period; and the import of these questions was plain to persons familiar with the contractual aspects of invitations for bids, including Mr. Bingham.
13. On February 9, 1970, the day preceding the Air Force Conference, Mr. Bingham and representatives of the Air Force developed answers to the questions submitted by bidders, including the questions submitted by Plaintiff and Intervenor.
14. The Air Force bidders conference on February 10, 1970, was attended by representatives of four bidders including Plaintiff and Intervenor. The Army was represented by Messrs. Prada and Clarence Guthrie and the Department of Defense was represented by Mr. Bingham, and Messrs. Frank Perka, James Gale and Joseph Sullivan. Mr. Bingham was seated at the head table alongside of Jack Metz, the Air Force Contracting Officer. Mr. Daniels, representing Plaintiff, sat next to Mr. Guttenberg at the far end of the table. At the outset of the conference, representatives of bidders were requested to identify themselves. Messrs. Daniels and Caldwell indicated they were present on behalf of Plaintiff. The Department of Defense, the Army and Intervenor knew that Plaintiff was represented at the conference and that Mr. Daniels participated in the conference on behalf of Plaintiff.
15. During the course of the Air Force conference, the questions and answers referred to in Findings of Fact Nos. 12 and 13 were read by the Air Force. Mr. Daniels indicated that the former of these questions had been submitted by Plaintiff and he attempted unsuccessfully to persuade the Air Force to alter its Invitation so as to permit separate and different prices for the Pre-Production Models as distinct from the Production Models as the Army was permitting. The Air Force Contracting Officer represented that the Armed Services Procurement Regulations (ASPR) precluded the Air Force from pricing the units differently. Plaintiff also asked other questions and made statements indicating that it read and was acting upon the Army Invitation as permitting different prices for the Pre-Production and the Production Models of like Generator Sets. At no time did the Army, the Department of Defense or Intervenor indicate that any of them read or was acting upon the Army Invitation differently than Plaintiff and statements were made after consultation between Mr. Bingham, representing the Department of Defense, and Air Force Contracting Officer Metz which indicated that the Army and the Air Force differed in their interpretations of the Armed Services Procurement Regulations and the method of issuing Invitations for Bids.
16. Written minutes of the Air Force bidders conference, including the question of Plaintiff and Intervenor, were distributed by the Air Force to all attendees a few days following the conference. Plaintiff received its copy on February 20, 1970; Intervenor, on February 24, 1970; and a copy of the minutes were attached to a report on the conference, dated February 19, 1970, submitted to Col. Rochefort. A copy was also sent to the Army prior to February 27, 1970, and the Army contracting officer and the Air Force contracting officer discussed Plaintiff's "interpretation and potential bid on the Army IFB, at length." (P. Ex. 13, p. 3).
17. Armed Services Procurement Regulation 2-208(c), reiterated in Paragraph 3 of the Invitation, provides that "any information given to a prospective bidder concerning an invitation shall be furnished promptly to all other prospective bidders, as an amendment to the invitation * * * if such information is necessary to the bidders in submitting bids * * *." ASPR 2-211(b) provides that "Such personnel shall not furnish any information to a potential supplier which alone or together with other information may afford him an advantage over others." ASPR 3.504.2 provides that "All prospective offerors shall be furnished identical information in connection with the proposed procurement."
18. On February 16, 1970, in a telephone conversation initiated by Intervenor, the Army in effect advised Bogue that the Army would interpret the Invitation as requiring identical prices for the Pre-Production and the Production Models of like Generator Sets and Bogue complained that this would constitute a hardship to it. "During this telephone conversation, Mr. Guttenberg also stated that this question has come up at an Air Force bidder's conference * * * on 10 February 1970." On February 18, 1970, in response to a telegram from Intervenor, the Army stated in a telegram to Bogue that "IT IS NECESSARY THAT PRICING FOR LIKE ITEMS/IDENTIFIED BY FSN/BE THE SAME." The Army had the telephone conversation only with Intervenor. Notwithstanding the ASPR mentioned in Finding of Fact No. 17, the Army did not communicate this information to Plaintiff or to Libby. Nor did the Army incorporate this information into a written amendment to the Invitation.
19. The Court finds that on February 16, 1970, and at all times pertinent thereafter, the Army, the Department of Defense and Intervenor knew that Plaintiff was interpreting the Army Invitation as permitting different prices for Pre-Production Models and Production Models of like Generator sets. Nevertheless, at no time was Plaintiff advised or put on notice that the Army and Department of Defense interpreted the Army Invitation as requiring that identical prices be bid for the Pre-Production and Production Models of like Generator Sets.
20. Plaintiff submitted a bid in response to the Army Invitation in which there were different prices for the Pre-Production and the Production Models of like Generator Sets.
21. On February 27, 1970, the Army opened the bids which had been submitted in response to the Invitation by Plaintiff, Intervenor and Libby. Plaintiff was represented by Mr. James Blackaller, Jr. and Intervenor was represented by Mr. Guttenberg and two other persons. The bid submitted by Libby was read first; the bid submitted by Plaintiff was read second and the bid submitted by Intervenor was read last. During the reading of Plaintiff's bid, Mr. Guttenberg stated that Plaintiff's bid was non-responsive to the Army Invitation. After all bids had been read, Mr. Guttenberg advised the Army that he believed that Plaintiff's bid was non-responsive and inquired what the Army proposed to do. The Army advised that it would evaluate the situation. Thereafter, Mr. Guttenberg stated to Mr. Blackaller that Plaintiff "was the apparent low bidder but that it wasn't over yet."
22. Based upon the evaluation formula set forth in the Invitation, the evaluated bids submitted in response to the Invitation were as follows:
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