B-166886, AUG. 7, 1969

B-166886: Aug 7, 1969

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ON THE BASIS OF ADMINISTRATIVE REPORT THAT THE SOLICITATION WAS URGENT AND THAT THERE WAS NO ARBITRARY OR CAPRICIOUS ABUSE OF THE CONTRACTING OFFICER'S DISCRETION THE NEGOTIATED AWARD UNDER 10 U.S.C. 2304 (A) (2). ON A PUBLIC EXIGENCY BASIS IS NOT SUBJECT TO QUESTION. TO POLARAD ELECTRONIC INSTRUMENTS: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 6. IT IS REPORTED THAT THE PROCUREMENT WAS ASSIGNED ISSUE PRIORITY DESIGNATORS 02 AND 03 UNDER THE UNIFORM MATERIEL MOVEMENT AND ISSUE PRIORITY SYSTEM BECAUSE OF URGENT SOUTHEAST ASIA REQUIREMENTS FOR THE EQUIPMENT. THE CLOSING DATE FOR RECEIPT OF OFFERS WAS MAY 6. THE RECORD INDICATES THAT A COPY OF THE RFP WAS SENT ONLY TO THE HEWLETT- PACKARD COMPANY BUT THAT WHEN YOUR FIRM AND THE SINGER COMPANY EXPRESSED AN INTEREST IN THE PROCUREMENT.

B-166886, AUG. 7, 1969

BID PROTEST - NEGOTIATED - SOLE SOURCE DECISION TO POLARAD ELECTRONIC INSTRUMENTS DENYING PROTEST AGAINST THE PROCUREMENT BY THE AIR FORCE OF SPECTRUM ANALYZERS ON A SOLE-SOURCE BASIS FROM THE HEWLETT-PACKARD COMPANY. ON THE BASIS OF ADMINISTRATIVE REPORT THAT THE SOLICITATION WAS URGENT AND THAT THERE WAS NO ARBITRARY OR CAPRICIOUS ABUSE OF THE CONTRACTING OFFICER'S DISCRETION THE NEGOTIATED AWARD UNDER 10 U.S.C. 2304 (A) (2), ON A PUBLIC EXIGENCY BASIS IS NOT SUBJECT TO QUESTION.

TO POLARAD ELECTRONIC INSTRUMENTS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 6, 1969, PROTESTING THE ALLEGEDLY RESTRICTIVE SPECIFICATIONS FOR EQUIPMENT CONTAINED IN DEPARTMENT OF THE AIR FORCE REQUEST FOR PROPOSALS (RFP) NO. F41608-69-R HA68, ISSUED BY THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, TEXAS.

THE RFP, ISSUED ON APRIL 21, 1969, SOLICITED BIDS FOR FURNISHING 60 ELECTRONIC SPECTRUM ANALYZERS, FSN 6625-937-6522, HEWLETT-PACKARD MODEL H10-851B/8551B OR EQUAL. IT IS REPORTED THAT THE PROCUREMENT WAS ASSIGNED ISSUE PRIORITY DESIGNATORS 02 AND 03 UNDER THE UNIFORM MATERIEL MOVEMENT AND ISSUE PRIORITY SYSTEM BECAUSE OF URGENT SOUTHEAST ASIA REQUIREMENTS FOR THE EQUIPMENT. THE SOLICITATION CONTAINED A BRAND NAME OR EQUAL PURCHASE DESCRIPTION WHICH SET FORTH IN DETAIL THE SALIENT CHARACTERISTICS REQUIRED TO MEET THE AIR FORCE URGENTLY REQUIRED NEEDS. THE CLOSING DATE FOR RECEIPT OF OFFERS WAS MAY 6, 1969.

THE RECORD INDICATES THAT A COPY OF THE RFP WAS SENT ONLY TO THE HEWLETT- PACKARD COMPANY BUT THAT WHEN YOUR FIRM AND THE SINGER COMPANY EXPRESSED AN INTEREST IN THE PROCUREMENT, COPIES OF THE RFP WERE SUPPLIED AS REQUESTED. IT ALSO INDICATES THAT AT THE REQUEST OF YOUR FIRM FOR ADDITIONAL TIME TO PREPARE A PROPOSAL, THE CLOSING DATE FOR RECEIPT OF PROPOSALS WAS EXTENDED TO MAY 13, 1969, BY AMENDMENT NO. 0001 DATED MAY 6, 1969, TO THE SOLICITATION.

