B-175015, NOV 20, 1972

B-175015, NOV 20, 1972

BID PROTEST - FIRST ARTICLE WAIVER DECISION AFFIRMING DENIAL OF THE PROTEST OF GULTON BATTERY CORPORATION, AGAINST AWARD OF A CONTRACT TO FOURDEE, INC. UNDER AN IFB ISSUED BY ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALA. FOR A QUANTITY OF STORAGE BATTERY ASSEMBLIES. WAIVER OF A FIRST ARTICLE REQUIREMENT IS PRIMARILY FOR ADMINISTRATIVE RESOLUTION AND IN THE ABSENCE OF A CLEAR SHOWING OF ABUSE OF DISCRETION, A CONTRACTING OFFICER'S DETERMINATION WILL NOT BE DISTURBED.

TO GULTON BATTERY CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 10, 1972, TO SENATOR CLIFFORD P. CASE, A COPY OF WHICH WAS FORWARDED TO OUR OFFICE, REQUESTING RECONSIDERATION OF OUR DECISION OF SEPTEMBER 29, 1972, WHICH CONCLUDED THAT WE COULD FIND NO LEGAL OBJECTION TO THE AWARD MADE TO FOURDEE, INCORPORATED, UNDER INVITATION FOR BIDS NO. DAAH01-72-B-0041, ISSUED BY THE ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA, FOR A QUANTITY OF STORAGE BATTERY ASSEMBLIES.

YOU CONTEND THAT OUR DECISION OF SEPTEMBER 29, 1972, INDICATED THAT OUR OFFICE IS IN AGREEMENT WITH YOUR BASIC CONTENTION THAT THE PROCUREMENT PRACTICES FOLLOWED BY THE DEPARTMENT OF THE ARMY WERE FAULTY. HOWEVER, A READING OF THE REFERENCED DECISION WILL REVEAL THAT WE FAILED TO FIND ANY FAULTY PROCUREMENT PRACTICES OR ANY LEGAL BASIS FOR OBJECTING TO THE PROCURING ACTIVITY'S CONTRACT AWARD.

THE THRUST OF YOUR PROTEST IS THAT THE PROCURING ACTIVITY SHOULD HAVE INCLUDED THE COST OF FIRST ARTICLE TESTING IN EVALUATING THE FOURDEE BID.

IT APPEARS THAT BOTH YOUR FIRM AND FOURDEE WERE CURRENT PRODUCERS OF THE ITEM IN QUESTION AT THE TIME OF BID OPENING. IN SUBMITTING YOUR BID, THEREFORE, YOU REQUESTED WAIVER OF THE FIRST ARTICLE TESTING REQUIREMENT. AS STATED IN THE SOLICITATION, WAIVER OF THIS REQUIREMENT INVOLVED A CORRESPONDING REDUCTION IN THE EVALUATED BID PRICE OF $12,800. FOURDEE DID NOT SPECIFICALLY REQUEST A WAIVER IN ITS BID; HOWEVER, THE SOLICITATION PROVIDED FOR SUCH A WAIVER BY THE GOVERNMENT. AT THE TIME OF BID OPENING NEITHER YOUR FIRM NOR FOURDEE QUALIFIED FOR THE WAIVER BUT WITHIN A FEW WEEKS YOUR FIRM DID QUALIFY, WHILE IN THE CASE OF FOURDEE WAIVER WAS AUTHORIZED A FEW MONTHS AFTER BID OPENING. AS A RESULT OF THE WAIVER FOR BOTH FIRMS, FOURDEE REMAINED THE LOW BIDDER. WITHOUT THE WAIVER FOR FOURDEE, YOUR FIRM WOULD HAVE BEEN THE LOW BIDDER.

YOU CONTENDED THAT A WAIVER WAS INAPPROPRIATE FOR FOURDEE BECAUSE THE BIDDER HAD NOT REQUESTED SUCH A WAIVER IN ITS BID DOCUMENTS. YOU ALSO STATED THAT THERE WERE EXTENDED DISCUSSIONS BETWEEN THE AGENCY AND FOURDEE PRIOR TO THE GRANTING OF THE WAIVER. CITING B-168557, JANUARY 23, 1970, WE STATED THAT THE GRANTING OF THE WAIVER WAS PROPERLY A MATTER OF ADMINISTRATIVE DISCRETION, AND WE COULD NOT OBJECT TO SUCH A DETERMINATION ON THE PART OF THE ADMINISTRATIVE AUTHORITY UNLESS IT WAS SHOWN TO BE AN ARBITRARY OR CAPRICIOUS ACTION. WE CONCLUDED AS FOLLOWS:

"THE DECISION AS TO WHETHER FIRST ARTICLE REQUIREMENT SHOULD BE WAIVED IS PRIMARILY FOR ADMINISTRATIVE RESOLUTION. IN THE ABSENCE OF A CLEAR SHOWING THAT THE DISCRETION INHERENT IN AN ADMINISTRATIVE DETERMINATION OF THIS NATURE HAS BEEN OVERREACHED, OUR OFFICE WILL NOT DISTURB THE CONTRACTING OFFICER'S DECISION. WE WOULD HAVE SOME QUESTION CONCERNING THE UNDUE DELAY OF AN AWARD FOR THE SOLE PURPOSE OF PERMITTING A BIDDER TO QUALIFY FOR WAIVER OF THE FIRST ARTICLE REQUIREMENT. IN THIS CASE, HOWEVER, THE ADMINISTRATIVE REPORT STATES THAT THE DELAY IN THE AWARD WAS DUE TO FACTORS UNRELATED TO THE FIRST ARTICLE ISSUE. THEREFORE, WE DO NOT QUESTION THE ACTION IN THIS INSTANCE.

"FOR THE FOREGOING REASONS, WE FIND NO LEGAL BASIS FOR OBJECTING TO THE PROCURING ACTIVITY'S AWARD OF THE CONTRACT TO FOURDEE. ACCORDINGLY, YOUR PROTEST IS DENIED."

YOU HAVE NOT PRESENTED ANY ADDITIONAL FACTS OR ARGUMENTS REQUIRING US TO CHANGE OUR POSITION IN REGARD TO THIS CASE. BASED ON THE RECORD, WE MUST AFFIRM OUR PRIOR DECISION DENYING YOUR PROTEST.