B-164152, JUN. 7, 1968

B-164152: Jun 7, 1968

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VAN SCHWARTZ: REFERENCE IS MADE TO YOUR LETTER OF APRIL 24. YOUR PROTEST APPARENTLY IS BASED ON THE UNDERSTANDING THAT THE SOLICITATION WAS AN INVITATION FOR BIDS AND THAT AN AWARD SHOULD HAVE BEEN MADE TO YOUR COMPANY AS THE LOWEST BIDDER. THE SOLICITATION ON ITS FACE WAS CLASSIFIED AS A NEGOTIATED PROCUREMENT SUBJECT TO THE PROCEDURES AND REQUIREMENTS OF SECTION III OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) RATHER THAN AS A FORMALLY ADVERTISED PROCUREMENT UNDER SECTION II OF ASPR. THE NAVY SHIPS PARTS CONTROL CENTER HAS ADVISED US THAT TYPE T3A TESTER- COMPARATORS PROCURED UNDER THE SOLICITATION ARE MANUFACTURED BY MANSFIELD AND GREEN. TYPE T3A" IN THE SOLICITATION SPECIFICATION WAS INTENDED TO INDICATE TESTERS OF THAT MANUFACTURE.

B-164152, JUN. 7, 1968

TO DR. ZOLLY C. VAN SCHWARTZ:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 24, 1968, REGARDING NAVY SHIPS PARTS CONTROL CENTER SOLICITATION N00104-68-R-VN74 (125).

YOUR PROTEST APPARENTLY IS BASED ON THE UNDERSTANDING THAT THE SOLICITATION WAS AN INVITATION FOR BIDS AND THAT AN AWARD SHOULD HAVE BEEN MADE TO YOUR COMPANY AS THE LOWEST BIDDER. HOWEVER, THE SOLICITATION ON ITS FACE WAS CLASSIFIED AS A NEGOTIATED PROCUREMENT SUBJECT TO THE PROCEDURES AND REQUIREMENTS OF SECTION III OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) RATHER THAN AS A FORMALLY ADVERTISED PROCUREMENT UNDER SECTION II OF ASPR. THUS, YOUR PROTEST MUST BE VIEWED AS ONE AGAINST AN AWARD MADE PURSUANT TO THE LEGAL AND REGULATORY REQUIREMENTS FOR THE NEGOTIATION OF CONTRACTS.

THE NAVY SHIPS PARTS CONTROL CENTER HAS ADVISED US THAT TYPE T3A TESTER- COMPARATORS PROCURED UNDER THE SOLICITATION ARE MANUFACTURED BY MANSFIELD AND GREEN, INC., AND THAT THE DESIGNATION OF ,TYPE T3A" IN THE SOLICITATION SPECIFICATION WAS INTENDED TO INDICATE TESTERS OF THAT MANUFACTURE. ALTHOUGH THE SOLICITATION SHOULD HAVE PROVIDED, IN EFFECT, THAT ONLY MANSFIELD AND GREEN EQUIPMENT WOULD MEET THE NEEDS OF THE GOVERNMENT, THE CENTER HAS ADVISED THAT THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY ON FEBRUARY 23, 1968, AND THAT THE SYNOPSIS MADE REFERENCE TO NOTE NO. 26 IN THAT ISSUE OF THE COMMERCE BUSINESS DAILY WHICH STATED:

"COMPLETE DATA NOT AVAILABLE. AVAILABLE SPECIFICATIONS, PLANS OR DRAWINGS RELATING TO THE PROCUREMENT DESCRIBED, DO NOT FULLY PROVIDE ALL NECESSARY MANUFACTURING AND CONSTRUCTION DETAIL.'

THIS NOTE WAS INTENDED TO ADVISE INTERESTED OFFERORS THAT THE GOVERNMENT DID NOT POSSESS ADEQUATE SPECIFICATIONS TO PROCURE TESTERS OTHER THAN THOSE MANUFACTURED BY MANSFIELD AND GREEN, INC. FURTHER, THE CENTER HAS ADVISED THAT, PRIOR TO AWARD TO MANSFIELD AND GREEN, THE PROCUREMENT WAS REVIEWED AND IT WAS DETERMINED THAT ITS TESTER IS THE ONLY PORTABLE TESTER THAT HAS BEEN DESIGNED AND ACCEPTED TO TEST PRIMARY AND RELATED COOLANT SYSTEMS OF NUCLEAR-POWERED PROPULSION PLANTS.

THE CENTER HAS ADVISED THAT THE PROCUREMENT WAS NEGOTIATED PURSUANT TO 10 U.S.C. 2304 (A) (10). THAT SECTION PROVIDES THAT CONTRACTS MAY BE NEGOTIATED IF FOR PROPERTY FOR WHICH IT IS IMPRACTICABLE TO OBTAIN COMPETITION. WHERE, AS HERE, A CONTRACTING OFFICER HAS MADE A DETERMINATION THAT A CONTRACT SHOULD BE NEGOTIATED UNDER THE AUTHORITY OF 10 U.S.C. 2304 (A) (10), SUCH A DETERMINATION IS "FINAL" UNDER 10 U.S.C. 2310 (B). ACCORDINGLY, WHEN SUCH A DETERMINATION HAS BEEN MADE TO NEGOTIATE A CONTRACT UNDER EXCEPTION "10," OUR OFFICE MAY NOT QUESTION THE RESULTING AWARD.