B-165617, MAR. 6, 1969

B-165617, MAR. 6, 1969

TO PRECISION INSTRUMENT COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 9, 1968, AND SUBSEQUENT CORRESPONDENCE IN WHICH YOU PROTESTED AGAINST ANY AWARD TO THE STANCIL- HOFFMAN COMPANY UNDER INVITATION FOR BIDS (IFB) NO. F34601-69 B-0124, THE SECOND STEP OF A TWO-STEP PROCUREMENT INITIATED BY LETTER REQUEST FOR TECHNICAL PROPOSALS (LRFTP) F34601-68-R-4369, ISSUED BY THE OKLAHOMA CITY AIR MATERIEL AREA (OCAMA) ON JUNE 15, 1968, TO FULFILL A MULTI-YEAR REQUIREMENT FOR AIRPORT RECORDING EQUIPMENT.

OF THE FIVE COMPANIES WHO SUBMITTED TECHNICALLY ACCEPTABLE PROPOSALS PURSUANT TO STEP ONE, ONLY THREE RESPONDED WITH BIDS UNDER THE SECOND STEP OF THE PROCUREMENT, PROPOSING UNIT PRICES AS FOLLOWS:

PRECISION INSTRUMENT $25,800 EACH

SANGAMO ELECTRIC 42,826 EACH

STANCIL-HOFFMAN 12,011 EACH WITH ITS EXECUTED BID FORM STANCIL-HOFFMAN SUBMITTED SEVERAL ENCLOSURES FORWARDED BY A TRANSMITTAL LETTER DATED OCTOBER 11, 1968. ALTHOUGH YOU WERE FURNISHED A COPY OF THE OCTOBER 11 LETTER YOUR REQUEST TO INSPECT THE ENCLOSURES WAS REJECTED BY THE PROCURING ACTIVITY ON THE BASIS THAT ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-503.1 (C) (I), QUOTED AS FOLLOWS, PREVENTED SUCH DISCLOSURE:

"/I) EVERY PRECAUTION SHALL BE TAKEN TO SAFEGUARD TECHNICAL PROPOSALS AGAINST DISCLOSURE TO UNAUTHORIZED PERSONS.'

YOU MAINTAIN THAT THIS PROVISION PREVENTS THE DISCLOSURE OF MATERIAL SUBMITTED ON STEP ONE BUT DOES NOT APPLY TO DATA FURNISHED ON STEP TWO. YOU ALSO MAINTAIN THAT ASPR 2-404.4 (A), QUOTED BELOW, REQUIRES REJECTION OF STANCIL-HOFFMAN'S BID AS BEING NONRESPONSIVE IF THE RESTRICTION AGAINST DISCLOSURE IS CONTINUED ON STEP TWO:

"/A) WHEN A BID IS ACCOMPANIED BY DESCRIPTIVE LITERATURE (AS DEFINED IN 2 -202.5 (A) (, AND THE BIDDER IMPOSES A RESTRICTION THAT SUCH LITERATURE MAY NOT BE PUBLICLY DISCLOSED, SUCH RESTRICTION RENDERS THE BID NONRESPONSIVE IF IT PROHIBITS THE DISCLOSURE OF SUFFICIENT INFORMATION TO PERMIT COMPETING BIDDERS TO KNOW THE ESSENTIAL NATURE AND TYPE OF THE PRODUCTS OFFERED OR THOSE ELEMENTS OF THE BID WHICH RELATE TO QUANTITY, PRICE AND DELIVERY TERMS. THE PROVISIONS OF THIS SUBPARAGRAPH (A) DO NOT APPLY TO UNSOLICITED DESCRIPTIVE LITERATURE SUBMITTED BY A BIDDER IF SUCH LITERATURE DOES NOT QUALIFY THE BID (SEE 2-202.5 (F) ).' FURTHER OBJECTIONS RAISED BY YOU TO THE DECISIONS TAKEN BY THE PROCURING ACTIVITY IN THESE MATTERS ARE SUMMARIZED AS FOLLOWS: (1) THE LITERATURE SUBMITTED BY A BIDDER AS A PART OF HIS BID MUST BE MADE AVAILABLE "TO THE PUBLIC" AS STATED IN ASPR 1-329.2; AND TO "INTERESTED PERSONS" AS STATED IN ASPR 2- 402.1 (C); (2) THE DATA SUBMITTED BY STANCIL-HOFFMAN ON STEP TWO ESTABLISHED THAT THE COMPANY QUALIFIED ITS BID.

