B-162344, NOV. 8, 1967

B-162344: Nov 8, 1967

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A PROCUREMENT OF CLOTHING WHICH WAS NEGOTIATED UNDER PUBLIC EXIGENCY DETERMINATION IN 10 U.S.C. 2304 (A) (2) WITH ONLY OFFEROR OF FOUR FIRMS THAT WERE SOLICITED IS NOT IMPROPER. SINCE PROTESTANT WHO WAS NOT SOLICITED DOES NOT MEET QUALIFICATIONS FOR INSTANT PROCUREMENT PROTEST MUST BE DENIED. TO PUTNAM MILLS CORPORATION: REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 24 AND AUGUST 29. WHICH WAS ISSUED TO FULFILL AN URGENT REQUIREMENT FOR 242. WAS THE PRINCIPAL CHANGE SPECIFIED. WHICH PROVIDES THAT SUPPLIES MAY BE PURCHASED BY NEGOTIATION WHEN THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING. HIS FINDINGS WERE MADE PART OF THE RECORD AND ARE QUOTED AS FOLLOWS: "DETERMINATION AND FINDINGS "AUTHORITY TO NEGOTIATE CONTRACTS UNDER ASPR 3-202 -PUBLIC EXIGENCY-.

B-162344, NOV. 8, 1967

BIDS - NEGOTIATION - COMPETITION DECISION TO PUTNAM MILLS CORPORATION CONCERNING PROTEST TO NEGOTIATED AWARD BY DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PA. FOR FIRE RESISTENT FLIGHT CLOTHING. A PROCUREMENT OF CLOTHING WHICH WAS NEGOTIATED UNDER PUBLIC EXIGENCY DETERMINATION IN 10 U.S.C. 2304 (A) (2) WITH ONLY OFFEROR OF FOUR FIRMS THAT WERE SOLICITED IS NOT IMPROPER. SINCE PROTESTANT WHO WAS NOT SOLICITED DOES NOT MEET QUALIFICATIONS FOR INSTANT PROCUREMENT PROTEST MUST BE DENIED.

TO PUTNAM MILLS CORPORATION:

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 24 AND AUGUST 29, 1967, IN WHICH YOU PROTEST AN AWARD MADE BY THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PENNSYLVANIA, ON AUGUST 23, 1967, UNDER A SOLICITATION DESIGNATED DSA 100-68-Q-A135, WHICH WAS ISSUED TO FULFILL AN URGENT REQUIREMENT FOR 242,550 YARDS OF NOMEX CLOTH TO BE USED IN MANUFACTURING FIRE RESISTANT FLIGHT SHIRTS AND TROUSERS. THE PURCHASE REQUEST FOR THE CLOTH CARRIED AN ISSUE PRIORITY DESIGNATOR OF 02 UNDER THE UNIFORM MATERIEL MOVEMENTS AND ISSUE PRIORITY SYSTEM (UMMIPS), AND DIRECTED THAT THE CLOTH TO BE PROCURED SHOULD CONFORM TO SPECIFICATION MIL-C-81280A/W), CLOTH, HERRINGBONE TWILL, POLYAMIDE, HIGH TEMPERATURE RESISTANT, WITH SPECIFIED DEVIATIONS. THE UTILIZATION OF ARMY NOMEX, INSTEAD OF NAVY NOMEX AS IN PRIOR PROCUREMENTS, WAS THE PRINCIPAL CHANGE SPECIFIED.

IN VIEW OF THE PRIORITY DESIGNATION ASSIGNED TO THIS REQUISITION THE CONTRACTING OFFICER DETERMINED THE PROCUREMENT SHOULD BE NEGOTIATED UNDER THE AUTHORITY OF 10 U.S.C. 2304 (A) (2), WHICH PROVIDES THAT SUPPLIES MAY BE PURCHASED BY NEGOTIATION WHEN THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING. HIS FINDINGS WERE MADE PART OF THE RECORD AND ARE QUOTED AS FOLLOWS:

"DETERMINATION AND FINDINGS "AUTHORITY TO NEGOTIATE CONTRACTS UNDER ASPR 3-202 -PUBLIC EXIGENCY-. "UPON THE BASIS OF THE FOLLOWING FINDINGS AND DETERMINATION, THE PROPOSED PROCUREMENT MAY BE NEGOTIATED PURSUANT TO THE AUTHORITY OF 10 U.S.C. 2304 (A) (2) -PUBLIC EXIGENCY-.

