B-169205, JUN. 23, 1970

B-169205, JUN. 23, 1970

CONTRACTS--SPECIFICATIONS--CLARIFICATION--REQUIREMENT BEFORE BIDDING GAO HELD THAT WHILE LOW BID UNDER SECOND STEP WAS RESPONSIVE TO INVITATION AS WRITTEN, NO AWARD WAS POSSIBLE SINCE INVITATION FAILED TO PROVIDE CLEAR INSTRUCTIONS OF MANNER IN WHICH PRICES WERE TO BE COMPUTED. ALSO, SINCE PRICING INFORMATION CONTAINED IN TELEGRAM TO ONE BIDDER PRIOR TO OPENING WAS NOT CONVEYED TO OTHERS BY AMENDMENT, ALL BIDDERS WERE NOT COMPETING ON EQUAL BASIS, THUS REQUIRING CANCELLATION AND READVERTISEMENT. WHILE GAO WILL REVERSE DECISIONS IF MATERIAL MISTAKE OF LAW OR FACT IS PROVEN, THERE IS HERE NO SUCH SHOWING. CONTRACTS-- SPECIFICATIONS--AMBIGUOUS--DISCARDING ALL BIDS PREVIOUS DECISION, WHILE HOLDING THAT LOW BID (SECOND STEP) WAS RESPONSIVE, NEVERTHELESS DIRECTED INVITATION CANCELLATION SINCE, WHILE IT MIGHT HAVE BEEN INTENT OF INVITATION THAT PREPRODUCTION MODEL TESTING COSTS SHOULD HAVE BEEN AMORTIZED OVER PREPRODUCTION MODELS PLUS MULTI-YEAR PRODUCTION QUANTITIES, SUCH INTENT WAS NOT CLEARLY SET FORTH IN SOLICITATION AND THEREFORE INVITATION WAS AMBIGUOUS. FACT THAT AMBIGUOUS INVITATION RESULTED IN BID RESPONSIVE TO INVITATION AS WRITTEN, DOES NOT DEPRIVE CONTRACTING OFFICER OF AUTHORITY TO REJECT ALL BIDS AND READVERTISE UNDER UNAMBIGUOUS SPECIFICATIONS. NEITHER DOES IT DEPRIVE GAO OF AUTHORITY TO DIRECT READVERTISEMENT. BIDS- UNBALANCED EVALUATION PROTESTANT (LOW RESPONSIVE BIDDER TO AMBIGUOUS INVITATION SUBSEQUENTLY CANCELED) CONTENDS COMPETITOR'S BID WAS UNBALANCED IN VIOLATION OF INVITATION AND SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE. COMPARISON OF BASIC AND OPTION QUARTERLY BID PRICES SUBMITTED BY ALL 3 BIDDERS WOULD APPEAR TO RAISE QUESTION AS TO WHETHER BIDS OF BOTH PROTESTANTS MAY NOT HAVE BEEN UNBALANCED. HOWEVER, SINCE COST DATA IS NOT AVAILABLE, DETERMINATION WOULD NOT APPEAR TO BE PROPER OR PRACTICABLE AND, FURTHERMORE, SINCE AWARD CANNOT BE MADE TO ANY FIRM, ISSUE IS NOT GERMANE. SEE B-162839, DEC. 13, 1968.

TO A. G. SCHOONMAKER COMPANY, INC.:

WE ARE IN RECEIPT OF YOUR TELEGRAM OF MAY 23 AND LETTER OF MAY 28, 1970, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF OUR DECISION OF MAY 22, 1970, WHICH DISAGREED WITH THE CONTENTION OF BOGUE ELECTRIC MANUFACTURING COMPANY (BOGUE) THAT YOUR BID UNDER IFB NO. DAAK02-70-B 1225 WAS NONRESPONSIVE, BUT DIRECTED CANCELLATION OF THE SUBJECT INVITATION.

