B-152158, NOV. 18, 1963

B-152158: Nov 18, 1963

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THE DUE DATE FOR PROPOSALS WAS MAY 23. THIS ITEM WAS IDENTIFIED AS PART NUMBER FDC 1040M1 AND THE SPECIFICATIONS STATED THAT THE "PART NUMBER IS IDENTIFIED AS THAT OF DAVIS AIRCRAFT PRODUCTS. PAGE 5 OF THE SPECIFICATIONS PROVIDED THAT DELIVERY OF ITEM 1 WAS DESIRED BY AUGUST 30. WE ARE INFORMED THAT DELIVERY OF ITEM 1 WAS COMPLETED BY DAVIS AIRCRAFT PRODUCTS. THE CONTRACTING OFFICER STATES THAT ADEQUATE DATA TO PERMIT THE USE OF A SPECIFICATION WAS NOT AVAILABLE AT THE TIME OF THIS PROCUREMENT. THE DECISION WAS MADE TO UTILIZE A PURCHASE DESCRIPTION IN THIS REQUEST FOR PROPOSALS AND IN THIS CONNECTION THE CONTRACTING OFFICER DETERMINED PURSUANT TO 10 U.S.C. 2304 (A) (10) AND ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3- 210.2 (XIII) THAT THIS PROCUREMENT SHOULD BE BY NEGOTIATION AS THE DRAFTING OF ADEQUATE SPECIFICATIONS FOR FORMAL ADVERTISING WOULD NOT BE FEASIBLE.

B-152158, NOV. 18, 1963

TO BROWN-LINE CORPORATION:

WE REFER TO YOUR LETTER DATED JULY 26, 1963, PROTESTING THE AWARD OF CONTRACT NO. P-1199-64A TO DAVIS AIRCRAFT PRODUCTS, INCORPORATED, SCUDDER AND WOODBINE AVENUES, NORTHPORT, LONG ISLAND, NEW YORK.

ON APRIL 23, 1963, HEADQUARTERS, UNITED STATES ARMY TRANSPORTATION MATERIEL COMMAND, DIRECTORATE OF PROCUREMENT AND PRODUCTION, P.O. BOX 209, MAIN OFFICE, ST. LOUIS 66, MISSOURI, ISSUED REQUEST FOR PROPOSALS NO. AMC (T) 23-204-866-63. THE DUE DATE FOR PROPOSALS WAS MAY 23, 1963. ITEM 1 IN THIS REQUEST FOR PROPOSALS PROVIDED FOR THE PROCUREMENT OF 260 EACH (WITH OPTIONAL QUANTITY INCREASES OF 65 EACH) OF TIE DOWNS FOR CARGO TO BE USED IN CONNECTION WITH CH-37 AIRCRAFT. THIS ITEM WAS IDENTIFIED AS PART NUMBER FDC 1040M1 AND THE SPECIFICATIONS STATED THAT THE "PART NUMBER IS IDENTIFIED AS THAT OF DAVIS AIRCRAFT PRODUCTS, INCORPORATED, NORTHPORT, LONG ISLAND, NEW YORK.' PAGE 5 OF THE SPECIFICATIONS PROVIDED THAT DELIVERY OF ITEM 1 WAS DESIRED BY AUGUST 30, 1963, AND REQUIRED BY OCTOBER 3, 1963. WE ARE INFORMED THAT DELIVERY OF ITEM 1 WAS COMPLETED BY DAVIS AIRCRAFT PRODUCTS, INCORPORATED, ON OCTOBER 14, 1963. THE CONTRACTING OFFICER STATES THAT ADEQUATE DATA TO PERMIT THE USE OF A SPECIFICATION WAS NOT AVAILABLE AT THE TIME OF THIS PROCUREMENT; CONSEQUENTLY, THE DECISION WAS MADE TO UTILIZE A PURCHASE DESCRIPTION IN THIS REQUEST FOR PROPOSALS AND IN THIS CONNECTION THE CONTRACTING OFFICER DETERMINED PURSUANT TO 10 U.S.C. 2304 (A) (10) AND ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3- 210.2 (XIII) THAT THIS PROCUREMENT SHOULD BE BY NEGOTIATION AS THE DRAFTING OF ADEQUATE SPECIFICATIONS FOR FORMAL ADVERTISING WOULD NOT BE FEASIBLE.

