B-145326, JUN. 29, 1961

B-145326: Jun 29, 1961

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INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 6. YOU WERE ADVISED BY THE CONTRACTING OFFICER. WAS MADE ON A PUBLIC EXIGENCY BASIS TO MEET EMERGENCY REQUIREMENTS OF THE AIR FORCE. IS THE ONLY KNOWN CURRENT PRODUCER IN THE UNITED STATES. THE CONTRACT WAS NEGOTIATED AND AWARDED TO THAT FIRM. THE BASIS FOR YOUR PROTEST IS SET FORTH IN A LETTER DATED MARCH 6. A COPY OF WHICH WAS ENCLOSED WITH YOUR LETTER OF THE SAME DATE TO OUR OFFICE. YOU STATE THAT IT IS IMPOSSIBLE FOR YOUR COMPANY TO ACCEPT THE EXPLANATION THAT A CONTRACT WAS AWARDED ON A NEGOTIATED BASIS BECAUSE OF EMERGENCY REQUIREMENTS. IT BEING CONTENDED THAT IF ANY EMERGENCY EXISTED IT WAS DUE TO THE MANNER IN WHICH THE PROCUREMENT WAS HANDLED BY THE PROCURING ACTIVITY.

B-145326, JUN. 29, 1961

TO BROS, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 6, 1961, PROTESTING THE AWARD OF AIR FORCE CONTRACT NO. AF 40/604/-11245, DATED JANUARY 30, 1961, TO SICARD INDUSTRIES, INC., WATERTOWN, NEW YORK, FOR DELIVERY OF 83 A/M32U5 SNOW SWEEPERS.

IN A TELEGRAM DATED FEBRUARY 23, 1961, YOU WERE ADVISED BY THE CONTRACTING OFFICER, 2709TH AF VEHICLE CONTROL GROUP, USAF, PROCUREMENT AND PRODUCTION DIVISION, MEMPHIS, TENNESSEE, THAT THE AWARD TO SICARD INDUSTRIES, INC., WAS MADE ON A PUBLIC EXIGENCY BASIS TO MEET EMERGENCY REQUIREMENTS OF THE AIR FORCE. THE CONTRACTING OFFICER STATED THAT THIS EMERGENCY REQUIRED THAT THE AIR FORCE PROCURE A PIECE OF EQUIPMENT CURRENTLY BEING PRODUCED AND, SINCE SICARD INDUSTRIES, INC., IS THE ONLY KNOWN CURRENT PRODUCER IN THE UNITED STATES, THE CONTRACT WAS NEGOTIATED AND AWARDED TO THAT FIRM.

THE BASIS FOR YOUR PROTEST IS SET FORTH IN A LETTER DATED MARCH 6, 1961, TO HEADQUARTERS, 2709TH AF VEHICLE CONTROL GROUP, A COPY OF WHICH WAS ENCLOSED WITH YOUR LETTER OF THE SAME DATE TO OUR OFFICE.

YOU STATE THAT IT IS IMPOSSIBLE FOR YOUR COMPANY TO ACCEPT THE EXPLANATION THAT A CONTRACT WAS AWARDED ON A NEGOTIATED BASIS BECAUSE OF EMERGENCY REQUIREMENTS, IT BEING CONTENDED THAT IF ANY EMERGENCY EXISTED IT WAS DUE TO THE MANNER IN WHICH THE PROCUREMENT WAS HANDLED BY THE PROCURING ACTIVITY. YOU REFER TO AN INVITATION FOR BIDS WHICH WAS CANCELED ON NOVEMBER 8, 1960, AND STATE THAT YOU HAD SPENT A GREAT DEAL OF MONEY IN PREPARING A BID ON THE REQUIREMENT BOTH PRIOR TO AND AFTER THE NOTICE OF CANCELLATION.

IT IS ALLEGED THAT THE SPECIFICATION MADE A PART OF THE REFERENCED INVITATION FOR BIDS, SPECIFICATION MIL-S-27178, WAS PREPARED ON A VERY RESTRICTIVE BASIS SO THAT NO OTHER MANUFACTURER WITH THE EXCEPTION OF SECARD INDUSTRIES, INC., COULD COMPLY; AND THAT, BEFORE ISSUANCE OF THE INVITATION, YOU ATTEMPTED TO FIND OUT EVERYTHING POSSIBLE REGARDING THE EQUIPMENT AND, FOLLOWING ISSUANCE OF THE INVITATION ON SEPTEMBER 29, 1960, YOUR ENGINEERS FOUND THAT PARAGRAPHS 3.7 AND 3.8 SPECIFIED A COMBINATION MAIN FRAME AND TURNTABLE ARRANGEMENT WHICH IS DEFINITELY WRITTEN AROUND THE SICARD UNIT; AND THAT PATENT NO. 42,945,254, ASSIGNED TO SICARD INDUSTRIES, INC; DESCRIBES THIS CONSTRUCTION. CONCERNING PARAGRAPH 3.10 OF THE SPECIFICATION, IT IS CLAIMED THAT THE TYPE AB QUALITY SPECIFIED FOR THE WIRE OF THE ROTARY BRUSH IS A SPECIFICATION USED BY THE DENDIX BRUSH COMPANY OF ENGLAND TO DESCRIBE THE WIRE USED IN THEIR BRUSH, THAT IT IS NOT A COMMERCIAL SPECIFICATION, AND THAT THE DENDIX BRUSH COMPANY HAS LICENSED SICARD INDUSTRIES, INC., TO MANUFACTURE THE BRUSH IN THE UNITED STATES AND CANADA.