THE DECISION OF MAY 22, SETS FORTH, AMONG OTHER THINGS, THAT WHILE IT MIGHT HAVE BEEN THE INTENT OF THE SUBJECT INVITATION THAT THE PREPRODUCTION MODEL TESTING COSTS SHOULD HAVE BEEN AMORTIZED OVER THE PREPRODUCTION MODELS PLUS MULTI-YEAR PRODUCTION QUANTITIES, SUCH INTENT WAS NOT CLEARLY SET FORTH IN THE SOLICITATION, AND TO THAT EXTENT THE IFB WAS AMBIGUOUS. WHILE THE DECISION ALSO HELD THAT SCHOONMAKER'S BID WAS RESPONSIVE TO THE TERMS OF THE INVITATION AS WRITTEN, WE CONCLUDED THAT NO AWARD COULD BE MADE TO ANY BIDDER, SINCE THE INVITATION FAILED TO PROVIDE CLEAR AND OBJECTIVE INSTRUCTIONS UNDER WHICH ALL BIDDERS WERE APPRISED, IN ADVANCE OF BID OPENING, OF THE MANNER IN WHICH BID PRICES WERE TO BE COMPUTED AND SUBMITTED IN ORDER TO BE RESPONSIVE AND ELIGIBLE FOR AWARD. IN ADDITION, OUR DECISION REFERRED TO A TELEGRAM OF FEBRUARY 18, 1970, FROM THE CONTRACTING OFFICER TO BOGUE, WHICH CONTAINED INFORMATION AFFECTING BOGUE'S BID PRICE. SINCE SUCH INFORMATION WAS NOT MADE KNOWN TO OTHER BIDDERS IN THE FORM OF AN AMENDMENT AS REQUIRED BY ASPR 2-208(C) AND PARAGRAPH 3 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, WE CONCLUDED THAT ALL BIDDERS WERE NOT COMPETING ON AN EQUAL BASIS, AND THAT THE SUBJECT INVITATION SHOULD BE CANCELLED AND THE SOLICITATION READVERTISED.

YOU HAVE ASSERTED THREE ARGUMENTS AS REASONS FOR REVERSAL OF THE MAY 22 DECISION, WHICH YOU CONTEND ARE BASED UPON MATTERS OR FACTS WHICH WERE NOT ADVANCED BY THE PARTIES, OR WHICH YOU DO NOT BELIEVE WERE CONSIDERED BY OUR OFFICE IN RENDERING OUR DECISION.

IN YOUR FIRST ARGUMENT YOU URGE THAT BOGUE WAS NOT IN FACT PREJUDICED BY THE CONTRACTING OFFICER'S TELEGRAM OF FEBRUARY 18, 1970. RATHER, YOU CONTEND THAT BOGUE DELIBERATELY ELICITED THE TELEGRAM, AND IT WOULD THEREFORE BE INEQUITABLE TO SCHOONMAKER AND DAMAGING TO THE BIDDING PROCESS TO ALLOW BOGUE TO HAVE A SECOND OPPORTUNITY TO BID AGAINST YOUR FIRM. IN SUPPORT OF YOUR CONCLUSION THAT BOGUE WAS NOT PREJUDICED BY ISSUANCE OF THE FEBRUARY 18 TELEGRAM, YOU EXPRESS THE OPINION THAT BOGUE WAS NOT BOUND TO COMPLY WITH THE INSTRUCTIONS CONTAINED IN THE TELEGRAM, SINCE SUCH INSTRUCTIONS WERE IN CONFLICT WITH THE TERMS OF THE INVITATION, AS EVIDENCED BY THE FACT THAT OUR DECISION OF MAY 22 HELD THAT YOUR BID, WHICH WAS IN CONFLICT WITH THE TELEGRAPHIC INSTRUCTIONS, WAS RESPONSIVE TO THE INVITATION. FURTHER, YOU POINT TO THE PROVISIONS OF PARAGRAPHS 3 AND 23 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS (WHICH YOU INTERPRET AS ADVISING THAT EXPLANATIONS OR INTERPRETATIONS MUST BE INCORPORATED INTO AMENDMENTS TO THE INVITATION AND FURNISHED TO ALL BIDDERS BEFORE THEY BECOME BINDING) AND YOU ARGUE THAT BOGUE THEREFORE WAS NOT BOUND TO FOLLOW THE INSTRUCTIONS IN THE FEBRUARY 18 TELEGRAM UNLESS AND UNTIL THEY WERE INCORPORATED INTO AN AMENDMENT TO THE INVITATION. UNDER THE CIRCUMSTANCES YOU CONTEND THAT BOGUE MUST HAVE KNOWN IT WAS NOT JUSTIFIED IN COMPLYING WITH THE TELEGRAM, AND YOU THEREFORE CONCLUDE THAT ISSUANCE OF THE TELEGRAM, WITHOUT SUBSEQUENT ISSUANCE OF A CORRESPONDING AMENDMENT TO THE INVITATION, COULD NOT HAVE BEEN PREJUDICIAL TO BOGUE.

