B-167545, SEP. 29, 1969

B-167545: Sep 29, 1969

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WHERE A NEGOTIATED PROCUREMENT WAS DELAYED 6 MONTHS BECAUSE EXTENSIVE REVIEWS OF THE SPECIFICATIONS AT THE REQUEST OF THE PROTESTANT AND OTHER OFFERORS FOR CLARIFICATION AND INTERPRETATION AND FUNDS WERE "REVERTED" TO OTHER REQUIREMENTS CANCELLATION AND INCORPORATION OF THE REQUIREMENT IN A NEW SOLICITATION IS NOT SUBJECT TO QUESTION BY THE COMPTROLLER GENERAL. TO AUTOMATION DYNAMICS CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 11. THE SUBJECT RFP WAS ISSUED ON JANUARY 2. THREE PROPOSALS WERE RECEIVED IN RESPONSE TO THE REQUEST FOR PROPOSALS. WERE FORWARDED ON JANUARY 31. ADDITIONAL SPECIFICATION CHANGES WERE REQUESTED BY NARF. AMENDMENT 003 TO THE RFP WAS ISSUED ON APRIL 23.

B-167545, SEP. 29, 1969

BID PROTEST - CANCELLATION OF OFFERS - RESOLICITATION DECISION TO AUTOMATION DYNAMICS CORPORATION, LOW OFFEROR, AGAINST PROCUREMENT METHODS USED BY NAVAL SUPPLY CENTER FOR OBTAINING CIRCUIT ANALYZERS. WHERE A NEGOTIATED PROCUREMENT WAS DELAYED 6 MONTHS BECAUSE EXTENSIVE REVIEWS OF THE SPECIFICATIONS AT THE REQUEST OF THE PROTESTANT AND OTHER OFFERORS FOR CLARIFICATION AND INTERPRETATION AND FUNDS WERE "REVERTED" TO OTHER REQUIREMENTS CANCELLATION AND INCORPORATION OF THE REQUIREMENT IN A NEW SOLICITATION IS NOT SUBJECT TO QUESTION BY THE COMPTROLLER GENERAL.

TO AUTOMATION DYNAMICS CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 11, 1969, PROTESTING AGAINST THE PROCUREMENT METHODS UTILIZED BY THE NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA, IN CONNECTION WITH REQUEST FOR PROPOSALS (RFP) NO. N00189-69-R-0202.

