B-167783, FEB. 17, 1970

B-167783, FEB. 17, 1970

BID PROTEST--AWARD DELAY--FUNDS AVAILABILITY LETTER ON BEHALF OF SYSTREX CORPORATION PROTESTING DELAY IN AWARD OF CONTRACT FOR ECHO SOUNDERS FOR NAVAL SHIP SYSTEMS COMMAND. A DETERMINATION THAT FUNDS ARE NOT AVAILABLE FOR ANY PORTION OF THE PROCUREMENT PRECLUDES FURTHER ACTION BY THE AGENCY. BID PROTEST--AWARD DELAY--FUNDS AVAILABILITY

TO MR. RALPH A. HORTON:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 12, 1970, WITH ENCLOSURES, PROTESTING ON BEHALF OF SYSTREX CORPORATION, THE GOVERNMENT'S DELAY IN AWARDING A CONTRACT TO SYSTREX UNDER INVITATION FOR BIDS NO. (00024-69-B- 3659 ISSUED BY THE NAVAL SHIP SYSTEMS COMMAND.

AFTER BID OPENING, THERE WERE A NUMBER OF PROTESTS FILED IN THIS OFFICE, INCLUDING ONE ON BEHALF OF SYSTREX CORPORATION. IN OUR DECISION OF DECEMBER 8, 1969, WE HELD THAT THE FAILURE OF SYSTREX TO TIMELY ACKNOWLEDGE RECEIPT OF AMENDMENT 0004 AND 0005 TO THE SOLICITATION CONSTITUTED A MINOR INFORMALITY THAT SHOULD BE WAIVED UNDER ASPR 2-405 (IV) AND THAT SYSTREX WAS, THEREFORE, THE LOW RESPONSIVE BIDDER.

WITH REGARD TO THE NAVY'S FAILURE TO AWARD THE CONTRACT TO SYSTREX, WE QUOTE FROM THE ADMINISTRATIVE REPORT:

"ECHO SOUNDERS, THE SUBJECT OF THIS PROCUREMENT, ARE LISTED WITH A COMPOSITE OF ELEMENTS INCLUDED UNDER OTHER PROCUREMENT NAVY ANCILLARY ITEMS (THOSE UNDER $500,000). FUNDS ARE AVAILABLE FOR ONLY 53% OF THIS BUDGET CLASS. ACCORDINGLY, IT WAS NECESSARY TO REVIEW THE INDIVIDUAL ELEMENTS IN THIS CATEGORY AND RATE THEM ACCORDING TO THEIR PRIORITIES. THIS REVIEW IT WAS FOUND THAT REPLACEMENT ECHO SOUNDERS FELL BELOW THE LEVEL FOR WHICH FUNDS WERE MADE AVAILABLE. THIS EQUIPMENT IS FOR FLEET REPLACEMENT INSTALLATION AND HAD A LOW PRIORITY IN THE ANTISUBMARINE WARFARE PROGRAM. IN THIS SITUATION, THE NAVY IS CONSTRAINED TO REFURBISH EXISTING EQUIPMENTS, DEFERRING REPLACEMENT.

"IN THIS SITUATION, THIS COMMAND OF NECESSITY DETERMINED THAT FUNDS ARE NOT AVAILABLE FOR ANY PORTION OF THIS PROCUREMENT. ACCORDINGLY, THE IFB WAS CANCELLED AND SYSTREX SO ADVISED BY THIS COMMAND'S LETTER OF 21 JANUARY 1970 (ENCLOSURE (1) ). BASED UPON OUR PRESENT FORECAST, THE EARLIEST POSSIBLE TIME THAT A NEW PROCUREMENT FOR THIS EQUIPMENT CAN BE PROJECTED IS IN EARLY 1971, IF FUNDS CAN THEN BE MADE AVAILABLE FOR THAT PURPOSE. IF IT PROVES POSSIBLE TO EFFECT PROCUREMENT OF THIS EQUIPMENT AT A LATER TIME, IT IS PLANNED THAT THE PROCUREMENT WILL BE MADE ON A FORMALLY ADVERTISED, COMPETITIVE BASIS IN ACCORDANCE WITH THE GOVERNING PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION. AT SUCH TIME SYSTREX WILL BE INVITED TO PARTICIPATE."

IN VIEW OF THE UNAVAILABILITY OF FUNDS, IT IS APPARENT THAT THE ADMINISTRATIVE AGENCY CANNOT PROCEED WITH THE PROCUREMENT. ACCORDINGLY, WE WILL CONSIDER THE MATTER CLOSED.