B-165942, MAR. 26, 1969

B-165942: Mar 26, 1969

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WACHTEL: REFERENCE IS MADE TO YOUR TELEGRAM OF JANUARY 10 AND TO YOUR LETTER OF FEBRUARY 10. THE CITED RFP WAS ISSUED ON DECEMBER 26. TWO PROPOSALS WERE RECEIVED . YOU STATE THAT NAVY PERSONNEL ADVISED SENTINEL THAT IT WOULD NOT BE ELIGIBLE FOR AWARD WHETHER OR NOT IT WAS THE LOW OFFEROR. N00024-69-C 1009 WAS AWARDED TO SENTINEL FOR A QUANTITY OF AN/SPA-50) (. RADAR INDICATORS WHICH WERE ESSENTIALLY THE SAME ITEM AS THAT BEING PURCHASED UNDER THE INSTANT REQUEST FOR PROPOSALS. YOU ALSO STATE THAT SENTINEL DETERMINED THAT THE SPECIFICATIONS UNDER THIS CONTRACT WERE DEFECTIVE AND AFTER DISCUSSION WITH NAVY PERSONNEL THE CONTRACT WAS TERMINATED FOR THE CONVENIENCE OF THE GOVERNMENT. YOU FURTHER STATE THAT THE DEPARTMENT OF THE NAVY ISSUED THE SUBJECT RFP AND DID NOT INVITE SENTINEL TO PARTICIPATE AND THAT WHEN SENTINEL ASKED FOR A COPY OF THE RFP IT WAS INFORMED THAT.

B-165942, MAR. 26, 1969

TO MR. I. H. WACHTEL:

REFERENCE IS MADE TO YOUR TELEGRAM OF JANUARY 10 AND TO YOUR LETTER OF FEBRUARY 10, 1969, PROTESTING ON BEHALF OF SENTINEL ELECTRONICS, INC. (SENTINEL), AGAINST THE AWARD OF ANY CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) NO. N00024-69-R-3135/S) ISSUED BY THE NAVAL SHIP SYSTEMS COMMAND.

THE CITED RFP WAS ISSUED ON DECEMBER 26, 1968, REQUESTING PROPOSALS FOR FURNISHING 16 AN/SPA-50A LARGE SCREEN RADAR INDICATORS (ITEM 1, 12 FOR THE AUSTRALIAN NAVY; AND ITEM 6, FOUR FOR THE UNITED STATES NAVAL SHIP SYSTEMS COMMAND). TWO PROPOSALS WERE RECEIVED -- ONE FROM ELECTRO MAGNETIC TECHNOLOGY CORPORATION, MANUFACTURING DIVISION (ELECTROMAGNETIC), IN THE AMOUNT OF $456,772.72, AND ONE FROM SENTINEL IN THE AMOUNT OF $312,000. AWARD OF THE CONTRACT HAS BEEN MADE TO ELECTROMAGNETIC.

IN YOUR TELEGRAM OF JANUARY 10 AND LETTER OF FEBRUARY 10, 1969, YOU STATE THAT NAVY PERSONNEL ADVISED SENTINEL THAT IT WOULD NOT BE ELIGIBLE FOR AWARD WHETHER OR NOT IT WAS THE LOW OFFEROR. YOU ALSO STATE THAT PREVIOUSLY, ON AUGUST 8, 1968, CONTRACT NO. N00024-69-C 1009 WAS AWARDED TO SENTINEL FOR A QUANTITY OF AN/SPA-50) (, RADAR INDICATORS WHICH WERE ESSENTIALLY THE SAME ITEM AS THAT BEING PURCHASED UNDER THE INSTANT REQUEST FOR PROPOSALS. YOU ALSO STATE THAT SENTINEL DETERMINED THAT THE SPECIFICATIONS UNDER THIS CONTRACT WERE DEFECTIVE AND AFTER DISCUSSION WITH NAVY PERSONNEL THE CONTRACT WAS TERMINATED FOR THE CONVENIENCE OF THE GOVERNMENT. YOU FURTHER STATE THAT THE DEPARTMENT OF THE NAVY ISSUED THE SUBJECT RFP AND DID NOT INVITE SENTINEL TO PARTICIPATE AND THAT WHEN SENTINEL ASKED FOR A COPY OF THE RFP IT WAS INFORMED THAT, SINCE IT COULD NOT MEET THE REQUIREMENT, A COPY OF THE RFP WOULD NOT BE FURNISHED. HOWEVER, ON JANUARY 8, 1969, A COPY OF THE RFP WAS FURNISHED WITH A STATEMENT THAT THE ISSUANCE OF THE RFP TO SENTINEL DID NOT IMPLY THAT IT COULD MEET THE NAVY'S REQUIREMENTS. YOU SAY THAT SINCE SENTINEL WAS CONSIDERED COMPETENT TO PRODUCE THE ITEM UNDER CONTRACT NO. N00024-69-C- 1009, THERE IS NO JUSTIFICATION FOR REJECTING ITS PROPOSAL UNDER THE SUBJECT RFP.

