B-159065, JUL. 22, 1966

B-159065: Jul 22, 1966

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TO PARKER AIRCRAFT COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 26. THE SUBJECT RFP WAS ISSUED OCTOBER 13. WERE SOLICITED AND THE REQUIREMENT WAS ALSO SYNOPSIZED IN THE COMMERCE BUSINESS DAILY WITH ESSENTIALLY THE SAME DESCRIPTION AS ABOVE. WITH THE ADDITIONAL STATEMENT THAT DRAWINGS WERE NOT AVAILABLE. FOUR PROPOSALS WERE RECEIVED WITH WESTON BEING THE LOWEST AT $137.85 PER UNIT. A PRE-AWARD SURVEY OF WESTON WAS CONDUCTED AND ON NOVEMBER 18. AN AFFIRMATIVE REPORT WAS MADE WITH THE RECOMMENDATION THAT WESTON RECEIVE AWARD OF THE CONTRACT. THE CONTRACTING OFFICER SIGNED A DETERMINATION THAT WESTON WAS A RESPONSIBLE PROSPECTIVE CONTRACTOR WITHIN THE MEANING OF ASPR 1-902. DA-05-001 AMC-132 (M) WAS EXECUTED BY WESTON ON DECEMBER 7.

B-159065, JUL. 22, 1966

TO PARKER AIRCRAFT COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 26, 1966, WITH ENCLOSURES, PROTESTING AGAINST AWARD OF A CONTRACT TO WESTON HYDRAULICS, LTD., BY THE U.S. ARMY, PUEBLO ARMY DEPOT, PUEBLO, COLORADO UNDER REQUEST FOR PROPOSALS (RFP) NO. AMC-/M/-05-001-66-5.

THE SUBJECT RFP WAS ISSUED OCTOBER 13, 1965, PURSUANT TO A REQUEST FROM THE ARMY TANK AUTOMOTIVE CENTER (ATAC), AND, AS AMENDED, CALLED FOR 348 VALVES DESCRIBED AS:

"* * * 2520-736-0242 VALVE, SOLENOID, ELEVATING AND TRAVERSING. ORD NO. 10900446 PARKER AIRCRAFT NO. H60F0249.'

THE RFP ALSO REQUESTED ADVICE FROM THE OFFERORS AS TO WHETHER THEY UNDERSTOOD AND COULD COMPLY WITH THE "ENGINEERING REQUIREMENTS AND DATA OF ABOVE ORDNANCE NO.' FOUR FIRMS, INCLUDING YOURS, WERE SOLICITED AND THE REQUIREMENT WAS ALSO SYNOPSIZED IN THE COMMERCE BUSINESS DAILY WITH ESSENTIALLY THE SAME DESCRIPTION AS ABOVE, BUT WITH THE ADDITIONAL STATEMENT THAT DRAWINGS WERE NOT AVAILABLE. FOUR PROPOSALS WERE RECEIVED WITH WESTON BEING THE LOWEST AT $137.85 PER UNIT. ITS PROPOSAL INCLUDED ADVICE THAT ITS PART NUMBER 27810 MET THE REQUIREMENTS OF ORDNANCE PART NUMBER 1090046.

PURSUANT TO THE REQUEST OF THE PUEBLO ARMY DEPOT, A PRE-AWARD SURVEY OF WESTON WAS CONDUCTED AND ON NOVEMBER 18, 1965, AN AFFIRMATIVE REPORT WAS MADE WITH THE RECOMMENDATION THAT WESTON RECEIVE AWARD OF THE CONTRACT. UNDER DATE OF NOVEMBER 22, 1965, AS REQUIRED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-904.1, THE CONTRACTING OFFICER SIGNED A DETERMINATION THAT WESTON WAS A RESPONSIBLE PROSPECTIVE CONTRACTOR WITHIN THE MEANING OF ASPR 1-902. CONTRACT NO. DA-05-001 AMC-132 (M) WAS EXECUTED BY WESTON ON DECEMBER 7, 1965, AND ON THE GOVERNMENT'S BEHALF ON DECEMBER 10, 1965, CITING AS AUTHORITY 10 U.S.C. 2304 (A) (10).

YOU HAVE PROTESTED THIS AWARD ON THE GROUNDS THAT IT WILL RESULT IN THE USE OF AN UNQUALIFIED VALVE IN A CRITICAL APPLICATION SINCE NO FIRM OTHER THAN PARKER IS AN APPROVED SOURCE AS INDICATED BY THE REFERENCED ORDNANCE DRAWING IN THE RFP. YOU ALSO QUESTION WHETHER WESTON IS PRODUCING SOLENOID VALVES IN ACCORDANCE WITH REVISION A, ORDNANCE NO. 10900446, AND WHETHER ATAC HAS APPROVED SAID VALVES.

