B-166639, JUN. 27, 1969

B-166639: Jun 27, 1969

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INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 8. YOU STATE THAT THIS SOLICITATION WAS MADE IN THE FORM OF A REQUEST FOR PROPOSALS AND WAS LIMITED TO THE THREE PREVIOUS MANUFACTURERS OF THE ITEM. YOU URGE THAT THIS IS ANOTHER IN A SERIES OF SOLICITATIONS BY MECOM "USING LIMITED PROCUREMENT SOLICITATION METHODS UNDER THE GUISE OF - ADVERTISING IS NOT FEASIBLE OR PRACTICABLE DUE TO THE URGENCY OF THE REQUIREMENT-.'. COMPLETE DELIVERY WAS REQUIRED BY SEPTEMBER 1969. 400 ARE REQUIRED IN SOUTHEAST ASIA. IT IS REPORTED THAT THE CONTRACTING OFFICER DECIDED TO CONSOLIDATE ALL THE REQUIREMENTS FOR ALL DESTINATIONS IN ONE SOLICITATION IN ORDER TO EFFECT MAXIMUM ECONOMIES. PRE-PRODUCTION TESTING WAS ESTIMATED AT 150 DAYS AND TECHNICAL EVALUATION TESTING.

B-166639, JUN. 27, 1969

TO JETA POWER, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 8, 1969, PROTESTING THE AWARD OF CONTRACT NUMBER DAAK01-69-C-6628 BY THE UNITED STATES ARMY MOBILITY EQUIPMENT COMMAND (MECOM), FOR GENERATOR SETS AND ANCILLARY ITEMS.

YOU STATE THAT THIS SOLICITATION WAS MADE IN THE FORM OF A REQUEST FOR PROPOSALS AND WAS LIMITED TO THE THREE PREVIOUS MANUFACTURERS OF THE ITEM. YOU URGE THAT THIS IS ANOTHER IN A SERIES OF SOLICITATIONS BY MECOM "USING LIMITED PROCUREMENT SOLICITATION METHODS UNDER THE GUISE OF - ADVERTISING IS NOT FEASIBLE OR PRACTICABLE DUE TO THE URGENCY OF THE REQUIREMENT-.' YOU ALSO STATE THAT THE PROCUREMENT EVIDENCES A COMPLETE LACK OF ADVANCE PLANNING.

IN OCTOBER 1968 THE CONTRACTING OFFICE RECEIVED FUNDED PROCUREMENT WORK DIRECTIVES FOR A TOTAL QUANTITY OF 554 GENERATOR SETS TO BE PROCURED IN ACCORDANCE WITH A DESIGNATED MILITARY SPECIFICATION. THE DIRECTIVE CITED AN 02 PRIORITY. COMPLETE DELIVERY WAS REQUIRED BY SEPTEMBER 1969. OF THE TOTAL QUANTITY OF GENERATOR SETS, 400 ARE REQUIRED IN SOUTHEAST ASIA, 17 IN KOREA AND THE BALANCE IN THE CONTINENTAL UNITED STATES.

IT IS REPORTED THAT THE CONTRACTING OFFICER DECIDED TO CONSOLIDATE ALL THE REQUIREMENTS FOR ALL DESTINATIONS IN ONE SOLICITATION IN ORDER TO EFFECT MAXIMUM ECONOMIES, AND ASSURE EARLIEST DELIVERY OF THE GOVERNMENT'S PRESSING NEED FOR THE SUPPLIES. PRE-PRODUCTION TESTING WAS ESTIMATED AT 150 DAYS AND TECHNICAL EVALUATION TESTING, ESTIMATED AT 180 DAYS, WOULD BE REQUIRED OF GENERATOR SETS FURNISHED BY SOURCES OTHER THAN PRIOR PRODUCERS. ADDITIONAL PRELIMINARY REVIEW DISCLOSED THAT THREE FIRMS, THE BENDIX CORPORATION, JOHN R. HOLLINGSWORTH COMPANY, AND ATLAS POLAR CORPORATION, HAD PRODUCED THE ITEM WITHIN THE PAST TWO-YEAR PERIOD AND WERE DETERMINED TO BE THE ONLY SOURCES THAT COULD DELIVER WITHIN THE REQUIRED DELIVERY PERIOD. FURTHER, SINCE THESE THREE COMPANIES HAD JUST COMPLETED THEIR RESPECTIVE CONTRACTS WITHIN THE IMMEDIATE PAST TWO YEARS AND WOULD BE THE ONLY PRODUCERS FOR WHOM TESTING COULD BE WAIVED, DELIVERIES COULD BEGIN 210 DAYS AFTER AWARD. ON THE BASIS OF THE ABOVE, A DETERMINATION AND FINDINGS WAS PREPARED ON NOVEMBER 12, 1968, JUSTIFYING NEGOTIATION OF A PROCUREMENT PURSUANT TO PARAGRAPH 3-202.2 (VI) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) ON THE BASIS OF A PUBLIC EXIGENCY.

