B-167505, DEC. 9, 1969

B-167505: Dec 9, 1969

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

REQUEST THAT GOVT-FURNISHED EQUIPMENT BE EXCLUDED IS DENIED SINCE DETERMINATION OF GOVT.'S NEEDS AND DRAFTING OF SPECIFICATIONS ARE PRIMARILY AGENCY FUNCTIONS. INCORPORATED: REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 10. LIST GFM 1100001 WAS COMPOSED OF A 7- 1/4 - PAGE TABULATION OF 285 PALLETS OF USED CONVEYOR EQUIPMENT TO BE UTILIZED IN THE CONTRACT. TECHNICALLY ACCEPTABLE PROPOSALS WERE SUBMITTED BY NAVIGATE. STEP TWO OF THE IFB WAS ISSUED SOLICITING BIDS FROM THE THREE TECHNICALLY ACCEPTABLE SOURCES. DATED 10/30/68 IS HEREBY DELETED IN ITS ENTIRETY.'. BIDS WERE OPENED ON MAY 19. WERE TABULATED AS FOLLOWS: NAVIGATE. WHILE RAPISTAN'S PROTEST WAS UNDER CONSIDERATION BY OUR OFFICE. WE WERE ADVISED BY THE DEPARTMENT OF THE NAVY THAT IFB NO.

B-167505, DEC. 9, 1969

PROPERTY--PUBLIC--EXCHANGE OR SALE FOR SIMILAR ITEMS--ADMINISTRATIVE DETERMINATION TWO-STEP ADVERTISED PROCUREMENT CALLED FOR FURNISHING AND INSTALLATION OF EXTENSION TO AUTOMATED HANDLING SYSTEM. WHILE STEP 1 REQUESTED TECHNICAL PROPOSALS AND LISTED GOVERNMENT-FURNISHED EQUIPMENT, STEP 2 SOLICITED BIDS FROM THREE TECHNICALLY ACCEPTABLE SOURCES UNDER REVISED SPECIFICATIONS DELETING GOVT-FURNISHED EQUIPMENT. HOWEVER, NAVY CANCELED INVITATION STATING INTENTION TO RESOLICITATE, DELETING SMALL BUSINESS SET-ASIDE AND OFFERING BIDDERS SAME GOVT. EQUIPMENT AND ADDITIONAL EQUIPMENT FOUND IN STORAGE FOR EXCHANGE OR SALE. REQUEST THAT GOVT-FURNISHED EQUIPMENT BE EXCLUDED IS DENIED SINCE DETERMINATION OF GOVT.'S NEEDS AND DRAFTING OF SPECIFICATIONS ARE PRIMARILY AGENCY FUNCTIONS; MOREOVER, GAO FINDS NO IMPROPRIETY IN OFFERING STORED GOVT. PROPERTY FOR SALE OR USE.

TO HEWITT ROBINS, INCORPORATED:

REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 10, 1969, PROTESTING ANY AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. N00600-69-B 0129, ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C.

STEP ONE OF THIS TWO-STEP FORMALLY ADVERTISED PROCUREMENT REQUESTED TECHNICAL PROPOSALS FOR THE FURNISHING AND INSTALLATION OF AN EXTENSION TO THE AUTOMATED MATERIALS HANDLING SYSTEM OF THE NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA. THE SPECIFICATIONS UNDER STEP ONE, AS AMENDED BY AMENDMENT 0001, DECEMBER 6, 1968, CALLED FOR THE FURNISHING AND INSTALLATION OF THE SYSTEM IN ACCORDANCE WITH A CERTAIN PURCHASE DESCRIPTION, DRAWINGS,"AND LIST OF GOVERNMENT FURNISHED CONVEYOR EQUIPMENT GFM 1100001 DATED 30 OCTOBER 1968.' LIST GFM 1100001 WAS COMPOSED OF A 7- 1/4 - PAGE TABULATION OF 285 PALLETS OF USED CONVEYOR EQUIPMENT TO BE UTILIZED IN THE CONTRACT. TECHNICALLY ACCEPTABLE PROPOSALS WERE SUBMITTED BY NAVIGATE, INC., RAPISTAN, INC., AND THE A.J. BAYER COMPANY. ON MAY 2, 1969, STEP TWO OF THE IFB WAS ISSUED SOLICITING BIDS FROM THE THREE TECHNICALLY ACCEPTABLE SOURCES. UNDER SECTION B OF THE IFB, ENTITLED "DESCRIPTION OF SPECIFICATIONS," THE FOLLOWING APPEARED:

"NOTES TO BIDDERS:

NOTE A: THE LIST OF GOVERNMENT FURNISHED CONVEYOR

EQUIPMENT GFM 1100001, DATED 10/30/68 IS

HEREBY DELETED IN ITS ENTIRETY.'