YOU ALSO CONTEND THAT BOGUE AND THE CONTRACTING OFFICER KNEW THAT SCHOONMAKER WAS PLANNING TO BID THE PREPRODUCTION MODELS AT A PRICE DIFFERENT FROM THE PRODUCTION MODELS. YOU ADVISE THAT THIS KNOWLEDGE WAS GAINED AT A BIDDERS CONFERENCE HELD ON JANUARY 30, 1970, UNDER AN AIR FORCE PROCUREMENT FOR 100 AND 200 KW GENERATOR SETS IN WHICH THE PREPRODUCTION SETS WERE NOT BROKEN OUT AS SEPARATE LINE ITEMS. THE MINUTES OF THAT CONFERENCE INDICATE THAT A REPRESENTATIVE OF SCHOONMAKER ASKED, "WHERE DO WE PUT THE PRICE FOR FIRST ARTICLE GENERATOR SETS? REQUEST SEPARATE LINE ITEMS FOR FIRST ARTICLE COSTS TO BE ESTABLISHED FOR UNIFORM DOD PROCUREMENTS. REFERENCE DAAK-02-70-B 1225." THE CONTRACTING OFFICER FOR THE AIR FORCE PROCUREMENT ANSWERED THAT BOTH FIRST ARTICLES AND PRODUCTION ITEMS SHOULD BE BID AT THE SAME UNIT PRICE, SINCE SEPARATE PROCURING WOULD NOT CONFORM WITH ASPR. YOU ASSERT THAT NO REPRESENTATIVES OF EITHER BOGUE OR THE ARMY, WHO WERE PRESENT AT THE AIR FORCE MEETING, MADE ANY COMMENTS CONCERNING THE ARMY IFB. HOWEVER, THE MINUTES OF THE AIR FORCE BIDDERS CONFERENCE WERE SUBSEQUENTLY GIVEN TO THE ARMY CONTRACTING OFFICER, AND THE TWO CONTRACTING OFFICERS DISCUSSED MULTI-YEAR CONCEPTS, ASPR, AND SCHOONMAKER'S INTERPRETATION AND POTENTIAL BID ON THE ARMY IFB, AT LENGTH. AT THAT TIME THE ARMY REPRESENTATIVE IS ALLEGED TO HAVE STATED THAT THE ARMY PROCUREMENT REQUIRED SEPARATE LINE ITEMS FOR PREPRODUCTION UNITS. THESE LATTER ASSERTIONS, WHICH ARE MADE IN AN AFFIDAVIT OF MAY 28, 1970, BY YOUR MR. M. J. SULLIVAN, REFLECT A TELEPHONE CONVERSATION HE HELD WITH THE AIR FORCE CONTRACTING OFFICER ON MAY 27, 1970, AND ARE THE ONLY NEW EVIDENCE PRESENTED IN YOUR PRESENT REQUEST FOR RECONSIDERATION. ALL OTHER FACTS, EXCEPT FOR ARGUMENT TWO DISCUSSED LATER, WERE CONSIDERED IN OUR MAY 22 DECISION.

IT SHOULD BE NOTED THAT IN OUR EARLIER CONSIDERATION OF THIS MATTER, YOU ARGUED THAT THE INSTRUCTIONS TO BIDDERS GIVEN BY THE AIR FORCE WERE IMMATERIAL AND IRRELEVANT. APPARENTLY, YOU NOW THINK THEY ARE PERTINENT TO SUPPORT YOUR CHARGE THAT BOGUE AND THE CONTRACTING OFFICER INDUCED YOU TO BID IN THE FASHION YOU DID. YOU SAY IT IS CLEAR THAT IF THE TELEGRAM HAD NOT BEEN SENT AN AWARD WOULD HAVE BEEN MADE TO SCHOONMAKER, AND YOU SUGGEST THAT ONLY THE FOLLOWING CONCLUSION CAN BE DRAWN FROM THESE FACTS:

