B-144082, MARCH 15, 1961, 40 COMP. GEN. 508

B-144082: Mar 15, 1961

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WHEN IT IS IMPRACTICABLE TO OBTAIN COMPETITION. WAS PROPER AND THE ADMINISTRATIVE DETERMINATION BASED ON THE FACT THAT THERE WAS NO STANDARD PRICING MANUAL FOR THE PROCUREMENT AND NO KNOWN BASIS FOR DRAFTING SPECIFICATIONS SUPPORTS THE DETERMINATION FOR AN AWARD BY NEGOTIATION. ONE OF THE GROUNDS OF THE PROTEST IS THAT ALAMO HAS BEEN A SUCCESSFUL BIDDER ON AN ADVERTISED CONTRACT WHICH. IS SIMILAR TO THE INSTANT PROCUREMENT. THE ADVERTISED CONTRACT TO WHICH YOU REFER IS CONTRACT NO. THE PRICES BID FOR LABOR UNDER THAT CONTRACT WERE COMPUTED BY THE MAN-HOURS SPECIFIED IN ORIGINAL MANUFACTURERS' TIME SCHEDULES. IN THE PROCUREMENT HERE INVOLVED PROPOSALS WERE SOLICITED FOR THE FURNISHING OF MAINTENANCE.

B-144082, MARCH 15, 1961, 40 COMP. GEN. 508

CONTRACTS - NEGOTIATION - IMPRACTICABLE TO OBTAIN COMPETITION A NEGOTIATED AWARD FOR REPAIR SERVICES FOR SPECIAL PURPOSE MILITARY VEHICLES AND COMPLEX GROUND EQUIPMENT UNDER 10 U.S.C. 2304 (A) (10), WHEN IT IS IMPRACTICABLE TO OBTAIN COMPETITION, WITH THE FIRM WHICH HAD RANKED HIGHEST AMONG THE 15 FIRMS SUBMITTING PROPOSALS BASED ON A WEIGHTED POINT SYSTEM WHICH INCLUDED EVALUATION OF THE TECHNICAL AND FINANCIAL CAPABILITIES OF THE OFFERORS AS WELL AS THEIR PRICES, WAS PROPER AND THE ADMINISTRATIVE DETERMINATION BASED ON THE FACT THAT THERE WAS NO STANDARD PRICING MANUAL FOR THE PROCUREMENT AND NO KNOWN BASIS FOR DRAFTING SPECIFICATIONS SUPPORTS THE DETERMINATION FOR AN AWARD BY NEGOTIATION.

TO DIBRELL, GARDNER AND DOTSON, MARCH 15, 1961:

BY LETTERS DATED SEPTEMBER 23, SEPTEMBER 28 AND OCTOBER 13, 1960, YOU PROTESTED, ON BEHALF OF ALAMO AUTOMOTIVE SERVICE, INC., AGAINST THE AWARD OF A NEGOTIATED COST-PLUS-A-FIXED-FEE CONTRACT TO THE TUMPANE COMPANY, INC., UNDER REQUEST FOR PROPOSALS NO. 3900-61-LP59057, AS AMENDED, ISSUED BY KELLY AIR FORCE BASE, TEXAS, ON JULY 30, 1960.

ONE OF THE GROUNDS OF THE PROTEST IS THAT ALAMO HAS BEEN A SUCCESSFUL BIDDER ON AN ADVERTISED CONTRACT WHICH, YOU STATE, IS SIMILAR TO THE INSTANT PROCUREMENT. THE ADVERTISED CONTRACT TO WHICH YOU REFER IS CONTRACT NO. AF 41/608/11128 AWARDED TO ALAMO ON SEPTEMBER 25, 1959. THAT CONTRACT PROVIDED FOR THE REPAIR AND OVERHAUL OF VARIOUS TYPES OF GENERAL PURPOSE VEHICLES. THE PRICES BID FOR LABOR UNDER THAT CONTRACT WERE COMPUTED BY THE MAN-HOURS SPECIFIED IN ORIGINAL MANUFACTURERS' TIME SCHEDULES, THE MOTOR FLAT RATE MANUAL OR THE TIME RATE STUDY MADE A PART OF SUCH CONTRACT AS EXHIBIT "A.' THUS, THERE EXISTED SUFFICIENT RELIABLE LABOR-COST DATA TO PERMIT INTERESTED BIDDERS TO COMPLETE PRICE WISE UNDER THE COMPETITIVE BIDDING STATUTE AND TO ENABLE THE PROCUREMENT AGENCY TO PROPERLY EVALUATE BIDS FOR THE PURPOSE OF DETERMINING THE LOWEST RESPONSIBLE BIDDER, PRICE AND OTHER FACTORS CONSIDERED.