THE ADMINISTRATIVE OFFICE HAS ADVISED US THAT IT NEVER MADE ANY STATEMENT TO SENTINEL THAT IT WOULD NOT BE ELIGIBLE FOR AWARD WHETHER OR NOT IT WAS THE LOW OFFEROR. IT IS REPORTED THAT SENTINEL WAS ADVISED THAT THE RFP CALLED FOR LARGE SCREEN RADARS IDENTICAL TO THOSE PREVIOUSLY PURCHASED FROM ELECTROMAGNETIC AND THAT, THEREFORE, THE RFP WAS DIRECTED TO ELECTROMAGNETIC ALONE. IT IS FURTHER REPORTED THAT THE CONTRACT PREVIOUSLY AWARDED TO SENTINEL WAS FOR RADAR INDICATORS COMPLETELY DIFFERENT FROM THOSE BEING PROCURED UNDER THE SUBJECT RFP.

REGARDING THE PROCUREMENT HERE INVOLVED, IT IS REPORTED THAT 12 OF THE INDICATORS WERE BEING PURCHASED FOR THE AUSTRALIAN NAVY AND FOUR FOR THE UNITED STATES NAVY. NEGOTIATION OF THE PROCUREMENT FOR THE AUSTRALIAN NAVY WAS AUTHORIZED BY AN APPROPRIATE DETERMINATION AND FINDINGS (D-AND-F) UNDER 10 U.S.C. 2304 (A) (10) (ASPR 3-210.2 (I) ). THIS D-AND-F SPECIFIES THAT THE AUSTRALIAN NAVY HAS DESIGNATED ELECTROMAGNETIC AS THE SOLE ACCEPTABLE SOURCE FOR THE INDICATORS. SINCE THE PURCHASE WAS MADE ON BEHALF OF THE AUSTRALIAN NAVY, WE SEE NO LEGAL BASIS FOR QUESTIONING THE ADMINISTRATIVE ACTION IN NEGOTIATING WITH ELECTROMAGNETIC ONLY.

WITH RESPECT TO THE FOUR INDICATORS WHICH WERE PROCURED FOR THE UNITED STATES NAVY, IT IS REPORTED THAT NEGOTIATION WITH ELECTROMAGNETIC ONLY WAS AUTHORIZED BY A SECRETARIAL D-AND-F UNDER 10 U.S.C. 2304 (A) (13) TO ASSURE STANDARDIZATION AND INTERCHANGEABILITY OF THE EQUIPMENT. UNDER THE PROVISIONS OF 10 U.S.C. 2310 THE SECRETARIAL DETERMINATION IS FINAL. ACCORDINGLY, WE SEE NO LEGAL BASIS FOR QUESTIONING THE CONTRACT AWARDED.

IN ADDITION TO THE FOREGOING, IT IS REPORTED THAT THE UNSOLICITED PROPOSAL RECEIVED FROM SENTINEL OFFERED DELIVERIES BEGINNING MUCH LATER THAN THOSE SPECIFIED IN THE RFP. FURTHER, ITS PRICE IS CONSIDERED UNREALISTIC BECAUSE THE PRICE DOES NOT INCLUDE THE DESIGN, FABRICATION AND TESTING OF A PREPRODUCTION MODEL AND ALLIED REQUIREMENTS THAT WOULD NECESSARILY BE REQUIRED OF A NONPRIOR PRODUCER IN A PROCUREMENT TO WHICH IT COULD BE RESPONSIVE.