"FINDINGS "I HEREBY FIND:

"1. MIPR A252D-7212-5000 IS FOR PROCUREMENT OF 242,550 LY OF CLOTH, TWILL, POLYAMIDE, HIGH TEMPERATURE RESISTANT AND IS ESTIMATED TO COST $1,091,475.00.

"2. SUBJECT PR CARRIES PRIORITY 02. THERE IS A CRITICAL AND URGENT NEED FOR THIS MATERIAL WHICH IS TO BE UTILIZED IN THE MANUFACTURE OF PROTECTIVE COVERALLS FOR USE IN SOUTHEAST ASIA. EARLIEST POSSIBLE DELIVERY HAS BEEN REQUESTED. PRIORITY CODE -ENSURE- ASSIGNED.

"3. THE USE OF FORMAL ADVERTISING WOULD BE IMPRACTICABLE EVEN IF KEPT TO A MINIMUM. ONLY BY NEGOTIATION WITH CAREFULLY SELECTED FIRMS WILL IT BE POSSIBLE TO OBTAIN AN EARLY DELIVERY TO MEET THE REQUIREMENTS FOR THIS ITEM.

"4. THE PRICE, RATE OR CHARGE FOR SUPPLIES TO BE PROCURED IS NOT FIXED BY LAW OR REGULATING AUTHORITY.

"DETERMINATION "IN VIEW OF THE ABOVE, I HEREBY DETERMINE THAT NEGOTIATION FOR THIS PROCUREMENT IS IN THE BEST INTEREST OF THE GOVERNMENT. PURSUANT TO THE AUTHORITY OF 10 U.S.C. 2304 (A) (2) PUBLIC EXIGENCY-. THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING; THEREFORE, NEGOTIATIONS WILL BE CONDUCTED WITH CAREFULLY SELECTED MANUFACTURERS CONSIDERED CAPABLE TO PRODUCE THIS SPECIALIZED MATERIAL.' BY TELEGRAMS DATED AUGUST 3, 1967, THE CONTRACTING OFFICER SOLICITED PROPOSALS FROM THE FOLLOWING NAMED CONCERNS: BIBB MANUFACTURING COMPANY, MACON, GEORGIA BURLINGTON INDUSTRIAL FABRICS COMPANY, NEW YORK, NEW YORK J.P. STEVENS COMPANY, INC., NEW YORK, NEW YORK BEAUNIT MILLS, INC., NEW YORK, NEW YORK HE ALSO ADVISED THE SOLE SUPPLIER OF THE SPECIFIED NOMEX FIBER, E.I. DUPONT AND COMPANY, TO HAVE THE NECESSARY FIBER READY FOR THE CONCERN AWARDED THE CONTRACT. THE NAMED COMPANIES WERE INFORMED THAT DELIVERIES ON THE MATERIAL WERE DESIRED AS QUICKLY AS POSSIBLE BUT NO LATER THAN "80,850 YEARS - 60 DAYS, 80,850 YARDS - 90 DAYS AND 80,850 120 DAYS AFTER DATE OF AWARD, FOB ORIGIN, FREIGHT PREPAID, AT PHILADELPHIA; OFFERS ACCEPTED UNTIL AUGUST 10, 1967.' THE CONTRACTING OFFICER ADVISES THAT HE DECIDED TO SOLICIT ONLY THESE FIRMS BECAUSE AS MANUFACTURERS THEY COULD DIRECTLY CONTROL PRODUCTION OF THE WEAVING AND FINISHING OPERATIONS, WHICH WAS DEEMED NECESSARY BECAUSE OF THE CHANGES IN SPECIFICATIONS FROM THE NAVY NOMEX TO THE ARMY NOMEX LISTED AS FOLLOWS:

NAVY ARMY WEIGHT 3.3 OZ.