AS INDICATED HERETOFORE, THIS PROCUREMENT WAS NEGOTIATED PURSUANT TO THE AUTHORITY OF 10 U.S.C. 2304 (A) (10) WHICH, AS IMPLEMENTED BY ASPR 3-210, PROVIDES THAT PURCHASES AND CONTRACTS MAY BE NEGOTIATED IF "FOR PROPERTY OR SERVICES FOR WHICH IT IS IMPRACTICABLE TO OBTAIN COMPETITION.' ILLUSTRATIVE OF CIRCUMSTANCES PERMITTING NEGOTIATION PURSUANT TO THIS AUTHORITY, ASPR 3-210.2 (I) AND (XIII) CITE AS EXAMPLES THE SITUATIONS, RESPECTIVELY, WHERE THE SUPPLIES CAN BE OBTAINED FROM ONLY ONE SOURCE, AND WHERE IT IS IMPOSSIBLE TO DRAFT ADEQUATE SPECIFICATIONS FOR SOLICITATION OF BIDS. AS REQUIRED BY ASPR 3-210.3, THE PURCHASE REQUEST INITIATING THIS PROCUREMENT INCLUDED A DETERMINATION AND FINDINGS BY AN OFFICER RESPONSIBLE FOR PROCUREMENT JUSTIFYING NEGOTIATION AS FOLLOWS:

"SUBJECT: PROM EH-6-C0139, VALVE, SOLENOID, PART NUMBER 10900446, FSN 2520-736-0242.

"1. COMPLETE ENGINEERING SUPPORT CANNOT BE FURNISHED FOR THIS PROCUREMENT REQUEST AS THE AVAILABLE DRAWING IS INCOMPLETE FOR MANUFACTURING PURPOSES. ANALYSIS REVEALS THAT THE SUBJECT DRAWING IS DEFICIENT IN ESSENTIAL ENGINEERING DATA RELATIVE TO MATERIALS, COMPLETE DIMENSIONS, DETAIL CALL OUTS OR SUPPORT AND COMPLETE PERFORMANCE CHARACTERISTICS. THEREFORE, THE SUBJECT DRAWING AND AVAILABLE SUPPORTING DETAILS ARE INADEQUATE FOR COMPETITIVE ADVERTISED PROCUREMENT.

"2. IN VIEW OF THE ABOVE, IT IS IMPOSSIBLE TO DRAFT FOR A SOLICITATION OF BIDS, ADEQUATE SPECIFICATIONS OR ANY OTHER ADEQUATELY DETAILED DESCRIPTION OF THE REQUIRED ITEM WITHIN THE ALLOTTED TIME.

"3. SUBJECT SOLENOID VALVE IS CONSIDERED A NONCOMMERCIAL ITEM; HOWEVER, AN APPROVED INDUSTRIAL SOURCE IS THE PARKER AIRCRAFT COMPANY, THEIR PART NUMBER H60F0249.'

IN ADDITION TO THE ABOVE DETERMINATION AND FINDING, THE PURCHASE REQUEST DOCUMENTS UPON WHICH THE RFP WAS INITIATED, INCLUDED THE NAME OF YOUR FIRM AND ONE OTHER FIRM AS SUGGESTED BIDDERS, AND PRICE DATA RECORDS INDICATED THAT THE SUBJECT SOLENOID VALVES HAD PREVIOUSLY BEEN PURCHASED FROM TWO OTHER FIRMS.

