B-144775, MAR. 22, 1961

B-144775: Mar 22, 1961

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TO DAYTON AVIATION RADIO AND EQUIPMENT CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 7. INCLUDING AN ORAL REQUEST FOR EXPEDITIOUS ACTION ON 30 SETS AS THEY WERE URGENTLY REQUIRED BY THE COAST GUARD. AN INVITATION FOR BIDS FOR 218 SETS WAS PREPARED. WAS DELAYED PENDING PROPER CERTIFICATION AND JUSTIFICATION FOR NEGOTIATION. YOU LEARNED OF THE GOVERNMENT'S REQUIREMENT AND ONE OF YOUR REPRESENTATIVES REQUESTED THAT YOUR FIRM BE PLACED ON THE MAILING LIST FOR SUCH BIDS WHICH WAS DONE. A REQUEST FOR PROPOSALS WAS PREPARED FOR THE URGENTLY NEEDED EQUIPMENT. WHEN THE JUSTIFICATION FOR NEGOTIATION WAS RECEIVED BY THE CONTRACTING OFFICE. THE QUANTITY URGENTLY NEEDED WAS INCREASED TO 40 SETS AND A REQUEST WAS MADE BY THE BUREAU OF NAVAL WEAPONS TO INCLUDE ADDITIONAL REQUIREMENTS TO BE PROCURED BY COMPETITIVE BIDDING THROUGH THE USE OF AN INVITATION FOR BIDS.

B-144775, MAR. 22, 1961

TO DAYTON AVIATION RADIO AND EQUIPMENT CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 7, 1961, PROTESTING THE AWARD OF A CONTRACT TO BENDIX CORPORATION ON REQUEST FOR PROPOSAL NO. 43-61Q ISSUED BY THE U.S. NAVY PURCHASING OFFICE, WASHINGTON, D.C.

IN THE LATTER PART OF THE YEAR 1960 THERE AROSE A REQUIREMENT FOR VHF COMMUNICATION EQUIPMENT CONSISTING OF RECEIVERS, TRANSMITTERS AND RELATED COMPONENTS AND THE CONTRACTING OFFICE RECEIVED A REQUEST FOR PROCURING SUCH EQUIPMENT, INCLUDING AN ORAL REQUEST FOR EXPEDITIOUS ACTION ON 30 SETS AS THEY WERE URGENTLY REQUIRED BY THE COAST GUARD. AN INVITATION FOR BIDS FOR 218 SETS WAS PREPARED. THE REQUEST FOR PROPOSALS, COVERING THE REMAINING 30 SETS TO BE PURCHASED THROUGH NEGOTIATION, WAS DELAYED PENDING PROPER CERTIFICATION AND JUSTIFICATION FOR NEGOTIATION. PRIOR TO THE MAILING OF THE INVITATION FOR BIDS, YOU LEARNED OF THE GOVERNMENT'S REQUIREMENT AND ONE OF YOUR REPRESENTATIVES REQUESTED THAT YOUR FIRM BE PLACED ON THE MAILING LIST FOR SUCH BIDS WHICH WAS DONE.

UPON RECEIPT OF A JUSTIFICATION FOR NEGOTIATION FROM THE BUREAU OF NAVAL WEAPONS, A REQUEST FOR PROPOSALS WAS PREPARED FOR THE URGENTLY NEEDED EQUIPMENT, THEN SHOWN AS 30 SETS. HOWEVER, WHEN THE JUSTIFICATION FOR NEGOTIATION WAS RECEIVED BY THE CONTRACTING OFFICE, THE QUANTITY URGENTLY NEEDED WAS INCREASED TO 40 SETS AND A REQUEST WAS MADE BY THE BUREAU OF NAVAL WEAPONS TO INCLUDE ADDITIONAL REQUIREMENTS TO BE PROCURED BY COMPETITIVE BIDDING THROUGH THE USE OF AN INVITATION FOR BIDS. ALTHOUGH THE REQUEST FOR PROPOSALS WAS MAILED ON DECEMBER 9, 1960, THE INVITATION FOR BIDS WAS MAILED AT A LATER DATE. THE REQUEST FOR PROPOSALS WAS MAILED TO ONLY TWO KNOWN SOURCES WHO COULD SUPPLY ACCEPTABLE EQUIPMENT WITHIN THE DELIVERY TIME REQUIRED.

IN YOUR LETTER OF JANUARY 7, 1961, YOU STATE THAT YOU WERE NOT SOLICITED ALTHOUGH THERE WAS ADEQUATE NOTICE OF YOUR INTEREST IN SUPPLYING EQUIPMENT OF THIS TYPE AND THAT THE GOVERNMENT BUYER REFUSED TO GIVE YOU ANY INFORMATION ON A BID SET.

