B-165005, AUG. 27, 1968

B-165005: Aug 27, 1968

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HIGGINS: REFERENCE IS MADE TO YOUR TELEGRAM OF AUGUST 7. THE BASIS OF YOUR PROTEST IS THAT YOUR COMPANY CAN MEET THE DELIVERY SCHEDULE AND SHOULD THEREFORE BE ALLOWED TO COMPETE FOR THE PROCUREMENT. THE NAVAL ELECTRONIC SYSTEMS COMMAND HAS ADVISED THAT THE PROCUREMENT IS ASSIGNED AN 02 PRIORITY DESIGNATOR BECAUSE OF URGENT SOUTHEAST ASIA AND SPANISH NAVY REQUIREMENTS FOR THE EQUIPMENT AND THAT THE REQUEST FOR PROPOSALS WAS ISSUED PURSUANT TO 10 U.S.C. 2304 (A) (2). THE EXCEPTION WHICH PERMITS NEGOTIATION INSTEAD OF FORMAL ADVERTISING WHERE THERE IS A PUBLIC EXIGENCY. PROVIDES THAT WHEN AN 02 PRIORITY DESIGNATOR IS ASSIGNED TO A PROCUREMENT. SUCH DETERMINATION IS FINAL UNDER 10 U.S.C. 2310 (B).

B-165005, AUG. 27, 1968

TO MR. RICHARD A. HIGGINS:

REFERENCE IS MADE TO YOUR TELEGRAM OF AUGUST 7, 1968, PROTESTING THE SOLE -SOURCE PROCUREMENT OF 25 REFLECTOR-TYPE ANTENNAS UNDER REQUEST FOR PROPOSALS N00039-69-R-2003/S) ISSUED BY THE NAVAL ELECTRONIC SYSTEMS COMMAND.

THE REQUEST FOR PROPOSALS REQUIRED THAT THE ANTENNAS BE DELIVERED AS FOLLOWS: 5 WITHIN 4 MONTHS AFTER THE EFFECTIVE DATE OF THE CONTRACT; 10 WITHIN 5 MONTHS AFTER THE EFFECTIVE DATE OF THE CONTRACT; AND 10 WITHIN 6 MONTHS AFTER THE EFFECTIVE DATE OF THE CONTRACT.

THE BASIS OF YOUR PROTEST IS THAT YOUR COMPANY CAN MEET THE DELIVERY SCHEDULE AND SHOULD THEREFORE BE ALLOWED TO COMPETE FOR THE PROCUREMENT.

THE NAVAL ELECTRONIC SYSTEMS COMMAND HAS ADVISED THAT THE PROCUREMENT IS ASSIGNED AN 02 PRIORITY DESIGNATOR BECAUSE OF URGENT SOUTHEAST ASIA AND SPANISH NAVY REQUIREMENTS FOR THE EQUIPMENT AND THAT THE REQUEST FOR PROPOSALS WAS ISSUED PURSUANT TO 10 U.S.C. 2304 (A) (2), THE EXCEPTION WHICH PERMITS NEGOTIATION INSTEAD OF FORMAL ADVERTISING WHERE THERE IS A PUBLIC EXIGENCY. ASPR 3-202.2 (VI), WHICH IMPLEMENTS 10 U.S.C. 2304 (A) (2), PROVIDES THAT WHEN AN 02 PRIORITY DESIGNATOR IS ASSIGNED TO A PROCUREMENT, THE "PUBLIC EXIGENCY" EXCEPTION CAN BE USED. FURTHER, WHEN A CONTRACTING OFFICER HAS MADE A DETERMINATION THAT A CONTRACT SHOULD BE NEGOTIATED ON A "PUBLIC EXIGENCY" BASIS UNDER THE AUTHORITY OF 10 U.S.C. 2304 (A) (2), SUCH DETERMINATION IS FINAL UNDER 10 U.S.C. 2310 (B).

ALTHOUGH YOUR COMPANY MIGHT BE ABLE TO MEET THE DELIVERY SCHEDULE IN THE REQUEST FOR PROPOSALS, THE NAVAL ELECTRONIC SYSTEMS COMMAND HAS INDICATED THAT, IF AN AWARD WERE MADE TO YOUR COMPANY, IT WOULD REQUIRE A PREPRODUCTION UNIT BECAUSE YOUR COMPANY HAS NEVER PRODUCED THE SUBJECT EQUIPMENT FOR THE NAVY. IT IS INDICATED FURTHER THAT IF A PREPRODUCTION UNIT WERE REQUIRED PAST EXPERIENCE HAS DEMONSTRATED THAT IT WOULD BE UNREALISTIC TO REQUIRE THE FIRST PRODUCTION UNITS TO BE DELIVERED WITHIN 4 MONTHS OF THE EFFECTIVE DATE OF THE CONTRACT AS REQUIRED IN THE REQUEST FOR PROPOSALS.

THE COMMAND HAS ADVISED THAT LAPOINTE INDUSTRIES PREVIOUSLY HAS PRODUCED A PREPRODUCTION UNIT OF THE ANTENNA AND IS A RECENT PRIOR PRODUCER OF PRODUCTION UNITS. THEREFORE, THE COMMAND BELIEVES THAT THE DELIVERY SCHEDULE IS APPROPRIATE FOR THAT COMPANY.

IT IS A REQUIREMENT OF 10 U.S.C. 2304 (G) AND ASPR 3-202.2 THAT EVEN WHERE AUTHORITY EXISTS TO NEGOTIATE PROCUREMENTS, 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 CASE, IT APPEARS THAT THE CONTRACTING OFFICE CONSIDERS THAT LAPOINTE INDUSTRIES IS THE ONLY SOURCE QUALIFIED TO MEET THE GOVERNMENT'S REQUIREMENTS WITHIN THE TIME PROVIDED.

IN THE CIRCUMSTANCES, THERE DOES NOT APPEAR TO BE ANY LEGAL BASIS FOR QUESTIONING THE COMMAND'S ACTION IN THIS MATTER. ACCORDINGLY, YOUR PROTEST IS DENIED.