B-160291, FEB. 17, 1967

B-160291, FEB. 17, 1967

TO TRAID CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM DATED OCTOBER 22, 1966, PROTESTING NEGOTIATION ON A SOLE-SOURCE BASIS WITH SDS DATA SYSTEMS UNDER BASIC ORDERING AGREEMENT AF04/606/15079 FOR ADDITIONAL GUN CAMERA PARTS AND ACCESSORIES BY THE AERONAUTICAL SYSTEMS DIVISION (ASD), DEPARTMENT OF THE AIR FORCE.

IT IS REPORTED THAT PURCHASE REQUEST 00-7-52159 COVERING A QUANTITY OF COMPONENTS, SPARE PARTS AND DATA FOR MODIFICATION OF THE KS27B GUN CAMERA SYSTEM IN SUPPORT OF THE F-105 AIRCRAFT WAS RECEIVED IN THE AERONAUTICAL SYSTEMS DIVISION ON SEPTEMBER 13, 1966. THESE PROCUREMENTS WERE TO BE USED IN UPGRADING THE KS27B GUN CAMERA SYSTEM TO THE KS27C CONFIGURATION. THIS PURCHASE REQUEST WAS MARKED "URGENT SEA" (SOUTHEAST ASIA), CARRIED "PRIORITY DESIGNATOR - 2," AND SPECIFIED REQUIRED DELIVERY BY JANUARY 1967. DUE TO THE URGENCY OF THE REQUIREMENT, THE CONTRACTING OFFICE DETERMINED IT WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT TO ISSUE AN UNPRICED ORDER AGAINST BASIC ORDERING AGREEMENT AF04/606/15079 WITH SDS DATA SYSTEMS STATED AS THE SOLE SOURCE. IMMEDIATE ACTION WAS INITIATED TO PREPARE DETERMINATIONS AND FINDINGS AND OBTAIN OTHER NECESSARY APPROVALS PRIOR TO ISSUANCE OF THE UNPRICED ORDER. ON SEPTEMBER 18, 1966, THE CONTRACTING OFFICER RECEIVED A TELEPHONE CALL, CONFIRMED IN WRITING ON SEPTEMBER 21, 1966, REQUESTING THAT A HOLD BE PLACED ON THIS PURCHASE REQUEST DUE TO A POSSIBLE CHANGE IN REQUIREMENTS. ON OCTOBER 10, 1966, THE HOLD WAS REMOVED AND THE REQUIREMENTS WERE REDUCED. ON THE SAME DAY, OCTOBER 10, 1966, THE CONTRACTING OFFICER RECEIVED PURCHASE REQUEST ZS-7- 6760-1098 COVERING REQUIREMENT FOR 41 EACH KS27C (MOD1) GUN CAMERA SYSTEMS, WITH RECOMMENDED SOURCE AS SDS DATA SYSTEMS. THIS REQUEST ALSO CARRIED A DELIVERY DATE OF JANUARY 1967. AS THIS REQUIREMENT WAS MARKED "SEALR 12 FY66 SOLE-SOURCE URGENT," IT WAS DECIDED TO COMBINE THIS REQUEST WITH PR 00-7-52159 AND PROCURE BOTH REQUESTS ON THE SAME UNPRICED ORDER. FOLLOWING RECEIPT OF NECESSARY APPROVALS ON OCTOBER 17, 1966, UNPRICED ORDER AS-67-1 AGAINST BOA AF04/606/15079 WAS PREPARED, BUT WAS HELD UP PENDING RECEIPT OF ADMINISTRATIVE COMMITMENT DOCUMENTS CERTIFYING THE AVAILABILITY OF FUNDS.

AS A RESULT OF THE PUBLICATION IN THE COMMERCE BUSINESS DAILY, OCTOBER 21, 1966, OF A SYNOPSIS OF THE PROCUREMENT, YOU PROTESTED THE SOLE-SOURCE BASIS OF THE ORDER STATING THAT YOUR COMPANY IS IN A POSITION TO SUPPLY THE SAME OR EQUAL PARTS FOR THE GUN CAMERA SYSTEMS.

