B-156008, MAR. 31, 1965

B-156008, MAR. 31, 1965

TO MR. A. J. MILLANE, DIVISION MANAGER:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 16, 1965, AND TO THE TELEGRAM OF JANUARY 26, 1965, PROTESTING CANCELLATION OF INVITATION FOR BIDS IFB600-1148-64 AND NEGOTIATION WITH A HIGH BIDDER.

THE CONTRACTING OFFICER HAS REPORTED THAT THE INVITATION FOR BIDS SOLICITED PRICES ON THE BASIS OF DELIVERY WITHIN 75 DAYS AFTER DATE OF CONTRACT AND THAT, WHILE THE BIDS WERE OPEN A CHANGE IN DELIVERY REQUIREMENTS DEVELOPED BY REASON OF AN URGENT NEED FOR THE FIRST UNIT BY JANUARY 22 AND THE SECOND UNIT BY FEBRUARY 5. IT IS REPORTED FURTHER THAT WHEN THE URGENT NEED DEVELOPED THE CONTRACTING OFFICE WAS PREPARING TO APPEAL FROM THE CERTIFICATE OF COMPETENCY TO THE OFFICE OF NAVAL MATERIAL AS PROVIDED BY PARAGRAPH 1-705.4 (E) OF THE ARMED SERVICES PROCUREMENT REGULATION. AN INQUIRY WAS MADE TO THE PRESIDENT OF YOUR COMPANY ON JANUARY 8 TO ASCERTAIN WHETHER IT COULD MEET THE DELIVERY REQUIREMENT AND BY TELEGRAM AND TELEPHONE THE CONTRACTING AGENCY WAS ADVISED THAT THE EARLIEST COMPLETION OF PRODUCTION WOULD BE 55 DAYS FROM RECEIPT OF AN ORDER. THE CONTRACTING OFFICER REPORTS THAT IN VIEW OF THE URGENT NEED FOR THE ARTICLES ON A DELIVERY BASIS DIFFERENT FROM THAT SPECIFIED IN THE INVITATION AND SINCE YOUR COMPANY INDICATED IT COULD NOT MEET THE REVISED DELIVERY SCHEDULE, HE CONSIDERED IT INCUMBENT UPON HIM TO CANCEL THE INVITATION FOR BIDS AND NEGOTIATE WITH ANOTHER SOURCE OF SUPPLY. THIS ACTION CULMINATED IN THE ISSUANCE TO THE VACU-BLAST COMPANY, INC., OF A CONTRACT PROVIDING FOR DELIVERY OF THE FIRST UNIT ON JANUARY 22 AND THE SECOND UNIT ON FEBRUARY 5. IT IS REPORTED THAT THE CONTRACTOR HAS COMPLETED DELIVERY IN ACCORDANCE WITH THE CONTRACT DELIVERY SCHEDULE.

THE CONTRACT SHOWS THAT THE PROCUREMENT WAS NEGOTIATED PURSUANT TO 10 U.S.C. 2304 (A) (2), WHICH PROVIDES FOR NEGOTIATION IN A PUBLIC EXIGENCY. DETERMINATIONS SUPPORTING NEGOTIATION UNDER THAT PROVISION ARE MADE FINAL BY 10 U.S.C. 2310 (B). ACCORDINGLY, WE MUST CONCLUDE THAT THE INSTANT PROCUREMENT IS NOT SUBJECT TO LEGAL QUESTION BY OUR OFFICE. HOWEVER, WE NOTE THAT SIX MONTHS ELAPSED BETWEEN THE TIME THE PROCUREMENT WAS LET TO COMPETITION AND A CONTRACT WAS NEGOTIATED AND THAT ABOUT TWO MONTHS ELAPSED AFTER THE SMALL BUSINESS ADMINISTRATION ISSUED A CERTIFICATE OF COMPETENCY. IN VIEW OF THESE FACTS WE ARE REQUESTING THE SECRETARY OF THE NAVY TO TAKE APPROPRIATE ADMINISTRATIVE STEPS TO PRECLUDE A RECURRENCE OF SUCH A SITUATION.