THE OCTOBER 11 TRANSMITTAL LETTER IN QUESTION STATED THAT THE COMPANY WAS TAKING CERTAIN ,EXCEPTIONS" TO THE DATA REQUIREMENTS OF THE LRFTP AS FOLLOWS:

"WE WISH TO CALL THE FOLLOWING EXCEPTIONS TO YOUR ATTENTION IN REGARD TO THE DATA REQUIREMENTS OF ITEM 2, EXHIBIT A.

"1. SEQUENCE NO. A016 APPARENTLY IS NOT TO BE MADE A PART OF THIS CONTRACT SINCE IT WAS OMITTED FROM EXHIBIT A.

"2. SEQUENCE NO. A004 WAS QUOTED AS A TO BE NEGOTIATED ITEM.' THE AIR FORCE HAS ADVISED US THAT IT CONSIDERS THE ABOVE STATEMENTS TO BE IN THE NATURE OF CLARIFICATION OF STANCIL-HOFFMAN'S UNDERSTANDING OF THE DATA REQUIREMENTS. ADDITIONALLY, THE AIR FORCE ADVISES THAT THESE COMMENTS ARE CORRECT IN THAT ITEM A004 SHOULD HAVE BEEN INCLUDED UNDER EXHIBIT C OF THE DD FORM 1423 ,CONTRACT DATA REQUIREMENTS LIST" AS AN ELECTIVE REQUIREMENT TO BE NEGOTIATED AT A LATER DATE AND SUB-ITEM A016 IS NOT A DATA REQUIREMENT. IN VIEW THEREOF, WE CANNOT CONSIDER THE LISTED EXCEPTIONS AS RENDERING THE STANCIL-HOFFMAN BID NONRESPONSIVE. IN THE CASES CITED BY YOU IN YOUR NOVEMBER 9 LETTER (40 COMP. GEN. 432; B-151416 - JUNE 26, 1963) BIDDERS HAD SUBMITTED DESCRIPTIVE LITERATURE CONTAINING MATERIAL DEVIATIONS WHICH AFFECTED THE QUALITY AND PRICE OF THE OFFERED ITEM.

