B-152724, MAR. 10, 1964

B-152724, MAR. 10, 1964

TO THE ELECTRICAL SPECIALTIES COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 15, 1963, PROTESTING THE REFUSAL OF THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, ROBINS AIR FORCE BASE, GEORGIA, TO AWARD THE SMALL BUSINESS SET-ASIDE PORTION OF INVITATION FOR BIDS NO. 09-603-63-730, TO YOUR FIRM.

THE INVITATION CALLED FOR BIDS ON 131 ITEMS OF TUBE SHIELD KITS, IN ACCORDANCE WITH SPECIFICATION MIL-S-9372, AS AMENDED. THE INVITATION ADVISED PROSPECTIVE BIDDERS THAT AN ADDITIONAL QUANTITY EQUAL TO THE ADVERTISED QUANTITY HAD BEEN SET-ASIDE FOR AWARD ONLY TO ONE OR MORE SMALL BUSINESS FIRMS. EIGHT BIDS WERE RECEIVED RANGING IN PRICE FROM $129,627.39 TO $327,019.56. INTERNATIONAL ELECTRONIC RESEARCH CORPORATION, BURBANK, CALIFORNIA, A LARGE BUSINESS, SUBMITTED THE LOW BID. ON SEPTEMBER 13, 1963, AN AWARD IN THE AMOUNT OF $129,627.39 WAS MADE TO THAT FIRM FOR THE ADVERTISED PORTION OF THE REQUIREMENT. YOU CERTIFIED YOURSELF AS A SMALL BUSINESS FIRM AND SUBMITTED A BID IN THE AMOUNT OF $151,703.95.

THE INVITATION PROVIDED THAT NEGOTIATIONS FOR AWARD OF THE SET-ASIDE PORTION WERE TO BE CONDUCTED ONLY WITH RESPONSIBLE SMALL BUSINESS CONCERNS WHO HAD SUBMITTED RESPONSIVE BIDS ON THE NON-SET-ASIDE PORTION AT A PRICE WITHIN 120 PERCENT OF THE HIGHEST AWARD MADE ON THE NON-SET ASIDE PORTION. YOU CONTEND THAT THE HIGHEST AWARD MADE ON THE NON-SET ASIDE PORTION WAS $129,627.39; THAT SINCE YOUR BID ON THE NON-SET ASIDE PORTION WAS 116.4 PERCENT OF THE HIGHEST AWARD MADE ON THE NON SET-ASIDE PORTION, YOU WERE ELIGIBLE FOR THE SET-ASIDE.

HOWEVER, IN YOUR BID YOU STATED THAT YOUR PRICE PROVIDED FOR THE FURNISHING OF SUPPLIES WITH ,PRESERVATION IN ACCORDANCE WITH GROUP 29 OF APPENDIX B TO AFLCM 71-2.' THE CONTRACTING OFFICER REJECTED THIS BID AS NONRESPONSIVE TO THE PRESERVATION REQUIREMENTS OF THE INVITATION. YOUR BID FURTHER STATED THAT PACKAGING AND PACKING IN ACCORDANCE WITH METHOD 1A8, 1 EACH PER UNIT PECK, WOULD BE FURNISHED PROVIDED AN ADDITIONAL $0.4 WAS ADDED TO YOUR BID PRICE FOR EVERY TUBE SHIELD DELIVERED. YOUR TOTAL BID PRICE, ON THE LATTER BASIS, AMOUNTED TO $169,915.47. THIS ALTERNATIVE BID WAS MORE THAN 120 PERCENT OF THE HIGHEST PRICE FOR WHICH AN AWARD WAS MADE AND WAS THEREFORE NOT CONSIDERED FOR AWARD OF THE SET-ASIDE PORTION OF THIS PROCUREMENT. AS NO BIDS WERE ELIGIBLE FOR THE SET-ASIDE PORTION OF THE PROCUREMENT, THAT PORTION OF THE INVITATION WAS CANCELLED AND THE SMALL BUSINESS SET-ASIDE WAS WITHDRAWN. BIDS WERE THEN SOLICITED FROM ALL INTERESTED FIRMS ON THIS PORTION OF THE ORIGINAL PROCUREMENT UNDER INVITATION FOR BIDS NO. 09-603-64-555. NO BID WAS RECEIVED FROM YOUR FIRM UNDER THIS LATTER INVITATION.

