B-156544, JUN. 4, 1965

B-156544, JUN. 4, 1965

TO THE SINGER COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF APRIL 14 AND 19, 1965, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. IFB-600-510-65'S ISSUED ON OCTOBER 27, 1964, BY THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON, D.C.

THE INVITATION SOLICITED BIDS--- TO BE OPENED AT 10:30 A.M., E.S.T., DECEMBER 1, 1964--- FOR FURNISHING 353 FREQUENCY CONVERTERS, ASSOCIATED EQUIPMENT AND REPORTS. BY AN AMENDMENT TO THE INVITATION DATED NOVEMBER 19, 1964, THE GOVERNMENT RESERVED THE RIGHT TO WAIVE THE REQUIREMENT FOR PREPRODUCTION EQUIPMENT AND DESIGNATED MR. G. E. MAYBERRY AS A REPRESENTATIVE OF THE BUREAU OF SHIPS TO BE CONTACTED FOR INFORMATION RELATIVE TO THE INVITATION.

BIDS WERE OPENED AT THE STATED TIME AND 10 BIDS WERE RECEIVED. THE TWO LOWEST BIDDERS WERE DETERMINED TO BE "NOT RESPONSIBLE" AND ARE NOT BEING CONSIDERED FOR AWARD. THE THIRD LOWEST BID WAS SUBMITTED BY MUNSTON ELECTRONIC MFG. CORP. AND WAS IN THE AMOUNT OF $474 EACH, LESS ONE-FOURTH OF 1 PERCENT DISCOUNT FOR PAYMENT WITHIN 20 DAYS, OR A NET TOTAL OF $166,903.69. YOUR BID WAS THE FOURTH LOWEST BID RECEIVED AND WAS IN THE AMOUNT OF $479.47 EACH, OR A TOTAL OF $169,252.91. SOMETIME AFTER 11 A.M. ON DECEMBER 1, 1964, TWO TELEGRAMS WERE RECEIVED BY MR. G. E. MAYBERRY, BOTH HAVING BEEN ADDRESSED TO HIS PERSONAL ATTENTION AT THE BUREAU OF SHIPS. THESE TELEGRAMS CONTAINED MODIFICATION OF BIDS SUBMITTED TO THE NAVY PURCHASING OFFICE WHICH HAD ISSUED THE INVITATION. YOUR TELEGRAM OFFERED A REDUCTION IN UNIT PRICE FROM $479.47 TO $471.67, OR A REDUCTION IN THE TOTAL BID PRICE TO $166,499.51. THE OTHER TELEGRAM FROM MUNSTON OFFERED AN INCREASE IN PROMPT PAYMENT DISCOUNT FROM ONE-FOURTH OF 1 PERCENT TO 1 1/2 PERCENT, RESULTING IN A NET TOTAL PRICE OF $164,812. MUNSTON AND YOU WERE ADVISED BY SEPARATE LETTERS, BOTH DATED FEBRUARY 3, 1965, THAT THE TELEGRAMS WERE NOT RECEIVED IN THE NAVY PURCHASING OFFICE PRIOR TO THE SCHEDULED BID OPENING TIME AND THAT THE LATENESS OF THE RECEIPT OF EACH TELEGRAM WAS NOT DUE TO ANY FAULT OR MISHANDLING BY THE GOVERNMENT. THEREFORE THE AMENDMENT OFFERED BY MUNSTON OR YOU COULD NOT BE CONSIDERED IN MAKING THE AWARD UNLESS EITHER OF YOU WAS OTHERWISE THE SUCCESSFUL BIDDER.

YOU HAVE PROTESTED THE POSSIBLE AWARD TO MUNSTON ON THE GROUND THAT (1) THE CALIBRATION PROCEDURES DATA WAS ALREADY AVAILABLE TO THE GOVERNMENT AND NEED NOT BE PROCURED FROM YOU THUS REDUCING YOUR UNIT PRICE BELOW MUNSTON'S PRICE; (2) YOUR TELEGRAPHIC AMENDMENT OF NOVEMBER 30, 1964, WAS RECEIVED BY THE GOVERNMENT PRIOR TO THE OPENING OF BIDS AND WHATEVER DELAY THERE WAS IN ITS TRANSMISSION WAS DUE, AT LEAST IN PART, TO LACK TO PROPER HANDLING BY THE GOVERNMENT; AND (3) THERE IS REASONABLE DOUBT AS TO THE TECHNICAL AND FINANCIAL QUALIFICATIONS OF OTHER POTENTIAL RECIPIENTS OF THE AWARD.