INVESTIGATION HAS DISCLOSED THAT THE A/M32U5 SNOW SWEEPER WAS DEVELOPED BY SICARD INDUSTRIES, INC., TO MEET A REQUIREMENT OF THE ROYAL CANADIAN AIR FORCE. THE UNITED STATES AIR FORCE PROCURED A MODEL FOR TEST PURPOSES AND IT WAS DETERMINED THAT IT WOULD FULFILL ITS CURRENT REQUIREMENTS. THE A/M32U5 SNOW SWEEPER, WHICH IS TOWED BY TRUCK, IS PRIMARILY REQUIRED FOR REMOVING RESIDUALS OF SNOW FROM RUNWAYS AFTER PLOWING, REMOVING SLUSH AND THIN SHEETS OF ICE UP TO ONE FOURTH INCH THICKNESS, BLOWING CLEAN THE CENTERLINE STRIP OF A RUNWAY AND TO REMOVE SNOW AND ICE FROM AND AROUND RUNWAY LIGHTS.

IN 1959 THE AIR FORCE PREPARED AN PUBLISHED A PERFORMANCE SPECIFICATION WHICH IT BELIEVED TO BE NON-RESTRICTIVE. DUE TO FUND LIMITATIONS IN FISCAL YEAR 1960, IT WAS CONSIDERED NECESSARY TO POSTPONE THE MAKING OF ANY CONTRACT FOR THE PURCHASE OF A QUANTITY OF THE DESIRED TYPE OF SNOW SWEEPERS UNTIL THE FISCAL YEAR 1961 (JULY 1, 1960, THROUGH JUNE 30, 1961).

INVITATION FOR BIDS NO. 40-604-61-4103 WAS ISSUED ON SEPTEMBER 29, 1960, COVERING A REQUIREMENT FOR BETWEEN 80 AND 140 SNOW SWEEPERS IN ACCORDANCE WITH SPECIFICATION MIL-S-27178 (USAF) DATED AUGUST 11, 1959, AND AMENDMENT NO. 1 DATED JUNE 17, 1960. BIDDERS WERE REQUESTED TO QUOTE PRICES FOR ONE "FIRST ARTICLE" SWEEPER, REQUIRING APPROVAL, AND UNIT PRICES FOR: A--- 80 TO 100 UNITS; B--- 101 TO 120 UNITS; AND C--- 121 TO 140 UNITS. THE INVITATION WAS SENT TO 12 FIRMS AND 22 ADDITIONAL FIRMS REQUESTED AND WERE FURNISHED BID SETS. THE INVITATION MADE NO PROVISION FOR THE 1960-1961 WINTER REQUIREMENTS AS EVIDENCED BY THE TIME SET FOR OPENING OF BIDS, OCTOBER 31, 1960, THE MINIMUM PERIOD OF 90 DAYS WHICH BIDDERS COULD ALLOW FOR BID ACCEPTANCE, THE NECESSITY FOR GOVERNMENT APPROVAL OF THE CONTRACTOR'S TEST REPORT CONDUCTED ON THE FIRST ARTICLE, AND THE STATED DELIVERY SCHEDULE WHICH DID NOT REQUIRE ANY UNITS TO BE DELIVERED OTHER THAN THE RECONDITIONED FIRST ARTICLE UNTIL 90 DAYS AFTER THE CONTRACTOR'S RECEIPT OF WRITTEN APPROVAL OF ITS CERTIFIED TEST REPORT.

IN VIEW OF QUESTIONS RECEIVED FROM PROSPECTIVE BIDDERS IT BECAME EVIDENT TO THE PROCURING ACTIVITY THAT THE SPECIFICATION LACKED THE NECESSARY DETAILS TO COMMUNICATE TO PROSPECTIVE BIDDERS THE TRUE QUALITATIVE REQUIREMENTS OF THE AIR FORCE. CONSIDERATION WAS GIVEN TO CLARIFICATION OF THE INVITATION BY AMENDMENT AND A WIRE WAS SENT TO PROSPECTIVE BIDDERS ON OCTOBER 24, 1960, ADVISING THEM THAT THE INVITATION WOULD EITHER BE AMENDED OR CANCELED. IT SOON BECAME APPARENT THAT A COMPLETELY REVISED DETAILED SPECIFICATION WOULD BE NECESSARY TO DESCRIBE THE AIR FORCE'S MINIMUM REQUIREMENTS TO SO BROAD A COMMUNITY OF BIDDERS. ACCORDINGLY, ON NOVEMBER 8, 1960, THE INVITATION WAS CANCELED.

