B-154847, AUG. 20, 1964

B-154847, AUG. 20, 1964

TO AMPEREX ELECTRONIC CORPORATION:

YOUR LETTER DATED JUNE 22, 1964, ADDRESSED TO THE NEW YORK PROCUREMENT DISTRICT, 770 BROADWAY, NEW YORK 3, NEW YORK, HAS BEEN FORWARDED BY THE ARMY TO OUR OFFICE AS YOU REQUESTED. YOU PROTEST THE AWARD BY THE NEW YORK PROCUREMENT DISTRICT, UNITED STATES ARMY, OF NEGOTIATED CONTRACT NO. DA-30-069-AMC-524/Z), EFFECTIVE DATE MAY 12, 1964, TO THE WESTERN ELECTRIC COMPANY, INCORPORATED, 222 BROADWAY, NEW YORK 3, NEW YORK. THIS CONTRACT WAS FOR THE PROCUREMENT OF 6,500 ELECTRON TUBES FOR USE AS REPLACEMENT SPARES IN THE NIKE-HERCULES MISSILE SYSTEM. THE TUBES WERE TO BE IN ACCORDANCE WITH DRAWING NO. 8030972 WITH THE DESIGNATION JW-5847 MENTIONED FOR REFERENCE ONLY. THE PROCUREMENT WAS MADE PURSUANT TO "SECRETARY ITEM ORDER" ISSUED BY THE UNITED STATES ARMY MISSILE COMMAND ON MARCH 12, 1964. THIS TUBE WAS LISTED AS FEDERAL STOCK NUMBER 5960-897-8354.

YOUR LETTER DATED JUNE 22, 1964, STATES THAT ON APRIL 14, 1964, PRIOR TO THE AWARD OF THE CONTRACT TO WESTERN ELECTRIC COMPANY, THE ARMY ISSUED INVITATION FOR BIDS NO. AMC/Z/-01-021-64-1273, FOR THE PROCUREMENT OF 2,700 ELECTRON TUBES, THE SAME TYPE ITEM WHICH WAS THE SUBJECT OF THE AWARD TO WESTERN ELECTRIC COMPANY. ARMY HAS ADVISED THAT THE ABOVE INVITATION MENTIONS DRAWING NO. 8030972, AND STATES "SEE EXHIBIT A FOR LIST OF ALL REQUIRED DRAWINGS AND SPECIFICATIONS.' EXHIBIT A OF THIS INVITATION LISTED AN ADDITIONAL SPECIFICATION MIL-E 1 REV. D AM 5, BUT DID NOT ADD ANY DRAWINGS. ON JUNE 4, 1964, YOU DIRECTED A LETTER TO THE NEW YORK PROCUREMENT DISTRICT, STATING THAT THE INVITATION FOR THE PROCUREMENT OF THE ELECTRON TUBES DID NOT LIST ELECTRICAL CHARACTERISTICS AND, YOUR LETTER DATED JUNE 22, 1964, STATES THAT ORDNANCE DRAWING NO. 8030972 IS NOT SUFFICIENTLY DEFINITE TO DESCRIBE THE ITEM REQUIRED. ON JUNE 8, 1964, THE CHIEF, ELECTRONICS BRANCH, SYSTEMS ENGINEERING DIVISION, HERCULES PROJECT OFFICE, MADE THE FOLLOWING DETERMINATION:

"THE DOCUMENTATION FOR THIS ITEM IS NOT ADEQUATE FOR OTHER THAN SOLE SOURCE PROCUREMENT, INASMUCH AS CERTAIN REQUIRED DETAIL PERFORMANCE PARAMETERS ARE NOT STATED. THESE PARAMETERS ARE HIGHLY CRITICAL AND IF NOT ATTAINED IN THE PRODUCT SUPPLIED, THE IF AMPLIFIERS OF THE NIKE HERCULES SYSTEM WILL NOT MEET REQUIRED PERFORMANCE SPECIFICATIONS.

