B-160424, MAR. 29, 1967

B-160424: Mar 29, 1967

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TO CRYSTAL-X CORPORATION: REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 18 AND LETTER DATED DECEMBER 1. THE COVERS WERE TO BE MANUFACTURED IN ACCORDANCE WITH KEPNER PART NUMBERS PE5T96 AND PE5T60 AND FEDERAL SPECIFICATION L-P-378A ENTITLED "PLASTIC FILM (POLYETHYLENE THIN GAUGE)" DATED AUGUST 10. THREE PROPOSALS WERE RECEIVED. YOU STATED THAT YOU WOULD FURNISH THE COVERS IN PERFORATED ROLL FORM WHICH YOU STATED WERE CURRENTLY BEING FURNISHED BY YOUR FIRM TO CERTAIN AIR FORCE BASES. YOU OFFERED TO REDUCE YOUR PRICE BY 5 PERCENT IF YOUR FIRM WERE PERMITTED TO FURNISH THE COVERS IN PERFORATED ROLL FORM OR PACKED INDIVIDUALLY 10 PER CARTON. THE CONTRACT WAS AWARDED TO THAT FIRM ON NOVEMBER 17.

B-160424, MAR. 29, 1967

TO CRYSTAL-X CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 18 AND LETTER DATED DECEMBER 1, 1966, PROTESTING THE AWARD OF A CONTRACT TO A COMPANY OTHER THAN YOUR FIRM UNDER DEPARTMENT OF THE AIR FORCE REQUEST FOR PROPOSALS F09 -603-61-R-0933, ISSUED ON SEPTEMBER 19, 1966, BY THE WARNER ROBINS AIR MATERIEL AREA (WRAMA), ROBINS AIR FORCE BASE, GEORGIA.

THE SUBJECT REQUEST FOR PROPOSALS WITH A CLOSING DATE OF OCTOBER 14, 1966, SOLICITED PROPOSALS FOR FURNISHING TWO SIZES OF POLYETHYLENE COVERS IN FLAT RECTANGULAR FORM FOR 463L CARGO HANDLING SYSTEMS. THE COVERS WERE TO BE MANUFACTURED IN ACCORDANCE WITH KEPNER PART NUMBERS PE5T96 AND PE5T60 AND FEDERAL SPECIFICATION L-P-378A ENTITLED "PLASTIC FILM (POLYETHYLENE THIN GAUGE)" DATED AUGUST 10, 1961 AND AMENDMENT 2 DATED JUNE 10, 1964.

THREE PROPOSALS WERE RECEIVED, THE LOW OFFEROR, KEPNER PLASTICS FABRICATORS, INC., QUOTING AN AGGREGATE TOTAL PRICE OF $230,177.16 FOR ITEMS 1 AND 2 AND THE NEXT LOWEST OFFEROR, THE RICHMOND CORPORATION, OFFERING TO FURNISH BOTH ITEMS FOR AN AGGREGATE TOTAL PRICE OF $254,994.09. YOUR FIRM QUOTED AN AGGREGATE TOTAL PRICE OF $275,457.43 FOR ITEMS 1 AND 2. IN AN ACCOMPANYING LETTER DATED OCTOBER 10, 1966, YOU STATED THAT YOU WOULD FURNISH THE COVERS IN PERFORATED ROLL FORM WHICH YOU STATED WERE CURRENTLY BEING FURNISHED BY YOUR FIRM TO CERTAIN AIR FORCE BASES. BY LETTER DATED NOVEMBER 16, 1966, 2 DAYS AFTER THE CLOSING DATE FOR RECEIPT OF PROPOSALS, YOU OFFERED TO REDUCE YOUR PRICE BY 5 PERCENT IF YOUR FIRM WERE PERMITTED TO FURNISH THE COVERS IN PERFORATED ROLL FORM OR PACKED INDIVIDUALLY 10 PER CARTON. THE EFFECT OF THE FOREGOING REDUCTION WOULD BE TO REDUCE YOUR AGGREGATE TOTAL PRICE TO $261,684.56, WHICH WOULD STILL BE THE HIGHEST BID RECEIVED ON ITEMS 1 AND 2. FOLLOWING A FAVORABLE PREAWARD SURVEY OF KEPNER PLASTICS FABRICATORS, INC., THE LOWEST BIDDER, THE CONTRACT WAS AWARDED TO THAT FIRM ON NOVEMBER 17, 1966. WE HAVE BEEN INFORMALLY ADVISED THAT THE CONTRACT HAS BEEN SUBSTANTIALLY COMPLETED.

YOU PROTEST THE USE OF NEGOTIATION RATHER THAN ADVERTISING FOR THE PROCUREMENT OF THE COVERS. YOU STATE THAT IF THE PROCUREMENT HAD BEEN ADVERTISED, A BIDDER WOULD HAVE KNOWN HOW HE STOOD AT THE TIME OF THE BID OPENING. IT IS CONTENDED THAT THE DESCRIPTION OF THE COVERS IN THE REQUEST FOR PROPOSALS WAS TOO MEAGER FOR PURPOSES OF BIDDING AND THAT YOU WERE UNABLE TO OBTAIN COPIES OF THE DRAWINGS COVERING THE KEPNER PART NUMBERS FROM THE PROCUREMENT AGENCY. IT ALSO IS CONTENDED THAT THE USE OF YOUR IMPROVED PERFORATED ROLL FORM COVER WOULD SAVE THE GOVERNMENT MANY MAN HOURS IN THE INSTALLATION PROCESS AND THAT THIS HAS BEEN PROVEN AT FOUR AIR BASES.