WHILE THE MATTER WAS BEING GIVEN FURTHER CONSIDERATION CERTAIN AIR FORCE COMMANDS URGED THE IMMEDIATE NEGOTIATION OF A CONTRACT FOR THE PARTICULAR TYPE OF SNOW SWEEPER. THEY WERE REQUESTED TO SUBSTANTIATE THE URGENCY OF THEIR REQUIREMENTS AND ON THE BASIS OF THEIR REPLIES IT WAS DETERMINED THAT IT WAS IN THE BEST INTEREST OF THE GOVERNMENT TO PROCURE THE MINIMUM ESSENTIAL QUANTITY OF THIS EQUIPMENT BY THE FASTEST MEANS POSSIBLE. THE IMMEDIATE URGENCY FOR THE EQUIPMENT WAS EMPHASIZED WHEN A LARGE JET AIRCRAFT WAS LOST IN JANUARY 1961 DUE TO ICE ON THE RUNWAYS. THE CONTRACT AWARDED TO SICARD INDUSTRIES, INC., WAS NEGOTIATED AS A MATTER OF PUBLIC EXIGENCY TO SATISFY EMERGENCY REQUIREMENTS FOR THE WINTER OF 1960-1961 AND THE 1961-1962 WINTER. THE INITIAL PRODUCTION UNITS UNDER THAT CONTRACT WERE AVAILABLE FOR THE HEAVY SNOW WHICH WAS RECEIVED IN THE SPRING OF THIS YEAR. THE PROCURING ACTIVITY IS PRESENTLY PROCESSING A PROCUREMENT OF AN ADDITIONAL QUANTITY OF SNOW SWEEPERS TO MEET LATER REQUIREMENTS AND IT IS CONTEMPLATED THAT THIS ADDITIONAL PROCUREMENT WILL BE MADE IN ACCORDANCE WITH FORMALLY ADVERTISED COMPETITIVE PROCEDURES.

UNDER THESE CIRCUMSTANCES THE DEPARTMENT OF THE AIR FORCE DETERMINED THAT NEGOTIATION OF THE CONTRACT WITH SICARD INDUSTRIES, INC., WOULD BE PROPER AND DID SO UNDER AUTHORITY OF 10 U.S.C. 2304 (A) (2). THAT SECTION OF THE U.S.C. AUTHORIZES THE MILITARY DEPARTMENTS TO NEGOTIATE A PURCHASE OR CONTRACT IF THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING.

WE DO NOT FEEL THAT IT CAN PROPERLY BE SAID THAT THE EMERGENCY WAS CAUSED BY THE MANNER IN WHICH THE PROCUREMENT WAS HANDLED. HOWEVER, REGARDLESS OF ITS CAUSE, IT IS A FACT THAT AN EMERGENCY DEVELOPED FOR THE PROCUREMENT OF A LIMITED QUANTITY OF THE DESIRED TYPE OF EQUIPMENT DURING THE PAST WINTER AND THE DEPARTMENT OF THE AIR FORCE HAD THE AUTHORITY UNDER 10 U.S.C. 2304 (A) (2) TO NEGOTIATE A CONTRACT FOR THE PRODUCTION OF SUCH LIMITED QUANTITY WITHIN THE SHORTEST POSSIBLE TIME. IN THE LIGHT OF THE FACTS OUTLINED ABOVE, WE CANNOT CONCLUDE THAT THIS ACTION WAS IMPROPER.

IT IS, OF COURSE, SOMETIMES DIFFICULT TO PREPARE SPECIFICATIONS WHICH ARE NOT RESTRICTIVE. HOWEVER, A GOVERNMENT CONTRACTING AGENCY IS NOT REQUIRED TO ELIMINATE DESIRED CHARACTERISTICS OF EQUIPMENT IN ADVERTISING FOR BIDS, SOLELY BECAUSE IT MAY BE KNOWN THAT SOME OF THE FEATURES OF A PARTICULAR MODEL ARE INCLUDED IN PATENTS ISSUED TO ONE OR MORE MANUFACTURERS. THE OBJECTIVE TO BE ACHIEVED IS THE DRAFTING OF SPECIFICATIONS WHICH WILL NOT BE UNDULY RESTRICTIVE OF COMPETITION; BUT IS IS NEVERTHELESS PROPER FOR THE GOVERNMENT CONTRACTING AGENCY TO ADVERTISE FOR BIDS ON THE BASIS OF OBTAINING EQUIPMENT WHICH WILL FULFILL ITS MINIMUM REQUIREMENTS.

WE ASSUME THAT THE CONTEMPLATED ADVERTISING FOR BIDS ON ADDITIONAL QUANTITIES OF A/M32U5 SNOW SWEEPERS WILL BE INFLUENCED BY A DESIRE ON THE PART OF THE DEPARTMENT OF THE AIR FORCE TO MAKE THE SPECIFICATIONS AS NON- RESTRICTIVE AS POSSIBLE, CONSISTENT WITH THE PRIMARY PURPOSE OF PURCHASING