B-158202, MAR. 4, 1966

B-158202, MAR. 4, 1966

TO RUBBER FABRICATORS, INCORPORATED:

WE REFER AGAIN TO YOUR LETTER OF DECEMBER 13, 1965, AND ENCLOSURES, PROTESTING AGAINST AN AWARD TO ANY OTHER BIDDER UNDER BID "B," INVITATION FOR BIDS NO. 36-600-65-923, AS AMENDED, ISSUED BY THE MIDDLETOWN AIR MATERIEL AREA, AND TRANSFERRED TO THE SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, TEXAS.

THE ABOVE-REFERENCED INVITATION REQUESTED BIDS ON 36,975 EACH, COVERALL, FLYING, ANTI-EXPOSURE SUITS, AND PROVIDED FOR A SMALL BUSINESS CONCERN SET -ASIDE OF 33-1/3 PERCENT, A LABOR SURPLUS AREA CONCERN SET-ASIDE OF 33-1/3 PERCENT, AND A NON-SET-ASIDE PORTION OF 33 1/3 PERCENT. THE INVITATION WAS SEPARATED INTO BID "A," FIRST ARTICLE APPROVAL REQUIRED, AND BID "B," FIRST ARTICLE APPROVAL NOT REQUIRED. NOTE 2 OF THE IFB STATES IN PERTINENT PART AS FOLLOWS:

"BIDDERS WHO HAD NOT PREVIOUSLY FURNISHED THE SUPPLIES DESCRIBED IN THIS IFB UNDER A CONTRACT CONTAINING REQUIREMENT FOR "FIRST ARTICLE APPROVAL" ARE REQUIRED TO SUBMIT BID ONLY ON BID "A" * * *.

"BIDDERS WHO HAVE PREVIOUSLY FURNISHED THE SUPPLIES DESCRIBED IN THIS IFB UNDER A CONTRACT CONTAINING REQUIREMENT FOR "FIRST ARTICLE APPROVAL" WILL SUBMIT A BID ON BOTH BID "A" AND BID "B.' THESE BIDDERS WILL INDICATE IN THE SPACES PROVIDED IMMEDIATELY BELOW, THE PREVIOUS CONTRACT NUMBER, DATE OF CONTRACT AND ACTUAL DATE PREVIOUS FIRST ARTICLE WAS APPROVED BY THE GOVERNMENT.'

BIDS WERE OPENED ON AUGUST 24, 1965, FOR THE NON-SET-ASIDE PORTION OF 12, 325 UNITS, WITH FOUR RESPONSIVE BIDS BEING RECEIVED AS FOLLOWS:

CHART

BIDDER UNIT PRICE

PAYNE AND ASSOCIATES, INC. (LB) $58.50

RUBBER CRAFT CORP. (SB) 83.62

SWITLIK PARACHUTE CO. (SB) 78.00

RUBBER FABRICATORS, INC. (SB) 83.00

YOU WERE THE ONLY BIDDER WHO SUBMITTED A BID UNDER BID "B.' AWARD OF THE NON-SET-ASIDE PORTION WAS MADE TO PAYNE AND ASSOCIATES ON OCTOBER 30, 1965, AS THE LOW BIDDER UNDER CONTRACT AF 41 (608/-36476 IN THE AMOUNT OF $721,012.50.

UPON EVALUATION OF THE ABOVE BIDS TO DETERMINE ELIGIBILITY OF BIDDERS FOR THE SMALL BUSINESS SET-ASIDE QUANTITY OF 12,325 UNITS, THE CONTRACTING OFFICER DETERMINED THAT THERE WERE NO RESPONSIBLE BIDDERS ELIGIBLE BECAUSE NONE HAD BID WITHIN 120 PERCENT OF THE HIGHEST AWARD MADE ON THE NON-SET- ASIDE PORTION. SEE THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), SECTION 1-706.6/E) (1). AS A RESULT, THE SMALL BUSINESS SET-ASIDE WAS AUTOMATICALLY DISSOLVED AS PRESCRIBED IN ASPR 1 706.7, AND THE CONTRACTING OFFICER ACCORDINGLY COMMENCED NEGOTIATIONS WITH THE FOUR RESPONSIVE BIDDERS IN ACCORDANCE WITH ASPR 3-201.2/B) (II). THE RESULT OF THESE NEGOTIATIONS WAS AS FOLLOWS:

CHART

BIDDER UNIT PRICE

PAYNE AND ASSOCIATES, INC. $58.50

RUBBER CRAFT CORP. 76.99

SWITLIK PARACHUTE CO. 77.00

RUBBER FABRICATORS, INC. 76.22

SINCE PAYNE SUBMITTED THE LOWEST PROPOSAL, SUPPLEMENTAL AGREEMENT NO. 2 WAS EXECUTED TO PAYNE'S BASIC CONTRACT ON DECEMBER 2, 1965, AWARDING AN ADDITIONAL 12,325 UNITS AT THE PRICE OF $721,012.50.

