B-137406, DEC. 15, 1959

B-137406: Dec 15, 1959

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THE PROCUREMENTS IN QUESTION WERE AS FOLLOWS: TABLE REQUEST FOR PROPOSAL DATE ISSUED ITEM NUMBER ITEM CALLED FOR . P/N G-1A WITH RESPECT TO THE LAST REQUEST FOR PROPOSAL WE HAVE BEEN ADVISED THAT AWARD WAS MADE TO NASCO. THE INSERTION BY A BIDDER OF A DIFFERENT PART NUMBER SHALL REQUIRE A STATEMENT THAT THE DIFFERENT PART NUMBER EITHER (1) SUPERSEDES THE PART NUMBER SPECIFIED AND IS INTERCHANGEABLE. OR (2) THE DIFFERENT PART NUMBER OFFERED IS COMPLETELY INTERCHANGEABLE WITH THE PART NUMBER SPECIFIED. THE FINAL DETERMINATION AS TO INTERCHANGEABILITY WILL BE MADE BY THE GOVERNMENT. THE PROCUREMENTS WERE NEGOTIATED PURSUANT TO 10 U.S.C. 2304 (A) (10) WHICH AUTHORIZES THE USE OF NEGOTIATION WHEN IT IS IMPRACTICABLE TO OBTAIN COMPETITION.

B-137406, DEC. 15, 1959

TO NASCO, INC.:

WE REFER TO YOUR LETTERS OF FEBRUARY 3, MARCH 4, MARCH 17, MARCH 25, MAY 12, JUNE 15, AND JULY 14, 1959, PROTESTING ON BEHALF OF NASCO, INC., AGAINST A SERIES OF NEGOTIATED PROCUREMENTS FOR GENERATORS BY THE DEPARTMENT OF THE AIR FORCE FOR USE IN CONNECTION WITH REFUELING UNITS.

THE PROCUREMENTS IN QUESTION WERE AS FOLLOWS:

TABLE REQUEST FOR

PROPOSAL DATE ISSUED ITEM NUMBER ITEM CALLED FOR -- --------- -----------

----------- --------------- 40-604-59-634 JULY 31, 1958 30 NASCO, INC.

P/N G-1A 40-604-59-743 OCTOBER 29, 1958

19 NASCO, INC.

P/N G-1 40-604-59-854 JANUARY 12, 1959 21 GENERATOR, STANDARD

PRODUCTS, INC.

P/N G-1A 40-604-59-855 JANUARY 22, 1959

13 NASCO, INC.

P/N G-1 40-604-59-1676 MAY 15, 1959

2 NASCO, INC. P/N

G-1 OR STANDARD

PRODUCTS, INC.,

P/N G-1A

WITH RESPECT TO THE LAST REQUEST FOR PROPOSAL WE HAVE BEEN ADVISED THAT AWARD WAS MADE TO NASCO, INC., WHICH SUBMITTED THE LOW PRICE. WE ASSUME, THEREFORE, THAT YOU DO NOT WISH TO PURSUE THE MATTER FURTHER WITH RESPECT TO THAT PROCUREMENT.

ALL OF THE RFP'S IN QUESTION CONTAINED THE FOLLOWING PROVISION:

"NOTE: WHEN THE REQUEST FOR PROPOSAL CITES A SPECIFIC PART NUMBER, THE INSERTION BY A BIDDER OF A DIFFERENT PART NUMBER SHALL REQUIRE A STATEMENT THAT THE DIFFERENT PART NUMBER EITHER (1) SUPERSEDES THE PART NUMBER SPECIFIED AND IS INTERCHANGEABLE, OR (2) THE DIFFERENT PART NUMBER OFFERED IS COMPLETELY INTERCHANGEABLE WITH THE PART NUMBER SPECIFIED. THE FINAL DETERMINATION AS TO INTERCHANGEABILITY WILL BE MADE BY THE GOVERNMENT. THE GOVERNMENT RESERVES THE RIGHT TO ACCEPT OR REJECT PART NUMBERS FALLING WITHIN(1) OR (2) ABOVE.'