"FAR FROM BEING PREJUDICED BY THE TELEGRAM, BOGUE AIDED BY THE CONTRACTING OFFICER KNOWINGLY, OR TO ACHIEVE A SEPARATELY DESIRED RESULT, SET A CAREFUL TRAP TO INDUCE SCHOONMAKER TO BID SEPARATE PRICES FOR PREPRODUCTION UNITS, KNOWING THAT BOGUE COULD CLAIM, AND THE CONTRACTING OFFICER COULD THEREAFTER DECLARE SCHOONMAKER'S BID NONRESPONSIVE. BOTH BOGUE AND THE CONTRACTING OFFICER KNEW BOGUE COULD THEREAFTER CLAIM THE IFB WAS AMBIGUOUS, IF IT SO CHOSE, IF ANOTHER FIRM WAS LOW BIDDER, AND FOUND RESPONSIBLE."

WITH RESPECT TO YOUR ARGUMENT THAT BOGUE COULD, AND SHOULD, HAVE IGNORED THE INSTRUCTIONS IN THE FEBRUARY 18 TELEGRAM, WE ARE UNABLE TO AGREE WITH THE PREMISE ON WHICH THIS ARGUMENT DEPENDS, NAMELY, THAT THE BASIC INSTRUCTIONS CONTAINED IN THE TELEGRAM WERE ERRONEOUS. IF, AS APPEARS FROM YOUR BRIEF OF MAY 28, 1970, THIS PREMISE IS BASED UPON THE ASSUMPTION THAT BOGUE'S BID MUST NECESSARILY BE NONRESPONSIVE SINCE OUR DECISION HELD THAT SCHOONMAKER'S BID WAS RESPONSIVE, IT IS INCORRECT. THUS, OUR DECISION CLEARLY EXPRESSED OUR CONCLUSION THAT THE INVITATION WAS AMBIGUOUS. OUR DECISION NEITHER HELD, NOR WAS INTENDED TO IMPLY, THAT BOGUE'S BID WAS NOT ALSO, AND EQUALLY, RESPONSIVE TO THE AMBIGUOUS REQUIREMENTS OF THE INVITATION. WE ARE THEREFORE UNABLE TO AGREE WITH YOUR CONCLUSION THAT BOGUE WOULD HAVE BEEN JUSTIFIED IN ASSUMING THAT THE INSTRUCTIONS SET OUT IN THE FEBRUARY 18 TELEGRAM WERE IN ERROR, AND IN IGNORING SUCH INSTRUCTIONS UNLESS AND UNTIL THEY WERE INCORPORATED INTO AN AMENDMENT TO THE IFB.

CONCERNING YOUR CONTENTION THAT, IF THE TELEGRAM HAD NOT BEEN SENT, AN AWARD WOULD HAVE BEEN MADE TO SCHOONMAKER, YOU HAVE CITED SUPERIOR OIL COMPANY V UDALL, 409 F. 2D. 1115 (1969), IN WHICH THE COURT FOUND THAT WHILE AN AWARD OF AN OIL AND GAS LEASE ON PUBLIC LANDS COULD NOT BE MADE TO THE HIGH BIDDER WHO FAILED TO SIGN ITS BID, NEITHER COULD THE SECRETARY OF THE INTERIOR REJECT ALL BIDS AND START OVER AGAIN, BUT RATHER THE LEASE SHOULD BE AWARDED TO THE SECOND HIGHEST BIDDER, WHOSE BID CONFORMED IN EVERY WAY TO THE TERMS OF THE NOTICE OF SALE. THE COURT STATED AT PAGE 1120 OF THAT DECISION:

" *** IT IS ALSO VERY IMPORTANT THAT BIDDERS WHO COMPLY FAITHFULLY AND SCRUPULOUSLY WITH BIDDING REGULATIONS SHOULD NOT IN EFFECT BE PENALIZED BY THE ERRORS OF LESS CAREFUL BIDDERS WHO FAIL TO FOLLOW CORRECT PROCEDURES."