UPON EVALUATION OF THE RESPONSIVE BIDS RECEIVED TO DETERMINE THE ELIGIBILITY OF BIDDERS FOR THE LABOR SURPLUS SET-ASIDE PORTION OF 12,325 UNITS, AGAIN THE CONTRACTING OFFICER DETERMINED THAT NONE WERE ELIGIBLE SINCE THERE WERE NO RESPONSIVE BIDS WITHIN 120 PERCENT OF THE HIGHEST AWARD MADE ON THE NON-SET-ASIDE PORTION. ACCORDINGLY, THE CONTRACTING OFFICER WITHDREW THE SET-ASIDE AS BEING DETRIMENTAL TO THE PUBLIC INTEREST, E.G., BECAUSE OF UNREASONABLE PRICES. ASPR 1-804.3. PRICES AND DELIVERY SCHEDULES WERE THEN REQUESTED FROM THE SAME FOUR COMPANIES BASED ON THE FOLLOWING:

(A) DELIVERY OF FIRST ARTICLE 30 DAYS AFTER RECEIPT OF AWARD. PRODUCTION TO BEGIN 60 FAYS AFTER FIRST ARTICLE ACCEPTANCE AT THE RATE OF 1,462 EACH PER 30-DAY PERIOD UNTIL COMPLETION.

(B) PRODUCTION TO BEGIN 90 DAYS AFTER RECEIPT OF AWARD AT THE RATE OF 1,462 EACH PER 30-DAY PERIOD UNTIL COMPLETION IN THE EVENT FIRST ARTICLE SUBMISSION WAS NOT REQUIRED.

ONCE AGAIN, PAYNE AND ASSOCIATES SUBMITTED THE LOWEST PRICE AND OFFERED TO MAKE DELIVERY UNDER THE TERMS IN (B) ABOVE. PAYNE ALSO PROPOSED AN ALTERNATE DELIVERY SCHEDULE AND A LOWER PRICE UNDER IT, WHICH THE CONTRACTING OFFICER PROPOSES TO ACCEPT INASMUCH AS PAYNE'S ORIGINAL SUBMISSION WAS LOW AND TO DO SO, THEREFORE, WOULD NOT BE PREJUDICIAL TO THE OTHER BIDDERS. HOWEVER, THE AWARD OF THE LABOR SURPLUS SET-ASIDE PORTION IS BEING HELD IN ABEYANCE PENDING THIS DECISION.

IT IS YOUR CONTENTION THAT BIDS "A" AND "B" WERE DISTINCT AND SEPARATE INVITATIONS FOR DISTINCT AND SEPARATE AWARDS; THAT SINCE YOU ARE THE ONLY COMPANY THAT BID UNDER "B" , THE NON-SET-ASIDE PORTION SHOULD HAVE BEEN AWARDED TO YOU; AND, SINCE YOU QUALIFY AS BOTH A SMALL BUSINESS CONCERN AND A LABOR SURPLUS AREA CONCERN, THE SET-ASIDE PORTIONS OF BID "B" SHOULD LIKEWISE BE AWARDED TO YOU.

THE IFB WAS EXPRESSED IN TWO PARTS FOR THE CONVENIENCE OF THE GOVERNMENT, THAT IS, SO THE CONTRACTING OFFICER WOULD HAVE ALL PERTINENT INFORMATION BEFORE HIM AND BE ABLE TO EVALUATE THE BIDS WITHOUT HAVING TO MAKE ADDITIONAL INQUIRIES OF THE BIDDERS. THE CONTRACTING OFFICER MERELY WANTED TO KNOW IF ANY OF THE BIDDERS HAD FURNISHED THESE SUPPLIES TO THE GOVERNMENT PREVIOUSLY UNDER A FIRST ARTICLE APPROVAL REQUIREMENT TO AID HIM IN HIS EVALUATION. BID "B" WAS INFORMATIONAL IN NATURE ONLY AS IS SEEN BY THE REQUIREMENT THAT YOU ALSO SHOW YOUR BID UNDER BID ,A.' NOWHERE IS THERE AN INDICATION THAT THE GOVERNMENT BOUND ITSELF TO GRANT AWARDS ON BOTH BIDS "A" AND "B.' INDEED, THE LANGUAGE OF THE INVITATION INDICATES AN OPPOSITE INTENTION, FOR EXAMPLE, NOTE 2 STATES:

"BIDS SUBMITTED UNDER BID "A" FIRST ARTICLE APPROVAL REQUIRED OR UNDER BID "B" FIRST ARTICLE APPROVAL NOT REQUIRED ARE EQUALLY ACCEPTABLE TO THE GOVERNMENT, AS APPLICABLE, AND AWARD WILL BE MADE THEREON WITH THE BEST INTEREST OF THE GOVERNMENT CONSIDERED.'

FROM THIS IT IS SEEN THAT THE GOVERNMENT WOULD ACCEPT EITHER ARTICLES WHICH HAD ALREADY BEEN APPROVED OR ARTICLES WHICH WOULD BE APPROVED BEFORE AWARD UNDER THE PROCEDURES DESCRIBED IN THE IFB, OR A COMBINATION OF THE TWO WHICHEVER WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT. TO ACCEPT YOUR CONSTRUCTION OF THESE PARAGRAPHS WOULD MEAN THAT IN A SITUATION SUCH AS THIS WHERE ONLY ONE RESPONSIVE BID WAS MADE UNDER BID "B," THE GOVERNMENT WOULD BE OBLIGATED TO ACCEPT IT REGARDLESS OF PRICE. THIS IS OBVIOUSLY NOT IN THE BEST INTEREST OF TE GOVERNMENT, AND CERTAINLY, THERE WAS NO INTENTION ON THE GOVERNMENT'S PART TO BIND ITSELF TO SUCH A COURSE OF ACTION.

IN VIEW OF THE FACTS AND CIRCUMSTANCES SET OUT ABOVE, THIS OFFICE HAS NO OBJECTION TO THE CONTRACTING OFFICER'S PROPOSED ACTION IN REGARD TO THE LABOR SURPLUS SET-ASIDE. YOUR PROTEST IS ACCORDINGLY DENIED.