IN A TELEGRAM DATED MAY 5, 1969, TO THE CONTRACTING OFFICE, YOUR FIRM ALLEGED THAT THE PURCHASE DESCRIPTION ATTACHED TO THE SUBJECT SOLICITATION IS UNNECESSARILY RESTRICTIVE AND THAT IT PROHIBITS BIDS FROM OTHER THAN THE BRAND NAME. BY TELEGRAM DATED MAY 9, 1969, THE CONTRACTING OFFICE ADVISED YOUR FIRM AND OTHER INTERESTED CONCERNS THAT THE SOLICITATION WAS BEING AMENDED TO EXTEND THE OPENING DATE FOR PROPOSALS INDEFINITELY IN VIEW OF ANTICIPATED SPECIFICATION CHANGES AND THAT A FURTHER AMENDMENT SETTING FORTH THE REQUIRED SPECIFICATION CHANGES AND ESTABLISHING A NEW OPENING DATE WOULD BE RELEASED AT AN EARLY DATE. IT APPEARS THAT BEFORE THE SPECIFICATION CHANGES COULD BE ISSUED, THE REQUISITIONING ACTIVITY ADVISED THE CONTRACTING OFFICE THAT THE ENTIRE QUANTITY OF SPECTRUM ANALYZERS WAS URGENTLY NEEDED IN SUPPORT OF THE ELECTRONIC COUNTERMEASURES SYSTEMS USED IN SOUTHEAST ASIA. DUE TO THE URGENCY OF THE REQUIREMENT, THE CONTRACTING OFFICER DETERMINED THAT IT WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT TO CANCEL THE SOLICITATION AND TO ISSUE AN UNPRICED ORDER AGAINST BASIC ORDERING AGREEMENT F04606-69-A0233-SA07 WITH HEWLETT- PACKARD STATED AS THE SOLE SOURCE.

IN YOUR TELEGRAM OF MAY 5, 1969, TO THE CONTRACTING OFFICE, YOU PROTESTED THE MANNER IN WHICH THE SUBJECT RFP WAS ISSUED. YOU ALLEGED THAT THE "SPECIFICATIONS FOR THE EQUIPMENT AS LISTED IN THE RFP ARE RESTRICTIVE BECAUSE THEY ARE A DIRECT COPY OF EVERY PROCUREMENT SPECIFICATION OF THE HEWLETT-PACKARD EQUIPMENT THUS PROHIBITING AN -OR EQUAL- EQUIPMENT DIFFERING IN MINOR DETAIL FROM BEING ACCEPTABLE.' YOU ALSO TOOK EXCEPTION TO THE DELIVERY SCHEDULE,"DO" RATING AND CLOSING DATE CONTAINED IN THE SOLICITATION.

IN REGARD TO THE QUESTION AS TO WHETHER THE SPECIFICATIONS CONTAINED IN RFP -HA68 ARE UNNECESSARILY RESTRICTIVE, THAT QUESTION APPEARS TO BE ACADEMIC SINCE NO AWARD WAS MADE UNDER THAT RFP. HOWEVER, THE PROPRIETY OF THE ACTION OF THE CONTRACTING OFFICE IN PROCURING THE REQUIRED EQUIPMENT SOLE SOURCE FROM HEWLETT-PACKARD WILL BE HEREINAFTER DISCUSSED.

THE RECORD INDICATES THAT THE PURCHASE REQUEST UPON WHICH THE CANCELED RFP WAS BASED WAS ACCOMPANIED BY A SOLE-SOURCE JUSTIFICATION BASED ON URGENCY. SINCE THIS PROCUREMENT CARRIED AN URGENT SOUTHEAST ASIA PRIORITY, THE CONTRACTING OFFICER DETERMINED, PURSUANT TO 10 U.S.C. 2304 (A) (2) AND PARAGRAPH 3-202.2 (VI) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), TO NEGOTIATE A CONTRACT SOLELY WITH HEWLETT-PACKARD ON A PUBLIC EXIGENCY BASIS. IT IS REPORTED THAT AN AWARD TO ANY OTHER SOURCE WOULD REQUIRE BID SAMPLE TEST AND APPROVAL WHICH WOULD DELAY DELIVERY OF THE EQUIPMENT; THAT THE HEWLETT-PACKARD SPECTRUM ANALYZER IS THE ONLY ANALYZER WHICH HAS BEEN PROVEN TO PROVIDE THE CAPABILITY REQUIRED TO SUPPORT ELECTRONIC COUNTERMEASURE PADS; AND THAT NO OTHER ITEM HAS BEEN EVALUATED AND ACCEPTED AS EQUIVALENT TO THE HEWLETT-PACKARD ITEM.

SECTION 2304 (A), TITLE 10 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 OFFICER 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 FINDINGS 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. IN THIS CASE, THE CONTRACTING OFFICE CONSIDERS THAT HEWLETT-PACKARD IS THE ONLY SOURCE QUALIFIED TO MEET THE GOVERNMENT'S REQUIREMENTS WITHIN THE TIME PROVIDED.

FOR YOUR INFORMATION THE RECORD INDICATES THAT IN REGARD TO FUTURE PROCUREMENTS OF SPECTRUM ANALYZERS, THE AIR FORCE WILL PURSUE A PLAN WHEREBY THROUGH EFFECTIVE AND TIMELY ADVANCE PROCUREMENT PLANNING, FUTURE REQUIREMENTS ARE RELEASED WITH ADMINISTRATIVE AND PROCUREMENT LEAD TIMES FACTORED TO PERMIT COMPETITION.

FOR THE REASONS STATED, WE FIND NO BASIS TO QUESTION THE LEGALITY OF THE AWARD MADE TO THE HEWLETT-PACKARD COMPANY. ACCORDINGLY, THE PROTEST IS DENIED.