B-163099, APR. 19, 1968

B-163099, APR. 19, 1968

TO DORSETT ELECTRONICS, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 13, 1967, AND TO YOUR LETTER AND ENCLOSURES DATED DECEMBER 22, 1967, PROTESTING A PROCUREMENT BY THE NAVAL AIR SYSTEMS COMMAND (NAVAIR) FROM OKLAHOMA AEROTRONICS, INC., UNDER REQUEST FOR QUOTATIONS (RFQ) NO. 0715-68 ON A SOLE-SOURCE BASIS.

THE PROCUREMENT, LISTED IN THE COMMERCE BUSINESS DAILY ON NOVEMBER 21, 1967 (SYNOPSIS NO. 241-68), CALLED FOR 1,370 UNITS DESCRIBED AS TRANSMITTER GROUP, TELEMETRIC DATA, OA-1208/A DPN. A DETERMINATION AND FINDINGS JUSTIFYING NEGOTIATION OF THE CONTRACT WAS MADE BY THE CONTRACTING OFFICER ON NOVEMBER 1, 1967, AND IT READS AS FOLLOWS: "UPON THE BASIS OF THE FOLLOWING FINDINGS AND DETERMINATION, THE PROPOSED CONTRACT DESCRIBED BELOW MAY BE NEGOTIATED WITHOUT FORMAL ADVERTISING PURSUANT TO THE AUTHORITY OF 10 U.S.C. 2304 (A) (2).

"FINDINGS "1. THE PROPOSED CONTRACT WILL PROVIDE MATERIALS AND SERVICES FOR THE CONTRACTOR, OKLAHOMA AEROTRONICS, INC., HARTSHORNE, OKLAHOMA, TO FURNISH APPROXIMATELY 1370 TRANSMITTER GROUPS, TELEMETRIC DATA OA-1208/A DPN; DATA; AND SPARE PARTS FOR THE SPARROW AIM-7E MISSILE. "2. THE PURPOSE OF THE PROCUREMENT IS TO PROVIDE AN ESSENTIAL COMPONENT OF THE SPARROW AIM-7E IN A TIMELY MANNER. THE REQUIREMENT OF 1370 UNITS FOR THE U.S. AIR FORCE IS AUTHORIZED BY USAF MIPR AS-8-263 WHICH CITES PRIORITY DESIGNATOR 05 UNDER THE UNIFORM MATERIAL MOVEMENT AND ISSUE PRIORITY SYSTEM (UMMIPS). THE 05 DESIGNATOR TESTIFIES TO THE URGENCY OF NEED AND IS ONE OF THE ILLUSTRATIVE CIRCUMSTANCES PERMITTING NEGOTIATION REFERENCED BY PARAGRAPH 3-202.2, ASPR. DELIVERIES ARE REQUIRED TO BEGIN FEBRUARY 1968 AND BE COMPLETED OCTOBER 1968. "3. OKLAHOMA AEROTRONICS, INC., IS THE ONLY QUALIFIED PRESENT PRODUCER; IS CURRENTLY PERFORMING UNDER USAF CONTRACT F33657-67-C-0212; AND IS THE ONLY KNOWN SOURCE ABLE TO MEET INITIAL AND FINAL DELIVERY SCHEDULES. "4. THE USE OF FORMAL ADVERTISING, INCLUDING TWO-STEP FORMAL ADVERTISING, IS IMPRACTICABLE BECAUSE THE PROCEDURES INCIDENT THERETO WOULD UNDULY DELAY THE ACQUISITION OF THIS URGENTLY NEEDED MATERIAL.

"DETERMINATION "THE USE OF A NEGOTIATED CONTRACT, WITHOUT FORMAL ADVERTISING, IS JUSTIFIED BECAUSE THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO FORMAL ADVERTISING.'

