B-151310, JUN. 25, 1963

B-151310, JUN. 25, 1963

TO THE METWOOD MANUFACTURING CORPORATION:

BY LETTER DATED APRIL 12, 1963, WITH ENCLOSURES, YOU PROTESTED AGAINST A SOLE-SOURCE PROCUREMENT UNDER REQUEST FOR PROPOSALS NO. 30 635-63-11508, ISSUED BY ROME AIR MATERIEL AREA ON MARCH 11, 1961, FOR ONE BERNOULLI DISK FILE, MODEL BD-500, DATA STORAGE MEMORY DEVICE, WITH ASSOCIATED CIRCUITRY, IN ACCORDANCE WITH DETAILED SPECIFICATIONS AND DRAWINGS, TOGETHER WITH INSTALLATION AND TESTING AND MANUALS.

BRIEFLY, IT IS YOUR CONTENTION THAT THE REQUIREMENT SHOULD BE PROCURED THROUGH COMPETITIVE BIDDING PROCEDURES. IN THAT CONNECTION, YOU POINT OUT THAT YOU HAVE MANUFACTURED GOVERNMENT-APPROVED MEMORY DEVICES COMPARABLE TO THE MODEL BD-500 AND THAT YOUR COMPANY, TOGETHER WITH SEVERAL OTHER CONCERNS, CAN FURNISH A COMPATIBLE ITEM, IF GIVEN THE SYSTEM PARAMETERS.

THE REQUEST FOR PROPOSALS WAS SOLICITED FROM LABORATORY FOR ELECTRONICS, INCORPORATED, BASED ON SOLE-SOURCE DETERMINATIONS AND FINDINGS BY THE CONTRACTING OFFICER DATED FEBRUARY 20, 1963, PURSUANT TO 10 U.S.C. 2304 (A) (10) AND ASPR 3-210.2 (I). THOSE DETERMINATIONS AND FINDINGS READ AS FOLLOWS:

"THE DEPARTMENT OF THE AIR FORCE PROPOSES TO ENTER INTO A CONTRACT FOR A DISK FILE, LABORATORY FOR ELECTRONICS MODEL DB500.

"I HEREBY FIND THAT THE USE OF FORMAL ADVERTISING WOULD BE IMPRACTICABLE FOR THE FOLLOWING REASONS:

"THE LFE DISK FILE DB500 TO BE PROCURED IS ONE PORTION OF THE FTD SEMI- AUTOMATIC FILE CONVERSION SYSTEM DESIGNED BY RADC, AND BEING PROCURED COMPONENT BY COMPONENT. THIS DISK FILE BEING PROCURED IS A PART OF THIS SYSTEM AND MUST BE COMPATIBLE WITH THE SYSTEM, SINCE ANY SUBSTITUTION OF EQUIPMENT TYPE MAY CAUSE INTERFACE PROBLEMS, OR EVEN COMPLETE SYSTEM FAILURE. ACCORDINGLY, THE ITEM TO BE PROCURED CAN BE OBTAINED FROM ONLY ONE SOURCE.

"I HEREBY DETERMINE THAT THIS PROCUREMENT IS FOR AN ITEM FOR WHICH IT IS IMPRACTICABLE TO SECURE COMPETITION BY FORMAL ADVERTISING AND THAT THE NEGOTIATION OF A CONTRACT FOR THIS PROCUREMENT IS AUTHORIZED PURSUANT TO 10 U.S.C. 2304 (A) (10), AS CONTEMPLATED BY PARAGRAPH 3 210.2 (I) OF THE ARMED-SERVICES PROCUREMENT REGULATION.'

WE ARE FURTHER INFORMED THAT THE BD-500 UNIT IS THE ONLY KNOWN ITEM ON THE MARKET WHICH HAS THE CAPACITY, ACCESS TIME, READOUT RATE AND RELIABILITY REQUIRED. INQUIRIES MADE BY FIELD PERSONNEL REVEAL THAT YOUR COMPANY HAS NEVER MANUFACTURED A DISK FILE, BUT IS CURRENTLY IN THE PROCESS OF BUILDING SUCH AN ITEM. THEY ALSO ESTIMATE THAT IT WOULD TAKE YOUR COMPANY A MINIMUM OF FOUR MONTHS TO DESIGN AN EXPERIMENTAL MODEL PLUS AN ADDITIONAL PERIOD OF AT LEAST 18 MONTHS TO PERFORM ENGINEERING TESTS AND NECESSARY MODIFICATIONS BEFORE A PROTOTYPE HAVING ANY DEGREE OF RELIABILITY COULD BE DELIVERED. WE ARE ADVISED THAT DELIVERY OF THE ITEM IS REQUIRED AT THE EARLIEST POSSIBLE DATE AND IN ANY EVENT WITHIN EIGHT MONTHS SO AS TO COMPLETE ASSEMBLY OF THE ENTIRE SYSTEM WITHIN THE TIME REQUIRED.

THE USE OF EXCEPTION NO. (10) TO 10 U.S.C. 2304 (A) IS DEPENDENT UPON THE EXISTENCE OF SPECIFIED FACTUAL SITUATIONS, ONE OF WHICH IS WHEN THE SUPPLIES CAN BE OBTAINED FROM ONLY ONE FIRM (SOLE SOURCE OF SUPPLY). THE EXISTENCE OF THIS FACTUAL SITUATION IS AMPLY SUPPORTED BY THE RECORD BEFORE US.THE DETERMINATIONS AND FINDINGS QUOTED ABOVE, AS AMPLIFIED BY THE FACTS OF RECORD, CLEARLY AND CONVINCINGLY ESTABLISH THAT FORMAL ADVERTISING WOULD NOT HAVE BEEN FEASIBLE AND PRACTICABLE. SEE 10 U.S.C. 2310 (B), AS AMENDED BY PUBLIC LAW 87-653, APPROVED SEPTEMBER 10, 1962, WHICH ALSO SPECIFICALLY PROVIDES THAT SUCH DETERMINATIONS SUPPORTING NEGOTIATION UNDER EXCEPTION NO. (10) SHALL BE FINAL.

WE HAVE ALWAYS RECOGNIZED THE PRIMARY RIGHT OF THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT TO DETERMINE, AS HERE, THE EXISTENCE OF FACTS AS THE BASIS OF ADMINISTRATIVE ACTION. SINCE THE ADMINISTRATIVE ACTIONS TAKEN HERE WERE IN ACCORD WITH LAW AND REGULATION, AND SINCE IT IS ESTABLISHED AS A FACT THAT ONLY ONE SOURCE IS CAPABLE OF PRODUCING AN ACCEPTABLE ITEM WITHIN THE URGENT TIME SCHEDULE, WE MUST CONCLUDE THAT THE INSTANT PROCUREMENT IS NOT SUBJECT TO QUESTION BY OUR OFFICE.