ALL PRIOR PROCUREMENTS OF THIS ITEM HAD BEEN FROM DAVIS PRODUCTS, INCORPORATED, AND IN THIS REGARD IT WAS KNOWN THAT THE DAVIS PART WAS COMPATIBLE AND INTERCHANGEABLE WITH EXISTING EQUIPMENT ON CH-37 AIRCRAFT. THERE IS NO EVIDENCE THAT THE CONTRACTING OFFICER WAS AWARE AT THE TIME THIS REQUEST FOR PROPOSALS WAS ISSUED THAT YOU OR OTHER MANUFACTURERS OF THIS ITEM WOULD SUBMIT A PROPOSAL. AT THE TIME OF THIS PROCUREMENT THERE WAS APPROXIMATELY A 45-DAY SUPPLY OF THESE ITEMS AVAILABLE IN STORAGE DEPOTS. IT WAS DETERMINED THAT THE MANUFACTURING LEAD TIME FOR THIS ITEM WAS APPROXIMATELY 90 DAYS AND THAT THE ADMINISTRATIVE LEAD TIME REQUIRED FOR AN AWARD OF A CONTRACT FOR THIS ITEM WAS APPROXIMATELY 60 DAYS. THE ESTIMATED TIME REQUIRED FOR PREPRODUCTION TESTING TO DETERMINE WHETHER A PRODUCT OF ANOTHER MANUFACTURER WAS EQUAL TO THE DAVIS PART WAS ESTIMATED TO BE ABOUT 75 DAYS UTILIZING NORMAL PROCEDURES IN MAKING SUCH AN ENGINEERING EVALUATION. IN THESE CIRCUMSTANCES IT WAS ADMINISTRATIVELY DETERMINED THAT THE PREPRODUCTION TESTING OF AN "OR EQUAL" PRODUCT WOULD NOT BE FEASIBLE AND ON THIS BASIS THE DETERMINATION WAS MADE TO LIMIT THIS PROCUREMENT TO A DAVIS PART ONLY.

YOUR PROPOSAL FOR ITEM 1 DATED MAY 1, 1963, QUOTED A PRICE OF $8.90 FOR THE FIRST 260 UNITS AND PRICE OF $10.85 FOR THE 65 ADDITIONAL QUANTITY UNITS SPECIFIED. YOUR PROPOSAL INDICATED THAT YOU WOULD FURNISH BROWN- LINE PART NO. 22080-51 AND YOU SUBMITTED DRAWINGS OF YOUR PRODUCT WITH YOUR PROPOSAL. DAVIS AIRCRAFT PRODUCTS, INCORPORATED, SUBMITTED A PROPOSAL DATED MAY 23, 1963, OF $11.99 FOR ALL OF THE UNITS SPECIFIED IN ITEM 1, AND PROPOSED TO FURNISH THE EXACT ITEM SPECIFIED IN THE REQUEST FOR PROPOSALS. ON JULY 22, 1963, CONTRACT NO. P-1199-64A, NEGOTIATED AT A PRICE OF $11.75, WAS AWARDED TO DAVIS AIRCRAFT PRODUCTS, INCORPORATED, AS THE MOST ADVANTAGEOUS RESPONSIVE OFFER FOR ITEM 1. WE ARE INFORMED THAT THE DELAY IN MAKING THIS AWARD WAS DUE TO THE UNAVAILABILITY OF FUNDS FOR THE FISCAL YEAR ENDING JUNE 30, 1963. ON JULY 26, 1963, YOU PROTESTED THIS AWARD ON THE BASIS THAT YOU MANUFACTURED A PART WHICH WAS COMPLETELY INTERCHANGEABLE WITH THE DAVIS PART AND YOU ALLEGED THAT UNDER ARMED SERVICES PROCUREMENT REGULATION, SEC. 1-1206, IT WAS IMPROPER NOT TO INSERT AN "OR EQUAL" PROVISION IN CONNECTION WITH THE DAVIS PART SPECIFIED IN THIS REQUEST FOR PROPOSALS.