AS STATED ABOVE, AN 05 PRIORITY DESIGNATOR WAS ASSIGNED TO THIS PROCUREMENT. PARAGRAPH 3-202.3 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) STATES THAT A DETERMINATION AND FINDINGS AUTHORIZING NEGOTIATION NEED ONLY STATE THE EXISTENCE OF A PRIORITY DESIGNATOR OF 1 THROUGH 6 IN ORDER TO JUSTIFY USE OF THE PUBLIC EXIGENCY EXCEPTION. FURTHER, A DETERMINATION AND FINDINGS UNDER THAT EXCEPTION IS MADE FINAL BY 10 U.S.C. 2310 (B), AND IS THEREFORE NOT SUBJECT TO QUESTION BY OUR OFFICE. WHILE THE PUBLIC EXIGENCY EXCEPTION DOES NOT, IN AND OF ITSELF AUTHORIZE SOLE-SOURCE PROCUREMENT, THE VALID USE OF THAT EXCEPTION RESERVES A CONSIDERABLE AMOUNT OF DISCRETION IN THE CONTRACTING OFFICER, AND OUR OFFICE WILL NOT QUESTION THE CONTRACTING OFFICER'S DECISION TO MAKE A SOLE-SOURCE AWARD UNLESS IT IS CLEAR FROM THE WRITTEN RECORD THAT HE HAS ABUSED THE DISCRETION VESTED IN HIM IN AN ARBITRARY OR CAPRICIOUS MANNER. SEE 44 COMP. GEN. 590; B-158134, MARCH 3, 1966; AND B-161224, AUGUST 9, 1967.

AS INDICATED ABOVE, DELIVERIES FOR THE PROCUREMENT WERE REQUIRED TO COMMENCE IN FEBRUARY 1968. OKLAHOMA HAD SUCCESSFULLY PRODUCED THE UNITS IN THE PAST AND WAS CURRENTLY DELIVERING UNITS UNDER AN AIR FORCE CONTRACT. ALTHOUGH YOUR COMPANY WAS ALSO UNDER CONTRACT TO DELIVER TELEMETER UNITS TO THE NAVY, IT HAD NOT DELIVERED ANY ACCEPTABLE UNITS. YOU HAVE CLAIMED THAT THE FAILURE TO DELIVER OR PASS FIRST ARTICLE TESTING WAS DUE TO DELAY BY THE NAVY IN PROVIDING AN ADEQUATE DATA PACKAGE. THE NAVY HAS ADVISED THAT SINCE THE INFORMATION REQUESTED BY YOUR COMPANY INVOLVED A THIRD PARTY, RAYTHEON, THE DESIGN AGENT, CONSIDERABLE COORDINATION WAS REQUIRED AND THE REVISED PACKAGE WAS NOT COMPLETED UNTIL THE END OF NOVEMBER 1967. IT IS REPORTED THAT A NEW DOCUMENTATION PACKAGE WAS FORWARDED TO YOUR COMPANY ON DECEMBER 19, 1967. ALSO, WE ARE ADVISED THAT THE NEW DOCUMENTATION PACKAGE DID NOT CHANGE, ALTER OR IMPROVE THE DESIGN FROM THAT WHICH PREVIOUSLY HAD BEEN PROVIDED YOUR COMPANY IN LETTERS OF JULY 25, 1967, AND SEPTEMBER 5, 1967.

HOWEVER, REGARDLESS OF THE RESPONSIBILITY FOR THE DELAYS IN DELIVERIES, THE FACT REMAINS THAT URGENT DELIVERIES UNDER THE NEGOTIATED CONTRACT COMMENCED IN FEBRUARY 1968, AND IT WAS DETERMINED THAT ONLY OKLAHOMA AEROTRONICS COULD HAVE COMMENCED DELIVERIES AT THAT TIME. ACCORDINGLY, THERE WAS NO ARBITRARY OR CAPRICIOUS ABUSE OF DISCRETION IN THE CONTRACTING OFFICER'S DETERMINATION TO MAKE A SOLE SOURCE AWARD TO OKLAHOMA AEROTRONICS AND, THEREFORE, NO BASIS EXISTS FOR OUR OFFICE TO DISTURB THE AWARD.

IN ANY EVENT, NAVAIR HAS ADVISED THAT A DECISION WAS MADE TO ORDER ONLY 960 OF THE 1,370 UNITS ORIGINALLY CONTEMPLATED AND TO COMBINE THE BALANCE OF 410 UNITS WITH ADDITIONAL REQUIREMENTS INTO ONE PROCUREMENT WHICH WILL BE FORMALLY ADVERTISED SHORTLY. HENCE, YOUR COMPANY SHOULD HAVE AN OPPORTUNITY TO COMPETE FOR FURNISHING TELEMETER UNITS HAVING DELIVERY DATES BEGINNING IN JULY 1968.