B-148001, MAR. 5, 1962

B-148001, MAR. 5, 1962

TO RADIO ENGINEERING PRODUCTS:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JANUARY 20, 1962, PROTESTING INVITATIONS FOR BIDS (IFB) NOS. IFB-SC-36-039-62-1647-54, 1648- 54, -1649-54 AND -1650-54 ISSUED DECEMBER 21, 1961, BY THE U.S. ARMY SIGNAL SUPPLY AGENCY, PHILADELPHIA, PENNSYLVANIA, FOR THE PROCUREMENT OF VARIOUS QUANTITIES OF SHELTERS FOR ELECTRICAL EQUIPMENT.

THE CORRESPONDENCE REFERRED TO IN YOUR TELEGRAM DISCLOSES THAT YOU OBJECT TO THE GROUPINGS OF THE ITEMS REQUIRED UNDER THE SEVERAL IFB-S. YOU URGE THAT YOUR SUGGESTED REARRANGEMENT OF THE QUANTITIES AND TYPES OF EQUIPMENTS AMONG THE FOUR IFB'S WOULD RESULT IN A COST REDUCTION ESTIMATED AT APPROXIMATELY 10 PERCENT AND AN IMPROVEMENT IN THE DELIVERY TIME AND QUALITY OF PERFORMANCE WITH A REDUCTION IN ADMINISTRATIVE EFFORT.

THE RECORD DISCLOSES THAT THE PROCUREMENT PLAN AGAINST WHICH YOUR PROTEST WAS MADE CALLED FOR 18 CONFIGURATIONS TO BE PROCURED UNDER FOUR SOLICITATIONS, ONE OF WHICH WAS A 100 PERCENT SMALL BUSINESS SET ASIDE. THE PLAN HAS SINCE BEEN REVISED TO PROVIDE FOR SIX SOLICITATIONS, THREE OF WHICH ARE SMALL BUSINESS SET-ASIDES. THE REVISED PLAN IS DESIGNED TO MEET DELIVERY REQUIREMENTS BY SPREADING THE PROCUREMENT AMONG SEVERAL SOURCES; TO PROVIDE MAXIMUM ASSISTANCE TO SMALL BUSINESS; TO PERMIT MAXIMUM COMPETITION OF BOTH SMALL AND LARGE BUSINESS SO AS TO ASSURE REASONABLE PRICES, AND TO PROVIDE MULTIPLE SOURCES OF SUPPLY FOR THESE ESSENTIAL ITEMS. ANNOUNCEMENT OF THE REVISED PROCUREMENT PLAN WAS MADE TO THE INDUSTRY ON JANUARY 26, 1962.

THE SPECIFIC OBJECTIONS RAISED BY YOU TO THE CURRENTLY PLANNED GROUPINGS HAVE RECEIVED ADMINISTRATIVE CONSIDERATION AND THEY HAVE BEEN FOUND TO BE WITHOUT MERIT. THE RECORD DISCLOSES THAT THE ARMY SIGNAL CORPS HAS PROCURED THESE EQUIPMENTS PREVIOUSLY UNDER TWO CONTRACTS. THOSE IDENTIFIED AS DIVISION ITEMS WERE PRODUCED BY YOUR FIRM; THE CORPS AND ARMY ITEMS BY ANOTHER. REGROUPING IN ACCORDANCE WITH YOUR PROPOSAL WOULD HAVE THE RESULT OF PLACING YOUR FIRM IN AN ESPECIALLY ADVANTAGEOUS POSITION TO BID ON TWO OF THE FIVE GROUPS YOU HAVE SUGGESTED. IT WOULD EXCLUDE FROM SMALL BUSINESS SET-ASIDES ALL ITEMS PREVIOUSLY PRODUCED BY YOUR FIRM AND WOULD LIMIT SMALL BUSINESS SET-ASIDES TO ITEMS NOT PREVIOUSLY PRODUCED BY YOU.

IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT THERE WOULD BE NO SIGNIFICANT ADVANTAGE IN GOING TO A PREVIOUS PRODUCER SINCE INVESTMENT WAS SO SLIGHT THAT NO APPRECIABLE BENEFIT IN EITHER TIME OR MONEY WOULD RESULT. THE TOOLING, TEMPLATES, ETC., THAT MIGHT BE REQUIRED ARE NOT OF THE SORT THAT WOULD BE CAPITALIZED AND NO TIME ADVANTAGE WOULD EXIST FOR A PREVIOUS SUPPLIER, UNLESS CURRENTLY IN PRODUCTION, SINCE ADEQUATE PROCUREMENT DATA IS AVAILABLE AND ANY SOURCE SELECTED WOULD HAVE TO UNDERGO THE SAME MAKE-READY PROCESS.

AS YOU ARE AWARE, THE PROCURING AGENCY IS RESPONSIBLE FOR MAKING THE DETERMINATIONS REQUIRED IN CARRYING OUT GOVERNMENT PROCUREMENT POLICIES AND PROCEDURES ESTABLISHED BY STATUTORY AND REGULATOR PROVISIONS. PRIME CONSIDERATION HERE IS SMALL BUSINESS PARTICIPATION WHICH IS GOVERNED BY THE SMALL BUSINESS ACT OF JULY 18, 1958, 72 STAT. 384-396, CARRIED IN 15 U.S.C. 631-647. UNDER SECTION 2 OF THIS ACT IT IS THE DECLARED POLICY THAT THE GOVERNMENT SHOULD AID AND ASSIST THE INTEREST OF SMALL BUSINESS CONCERNS IN ORDER, AMONG OTHER THINGS, TO INSURE THAT A FAIR PROPORTION OF THE TOTAL PURCHASES AND CONTRACTS FOR PROPERTY AND SERVICES FOR OUR GOVERNMENT BE PLACED WITH SMALL BUSINESS ENTERPRISES AND TO MAINTAIN AND STRENGTHEN THE OVER-ALL ECONOMY OF THE UNITED STATES. THIS SECTION ALSO PROVIDES FOR THE DETERMINATION OF AWARDS OR CONTRACTS FOR SMALL BUSINESS CONCERNS BY THE SMALL BUSINESS ADMINISTRATION AND THE CONTRACTING PROCUREMENT AGENCY, SUBJECT TO FINAL DETERMINATION IN CASE OF DISAGREEMENT, BY SUBMISSION "TO THE SECRETARY OR THE HEAD OF THE APPROPRIATE DEPARTMENT OR AGENCY BY THE ADMINISTRATOR.' 15 U.S.C. 644. SEE, ALSO, THE STATUTORY PROVISIONS GOVERNING THE "ARMED FORCES" CODIFIED IN TITLE 10 OF THE UNITED STATES CODE, PARTICULARLY SECTION 2301 OF CHAPTER 137, RELATING TO "PROCUREMENT GENERALLY" WHICH EXPRESSLY PROVIDES "IT IS THE POLICY OF CONGRESS THAT A FAIR PROPORTION OF THE PURCHASES AND CONTRACTS MADE UNDER THIS CHAPTER BE PLACED WITH SMALL BUSINESS CONCERNS.'

THE OBJECTIONS AND SUGGESTIONS SUBMITTED BY YOU, WHICH RELATE PRINCIPALLY TO THE SOURCE OF PROCUREMENT, DO NOT INDICATE ANY FAILURE ON THE PART OF THE CONTRACTING AGENCY TO CONFORM WITH THE PRESCRIBED GOVERNMENT POLICIES AND PROCEDURES. INASMUCH AS YOUR FIRM CANNOT QUALIFY AS A SMALL BUSINESS CONCERN UNDER THE PROVISIONS OF THE SMALL BUSINESS ACT YOU, OF COURSE, ARE INELIGIBLE TO PARTICIPATE IN BIDDING ON ITEMS RESERVED FOR SMALL BUSINESS, AND CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES UPON WHICH THE ADMINISTRATIVE DETERMINATIONS HAVE BEEN MADE REVEALS NO REASONABLE BASIS ON WHICH YOUR PROTEST MIGHT OTHERWISE BE SUSTAINED. CF. 34 COMP. GEN. 115.

WE APPRECIATE YOUR INTEREST IN THIS PROCUREMENT AND ASSURE YOU THAT CONSTRUCTIVE CRITICISMS AND SUGGESTIONS WILL CONTINUALLY RECEIVE OUR CLOSE ATTENTION FOR THE PURPOSE OF EFFECTING IMPROVEMENTS IN ALL AREAS OF GOVERNMENT PROCUREMENT WHEREVER POSSIBLE.