B-152396, OCT. 28, 1963

B-152396, OCT. 28, 1963

TO DALMO VICTOR COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 30 AND OCTOBER 14, 1963, PROTESTING AGAINST THE MAKING OF ANY AWARD OTHER THAN TO YOUR FIRM UNDER INVITATION FOR BIDS NO. 383-1030-63.

THE NAVAL AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA, BY THE REFERRED-TO INVITATION REQUESTED BIDS FOR FURNISHING VARIOUS QUANTITIES OF CERTAIN COMPONENTS OF THE AN/ASQ-10A DETECTING SET, TOGETHER WITH CHANGE PAGES TO TECHNICAL MANUALS, REVISION DRAWINGS, DESIGN DATA AND PROVISIONING DATA. THE INVITATION FOR BIDS DID NOT PROVIDE FOR THE FURNISHING BY THE GOVERNMENT OF ANY TOOLING. IN RESPONSE THE EMERSON ELECTRIC MFG. COMPANY SUBMITTED A TOTAL BID OF $255,795.50 WHICH INCLUDED THE SUM OF $44,500 FOR NONRECURRING TOOLING COSTS. WITH REGARD TO THE TOOLING COST EMERSON ENTERED ON ITS BID THE FOLLOWING STATEMENT:

"PRICE IS BASED ON AVAILABILITY OF DIES, PATTERNS AND MOLDS. THE TOTAL NON-RECURRING PRICE OF 44,500 CAN BE ELIMINATED IF TOOLING IS AVAILABLE.'

IN YOUR LETTERS YOU CONTEND THAT EMERSON SUBMITTED A NONRESPONSIVE BID BECAUSE ITS PRICE WAS BASED ON AVAILABILITY OF DIES, PATTERNS AND MOLDS. YOU STATE, THEREFORE, THAT LACKING EVIDENCE THAT IT HAD THESE IN ITS POSSESSION (WHICH YOU ALLEGE YOU KNOW IS NOT THE CASE) THE BID BECOMES NONRESPONSIVE. YOU ALSO CONTEND THAT THE TOOLING REQUIRED FOR THE CONTRACT CONSISTS OF SUBSTANTIALLY MORE THAN DIES, PATTERNS AND MOLDS AND THAT THE $44,500 REFERS TO TOOLS OTHER THAN THESE.

WE CANNOT AGREE THAT THE BID OF EMERSON IS NONRESPONSIVE TO THE INVITATION. WHILE, STANDING ALONE, THE FIRST SENTENCE OF THE ABOVE QUOTED STATEMENT APPEARING ON EMERSON'S BID MIGHT INDICATE THAT THE PRICE BID WAS BASED ON THE AVAILABILITY OF DIES, PATTERNS AND MOLDS WE THINK THAT WHEN THE LANGUAGE OF THE SENTENCE IS READ IN CONJUNCTION WITH THE LAST SENTENCE OF THE STATEMENT IT IS CLEAR THAT EMERSON WAS CONSIDERING THE DIES, PATTERNS AND MOLDS AS THE TOOLING IT WOULD REQUIRE TO PERFORM THE CONTRACT. IT IS ALSO CLEAR THAT IF THESE WERE FURNISHED BY THE GOVERNMENT, EMERSON INTENDED TO REDUCE ITS TOTAL PRICE BY $44,500.

WE AGREE WITH YOU THAT BIDDERS WERE ADVISED IN THE INVITATION FOR BIDS THAT GOVERNMENT PROPERTY WOULD NOT BE FURNISHED TO THE SUCCESSFUL BIDDER. CONSEQUENTLY, WE ARE OF THE VIEW, AS WAS THE CONTRACTING OFFICER, THAT THE BID OF EMERSON WAS RESPONSIVE TO THE INVITATION FOR BIDS. THE ABOVE- QUOTED STATEMENT PROPERLY SHOULD BE CONSTRUED AS AN OFFER BY EMERSON TO FURNISH THE REQUIRED ARTICLES AT A TOTAL PRICE OF $255,795.50, TOGETHER WITH AN UNSOLICITED OPTION TO REDUCE THE TOTAL BID PRICE BY THE AMOUNT OF $44,500 SHOULD THE GOVERNMENT BE IN A POSITION TO AND DESIRE TO FURNISH EMERSON WITH THE NONRECURRING TOOLING THAT WOULD BE REQUIRED TO PERFORM THE CONTRACT. THE BID OF EMERSON IS LOW WITHOUT CONSIDERATION OF THE OPTION, NOT BECAUSE OF IT. WE HAVE HELD THAT THE MAKING OF AN UNACCEPTABLE "ALTERNATE" BID DOES NOT PRECLUDE CONSIDERATION OF THE OTHER PROPOSALS SUBMITTED IN THE SAME BID WHICH CONFORM TO THE REQUIREMENTS OF THE SPECIFICATIONS. SEE 33 COMP. GEN. 499, 501.

ACCORDINGLY, WE DO NOT PERCEIVE ANY LEGAL BASIS UPON WHICH WE COULD OBJECT TO THE AWARD OF A CONTRACT TO EMERSON ON THE BASIS OF ITS FIRM PRICE OF $255,795.50.