B-165441, JAN. 15, 1969

B-165441: Jan 15, 1969

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SOLICITATIONS WERE ISSUED TO 46 FIRMS AND THE PROCUREMENT WAS SYNOPSIZED IN THE CMMERCE BUSINESS DAILY AS REQUIRED BY ASPR 1-1003.1. NINE RESPONSES WERE RECEIVED BY THE CLOSING DATE FOR THE RECEIPT OF OFFERS. AWARD WAS MADE TO CHIMERA CORPORATION PURSUANT TO THIS SOLICITATION. WILL TREAT EACH OF THEM IN THE ORDER PRESENTED BEGINNING WITH YOUR CONTENTION THAT THE TIME BETWEEN ISSUANCE OF THE SOLICITATION AND RECEIPT OF OFFERS. WAS INADEQUATE FOR THE PREPARATION OF OFFERS. YOU SUGGEST THAT A PROPERLY DRAFTED SOLICITATION WOULD HAVE PERMITTED NO LESS THAN 30 DAYS FOR BID PREPARATION. ALLOWS A BIDDING TIME OF LESS THAN 30 DAYS IN CASES WHERE THE PROCUREMENT NEED IS URGENT. THE BIDDING TIME IN THIS CASE WAS 19 DAYS.

B-165441, JAN. 15, 1969

TO KURZ AND ROOT COMPANY, INCORPORATED:

WE REFER AGAIN TO YOUR LETTER OF OCTOBER 14, 1968, ALLEGING THAT REQUEST FOR PROPOSALS NO. DAAK01-69-R-0992, ISSUED SEPTEMBER 26, 1968, BY THE UNITED STATES ARMY MOBILITY AND EQUIPMENT COMMAND, DIRECTORATE OF PROCUREMENT AND PRODUCTION, ST. LOUIS, MISSOURI, TO PROCURE 3228 GENERATOR SETS CONTAINED CONDITIONS UNNECESSARILY RESTRICTING COMPETITION TO THE ONE FIRM PRESENTLY PRODUCING THIS ITEM UNDER A PRIOR CONTRACT, BOGUE ELECTRIC COMPANY.

SOLICITATIONS WERE ISSUED TO 46 FIRMS AND THE PROCUREMENT WAS SYNOPSIZED IN THE CMMERCE BUSINESS DAILY AS REQUIRED BY ASPR 1-1003.1. NINE RESPONSES WERE RECEIVED BY THE CLOSING DATE FOR THE RECEIPT OF OFFERS, OCTOBER 15, 1968. YOUR FIRM, KURZ AND ROOT, DID NOT SUBMIT AN OFFER. DECEMBER 30, 1968, AWARD WAS MADE TO CHIMERA CORPORATION PURSUANT TO THIS SOLICITATION.

YOU PROTEST THE ISSUANCE OF THIS SOLICITATION ON SIX SEPARATE BASES. WILL TREAT EACH OF THEM IN THE ORDER PRESENTED BEGINNING WITH YOUR CONTENTION THAT THE TIME BETWEEN ISSUANCE OF THE SOLICITATION AND RECEIPT OF OFFERS, FROM SEPTEMBER 26 TO OCTOBER 15, WAS INADEQUATE FOR THE PREPARATION OF OFFERS. YOU SUGGEST THAT A PROPERLY DRAFTED SOLICITATION WOULD HAVE PERMITTED NO LESS THAN 30 DAYS FOR BID PREPARATION.

THE PERTINENT REGULATION, ASPR 2-202.1, ALLOWS A BIDDING TIME OF LESS THAN 30 DAYS IN CASES WHERE THE PROCUREMENT NEED IS URGENT. THIS PROCUREMENT BORE A PRIORITY DESIGNATION OF 02, WHICH QUALIFIES IT AS AN URGENT PURCHASE.

THE BIDDING TIME IN THIS CASE WAS 19 DAYS. IN B-157817, DECEMBER 9, 1965, AND B-159971, NOVEMBER 21, 1966, THIS OFFICE APPROVED SOLICITATIONS WHICH HAD BIDDING TIMES OF 21 DAYS AND 18 DAYS, RESPECTIVELY. IT WOULD, THEREFORE, APPEAR THAT THIS SOLICITATION FALLS WITHIN TIME RANGE FOUND TO BE REASONABLE IN OTHER CASES OF THIS TYPE.