4.2 OZ. WEAVE BROKEN HERRINGBONE 2 UP - 2 DOWN

TWILL PER FIGURE 1 LEFTHAND TWILL COLOR GREEN MATCHING NAVY OG 106 MATCHING

3432 SAMPLE YARNS PER INCH; 107 104 MIN. WARP FILLING 75 62 BREAKING STRENGTH, RAVEL STRIP

GRAB METHOD LBS., MIN. WARP 90 180 FILLING

60 180 TEARING STRENGTH,TONGUE METHOD ELMENDORF S., MIN. WARP 6.0 15 FILLING 5.0

15 AIR PERMEABILITY, 200 120 CU. FT. AIR/MIN/FT AT 1/2 INCH WATER PRESSURE, MIN.

BY TELEGRAM DATED AUGUST 10, 1967, BIBB MANUFACTURING COMPANY SUBMITTED THE ONLY BID RECEIVED, OFFERING TO SUPPLY THE REQUIRED MATERIAL WITHIN THE STATED DELIVERY SCHEDULE AT $4.63 PER YARD. THIS OFFER WAS COMPARED WITH PRICES RECEIVED ON PRIOR AWARDS SPECIFYING NAVY NOMEX AND WITH PRICES OF COMMERCIAL SALES OF A NEARLY IDENTICAL PRODUCT. ON THE BASIS OF THIS COMPARISON THE CONTRACTING OFFICER DETERMINED THE BIBB MANUFACTURING COMPANY'S OFFER TO BE WELL WITHIN THE PRICE RANGE EXPECTED AND ON AUGUST 18, 1967, OBTAINED APPROVAL TO MAKE AN AWARD TO THE COMPANY.

YOU PROTEST YOUR EXCLUSION FROM THE LIST OF COMPANIES SOLICITED FOR THE REQUIREMENT, POINTING OUT THAT YOU HOLD A CURRENT CONTRACT FOR THE IDENTICAL ITEM SOUGHT AND HAVE SUPPLIED 400,000 YARDS OF NAVY NOMEX CLOTH IN A PREVIOUS PROCUREMENT. YOU ALSO CONTEND THAT THE CONTRACTING OFFICER INFORMED YOU THAT ANY PROTEST TO HIM WOULD BE UNAVAILING WHEN YOU DISCUSSED THE INSTANT PROCUREMENT WITH HIM PRIOR TO AWARD ON AUGUST 22, 1967.

WHEN A PURCHASE REQUEST FOR SUPPLIES CARRIES AN ISSUE PRIORITY DESIGNATOR 1 (01) THROUGH 6 (06) UNDER THE UNIFORM MATERIEL MOVEMENT AND ISSUE PRIORITY SYSTEM (UMMIPS), ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3- 202.2 (VI) AND 3-202.3 PROVIDE THAT THE "PUBLIC EXIGENCY" EXCEPTION TO THE REQUIREMENT OF FORMAL ADVERTISING, CONTAINED IN 10 U.S.C. 2304 (A) (2), PREVIOUSLY NOTED, MAY BE USED WITHOUT FURTHER JUSTIFICATION. ACCORDINGLY, WE WOULD NOT BE WARRANTED IN CRITICIZING THE CONTRACTING OFFICER'S DECISION TO NEGOTIATE THE INSTANT REQUIREMENT.

