B-166906, MAY 20, 1969

B-166906: May 20, 1969

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THE LETTER SHOULD BE CONSIDERED AS A PROTEST TO OUR OFFICE ON THREE GROUNDS: (1) OFFERS SHOULD HAVE BEEN SOLICITED BY AN INVITATION FOR BIDS RATHER THAN NEGOTIATED. WAS PROPRIETARY TO ONE MANUFACTURER. (3) DIPEC MILITARY SPECIFICATION MIL-S-80086 IS REQUIRED TO BE USED FOR THE PROCUREMENT OF HYDRAULIC SHEAR EQUIPMENT RATHER THAN THE PURCHASE DESCRIPTION INCLUDED IN THE REQUEST FOR PROPOSALS. THE CONTRACTING OFFICER REPORTS THAT THE PROPOSAL FROM YOUR COMPANY WAS NOT RESPONSIVE TO THE PURCHASE DESCRIPTION AND THAT. ALTHOUGH DURING NEGOTIATIONS HE WAS WILLING TO WAIVE FIVE EXCEPTIONS TO THE REQUIREMENTS STATED IN THE REQUEST FOR PROPOSALS AS MINOR. YOUR COMPANY WAS UNWILLING TO WITHDRAW THE BALANCE OF THE EXCEPTIONS IN ITS TECHNICAL PROPOSAL.

B-166906, MAY 20, 1969

TO MR. J. M. SHOWALTER:

IN LETTER OF MARCH 8, 1969, TO THE RESEARCH AND DEVELOPMENT PROCUREMENT OFFICE, UNITED STATES ARMY MOBILITY EQUIPMENT RESEARCH AND DEVELOPMENT CENTER, FORT BELVOIR, VIRGINIA, YOU STATED THAT, IF THAT OFFICE DOES NOT INTEND TO AWARD A CONTRACT TO YOUR COMPANY UNDER REQUEST FOR PROPOSALS DAAK02-69-R-1023 FOR ONE HYDRAULIC SHEAR, THE LETTER SHOULD BE CONSIDERED AS A PROTEST TO OUR OFFICE ON THREE GROUNDS:

(1) OFFERS SHOULD HAVE BEEN SOLICITED BY AN INVITATION FOR BIDS RATHER THAN NEGOTIATED;

(2) THE SOLICITATION, AS WRITTEN, WAS PROPRIETARY TO ONE MANUFACTURER;

(3) DIPEC MILITARY SPECIFICATION MIL-S-80086 IS REQUIRED TO BE USED FOR THE PROCUREMENT OF HYDRAULIC SHEAR EQUIPMENT RATHER THAN THE PURCHASE DESCRIPTION INCLUDED IN THE REQUEST FOR PROPOSALS.

THE CONTRACTING OFFICER REPORTS THAT THE PROPOSAL FROM YOUR COMPANY WAS NOT RESPONSIVE TO THE PURCHASE DESCRIPTION AND THAT, ALTHOUGH DURING NEGOTIATIONS HE WAS WILLING TO WAIVE FIVE EXCEPTIONS TO THE REQUIREMENTS STATED IN THE REQUEST FOR PROPOSALS AS MINOR, YOUR COMPANY WAS UNWILLING TO WITHDRAW THE BALANCE OF THE EXCEPTIONS IN ITS TECHNICAL PROPOSAL. AS A RESULT, THE CONTRACTING OFFICER DOES NOT INTEND TO MAKE AN AWARD TO YOUR COMPANY.

THE CONTRACTING OFFICER HAS DETERMINED THAT THE EQUIPMENT IS A REPLACEMENT FOR UNSERVICEABLE EQUIPMENT TO SUPPORT DEVELOPMENTAL, EXPERIMENTAL, RESEARCH AND TEST PROGRAMS AND THAT THE PROCUREMENT SHOULD THEREFORE BE NEGOTIATED PURSUANT TO 10 U.S.C. 2304 (A) (11), WHICH AUTHORIZES THE PURCHASE BY NEGOTIATION FOR SUCH PURPOSES. SECTION 2310 (B) OF TITLE 10 OF THE UNITED STATES CODE PROVIDES THAT FINDINGS MADE PURSUANT TO 10 U.S.C. 2304 (A) (11) ARE "FINAL.' THE PROPRIETY OF PROCURING THE EQUIPMENT BY NEGOTIATION INSTEAD OF BY FORMAL ADVERTISING IS THEREFORE NOT SUBJECT TO LEGAL QUESTION BY OUR OFFICE.

IT IS REPORTED THAT THE REQUIREMENTS IN THE REQUEST FOR PROPOSALS CAN BE MET BY MORE THAN ONE MANUFACTURER. THEREFORE, THE CONTENTION THAT THE PURCHASE DESCRIPTION IS RESTRICTIVE TO ONE MANUFACTURER IS NOT SUPPORTED BY THE RECORD. HOWEVER, EVEN IF ONLY ONE PRODUCT OR ONE MANUFACTURER CAN MEET THE SPECIFICATIONS THAT DOES NOT MEAN THAT IT IS UNDULY RESTRICTIVE. SEE B-159550, FEBRUARY 13, 1967.

THE CONTRACTING OFFICER ACKNOWLEDGES THAT THE MILITARY SPECIFICATION CITED BY YOU IS A MANDATORY SPECIFICATION BUT, SINCE THE SPECIFICATION DID NOT REFLECT THE MINIMUM NEEDS OF THE UTILIZING FACILITY AND BECAUSE THIS IS A ONE-TIME PROCUREMENT, A DECISION WAS MADE NOT TO UTILIZE THE MILITARY SPECIFICATION. PARAGRAPH 1-1202 (B) (VI) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES THAT MANDATORY SPECIFICATIONS NEED NOT BE USED FOR PURCHASE OF ONE-TIME PROCUREMENT ITEMS UNLESS REQUIRED BY DEPARTMENTAL INSTRUCTIONS. IT IS STATED THAT THERE ARE NO DEPARTMENTAL INSTRUCTIONS REQUIRING THE USE OF THE SPECIFICATION. IN THE CIRCUMSTANCES, IT DOES NOT APPEAR THAT THE MILITARY SPECIFICATION WAS REQUIRED TO BE USED.