B-159509, SEP. 8, 1966

B-159509: Sep 8, 1966

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TO ACTECH CORPORATION: REFERENCE IS MADE TO YOUR PROTEST BY TELEGRAM DATED JUNE 22. - WAS SENT TO SOURCES ON THE GOVERNMENT'S BIDDING LIST. WAS SYNOPSIZED IN "COMMERCE BUSINESS DAILY.'. WAS ISSUED BECAUSE THE PROCURING AGENCY DID NOT HAVE AVAILABLE THE SPECIFICATIONS NECESSARY TO BE FURNISHED POTENTIAL BIDDERS ON AN ADVERTISED PROCUREMENT. " AND ONLY THE CONSOLIDATED KIT WAS APPROVED FOR THE USE SPECIFIED. SOURCES WERE SOLICITED BY THE COMMAND SO THAT ANY DISTRIBUTORS. AS WELL AS THE ACTUAL MANUFACTURER WOULD HAVE AN OPPORTUNITY TO RESPOND. THE COMMAND CONTEMPLATED NEGOTIATION OF A CONTRACT PURSUANT TO THE AUTHORITY CONTAINED IN 10 U.S.C. 2304/A) (10) WHICH PROVIDES THAT PURCHASES AND CONTRACTS MAY BE NEGOTIATED IF IT IS IMPRACTICABLE TO OBTAIN COMPETITION.

B-159509, SEP. 8, 1966

TO ACTECH CORPORATION:

REFERENCE IS MADE TO YOUR PROTEST BY TELEGRAM DATED JUNE 22, 1966, AND LETTER, WITH ENCLOSURES, DATED JUNE 24, 1966, AGAINST AWARD OF A CONTRACT TO THE CONSOLIDATED ELECTRODYNAMICS CORPORATION, MONROVIA, CALIFORNIA, BY THE DEPARTMENT OF THE ARMY UNDER REQUEST FOR PROPOSALS (RFP) NO. AMC (T) 23-204-243-66, ISSUED JANUARY 24, 1966, BY THE ARMY AVIATION MATERIEL COMMAND, ST. LOUIS, MISSOURI.

A SOLICITATION FOR THE PROCUREMENT OF VIBRATION MONITORING KITS--- USED TO TEST THE LYCOMING T-53 TURBINE ENGINE AS INSTALLED IN THE UH-1 UTILITY HELICOPTER, AND THE LYCOMING T-55 TURBINE ENGINE AS INSTALLED IN THE CH-47 TRANSPORT HELICOPTER--- WAS SENT TO SOURCES ON THE GOVERNMENT'S BIDDING LIST, AND WAS SYNOPSIZED IN "COMMERCE BUSINESS DAILY.' THE RFP, FURNISHED YOU AT YOUR REQUEST, CALLED FOR PROPOSALS ON A FIRM FIXED-PRICE BASIS TO FURNISH 100 CONSOLIDATED ELECTRODYNAMICS CORPORATION MONITORING KITS, P/N CEC 171170-0100.

