B-153538, APR. 9, 1964

B-153538, APR. 9, 1964

TO AERO ENGINEERING AND MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 14, 1964, PROTESTING THE ACTION OF THE AIR FORCE IN REJECTING ALL BIDS RECEIVED UNDER INVITATION FOR BIDS 04-606-64-82, OPENED ON NOVEMBER 5, 1963, AND IN READVERTISING FOR NEW BIDS ON THE SAME ITEMS UNDER AMENDED SPECIFICATIONS.

THIS INVITATION REQUESTED QUOTATIONS FOR FURNISHING 155 PLASTIC PANELS, LOCKHEED AIRCRAFT CORPORATION PART NUMBER 312305-4 FOR C-121 AIRCRAFT, IN ACCORDANCE WITH LOCKHEED SPECIFICATIONS LAC 1-848. SIX BIDS WERE RECEIVED, RANGING FROM $6,196 TO $13,503, THAT OF YOUR COMPANY BEING THE LOWEST. IN THE COURSE OF VERIFYING THE COMPOSITION OF ITEMS OFFERED, A QUESTION AROSE AS TO WHETHER THE PLASTIC MATERIAL CONFORMED TO STATED REQUIREMENTS. IT WAS ASCERTAINED THAT LOCKHEED SPECIFICATION LAC 1-848 HAD BEEN SUPERSEDED BY SPECIFICATION MIL-P 8257 (QPL 8257-1 DATED OCTOBER 17, 1958) AND THAT YOUR COMPANY HAD BID ON AND PROPOSED TO FURNISH MATERIALS UNDER MIL-P-8184 (QPL 8184-2 DATED OCTOBER 9, 1958). THE PRODUCTION AND ENGINEERING BRANCH DETERMINED THAT THE PLASTIC SHEETS UNDER MIL-P-8184 WOULD NOT QUALIFY UNDER MIL-P-8257 WITHOUT PASSING THE ADDITIONAL TESTS REQUIRED FOR THE LATTER, THAT THE PROPOSAL THEREFORE DID NOT MEET THE REQUIREMENTS OF PART NUMBER 312305-4 CALLED FOR BY THE INVITATION, AND THAT YOUR BID CONSEQUENTLY DID NOT MEET THE STANDARDS FIXED BY IT.

ALTHOUGH FURTHER TECHNICAL STUDY INDICATED THAT THE NEEDS OF THE AIR FORCE COULD BE SATISFIED BY USING MATERIAL MEETING SPECIFICATION MIL-P- 8184, AS OFFERED, IT APPEARED THAT ALL BIDDERS HAD NOT HAD AN EQUAL OPPORTUNITY TO BID ON THE SUBSTITUTE MATERIAL AS WELL AS ON THE SPECIFIED MATERIAL, THAT THE INVITATION WAS OTHERWISE DEFICIENT BECAUSE IT DID NOT INCLUDE APPLICABLE DRAWINGS AND SPECIFICATIONS OR REFERENCE TO THE POINT AT WHICH SUCH DOCUMENTS WERE AVAILABLE, AND THAT THE GOVERNMENT COULD ACCOMMODATE ITS NEEDS BY PROCURING A LESS EXPENSIVE ITEM THAN THAT ORIGINALLY ADVERTISED. ACCORDINGLY, ON FEBRUARY 5, 1964, ALL BIDDERS WERE NOTIFIED OF THE CANCELLATION AND A REVISED PROCUREMENT WAS ADVERTISED UNDER INVITATION FOR BIDS 04-606-64 139. SEE ASPR 2-404.1 (B) (V).

THE AUTHORITY TO REJECT ALL BIDS AFTER OPENING IS WELL ESTABLISHED. INVOLVES THE EXERCISE OF SOUND ADMINISTRATIVE DISCRETION, WITH WHICH OUR OFFICE WILL NOT INTERFERE EXCEPT IN CASE OF CLEARLY ARBITRARY ACTION. THE DISCLOSURE OF PRICES BID IS A REGRETTABLE INCIDENT OF SUCH ACTION, WHICH SHOULD BE AVOIDED WHEREVER POSSIBLE. HOWEVER, IN THIS INSTANCE THE CONSEQUENCE IS LESS UNDESIRABLE THAN WOULD BE THE ACCEPTANCE OF A BID ON A BASIS OTHER BIDDERS WERE NOT GIVEN AN OPPORTUNITY TO USE, OR THE ACCEPTANCE OF A HIGHER RESPONSIVE BID DESPITE THE LOWER COST OF MATERIAL MEETING THE GOVERNMENT'S NEEDS. SEE 40 COMP. GEN. 352.

FOR THE REASONS DISCUSSED, ALTHOUGH IT IS UNFORTUNATE THAT THE CONTRACTING OFFICER DID NOT LEARN OF THE SUPERSEDED SPECIFICATION PRIOR TO BID OPENING AND THE EXPOSURE OF PRICES, WE ARE UNABLE TO AGREE THAT THE ADMINISTRATIVE ACTION TAKEN WAS IMPROPER. YOUR PROTEST THEREFORE MUST BE DENIED.