B-159520, AUG. 22, 1966

B-159520: Aug 22, 1966

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TO DAVERS CORPORATION: REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 24. IN REFERENCED LETTER IT IS ASSERTED: "DAVERS CORPORATION. WHICH WAS COMPLETELY SATISFACTORY TO AVION. WHICH WERE QUITE SATISFACTORY TO AVION AND ULTIMATELY TO MCDONNELL AIRCRAFT CORPORATION. "WE ARE AT A LOSS TO UNDERSTAND WHY THE PRESENT PROCUREMENT ACTION WAS INITIATED AND NEARLY COMPLETED WITHOUT SOLICITING A QUOTATION FROM THE PRESENT SUPPLIER OF SATISFACTORY IDENTICAL ITEMS TO THE USER. AWARD WAS TO BE MADE FOR ONLY ONE OF THE QUANTITIES INDICATED. WAS REQUESTED TO SUBMIT A QUOTE DUE TO THE LACK OF COMPLETE DRAWINGS AND SPECIFICATIONS NECESSARY FOR COMPETITIVE PROCUREMENT. SINCE ACF WAS THE ONLY KNOWN SOURCE. REVIEW OF THE COST BREAKDOWN SUBMITTED BY ACF INDICATED THE MAJOR PORTION OF THE COST WAS TO BE EXPENDED IN SUBCONTRACTING MANUFACTURING OF THE ITEMS.

B-159520, AUG. 22, 1966

TO DAVERS CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 24, 1966, AND CONFIRMING LETTER OF THE SAME DATE, WHICH PROTESTED AGAINST THE AWARD OF A CONTRACT TO ANY OTHER CONCERN BASED ON REQUEST FOR QUOTATIONS (RFQ) 383/703250/66 ISSUED BY THE U.S. NAVY AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA, ON APRIL 26, 1966.

IN REFERENCED LETTER IT IS ASSERTED:

"DAVERS CORPORATION, A WHOLLY OWNED SUBSIDIARY OF AMERICAN ELECTRONIC LABORATORIES, INC. HAS PREVIOUSLY SUPPLIED IDENTICAL IR DETECTORS TO AVION, INC. (FORMERLY ACF ELECTRONICS), A SUBSIDIARY OF GENERAL SIGNAL, UNDER NAVY PRIME CONTRACT NOW 61-0004R TO MCDONNELL AIRCRAFT CORPORATION, WHICH WAS COMPLETELY SATISFACTORY TO AVION. MCDONNELL BY SUBCONTRACT TO AVION (THEN STILL A.C.F. ELECTRONICS DIV.) SUBLET CERTAIN EFFORT. AVION BY PURCHASE ORDER NO. PA55288GQ TO DAVERS CORPORATION, DATED 23 SEPTEMBER 1965, PROCURED IDENTICAL IR DETECTORS TO THOSE NOW BEING PROCURED BY SUBJECT REQUISITION, WHICH WERE QUITE SATISFACTORY TO AVION AND ULTIMATELY TO MCDONNELL AIRCRAFT CORPORATION.

"WE ARE AT A LOSS TO UNDERSTAND WHY THE PRESENT PROCUREMENT ACTION WAS INITIATED AND NEARLY COMPLETED WITHOUT SOLICITING A QUOTATION FROM THE PRESENT SUPPLIER OF SATISFACTORY IDENTICAL ITEMS TO THE USER.

"WE, THEREFORE, REQUEST THAT THE PRESENT PROCUREMENT ACTION BE SET ASIDE AND THAT RESOLICITATION BE MADE TO INCLUDE ALL COMPETENT SUPPLIERS AND CERTAINLY INCLUDING THE PRESENT ONE, DAVERS CORPORATION.'

AN RFQ FOR THE ITEMS HEREIN INVOLVED HAD PREVIOUSLY BEEN ISSUED ON DECEMBER 1, 1965. IT REQUESTED QUOTATIONS ON STEPLADDERED QUANTITIES OF 228, 277, 326, 375 AND 422, CLASS 1430 CELL AND JACKET ASSEMBLIES (IR DETECTORS) IN ACCORDANCE WITH ACF ELECTRONICS DIVISION OF ACF INDUSTRIES, INC., PART NUMBER 350163. AWARD WAS TO BE MADE FOR ONLY ONE OF THE QUANTITIES INDICATED. ONLY ACF (NOW AVION, INC.) WAS REQUESTED TO SUBMIT A QUOTE DUE TO THE LACK OF COMPLETE DRAWINGS AND SPECIFICATIONS NECESSARY FOR COMPETITIVE PROCUREMENT, AND SINCE ACF WAS THE ONLY KNOWN SOURCE. REVIEW OF THE COST BREAKDOWN SUBMITTED BY ACF INDICATED THE MAJOR PORTION OF THE COST WAS TO BE EXPENDED IN SUBCONTRACTING MANUFACTURING OF THE ITEMS, AND IT WAS ASCERTAINED THAT ACF HAD PREVIOUSLY SUBCONTRACTED MANUFACTURE OF THE ITEMS TO PHILCO CORPORATION AND TO TEXAS INSTRUMENTS, INC. (TI). NOTWITHSTANDING AN APPARENT URGENT REQUIREMENT FOR THE ITEMS, THE CONTRACTING OFFICER DECIDED TO RESOLICIT QUOTATIONS, SINCE IT APPEARED SUBSTANTIAL SAVINGS MIGHT BE POSSIBLE BY INCREASING THE COMPETITION. ACCORDINGLY, IN ADDITION TO AVION (RENAMED FROM ACF), PHILCO AND TI WERE REQUESTED TO SUBMIT QUOTES WITHIN 15 DAYS BY RFQ 383/703250/66, WHICH WAS ISSUED ON APRIL 26, 1966. AS PROVIDED FOR BY SECTION 1-1003.1 (C) (IV) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) THE PROCUREMENT WAS NOT SYNOPSIZED IN THE COMMERCE BUSINESS DAILY DUE TO THE URGENCY OF THE DELIVERY REQUIREMENTS FOR THE ITEM. THE QUOTATIONS RECEIVED FROM THE THREE SELECTED SOURCES REVEALED THAT THE UNIT PRICE FROM TI OF $1,125.10 OR $474,792.20 FOR THE 422 UNITS WAS THE LOWEST RECEIVED.