"IN VIEW OF THIS DEFICIENCY IN ENGINEERING DOCUMENTATION, IT IS REQUESTED THAT IFB 1273 BE WITHDRAWN AND THIS ITEM BE PROCURED SOLE SOURCE FROM WESTERN ELECTRIC COMPANY.

"AN ENGINEERING EVALUATION OF THE PERFORMANCE REQUIREMENTS FOR THE SUBJECT ITEM IS IN PROCESS IN THE MISSILE COMMAND LABORATORIES AND REVISED DOCUMENTATION WILL BE PREPARED UPON COMPLETION. APPROXIMATELY FOUR (4) TO SIX (6) MONTHS WILL BE REQUIRED TO COMPLETE REVISED DOCUMENTATION.' ARMY HAS ADVISED THAT THE ISSUANCE OF THIS INVITATION WAS UNFORTUNATE AND IMPROPER AND ON JUNE 12, 1964, THIS INVITATION WAS CANCELLED BY THE UNITED STATES ARMY ELECTRONICS MATERIAL AGENCY PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION SEC. 2-404.1/B) (I), WHICH PROVIDES FOR THE CANCELLATION OF AN INVITATION AFTER BID OPENING IF AMBIGUOUS OR INADEQUATE SPECIFICATIONS WERE CITED IN THE INVITATION. IN VIEW OF THE RECORD PRESENTED TO OUR OFFICE WE FIND NO BASIS TO QUESTION THE CANCELLATION OF THIS INVITATION.

ARMY'S DETERMINATION TO NEGOTIATE THE PROCUREMENT OF THE ELECTRON TUBES, DESCRIBED ABOVE, WAS PURSUANT TO 10 U.S.C. 2304 (A) (14), AND ARMED SERVICES PROCUREMENT REGULATION SEC. 3-214 ON THE BASIS THAT THE EQUIPMENT CONSTITUTED TECHNICAL OR SPECIALIZED SUPPLIES REQUIRING SUBSTANTIAL INITIAL INVESTMENT OR EXTENDED PERIOD FOR PREPARATION FOR MANUFACTURE, AND FOR WHICH FORMAL ADVERTISING AND COMPETITIVE BIDDING MIGHT REQUIRE DUPLICATION OF INVESTMENT OR PREPARATION ALREADY MADE, OR WOULD UNDULY DELAY THE PROCUREMENT. WE ARE ADVISED THAT PURSUANT TO REQUIREMENTS OF THIS STATUTE AND REGULATION A CLASSIFIED FINDING AND DETERMINATION WAS MADE BY THE ASSISTANT SECRETARY OF THE ARMY (INSTALLATION AND LOGISTICS) THAT THE PROCUREMENT OF THE ELECTRON TUBES SHOULD BE BY NEGOTIATION RATHER THAN BY COMPETITIVE PROCUREMENT. UNDER THE PROVISIONS OF 10 U.S.C. 2310, THE FINDINGS AND DETERMINATIONS ISSUED BY AN ASSISTANT SECRETARY TO AUTHORIZE THE NEGOTIATION OF A CONTRACT UNDER 10 U.S.C. 2304/A) (14) ARE FINAL. IN THIS CONNECTION WE HAVE HELD THAT OUR OFFICE HAS NO AUTHORITY TO SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING AGENCY OR TO REFUSE TO RECOGNIZE THE VALIDITY OF A CONTRACT NEGOTIATED PURSUANT TO SUCH DETERMINATION. SEE B-145674, SEPTEMBER 14, 1961.