REQUEST FOR PROPOSALS NO. DAAK01-69-R-3743 WAS ISSUED ON DECEMBER 27, 1968, WITH A CLOSING DATE OF JANUARY 15, 1969. THE PROPOSED CONTRACT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY ON JANUARY 7, 1969, AND STATED THAT THE PROCUREMENT WAS LIMITED TO PREVIOUS PRODUCERS WHOSE UNITS HAD BEEN ACCEPTED AND MET ALL TEST REQUIREMENTS WITHIN THE PAST TWO YEARS.

BID SETS WERE FORWARDED TO THE THREE FIRMS MENTIONED ABOVE WHO HAD PREVIOUSLY PRODUCED THE GENERATOR SETS AND PROPOSALS WERE RECEIVED FROM TWO OFFERORS - HOLLINGSWORTH AND BENDIX. AWARD WAS MADE TO THE JOHN R. HOLLINGSWORTH COMPANY, THE LOW OFFEROR, ON FEBRUARY 28, 1969.

SECTION 2304 (A), TITLE 10 U.S.C. (U.S.C.) PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/A) PURCHASES OF AND CONTRACTS FOR PROPERTY OR SERVICES COVERED BY THIS CHAPTER SHALL BE MADE BY FORMAL ADVERTISING IN ALL CASES IN WHICH THE USE OF SUCH METHOD IS FEASIBLE AND PRACTICABLE UNDER THE EXISTING CONDITIONS AND CIRCUMSTANCES. IF USE OF SUCH METHOD IS NOT FEASIBLE AND PRACTICABLE, THE HEAD OF AN AGENCY, SUBJECT TO THE REQUIREMENTS FOR DETERMINATIONS AND FINDINGS IN SECTION 2310, MAY NEGOTIATE SUCH A PURCHASE OR CONTRACT, IF --

* * * * * * * (2) THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING; * * *" .

AT 10 U.S.C. 2310 (B) AND 2311, IT IS PROVIDED IN PERTINENT PART, AS FOLLOWS:

"/B) * * * A DECISION TO NEGOTIATE CONTRACTS UNDER CLAUSES (2), * * * SHALL BE BASED ON A WRITTEN FINDING BY THE PERSON MAKING THE DETERMINATION OR DECISION, WHICH FINDING SHALL SET OUT FACTS AND CIRCUMSTANCES THAT * * * (4) CLEARLY AND CONVINCINGLY ESTABLISH WITH RESPECT TO THE USE OF CLAUSES (2), * * * OF SECTION 2304 (A), THAT FORMAL ADVERTISING WOULD NOT HAVE BEEN FEASIBLE AND PRACTICABLE. SUCH A FINDING IS FINAL AND SHALL BE KEPT AVAILABLE IN THE AGENCY FOR AT LEAST SIX YEARS AFTER THE DATE OF THE DETERMINATION OR DECISION. * * *

"SEC. 2311. DELEGATION

"THE HEAD OF AN AGENCY MAY DELEGATE, SUBJECT TO HIS DIRECTION, TO ANY OTHER OFFICE OR OFFICIAL OF THAT AGENCY, ANY POWER UNDER THIS CHAPTER EXCEPT THE POWER TO MAKE DETERMINATIONS AND DECISIONS UNDER CLAUSES (11/- /16) OF SECTION 2304 (A) OF THIS TITLE. * * *"

ASPR 3-202.3, ISSUED PURSUANT TO STATUTE, STATES THAT A DETERMINATION AND FINDING BY A CONTRACTING OFFICER, JUSTIFYING USE OF THE PUBLIC EXIGENCY EXCEPTION TO FORMAL ADVERTISING UNDER THE AUTHORITY OF 10 U.S.C. 2304 (A) (2), NEED ONLY STATE THE EXISTENCE OF A PRIORITY DESIGNATOR OF 1 THROUGH 6 IN ORDER TO JUSTIFY USE OF THAT EXCEPTION. FURTHER, FINDINGS IN SUPPORT OF A DETERMINATION TO NEGOTIATE UNDER THE PUBLIC EXIGENCY EXCEPTION ARE MADE FINAL BY 10 U.S.C. 2310 (B), AND ARE THEREFORE NOT SUBJECT TO QUESTION BY OUR OFFICE.

