B-160486, JAN. 6, 1969

B-160486, JAN. 6, 1969

TO BURLINGAME ASSOCIATES LTD.:

THIS IS IN REPLY TO YOUR LETTER OF SEPTEMBER 30, 1968, DIRECTING OUR ATTENTION TO THE PROCUREMENT OF AN ANALOG COMPUTER BY THE NAVAL AIR STATION, PATUXENT RIVER, MARYLAND, WHICH YOU BELIEVE WAS EFFECTED IN DISREGARD OF OUR DECISION B-160486, JANUARY 8, 1968.

THIS OFFICE HELD IN THE ABOVE REFERENCED DECISION THAT THE PROPOSED AWARD OF A CONTRACT TO ELECTRONIC ASSOCIATES, INC., FOR AN EAI-TR48 ANALOG COMPUTER WAS UNJUSTIFIED IN THE LIGHT OF SYSTRON-DONNER'S OFFER TO FURNISH THE GOVERNMENT A MODIFIED VERSION OF ITS SD-40 MODEL COMPUTER WHICH APPARENTLY WOULD MEET THE GOVERNMENT'S PERFORMANCE REQUIREMENTS AT A LOWER PRICE. IN CONDUCTING THIS PROCUREMENT NAS HAD UNDERTAKEN TO PROCURE BY NEGOTIATION ON THE BASIS THAT EAI WAS THE SOLE SOURCE OF SUPPLY FOR THE GOVERNMENT'S REQUIREMENTS. IN A REPORT TO THIS OFFICE THE COMMANDING OFFICER, NAS, HAS ADVISED THAT THE PRIOR SOLE SOURCE SOLICITATION WAS CANCELLED AS A RESULT OF OUR DECISION OF JANUARY 8, 1968. WE FIND NOTHING IN THAT DECISION, HOWEVER, WHICH WOULD APPEAR TO PRECLUDE THE EVENTUAL PURCHASE OF AN EAI-TR48 ANALOG COMPUTER ON MAY 16, 1968, BY ORDER PLACED UNDER THE GENERAL SERVICES ADMINISTRATION'S FEDERAL SUPPLY SCHEDULE. FOR THE REASONS INDICATED BELOW WE HAVE CONCLUDED THAT THE SUBSEQUENT PURCHASE BY NAS WAS EFFECTED IN ACCORDANCE WITH EXISTING PROCUREMENT STATUTES AND REGULATIONS AND THEREFORE PROPER.

ON NOVEMBER 21, 1967, THIS OFFICE ISSUED A DECISION, 47 COMP. GEN. 275, WITH RESPECT TO THE AUTHORITY OF THE ADMINISTRATOR OF GENERAL SERVICES UNDER THE PROVISIONS OF PUB.L. 89-306, 79 STAT. 1127, WHICH AMENDED THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 TO PROVIDE FOR THE ECONOMIC AND EFFICIENT PURCHASE, LEASE, MAINTENANCE, OPERATION AND UTILIZATION OF AUTOMATIC DATA PROCESSING EQUIPMENT (ADPE) BY FEDERAL DEPARTMENTS AND AGENCIES. IN OUR DECISION WE CONCLUDED THAT THE ABOVE STATUTE PROVIDED EXCLUSIVE AUTHORITY TO GSA TO PROCURE ALL GENERAL-PURPOSE ADPE AND RELATED SUPPLIES AND EQUIPMENT FOR USE BY OTHER FEDERAL AGENCIES AND DEPARTMENTS. IN OUR DECISION OF JANUARY 8, 1968, TO THE SECRETARY OF THE NAVY, THE DECISION OF NOVEMBER 21, 1967, WAS CALLED TO HIS ATTENTION WITH THE ADVICE THAT THE AUTHORITY OF HIS DEPARTMENT TO CONDUCT THE PROCUREMENT OF THE ITEMS IN QUESTION BE RECONSIDERED IN THE EVENT FURTHER ACTION TO OBTAIN THEM SHOULD BE DECIDED ON.

PENDING THE DEVELOPMENT AND ISSUANCE OF IMPLEMENTING REGULATORY MATERIAL, THE COMMISSIONER, FEDERAL SUPPLY SERVICE, PROVIDED INTERIM GUIDELINES TO FEDERAL DEPARTMENTS AND AGENCIES IN A LETTER DATED DECEMBER 16, 1967. THIS LETTER ADVISED THAT ORDERS PLACED AGAINST FEDERAL SUPPLY SCHEDULE CONTRACTS WOULD CONSTITUTE COMPLIANCE WITH OUR DECISION OF NOVEMBER 21, 1967, UNTIL APPROPRIATE REGULATIONS WERE PROMULGATED. THE AUTHORITY OF THE NAVY TO PROCURE ANALOG COMPUTERS FROM A FEDERAL SUPPLY SCHEDULE CONTRACT IS THUS CLEAR.

THE DEPARTMENT OF THE NAVY HAS ADVISED THIS OFFICE THAT THE EAI-TR48 ANALOG COMPUTER WAS SELECTED FOR PURCHASE BECAUSE AS LISTED ON THE SCHEDULE IT EXACTLY MET THE PROCURING ACTIVITY'S REQUIREMENTS. WHILE IT SEEMS THAT A SYSTRON-DONNER COMPUTER, ALSO AVAILABLE UNDER A SCHEDULE CONTRACT, COULD HAVE BEEN MODIFIED TO SATISFY THE STRINGENT WEIGHT AND SIZE REQUIREMENTS OF NAS, UNDER PRESENT REGULATIONS AND PROCEDURES THERE APPEARS TO BE NO LEGAL PROHIBITION AGAINST AN AGENCY PURCHASING THE ONLY COMMERCIAL ITEM UNDER A SUPPLY SCHEDULE WHICH WILL WITHOUT MODIFICATION SATISFY NEEDS IT HAS DETERMINED TO BE ESSENTIAL, EVEN THOUGH A SIMILAR ITEM IS AVAILABLE WHICH MIGHT BE MODIFIED TO MEET THE AGENCY'S REQUIREMENT.

FOR THE REASONS STATED, WE FIND NO LEGAL BASIS TO OBJECT TO THE ACTION TAKEN IN THIS CASE.