WITH RESPECT TO THE ENCLOSURES FORWARDED WITH THE LETTER OF OCTOBER 11 THE DEPARTMENT HAS ADVISED US THAT OCAMA ENGINEERS HAVE DETERMINED THAT THE DATA CONTAINED THEREIN DOES NOT DEVIATE IN ANY WAY FROM THE BIDDER'S ACCEPTABLE TECHNICAL PROPOSAL SUBMITTED ON STEP ONE, BUT THAT CERTAIN PROVISIONS OF STANCIL-HOFFMAN'S STEP ONE PROPOSAL WERE NOT REPEATED IN THE SECOND STEP SUBMISSION. THE PROCURING ACTIVITY CONTENDS THAT THE BIDDER MERELY SUMMARIZED HIS FIRST STEP PROPOSAL AND THAT HIS FAILURE TO REPEAT THE PROPOSAL IN TOTO SHOULD NOT BE CONSIDERED AS RENDERING STANCIL- HOFFMAN'S BID NONRESPONSIVE. WE CONCUR IN THIS JUDGMENT BASED ON THE INCLUSION OF CERTAIN SPECIFICATIONS ON PAGE SEVEN OF THE SECOND STEP OF THE IFB, QUOTED AS FOLLOWS: "7. THIS INVITATION FOR BID IS ISSUED PURSUANT TO TWO-STEP FORMAL ADVERTISING IN PART 5 OF SECTION II OF THE ARMED SERVICES PROCUREMENT REGULATION. BIDS WILL BE ACCEPTED AND CONSIDERED ONLY FROM THOSE FIRMS WHO HAVE SUBMITTED ACCEPTABLE TECHNICAL PROPOSALS PURSUANT TO THE FIRST STEP OF SUCH PROCEDURES, AS INITIATED BY LETTER REQUEST FOR TECHNICAL PROPOSAL SOLICITATION NO. F34601-68-R-4369. ANY BIDDER WHO HAS SUBMITTED MULTIPLE TECHNICAL PROPOSALS IN THE FIRST STEP OF THIS TWO-STEP PROCUREMENT MAY SUBMIT A SEPARATE BID COVERING EACH TECHNICAL PROPOSAL WHICH HAS BEEN DETERMINED ACCEPTABLE BY THE GOVERNMENT (MAR 1963). "8. THE CONTRACTOR IS NOT AUTHORIZED TO DEVIATE FROM THE APPROACH IN MEETING REQUIREMENTS AS DESCRIBED IN HIS TECHNICAL PROPOSAL INCORPORATED HEREIN, OR EFFECT EQUIPMENT SUBSTITUTION WITHOUT THE WRITTEN CONSENT OF THE CONTRACTING OFFICER. NOTHING CONTAINED IN THE TECHNICAL PROPOSAL SHALL CONSTITUTE A WAIVER OF THE CONTRACT TECHNICAL EXHIBIT. BIDDERS MUST IDENTIFY IN THE SPACE PROVIDED BELOW THE TECHNICAL PROPOSAL AND ANY ACCEPTABLE ALTERNATES OR OPTIONS UPON WHICH THE BID IS BASED.' UNDER THESE PROVISIONS ONLY BIDS FROM COMPANIES WHO SUBMITTED TECHNICALLY ACCEPTABLE PROPOSALS UNDER STEP ONE, WOULD BE CONSIDERED UNDER STEP TWO AND ANY CONTRACTOR RECEIVING AN AWARD THEREUNDER COULD NOT DEVIATE FROM HIS TECHNICAL PROPOSAL OR THE PROCURING ACTIVITY'S TECHNICAL EXHIBIT WITHOUT THE WRITTEN CONSENT OF THE CONTRACTING OFFICER. ADDITIONALLY, WE NOTE THAT ITEM I OF THE BID SCHEDULE, AGAINST WHICH THE BID PRICE WAS TO BE ENTERED, SPECIFICALLY INCORPORATED EACH BIDDER'S TECHNICAL PROPOSAL AND THE OCAMA EXHIBIT AS FOLLOWS: "1. 5835NC078383H - MULTI-CHANNEL SOUND RECORDER-REPRODUCER SYSTEM, IAW TECHNICAL EXHIBIT OCNEE 67-22, DATED 24 AUGUST 1967, AND BIDDERS ACCEPTABLE TECHNICAL PROPOSAL IN RESPONSE TO LETTER REQUEST FOR TECHNICAL PROPOSALS F34601-68-R-4369, DATED 7 JUNE 1968, AS AMENDED, AND/OR CLARIFIED BY LETTER THERETO DATED 1 AUG " BECAUSE THESE PROVISIONS CLEARLY ADVISED BIDDERS THAT THEIR FIRST STEP PROPOSALS WOULD BE THE BASIS OF THEIR SECOND STEP BID AND CONTRACT AWARD, UNLESS THE WRITTEN AUTHORIZATION OF THE CONTRACTING OFFICER WAS OBTAINED, WE CANNOT CONSIDER THE SECOND STEP DATA SUBMISSION OF STANCIL-HOFFMAN AS GROUNDS FOR RENDERING ITS BID NONRESPONSIVE, UNLESS THE DATA CONTAINED THEREIN WAS IN CONFLICT IN SOME RESPECT WITH ITS ACCEPTED PROPOSAL OR WITH THE SPECIFIC REQUIREMENTS STATED IN THE GOVERNMENT'S REQUEST. SINCE THE PROCURING ACTIVITY ADVISES US THAT ITS ENGINEERING PERSONNEL HAVE NOT PERCEIVED ANY DEVIATION OF THIS TYPE IN THE SUBMISSION, AND OUR OWN COMPARISON OF THE SECOND STEP ATTACHMENT WITH THE ORIGINAL PROPOSAL AND THE STATED REQUIREMENTS DOES NOT DISCLOSE ANY CONFLICT OR INCONSISTENCY, WE CANNOT CONSIDER THAT THE ENCLOSURES WARRANT REJECTION OF THE BID. ALTHOUGH YOU HAVE IMPLIED THAT THIS EVALUATION IS NOT IMPARTIAL BECAUSE THE PROCURING ACTIVITY DESIRES TO MAKE AN AWARD TO STANCIL HOFFMAN, THE LOWEST BIDDER, REGARDLESS OF ANY OTHER CONSIDERATION, YOUR ALLEGATION IN THIS REGARD IS NEGATED BY THE FACT THAT THE RECORD SHOWS THAT OCAMA ATTEMPTED TO REJECT THE STANCIL-HOFFMAN BID FOR OTHER REASONS AFTER BID OPENING.

