLIGHTS OF SEVERAL TYPES, AND ITEMS NOS. 1 THROUGH 4 WERE SET FORTH, IN PART, AS FOLLOWS:

TABLE ITEM NO. SUPPLIER QUANTITY UNIT --------

1 SPOTLIGHT (AS DESCRIBED IN ITEM 2 1 EA

BELOW) FIRST ARTICLE (PREPRODUCTION)

FOR TESTING

2 SPOTLIGHT * * * IN ACCORDANCE WITH

MILITARY SPECIFICATION MIL-S-4510C

DATED 1 SEPT 1961. APPLICABLE TO

TYPE 0-10, R-2, R-2A CRASH FIRE

TRUCKS.

BID "A" --- FIRST ARTICLE TESTING REQUIRED 886 EA

BID "B" --- FIRST ARTICLE TESTING NOT 887 EA

REQUIRED IF BIDDER CAN MEET AN EXCEPTION

OF EXHIBIT "A" HEREIN.

BIDDER TO SPECIFY EXCEPTION A OR C AND

FURNISH PREVIOUS CONTRACT NUMBERS

3 SPOTLIGHT AS DESCRIBED IN ITEM 4 BELOW 1 EA

FIRST ARTICLE (PREPRODUCTION) FOR TESTING

4 SPOTLIGHT * * * IN ACCORDANCE WITH MILITARY

SPECIFICATION MIL-S-4510C DATED 1 SEPTEMBER

1961. APPLICABLE TO F-6 AND MJ-1 FUEL

SERVICING SEMITRAILERS.

BID "A" --- FIRST ARTICLE TESTING REQUIRED 1389 EA

BID "B" --- FIRST ARTICLE TESTING NOT 1390 EA

REQUIRED IF BIDDER CAN MEET AN EXCEPTION OF

EXHIBIT "A" HEREIN.

EXHIBIT A OF THE INVITATION PROVIDED THAT:

"CONDITIONS FOR WAIVER OF FIRST ARTICLE REQUIREMENTS"

FIRST ARTICLE REQUIREMENTS MAY BE WAIVED BY THE CONTRACTING OFFICER UNDER ANY OF THE FOLLOWING CONDITIONS:

"A. IF THE CONTRACT IS AWARDED TO A CONTRACTOR CURRENTLY IN PRODUCTION OF THE ITEM ON AN AIR FORCE CONTRACT CONTAINING REQUIREMENTS FOR FIRST ARTICLE APPROVAL.

"C. IF THE CONTRACT IS AWARDED TO A CONTRACTOR NOT PRESENTLY IN PRODUCTION OF THE ITEM, BUT WHO HAS PREVIOUSLY BEEN GIVEN FIRST ARTICLE APPROVAL, AND WHO PROPOSES TO RE-PRODUCE IDENTICAL ITEMS, USING THE SAME TOOLS, FACILITIES, DESIGN DATA AND COMPONENT TYPES PREVIOUSLY USED. WHEN MORE THAN 12 MONTHS HAVE ELAPSED SINCE THE COMPLETION OF A PRIOR CONTRACT, THIS CONDITION SHALL NOT APPLY AND FIRST ARTICLE/S) WILL BE REQUIRED. HOWEVER, FOR ELECTRONIC PARTS, SUCH AS TUBES, PLUGS, RESISTORS AND CAPACITORS, THE TIME PERIOD WILL BE EXTENDED TO 18 MONTHS BEFORE REQUIREMENT OF FIRST ARTICLE/S).'

PARAGRAPH T. OF THE INVITATION PROVISIONS PROVIDED AS FOLLOWS:

"FIRST ARTICLE APPLICABILITY: BIDDERS WHO HAVE PREVIOUSLY FURNISHED TO THE GOVERNMENT THE ARTICLES REFERRED TO IN ITEMS 1 AND 3 ABOVE SHALL SUBMIT BID ON BID "B" WHICH DOES NOT INCLUDE COMPLIANCE WITH THE ABOVE FIRST ARTICLE PROVISION.'

