B-153450, MAY 6, 1964

B-153450, MAY 6, 1964

TO METCOM, INCORPORATED:

WE REFER TO YOUR TELEGRAMS OF FEBRUARY 6 AND APRIL 16, 1964, AND LETTER DATED FEBRUARY 10, 1964, PROTESTING THE AWARD OF A CONTRACT PURSUANT TO INVITATION FOR BIDS NO. 09-603-64-531 ISSUED BY WRAMA, DIRECTORATE OF PROCUREMENT AND PRODUCTION, WARNER ROBINS AIR FORCE BASE, GEORGIA.

ON NOVEMBER 30, 1962, YOU WERE AWARDED SUPPLY CONTRACT NO. DSA 9 2977 BY THE PROCUREMENT OFFICE, DEFENSE ELECTRONICS SUPPLY CENTER, 1507 WILMINGTON PIKE, DAYTON 20, OHIO. ITEM 13 OF THIS CONTRACT WAS FOR THE PROCUREMENT OF "ELECTRON TUBE KLYSTRON TYPE: 6310 IN A/W: MIL E-1/605B.' THE CONTRACT PROVIDED THAT IT WOULD BE FOR THE TERM OF ONE YEAR. YOUR UNIT PRICE FOR ITEM 13 WAS $62.75. CLAUSE 27 OF THE TERMS AND CONDITIONS OF YOUR DESC CONTRACT ENTITLED "ESTIMATED REQUIREMENTS" PROVIDED AS FOLLOWS:

"A. THE QUANTITIES OF SUPPLIES AND SERVICES WHICH THE GOVERNMENT ESTIMATES THAT THE GOVERNMENT ACTIVITY NAMED IN THE SCHEDULE WILL REQUIRE DURING THE PERIOD COVERED BY THIS CONTRACT ARE SET FORTH IN THE SCHEDULE. THESE QUANTITIES ARE ESTIMATED ONLY AND ARE NOT PURCHASED HEREBY.

"B. THE GOVERNMENT AGREES TO CALL ON THE CONTRACTOR FOR ALL THE REQUIREMENTS FOR SUCH SUPPLIES AND SERVICES OF THE GOVERNMENT ACTIVITY NAMED IN THE SCHEDULE. THE CONTRACTOR AGREES TO FURNISH SUCH SUPPLIES AND SERVICES WHEN CALLED FOR BY THE GOVERNMENT.

"C. IN THE EVENT THAT THE REQUIREMENTS OF THE GOVERNMENT ACTIVITY NAMED IN THE SCHEDULE FOR THE SUPPLIES AND SERVICES DESCRIBED HEREIN DO NOT MATERIALIZE IN THE QUANTITIES SPECIFIED AS EITHER "ESTIMATED" OR "MAXIMUM" IN THE SCHEDULE, SUCH FAILURE SHALL NOT CONSTITUTE GROUNDS FOR EQUITABLE ADJUSTMENT UNDER THIS CONTRACT EXCEPT AS MAY BE SPECIFICALLY PROVIDED IN THE SCHEDULE.'

NOTE 7 ON PAGE 2 OF YOUR CONTRACT SCHEDULE PROVIDED AS FOLLOWS:

" THE GOVERNMENT ACTIVITY REFERENCED IN PARAGRAPH 27A OF THE TERMS AND CONDITIONS IS THE DEFENSE ELECTRONICS SUPPLY CENTER, DAYTON, OHIO.'

ON AUGUST 14, 1963, THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, WARNER ROBINS AIR FORCE BASE, GEORGIA, ISSUED INVITATION FOR BIDS NO. 09-603-64- 531. ITEM 1 OF THIS INVITATION WAS FOR THE PROCUREMENT OF 911 "5960 636 2247 AU ELECTRON TUBE KLYSTRON, TYPE 6310, MIL-E 1/605.' BIDS WERE OPENED ON SEPTEMBER 23, 1963. THE FOLLOWING BIDS WERE RECEIVED PURSUANT TO THIS OLICITATION:

CHART

"BIDDER UNIT PRICE TOTAL PRICE

VARIAN ASSOCIATES, $57.95 $52,792.45

(BOMAC DIVISION)