THE SUBJECT REQUEST FOR PROPOSALS, RATHER THAN THE CUSTOMARY INVITATION FOR BIDS, WAS ISSUED BECAUSE THE PROCURING AGENCY DID NOT HAVE AVAILABLE THE SPECIFICATIONS NECESSARY TO BE FURNISHED POTENTIAL BIDDERS ON AN ADVERTISED PROCUREMENT. THE PRIME MANUFACTURER OF THE TURBINE ENGINES, LYCOMING DIVISION OF AVCO CORPORATION, STRATFORD, CONNECTICUT, CONDUCTED TESTS TO SELECT AN APPROPRIATE VIBRATION MONITORING KIT. THE INFORMATION FURNISHED TO THE GOVERNMENT BY LYCOMING STATED THAT THE KIT INCLUDES ITEMS CONTROLLED BY "SOURCE CONTROLLED DRAWINGS," AND ONLY THE CONSOLIDATED KIT WAS APPROVED FOR THE USE SPECIFIED. SOURCES WERE SOLICITED BY THE COMMAND SO THAT ANY DISTRIBUTORS, AS WELL AS THE ACTUAL MANUFACTURER WOULD HAVE AN OPPORTUNITY TO RESPOND. NEVERTHELESS, THE COMMAND CONTEMPLATED NEGOTIATION OF A CONTRACT PURSUANT TO THE AUTHORITY CONTAINED IN 10 U.S.C. 2304/A) (10) WHICH PROVIDES THAT PURCHASES AND CONTRACTS MAY BE NEGOTIATED IF IT IS IMPRACTICABLE TO OBTAIN COMPETITION. TO IMPLEMENT THIS AUTHORITY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-210.2 SETS FORTH ILLUSTRATIVE CIRCUMSTANCES UNDER WHICH NEGOTIATION PROCEDURES MAY BE USED. SUBPARAGRAPH (XIII) INDICATES THAT NEGOTIATION IS PERMITTED WHEN IT IS IMPOSSIBLE TO DRAFT, FOR A SOLICITATION OF BIDS, ADEQUATE SPECIFICATIONS OR ANY OTHER ADEQUATELY DETAILED DESCRIPTION OF THE REQUIRED SUPPLIES OR SERVICES. PRECEDING THE ISSUANCE OF THE RFP THE CONTRACTING OFFICER MADE DETERMINATIONS AND FINDINGS (D AND F) WHICH PROVIDED: (A) THAT IT IS IMPOSSIBLE TO DRAFT FOR SOLICITATION OF BIDS ADEQUATE SPECIFICATIONS OR ANY OTHER DETAILED DESCRIPTION OF THE REQUIRED SUPPLIES IN TIME FOR THE PROCUREMENT; (B) THAT THE DIRECTOR OF THE COMMAND HAS RECORDED THE EQUIPMENT AS A CANDIDATE FOR FUTURE BREAKOUT ACTION TO ENABLE PROCUREMENT BY FORMAL ADVERTISING; AND (C) THAT PROCUREMENT OF THE EQUIPMENT BY FORMAL ADVERTISING AT THE PRESENT TIME IS NOT FEASIBLE NOR PRACTICABLE.

TWO PROPOSALS WERE RECEIVED AS FOLLOWS:

CONSOLIDATED ELECTRODYNAMICS CORPORATION

P/N CEC 171170-0100 - $2,674.00 EACH

ACTECH CORPORATION

P/N VMK 3001 - $2,075.00 EACH

YOU STATED IN A MEMORANDUM ENCLOSED WITH THE RFP THAT YOUR P/N VMK 3001 IS "EXACTLY IDENTICAL TO AND DIRECTLY INTERCHANGEABLE WITH P/N 171170- 0100.' THE COMMAND WAS INTERESTED IN DETERMINING WHETHER SOMEONE OTHER THAN CONSOLIDATED COULD SUPPLY THE ITEM, DESPITE THE D AND F CONCLUSION, AND THEREFORE UPON RECEIPT OF YOUR PROPOSAL, ATTEMPTED TO DETERMINE IF THE ITEM UPON WHICH YOU BASED YOUR PROPOSAL WAS, IN FACT, IDENTICAL AND ACCEPTABLE.

