B-155551, AUG. 16, 1965

B-155551: Aug 16, 1965

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TO RACON CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 5. AS A RESULT OF YOUR CORRESPONDENCE OUR ATLANTA REGIONAL OFFICE WAS ASKED TO CONDUCT A FULL INVESTIGATION OF THE MATTER. THE FOLLOWING CONTAINS A SUMMARY OF THAT INVESTIGATION: THE LOUDSPEAKERS WERE PROCURED BY THE AIR FORCE EASTERN TEST RANGE (AFETR). VARIOUS AREAS OF THE COMPLEX ARE CONSIDERED HAZARDOUS AND CONSEQUENTLY. ALL EQUIPMENTS IN THESE AREAS ARE REQUIRED TO BE ADEQUATELY SEALED AND SHIELDED. THE REQUEST STATED THAT THE ATLAS UNITS WERE THE ONLY ITEM OF ITS TYPE KNOWN TO MEET THE RANGE SAFETY REQUIREMENTS AND EXACT ENGINEERING AND INSTALLATION CRITERIA ESTABLISHED FOR THE TITAN III PROGRAM. IT WAS FURTHER STATED THAT THE UNITS WERE NEEDED AS SOON AS POSSIBLE IN ORDER TO PREVENT FUTURE STOPPAGE OF THE WORK.

B-155551, AUG. 16, 1965

TO RACON CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 5, 1964, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AWARD OF A CONTRACT FOR 200 (GROUP B) EXPLOSION-PROOF LOUDSPEAKER DRIVER UNITS UNDER INVITATION FOR BIDS NO. 08-606-65-85. AS A RESULT OF YOUR CORRESPONDENCE OUR ATLANTA REGIONAL OFFICE WAS ASKED TO CONDUCT A FULL INVESTIGATION OF THE MATTER. THE FOLLOWING CONTAINS A SUMMARY OF THAT INVESTIGATION:

THE LOUDSPEAKERS WERE PROCURED BY THE AIR FORCE EASTERN TEST RANGE (AFETR), PATRICK AIR FORCE BASE, FLORIDA, AS PART OF A PUBLIC ADDRESS SYSTEM FOR USE IN THE TITAN III MISSILE COMPLEX. BECAUSE OF THE PRESENCE OF HIGHLY EXPLOSIVE FUELS, VARIOUS AREAS OF THE COMPLEX ARE CONSIDERED HAZARDOUS AND CONSEQUENTLY, ALL EQUIPMENTS IN THESE AREAS ARE REQUIRED TO BE ADEQUATELY SEALED AND SHIELDED.

ON OR ABOUT SEPTEMBER 21, 1964, ATLAS SOUND (DIVISION OF AMERICAN TRADING AND PRODUCTION CORPORATION) OFFERED ITS ATLAS HLE-3T LOUDSPEAKER DRIVER UNIT FOR EVALUATION. BY LETTER DATED SEPTEMBER 25, 1964, THE PROJECT ENGINEER REPORTED THE ATLAS UNIT AS SUPERIOR AND LESS COSTLY THAN THOSE UNITS PREVIOUSLY PROCURED AND RECOMMENDED CONSIDERATION OF THESE UNITS FOR USE IN HAZARDOUS AREAS. BASED UPON THIS RECOMMENDATION THE ENGINEERING AND INSTALLATION DIVISION ON OCTOBER 6, 1964, REQUESTED THAT THE BASE SUPPLY DIVISION INITIATE A REQUEST FOR THE PURCHASE OF 200 ATLAS DRIVER UNITS. THE REQUEST STATED THAT THE ATLAS UNITS WERE THE ONLY ITEM OF ITS TYPE KNOWN TO MEET THE RANGE SAFETY REQUIREMENTS AND EXACT ENGINEERING AND INSTALLATION CRITERIA ESTABLISHED FOR THE TITAN III PROGRAM. IT WAS FURTHER STATED THAT THE UNITS WERE NEEDED AS SOON AS POSSIBLE IN ORDER TO PREVENT FUTURE STOPPAGE OF THE WORK, AND THAT LACK OF COMPLETE INFORMATION ON ZONING FOR HAZARDOUS AREAS AND COMPLETE ENGINEERING CRITERIA PRECLUDED EARLIER SUBMISSION OF THE REQUEST. FOLLOWING RECEIPT OF THIS INFORMATION, THE BASE SUPPLY DIVISION FORWARDED THE REQUEST FOR 200 ATLAS UNITS TO THE BASE PROCUREMENT DIVISION. BECAUSE THE CONTRACTING OFFICER FELT THAT THE SOLE SOURCE JUSTIFICATION WAS INADEQUATE, THE PHRASE "OR EQUAL" WAS ADDED TO THE PURCHASE REQUEST. THE CHANGE FROM PRIOR IFB REQUIREMENTS OF "RACON MODEL DX-IBT OR EQUAL" TO "ATLAS MODEL HLE-3T OR EQUAL" WAS BASED ON THE PROJECT ENGINEER'S LETTER.