WITH REGARD TO THE FIRST CONTENTION CONCERNING THE CALIBRATION PROCEDURES DATA, YOU OFFERED TO REDUCE YOUR BID PRICE BY $1,368 IN CONSIDERATION OF THE WAIVER OF THE REQUIREMENT FOR FURNISHING SUCH DATA. IF THIS WAS ACCEPTED, THIS WOULD RESULT IN YOUR BID PRICE BEING $167,884.91 WHICH IS STILL HIGHER THAN MUNSTON'S BID OF $166,903.69. THE ADMINISTRATIVE OFFICE REPORTS, HOWEVER, THAT THE GOVERNMENT RESERVED AN OPTION TO WAIVE THIS REQUIREMENT BUT IT HAS ELECTED NOT TO EXERCISE SUCH OPTION AND THAT NO CALIBRATION PROCEDURES HAVE BEEN PREVIOUSLY SUPPLIED BY YOU.

AS TO THE SECOND CONTENTION THAT YOUR TELEGRAPHIC MODIFICATION OF NOVEMBER 30, 1964, REDUCING YOUR UNIT AND TOTAL BID PRICES SHOULD BE CONSIDERED, IT IS REPORTED THAT YOUR TELEGRAM WAS DELIVERED TO MR. MAYBERRY IN THE BUREAU OF SHIPS AT THE SAME TIME AS THE MUNSTON TELEGRAM. IF BOTH TELEGRAMS WERE ACCEPTED YOUR MODIFIED TOTAL BID PRICE OF $166,499.51 WOULD STILL BE HIGHER THAN THE MODIFIED MUNSTON TOTAL BID PRICE OF $164,812, INCLUSIVE OF DISCOUNT, AND YOUR RELATIVE STANDING WOULD REMAIN UNCHANGED.

CLAUSE 2 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS PROVIDES THAT BIDS MAY BE MODIFIED BY TELEGRAPHIC NOTICE PROVIDED SUCH NOTICE IS RECEIVED PRIOR TO THE TIME SET FOR OPENING OF THE BIDS. THAT CLAUSE ALSO PROVIDES THAT BIDS AND MODIFICATIONS THEREOF SHALL BE ADDRESSED TO THE ISSUING OFFICE, WHICH IN THIS CASE WAS THE UNITED STATES NAVY PURCHASING OFFICE. AMENDMENT NO. 1 TO THE INVITATION ALSO REQUESTED BIDDERS TO ADDRESS ALL REPLIES TO THE NAVY PURCHASING OFFICE AND THAT OFFICE MAINTAINS ITS OWN COMMUNICATIONS CENTER TO RECEIVE TELEGRAMS ADDRESSED TO IT.

THE ADMINISTRATIVE OFFICE REPORTS THAT IT CONDUCTED A DETAILED INQUIRY REGARDING YOUR TELEGRAM AND IT WAS ASCERTAINED THAT THE TELEGRAM WAS DISPATCHED BY THE WESTERN UNION COMPANY AT 5:35 P.M., E.S.T., NOVEMBER 30, 1964 (AFTER THE REGULAR BUSINESS HOURS OF THE BUREAU OF SHIPS), WAS RELAYED FROM THE NAVAL RADIO STATION AT CHELTEHAM, MARYLAND, AT 6:16 P.M., E.S.T., THAT EVENING AND WAS LOGGED IN AT THE COMMUNICATIONS CENTER IN THE MAIN NAVY BUILDING,WASHINGTON, D.C., AT 10:02 P.M., E.S.T., NOVEMBER 30, 1964. THE TELEGRAM WAS ADDRESSED TO MR. G. E. MAYBERRY IN THE BUREAU OF SHIPS AND WHILE THE TELEGRAM REFERS TO THE INVITATION NUMBER IT CONTAINED NO REFERENCE TO EITHER A DATE OR TIME OF OPENING OR ANY OTHER INDICIA OF URGENCY OR NEED FOR SPECIAL HANDLING. ACCORDINGLY THE MESSAGE WAS PROCESSED BY THE BUREAU OF SHIPS IN ACCORDANCE WITH NORMAL ROUTINE AND WAS DELIVERED TO AND RECEIVED BY MR. MAYBERRY IN THE REGULAR MORNING MAIL SOMETIME AFTER 11 A.M., E.S.T., ON DECEMBER 1, 1964, AFTER THE EXPIRATION OF THE TIME SET FOR RECEIPT AND OPENING OF BIDS AT THE NAVY PURCHASING OFFICE.

