B-148575, AUG. 1, 1962

B-148575, AUG. 1, 1962

TO HI-LO ENGINEERING AND MANUFACTURING, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM RECEIVED APRIL 2, 1962, PROTESTING AWARD TO ANOTHER BIDDER PURSUANT TO REQUEST FOR QUOTATIONS NO. 09-603-62- 2146, ISSUED BY WARNER ROBINS AIR MATERIEL AREA (WRAMA), ROBINS AIR FORCE BASE, GEORGIA.

THE ABOVE REQUEST FOR QUOTATIONS WAS ISSUED SEPTEMBER 15, 1961, AND COVERED 20 UNITS OF AN ITEM DESCRIBED AS FOLLOWS:

"4330-826-7198-FILTER, FLUID PRESSURE,

APPL: SM-65 HI-LO ENGR. P/N 1039B"

YOUR COMPANY WAS THE ONLY SOURCE SOLICITED, SINCE THE AIR FORCE DID NOT CONSIDER THAT IT HAD SUFFICIENT DATA TO PERMIT COMPETITIVE PROCUREMENT AND THE ITEM HAD PREVIOUSLY BEEN PROCURED ONLY FROM YOU.

ON OCTOBER 9, 1961, YOU QUOTED A PRICE OF $668.80 EACH FOR THE 20 UNITS. THE CONTRACTING OFFICER WAS NOT SATISFIED THAT THIS PRICE WAS REASONABLE AND REQUESTED THE LOS ANGELES CONTRACT MANAGEMENT DISTRICT TO FURNISH ASSISTANCE IN CONDUCTING A PRICE EVALUATION. THAT OFFICE REPORTED THAT THE REASONABLENESS OF YOUR QUOTATION COULD NOT BE DETERMINED DUE TO YOUR REFUSAL TO FURNISH ADEQUATE PRICING INFORMATION.

ON DECEMBER 15, 1961, THE CONTRACTING OFFICER, IN AN ATTEMPT TO SECURE COMPETITION, MAILED COPIES OF THE REQUEST FOR PROPOSALS TO PUROLATOR PRODUCTS, INC., RAHWAY, NEW JERSEY, AND PERMANENT FILTER CORPORATION, COMPTON, CALIFORNIA. THE ITEM DESCRIPTION WAS NOT CHANGED. IN RESPONSE, PUROLATOR OFFERED TO FURNISH ITS PART NUMBER 63235-1 AND PERMANENT FILTER OFFERED TO FURNISH ITS PART NUMBER 04 11378, BOTH QUOTATIONS BEING CONSIDERABLY LOWER THAN YOURS. UPON RECEIPT OF A PURCHASE REQUEST FOR AN ADDITIONAL 85 UNITS. THE CONTRACTING OFFICER, ON JANUARY 3, 1962, NOTIFIED ALL FIRMS SOLICITED THAT THE QUANTITY HAD BEEN INCREASED FROM 20 TO 105 UNITS AND REQUESTED QUOTATIONS ON THE INCREASED QUANTITY, TO BE SUBMITTED BY JANUARY 10, 1962. YOU OFFERED TO FURNISH 105 UNITS AT $617 EACH AND PERMANENT FILTER QUOTED A PRICE OF $165 EACH. PUROLATOR DID NOT BID ON THE REVISED QUANTITY.

PERMANENT FILTER SUBMITTED DRAWINGS AND DATA DESCRIBING THE ITEM TO BE FURNISHED, AND ON THE BASIS OF THIS DATA, AIR FORCE TECHNICAL PERSONNEL MADE A DETERMINATION THAT THE ITEM OFFERED BY PERMANENT FILTER WAS ACCEPTABLE AND 100 PERCENT INTERCHANGEABLE WITH HI-LO PART NO. 1039B. CONTRACT NO. AF09/603/-40110 WAS THEREFORE ENTERED INTO ON MARCH 7, 1962, WITH PERMANENT FILTER CORPORATION, AS THE LOW BIDDER.

YOU PROTEST THIS AWARD ON THE GROUND THAT THE FILTER DESCRIBED IN THE REQUEST FOR QUOTATIONS WAS DEVELOPED BY YOUR COMPANY WITH 100 PERCENT NONGOVERNMENT FUNDS AND THAT THE AWARD OF A CONTRACT FOR A SUBSTITUTE ITEM VIOLATED YOUR PROPRIETARY RIGHTS IN THE ITEM YOU DEVELOPED. YOU ALSO REQUEST A COPY OF THE DRAWING ON THE AWARDED ITEM AND OF THE ENGINEERING COMPARISON BETWEEN THIS ITEM AND YOUR ITEM 1039B.