IT IS FURTHER REPORTED THAT SINCE NO SPECIFICATIONS OR PROCUREMENT DATA OTHER THAN SDS PART NUMBERS WERE AVAILABLE UNDER EITHER PURCHASE, COMPETITIVE PROCUREMENT WITHIN THE TIME ALLOTTED FOR DELIVERY WOULD NOT HAVE BEEN FEASIBLE. THE REQUISITIONING OFFICE, THEREFORE, SENT WITH BOTH PURCHASE REQUESTS A PROPERLY EXECUTED SOLE-SOURCE JUSTIFICATION AND ALSO A CERTIFICATE OF URGENCY.

ON THE BASIS OF THE ABOVE REASONS, ON NOVEMBER 9, 1966, AERONAUTICAL SYSTEMS DIVISION WAS AUTHORIZED BY HIGHER AUTHORITY TO PROCEED WITH THE AWARD TO SDS, NOTWITHSTANDING THE TRAID CORPORATION PROTEST.

IT MUST BE NOTED THAT THIS PURCHASE ORDER WAS ISSUED PURSUANT TO AUTHORITY CONTAINED IN 10 U.S.C. 2304 (A) (2), AS AMENDED, WHICH PROVIDES AS FOLLOWS:

"SEC. 2304. PURCHASES AND CONTRACTS: FORMAL ADVERTISING EXCEPTIONS.

"/A) PURCHASES OF AND CONTRACTS FOR PROPERTY OR SERVICES COVERED BY THIS CHAPTER SHALL BE MADE BY FORMAL ADVERTISING IN ALL CASES IN WHICH THE USE OF SUCH METHOD IS FEASIBLE AND PRACTICABLE UNDER THE EXISTING CONDITIONS AND CIRCUMSTANCES. IF USE OF SUCH METHOD IS NOT FEASIBLE AND PRACTICABLE, THE HEAD OF AN AGENCY, SUBJECT TO THE REQUIREMENTS FOR DETERMINATIONS AND FINDINGS IN SECTION 2310, MAY NEGOTIATE SUCH A PURCHASE OR CONTRACT, IF--

"/2) THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING; "

SECTION 2311 OF TITLE 10, U.S.C. PROVIDES FOR THE DELEGATION OF THIS AUTHORITY TO OTHER OFFICERS AND OFFICIALS OF THE AGENCY.

REGULATIONS ISSUED PURSUANT TO THE ABOVE-QUOTED LAW ARE SET FORTH IN PARAGRAPH 3-202 OF THE ARMED SERVICES PROCUREMENT REGULATION, AND ARE IN PERTINENT PART AS FOLLOWS:

"3-202. PUBLIC EXIGENCY.

"3-202.2 APPLICATION. IN ORDER FOR THE AUTHORITY OF THIS PARAGRAPH 3-202 TO BE USED, THE NEED MUST BE COMPELLING AND OF UNUSUAL URGENCY, AS WHEN THE GOVERNMENT WOULD BE SERIOUSLY INJURED, FINANCIALLY OR OTHERWISE, IF THE SUPPLIES OR SERVICES WERE NOT FURNISHED BY A CERTAIN DATE, AND WHEN THEY COULD NOT BE PROCURED BY THAT DATE BY MEANS OF FORMAL ADVERTISING. WHEN NEGOTIATING UNDER THIS AUTHORITY, COMPETITION TO THE MAXIMUM EXTENT PRACTICABLE, WITHIN THE TIME ALLOWED, SHALL BE OBTAINED. THE FOLLOWING ARE ILLUSTRATIVE OF CIRCUMSTANCES WITH RESPECT TO WHICH THIS AUTHORITY MAY BE USED:

"/III) ESSENTIAL EQUIPMENT FOR, OR REPAIR TO, AIRCRAFT GROUNDED OR ABOUT TO BE GROUNDED, WHEN SUCH EQUIPMENT OR REPAIR IS NEEDED AT ONCE FOR THE PERFORMANCE OF THE OPERATIONAL MISSION OF SUCH AIRCRAFT;