THE FILE REVEALS THAT THE SUBJECT INVITATION WAS ISSUED ON OCTOBER 19, 1964, AND THAT 30 POTENTIAL SOURCES OF SUPPLY WERE SOLICITED. SINCE THE INVITATION FOR BIDS WAS SCHEDULED FOR OPENING ON OCTOBER 26, 1964, THE IFB WAS NOT SYNOPSIZED. IN THIS CONNECTION WE INVITE YOUR ATTENTION TO ARMED SERVICES PROCUREMENTS REGULATION 1-1003.1 (C) (IV) WHEREIN IT PROVIDES THAT BIDS SPECIFYING LESS THAN A 15-DAY OPENING TIME ARE EXEMPT FROM SYNOPSIZING REQUIREMENTS. WHILE IT IS TRUE THAT ALL PREVIOUS PURCHASES OF EXPLOSION PROOF DRIVERS WERE PROCURED FROM YOUR SUPPLIER--- THUROW ELECTRONICS--- PERSONNEL PREPARING THE BIDDERS' LIST APPARENTLY CONCLUDED THAT THE SUBJECT PROCUREMENT WAS THE FIRST FOR THIS PARTICULAR ITEM. CONSEQUENTLY, THUROW WAS NOT INCLUDED ON THE BIDDERS' LIST. YOUR FIRM WAS NOT SOLICITED BECAUSE OF THE ABSENCE OF A BID CARD. IN PREPARING FORM 129, JUNE 6, 1963, YOUR FIRM APPARENTLY FAILED TO CIRCLE THE APPROPRIATE CLASS CODE AND WHILE THERE WAS AN ATTACHED SHEET, WHOEVER COMPILED THE SOURCE CARDS FAILED TO TAKE COGNIZANCE OF THE ATTACHMENT AND THEREBY INADVERTENTLY OMITTED A CARD FOR YOUR FIRM IN THIS PARTICULAR CATEGORY. ALTHOUGH IT IS REGRETTABLE THAT BOTH YOUR COMPANY AS WELL AS YOUR SUPPLIER DID NOT RECEIVE A COPY OF THE INVITATION, WE HAVE FOUND NO EVIDENCE INDICATING A DELIBERATE EFFORT TO ELIMINATE ANY PROSPECTIVE BIDDER. THE ABSENCE OF SUCH EVIDENCE, OUR OFFICE HAS CONSISTENTLY HELD THAT THE FAILURE TO FURNISH A PROSPECTIVE BIDDER WITH A COPY OF AN INVITATION DOES NOT CONSTITUTE A SUFFICIENT BASIS TO QUESTION AN OTHERWISE PROPER AWARD. SEE B-155319, NOVEMBER 20, 1954, AND CASES CITED THEREIN. WE SHOULD LIKE TO NOTE HOWEVER, THAT SINCE OUR AUDITORS HAVE DISCOVERED A PROCEDURAL DEFICIENCY IN THAT THERE IS NO ESTABLISHED PROCEDURE AT AFETR TO INSURE THAT PREVIOUS SUPPLIERS ARE SOLICITED AS REQUIRED BY ASPR 2-205.4, WE ARE BRINGING THIS DEFICIENCY TO THE ATTENTION OF THE SECRETARY OF THE AIR FORCE.

ALTHOUGH NO EVIDENCE HAS BEEN UNCOVERED BY OUR OFFICE WHICH WOULD SUPPORT THE ALLEGATIONS CONTAINED IN YOUR LETTER OF NOVEMBER 5, 1964, WE UNDERSTAND THIS MATTER IS STILL UNDER INVESTIGATION BY THE DEPARTMENT OF THE AIR FORCE. WE UNDERSTAND ALSO THAT IF THAT DEPARTMENT FINDS EVIDENCE SUPPORTING THE SUGGESTED IRREGULARITY APPROPRIATE ACTION WILL BE TAKEN AT THAT TIME. IN ANY EVENT, SINCE THE AWARD HAS BEEN MADE AND THE ITEMS DELIVERED AND PAID FOR, OUR OFFICE WOULD NOT BE ABLE TO GRANT THE RELIEF REQUESTED.