IT IS OBVIOUS FROM THE FOREGOING THAT NEITHER THE USING ACTIVITY, ATAC, NOR THE PROCURING ACTIVITY, PUEBLO ARMY DEPOT, CONSIDERED IT EITHER NECESSARY OR PROPER TO LIMIT PROCUREMENT TO YOUR FIRM. ALTHOUGH YOUR FIRM WAS DESIGNATED AS "AN APPROVED SOURCE," IT WAS NOT INDICATED AS THE SOLE SOURCE FOR OBTAINING THE VALVES IN QUESTION. THE USE OF YOUR PART NUMBER WAS FOR THE PURPOSE OF IDENTIFYING AND DESCRIBING THE ITEM BEING PROCURED, AND WAS NOT INTENDED TO RESTRICT SOLICITATION TO YOUR FIRM. FOR FURTHER IDENTIFICATION AND DESCRIPTION, THE FEDERAL STOCK AND ORDNANCE NUMBERS WERE ALSO GIVEN. ALTHOUGH YOUR FIRM IS APPARENTLY INDICATED AS AN APPROVED SOURCE ON THE ORDNANCE DRAWING, THE DRAWING WAS NOT REFERENCED IN THE RFP BECAUSE IT WAS NOT CONSIDERED ADEQUATE FOR COMPETITIVE ADVERTISED PROCUREMENT. IT IS THE RESPONSIBILITY OF THE CONTRACTING OFFICER TO PROTECT THE INTEREST OF THE GOVERNMENT, AS TO PRICE AND OTHERWISE, AND TO THIS END, ASPR 1 300.1 PROVIDES THAT ALL PROCUREMENTS, WHETHER BY FORMAL ADVERTISING OR BY NEGOTIATION, SHALL BE MADE ON A COMPETITIVE BASIS TO THE MAXIMUM PRACTICABLE EXTENT. ALSO, PARAGRAPHS 3-101 AND 3-102 (C) OF ASPR PROVIDE, RESPECTIVELY, THAT (1) WHENEVER SUPPLIES ARE TO BE PROCURED BY NEGOTIATION, PRICE QUOTATIONS SHALL BE SOLICITED FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES, AND (2) WHERE A PROPOSED PROCUREMENT APPEARS TO BE NECESSARILY NONCOMPETITIVE, THE PURCHASING ACTIVITY IS RESPONSIBLE FOR ASSURING THAT COMPETITIVE PROCUREMENT IS NOT FEASIBLE.

MOREOVER, ASPR 1-1201 (A) PROVIDES THAT PURCHASE DESCRIPTIONS SHALL STATE ONLY THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT AND DESCRIBE THE ITEMS IN A MANNER WHICH WILL ENCOURAGE MAXIMUM COMPETITION AND ELIMINATE RESTRICTIVE FEATURES THAT MIGHT LIMIT ACCEPTABLE OFFERS TO ONE SUPPLIER'S PRODUCT. AS STATED ABOVE THE PURCHASE DESCRIPTION GAVE ONLY THE FEDERAL STOCK NUMBER, THE ORDNANCE NUMBER, AND YOUR PART NUMBER. NO ADDITIONAL DATA, PROPRIETARY OR OTHERWISE, WAS FURNISHED BY THE GOVERNMENT. IN A NEGOTIATED PROCUREMENT, THE FIRMS SOLICITED ARE AT LIBERTY TO OFFER, AND THE GOVERNMENT IS JUSTIFIED IN CONSIDERING OFFERS ON ALTERNATE ITEMS WHICH WILL MEET THE GOVERNMENT'S NEEDS. WESTON OFFERED A PRODUCT WHICH WAS CONSIDERED ACCEPTABLE, THE PRE-AWARD SURVEY WAS AFFIRMATIVE AS TO ITS COMPETENCY, AND THERE IS NO INDICATION THAT THE GOVERNMENT'S ACTION IN AWARDING THIS CONTRACT ON A COMPETITIVE BASIS WAS LEGALLY OBJECTIONABLE THROUGH VIOLATION OF ANY STATUTE, CONTRACT PROVISION, AGREEMENT, REGULATION OR OTHERWISE. THE AWARD THEREFORE CONSUMMATED A VALID AND BINDING CONTRACT, OBLIGATING WESTON TO PERFORM IN ACCORDANCE WITH ALL THE TERMS AND CONDITIONS THEREOF.

WE ARE ADVISED THAT AS OF MAY 27, 1966, 200 VALVES HAD BEEN DELIVERED AND PAYMENT MADE FOR 146 VALVES. IT IS ALSO REPORTED THAT WESTON'S PART NUMBER 27810 IS IN ACCORDANCE WITH REVISION A, ISSUED FEBRUARY 13, 1961, OF THE REFERENCED ORDNANCE NUMBER. ALTHOUGH THE PROCUREMENT DIRECTIVE FROM ATAC DID NOT REQUIRE FIRST ARTICLE APPROVAL OR ANY OTHER SPECIAL QUALITY ASSURANCE REQUIREMENT, WE ARE ADVISED THAT THE WESTON VALVE HAD UNDERGONE VARIOUS TESTS AND, EXCEPT FOR THE ENDURANCE TEST WHICH WILL BE COMPLETED AUGUST 25, HAS BEEN APPROVED. IF THE VALVE BEING FURNISHED BY WESTON SHOULD FAIL TO PASS THE ENDURANCE TEST, IT WOULD APPEAR THAT THE GOVERNMENT MAY TAKE SUCH ACTION AS IT DEEMS NECESSARY TO OBTAIN A VALVE MEETING ITS REQUIREMENTS, AND ANY EXCESS COSTS WILL BE CHARGEABLE TO THE CONTRACTOR.

FOR THE REASONS STATED, WE FIND NO BASIS FOR QUESTIONING THE VALIDITY OF THE AWARD TO WESTON AND YOUR PROTEST MUST THEREFORE BE DENIED.