AT THE OUTSET IT MAY BE POINTED OUT THAT UNDER THE PROVISIONS OF 10 U.S.C. 2304 (A) (2) SUPPLIES MAY BE PURCHASED BY NEGOTIATION WHEN THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING. UNDER PARAGRAPH 3-202.2 (III) IT IS INDICATED THAT THE AUTHORITY TO NEGOTIATE A CONTRACT FOR SUPPLIES MAY PROPERLY BE USED IN THE CASE WHERE IT INVOLVES ESSENTIAL EQUIPMENT FOR, OR REPAIR TO, AIRCRAFT GROUNDED OR ABOUT TO BE GROUNDED, AND WHEN SUCH EQUIPMENT OR REPAIR IS NEEDED AT ONCE FOR THE PERFORMANCE OF THE OPERATIONAL MISSION OF SUCH AIRCRAFT. THE COMMANDANT, U.S. COAST GUARD, WASHINGTON, D.C., SENT A COMMUNICATION TO THE CONTRACTING OFFICE ON DECEMBER 5, 1960, IN SUPPORT OF THE REQUISITIONS FOR VHF EQUIPMENT IN WHICH HE STRESSED THAT THE EQUIPMENT WAS REQUIRED FOR INSTALLATION IN AIRCRAFT THEN UNDERGOING OVERHAUL OR UNDER PROCUREMENT, AND THAT MAINTENANCE SPARE STOCKS BEING USED AS A STOP-GAP MEASURE PENDING DELIVERY OF THE REQUISITIONED EQUIPMENT WOULD SOON BE DEPLETED. THEREAFTER, ON DECEMBER 20, 1960, THE CONTRACTING OFFICER MADE A DETERMINATION AS TO THE JUSTIFICATION FOR NEGOTIATION OF THIS CONTRACT ON THE BASIS THAT THE PUBLIC EXIGENCY WOULD NOT PERMIT THE DELAY INCIDENT TO ADVERTISING. IN THAT DETERMINATION HE STATED THAT IT WAS ESSENTIAL THAT THE EQUIPMENT TO BE PURCHASED SHOULD BE DELIVERED IN JANUARY 1961 SO AS NOT TO LIMIT THE CAPABILITY OF THE AIRCRAFT IN WHICH THE EQUIPMENT WAS TO BE INSTALLED.

IN REGARD TO YOUR STATEMENT THAT YOU WERE NOT SOLICITED AND THAT THE GOVERNMENT BUYER REFUSED TO GIVE ANY INFORMATION ON A BID SET ON THIS EQUIPMENT, THE CONTRACTING OFFICER STATES THAT THERE ARE 120 NAMES ON THE MAILING LIST FOR THIS GENERAL TYPE OF EQUIPMENT BUT THERE WERE ONLY TWO KNOWN SOURCES THAT COULD SUPPLY ACCEPTABLE EQUIPMENT IDENTIFIED AS "BENDIX" OR "COLLINS" TYPE EQUIPMENT. ALSO, HE REPORTS THAT YOUR EQUIPMENT HAD NOT BEEN CERTIFIED BY FAA AS REQUIRED BY THE INVITATION AND ALTHOUGH YOU STATED IN YOUR LETTER OF JANUARY 7 THAT YOUR EQUIPMENT WOULD BE CERTIFIED BY THE END OF JANUARY, THE URGENT DELIVERY REQUIREMENT PRECLUDED THE TAKING OF TIME TO TEST "OR EQUAL" EQUIPMENT, TO EVALUATE TECHNICAL PROPOSALS OR TO WAIT FOR REPORTS FROM FAA ON OTHER EQUIPMENT.

IN YOUR LETTER OF JANUARY 7 YOU STATE THAT SINCE THE EQUIPMENT INVOLVED IS COMPOSED OF RECEIVERS AND TRANSMITTERS AND SINCE YOUR RECEIVERS WERE ALREADY CERTIFIED AND MET THE SPECIFICATIONS, THE GOVERNMENT COULD HAVE PURCHASED THE RECEIVERS FROM YOU UNDER ITS NEGOTIATION AUTHORITY AT A CONSIDERABLE SAVING. IN REGARD TO THIS CONTENTION THE CONTRACTING OFFICER REPORTS THAT THIS TYPE OF EQUIPMENT IS PROCURED IN TOTAL SYSTEMS EVEN THOUGH SEPARATE PRICES ARE REQUESTED FOR COMPONENTS; THAT IT IS NOT CUSTOMARY OR DESIRABLE TO PROCURE THE VARIOUS COMPONENTS FROM DIFFERENT SOURCES; AND THAT THIS PROCEDURE ASSURES COMPLETE COMPATIBILITY WITH EQUIPMENT NOW IN USE AND ENABLES THE USE OF PROPER AND SIMPLIFIED MAINTENANCE PROCEDURES. THE FACT THAT YOUR PROPOSAL WAS NOT SOLICITED IS OF NO CONSEQUENCE IN DETERMINING WHETHER THE ADMINISTRATIVE OFFICE ACTED PROPERLY IN NEGOTIATING THE INSTANT CONTRACT SINCE THE RECORD SHOWS THAT THE MATERIAL YOU OFFERED HAD NOT AS YET BEEN CERTIFIED BY FAA.

THE FACT THAT THE URGENT REQUIREMENT OF THE COAST GUARD WOULD NOT PERMIT THE EVALUATION OR TESTING OF "OR EQUAL" EQUIPMENT JUSTIFIES THE DETERMINATION THAT THE EQUIPMENT BE PURCHASED THROUGH NEGOTIATION. THE WORDS "OR EQUAL" WERE NOT USED IN THE REQUEST FOR PROPOSALS, HOWEVER, BECAUSE THE ONLY EQUIPMENT KNOWN AS MEETING THE REQUIREMENTS OF THE GOVERNMENT WAS OF "BENDIX" OR ,COLLINS" MANUFACTURE AND THE MANUFACTURER'S STOCK NUMBER WAS CITED IN EACH CASE. WHILE IT MAY BE THAT YOU WERE NOT SOLICITED FOR A PROPOSAL, YOUR PROPOSAL AS SUBMITTED WAS NOT RESPONSIVE TO THE NEEDS OF THE GOVERNMENT.

WE FIND NOTHING IN THE FACTS REPORTED IN THIS CASE TO INDICATE THAT THE CONTRACTING OFFICE ACTED IMPROPERLY IN THE NEGOTIATION OF A CONTRACT FOR THE COMMUNICATION EQUIPMENT HERE INVOLVED.