B-147654, MAR. 6, 1962

B-147654, MAR. 6, 1962

TO RUSKIN AND RUSKIN, ESQUIRES:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 15, 1961, TO SENATOR KENNETH B. KEATING, CONCERNING YOUR PROTEST IN BEHALF OF YOUR CLIENT, SENSITIVE RESEARCH INSTRUMENT CORPORATION, AGAINST THE AWARD OF CONTRACT NO. AF 33 (604) 36647 TO WESTON INSTRUMENTS DIVISION OF DAYSTROM, INCORPORATED.

THE BASIS OF YOUR PROTEST IS THAT THE CONTRACT WAS AWARDED IN THIS CASE AS A SOLE-SOURCE PROCUREMENT WITHOUT COMPETITIVE BIDDING AND THAT THE FACTS DID NOT SEEM TO WARRANT SUCH A PROCEDURE.

THE INVOLVED CONTRACT COVERS THE PROCUREMENT OF SEVEN ITEMS OF PORTABLE ELECTRONIC MEASURING EQUIPMENT WITH RELATED SPARE PARTS AND COMMERCIAL DATA. THE PROCUREMENT WAS ORIGINALLY INITIATED BECAUSE OF A REQUIREMENT FOR VOLTMETERS IDENTIFIED AS ITEM NO. 3 IN THE FINAL CONTRACT. REQUEST FOR QUOTATIONS NUMBERED PR MD-1-6625-27076 CONCERNING THIS ITEM OF VOLTMETERS WAS ISSUED ON JANUARY 6, 1961, AND SENSITIVE SUBMITTED A QUOTATION ON JANUARY 11, 1961. HOWEVER, PRIOR TO AWARD ADDITIONAL REQUIREMENTS FOR SIMILAR EQUIPMENT WERE RECEIVED AND IT WAS DECIDED TO PROCURE ALL OF THE MEASURING EQUIPMENT TOGETHER. THE PROCURING ACTIVITY THEN MADE AN INVESTIGATION OF THE AVAILABLE DATA ON EACH OF THE ITEMS AND CONCLUDED THAT SUCH DATA WAS INSUFFICIENT TO PERMIT EITHER FORMAL ADVERTISING OR COMPETITIVE NEGOTIATION. THE CONTRACTING OFFICER'S UNDERSTANDING AT THAT TIME WAS THAT ONLY DAYSTROM HAD MANUFACTURED ANY OF THE NEEDED ITEMS AND IN THE ABSENCE OF DATA WITH WHICH TO EVALUATE PROPOSALS FROM OTHER SOURCES HE DETERMINED THAT NEGOTIATION OF THE CONTRACT PURSUANT TO 10 U.S.C. 2304 (A) (10) WITH DAYSTROM WAS IN ORDER. THE CITED AUTHORITY PROVIDES THAT CONTRACTS MAY BE NEGOTIATED WHERE IT IS IMPRACTICABLE TO OBTAIN COMPLETION. CONTRACT NO. AF 33 (604) 36647 IN THE AMOUNT OF $70,738.18 WAS AWARDED TO DAYSTROM, EFFECTIVE OCTOBER 13, 1961.

THE CONTRACTING OFFICER HAD BASED HIS DETERMINATION THAT DAYSTROM WAS THE SOLE SOURCE OF SUPPLY ON HIS FINDING THAT DAYSTROM HAD "SOLELY DESIGNED, DEVELOPED, MANUFACTURED AND MARKETED THIS EQUIPMENT AND (HAD) NOT DIVESTED ITSELF OF DETAILED INFORMATION ON ITS DESIGN OR KNOW-HOW TO THE GOVERNMENT OF ANY OTHER FIRM.' THE ADMINISTRATIVE OFFICE HAS ADMITTED THAT AS TO ITEMS NOS. 3 AND 6, THE CONTRACTING OFFICER'S FACTUAL FINDING WAS INCORRECT SINCE A REVIEW OF THE RECORDS OF THE PROCURING ACTIVITY SHOWS THAT SENSITIVE HAD IN FACT FURNISHED THOSE ITEMS TO THE DEPARTMENT OF THE AIR FORCE UNDER PRIOR CONTRACTS.