THE DEPARTMENT OF THE AIR FORCE REPORTS THAT THE PRIMARY REASON WHY THE PROCUREMENT WAS NEGOTIATED RATHER THAN ACCOMPLISHED UNDER FORMAL ADVERTISING PROCEDURES WAS BECAUSE A COMPLETE DATA PACKAGE WHICH WOULD HAVE PROVIDED SUFFICIENT INFORMATION TO ANY INTERESTED SUPPLIER TO ENABLE HIM TO MANUFACTURE THE ITEMS BEING PROCURED WAS NOT AVAILABLE WITHIN THE AIR FORCE. IT ALSO IS REPORTED THAT BECAUSE OF THE URGENT NEED FOR THESE ITEMS IN THE SOUTHEAST ASIAN COMBAT ZONES, TIME DID NOT PERMIT FORMULATION OF THE DATA NECESSARY FOR FORMAL ADVERTISING. CONSEQUENTLY, IN ACCORDANCE WITH ASPR 3-210.2 (XV), APPROPRIATE DETERMINATIONS AND FINDINGS WERE MADE JUSTIFYING NEGOTIATION OF THE CONTRACT. ASPR 3-210.2 (XV) PERMITS PROCUREMENT BY NEGOTIATION WHEN THE CONTEMPLATED PROCUREMENT IS FOR PARTS OR COMPONENTS BEING PROCURED AS REPLACEMENT PARTS IN SUPPORT OF EQUIPMENT SPECIALLY DESIGNED BY THE MANUFACTURER, WHERE DATA AVAILABLE IS NOT ADEQUATE TO ASSURE THAT THE PART OR COMPONENT WILL PERFORM THE SAME FUNCTION IN THE EQUIPMENT AS THE PART OR COMPONENT IT IS TO REPLACE.

IT IS CONCEDED BY THE AIR FORCE THAT THE USE OF THE COVERS IN THE PERFORATED ROLL FORM WOULD PROBABLY SAVE LABOR HOURS WHEN USED IN CONJUNCTION WITH A FULLY MECHANIZED TERMINAL. HOWEVER, AS WAS POINTED OUT TO REPRESENTATIVES OF YOUR FIRM AT VARIOUS MEETINGS HELD WITH PROCUREMENT OFFICIALS, THE MAJORITY OF THESE COVERS ARE BEING USED BY ACTIVITIES IN COMBAT ZONES AND THESE ACTIVITIES DO NOT POSSESS THE EQUIPMENT REQUIRED TO USE THE PERFORATED ROLL FORM EFFECTIVELY AND, THEREFORE, PREFER THE FLAT RECTANGULAR FORM. IN REGARD TO THE ADEQUACY OF THE ITEM DESCRIPTION IN THE RFP, IT IS REPORTED THAT THE SAME ITEM DESCRIPTION USED IN THE SUBJECT RFP WAS ALSO USED IN A PREVIOUS RFP UNDER WHICH CONTRACT NO. F-09-603-67-C -0248, DATED AUGUST 10, 1966, WAS AWARDED TO THE RICHMOND CORPORATION. TO FUTURE PROCUREMENTS OF THE COVERS, THE AIR FORCE STATES THAT WRAMA HAS BEEN ADVISED NOT TO REFERENCE THE KEPNER PART NUMBER IN ITEM DESCRIPTIONS USED IN FUTURE PROCUREMENTS UNLESS THE WORDS "OR EQUAL" ARE ADDED THERETO, AND THAT WRAMA ALSO HAS BEEN INSTRUCTED TO DEVELOP A PURCHASE DESCRIPTION TO BE USED FOR THE FUTURE PROCUREMENT OF THESE ITEMS BY FORMAL ADVERTISING, IF CONDITIONS PERMIT. IT IS FURTHER REPORTED THAT THE AIR FORCE IS AT PRESENT INVESTIGATING THE MERITS OF DRAWING SEPARATE SPECIFICATIONS FOR PERFORATED ROLL FORMS FOR USE IN FULLY MECHANIZED UNITS.

WITH REGARD TO THE FAILURE OF PROCUREMENT OFFICIALS TO CONDUCT FURTHER NEGOTIATIONS WITH YOUR FIRM, YOUR ATTENTION IS INVITED TO PARAGRAPH 7 (F) OF THE RFP TERMS AND CONDITIONS WHICH PROVIDES THAT THE GOVERNMENT RESERVES THE RIGHT TO AWARD A CONTRACT, BASED ON INITIAL PROPOSALS RECEIVED, WITHOUT DISCUSSION OF SUCH PROPOSALS. ALSO, WITH RESPECT TO YOUR REQUEST FOR COPIES OF DRAWINGS OF KEPNER PART NUMBERS, PARAGRAPH 36 OF THE RFP ENTITLED,"APPLICABLE MANUFACTURING DATA," ADVISED ALL PROSPECTIVE OFFERORS THAT DRAWINGS WOULD NOT BE FURNISHED BY THE GOVERNMENT FOR THIS PROCUREMENT.

CAREFUL CONSIDERATION HAS BEEN GIVEN TO THE CONTENTIONS URGED IN SUPPORT OF YOUR PROTEST BUT, IN THE LIGHT OF THE FOREGOING, WE ARE UNABLE TO CONCLUDE THAT THE ACTION TAKEN BY THE CONTRACTING OFFICIALS WAS WITHOUT LEGAL JUSTIFICATION.