"/VI) PURCHASE REQUEST CITING AN ISSUE PRIORITY DESIGNATOR 1 THROUGH 6 INCLUSIVE, UNDER THE UNIFORM MATERIAL AND ISSUE PRIORITY SYSTEM (UMMIPS) *

"3-202.3 LIMITATION. EVERY CONTRACT NEGOTIATED UNDER THE AUTHORITY OF THIS PARAGRAPH 3-202 SHALL BE ACCOMPANIED WITH A DETERMINATION AND FINDINGS JUSTIFYING ITS USE, SIGNED BY THE CONTRACTING OFFICER AND PREPARED IN ACCORDANCE WITH THE REQUIREMENTS OF PART 3 OF THIS SECTION III, EXCEPT THAT IN THE CASE OF A CONTRACT RESULTING FROM A PURCHASE REQUEST CITING AN ISSUE PRIORITY DESIGNATOR 1 THROUGH 6 OR THE PRIORITY DESIGNATOR "ELECTRONIC WARFARE QRC PRIORITY," THE DETERMINATION AND FINDINGS NEED ONLY CITE THE DESIGNATOR OR "ELECTRONIC WARFARE QRC PRIORITY" AS JUSTIFICATION. * * *"

THE RECORD SHOWS THAT APPROPRIATE DETERMINATIONS AND FINDINGS CONCERNING THE EXIGENCY OF THE PROCUREMENTS AND THE LACK OF TIME TO PREPARE DATA FOR FORMAL ADVERTISING WERE MADE BY THE CONTRACTING OFFICER AS REQUIRED BY THE QUOTED REGULATION. THE CONTRACTING OFFICER AND HIGHER AUTHORITY CONSIDERED THE PROCUREMENTS OF THE HIGHEST URGENCY AND THAT TIME WOULD NOT PERMIT NEGOTIATION WITH OTHER THAN THE THEN BELIEVED ONLY KNOWN APPROVED SOURCE OF SUPPLY. THE PROCURING OFFICERS BELIEVED THAT THE URGENCY OF THE SITUATION AND THE SHORT DELIVERY DATE PRECLUDED THE DELAY INVOLVED IN PREPARING SPECIFICATIONS OR TESTING THE PRODUCTS OF PREVIOUSLY UNKNOWN SUPPLIERS. IN THIS CONNECTION, REFERENCE MAY BE MADE TO ASPR 3-210 WHICH PROVIDES, INTER ALIA, FOR NEGOTIATED PROCUREMENT ON A SOLE-SOURCE BASIS. HOWEVER, THE LIMITATION TO THIS SECTION PROHIBITS ITS USE WHERE ANOTHER SECTION MAY BE USED.

CAREFUL CONSIDERATION HAS BEEN GIVEN TO THE CONTENTIONS URGED IN SUPPORT OF YOUR PROTEST, BUT WE ARE UNABLE TO CONCLUDE THAT THE ACTION TAKEN BY THE CONTRACTING OFFICIALS WAS UNAUTHORIZED. IN VIEW OF THE "URGENT" STATUS OF THE REQUIREMENTS, AND THE FACT THAT THE METHOD OF NEGOTIATION RESORTED TO WAS WITHIN THE BOUNDS OF AUTHORITY SET FORTH IN THE QUOTED SECTIONS OF THE STATUTE AND REGULATIONS, WE MUST CONCLUDE THAT THERE HAS NOT BEEN A SUFFICIENT BASIS FOR DETERMINING THAT THE PROCUREMENT IN THE INSTANT CASE SHOULD BE REGARDED AS INVALID.

ACCORDINGLY, YOUR PROTEST IS DENIED.

YOU MAY BE ADVISED THAT THE DEPARTMENT OF THE AIR FORCE HAS STATED THAT IN AN EFFORT TO OBTAIN COMPETITION IN FURTHER PROCUREMENT, IT HAS UNDERTAKEN IMMEDIATE ACTION TO PROCURE THE DATA NECESSARY FOR SUCH PURPOSE.