THE PROCUREMENTS WERE NEGOTIATED PURSUANT TO 10 U.S.C. 2304 (A) (10) WHICH AUTHORIZES THE USE OF NEGOTIATION WHEN IT IS IMPRACTICABLE TO OBTAIN COMPETITION. WE ARE ADVISED BY THE DEPARTMENT OF THE AIR FORCE THAT THE PROCUREMENTS WERE NEGOTIATED PURSUANT TO A DETERMINATION BY THE CONTRACTING OFFICER IN EACH CASE THAT THE PROCUREMENT WAS FOR SPACE PARTS FOR THE MAINTENANCE AND OPERATION OF EXISTING EQUIPMENT, THAT SUCH SPARE PARTS WERE NOT PREDOMINANTLY COMMERCIAL TYPE ITEMS, THAT THE ONLY AVAILABLE ITEM DESCRIPTIONS WERE LIMITED TO STOCK OR PART NUMBERS, NOMENCLATURE, AND ITEM APPLICATION OR OTHER IDENTIFYING CHARACTERISTICS AND THAT ADEQUATE DRAWINGS, SPECIFICATIONS OR PURCHASE DESCRIPTIONS WERE NOT AVAILABLE. WE NOTE THAT THE USE OF THE CITED NEGOTIATING AUTHORITY PURSUANT TO SUCH FINDINGS BY THE CONTRACTING OFFICER IS CONSISTENT WITH SECTION 3-210.2 (XV) OF THE ARMED SERVICES PROCUREMENT REGULATION.

SINCE IN EACH CASE AT LEAST THREE RESPONSIBLE OFFERS WERE RECEIVED ON THE PRODUCTS OF DIFFERENT MANUFACTURERS, THERE APPEARS TO BE SOME QUESTION ABOUT THE INABILITY OF THE PROCURING AGENCY TO OBTAIN ADEQUATE COMPETITION. SEE 37 COMP. GEN. 72, 75. HOWEVER, WE NOTE THAT IN EACH INSTANCE AWARD HAS ALREADY BEEN MADE BASED ON THE LOWEST OFFER. THEREFORE, THE AWARDS NEED NOT BE FURTHER QUESTIONED WITH RESPECT TO THE PROPRIETY OF NEGOTIATION. SEE B-132736, AUGUST 23, 1957.

YOU PROTEST CERTAIN OF THE PROCUREMENTS ON THE BASIS THAT THE SUBSTITUTE PRODUCT ACCEPTED WHEN A NASCO GENERATOR WAS SPECIFIED WAS IMPROPER BECAUSE SUCH SUBSTITUTE ITEM WAS NOT IN FACT EQUAL TO AND INTERCHANGEABLE WITH THE SPECIFIED ITEM AS REQUIRED BY THE LANGUAGE OF THE REQUEST FOR PROPOSAL QUOTED ABOVE. THE ESTABLISHMENT OF THE GOVERNMENT'S ACTUAL REQUIREMENTS AND THE DETERMINATION AS TO WHETHER THE PRODUCTS OFFERED CONFORM TO THOSE REQUIREMENTS IS PRIMARILY WITHIN THE PROVINCE OF THE CONTRACTING AGENCY. 17 COMP. GEN. 554, 557. WE HAVE BEEN ADVISED THAT THE DEPARTMENT OF THE AIR FORCE, AFTER DUE CONSIDERATION, HAS DETERMINED THAT THE ITEMS ACCEPTED AS INTERCHANGEABLE WITH THE DESIGNATED PRODUCTS ARE, IN FACT, INTERCHANGEABLE AND HAVE PROVEN TO BE SATISFACTORY REPLACEMENTS IN ACTUAL USE. HAVING REGARD FOR THE PRIMACY OF THE PROCURING AGENCY IN SUCH MATTERS AND THE SUCCESSFUL INTERCHANGE OF THE ITEMS IN QUESTION WE SEE NO BASIS FOR QUESTIONING THE VALIDITY OF THE PROCUREMENTS MADE WITH RESPECT TO THIS POINT.