THE RESULTS OF AN EXPEDITED INDEPENDENT ENGINEERING EVALUATION OF YOUR PRODUCT COMPLETED ON OCTOBER 8, 1963, INDICATED THAT YOUR PRODUCT INCURRED A FAILURE OF STITCHING AT 3,180 POUNDS. THE NEEDS OF THE ARMY FOR THIS PROCUREMENT WERE SUCH THAT A 5,000 POUND CAPACITY WAS REQUIRED BEFORE FAILURE IN STITCHING OCCURRED AND IN THIS REGARD THE DAVIS PRODUCT HAS A 5,400 POUND STITCHING FAILURE CAPACITY. THE CH-37 PROJECT ENGINEER, DIRECTORATE OF PROCUREMENT, RECOMMENDED THAT THE CONTRACTING OFFICER SATISFY PRESENT REQUIREMENTS FOR THIS ITEM BY THE PROCUREMENT OF THE DAVIS PART ON THE BASIS THAT THIS PART WAS COMPATIBLE WITH EXISTING EQUIPMENT AND INCORPORATED DESIRABLE PATENTED FEATURES. HEADQUARTERS, UNITED STATES ARMY MATERIEL COMMAND, INFORMS US THAT FUTURE PROCUREMENTS OF THIS ITEM WILL BE BY FORMAL ADVERTISING USING A MILITARY SPECIFICATION OR BY UTILIZING AN "OR EQUAL" PROVISION IN CONNECTION WITH A BRAND NAME DESCRIPTION. IN THIS REGARD YOU AND DAVIS AIRCRAFT PRODUCTS, INCORPORATED, WILL BE REQUESTED TO SUBMIT YOUR PRODUCTS FOR QUALIFICATION UNDER MILITARY SPECIFICATION NO. MIL-T 27260 WHICH WE ARE INFORMED WILL BE USED IN FUTURE PROCUREMENTS OF THIS ITEM.

WE AGREE THAT THE ARMED SERVICES PROCUREMENT REGULATION, SEC. 1-1206 PROHIBITS THE SOLICITATION OF PROPOSALS ON ANY BASIS WHICH WILL UNDULY OR UNNECESSARILY RESTRICT COMPETITION; HOWEVER, THIS REGULATION ALSO PROVIDES IN SEC. 1/1206.1 (B) THAT A PURCHASE DESCRIPTION UTILIZING A BRAND NAME ONLY MAY BE USED WHERE NO OTHER ITEM OR MANUFACTURER WILL MEET THE AGENCIES' NEEDS. IN THIS REGARD WHERE PROPOSALS ARE SOLICITED ON A BRAND NAME BASIS WITHOUT AN "OR EQUAL" PROVISION AND SUBSEQUENT INFORMATION INDICATES THAT OTHER MANUFACTURERS MAY BE ABLE TO PRODUCE ACCEPTABLE ITEMS, IT HAS BEEN OUR OPINION THAT SUCH MANUFACTURERS MUST BE GIVEN THE OPPORTUNITY TO COMPETE. SEE B-148288, JUNE 1, 1962.

AS THERE IS NO INDICATION THAT THE CONTRACTING OFFICER WAS AWARE AT THE TIME THIS REQUEST FOR PROPOSALS WAS ISSUED THAT YOU OR OTHER MANUFACTURERS OF THIS PRODUCT WOULD SUBMIT PROPOSALS AND AS THE URGENT NEED FOR THESE ITEMS DID NOT PERMIT THE NECESSARY TESTING OF AN "OR EQUAL" PRODUCT WE FIND THAT THE RESTRICTIVE PROVISIONS IN THESE SPECIFICATIONS WERE NO GREATER THAN NECESSARY TO PROTECT LEGITIMATE INTERESTS OF THE UNITED STATES. MOREOVER, AS YOUR PROPOSAL WAS APPARENTLY CONSIDERED TO THE EXTENT PRACTICABLE IN THE CIRCUMSTANCES OF THIS PROCUREMENT, WE FIND NO BASIS TO QUESTION THIS AWARD TO DAVIS AIRCRAFT PRODUCTS, INCORPORATED.