B-152679, DEC. 16, 1963

B-152679: Dec 16, 1963

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THE REQUIREMENT FOR THE SNOWPLOWS WAS INITIATED BY THE GOVERNMENT OF INDIA AND WAS FUNDED AND APPROVED FOR SUPPLY BY THE DEPARTMENT OF DEFENSE UNDER THE MILITARY ASSISTANCE PROGRAM. THIS REQUIREMENT WAS SUBMITTED ON AN EMERGENCY BASIS WITH DELIVERY TO INDIA REQUIRED NO LATER THAN NOVEMBER 15. THIS URGENCY OF NEED AND DESIGNATED DELIVERY DATE WAS NECESSITATED BY THE FACT THAT THE SNOWPLOWS WERE REQUIRED FOR USE OF INDIA TO KEEP SUPPLY LINES. THE DETERMINATION OF THIS SPECIFIC MAKE AND MODEL WAS BASED ON RECOMMENDATIONS OF A UNITED STATES TECHNICAL TEAM IN INDIA WHICH STUDIES SNOW REMOVAL AND ROAD MAINTENANCE AND CONSTRUCTION PROBLEMS. WERE FURNISHED THE ARMY ENGINEER PROCUREMENT OFFICE. WHEN FUNDS WERE MADE AVAILABLE ON AUGUST 29.

B-152679, DEC. 16, 1963

TO BROS INCORPORATED:

BY LETTER DATED OCTOBER 11, 1963, WITH ENCLOSURE, YOU PROTESTED AGAINST THE AWARD OF PURCHASE ORDER NO. 88-C-50596-SL TO THE AMERICAN SNOWBLAST CORPORATION FOR THE FURNISHING OF 11 ROTARY SNOWPLOWS.

THE REQUIREMENT FOR THE SNOWPLOWS WAS INITIATED BY THE GOVERNMENT OF INDIA AND WAS FUNDED AND APPROVED FOR SUPPLY BY THE DEPARTMENT OF DEFENSE UNDER THE MILITARY ASSISTANCE PROGRAM. THIS REQUIREMENT WAS SUBMITTED ON AN EMERGENCY BASIS WITH DELIVERY TO INDIA REQUIRED NO LATER THAN NOVEMBER 15, 1963. THIS URGENCY OF NEED AND DESIGNATED DELIVERY DATE WAS NECESSITATED BY THE FACT THAT THE SNOWPLOWS WERE REQUIRED FOR USE OF INDIA TO KEEP SUPPLY LINES, THROUGH MOUNTAIN PASSES, OPEN TO FORCES IN DEFENSIVE AREAS DURING THE ONCOMING WINTER MONTHS.

THE GOVERNMENT OF INDIA DESIGNATED ITS REQUIREMENT FOR ROTARY SNOWPLOWS BY SPECIFIC MODEL AND MANUFACTURE BY AMERICAN SNOWBLAST. THE DETERMINATION OF THIS SPECIFIC MAKE AND MODEL WAS BASED ON RECOMMENDATIONS OF A UNITED STATES TECHNICAL TEAM IN INDIA WHICH STUDIES SNOW REMOVAL AND ROAD MAINTENANCE AND CONSTRUCTION PROBLEMS. AFTER EXTENSIVE STUDY OF THE MOUNTAINOUS DEFENSIVE AREA AND PROBLEMS ENCOUNTERED BY INDIA, THE TEAM CONSIDERED THE AMERICAN SNOWBLAST MODEL R-1000L AS MOST SATISFACTORY FOR HIGH-DENSITY AVALANCHE SNOW. BASED ON DEPARTMENT OF DEFENSE PROGRAM APPROVAL OF THE 11 ROTARY SNOWPLOWS, THE DEPARTMENT OF THE ARMY ON JULY 16, 1963, DIRECTED THAT EXPEDITED PROCUREMENT AND SUPPLY ACTION BE INITIATED TO SHIP THE DESIRED SNOWPLOWS FOR DELIVERY IN INDIA NO LATER THAN NOVEMBER 15, 1963. MILITARY INTERDEPARTMENTAL PURCHASE REQUEST NO. A -58202-3193-1092/FY 63) DATED JULY 16, 1963, AND AMENDMENT NO. 1 THERETO DATED JULY 25, 1963, WERE FURNISHED THE ARMY ENGINEER PROCUREMENT OFFICE, CHICAGO, FOR NECESSARY ACTION TO PROCURE 11 ROTARY SNOWPLOWS MODEL B-1000L MOUNTED ON FRONT END LOADER EQUAL TO HOUGH H-70. WHEN FUNDS WERE MADE AVAILABLE ON AUGUST 29, 1963, REQUEST FOR PROPOSAL NO. AMC/T/-11-184-64 24/NEG-C/JD WAS ISSUED ON THAT DATE TO AMERICAN SNOWBLAST. THE DECISION TO NEGOTIATE THE PROCUREMENT WITH AMERICAN SNOWBLAST ONLY WAS BASED ON THE DETERMINATION AND FINDINGS OF THE CONTRACTING OFFICER DATED AUGUST 28, 1963, AS APPROVED ON THE SAME DATE BY THE COMMANDING OFFICER, ARMY ENGINEER PROCUREMENT OFFICE, CHICAGO. THIS DOCUMENT READS AS FOLLOWS:

"1. I HEREBY FIND THAT:

"A. THE U.S. ARMY ENGINEER PROCUREMENT OFFICE, CHICAGO, PROPOSES TO PROCURE ELEVEN EACH ROTARY SNOWPLOWS MOUNTED ON FRONT END LOADER UNDER P.R. A58202-3193-1092/FY 63).