IN THE PROCUREMENT HERE INVOLVED PROPOSALS WERE SOLICITED FOR THE FURNISHING OF MAINTENANCE, MODIFICATION AND REPAIR SERVICES ON SPECIAL PURPOSE VEHICLES AND GROUND SUPPORT EQUIPMENT, INCLUDING DEPOT LEVEL MAINTENANCE, MODIFICATION AND REPAIR SUPPORT TO ALL BASES WITHIN THE SAN ANTONIO AIR MATERIAL AREA. A COMMITTEE WAS ESTABLISHED TO EVALUATE PROPOSALS RECEIVED PURSUANT TO THE REQUEST FOR PROPOSALS ON A WEIGHTED POINT BASIS. POINTS WERE ASSIGNED FOR EVALUATION PURPOSES IN THE FOLLOWING AREAS FOR CONSIDERATION:

CHART

POINTS 1. KEY PERSONNEL ---------------------------- ----------------- 20 2. PRIOR COMPARABLE EXPERIENCE ------------- ------------------ 20 3. OFFERORS PLAN TO STAFF AND OPERATE A MAINTENANCE AND REPAIR

FACILITY ------------------------------------------------- 20 4. FINANCIAL STATUS AND CAPACITY ------------------------------ 10 5. FEE -- ------------------------------------------------------ 25 6. ESTIMATED COST --------------------------------------------- 10

AFTER A DETAILED TECHNICAL EVALUATION OF ALL THE 15 PROPOSALS SUBMITTED, IT WAS DETERMINED BY THE COMMITTEE THAT THE TUMPANE COMPANY, INC; RANKED HIGHEST IN WEIGHTED POINTS AND THAT ALAMO RANKED TENTH IN THE POINT EVALUATION. THIS EVALUATION PROCEDURE WAS IN CONSONANCE WITH THE PROVISIONS OF SECTION 3-805.2, ARMED SERVICES PROCUREMENT REGULATION, PRESCRIBING THE STANDARDS TO BE FOLLOWED IN SELECTING A COST-REIMBURSEMENT CONTRACTOR. BASED ON THE FINDINGS OF THE EVALUATION COMMITTEE, NEGOTIATIONS WERE THEN CONDUCTED WITH TUMPANE WITH THE RESULT THAT CONTRACT NO. AF 41 (608/-12542 WAS ENTERED INTO WITH THAT FIRM ON SEPTEMBER 22, 1960, ON A COST-PLUS-A-FIXED-FEE BASIS AT AN ESTIMATED COST OF $868,263.63 AND A FIXED-FEE OF $22,000. THE CONTRACT WAS NEGOTIATED PURSUANT TO 10 U.S.C. 2304 (A) (10) WHICH AUTHORIZES THE NEGOTIATION OF CONTRACTS IF "THE PURCHASE OR CONTRACT IS FOR PROPERTY OR SERVICES FOR WHICH IT IS IMPRACTICAL TO OBTAIN COMPETITION.' AS REQUIRED BY REGULATION, THE CONTRACTING OFFICER DETERMINED, PRIOR TO THE AWARD OF THE NEGOTIATED CONTRACT, THAT "THIS PROCUREMENT IS FOR SERVICES WHICH INVOLVES MAINTENANCE, REPAIR AND INSPECTION IN CONNECTION WITH ANY ONE OF WHICH TYPES OF SERVICES THE EXACT NATURE OR AMOUNT OF WORK TO BE PERFORMED IS NOT KNOWN.' SUCH OFFICER FURTHER DETERMINED THAT---

* * * THIS PROCUREMENT IS FOR SERVICES FOR WHICH IT IS IMPRACTICAL TO SECURE COMPETITION BY MEANS OF FORMAL ADVERTISING; THAT AS OF THE DATE OF THIS DETERMINATION TO THE BEST OF THE CONTRACTING OFFICER'S KNOWLEDGE AND BELIEF, THERE DOES NOT EXIST ANY LAW OR REGULATION FIXING THE PRICE OF THE SERVICES TO BE PROCURED, AND THAT NEGOTIATION OF A CONTRACT FOR THESE SERVICES IS AUTHORIZED PURSUANT TO 10 U.S.C. 2304 (A) (10) AS CONTEMPLATED BY PARAGRAPH 3-210.2 (IX) OF THE ARMED SERVICES PROCUREMENT REGULATIONS.

CONCERNING THE TYPE OF CONTRACT UTILIZED, THE DIRECTOR OF PROCUREMENT AND PRODUCTION DETERMINED THAT---

THE EXACT NATURE AND EXTENT OF THE WORK COVERED BY THE PROPOSED CONTRACT AND THE PRECISE METHOD OF ACCOMPLISHING THAT WORK CANNOT BE ESTABLISHED IN ADVANCE, BUT MUST BE SUBJECT TO IMPROVISATION AND CHANGE AS THE WORK PROGRESSES AND THE COST OF PERFORMING SAID WORK CANNOT AT THIS TIME BE FORECAST WITH A REASONABLE DEGREE OF ACCURACY.

