B-153287, MAY 11, 1964

B-153287, MAY 11, 1964

TO GENERAL DEVICES, INCORPORATED:

THIS REFERS TO YOUR LEGAL MEMORANDUM OF APRIL 7, 1964, AND THE OTHER CORRESPONDENCE, PROTESTING AGAINST THE REJECTION OF YOUR BID UNDER REQUEST FOR QUOTATIONS NO. 383-709028-64Q, ISSUED BY THE U.S. NAVY AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA ON OCTOBER 24, 1963.

THE RFQ CALLED FOR QUOTATIONS ON A QUANTITY OF 296 ELECTRONIC PROGRAMMING SWITCHES IN ACCORDANCE WITH TEXAS INSTRUMENTS PART NO. 455420-1, FOR USE AS A COMPONENT TO THE AN/ASA-16A EQUIPMENT. THE RFQ ADVISED THAT DRAWINGS AND DETAILED INFORMATION ON THE REQUIRED PART WERE NOT AVAILABLE AT THE PROCURING OFFICE; AND THAT QUOTATIONS SUBMITTED ON ANOTHER PART NUMBER (ALTERNATE QUOTATIONS) MUST BE ACCOMPANIED BY DRAWINGS OR DESCRIPTIVE LITERATURE.

PROPOSALS WERE RECEIVED FROM YOUR FIRM AND FROM TEXAS INSTRUMENTS, INCORPORATED (A THIRD FIRM SUBMITTED A PROPOSAL WHICH WAS SUBSEQUENTLY WITHDRAWN). YOUR PROPOSAL WAS SLIGHTLY LOWER IN PRICE THAN THE TEXAS INSTRUMENT PROPOSAL. BY LETTER OF JANUARY 15, 1964, YOU WERE NOTIFIED BY THE CONTRACTING OFFICER THAT THE SUBJECT RFQ HAD BEEN CANCELLED. THEREAFTER, ON JANUARY 27, 1964, NAVY PURCHASED, AS AN EMERGENCY REQUIREMENT, 75 OF THESE SWITCHES FROM TEXAS INSTRUMENTS, AT A UNIT PRICE OF $1,472.

NAVY EXPLAINS THAT THE SPECIFIED TEXAS INSTRUMENT PART IS THE ONLY ELECTRONIC PROGRAMMING SWITCH WHICH HAS BEEN APPROVED BY THE BUREAU OF NAVAL WEAPONS FOR INCORPORATION INTO THE AN/ASA-16A EQUIPMENT, PURSUANT TO A PRIOR CONTRACT WITH TEXAS INSTRUMENTS (CONTRACT NO. N383-81769A, DATED APRIL 2, 1963, FOR 100 SWITCHES, AT A UNIT PRICE OF $1,421); AND THAT THE SUBJECT RFQ WAS ISSUED WITH THE INTENT TO RESTRICT PROPOSALS SOLELY TO THE APPROVED TEXAS INSTRUMENTS PART. NAVY FURTHER EXPLAINS THAT AT THE TIME OF THE INITIAL TEXAS INSTRUMENTS CONTRACT THE MATTER OF DESIGN DEVELOPMENT COST INCURRED DURING THE AN/ASA-16A EQUIPMENT CONTRACT HAD NOT BEEN SUFFICIENTLY RESOLVED TO PERMIT THE PURCHASE OF DATA FROM TEXAS INSTRUMENTS, BUT THAT SUBSEQUENT RESOLUTION OF THE MATTER HAD ENABLED PURCHASE OF THE DATA UNDER A CONTRACT MODIFICATION. HOWEVER, THE DATA HAD NOT YET BEEN RECEIVED WHEN THE RFQ WAS ISSUED. WHILE THE RFQ PERMITTED ALTERNATE PROPOSALS, NAVY CONCLUDED THAT ITS URGENT NEEDS DID NOT ALLOW TIME FOR NECESSARY TESTING AND APPROVAL. IN THESE CIRCUMSTANCES NAVY PURCHASED THE EMERGENCY BUY OF 75 SWITCHES FROM TEXAS INSTRUMENTS. NAVY STATES, HOWEVER, THAT UPON RECEIPT OF DATA FROM TEXAS INSTRUMENTS, IT WILL BE IN A POSITION TO PURCHASE THE ADDITIONAL PROGRAMMING SWITCHES UNDER A COMPETITIVE SOLICITATION.

YOU SAY THAT NAVY COULD EASILY HAVE APPROVED YOUR EQUIPMENT. HOWEVER, AS THE RFQ ADVISED, NAVY DID NOT HAVE DATA AVAILABLE ON THE SPECIFIED PART WITH WHICH TO MAKE THE NECESSARY EVALUATION. ALSO, NAVY REPORTS THAT THE IMMEDIATE NEEDS OF THE GOVERNMENT DID NOT PERMIT THE DELAY ATTENDANT TO A TESTING PROGRAM ON YOUR EQUIPMENT. IT APPEARS THAT THE REQUEST FOR ALTERNATE QUOTATIONS WAS INADVERTENT. INDEED, WE DO NOT SEE HOW ALTERNATE QUOTATIONS COULD HAVE BEEN EVALUATED ON AN EQUAL BASIS. SEE 42 COMP. GEN. 383, 385. UNDER THE CIRCUMSTANCES, CANCELLATION OF THE RFQ WAS NECESSARY AND PROPER. ASPR 1-1203 (I), 2 404.1 (B).

YOU INITIALLY CONTENDED THAT NAVY WAS RESTRICTING AWARD TO THE ORIGINAL MANUFACTURER. BUT APART FROM THE EMERGENCY BUY, NAVY PLANS TO PURCHASE THIS REQUIREMENT UNDER COMPETITIVE PROCEDURES. YOU NOW INSIST THAT YOUR PRIOR PROPOSAL SHOULD BE CONSIDERED FIRST ON ANY FOLLOW-UP AWARD. CERTAINLY IT IS A MATTER OF CONCERN THAT YOU EXPENDED TIME AND EFFORT RESPONDING TO A FUTILE REQUEST FOR ALTERNATE QUOTATIONS. BUT THIS REGRETTABLE OCCURRENCE DOES NOT JUSTIFY A DEPARTURE FROM THE STATUTORY POLICY FOR OPEN AND EQUAL COMPETITION ON ANY FUTURE AWARD. GOVERNMENT CONTRACTING OFFICIALS ARE REQUIRED TO OBTAIN THE MAXIMUM COMPETITION CONSISTENT WITH THE GOVERNMENT NEEDS. 10 U.S.C. 2304 (A), 2305 (A); ASPR 3-102; SEE 39 COMP. GEN. 101. CANCELLATION OF THE SOLICITATION PUT AN END TO YOUR OFFER. TO LIMIT A FUTURE BUY TO YOUR PROPOSAL WOULD CONSTITUTE AN UNAUTHORIZED DEPARTURE FROM THE REQUIREMENT FOR OBTAINING COMPETITION. REALIZE THAT CANCELLATION OF A SOLICITATION MAY CAUSE HARDSHIP. HENCE WE VIEW CANCELLATION AS A SERIOUS MATTER. SEE 39 COMP. GEN. 396. BUT IN THIS CASE CANCELLATION WAS JUSTIFIED. AS TO THE FUTURE PROCUREMENT THAT IS EXPECTED, YOU MAY PARTICIPATE IN THE OPEN COMPETITION REQUIRED UNDER THE PROCUREMENT LAWS AND REGULATIONS.