ON JUNE 22, 1966, YOUR PARENT COMPANY (AMERICAN ELECTRONIC LABORATORIES, INC., AEL) NOTIFIED THE PROCURING AGENCY THAT IT HAD LEARNED OF THE PROCUREMENT OF IR DETECTORS AND REQUESTED NO AWARD BE MADE UNTIL IT HAD THE OPPORTUNITY TO SUBMIT A QUOTATION. THE NEXT DAY A TELEGRAM FROM AEL LODGED A FORMAL PROTEST AGAINST AWARD. ON JUNE 24, 1966, YOUR COMPANY IN A TELEGRAM REQUESTED WITHDRAWAL OF THE PREVIOUS PROTEST OF AEL AND LODGED YOUR OWN PROTEST, ADVISING THAT YOU HAD PREVIOUSLY FURNISHED IDENTICAL IR DETECTORS TO ACF AND PROTESTING AGAINST NAVY'S FAILURE TO REQUEST YOUR QUOTATION ON THE INSTANT PROCUREMENT.

PURSUANT TO ASPR 2-407.9 (B) (3) (I) THE CONTRACTING OFFICER ON JUNE 27, 1966, PREPARED A WRITTEN STATEMENT TO THE EFFECT THE ITEMS TO BE PROCURED ARE URGENTLY REQUIRED AND THEREFORE AWARD SHOULD NOT BE HELD UP PENDING YOUR PROTEST. ADDITIONALLY IT WAS DETERMINED NOT TO SOLICIT YOUR COMPANY SINCE ANY DELAY IN AWARD OF A CONTRACT WOULD JEOPARDIZE THE PERFORMANCE OF THE MISSION OF THE AIRCRAFT FOR WHICH THE EQUIPMENT IS DESTINED. ACCORDINGLY, ON JUNE 27, 1966, A CONTRACT WAS AWARDED TO TI AS THE LOWEST OFFEROR, AND YOU WERE SO NOTIFIED THE NEXT DAY.

IN VIEW OF THE FOREGOING IT WOULD APPEAR THAT THE NAVY'S FAILURE TO SOLICIT YOUR FIRM WAS ATTRIBUTABLE TO ITS LACK OF KNOWLEDGE THAT YOU HAD PREVIOUSLY MANUFACTURED THE ITEMS IN QUESTION, AND THAT THE URGENCY OF THE NEED FOR THE ITEMS PRECLUDED A RESOLICITATION OF QUOTATIONS AFTER YOUR QUALIFICATIONS WERE MADE KNOWN TO THE NAVY. WHILE IT IS WELL RECOGNIZED THAT UNDER NORMAL CONDITIONS PROCUREMENT OFFICIALS SHOULD SEEK TO FOSTER THE MAXIMUM AMOUNT OF COMPETITION CONSISTENT WITH THE NEEDS OF THE AGENCY, WE ARE AWARE OF NO REQUIREMENT THAT AN URGENT PROCUREMENT MUST BE DELAYED IN ORDER TO PERMIT THE SUBMISSION OF QUOTATIONS FROM SOURCES OF SUPPLY WHICH WERE UNKNOWN TO THE PROCURING AGENCY AT THE TIME QUOTATIONS WERE SOLICITED. SEE B-144775, MARCH 22, 1961 AND B-150035, FEBRUARY 4, 1963.

BASED UPON THE PRESENT RECORD, THERE WOULD APPEAR TO BE NO DOUBT THAT AN URGENT REQUIREMENT EXISTED FOR THE SUPPLIES, AND WE THEREFORE CANNOT CONCLUDE THAT THE DELAY INCIDENT TO A SECOND RESOLICITATION OF PROPOSALS WOULD HAVE BEEN IN THE BEST INTEREST OF THE GOVERNMENT. ACCORDINGLY, WE FIND NO VALID BASIS ON WHICH TO QUESTION THE ACTION OF THE PROCURING AGENCY, AND YOUR PROTEST MUST BE DENIED.