WITH RESPECT TO YOUR ALLEGATION THAT YOU SHOULD HAVE BEEN PERMITTED TO INSPECT THE TECHNICAL DATA SUBMITTED AS PART OF STANCIL-HOFFMAN'S STEP TWO BID PURSUANT TO ASPR 2-404.4 (A), OUR OFFICE HAS HELD THAT THE RESTRICTION AGAINST DISCLOSURE OF PROPRIETARY INFORMATION CONTAINED IN A BIDDER'S STEP ONE PROPOSAL CONTINUES ON STEP TWO, NOTWITHSTANDING THE PROVISIONS OF ASPR 2-404.4 (A), AND IRRESPECTIVE OF WHETHER THE SUBMISSION IS CONSIDERED TECHNICAL DATA (ASPR 9-201 (A) ( OR DESCRIPTIVE LITERATURE (ASPR 2- 202.5). 46 COMP. GEN. 34. SINCE THE SECOND STEP ENCLOSURES MERELY SUMMARIZED THE BIDDER'S ACCEPTABLE STEP ONE PROPOSAL, IT COULD NOT BE REVEALED WITHOUT COMPROMISING THE CONFIDENTIAL PRIVILEGE AFFORDED THE STANCIL-HOFFMAN PROPOSAL. IN VIEW THEREOF THE FAILURE OF THE PROCURING AGENCY TO FURNISH YOU WITHIN FORMATION CONCERNING THE ESSENTIAL NATURE AND TYPE OF THE STANCIL-HOFFMAN PRODUCT AS REQUIRED BY ASPR 2-404.4 (A) CAN NOT BE CONSIDERED IMPROPER. B-158865, SEPTEMBER 26, 1966.

WITH RESPECT TO YOUR CONTENTION THAT YOU ARE ENTITLED TO OBTAIN THIS INFORMATION PURSUANT TO ASPR 1-329.1 - .4, WHICH IMPLEMENTED THE REQUIREMENTS OF THE PUBLIC INFORMATION ACT OF 1966, PUBLIC LAW 89-487, WE HAVE NO AUTHORITY UNDER THAT ACT TO DETERMINE WHAT MUST BE DISCLOSED BY OTHER GOVERNMENT AGENCIES; HOWEVER, AS POINTED OUT IN B-164106, NOVEMBER 8, 1968, THE ACT DOES INCLUDE AN EXEMPTION FOR TRADE SECRETS.