B-154172, JUL. 14, 1964

B-154172: Jul 14, 1964

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YOUR PROTEST IS DIRECTED TO THE FACT THAT THE INVITATION WAS ISSUED ON A TOTAL SMALL-BUSINESS SET-ASIDE WHICH WAS WITHDRAWN BY AMENDMENT NO. 1 DATED MARCH 31. WAS RESTRICTIVE OF COMPETITION SINCE IT WAS UNREASONABLY LOW. AT THE TIME THE INVITATION WAS ISSUED ON A RESTRICTED SMALL-BUSINESS BASIS IT WAS NOT KNOWN THAT THE PROCUREMENT WAS A PLANNED EMERGENCY PRODUCER PRODUCT. THERE WAS FOR APPLICATION THE FOLLOWING PROVISIONS OF ASPR 1-302.5. A "PLANNED EMERGENCY PRODUCER" IS A CONCERN WITH WHICH ONE OR MORE GOVERNMENT PROCURING ACTIVITIES HAVE NEGOTIATED AN EMERGENCY PRODUCTION ASSIGNMENT AND WHICH HOLDS A VALID PLANNED EMERGENCY PRODUCTION SCHEDULE SIGNED BY THE RESPONSIBLE ARMED SERVICES PROCUREMENT PLANNING OFFICER (ASPPO).

B-154172, JUL. 14, 1964

TO REIMERS MISSILE COMPONENTS, INC.:

BY LETTER DATED MAY 14, 1964, WITH ENCLOSURE, YOU PROTESTED AGAINST CONSIDERATION OF THE LOW BID SUBMITTED UNDER INVITATION FOR BIDS NO. 600- 776-64, ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C., ON MARCH 20, 1964, FOR A QUANTITY OF ROCKET MOTOR INERT PARTS.

YOUR PROTEST IS DIRECTED TO THE FACT THAT THE INVITATION WAS ISSUED ON A TOTAL SMALL-BUSINESS SET-ASIDE WHICH WAS WITHDRAWN BY AMENDMENT NO. 1 DATED MARCH 31, 1964, AND THAT THE LOW BID, SUBMITTED BY A BIG BUSINESS FIRM, WAS RESTRICTIVE OF COMPETITION SINCE IT WAS UNREASONABLY LOW.

AT THE TIME THE INVITATION WAS ISSUED ON A RESTRICTED SMALL-BUSINESS BASIS IT WAS NOT KNOWN THAT THE PROCUREMENT WAS A PLANNED EMERGENCY PRODUCER PRODUCT. HOWEVER, THERE WAS FOR APPLICATION THE FOLLOWING PROVISIONS OF ASPR 1-302.5.

"PLANNED EMERGENCY PRODUCER. A "PLANNED EMERGENCY PRODUCER" IS A CONCERN WITH WHICH ONE OR MORE GOVERNMENT PROCURING ACTIVITIES HAVE NEGOTIATED AN EMERGENCY PRODUCTION ASSIGNMENT AND WHICH HOLDS A VALID PLANNED EMERGENCY PRODUCTION SCHEDULE SIGNED BY THE RESPONSIBLE ARMED SERVICES PROCUREMENT PLANNING OFFICER (ASPPO). IN PROCUREMENTS OF ITEMS FOR WHICH THERE ARE PLANNED EMERGENCY PRODUCERS, SUCH PRODUCERS SHALL BE SOLICITED.'

IN VIEW OF THE FOREGOING, AMENDMENT NO. 1 WAS IMMEDIATELY ISSUED TO DELETE THE SMALL-BUSINESS SET-ASIDE SO AS TO AFFORD AN OPPORTUNITY FOR PLANNED EMERGENCY PRODUCERS TO PARTICIPATE IN THE PROCUREMENT. WE NOTE THAT THIS AMENDMENT WAS SIGNED BY YOU AND RETURNED WITH YOUR BID. WHEN BIDS WERE OPENED ON MAY 7, 1964, IT WAS APPARENT THAT THE AMERICAN MACHINE AND FOUNDRY COMPANY (AMF), A LARGE BUSINESS CONCERN AND A PLANNED EMERGENCY PRODUCER, WAS THE LOWEST BIDDER ON LOT I IN THE TOTAL AMOUNT OF $240,801.44 AND ALSO THE LOWEST BIDDER ON LOT II IN THE TOTAL AMOUNT OF $1,077,461.84.

UPON REVIEW, WE FIND NO LEGAL BASIS TO QUESTION THE PROCUREMENT OFFICE'S DETERMINATION TO CONSIDER THE LOW BID OF AMF FOR AWARD.

WE HAVE ASCERTAINED THAT THE BROADENING OF THE COMPETITIVE BASE TO INCLUDE LARGE BUSINESS CONCERNS RESULTED IN THE RECEIPT OF BIDS WHICH WERE LOWER THAN IF THE PROCUREMENT HAD BEEN RESTRICTED TO SMALL BUSINESS. THE RECORD IS CLEAR THAT HAD THE PROCUREMENT OFFICE BEEN AWARE, PRIOR TO ISSUANCE OF THE INVITATION, THAT A PLANNED EMERGENCY PRODUCER (AMF) WAS A MANUFACTURER OF THE END ITEM, A SMALL-BUSINESS RESTRICTED INVITATION WOULD NOT HAVE BEEN ISSUED. IN FACT, UNDER SUCH CIRCUMSTANCES, A RESTRICTED INVITATION WOULD HAVE BEEN CONTRARY TO THE MANDATORY ASPR PROVISION QUOTED ABOVE.

SINCE THE INSTANT PROCUREMENT WAS NOT SUSCEPTIBLE TO SMALL-BUSINESS RESTRICTED ADVERTISING, WE ARE OF THE VIEW THAT THE AMENDMENT OF THE INVITATION NOT ONLY WAS PROPER BUT REQUIRED BY THE REGULATIONS. WE, THEREFORE, HAVE NO ALTERNATIVE BUT TO DENY YOUR PROTEST.