INFORMATION RECEIVED FROM YOU WAS REFERRED TO THE DIRECTORATE OF RESEARCH, DEVELOPMENT, AND ENGINEERING, AND THE CONTRACTING OFFICER WAS THEREAFTER ADVISED THAT COMPLETE DETAILED DRAWINGS, PROCESS SPECIFICATIONS, ENGINEERING TESTS AND SERVICE TESTS WOULD BE NECESSARY TO DETERMINE WHETHER THE ITEM COULD BE APPROVED FOR PROCUREMENT. ON TWO SEPARATE VISITS TO THE COMMAND YOU WERE INFORMED THAT THE DATA YOU SUBMITTED WAS INSUFFICIENT TO DEMONSTRATE TO THE GOVERNMENT THAT THE KITS OFFERED WERE ACCEPTABLE OR ADEQUATE. A FINAL ENGINEERING REVIEW DATED JUNE 7, 1966, RECOMMENDED THAT YOUR PROPOSAL NOT BE ACCEPTED AND MADE THE FOLLOWING COMMENT:

"* * * ACTECH HAS NOT PROVIDED SUFFICIENT DATA ON THE METER AND TRANSDUCERS TO QUALIFY THESE UNITS, THROUGH TEST REPORT AND SERVICE EXPERIENCE, AS EQUAL TO THE EXISTING KIT. IF ACCEPTABLE QUALIFICATION DATA WAS PROVIDED, AMC REGULATION 700-36 ALSO REQUIRE THE CONTRACTOR TO SATISFACTORILY COMPLETE FIRST ARTICLE TESTING TO INSURE COMPLIANCE PRIOR TO ACCEPTANCE * * *.'

YOUR BASIC CONTENTION, BASED UPON THE COMMAND'S DECISION TO DECLINE ACCEPTANCE OF YOUR PROPOSAL BECAUSE SUFFICIENT TEST DATA WAS NOT AVAILABLE TO THEM TO PROPERLY EVALUATE YOUR PRODUCT, IS THAT SINCE NO TEST DATA WAS CALLED FOR IN THE RFP THE COMMAND CANNOT USE SUCH REASONING TO REJECT YOUR PROPOSAL. THIS CONTENTION OVERLOOKS, HOWEVER, THAT WHICH THE RFP DID CALL FOR. IT IS IRRELEVANT THAT NO TEST DATA WAS CALLED FOR IN THE RFP, SINCE THE RFP ALSO DID NOT CALL FOR AN ACTECH PRODUCT. THE COMMAND MADE EVERY EFFORT TO CONSIDER YOUR PROPOSAL, EVEN THOUGH YOU WERE NOT OFFERING THE CONSOLIDATED KIT, BUT BECAUSE THIS IS THE PURCHASE OF SPECIAL GROUND TEST EQUIPMENT USED TO DETERMINE WHETHER THE TURBINE ENGINE TESTED IS SAFE FOR FLIGHT, AND BECAUSE THE COMMAND WAS NOT CONVINCED THAT THE ITEM ON WHICH YOU BASED YOUR PROPOSAL WAS IDENTICAL TO THAT WHICH WAS CALLED FOR, THEY PROPERLY HELD YOU NONRESPONSIVE TO THE RFP.

UNDER 10 U.S.C. 2310/B), THE DETERMINATIONS AND FINDINGS ISSUED BY THE CONTRACTING OFFICER AS A BASIS FOR CONCLUDING THAT THE PROCUREMENT OF THE CONSOLIDATED KITS SHOULD BE NEGOTIATED PURSUANT TO 10 U.S.C. 2304/A) BECOME FINAL. OUR OFFICE IS WITHOUT AUTHORITY TO QUESTION SUCH FINDINGS UNLESS THEY ARE FRAUDULENT, ARBITRARY, CAPRICIOUS, GROSSLY ERRONEOUS, OR NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. IN VIEW THEREOF, WE MUST CONCLUDE THAT THE RECORD, SHOWING AN ABSENCE AT THIS TIME OF SUFFICIENT DATA TO INITIATE COMPETITION, IS ADEQUATE TO SUBSTANTIATE THE COMMAND'S ACTION. WE SEE NO LEGAL BASIS FOR OBJECTION TO THE PROCUREMENT OF THE CONSOLIDATED KIT ON A SOLE-SOURCE BASIS. ACCORDINGLY, YOUR PROTEST IS DENIED.