B-161448, APR. 12, 1968

B-161448, APR. 12, 1968

TO MR. SECRETARY:

REFERENCE IS MADE TO OUR DECISION B-161448 OF FEBRUARY 7, 1968, RECENT CONFERENCES WITH REPRESENTATIVES OF YOUR DEPARTMENT AND LETTER OF MARCH 25, 1968, FROM THE DIRECTOR OF PROCUREMENT POLICY AND REVIEW.

WE BELIEVE THERE MAY HAVE BEEN SOME MISUNDERSTANDING OF THE POSITION WE TOOK IN THAT DECISION. WE STATED THAT THE ACTION TAKEN DEVIATED FROM LEGAL AND REGULATORY REQUIREMENTS IN MATTERS MATERIAL ENOUGH TO WARRANT CANCELLATION OF THE AWARD MADE, AND STATED FURTHER THAT CANCELLATION SHOULD, IN OUR OPINION, BE UNDERTAKEN UNLESS SUCH ACTION WOULD HAVE AN ADVERSE EFFECT UPON THE MILITARY POSTURE OF THE UNITED STATES.

IT WAS OUR BELIEF THAT AS A RESULT OF OUR DECISION AN EVALUATION WOULD BE MADE AS TO WHETHER, AS OF THAT TIME, RADALAB OR UNIVERSAL COULD MAKE EARLIER DELIVERY. LEST THERE BE ANY MISUNDERSTANDING OF OUR POSITION, IT WAS AND IS OUR VIEW THAT THE PREFERENCE OF RADALAB OVER UNIVERSAL FOR THE AWARD WAS COMPLETELY WITHOUT JUSTIFICATION.

AS OF THE DATE OF OUR DECISION RADALAB WAS DELINQUENT IN THE SUBMISSION OF ITS FIRST ARTICLE FOR TESTING, AND HAD REQUESTED A TIME EXTENSION, ALLEGEDLY BECAUSE OF EXCUSABLE DELAYS. IT WAS NOT THE INTENT OF OUR DECISION THAT CONSIDERATION SHOULD BE GIVEN TO ANYTHING OTHER THAN THE PROBABLE DATES OF ACTUAL DELIVERY BY RADALAB AND UNIVERSAL, REGARDLESS OF THE EXCUSABILITY OF DELAY BY RADALAB. WE CALLED ATTENTION IN OUR DECISION TO UNIVERSAL'S OFFER OF JANUARY 26, 1968, TO BEGIN DELIVERIES IN 210 DAYS AFTER AWARD.

WE ARE NOW INFORMED THAT IT IS CONTEMPLATED GIVING RADALAB A TIME EXTENSION OF 90 DAYS. IF GRANTED, THIS WOULD PUT RADALAB'S INITIAL DELIVERIES TOWARD THE END OF NOVEMBER 1968, ASSUMING THAT IT SECURES PROMPT FIRST ARTICLE APPROVAL, WHICH IS BY NO MEANS CERTAIN. UNIVERSAL'S OFFER OF JANUARY 26, 1968, WOULD HAVE MEANT THE BEGINNING OF DELIVERIES AROUND THE FIRST OF OCTOBER 1968, ASSUMING AWARD BY MARCH 1, 1968, NEARLY 2 MONTHS EARLIER THAN FROM RADALAB IF THE 90-DAY EXTENSION IS GRANTED.

UNIVERSAL BEGAN DELIVERIES IN 180 DAYS AFTER APPROVAL OF ITS PREPRODUCTION MODEL UNDER ITS PRIOR CONTRACT, AND WE HAVE NO INDICATION THAT IT COULD NOT EQUAL OR BETTER THAT TIME IF IT NOW RECEIVES AWARD.

IT SEEMS TO US THAT THE MOST PRACTICAL SOLUTION TO THE PRESENT SITUATION, AND THE ONE WHICH WOULD BEST SERVE THE INTERESTS OF FAIRNESS TO BOTH PARTIES, WOULD BE A NEGOTIATED AWARD TO UNIVERSAL FOR HALF OF THE CONTRACT ITEMS, WHICH IT HAS INDICATED WILLINGNESS TO ACCEPT, AND TERMINATION OF THAT QUANTITY UNDER THE RADALAB CONTRACT. WE RECOMMEND THAT THIS BE DONE, NOTWITHSTANDING THE FACT THAT ADDITIONAL COST MAY BE INCURRED.