THE CIRCUMSTANCES IN THIS CASE ARE IDENTICAL WITH THOSE CONSIDERED BY OUR OFFICE IN B-155927, FEBRUARY 9, 1965, WHICH FAILED TO SHOW THAT THE TELEGRAPH COMPANY WAS RESPONSIBLE FOR ANY DELAY BUT WHICH SHOWED THAT THE LATENESS IN DELIVERY WAS ATTRIBUTABLE SOLELY TO THE BIDDER'S FAILURE TO PROPERLY ADDRESS ITS MODIFICATION. IN THIS CASE, THE LATENESS IN DELIVERY OF THE TELEGRAM MUST BE REGARDED AS DUE TO YOUR FAILURE TO ADDRESS YOUR MODIFICATION TO THE OFFICE TO WHICH YOU HAD SENT YOUR BID AND THEREFORE YOUR TELEGRAPHIC MODIFICATION IS NOT FOR CONSIDERATION.

AS TO THE MATTER OF THE QUALIFICATIONS AND RESPONSIBILITY OF MUNSTON, THE CONTRACTING OFFICER HAS REVIEWED AND EVALUATED ALL THE AVAILABLE FACTUAL INFORMATION. THE REPORTS OF A PREAWARD SURVEY DATED FEBRUARY 17 AND 26, 1965, CONCLUDED THAT MUNSTON WAS QUALIFIED TO PERFORM UNDER THE SUBJECT INVITATION FOR BIDS ON THE BASIS OF ADEQUATE EQUIPMENT, PERSONNEL,"KNOW- HOW" AND PROCEDURES, AND THAT PAST PERFORMANCES UNDER GOVERNMENT CONTRACTS WERE GENERALLY IN ACCORDANCE WITH SPECIFICATIONS AND DELIVERY SCHEDULES. A BUREAU OF SHIPS FINANCIAL ADVISOR WAS CONSULTED AND HE REPORTED THAT MUNSTON WAS FINANCIALLY RESPONSIBLE TO PERFORM THE CONTRACT. A CONTRACT AWARD REVIEW PANEL REVIEWED THE ENTIRE MATTER AND RECOMMENDED AWARD OF A CONTRACT TO MUNSTON AS THE LOWEST RESPONSIBLE CONFORMING BIDDER. UPON THE RECEIPT OF YOUR LETTER OF APRIL 19, 1965, THE BUREAU OF SHIPS AGAIN CONSULTED WITH THE PERSONNEL THAT HAD CONDUCTED THE PREAWARD SURVEY AND IT RESULTED IN A CONFIRMATION OF THE PRIOR CONCLUSION THAT PROGRESS MADE BY MUNSTON IN THE PERFORMANCE OF GOVERNMENT CONTRACTS HAS BEEN AND IS SATISFACTORY. THE TWO CONTRACTS REFERRED TO IN YOUR LETTER OF APRIL 19 HAVE BEEN IDENTIFIED AND PERFORMANCE THEREUNDER CONSIDERED. THE ARMY SIGNAL CORPS CONTRACT REFERRED TO IS NO. DA-36039 AMC 91517 (E) DATED DECEMBER 24, 1962, AS TO WHICH A DISPUTE IS BEING ADJUDICATED BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS BUT A DECISION HAS NOT AS YET BEEN RENDERED. THE OTHER CONTRACT IS NOBSR 64814 DATED JUNE 23, 1955, AND IT IS REPORTED THAT PERFORMANCE THEREUNDER WAS TIMELY COMPLETED IN 1956 AND THAT THE "RECORDS ON HAND DO NOT INDICATE LESS THAN SATISFACTORY PERFORMANCE.' IN CONCLUSION THE CONTRACTING OFFICER IS SATISFIED, AND HAS DETERMINED, THAT MUNSTON IS TECHNICALLY AND FINANCIALLY QUALIFIED TO PERFORM THE CONTRACT AND PROPOSES TO MAKE AWARD TO MUNSTON AS THE LOW, CONFORMING, RESPONSIBLE BIDDER UNDER THE SUBJECT INVITATION.

IN VIEW OF THE FOREGOING WE FIND NO LEGAL BASIS FOR OUR OFFICE TO OBJECT TO THE PROPOSED AWARD AND YOUR PROTEST IS DENIED.