SEVERAL OF THE REQUESTS FOR PROPOSALS IN QUESTION INDICATED THAT THE GENERATOR UNDER PROCUREMENT WAS INTENDED FOR USE WITH A "BUTLER TYPE F6 REFUELING UNIT.' IN THOSE CASES, THE NASCO, INC., P/N G-1 WAS STIPULATED. YOU CONTEND THAT BUTLER HAS NEVER PRODUCED AN F6 REFUELING UNIT BUT THAT IT HAS PRODUCED AN F7 UNIT AND THE LATTER UNIT UTILIZES THE NASCO, INC., P/N) G-1A GENERATOR RATHER THAN THE ITEM SPECIFIED. WE ARE ADVISED BY THE DEPARTMENT OF THE AIR FORCE THAT IN THESE INSTANCES THE RFP'S SHOULD HAVE DESIGNATED THE REFUELING UNITS AS BUTLER F7. WHEN IN THE COURSE OF NEGOTIATIONS THE ERROR WAS DISCOVERED BY THE CONTRACTING OFFICER IT WAS DETERMINED THAT ALL THE OFFERS RECEIVED WERE BASED UPON THE ASSUMPTION THAT THE F7 DESIGNATION WAS IN FACT INTENDED. WHERE A PROCUREMENT IS NEGOTIATED, SPECIFICATIONS MAY BE CHANGED AT ANY TIME PRIOR TO AWARD SO LONG AS THE OPPORTUNITY OF AN INTERESTED SUPPLIER TO PARTICIPATE IN THE PROCUREMENT IS NOT PREJUDICED THEREBY. IN THIS INSTANCE, SINCE ALL OF THE OFFERORS RECOGNIZED THE ERROR AND OFFERED THE APPROPRIATE PRODUCT IT DOES NOT APPEAR THAT THE ERROR HAD ANY MATERIAL EFFECT ON THE OFFERS. IN THE CASE OF NASCO, INC., IT IS NOTED THAT IN EACH INSTANCE ALTERNATE OFFERS WERE SUBMITTED TO TAKE CARE OF THE POSSIBILITY OF ERROR. EXCEPT TO THE EXTENT THAT SUCH ALTERNATE MAY HAVE BEEN REQUIRED IT DOES NOT APPEAR THAT NASCO WAS ADVERSELY AFFECTED BY THE ERROR. SINCE THE ALTERNATE OFFERS WERE FOR ITEMS REGULARLY OFFERED FOR PROCUREMENT BY NASCO, IT IS DIFFICULT TO CONCEIVE THAT THE ERROR MATERIALLY PREJUDICED NASCO IN ANY WAY.

FINALLY, IT IS ALLEGED THAT THE GENERATOR SUPPLIED FOR USE WITH THE BUTLER REFUELING UNIT SHOULD NOT BE USED WITH THAT UNIT. A COPY OF A LETTER FROM THE REFUELING UNIT MANUFACTURER TO THAT EFFECT WAS FURNISHED WITH YOUR LETTER OF JULY 14. WITH RESPECT TO THIS MATTER WE HAVE BEEN ADVISED BY THE DEPARTMENT OF THE AIR FORCE THAT THE UNIT SPECIFIED AND THE UNIT ACCEPTED AS SUBSTITUTES HAVE BEEN EMPLOYED SUCCESSFULLY IN THE REFUELING UNIT. AS STATED PREVIOUSLY, THE DETERMINATION OF THE GOVERNMENT'S SUPPLY REQUIREMENTS IS PRIMARILY WITHIN THE PROVINCE OF THE PROCURING AGENCY. WE HAVE NEITHER THE FACILITIES NOR THE JURISDICTION TO DETERMINE WHETHER THERE EXISTS AN ITEM WHICH WILL SERVE THE GOVERNMENT'S NEEDS BETTER THAN THAT BEING PROCURED. IT APPEARS, HOWEVER, THAT ACTUAL EXPERIENCE IS AN EXCELLENT TESTING DEVICE AND THE SUCCESSFUL UTILIZATION OF THE SPECIFIED GENERATORS AND THOSE ACCEPTED AS SUBSTITUTES APPEAR ADEQUATELY TO SUBSTANTIATE THE DEPARTMENT'S POSITION.

FINALLY, THERE IS AN ALLEGATION IN YOUR LETTER OF MARCH 17 THAT ONE OF THE SUCCESSFUL PARTICIPANTS IN THE PROCUREMENT DOES NOT QUALIFY BY REASON OF ITS SIZE AND ITS INABILITY TO SUPPLY THE ITEM CALLED FOR. WHETHER A FIRM QUALIFIES AS A SMALL BUSINESS IS FOR DETERMINATION BY CONTRACTING OFFICER AND THE SMALL BUSINESS ADMINISTRATION. SIMILARLY, THE QUESTION OF RESPONSIBILITY IS FOR DETERMINATION BY THE PROCURING AGENCY. SUFFICE IT TO SAY THAT IN NEITHER CASE HAS THE ALLEGATION BEEN SUPPORTED BY SUFFICIENT DETAIL TO MERIT FURTHER ACTION BY OUR OFFICE.

IN ACCORDANCE WITH THE FOREGOING, WE MUST CONCLUDE THAT THERE HAS NOT BEEN PRESENTED A SUFFICIENT LEGAL BASIS FOR DETERMINING THAT ANY OF THE PROCUREMENTS CONSIDERED ABOVE SHOULD BE REGARDED AS INVALID.