BY IMPLICATION IN YOUR LETTER OF MAY 28, 1970, AND BY CLEAR ASSERTIONS MADE AT THE CONFERENCE ON JUNE 2, 1970, WITH MEMBERS OF THIS OFFICE, YOU URGE THAT BOGUE OWED A DUTY, (PRESUMABLY UNDER PARAGRAPHS 3 AND 23 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS) TO REQUIRE THE CONTRACTING OFFICER TO ISSUE AN AMENDMENT TO THE IFB SPELLING OUT HIS INTERPRETATION OF THE SOLICITATION AS CONTAINED IN THE TELEGRAM OF FEBRUARY 18. WE ARE, HOWEVER, UNABLE TO READ SUCH A REQUIREMENT INTO PARAGRAPH 23, WHICH WE INTERPRET AS APPLYING ONLY TO QUESTIONS WHICH WERE RAISED AT THE ARMY BIDDERS CONFERENCE. NEITHER ARE WE ABLE TO READ SUCH A REQUIREMENT INTO PARAGRAPH 3 WHICH, SO FAR AS THE BIDDERS ARE CONCERNED, ONLY IMPOSES OBLIGATIONS TO SUBMIT REQUESTS FOR EXPLANATIONS IN WRITING, AND A SUFFICIENT TIME IN ADVANCE OF BID OPENING SO AS TO PERMIT THE CONTRACTING OFFICER TO ADVISE ALL BIDDERS BEFORE BID OPENING.

WE ARE NOT AWARE OF ANY OTHER PROVISION OF THE INVITATION, OR ANY PROVISION OF THE PROCUREMENT REGULATIONS, OR ANY DECISION OF THIS OFFICE, WHICH WOULD OPERATE TO IMPOSE A LEGAL DUTY ON ANY BIDDER TO ASSURE THAT THE GOVERNMENT'S REPRESENTATIVE FOLLOWS PROCEDURE SET OUT IN PARAGRAPH 3 FOR THE DISSEMINATION OF INFORMATION TO ALL OFFERORS. NEITHER DO WE THINK THAT THE FAILURE OF A BIDDER TO SO DEMAND WOULD IN ANY WAY AFFECT THE RESPONSIVENESS OR ACCEPTABILITY OF HIS BID. AS IMPLIED IN OUR EARLIER DECISION ANY SUCH DUTY MUST REST WITH THE AGENT OF THE GOVERNMENT. MUST THEREFORE CONCLUDE THAT NEITHER SUPERIOR DISCUSSED ABOVE, NOR UNITED STATES V HANNA NICKEL SMELTING COMPANY, 253 F. SUPP. 784 (1966), WHICH YOU ALSO CITE AND WHICH DEALS WITH ESTOPPEL BY ACQUIESCENCE, HAVE ANY APPLICATION TO A CORRECT DISPOSITION OF THIS MATTER.

WITH SPECIFIC REFERENCE TO YOUR ALLEGATION THAT AN AWARD WOULD HAVE BEEN MADE TO SCHOONMAKER AS THE LOW BIDDER IF THE FEBRUARY 18 TELEGRAM HAD NOT BEEN SENT, WE CAN ONLY SAY THAT THE PRESENT RECORD INDICATES THE CONTRACTING OFFICER DID NOT INTEND TO SOLICIT BIDS OR TO AWARD A CONTRACT ON THE BASIS ON WHICH SCHOONMAKER SUBMITTED ITS BID. IN VIEW THEREOF, THE FACT THAT THE INVITATION WAS SUFFICIENTLY AMBIGUOUS TO PERMIT A RESPONSIVE BID ON THAT BASIS DOES NOT OPERATE TO DEPRIVE THE CONTRACTING OFFICER OF HIS AUTHORITY TO REJECT ALL BIDS AND READVERTISE UNDER SPECIFICATIONS WHICH CORRECTLY AND UNAMBIGUOUSLY REFLECT THE DESIRED CONTRACT CONDITIONS. NEITHER DOES IT OPERATE TO DEPRIVE THIS OFFICE OF ITS AUTHORITY TO DIRECT SUCH READVERTISEMENT. WE THEREFORE ARE UNABLE TO AGREE THAT SCHOONMAKER WOULD HAVE RECEIVED AN AWARD IF THE FEBRUARY 18 TELEGRAM HAD NOT BEEN SENT.