IT IS THE RESPONSIBILITY OF THE CONTRACTING OFFICER TO PROTECT THE INTEREST OF THE GOVERNMENT, AS TO PRICE AND OTHERWISE, AND, TO TO THIS END, PARAGRAPH 1-300.1 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES THAT ALL PROCUREMENTS, WHETHER BY FORMAL ADVERTISING OR BY NEGOTIATION, SHALL BE MADE ON A COMPETITIVE BASIS TO THE MAXIMUM PRACTICABLE EXTENT. ALSO, PARAGRAPHS 3-101 AND 3-102 (E) OF ASPR PROVIDE, RESPECTIVELY, THAT (1) WHENEVER SUPPLIES ARE TO BE PROCURED BY NEGOTIATION, PRICE QUOTATIONS SHALL BE SOLICITED FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES, AND (2) WHERE A PROPOSED PROCUREMENT APPEARS TO BE NECESSARILY NONCOMPETITIVE, THE PURCHASING ACTIVITY IS RESPONSIBLE FOR ASSURING THAT COMPETITIVE PROCUREMENT IS NOT FEASIBLE. ACCORDINGLY, WHEN A QUOTATION WAS RECEIVED FROM YOU THAT APPEARED TO BE EXCESSIVE, AND YOU WERE UNWILLING OR UNABLE TO FURNISH INFORMATION WHICH WOULD ESTABLISH THAT THE PRICE WAS REASONABLE, IT WAS THE DUTY OF THE CONTRACTING OFFICER TO TAKE WHATEVER STEPS WERE NECESSARY TO ENSURE "VALUE RECEIVED" BY THE GOVERNMENT, INCLUDING THE SECURING OF COMPETITION THROUGH DEVELOPMENT OF AN ADDITIONAL SOURCE OF SUPPLY, IF POSSIBLE.

THIS WAS A NEGOTIATED PROCUREMENT AND THE REQUEST FOR QUOTATIONS ORIGINALLY WAS ISSUED UNDER THE PROVISIONS OF 10 U.S.C. 2304 (A) (10), SINCE YOUR COMPANY WAS THE ONLY KNOWN SOURCE OF SUPPLY. IN VIEW OF THE URGENT NEED FOR THE ITEM, SOLICITATION OF ADDITIONAL BIDS WAS ALSO ON A NEGOTIATED BASIS, WHICH WAS IN ACCORDANCE WITH 10 U.S.C. 2304 (A) (2). CONTRAST TO THE FORMAL REQUIREMENTS OF COMPETITIVE BIDDING, PRELIMINARY NEGOTIATIONS ARE STRICTLY INFORMAL AND GENERATE NO RIGHTS OR OBLIGATIONS. THE REQUEST FOR QUOTATIONS SPECIFICALLY PROVIDES THAT "THIS IS A REQUEST FOR INFORMATION AND QUOTATIONS FURNISHED ARE NOT OFFERS," AND THAT "THIS REQUEST DOES NOT COMMIT THE GOVERNMENT TO PAY ANY COSTS INCURRED IN THE PREPARATION OR THE SUBMISSION OF THIS QUOTATION, OR TO PROCURE OR CONTRACT FOR SUPPLIES OR SERVICES.' THE GOVERNMENT WAS THEREFORE ENTIRELY WITHIN ITS RIGHTS IN LOOKING ELSEWHERE FOR THE NEEDED ITEM UPON RECEIPT OF AN UNSATISFACTORY QUOTATION FROM YOU.

PARAGRAPH 1-1201 (A) OF ASPR PROVIDES THAT PURCHASE DESCRIPTIONS SHALL STATE ONLY THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT AND DESCRIBE THE ITEMS IN A MANNER WHICH WILL ENCOURAGE MAXIMUM COMPETITION AND ELIMINATE RESTRICTIVE FEATURES THAT MIGHT LIMIT ACCEPTABLE OFFERS TO ONE SUPPLIER'S PRODUCT. AS STATED ABOVE, THE PURCHASE DESCRIPTION GAVE ONLY THE FEDERAL STOCK NUMBER, A VERY BRIEF DESCRIPTION OF THE ITEM, AND YOUR PART NUMBER. NO ADDITIONAL DATA, PROPRIETARY OR OTHER, WAS FURNISHED BY THE GOVERNMENT. IN A NEGOTIATED PROCUREMENT, THE FIRMS SOLICITED ARE AT LIBERTY TO OFFER, AND THE GOVERNMENT IS JUSTIFIED IN CONSIDERING, BIDS ON ALTERNATE ITEMS WHICH WILL MEET THE GOVERNMENT'S NEEDS. PERMANENT FILTER OFFERED A PRODUCT WHICH WAS DETERMINED BY AIR FORCE PERSONNEL TO ACCEPTABLE AND THERE IS NO INDICATION THAT THE GOVERNMENT'S ACTION IN NEGOTIATING AND AWARDING THIS CONTRACT WAS LEGALLY OBJECTIONABLE THROUGH VIOLATION OF ANY STATUTE, CONTRACT PROVISION, AGREEMENT, REGULATION OR OTHERWISE.

WITH REFERENCE TO YOUR INTEREST IN SECURING COPIES OF THE DRAWING ON THE AWARDED ITEM AND THE GOVERNMENT ENGINEERING COMPARISON BETWEEN SAID ITEM AND YOUR PART NO. 1039B, YOU ARE ADVISED THAT THESE MATTERS ARE SOLELY WITHIN THE PROVINCE OF THE ADMINISTRATIVE OFFICE, SINCE IT IS THE RESPONSIBILITY OF THE PROCURING AGENCY TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THE GOVERNMENT'S REQUIREMENTS. 17 COMP. GEN. 554. THIS DETERMINATION INVOLVES A TECHNICAL EVALUATION WHICH WE ARE NOT COMPETENT TO REVIEW, PER SE, AND WHICH WE WILL NOT QUESTION IN THE ABSENCE OF AFFIRMATIVE EVIDENCE THAT IT IS IN ERROR.

FOR THE REASONS STATED WE FIND NO BASIS FOR QUESTIONING THE VALIDITY OF THE AWARD TO PERMANENT FILTER CORPORATION AND YOUR PROTEST MUST THEREFORE BE DENIED.