WE HAVE CONSIDERED YOUR ALLEGATION THAT IT WAS IMPOSSIBLE TO DETERMINE WHETHER THE ITEM WHICH WESTERN ELECTRIC COMPANY PROPOSED TO FURNISH CONFORMED TO THE REQUIREMENTS OF THE REQUEST FOR PROPOSALS SINCE THE DATA ON DRAWING NO. 8030972 WAS INADEQUATE. THIS DRAWING PROVIDES AS FOLLOWS:

"1. ONLY THE ITEM LISTED ON THIS DRAWING, AND IDENTIFIED BY VENDORS NAME ADDRESS AND PART NUMBER HAS BEEN TESTED AND APPROVED BY ARGMA FOR USE IN THE I.F. AMPLIFIER STRIPS OF THE NIKE RADAR SYSTEMS.

A SUBSTITUTE ITEM SHALL NOT BE USED WITHOUT PRIOR TESTING AND APPROVAL BY ARGMA. VENDOR: WESTERN ELECTRIC CO. NEW YORK N.Y. PART NO. 5847

"2. THIS TUBE SHALL MEET THE REQUIREMENTS OF MIL-E-1/467 AND IN ADDITION BE FUNCTIONALLY EQUIVALENT TO THE MANUFACTURER'S ITEM INDICATED.'

THE DRAWING SPECIFICALLY IDENTIFIES THE PART WHICH WESTERN ELECTRIC COMPANY WAS TO FURNISH AS P/N 5847 AND IS INDICATED BY THE DRAWING THIS PARTICULAR PART HAS BEEN TESTED AND APPROVED BY THE ARMY ROCKET AND GUIDED MISSILE AGENCY. IT IS ALSO CLEAR THAT WESTERN ELECTRIC COMPANY IS A PRIOR SUPPLIER OF THIS ITEM AND THAT THE ITEMS IN THIS PROCUREMENT ARE TO BE USED AS REPLACEMENT PARTS. THERE IS NO QUESTION THAT SUFFICIENT JUSTIFICATION FOR THE PROCUREMENT OF THIS PART FROM WESTERN ELECTRIC COMPANY HAS BEEN ESTABLISHED.

YOU HAVE ALSO ALLEGED THAT THE DEFENSE ELECTRONICS SUPPLY AGENCY HAD THE RESPONSIBILITY FOR THE PROCUREMENT OF THIS ITEM. THE ARMY HAS ADVISED THAT WHILE CONTRACT ADMINISTRATION HAS RECENTLY BEEN TRANSFERRED TO THE DEFENSE SUPPLY AGENCY, THE LEGALITY OF THE AWARD TO WESTERN ELECTRIC COMPANY BY THE NEW YORK PROCUREMENT DISTRICT HAS NOT BEEN AFFECTED. VIEW OF THE RECORD BEFORE OUR OFFICE WE FIND NO BASIS TO QUESTION THIS DETERMINATION BY THE ARMY.

YOU HAVE RAISED THE QUESTION WHETHER THERE IS PRESENTLY AUTHORITY TO APPROVE NEW SOURCES FOR THE ELECTRON TUBE UNDER ORDNANCE DRAWING NO. 8030972, SINCE THE ARMY ROCKET AND GUIDED MISSILE AGENCY, THE PRIOR APPROVAL AUTHORITY, NO LONGER EXISTS. ARMY HAS STATED THAT PURSUANT TO THE REORGANIZATION OF THE UNITED STATES ARMY MISSILE COMMAND, THE RESPONSIBILITIES AND AUTHORITIES OF SUBORDINATE ELEMENTS OF THE COMMAND SUCH AS ARGMA, CONTINUED WITH THE PARENT UNITED STATES ARMY MISSILE COMMAND AFTER THE REORGANIZATION. CONSEQUENTLY, APPROVAL AUTHORITY FOR NEW SOURCES UNDER ORDINANCE DRAWING NO. 8030972, APPARENTLY LIES WITH THE UNITED STATES ARMY MISSILE COMMAND.

IN THESE CIRCUMSTANCES WE FIND NO BASIS TO QUESTION THE AWARD TO WESTERN ELECTRIC COMPANY AND YOUR PROTEST IS THEREFORE DENIED.