B-143583, SEP. 27, 1960

B-143583, SEP. 27, 1960

TO ASSOCIATED WIRE INDUSTRIES:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 18, 1960, WITH ENCLOSURE, PROTESTING THE AWARD OF A CONTRACT UNDER DEPARTMENT OF THE ARMY INVITATION NO. 33-079-60-120.

IN RESPONSE TO THE INVITATION, WHICH WAS ISSUED ON MAY 3, 1960, BY THE ROSSFORD ORDNANCE DEPOT, TOLEDO, OHIO, YOU SUBMITTED A BID OFFERING TO FURNISH 1,771 SPOOLS OF DR-8-A REAL, WIRE, ETC., AT $2.10 EACH. ON JUNE 9, 1960, THE ORDNANCE DEPOT REQUESTED THE NEW YORK ORDNANCE DISTRICT TO CONDUCT A PRE-AWARD SURVEY OF YOUR COMPANY WHICH RESULTED IN AN UNFAVORABLE RECOMMENDATION BASED PRIMARILY UPON YOUR FAILURE TO COMPLY WITH PARAGRAPH 8 OF THE "NOTES" OF THE INVITATION FOR BIDS REQUIRING CERTAIN INFORMATION TO BE FURNISHED IN THE EVENT BIDDERS WERE OFFERING GOVERNMENT SURPLUS PROPERTY. IN VIEW OF THE SURVEY REPORT, THE CONTRACTING OFFICER DETERMINED THAT YOUR BID PROPERLY COULD NOT BE REGARDED AS BEING RESPONSIVE IN THIS REGARD AND, THEREFORE, AWARD OF CONTRACT WAS MADE ON JUNE 30, 1960, TO THE BRISTOL TOOL AND FORGING CORPORATION WHO SUBMITTED THE SECOND LOW BID OF $5.25 EACH FOR THE SPOOLS.

YOUR PROTEST OF THE AWARD IS MADE PRIMARILY ON YOUR CONTENTIONS THAT THE GOVERNMENT CONTRACTING OFFICER ACTED HASTILY IN ACCEPTING A VERBAL ADVERSE SURVEY REPORT, THAT YOU WERE IN A POSITION TO FURNISH PROPERTY THAT COMPLIED BOTH IN QUALITY AND QUANTITY WITH THE SPECIFICATIONS, AND THAT THE BRISTOL TOOL AND FORGING CORPORATION IS GOING TO FURNISH, AS NEWLY MANUFACTURED PROPERTY, REELS WHICH HAVE BEEN PURCHASED BY IT FROM GOVERNMENT SURPLUS.

YOUR BID CONTAINS THE NOTATION "WE OFFER GOVERNMENT SURPLUS.' THIS BEING THE CASE, THE TERMS OF PARAGRAPH 8, FORMER GOVERNMENT SURPLUS PROPERTY OF THE "NOTES" OF INVITATION NO. 33-079-60-120 BECAME COMPLETELY APPLICABLE AND REQUIRED THAT YOU FURNISH, UNDER SUBPARAGRAPH C (1), (2) AND (3), THE FOLLOWING INFORMATION WITH RESPECT TO SUCH ITEMS OF SURPLUS PROPERTY:

"/1) PACKING OR CONTAINER MARKINGS OR STAMPINGS ON THE PROPERTY WHICH IDENTIFY THE PROPERTY AS FORMER GOVERNMENT SURPLUS PROPERTY.

"/2) NUMBER OF UNITS AND DOLLAR VALUE OF TOTAL QUANTITY OFFERED WHICH IS FORMER GOVERNMENT SURPLUS PROPERTY.

"/3) EARLIEST DATE TO WHICH BIDDER CAN CERTIFY THE PROPERTY OFFERED WAS DISPOSED OF BY THE GOVERNMENT.'