YOU ALLEGE THAT THE PRESERVATION REQUIREMENTS OF INVITATION NO. 09 603-63 -730, WERE LOOSELY STATED AND THAT YOUR BID OF $151,703.95, OFFERING TO FURNISH "PRESERVATION IN ACCORDANCE WITH GROUP 29 OF APPENDIX B TO AFLCM 71-2," WAS FULLY RESPONSIVE TO THE PRESERVATION REQUIREMENTS, AND THEREFORE THAT YOU SHOULD RECEIVE THE CONTRACT FOR THE SET-ASIDE PORTION. THE INVITATION STATES THAT "PRESERVATION" AND PACKAGING SHALL BE ACCOMPLISHED IN ACCORDANCE WITH SPECIFICATION MIL-P 116 AND APPENDIXES OF AFLCM 71-2. ITEMS 1 THROUGH 131 QUP (QUANTITY UNIT PACK/--- 1 LEVEL " THE ADMINISTRATIVE OFFICE STATES THAT NO BIDDER COULD COMPLY WITH THIS REQUIREMENT WITHOUT PRIMARILY CONCERNING ITSELF WITH APPENDIX 1 OF AFLCM 71-2 WHICH COVERS "PRESERVATION, PACKAGING, AND MARKING OF PARTS KITS," SINCE THE ITEMS TO BE PACKAGED WERE PARTS KITS. APPENDIX 1 STATES THAT "IN INSTANCES INVOLVING ITEMS COVERED BY * * * SPECIFICATIONS * * * THE REQUIREMENT OF THE APPLICABLE SPECIFICATION * * * WILL APPLY.' PARAGRAPH 5.1 OF SPECIFICATION MIL-S-9372 AS AMENDED, THE APPLICABLE SPECIFICATION, REQUIRES THAT SHIELDS BE INDIVIDUALLY PRESERVED AND PACKAGED IN ACCORDANCE WITH METHOD 1A. AIR FORCE TECHNICAL PERSONNEL AFTER REVIEWING THE PACKAGING REQUIREMENTS CONCLUDED THAT THE PACKAGING REQUIREMENTS OF THE INVITATION ARE ADEQUATE, FURNISH SUFFICIENT INFORMATION TO THE BIDDERS, AND ARE NOT SUBJECT TO QUESTIONABLE INTERPRETATION. THEY ALSO DETERMINED THAT PRESERVATION IN ACCORDANCE WITH GROUP 29 OF APPENDIX B TO AFLCM 71-2 FAILS TO MEET THIS REQUIREMENT OF THE INVITATION. AS YOUR BID IN THE AMOUNT OF $151,703.95 WAS NONRESPONSIVE TO SUCH REQUIREMENT, IT COULD NOT BE CONSIDERED FOR AN AWARD OF THE SET-ASIDE PORTION OF THE PROCUREMENT.

WE HAVE CAREFULLY CONSIDERED THE PROVISIONS OF THE PACKAGING SPECIFICATIONS CITED, IN THE LIGHT OF YOUR CONTENTIONS AND OF THE STATEMENTS OF THE AIR FORCE TECHNICAL PERSONNEL, AND CAN FIND NO ADEQUATE BASIS FOR DISAGREEING WITH THE AIR FORCE POSITION.

WHILE YOUR ALTERNATE BID OFFERING TO PRESERVE AND PACKAGE THE SUPPLIES IN ACCORDANCE WITH METHOD 1A8 FOR THE ADDITIONAL PRICE OF ?04 FOR EACH SHIELD WAS DETERMINED TO MEET THE REQUIREMENTS OF THE INVITATION, YOUR BID OF $169,915.47 FOR FURNISHING THIS TYPE OF PRESERVATION AND PACKAGING IS MORE THAN 120 PERCENT OF THE PRICE OF THE HIGHEST AWARD MADE ON THE ADVERTISED PORTION AND ACCORDINGLY YOU ARE NOT ELIGIBLE FOR NEGOTIATION FOR THE SET- ASIDE PORTION ON THE BASIS OF SUCH BID.