FINALLY, REGARDLESS OF THE REGULATIONS AND OUR PRIOR HOLDINGS, THE RESULTS OF THIS SOLICITATION FURNISH EVIDENCE, ON AN AFTER THE FACT BASIS, THAT NINE PROSPECTIVE CONTRACTORS HAD ADEQUATE TIME TO PREPARE AND SUBMIT PROPOSALS. WE, THEREFORE, TAKE NO OBJECTION TO THE TIME PERMITTED FOR THE PREPARATION OF OFFERS IN THIS CASE.

YOU FURTHER CONTEND THAT THE SOLICITATION'S DELIVERY REQUIREMENTS ARE SUCH THAT ONLY A FIRM PRESENTLY TOOLED UP AND PRODUCING THE SETS CAN POSSIBLY HOPE TO SATISFY THEM. SINCE ONLY ONE FIRM, BOGUE ELECTRIC COMPANY, IS SO FAVORABLY SITUATED, YOU SUGGEST THAT THIS SOLICITATION IS IN EFFECT A SOLE-SOURCE PROCUREMENT.

THIS QUESTION OF THE TIME NECESSARY TO SET UP TOOLING AND PREPARE FOR PRODUCTION IS PRIMARILY A TECHNICAL DETERMINATION WITHIN THE SPECIAL COMPETENCE OF THE PROCURING ACTIVITY, AND NOT WITHIN OUR PURVIEW. HOWEVER, IN THIS CASE, WE NEED NOT RELY ON THE ARMY'S JUDGMENT ALONE, FOR THE BID RESULTS CLEARLY SUPPORT THE REASONABLENESS OF THE DELIVERY SCHEDULE. AS NOTED ABOVE, NINE FIRMS RESPONDED TO THE SOLICITATION; OF THESE, FIVE FIRMS OFFERED DELIVERY IN CONFORMANCE WITH THE PROPOSED SCHEDULE CONTAINED IN THE SOLICITATION. OF THESE FIVE, AWARD WAS MADE ON DECEMBER 30, 1968, TO CHIMERA CORPORATION AS THE LOW RESPONSIVE, RESPONSIBLE BIDDER. YOUR CONTENTION THAT THIS SOLICITATION, AND IN PARTICULAR ITS DELIVERY SCHEDULE, WAS DELIBERATELY DRAFTED WITH THE PURPOSE OF EXCLUDING ALL OFFERORS EXCEPT THE ONE FIRM PRESENTLY PRODUCING THE ITEM, BOGUE ELECTRIC, THEREFORE DOES NOT APPEAR TO BE SUPPORTED BY SUBSEQUENT EVENTS. ACCORDINGLY, WE CONCLUDE THAT THE DELIVERY SCHEDULE PROPOSED BY THE GOVERNMENT WAS NOT UNDULY RESTRICTIVE OF COMPETITION.

YOU ALSO PROTEST AGAINST THE CONSOLIDATION OF A PROCUREMENT OF 1957 URGENTLY NEEDED GENERATOR SETS WITH THE PROCUREMENT OF OTHER SETS WHOSE NEED IS NOT SO URGENT. YOU MAINTAIN THAT THE NON-URGENT SETS SHOULD HAVE BEEN PROCURED SEPARATELY UNDER AN ADVERTISED SOLICITATION.

THE ARMY ADVISES THAT THE ENTIRE QUANTITY OF 3,228 GENERATOR SETS BEING PROCURED UNDER THIS SOLICITATION BEARS AN 02 PRIORITY DESIGNATOR. THESE, 2,161 UNITS ARE A REPROCUREMENT OF SETS SCHEDULED FOR DELIVERY UNDER AN EARLIER CONTRACT WHICH WAS DEFAULTED AND 1,067 SETS ARE CURRENT REQUIREMENTS. THUS, IT APPEARS THAT THERE IS NO BASIS FOR YOUR BELIEF THAT THE ARMY IMPROPERLY CONSOLIDATED PURCHASE REQUIREMENTS OF DIFFERING DEGREES OF URGENCY INTO A SINGLE PROCUREMENT BEARING THE PRIORITY OF THE MOST IMPORTANT PORTION. UNDER THESE CIRCUMSTANCES, WE TAKE NO OBJECTION TO THE CONSOLIDATION OF THESE REQUIREMENTS IN ONE PROCUREMENT ACTION.