BIDS WERE OPENED ON MAY 19, 1969, AND WERE TABULATED AS FOLLOWS:

NAVIGATE, INC. $ 978,000.00 - LESS 1/2 PERCENT 20 DAYS

RAPISTAN, INC. 989,432.00 - NET

A.J. BAYER 1,140,822.00 - NET IN THESE CIRCUMSTANCES, THE CONTRACTING OFFICER PROPOSED TO AWARD THE CONTRACT TO NAVIGATE, INC. HOWEVER, BY LETTER OF JUNE 10, 1969, RAPISTAN, INC., PROTESTED AGAINST SUCH AWARD.

WHILE RAPISTAN'S PROTEST WAS UNDER CONSIDERATION BY OUR OFFICE, WE WERE ADVISED BY THE DEPARTMENT OF THE NAVY THAT IFB NO. NOO600-69-B 0129 WAS BEING CANCELED. IT IS INTENDED THAT A RESOLICITATION FOR THIS REQUIREMENT WILL OFFER TO BIDDERS THE GOVERNMENT OWNED EQUIPMENT MENTIONED ABOVE, AND ADDITIONAL GOVERNMENT EQUIPMENT FOUND IN STORAGE, AS AN EXCHANGE/SALE TRANSACTION PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION, SECTION IV, PART 2. IT IS ALSO ADMINISTRATIVELY REPORTED THAT THE RESOLICITATION WILL NOT BE A TOTAL SMALL BUSINESS SET-ASIDE, AS WAS THE INSTANT PROCUREMENT, IN ORDER TO INCREASE COMPETITION FOR THE EXCHANGE/SALE PROPERTY. THE CANCELLATION OF THE INSTANT PROCUREMENT WAS PROTESTED BY NAVIGATE, INC., WHO REQUESTED THAT AWARD BE MADE TO IT ON THE BASIS OF ITS TECHNICAL PROPOSAL AND THAT THE USE OF GOVERNMENT-FURNISHED PROPERTY BE NEGOTIATED WITH IT AFTER AWARD. IN OUR DECISIONS OF TODAY, B-167216, WE HAVE DENIED THE PROTESTS OF RAPISTAN AND NAVIGATE.

YOU NOTE IN YOUR TELEGRAM THAT STEP ONE OF THE INSTANT PROCUREMENT SOLICITED TECHNICAL PROPOSALS BASED UPON THE USE OF A SUBSTANTIAL AMOUNT OF GOVERNMENT-FURNISHED EQUIPMENT. STEP TWO THEN REQUESTED PRICES FROM THE THREE TECHNICALLY ACCEPTABLE BIDDERS UNDER REVISED SPECIFICATIONS WHICH DELETED ALL GOVERNMENT-FURNISHED PROPERTY. YOU STATE: "IF WE HAD KNOWN THAT IT WAS YOUR INTENTION TO PROCURE IN EXCESS OF $900M OF NEW EQUIPMENT WE WOULD HAVE SUBMITTED A PROPOSAL ON THE 1ST STEP. WE REQUEST THAT THE 2ND STEP * * * BE CANCELLED AND THAT THE 1ST STEP BE RE- ADVERTISED ON THE BASIS THAT THERE WOULD BE NO GOVERNMENT FURNISHED CONVEYOR EQUIPMENT.' YOUR REQUEST THAT THE INVITATION BE CANCELED HAS BEEN RENDERED MOOT BY THE ACTION OF THE DEPARTMENT OF THE NAVY. SINCE A NEW SOLICITATION OF THE PROCUREMENT OF THE MATERIALS HANDLING SYSTEM IS BEING INSTITUTED, UPON WHICH YOU WILL PRESUMABLY BE GIVEN AN OPPORTUNITY TO BID, THERE APPEARS TO BE NO NECESSITY FOR FURTHER CONSIDERATION OF THAT ASPECT OF YOUR PROTEST BY THIS OFFICE AT THIS TIME.

WITH RESPECT TO YOUR REQUEST THAT ANY FUTURE RESOLICITATION NOT INCLUDE ANY GOVERNMENT-FURNISHED EQUIPMENT, WE HAVE CONSISTENTLY HELD THAT THE DETERMINATION OF THE GOVERNMENT'S NEEDS AND THE DRAFTING OF SPECIFICATIONS TO MEET THOSE NEEDS ARE PRIMARILY FUNCTIONS OF THE CONTRACTING AGENCY, WHICH WILL NOT BE DISTURBED BY OUR OFFICE IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE OF ERROR. 17 COMP. GEN. 554 (1938); 40 COMP. GEN. 294 (1960). CERTAINLY, AS IN THIS CASE, WHERE THERE IS GOVERNMENT PROPERTY IN STORAGE WHICH PROPERLY CAN BE USED TO FULFILL A CONTRACT REQUIREMENT, WE CAN FIND NO IMPROPRIETY IN OFFERING IT FOR SALE OR USE IN CONNECTION WITH THE SOLICITATION FOR THE CONTRACT WORK.