BID OPENING WAS HELD ON DECEMBER 13, 1962, AND THE FOLLOWING BIDS WERE RECEIVED ON ITEM NOS. 1 THROUGH 4:

TABLE

ITEM NO. 1 ITEM NO. 2 ITEM NO. 3 ITEM NO. 4

BID A BID B BID A BID B

---------- ------------- ---------- ------------ WOMICK FIRE AND SUPPLY CO. 12.22 12.22 -- -- -- - CARPENTER MANUFACTURING COMPANY 15.32 15.32 14.94 17.01 17.01 16.63 WHITE PLAINS ELECTRICAL SUPPLY -- --12.88 -- -- 16.34 ARNOLT CORPORATION

19.54 19.54 -- 19.99 19.99 --

IN EVALUATING THE BIDS IT WAS CONCLUDED THAT WOMICK WAS NONRESPONSIVE. THE NEXT LOW BIDDER, WHITE PLAINS, STATED UNDER ITS BID "B" THAT "ITEMS HAVE BEEN DELIVERED WITHIN LAST 12 MONTH IOD.' THIS STATEMENT REFERS TO CONTRACT NO. (40-604/62-3087, AWARDED TO WHITE PLAINS ON MARCH 12, 1962, BY THE SAME PROCUREMENT OFFICE INVOLVED HERE, CONCERNING THE SAME ITEM WITH THE SAME SPECIFICATION (MIL-S 4510C, DATED SEPTEMBER 1, 1961). THE ITEMS WERE ACCEPTED, AND DELIVERY WAS COMPLETED UNDER THAT CONTRACT; HOWEVER, FIRST ARTICLE APPROVAL WAS NOT REQUIRED, AND THE CONTRACTING OFFICER CONCLUDED THAT WHITE PLAINS DID NOT MEET THE CONDITIONS FOR FIRST ARTICLE TESTING WAIVER SPECIFIED UNDER EXHIBIT A OF THE CURRENT INVITATION.

WHITE PLAINS ALSO HAD A CONTRACT FOR THIS TYPE SPOTLIGHTS IN SEPTEMBER, 1961, WHICH REQUIRED FIRST ARTICLE APPROVAL, BUT THAT CONTRACT WAS PERFORMED UNDER A COMMERCIAL SPECIFICATION, DISTINCT FROM THE SUBJECT MILITARY SPECIFICATION.

CARPENTER WAS ALSO FOUND TO BE NONRESPONSIVE UNDER ITS BID B, BUT UNLIKE WHITE PLAINS, IT HAD BID UNDER BID A; AND, ON JANUARY 22, 1963, IT RECEIVED AN AWARD COVERING ITEM NOS. 1 THROUGH 4, AT A TOTAL PRICE OF $37,232.74. (WHITE PLAINS TOTAL BID FOR THESE ITEMS WAS $34,138.82.)

WHITE PLAINS CONTENDS THAT ITS LOW BIDS ON 2B AND 4B WERE IMPROPERLY REJECTED. THE BIDDER POINTS TO PARAGRAPH T. OF THE INVITATION, QUOTED ABOVE, WHICH INSTRUCTS BIDDERS WHO HAVE PREVIOUSLY FURNISHED THE ARTICLES REFERRED TO IN ITEMS NOS. 1 AND 3 TO BID ON BID "B.' WHITE PLAINS INTERPRETS THIS PROVISION TO MEAN THAT A PREVIOUS SUPPLIER MAY QUALIFY FOR BID "B" WITHOUT PRIOR FIRST ARTICLE APPROVAL. YOUR DEPARTMENT READS PARAGRAPH T. TO MEAN THAT THE BIDDER MUST HAVE PREVIOUSLY FURNISHED AN ARTICLE WITH FIRST ARTICLE APPROVAL IN ORDER TO BID UNDER BID "B.' IN ANY EVENT, YOUR DEPARTMENT BELIEVES THAT EXHIBIT A SHOULD CONTROL, AND IT CLEARLY REQUIRES PRIOR FIRST ARTICLE APPROVAL FOR BID "B.' WE AGREE THAT EXHIBIT A SHOULD CONTROL FOR THE REASON THAT THE BID SCHEDULE, BID "B," QUOTED ABOVE, REFERS THE READER TO EXHIBIT A, AND NOT TO PARAGRAPH T, FOR FIRST ARTICLE WAIVER REQUIREMENTS.