METCOM, INC. 62.75 57,165.25

RAYTHEON, INC. 61.49 56,017.39

WESTINGHOUSE ELECTRIC CORP. 59.73 54,414.03"

ON SEPTEMBER 18, 1963, YOU PROTESTED THE ABOVE SOLICITATION TO THE CONTRACTING OFFICER ALLEGING THAT ALL REQUIREMENTS FOR THE KLYSTRON TUBES MUST BE PROCURED UNDER YOUR DESC CONTRACT, AND ON FEBRUARY 6, 1964, YOU PROTESTED THE AIR FORCE SOLICITATION TO OUR OFFICE. WE ARE ADVISED THAT BETWEEN SEPTEMBER 1963, AND APRIL 1964, THE REQUIREMENT FOR THIS ITEM HAD BECOME URGENT, AND ON APRIL 3, 1964, HEADQUARTERS, DEPARTMENT OF THE AIR FORCE, DETERMINED THAT AWARD OF THIS ITEM SHOULD BE MADE TO THE LOW BIDDER ON AN URGENCY BASIS UNDER THE AIR FORCE INVITATION. AIR FORCE HAS ALSO INFORMALLY ADVISED THAT THERE WAS NO DESC REQUIREMENTS CONTRACT FOR THIS ITEM AT THE TIME OF AWARD UNDER THE AIR FORCE INVITATION.

HEADQUARTERS, DEPARTMENT OF THE AIR FORCE, ADVISES THAT IT WAS UNDER NO OBLIGATION TO PURCHASE THESE ITEMS UNDER THE DESC CONTRACT WHICH HAS NOW EXPIRED, THAT AIR FORCE HAS PROCUREMENT RESPONSIBILITY FOR THIS PARTICULAR ITEM, AND IN THIS REGARD THAT WRAMA IS THE AIR FORCE ITEM MANAGER FOR THIS ITEM WITH CORRESPONDING PROCUREMENT RESPONSIBILITY. HOWEVER, AIR FORCE HAS ADVISED THAT ACTION HAS BEEN TAKEN TO REVIEW THE SITUATION TO DETERMINE WHETHER MANAGEMENT OF THIS ITEM CAN BE TRANSFERRED TO DESC FOR FUTURE AIR FORCE REQUIREMENTS. THE RECORD INDICATES THAT ON SEPTEMBER 20, 1963, DESC, OHIO, VERBALLY ADVISED WRAMA, THAT THE DESC CONTRACT WAS FOR DESC REQUIREMENTS ONLY, AND THAT WRAMA WAS NOT OBLIGATED TO SATISFY ITS REQUIREMENTS UNDER THE DESC CONTRACT. THERE IS NO INDICATION THAT AIR FORCE ISSUED ANY REQUISITION TO DESC AT DAYTON, OHIO, FOR THE PROCUREMENT OF THIS ITEM DURING THE TERM OF YOUR CONTRACT.

IN REGARD TO YOUR CONTENTION THAT AIR FORCE WAS OBLIGATED TO FULFILL ITS REQUIREMENTS FOR THE KLYSTRON TUBES UNDER THE DESC CONTRACT WE HAVE THE FOLLOWING COMMENTS. THERE IS AT THIS TIME NO SOUND BASIS TO QUESTION AIR FORCE'S POSITION THAT IT RETAINED PROCUREMENT RESPONSIBILITY FOR THIS ITEM. CLAUSE 27 AND NOTE 7 OF YOUR DESC CONTRACT, QUOTED ABOVE, CLEARLY PROVIDE THAT THIS CONTRACT IS TO BE FOR DESC, DAYTON, OHIO, REQUIREMENTS ONLY. IN THESE CIRCUMSTANCES, WE FIND NO BASIS TO QUESTION THE PROPRIETY OF AIR FORCE'S ACTION IN ISSUING THIS INVITATION FOR BIDS.

IN VIEW OF THE RECORD BEFORE OUR OFFICE YOUR PROTEST IS DENIED. IT WOULD APPEAR THAT ANY FURTHER CONTENTIONS YOU MAY HAVE WHICH ARE NOT CONNECTED WITH THE LEGALITY OF THE AIR FORCE PROCUREMENT WOULD BEST BE DIRECTED TO THE RESPECTIVE AGENCIES CONCERNED.