YOU INSERTED ON YOUR BID AFTER (1) ABOVE,"SC," AFTER (2) "ALL" AND AFTER (3) "NO KNOWLEDGE.' UPON A REQUEST FROM THE PRE-AWARD SURVEY OFFICIALS FOR MORE SPECIFIC INFORMATION IN THIS REGARD YOU FORWARDED A LETTER DATED JUNE 16, 1960, FURNISHING INFORMATION WHICH WAS INCOMPLETE AND DIFFERED FROM THAT FURNISHED ON YOUR BID AS SHOWN ABOVE. REGARDING (1) YOU ADVISED IN YOUR LETTER THAT THE PACKING AND CONTAINER MARKINGS, ETC., GENERALLY WERE NOT KNOWN BUT THAT SOME REELS HAD THE "SC" STAMP ON THEM. ON (2) YOU ADVISED THAT THE NUMBER OF UNITS OFFERED WERE AS REQUIRED BY THE INVITATION BUT THAT THE DOLLAR VALUE, AS ALSO CALLED FOR, WAS UNKNOWN. ALSO, YOU ADVISED WITH RESPECT TO (3) THAT YOU COULD FURNISH NO DEFINITE DATE OF PURCHASE SINCE THE ITEMS WERE BOUGHT FROM VARIOUS GOVERNMENT DEPOTS. IN ADDITION TO YOUR FAILURE TO FURNISH SUCH INFORMATION REQUIRED BY THE INVITATION, THE CONTRACTING OFFICER DETERMINED THAT THE SURPLUS MATERIAL OFFERED BY YOU COULD NOT MEET THE INSPECTION REQUIREMENTS. THE DETERMINATION WAS BASED UPON VARIOUS FACTS UNCOVERED DURING THE SURVEY SUCH AS THE MATERIAL OFFERED BY YOU BEING UNIDENTIFIABLE AS TO CONTRACTOR, CONTRACT AND LOT NUMBERS, AND DATE OF MANUFACTURE. THE SPOOLS HAD WIRE REMNANTS STILL REMAINING ON THEM AND SOME WERE DENTED AND/OR RUSTED, CLEARLY SHOWING THAT THEY WERE USED SPOOLS. ALSO, WHILE THE 125 SPOOLS THAT YOU MADE AVAILABLE TO THE SURVEY OFFICIALS VISUALLY APPEARED TO MEET THE SPECIFICATIONS, EVEN THOUGH SOME WERE DENTED AND RUSTED, ATTEMPTS TO ASCERTAIN, FOR FURTHER INSPECTION PURPOSES, THE SOURCE FROM WHICH THE BALANCE OF THE 1,771 SPOOLS REQUIRED WOULD BE OBTAINED BY YOU PROVED TO BE FRUITLESS.

OUR OFFICE CONSISTENTLY HAS HELD THAT THE QUESTION AS TO WHAT TYPE OF EQUIPMENT IS TO BE PROCURED TO MEET THE ACTUAL NEEDS OF THE GOVERNMENT IS FOR DETERMINATION ON THE BASIS OF THE OPINIONS OF THE TECHNICIANS IN THE ADMINISTRATIVE OFFICE. IN THIS REGARD, IT IS OBVIOUS THAT THE EXPRESS PROVISIONS OF PARAGRAPH 8C (1), (2) AND (3) WERE INSERTED IN THE INVITATION FOR THE PURPOSE OF FACILITATING SUCH A DETERMINATION. HENCE, THERE CAN BE NO DOUBT THAT YOUR FAILURE TO FURNISH SATISFACTORY INFORMATION IN RESPONSE TO THIS PROVISION CONSTITUTED A DEVIATION FROM THE INVITATION REQUIREMENTS AND, THEREFORE, RENDERED YOUR BID NONRESPONSIVE.

SINCE THE FINDINGS OF BOARDS OF SURVEYS ARE PARTICULARLY PERTINENT IN THE AWARD OF CONTRACTS OF THIS KIND AND SINCE IT WAS IMPORTANT THAT THE AWARD HERE BE MADE PRIOR TO THE CLOSE OF THE FISCAL YEAR ON JUNE 30, WE DO NOT THINK THAT THE GOVERNMENT CONTRACTING OFFICER BREACHED HIS AUTHORITY IN REJECTING YOUR BID AND MAKING AN AWARD TO THE BRISTOL TOOL AND FORGING CORPORATION EVEN THOUGH HE MIGHT NOT HAVE HAD EACH AND EVERY DETAIL OF THE SURVEY REPORT BEFORE HIM AT THAT TIME. MOREOVER, YOU ARE INFORMED THAT THE NEW YORK ORDNANCE DISTRICT HAS ASCERTAINED THAT THE BRISTOL CORPORATION HAS PLACED A PURCHASE ORDER WITH THE CROSBY MANUFACTURING COMPANY FOR THE MANUFACTURE OF THE REELS AND THAT THE ORDNANCE DISTRICT HAS ALERTED THE INSPECTION BRANCH TO INSURE THAT ONLY REELS OF NEW MANUFACTURE WILL BE ACCEPTED.

ACCORDINGLY, WE MUST CONCLUDE THAT THE ACTION TAKEN BY THE DEPARTMENT OF THE ARMY IN THE MATTER IS NOT SUBJECT TO LEGAL OBJECTION.