B-163362, JUN. 20, 1968

B-163362: Jun 20, 1968

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N00151-68-B-1438 BUT SUBSEQUENTLY CANCELLED ON THE BASIS THAT THE IFB WAS DEFECTIVE. THAT YOU HAVE NOT BEEN CONTACTED CONCERNING THE PROCUREMENT NOR HAS THE CONTRACTING OFFICER ACKNOWLEDGED YOUR LETTER OF MARCH 29 MAKING INQUIRY REGARDING THE MATTER. HE INQUIRED OF THE REQUISITIONING OFFICE REGARDING THE PROCUREMENT AND WAS ADVISED THAT THE PROCUREMENT HAS BEEN CANCELLED BECAUSE OF FUNDING PROBLEMS. THE CONTRACTING OFFICER MAKES THE FOLLOWING STATEMENTS: "WHEN THE LETTER DATED 29 MARCH 1968 FROM THE ARO CORPORATION WAS RECEIVED BY THE CONTRACTING OFFICER. THIS LETTER WAS TURNED OVER TO THE BUYER WITH INSTRUCTIONS THAT HE RESPOND BY CALLING THE VENDOR AND GIVING HIM A REPORT ON THE STATUS OF THE PROCUREMENT OF THESE PNEUMATIC TOOLS.

B-163362, JUN. 20, 1968

TO THE ARO CORPORATION:

WE REFER TO YOUR LETTER OF MAY 6, 1968, CONCERNING A PROCUREMENT OF PNEUMATIC DRILLS WHICH THE PHILADELPHIA NAVAL SHIPYARD ADVERTISED IN DECEMBER 1967 UNDER INVITATION FOR BIDS (IFB) NO. N00151-68-B-1438 BUT SUBSEQUENTLY CANCELLED ON THE BASIS THAT THE IFB WAS DEFECTIVE.

BY LETTER DATED FEBRUARY 13, 1968, B-163362, IN REPLY TO YOUR PROTEST FILED IN JANUARY 1968 AGAINST THE ALLEGED INDEFINITE LANGUAGE IN THE ADVERTISED SPECIFICATIONS, WE ADVISED YOU OF THE IFB CANCELLATION. FURTHER ADVISED YOU THAT THE DEPARTMENT OF THE NAVY HAD STATED ITS INTENT TO INVITE YOU TO PARTICIPATE IN A CONTEMPLATED COMPETITIVE NEGOTIATION OF THE PROCUREMENT NEED.

YOU COMPLAIN, IN YOUR LETTER OF MAY 6, THAT YOU HAVE NOT BEEN CONTACTED CONCERNING THE PROCUREMENT NOR HAS THE CONTRACTING OFFICER ACKNOWLEDGED YOUR LETTER OF MARCH 29 MAKING INQUIRY REGARDING THE MATTER. ACCORDINGLY, YOU ASSERT THAT SUCH ACTION BY THE DEPARTMENT OF THE NAVY CONSTITUTES RETALIATION AGAINST YOU BECAUSE OF YOUR PROTEST.

IN A REPORT DATED JUNE 3, 1968, THE CONTRACTING OFFICER STATES THAT PURSUANT TO YOUR LETTER OF MAY 6, HE INQUIRED OF THE REQUISITIONING OFFICE REGARDING THE PROCUREMENT AND WAS ADVISED THAT THE PROCUREMENT HAS BEEN CANCELLED BECAUSE OF FUNDING PROBLEMS.

WITH REGARD TO THE CONTRACTING OFFICER'S FAILURE TO PROMPTLY ACKNOWLEDGE YOUR LETTER OF MARCH 29, THE CONTRACTING OFFICER MAKES THE FOLLOWING STATEMENTS:

"WHEN THE LETTER DATED 29 MARCH 1968 FROM THE ARO CORPORATION WAS RECEIVED BY THE CONTRACTING OFFICER, THIS LETTER WAS TURNED OVER TO THE BUYER WITH INSTRUCTIONS THAT HE RESPOND BY CALLING THE VENDOR AND GIVING HIM A REPORT ON THE STATUS OF THE PROCUREMENT OF THESE PNEUMATIC TOOLS. THE BUYER ATTEMPTED TO CONTACT THE REQUISITIONER CONCERNING THE NEW REQUISITION BUT COULD NOT CONTACT HIM THE DAY HE CALLED. BECAUSE OF THE PRESSURES OF CURRENT WORKLOAD AND THE FACT THAT THE BUYER WAS ABOUT TO LEAVE THIS ACTIVITY TO ATTEND COURSES AT THE UNITED STATES ARMY LOGISTICS MANAGEMENT CENTER, FORT LEE, VIRGINIA, HE DID NOT RESPOND TO THE INQUIRY CONTAINED IN AFORESAID LETTER. THE BUYER WAS AT FORT LEE FROM 7 APRIL 1968 UNTIL HE RETURNED TO THIS ACTIVITY ON 13 MAY 1968. A REPLY DATED 31 MAY 1968 HAS BEEN MAILED TO THE ARO CORPORATION.'

FINALLY, THE CONTRACTING OFFICER DENIES THAT THERE HAS BEEN ANY FORM OF RETALIATION BY THE PROCURING ACTIVITY AGAINST ANY PROTESTING CONTRACTOR AND STATES THAT THE ACTIVITY WILL CONTINUE ITS PRACTICE OF SOLICITING ALL KNOWN RESPONSIBLE VENDORS WHO CAN MEET ITS REQUIREMENTS. WITH SPECIFIC REFERENCE TO THE PNEUMATIC TOOLS PROCUREMENT, IT IS STATED THAT IF A (NEW) REQUISITION IS RECEIVED FOR THE ITEMS YOU WILL BE SOLICITED AND IF YOU SUBMIT THE LOWEST RESPONSIVE BID YOU WILL RECEIVE THE CONTRACT AWARD.

WHILE THE FOREGOING INDICATES THAT THE DELAY BY THE PROCURING ACTIVITY IN RESPONDING TO YOUR LETTER OF MARCH 29 WAS UNREASONABLE, WE ARE UNABLE TO CONCLUDE THAT SUCH ACTION OR ANY OF THE OTHER ACTIONS WHICH HAVE BEEN TAKEN BY THE PROCURING ACTIVITY WERE PROMPTED BY ANY INTENT TO TAKE RETALIATORY MEASURES AGAINST YOU. IN THE LIGHT OF THE CONTRACTING OFFICER'S STATEMENTS CONCERNING THE INTENT OF THE PROCURING ACTIVITY TO INVITE YOU TO PARTICIPATE IN ANY PROCUREMENT OF THE ITEMS IN QUESTION AND OF THE PRACTICE OF THE ACTIVITY TO SOLICIT ALL KNOWN RESPONSIBLE VENDORS WHO CAN MEET ITS REQUIREMENTS, NO FURTHER ACTION BY THIS OFFICE APPEARS TO BE REQUIRED AT THIS TIME.