WHITE PLAINS ADVISES THAT THE MARCH 1962 PROCUREMENT WAS THE FIRST PROCUREMENT BY THIS CONTRACTING OFFICE WHICH INCORPORATED MIL-S-4510C, DATED SEPTEMBER 1, 1961. THE BIDDER STATES THAT SINCE THE PRIOR PROCUREMENT DID NOT CALL FOR FIRST ARTICLE TESTING UNDER THE INTERPRETATION FOLLOWED BY YOUR DEPARTMENT NO BIDDER COULD POSSIBLY QUALIFY UNDER BID "B.' WHITE PLAINS POINTS OUT, ALSO, THAT IT PERFORMED THE MARCH 1962 CONTRACT UNDER THE PRESENT MILITARY SPECIFICATION WHICH CONTAINS PROVISION FOR PREPRODUCTION TESTS AND PRODUCTION INSPECTIONS. THE BIDDER CONTENDS THAT IT SHOULD NOT MATTER WHETHER THE PRIOR CONTRACT CONTAINED A FIRST ARTICLE TESTING REQUIREMENT AS LONG AS PERFORMANCE WAS SUCCESSFULLY COMPLETED. IT CONCLUDES THAT THE REJECTION OF ITS BID B WAS UNREASONABLE AND IMPROPER.

YOUR CONTRACTING OFFICER STATES THAT BID B COULD WELL HAVE APPLIED IN THE CASE OF A BIDDER WHO HAD FURNISHED THESE ITEMS TO OTHER ACTIVITIES UNDER FIRST ARTICLE PROCEDURES. HE ALSO STATES THAT THE FIRST ARTICLE PROCEDURE WHEREBY THE CONTRACTOR PERFORMS THE TESTS, IS NOT THE SAME AS THE SPECIFICATION TESTS WHEREBY THE GOVERNMENT APPROVES SAMPLES. WE MUST SAY THAT WE FAIL TO SEE A SIGNIFICANT DIFFERENCE BETWEEN THESE PROCEDURES IN TERMS OF THE ARTICLE WHICH IS RECEIVED. YOUR DEPARTMENT WAS WILLING TO WAIVE FIRST ARTICLE APPROVAL ON THIS PROCUREMENT IF SUCH APPROVAL HAD BEEN OBTAINED BY A BIDDER ON THE IDENTICAL ITEM WITHIN THE LAST 12 MONTHS. DO NOT UNDERSTAND WHY IT WAS NECESSARY TO INSIST UPON FIRST ARTICLE APPROVAL WHERE THE BIDDER WAS ABLE TO SATISFACTORILY PERFORM A PRODUCTION RUN WITHIN THE SAME PERIOD.

HOWEVER, WE RECOGNIZE THAT YOUR CONTRACTING OFFICER REJECTED THE WHITE PLAINS BID IN OSTENSIBLE COMPLIANCE WITH THE TERMS OF EXHIBIT A OF THE INVITATION. THE CONTRACTOR IS PERFORMING THE WORK, AND WHILE WE BELIEVE THAT THE FIRST ARTICLE TESTING REQUIREMENT SHOULD HAVE BEEN WAIVED WITH REGARD TO WHITE PLAINS, UNDER THE CIRCUMSTANCES, WE DO NOT DEEM IT NECESSARY TO DISTURB THE AWARD.

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