CONCERNING YOUR ARGUMENT THAT EVERYONE KNEW HOW SCHOONMAKER WAS GOING TO BID BECAUSE OF THE QUESTION IT ASKED AT THE AIR FORCE BIDDERS BRIEFING CONFERENCE AND THAT THE ARMY CONTRACTING OFFICER THEREFORE OWED SCHOONMAKER A DUTY AFTER THE AIR FORCE BIDDERS BRIEFING CONFERENCE TO ADVISE SCHOONMAKER THAT ITS INTERPRETATION OF THE ARMY IFB WAS INCORRECT, WE BELIEVE THIS ARGUMENT PLACES AN UNWARRANTED RESPONSIBILITY ON THE CONTRACTING OFFICER. AT BEST, THE RECORD INDICATES SCHOONMAKER WAS INTERPRETING THE ARMY IFB DIFFERENTLY THAN THE AIR FORCE IFB AT THE TIME OF THE BIDDERS CONFERENCE. THERE WAS NO INDICATION, PRIOR TO BID OPENING, THAT SCHOONMAKER CONTINUED TO ADHERE TO THAT INTERPRETATION, OR THAT THE CONTRACTING OFFICER OR BOGUE KNEW SCHOONMAKER ADHERED TO THAT INTERPRETATION AND "SET A CAREFUL TRAP TO INDUCE SCHOONMAKER TO BID SEPARATE PRICES FOR PREPRODUCTION UNITS." IN THE ABSENCE OF SUCH EVIDENCE WE SEE NO VALID BASIS ON WHICH ANY RESPONSIBILITY, OTHER THAN THAT SET OUT IN PARAGRAPHS 3 AND 23 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, MAY BE IMPOSED ON THE CONTRACTING OFFICER.

YOUR SECOND ARGUMENT, WHICH IS RAISED FOR THE FIRST TIME IN YOUR REQUEST FOR RECONSIDERATION, IS THAT BOGUE'S BID WAS UNBALANCED IN VIOLATION OF PARAGRAPH H-7B OF THE IFB AND IT THEREFORE SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE. YOU CONTEND THAT, SINCE IT WAS NONRESPONSIVE AND AN AWARD THEREFORE COULD NOT HAVE BEEN MADE TO BOGUE, THE QUESTION OF PREJUDICE TO BOGUE BY REASON OF THE TELEGRAM OF FEBRUARY 18, IS MOOT.

PARAGRAPH H-7B PROVIDED AS FOLLOWS:

"B. ANY BID WHICH IS MATERIALLY UNBALANCED AS TO PRICES FOR BASIC AND OPTION QUANTITIES MAY BE REJECTED AS NONRESPONSIVE. AN UNBALANCED BID IS ONE WHICH IS BASED ON PRICES SIGNIFICANTLY LESS THAN COST FOR SOME WORK AND PRICES WHICH ARE SIGNIFICANTLY OVERSTATED FOR OTHER WORK."

WE RECOGNIZED IN B-162839, DECEMBER 13, 1968, THAT AN IDENTICAL PROVISION WAS A NECESSARY SAFEGUARD TO PREVENT THE RECEIPT OF UNBALANCED BIDS. THERE WE STATED:

"NO BIDDER WHO HAS SUBMITTED AN UNREASONABLY HIGH PRICE ON THE BASIC QUANTITY SHOULD BE PERMITTED TO RECEIVE AN AWARD REGARDLESS OF HIS PRICES ON THE OPTION QUANTITIES." IN THE PRESENT PROCUREMENT A COMPARISON OF BASIC AND OPTION QUARTERLY BID PRICES SUBMITTED BY ALL THREE BIDDERS WOULD APPEAR TO RAISE A QUESTION AS TO WHETHER THE BIDS OF BOTH BOGUE AND SCHOONMAKER MAY NOT BE UNBALANCED. HOWEVER, SINCE COST DATA IS NOT AVAILABLE TO EITHER THIS OFFICE OR THE DEPARTMENT OF THE ARMY, A DETERMINATION WOULD NOT APPEAR TO BE EITHER PROPER OR PRACTICABLE. IN ANY EVENT, SINCE IT IS OUR OPINION THAT AN AWARD CANNOT PROPERLY BE MADE TO YOUR FIRM OR TO ANY OTHER BIDDER, WE DO NOT FEEL THAT THIS ISSUE IS GERMANE TO OUR PRESENT CONSIDERATION OF THIS MATTER.

