B-146415, AUG. 21, 1961

B-146415, AUG. 21, 1961

TO CONTROL ELECTRONICS COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 10, 1961, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER CONCERN ON A NEGOTIATED BASIS UNDERNAVY REQUEST FOR PROPOSALS NO. P.R. 623D2-17566, COVERING A REQUIREMENT FOR A QUANTITY OF AH/USM-115 RADAR RANGE CALIBRATORS AND RELATED SUPPLIES.

THREE OFFERS WERE RECEIVED IN RESPONSE TO THE REQUEST FOR PROPOSALS AND THEY WERE OPENED ON MARCH 2, 1961. THE LOWEST OFFER WAS SUBMITTED BY AMERICAN AVIONICS, INC., WEST LOS ANGELES, CALIFORNIA, AND THE HIGHEST OFFER WAS SUBMITTED BY YOUR COMPANY. THE CONTRACTING OFFICER INSTITUTED A PREAWARD SURVEY OF THE LOWEST OFFEROR'S FACILITIES, PERSONNEL, TECHNICAL COMPETENCE, FINANCIAL CONDITION, PAST EXPERIENCE WITH ITEMS OF SIMILAR COMPLEXITY AND ABILITY TO MEET DELIVERY REQUIREMENTS. BASED UPON A FAVORABLE REPORT THE CONTRACTING OFFICER DETERMINED THAT THE FIRM QUALIFIED AS A RESPONSIBLE PROSPECTIVE CONTRACTOR FOR THE PROPOSED PROCUREMENT.

AN AWARD WAS MADE TO AMERICAN AVIONICS, INC., ON JUNE 30, 1961, FOR 404 OF THE UNITS SPECIFIED IN THE REQUEST FOR PROPOSALS, CONTRACT NO. NOBSR- 85574/FBM). THE REQUEST FOR PROPOSALS CONTAINED A PROVISION UNDER WHICH THE GOVERNMENT RESERVED THE RIGHT TO ACCEPT ANY PROPOSAL WITHIN THE TIME SPECIFIED BY THE OFFEROR, WHETHER OR NOT THERE WERE NEGOTIATIONS SUBSEQUENT TO THE RECEIPT OF THE PROPOSAL. WE ARE ADVISED BY THE DEPARTMENT OF THE NAVY THAT, IN THE LIGHT OF THE SUBSTANTIAL PRICE DIFFERENTIAL BETWEEN YOUR BID AND THAT OF THE SUCCESSFUL BIDDER (APPROXIMATELY $313,000 FOR THE 404 UNITS AWARDED), THE CONTRACTING OFFICER DID NOT BELIEVE THAT NEGOTIATION WITH YOUR COMPANY WOULD BENEFIT THE GOVERNMENT.

IN YOUR LETTER OF JULY 10, 1961, YOU QUESTIONED THE ABILITY OF AMERICAN AVIONICS, INC., TO PERFORM THE WORK IN TIME AND INDICATED THAT THE CONTRACTING OFFICER SHOULD HAVE INVITED YOU TO NEGOTIATE AFTER RECEIPT OF YOUR PROPOSAL.

IT APPEARS THAT THE CONTRACTING OFFICER WAS JUSTIFIED IN RELYING UPON THE FAVORABLE REPORT MADE IN THE MATTER OF THE PREAWARD SURVEY, ALTHOUGH YOU HAVE REFERRED TO YOUR EXPERIENCE IN THE DEVELOPMENT AND ENGINEERING OF THE PARTICULAR ITEM OF EQUIPMENT, AND CONTENDED THAT ANYONE NOT HAVING SUCH EXPERIENCE WOULD BE UNABLE TO PRODUCE THE ITEM WITHIN A REASONABLE LENGTH OF TIME.

REGARDING THE FACT THAT YOU WERE NOT INVITED TO NEGOTIATE AFTER RECEIPT OF YOUR PROPOSAL, SUBSECTION 3-805.1 (A) (V) OF THE ARMED SERVICES PROCUREMENT REGULATION, REVISION 3, ISSUED JANUARY 31, 1961, IS TO THE EFFECT THAT WRITTEN OR ORAL DISCUSSIONS WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED, NEED NOT NECESSARILY BE UNDERTAKEN WHEN IT CAN BE CLEARLY DEMONSTRATED FROM THE EXISTENCE OF ADEQUATE COMPETITION OR ACCURATE PRIOR COST EXPERIENCE WITH THE PRODUCT OR SERVICE THAT ACCEPTANCE OF THE MOST FAVORABLE INITIAL PROPOSAL WITHOUT DISCUSSION WOULD RESULT IN A FAIR AND REASONABLE PRICE.

THE FACTS OF THIS CASE INDICATE THAT THERE WAS ADEQUATE COMPETITION AND THAT THE CONTRACTING OFFICER HAD THE AUTHORITY UNDER THE TERMS OF THE REQUEST FOR PROPOSALS AND SUBSECTION 3-805.1, ASPR, TO MAKE THE AWARD TO THE FIRM WHICH SUBMITTED THE LOWEST OFFER WITHOUT DISCUSSION WITH ANY OF THE THREE OFFERORS.