AS TO THE ITEMS OTHER THAN NOS. 3 AND 6, HOWEVER, THE PROCURING ACTIVITY REPORTS THAT THE SOLE-SOURCE PROCUREMENT RESULTED FROM ITS INABILITY TO DEVELOP DATA ADEQUATE FOR COMPETITIVE BIDDING AND WITHOUT SUCH DATA IT COULD NOT BE ASSURED THAT THE SALIENT ESSENTIAL CHARACTERISTICS OF THE WESTON ITEMS WOULD BE DUPLICATED. THE AVAILABLE PROCUREMENT DATA AT THE TIME CONSISTED OF A GENERAL DESCRIPTION AND WESTON-TYPE NUMBERS AND WAS CONSIDERED INADEQUATE FOR COMPETITIVE NEGOTIATION, FORMAL ADVERTISING, TWO -STEP ADVERTISING OR COMPETITIVE PROCUREMENT UNDER ANY PROCUREMENT PROCEDURE. SUCH AVAILABLE DATA DID NOT CONTAIN THE NECESSARY STATEMENT OF THE MINIMUM REQUIREMENTS OF THE GOVERNMENT SUCH AS INDICATOR DAMPENING FACTORS, DEGREE OF MAGNETIC SHIELDING, TYPE OF METER MOVEMENT AND DEGREE OF ACCURACY WHEN THE PARTICULAR INSTRUMENT IS HELD ON A VERTICAL PLANE.

UNDER THE PROVISIONS OF 10 U.S.C. 2304 (A) (10) PURCHASES AND CONTRACTS MAY BE NEGOTIATED IF IT IS IMPRACTICABLE TO OBTAIN C COMPETITION FOR THE PROPERTY OR SERVICES. IN LINE WITH THIS AUTHORITY PARAGRAPH 3-210.2 OF ASPR SETS FORTH CERTAIN CIRCUMSTANCES UNDER WHICH THE AUTHORITY TO NEGOTIATE MAY BE USED. FOR EXAMPLE, UNDER SUBPARAGRAPH (I) IT IS STATED THAT CONTRACTS MAY BE NEGOTIATED WHERE THE SUPPLIES CAN BE OBTAINED FROM ONLY ONE PERSON OR FIRM (SOLE SOURCE OF SUPPLY) AND UNDER SUBPARAGRAPH (XIII) NEGOTIATION IS PERMITTED WHEN IT IS IMPOSSIBLE TO DRAFT, FOR SOLICITATION OF BIDS, ADEQUATE SPECIFICATIONS OR ANY OTHER ADEQUATELY DETAILED DESCRIPTION OF THE REQUIRED SUPPLIES.

THE PROCURING OFFICE HAS POINTED OUT THE PROBLEMS OF EVALUATION WHERE INADEQUATE DATA IS USED FOR COMPETITIVE BIDDING. FOR EXAMPLE, IT IS POINTED OUT THAT THE BASIC COMPARATIVE TABLE OF COMPETITIVE INSTRUMENTS FURNISHED BY SENSITIVE DOES NOT CONTAIN DESCRIPTIVE DATA ADEQUATE FOR COMPETITIVE BIDDING OR TECHNICAL EVALUATION OF PRODUCTS. THE PROCUREMENT RECORDS ALSO SHOW THAT SENSITIVE HAS BEEN SOLICITED AND AWARDED CONTRACT ON A SOLE-SOURCE BASIS. AS AN EXAMPLE, THE PROCURING OFFICE REPORTS THAT A CONTRACT NUMBERED AF 33 (604) 33853 WAS PLACED WITH SENSITIVE FOR 51 POLYRANGERS.

EXCEPT FOR THE PORTIONS OF THE CONTRACT INVOLVING ITEMS NOS. 3 AND 6, WE DO NOT FEEL THAT THE DETERMINATION TO NEGOTIATE ON A SOLE-SOURCE BASIS WAS ARBITRARY AND UNWARRANTED UNDER THE CIRCUMSTANCES. IN VIEW OF THIS, AND THE FURTHER FACT THAT THE CONTRACT HAS BEEN PERFORMED, NO BASIS EXISTS FOR CANCELLATION OF THE CONTRACT. HOWEVER, AS TO ITEMS NOS. 3 AND 6 THE PROCURING ACTIVITY HAS ADMITTED THAT SOLE-SOURCE NEGOTIATION WAS IMPROPER AND HAS TAKEN ALL NECESSARY STEPS TO PRECLUDE IMPROPER USE OF SOLE-SOURCE NEGOTIATION AND AWARD IN THE FUTURE. ALSO, THE PROCURING ACTIVITY HAS BEEN INSTRUCTED NOT TO EXERCISE ITS OPTION TO INCREASE THE QUANTITIES OF SUPPLIES CALLED FOR UNDER ITEMS NOS. 3 AND 6 OF THE INSTANT CONTRACT.