LASTLY, YOU ARGUE THAT DURING THE COURSE OF THIS PROTEST, SCHOONMAKER HAS NOT BEEN GRANTED ADMINISTRATIVE DUE PROCESS BECAUSE OF ERRORS AND OMISSIONS IN THE ADMINISTRATIVE REPORT AND LEGAL MEMORANDUM FURNISHED OUR OFFICE IN RESPONSE TO THE PROTEST, WHICH PREVENTED YOU FROM SUBMITTING MEANINGFUL COMMENTS IN RESPONSE THERETO TO OUR OFFICE. YOU LIST SEVERAL POINTS OF OMISSION AND COMISSION WHICH YOU ARGUE JUSTIFY THE ABOVE CONCLUSION, AND YOU FURTHER SUGGEST THAT OUR OFFICE HAS BEEN BADLY MISLED AS A CONSEQUENCE. OF THE SEVEN POINTS YOU LIST, FIVE DEAL WITH THE FACT THAT THE ADMINISTRATIVE REPORT FAILED TO MENTION THE EXISTENCE OF THE TELEGRAM, WHILE TWO DEAL WITH THE OMISSION OF ANY MENTION OF THE FACTS SURROUNDING THE AIR FORCE BIDDERS CONFERENCE.

DURING THE COURSE OF OUR CONSIDERATION OF THE PROTEST WE FURNISHED YOUR COUNSEL COPIES OF ALL CORRESPONDENCE FROM BOGUE, INCLUDING THE LETTER OF APRIL 6, 1970, TO WHICH WAS ATTACHED A COPY OF THE TELEGRAM. THE DEPARTMENT OF THE ARMY ALSO FURNISHED YOU A COPY OF THE ENTIRE ADMINISTRATIVE REPORT FURNISHED OUR OFFICE. OUR FILES REFLECT THAT YOU RESPONDED TO ALL OF THE PERTINENT CORRESPONDENCE. IN ADDITION, SEVERAL CONFERENCES, BOTH FORMAL AND INFORMAL, WERE CONDUCTED WITH REPRESENTATIVES OF OUR OFFICE.

WHILE IT IS TRUE THAT THE EXISTENCE OF THE FEBRUARY 18 TELEGRAM WAS DEVELOPED INDEPENDENTLY BY OUR OFFICE AS A RESULT OF CORRESPONDENCE WITH BOGUE, A COPY OF THE TELEGRAM WAS PROMPTLY FURNISHED TO YOU.

ALTHOUGH WE TOO WERE CONCERNED OVER THE ABSENCE OF ANY MENTION OF THE TELEGRAM IN THE ADMINISTRATIVE REPORT FURNISHED OUR OFFICE, AND AGREE THAT IT SHOULD HAVE BEEN INCLUDED IN THE ADMINISTRATIVE REPORT, SINCE IT WAS BROUGHT TO OUR ATTENTION BEFORE WE REACHED OUR DECISION AND SINCE YOU WERE PROMPTLY FURNISHED A COPY OF THE TELEGRAM AND AFFORDED FULL OPPORTUNITY TO ARGUE ITS MATERIALITY, WE CANNOT AGREE THAT YOU WERE DEPRIVED OF ADMINISTRATIVE DUE PROCESS.

CONCERNING THE FAILURE OF THE ADMINISTRATIVE REPORT TO REFLECT CONVERSATIONS BETWEEN THE CONTRACTING OFFICER AND AIR FORCE PERSONNEL FOLLOWING THE AIR FORCE BIDDERS CONFERENCE WE HAVE CONTINUED TO AGREE WITH YOUR INITIAL VIEWS THAT THE AIR FORCE PROCUREMENT WAS IMMATERIAL TO REACHING A DECISION IN THIS CASE, AND WE FIND NO BASIS IN YOUR PRESENT ARGUMENT TO CHANGE OUR VIEWS.

WHILE WE WILL REVERSE A PREVIOUS DECISION IF A MATERIAL MISTAKE OF LAW OR FACT IS ALLEGED AND PROVEN, THERE IS NO SHOWING IN YOUR RECENT CORRESPONDENCE THAT OUR PRIOR DECISION INVOLVED ANY MISTAKE OR OMISSION OF A MATERIAL FACT, NEITHER DO WE BELIEVE THAT THE LEGAL AUTHORITIES AND ARGUMENTS YOU HAVE PRESENTED ESTABLISH ANY ERROR OF LAW THEREIN. OUR DECISION OF MAY 22, 1970, IS THEREFORE AFFIRMED.

THE COPY OF THE AIR FORCE PROCUREMENT DOCUMENTS FURNISHED WITH YOUR LETTER OF MAY 28 IS RETURNED.