YOU FURTHER INQUIRE, IF THE SUBJECT PROCUREMENT WAS URGENT, WHY DID IT HAVE "A RELATIVELY LOW PRIORITY OF C-9 RATING, CLASS B"?

THE ARMY REPORTS THAT THE PRIORITY RATING YOU REFER TO IS THAT ASSIGNED UNDER THE PRIORITIES, ALLOCATIONS AND ALLOTMENTS SYSTEM, WHICH IS A PROCEDURE REQUIRING INDUSTRY TO GIVE PREFERENCE TO DESIGNATED GOVERNMENT ORDERS WHEN FOUND TO BE IN THE INTEREST OF NATIONAL DEFENSE. THE PROBLEM OF PRIORITIES WITHIN THE GOVERNMENT, AS AN INTERNAL ADMINISTRATIVE QUESTION, IS GOVERNED BY THE UNIFORM MATERIAL MOVEMENT AND ISSUE PRIORITY SYSTEM, AND UNDER THE LATTER SYSTEM THIS PROCUREMENT BORE THE SECOND MOST URGENT RATING, 02. THE DISCREPANCY BETWEEN THE TWO RATINGS IS EXPLAINED BY THE FACT WHILE THE GOVERNMENT HAD AN URGENT NEED TO ACQUIRE THE SETS, THERE DID NOT APPEAR TO BE ANY QUESTION WHETHER INDUSTRY HAD THE PRODUCTION CAPACITY AND MATERIALS AVAILABLE TO PERFORM THE CONTRACT. ACCORDINGLY, ONLY A RELATIVELY LOW PRIORITY WAS NEEDED TO INSURE THE AVAILABILITY OF THE NECESSARY FACILITIES AND MATERIALS IN INDUSTRY, EVEN THOUGH THE GENERATOR SETS WERE URGENTLY REQUIRED BY THE GOVERNMENT. ACCORDINGLY, WE SEE NO REASON TO QUESTION THE PRIORITIES ASSIGNED TO THIS PROCUREMENT.

IN ADDITION, YOU COMPLAIN THAT PARAGRAPH 3, PAGE 12, OF THE SOLICITATION, GRANTS A PRICE ADVANTAGE TO PRIOR CONTRACTORS BY PERMITTING THEM TO TAKE INTO ACCOUNT THE DATA THEY HAVE FURNISHED THE GOVERNMENT UNDER OTHER CONTRACTS WHEN COMPUTING THEIR DATA COSTS UNDER THE NEW CONTRACT. YOU SUGGEST THAT THIS WORKS TO THE BENEFIT OF THE ONE FIRM PRESENTLY PRODUCING THIS ITEM.

THE ARMY REPORT POINTS OUT THAT UNDER ASPR 3-807-12 (C) THE GOVERNMENT MAY NOT PAY A CONTRACTOR FOR THE SAME DATA TWICE. THIS MEANS THAT THE CONTRACTOR'S COST OF PREPARING DATA FURNISHED UNDER A PRIOR CONTRACT MUST BE DEDUCTED FROM THE CONTRACTOR'S PRESENT PRICE. THUS, IT APPEARS THAT THE PROCURING ACTIVITY HAD NO CHOICE BUT TO ACT IN CONFORMANCE WITH THE REGULATION WHEN IT INCLUDED IN THE PRESENT SOLICITATION A CLAUSE EXCLUDING THE COST OF DATA FURNISHED UNDER PREVIOUS CONTRACTS FROM THE EVALUATED BID PRICE.

FINALLY, YOU PROTEST THAT THE ABSENCE OF PROGRESS PAYMENTS UNNECESSARILY RESTRICTED COMPETITION UNDER THIS SOLICITATION. THIS ALLEGATION MUST BE THE RESULT OF OVERSIGHT, BECAUSE ARTICLE 33, PAGE 52, OF THE SOLICITATION, PERMITTED THE CONSIDERATION OF OFFERS REQUESTING PROGRESS PAYMENTS ON AN EQUAL BASIS WITH THOSE NOT SO REQUESTING.

ACCORDINGLY, WE HAVE NO LEGAL OBJECTION TO REQUEST FOR PROPOSALS NO. DAAK01-69-R-0992 AS ISSUED. FOR THIS REASON, YOUR PROTEST IS DENIED.