WHILE THE STATUTE (10 U.S.C. 2304 (G/) AND THE REGULATION (ASPR 3 202.2) REQUIRE THAT EVEN WHERE AUTHORITY EXISTS TO NEGOTIATE PROCUREMENTS, PROPOSALS SHOULD BE SOLICITED FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES CONSISTENT WITH THE NATURE AND REQUIREMENTS OF THE SUPPLIES OR SERVICES TO BE PROCURED, THE "PUBLIC EXIGENCY" JUSTIFICATION FOR NEGOTIATION CLOTHES THE CONTRACTING OFFICER WITH A CONSIDERABLE DEGREE OF DISCRETION IN DETERMINING THE EXTENT OF NEGOTIATION CONSISTENT WITH THE EXIGENCY OF THE SITUATION. 44 COMP. GEN. 590. WE FIND NO EVIDENCE OF AN ARBITRARY OR CAPRICIOUS ABUSE OF THIS DISCRETION.

RELATIVE TO YOUR COMMENT AS TO THE ABSENCE OF ADVANCED PLANNING, IT IS REPORTED: "IN ANSWER TO CONTRACTOR'S THIRD ALLEGATION, IT SHOULD BE STATED THAT ADVANCE PLANNING PROCUREMENT INFORMATION WAS FORWARDED TO POTENTIAL SUPPLIERS. A CHECK OF PAST RELEASES REVEALED THAT JETA POWER, INC. WAS FIRST NOTIFIED OF A PROPOSED PROCUREMENT OF SUBJECT ITEM ON 2 MAY 1967 BY COMMAND RELEASE NUMBER ME-115. "A REVISED COMMAND RELEASE NUMBER ME-115RI WAS SENT TO PROTESTOR ON 2 JANUARY 1968. THE FINAL COMMAND RELEASE NUMBER ME-115R2 REFERRING TO SAID ITEM WAS FURNISHED JETA POWER, INC. ON 6 FEBRUARY 1968. IN ADDITION TO THE INDIVIDUAL COPIES MAILED TO JETA POWER, INC., THE ADVANCE PLANNING FORECAST WAS PUBLISHED IN THE COMMERCE BUSINESS DAILY. "AS A RESULT OF THIS PROGRAM, INDUSTRY MAY OBTAIN FROM AN ARMY/INDUSTRY MATERIAL INFORMATION LIAISON OFFICE PLANNING PROCUREMENT INFORMATION AT THE EARLIEST POSSIBLE TIME IN THE PROCUREMENT PLANNING CYCLE, THEREBY PLACING THE GENERAL INDUSTRY IN A FAR BETTER COMPETITIVE POSITION BY FURNISHING THE MOST COMPREHENSIVE FUTURE MARKETING PICTURE EVER ATTEMPTED. IN RETURN, THE GOVERNMENT EXPECTS TO ACQUIRE PRODUCTS AND SERVICES AT A MUCH REDUCED COST FIGURE DUE TO INCREASED COMPETITION SPURRED BY THE AFOREMENTIONED PROGRAM. "HOWEVER, IN SPITE OF THE MOST SOPHISTICATED PLANNING, A REQUIREMENT MAY BECOME SO URGENT THAT IT MAY BE IMPOSSIBLE TO FOLLOW THE NORMAL PROCUREMENT CYCLE. THIS OCCURRED WITH THE CASE AT HAND.'

FOR THE REASONS STATED WE FIND NO BASIS TO QUESTION THE LEGALITY OF THE AWARD. NEVERTHELESS, IN VIEW OF THE STATUTORY INTENT TO OBTAIN THE BENEFITS OF FULL AND FREE COMPETITION CONSISTENT WITH THE NEEDS OF THE GOVERNMENT WE ARE TURNING A COPY OF YOUR LETTER AND THIS REPLY OVER TO OUR DEFENSE DIVISION FOR POSSIBLE USE IN CONNECTION WITH ITS AUDIT ACTIVITIES.