"B. THE ESTIMATED COST OF THE PROPOSED PROCUREMENT IS $495,000.00.

"C. THE PROCUREMENT BY NEGOTIATION OF THE ABOVE DESCRIBED MATERIAL IS JUSTIFIED AS THE PURCHASE REQUEST CITES ON ISSUE PRIORITY DESIGNATOR 6 IN ACCORDANCE WITH UNIFORM MATERIAL ISSUE PRIORITY SYSTEM.

"D. USE OF FORMAL ADVERTISING FOR PROCUREMENT OF THE ABOVE DESCRIBED MATERIAL IS IMPRACTICABLE BECAUSE THE URGENCY FOR THIS REQUIREMENT DOES NOT PERMIT THE TIME REQUIRED FOR PROCUREMENT BY FORMAL ADVERTISING PROCEDURE.

"E. NEGOTIATION OF THE REQUIREMENT WITH THE AMERICAN SNOWBLAST CORPORATION, 1237 SHOSHONE STREET, DENVER, COLORADO IS JUSTIFIED AS THE REQUISITIONER IN MESSAGE, SMOSC-SPR 5464-C DATED 22 JULY 1963 STATES PROCUREMENT OF THE SUPPLIES FROM AMERICAN SNOWBLAST CORPORATION IS AUTHORIZED BY DEPARTMENT OF THE ARMY MESSAGE DA 930317 (CLASSIFIED) TO ACCOMPLISH THE MANDATORY DELIVERY SCHEDULE OF IN COUNTRY DATE OF 15 NOVEMBER 1963 AND THE REQUISITIONER FURTHER STATES IN MESSAGE SMOSC-SPR 5509C DATED 16 AUGUST 1963 THAT BASED ON THE STUDY BY THE U.S. ARMY COREGIONAL RESEARCH LABORATORY OF THE SNOW REMOVAL AND ROAD CONSTRUCTION PROBLEMS OF THE IN COUNTRY, THE UNITS PRODUCED BY AMERICAN SNOWBLAST CORPORATION ARE NECESSARY TO SATISFY THE PURCHASE REQUIREMENT.

"2. UPON THE BASIS OF THE FINDINGS SET FORTH ABOVE, I HEREBY DETERMINE THAT FOR THE REASONS STATED IN "C" ABOVE, THE PROCUREMENT IS TO BE NEGOTIATED.

"3. SUBJECT TO THE AVAILABILITY OF FUNDS AND PROVIDING THAT THE ABOVE PROPERTY HAS OTHERWISE BEEN AUTHORIZED FOR PROCUREMENT, IT MAY THEREFORE, BE PROCURED BY NEGOTIATION PURSUANT TO 10 U.S.C. 2304 (A) (2) AND PARAGRAPH 3-202.2 (VI) OF THE ARMED SERVICES PROCUREMENT REGULATION.'

NEGOTIATIONS WITH AMERICAN SNOWBLAST UNDER 10 U.S.C. 2304 (A) (2) RESULTED IN THE AWARD OF CONTRACT NO. DA-11-184-AMC-315/T) ON SEPTEMBER 9, 1963, IN THE TOTAL AMOUNT OF $484,000.

WE NOTE FROM THE RECORD THAT THIS PROCUREMENT WAS ASSIGNED ISSUE PRIORITY DESIGNATOR 6 PURSUANT TO THE PROVISIONS OF DEPARTMENT OF DEFENSE INSTRUCTION NO. 4410.6 DATED NOVEMBER 12, 1962. PARAGRAPH 3 202 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) SPECIFICALLY AUTHORIZES THE NEGOTIATION OF CONTRACTS UNDER 10 U.S.C. 2304 (A) (2) IF "THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING" AND WHEN THE PURCHASE REQUEST CITES AN ISSUE PRIORITY DESIGNATOR 1 THROUGH 6. SEE, PARTICULARLY, ASPR 3-202.2 (VI) AND 3 202.3.

THE RECORD ESTABLISHES THAT THE DETERMINATION OF "PUBLIC EXIGENCY" WAS ACCOMPLISHED IN ACCORDANCE WITH PROCEDURES PRESCRIBED BY ASPR 3-202 AND, IN VIEW OF THE BASES FOR SUCH DETERMINATION, WE ARE OF THE OPINION THAT THIS PROCUREMENT IS NOT SUBJECT TO OBJECTION BY THIS OFFICE. 38 COMP. GEN. 44. WE ARE ADVISED THAT NEGOTIATIONS WERE RESTRICTED TO AMERICAN SNOWBLAST SINCE THE GOVERNMENT OF INDIA REQUIRED A SPECIFIC MAKE AND MODEL IN ORDER TO ADEQUATELY MEET ITS NEEDS AND THAT COMPLIANCE WITH INDIA'S REQUEST WAS IN FURTHERANCE OF OUR COMMITMENTS UNDER THE MILITARY ASSISTANCE PROGRAM.

ACCORDINGLY, AND SINCE THE ROTARY SNOWPLOWS WERE PROCURED UNDER EMERGENCY CONDITIONS UNDER AUTHORIZED NEGOTIATION PROCEDURES, WE HAVE NO ALTERNATIVE OTHER THAN TO DENY YOUR PROTEST.