THE CONTRACTING OFFICER'S DECISION IN RESTRICTING SOLICITATION TO THE FOUR CONCERNS PREVIOUSLY CITED MUST BE EXAMINED WITH REGARD TO THE REQUIREMENT CONTAINED IN 10 U.S.C. 2304 (G) WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"IN ALL NEGOTIATED PROCUREMENTS IN EXCESS OF $2,500 IN WHICH RATES OR PRICES ARE NOT FIXED BY LAW OR REGULATION AND IN WHICH TIME OF DELIVERY WILL PERMIT, PROPOSALS SHALL BE SOLICITED FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES CONSISTENT WITH THE NATURE AND REQUIREMENTS OF THE SUPPLIES OR SERVICES TO BE PROCURED. * * *.' THIS PROVISION GIVES THE CONTRACTING OFFICER CONSIDERABLE DISCRETION IN DETERMINING THE QUALIFICATIONS BIDDERS MUST POSSESS AND IN LIMITING HIS SOLICITATION OF OFFERS TO THOSE SOURCES WHICH MEET SUCH QUALIFICATIONS. B-158538, JUNE 9, 1966. AS PREVIOUSLY MENTIONED THE PROCURING CENTER ADVISES THAT SOLICITATION WAS RESTRICTED TO MANUFACTURERS WHO WOULD HAVE DIRECT CONTROL OVER ALL PHASES OF PRODUCTION IN AN EFFORT TO INSURE COMPLIANCE WITH THE CHANGED SPECIFICATIONS AND TO OBTAIN PROMPT DELIVERY OF THE CLOTH WHICH WAS URGENTLY REQUIRED. IN VIEW OF BOTH THE URGENT NEED AND THE REVISED SPECIFICATIONS WE CANNOT CONCLUDE THAT THIS DETERMINATION WAS UNREASONABLE, AND SINCE THE RECORD INDICATES YOUR FIRM DID NOT MEET THE QUALIFICATION WE SEE NO BASIS FOR CONCLUDING THAT YOU SHOULD HAVE BEEN SOLICITED.

REGARDING PRIOR AWARDS MADE TO YOU FOR PRODUCTION OF SIMILAR ARTICLES, THE CONTRACTING OFFICER REPORTS THAT THE CENTER HAD AWARDED YOU A CONTRACT FOR THE DELIVERY OF A TOTAL OF 400,000 YARDS OF NAVY NOMEX CLOTH. HOWEVER, THIS CLOTH WAS MADE TO DIFFERENT SPECIFICATIONS THAN THE ARMY NOMEX, AND YOU WERE DELINQUENT IN DELIVERIES THROUGHOUT THE PERIOD OF THE CONTRACT. THE CENTER HAS KNOWLEDGE OF ONLY ONE OTHER CONTRACT AWARDED TO YOU FOR THE PRODUCTION OF NOMEX CLOTH. IT REQUIRES THE PRODUCTION OF 1500 YARDS OF ARMY NOMEX CLOTH FOR DELIVERY BY NOVEMBER 29, 1967, OR WITHIN 112 DAYS AFTER AWARD. HOWEVER, IT DOES NOT APPEAR THAT THE CONTRACTING OFFICER HAD NOTICE OF THIS CONTRACT UNTIL AFTER THE CLOSING DATE FOR RECEIPT OF OFFERS. SINCE IT DOES NOT APPEAR THAT DELIVERIES ARE YET DUE UNDER THAT CONTRACT AND SINCE THE INSTANT DELIVERY SCHEDULE REQUIRES DELIVERY OF 242,550 YARDS OF CLOTH WITHIN 120 DAYS AFTER AWARD, WE CANNOT CONCLUDE THAT YOUR PRIOR EXPERIENCE WITH THE REQUIRED CLOTH WOULD HAVE ESTABLISHED YOUR QUALIFICATION FOR PARTICIPATION IN THE INSTANT PROCUREMENT.

CONCERNING YOUR ALLEGATIONS REGARDING THE CONVERSATION OF AUGUST 22, 1967, THE CONTRACTING OFFICER DENIES THAT HE TOLD YOU A PROTEST TO HIM OF THE INSTANT AWARD WOULD BE UNAVAILING; OR THAT YOU INDICATED ANY INTENTION TO HIM OF PROTESTING DECISIONS MADE IN THIS PROCUREMENT UNTIL AFTER AWARD WAS MADE ON AUGUST 23, 1967. WHERE THERE IS A DISPUTE OF THIS NATURE, WHICH CANNOT BE RESOLVED BY THE WRITTEN RECORD, IT IS THE LONG-ESTABLISHED RULE OF OUR OFFICE TO ACCEPT THE FACTS AS REPORTED BY THE ADMINISTRATIVE OFFICE, UNLESS THERE IS SUFFICIENT EVIDENCE TO ESTABLISH BEYOND ANY REASONABLE DOUBT THAT THE REPORTED FACTS ARE INCORRECT. 37 COMP. GEN. 568. WE DO NOT FIND SUCH EVIDENCE IN THE PRESENT RECORD.