UPON THE BASIS OF FINDINGS SET FORTH ABOVE, I HEREBY DETERMINE PURSUANT TO 10 U.S.C. 2306 (C) THAT THE USE OF THE COST-1PLUS-1A 1FIXED-1FEE TYPE CONTRACT IS LIKELY TO BE LESS COSTLY AND I HEREBY AUTHORIZE THE USE OF SAID CONTRACT.

THE RECORD SHOWS THAT NO TIME-RATE STUDIES FOR USE IN DETERMINING THE LABOR CHARGES FOR REPAIRS, ETC., WERE AVAILABLE FOR MOST OF THE EQUIPMENT AND VEHICLES LISTED ON EXHIBIT 1 OF APPENDIX "A" OF THE REQUEST FOR PROPOSAL. THE EQUIPMENT LISTED GENERALLY IS COMPLEX MACHINERY SUCH AS ASPHALT HEATING KETTLES, CRANES, CABIN PRESSURE LEAKAGE TESTERS, DEMINERALIZERS AND HYDRAULIC AIRCRAFT ASSEMBLY JACKS. THE MOTOR FLAT RATE MANUAL WHICH IS DESIGNED FOR USE IN DETERMINING LABOR REPAIR CHARGES FOR SEDANS, STATION WAGONS, AND PICK-UP TRUCKS DID NOT PROVIDE A SATISFACTORY STANDARD FOR PRICING THE WORK TO BE DONE UNDER THE INSTANT PROCUREMENT. AND WE ARE INFORMED THAT THERE IS NO EXISTING STUDY OR COMBINATION OF EXISTING STUDIES WHICH WOULD MAKE IT POSSIBLE TO DRAFT SPECIFICATIONS FOR THE CONTRACT IN SUCH A WAY THAT COMPETITIVE BIDS THEREFOR COULD BE REALISTICALLY COMPARED.

WE FIND NO FACTUAL BASIS ON THE PRESENT RECORD TO QUESTION THE ADMINISTRATIVE DETERMINATIONS MADE RESPECTING THE NEGOTIATION OF THE CONTRACT, ESPECIALLY SINCE ADEQUATE COMPETITION WAS OBTAINED. MOREOVER, IT IS EVIDENT THAT THE AWARD WAS NOT MADE ON THE BASIS OF PRICE ALONE BUT ALSO ON THE BASES OF OTHER FACTORS RELATING TO TUMPANE'S CAPABILITIES, BOTH TECHNICAL AND FINANCIAL.

YOU ALSO CONTEND THAT THE INSTANT PROCUREMENT IS SIMILAR TO THAT CONSIDERED BY OUR OFFICE IN 37 COMP. GEN. 72, WHERE WE HELD:

AFTER PROPOSALS FOR THE PREPARATION OF TECHNICAL MANUSCRIPTS WERE RECEIVED FROM 16 RESPONSIBLE FIRMS AND EVALUATED ON THE BASIS OF PRICE, THE PRACTICABILITY OF A COMPETITIVE PROCUREMENT HAS BEEN CONCLUSIVELY DEMONSTRATED AND A NEGOTIATED AWARD UNDER 10 U.S.C. 2304 (A) (10), WHICH AUTHORIZES AN EXCEPTION TO FORMAL ADVERTISING UPON AN ADMINISTRATIVE DETERMINATION THAT IT IS IMPRACTICABLE TO OBTAIN COMPETITION, IS IMPROPER.

THAT DECISION IS DISTINGUISHABLE SINCE THE AWARD HERE WAS NOT MADE ON THE BASIS OF PRICE ALONE BUT ON THE BASES OF THE CRITERIA USED BY THE EVALUATION COMMITTEE WHICH RELATED TO MATTERS IN ADDITION TO PRICE. ALSO, THE FACT THAT 15 PROPOSALS WERE RECEIVED DID NOT, IN AND OF ITSELF, RENDER THE PROCUREMENT SUSCEPTIBLE TO COMPETITIVE BIDDING BY FORMAL ADVERTISING. THE TYPE OF PROCUREMENT INVOLVED HERE IS EXPRESSLY PROVIDED BY IN SECTION 3-210.2 (IX), ASPR, AS BEING PROPER FOR NEGOTIATION UNDER 10 U.S.C. 2304 (A) (10).

ACCORDINGLY, WE ARE OF THE OPINION THAT THE INSTANT PROCUREMENT WAS ACCOMPLISHED PURSUANT TO PROPER ADMINISTRATIVE DETERMINATIONS ADEQUATELY SUPPORTED BY THE FACTS OF RECORD. THEREFORE, YOUR PROTEST MUST BE DENIED.