THE SUBJECT RFP WAS ISSUED ON JANUARY 2, 1969, WITH A SCHEDULED CLOSING DATE OF JANUARY 16, 1969, AND REQUESTED PROPOSALS FOR FURNISHING TWO EACH CIRCUIT ANALYZERS TO NAVAL AIR REWORK FACILITY (NARF), NORFOLK, VIRGINIA. THE RFP SOLICITED THE REQUIREMENT ON A BRAND NAME OR EQUAL BASIS BRIEFLY STATED AS DIT-MCO INTERNATIONAL MODEL 660 OR EQUAL. THREE PROPOSALS WERE RECEIVED IN RESPONSE TO THE REQUEST FOR PROPOSALS. YOUR LOW PROPOSAL AND THE NEXT LOWEST PROPOSAL SUBMITTED BY TELESCIENCES, INC., WERE FORWARDED ON JANUARY 31, 1969, TO NARF FOR TECHNICAL EVALUATION OF THE PRODUCTS OFFERED BY EACH OF YOU AS "EQUALS.' BY LETTER DATED FEBRUARY 18, 1969, NARF ADVISED THAT THE ORIGINAL EQUIPMENT SPECIFICATIONS NEEDED REVISION TO INCLUDE DETAILED SPECIFICATIONS COVERING ADDITIONAL MINIMUM FEATURES AND REQUIREMENTS. THIS ACTION NEGATED THE NECESSITY FOR TECHNICAL EVALUATION OF THE PRODUCTS OFFERED AS "EQUALS" BY YOU AND TELESCIENCES, INC., IN RESPONSE TO THE ORIGINAL REQUEST FOR PROPOSALS. BY LETTER OF MARCH 10, 1969, NARF FURNISHED TO THE CONTRACTING OFFICER REVISED BRAND NAME OR EQUAL SPECIFICATIONS FOR THE EQUIPMENT. THEREAFTER, ON VARIOUS DATES, ADDITIONAL SPECIFICATION CHANGES WERE REQUESTED BY NARF. AS A RESULT OF THE REQUESTED SPECIFICATION CHANGES, AMENDMENT 003 TO THE RFP WAS ISSUED ON APRIL 23, 1969, WHICH COMPLETELY REOPENED THE RFP AND INCORPORATED A COMPLETELY REVISED BRAND NAME OR EQUAL SPECIFICATION, ADDED ITEMS 2, 3 AND 4, AND INCLUDED A SHORTER REQUIRED DELIVERY SCHEDULE. THE CLOSING DATE FOR PROPOSALS WAS EXTENDED TO MAY 9, 1969, AND AMENDMENT 003 WAS FORWARDED TO ALL PROSPECTIVE OFFERORS ON THE ORIGINAL RFP MAILING LIST AS REQUIRED BY PARAGRAPH 3-805.1 (C) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). YOUR REPRESENTATIVE VERBALLY QUESTIONED THE SPECIFICATION REQUIREMENTS OF AMENDMENT 003 AND BY LETTER DATED MAY 6, 1969, YOU RAISED ADDITIONAL QUESTIONS CONCERNING SEVERAL FEATURES OF THE REVISED SPECIFICATIONS. ALSO, ON MAY 7, 1969, TELESCIENCES, NC., PROVIDED A LIST OF THE SPECIFICATION CLARIFICATIONS AND CHANGES DESIRED BY IT. AS A RESULT OF YOUR LETTER OF MAY 6 AND THE QUESTIONS RAISED BY TELESCIENCES, NARF FURNISHED TO THE CONTRACTING OFFICER A LIST OF ADDITIONAL CHANGES TO BE MADE IN THE SPECIFICATIONS CONTAINED IN AMENDMENT 003 TO THE RFP. ON JUNE 9, 1969, HUGHES AIRCRAFT COMPANY, INDUSTRIAL SYSTEMS DIVISION (HUGHES), ALSO ASKED FOR CLARIFICATION AND CHANGES OF THE SPECIFICATIONS CONTAINED IN AMENDMENT 003. AS A RESULT OF ALL THESE QUESTIONS RAISED BY THE OFFERORS, THE CLOSING DATE OF THE RFP WAS EXTENDED TO JULY 14, 1969, PENDING NARF'S EVALUATION AND COMMENTS CONCERNING THE QUESTIONS RAISED. THE EXTENSION OF CLOSING INTO JULY 1969 WAS THE RESULT OF ADVICE FROM NARF ON JUNE 9 THAT HEADQUARTERS, NAVAL AIR SYSTEMS COMMAND (NAVAIR), HAD "DEFERRED" FUNDS FOR THIS PROCUREMENT TO ANOTHER URGENT PROJECT AND THAT REFUNDING OF THIS PROCUREMENT WOULD NOT BE ACCOMPLISHED UNTIL AFTER THE BEGINNING OF FISCAL YEAR 1970. AMENDMENT 007 WAS ISSUED JUNE 19, 1969, INCORPORATING NUMEROUS ACCEPTABLE CHANGES RESULTING FROM LETTERS AND CONFERENCES FROM AND WITH YOUR CORPORATION, TELESCIENCES, INC., AND HUGHES. AFTER QUESTIONING OF THIS AMENDMENT BY YOUR CORPORATION AND TELESCIENCES, NARF BY LETTER DATED JULY 2, 1969, REQUESTED COMPLETE CANCELLATION OF ITS REQUISITION COVERING THE CIRCUIT ANALYZERS BECAUSE "FUNDS WERE REVERTED" TO NAVAIR AND THE EQUIPMENT REQUIREMENT WOULD BE INCLUDED WITH ADDITIONAL REQUIREMENTS IN A MULTIPLE BUY IN FISCAL YEAR 1970. THEREAFTER, THE CONTRACTING OFFICER REFERRED THE MATTER OF CANCELLATION OF THE PROCUREMENT TO LEGAL COUNSEL FOR ADVICE AND GUIDANCE. DURING THIS PERIOD OF TIME THE RFP CLOSING DATE WAS EXTENDED TO AUGUST 11, 1969, AND THREE NEW PROPOSALS WERE RECEIVED. YOUR PROPOSAL AS ORIGINALLY SUBMITTED REMAINED A VALID AND TIMELY RESPONSE TO THE SOLICITATION. LETTER DATED AUGUST 14, 1969, THE CONTRACTING OFFICER, ON ADVICE OF COUNSEL, NOTIFIED ALL OFFERORS THAT THE RFP WAS CANCELED. WE ARE ADVISED THAT THE REQUIREMENT THEREUNDER HAS BEEN COMBINED IN A PROCUREMENT TO BE ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C.

IN YOUR LETTER OF JULY 11, 1969, YOU ALLEGE THAT THE GOVERNMENT'S ACTION IN AMENDING THE RFP HAS TURNED A COMPETITIVE PROCUREMENT INTO A RESTRICTIVE SOLE-SOURCE ACTION.

AFTER CAREFULLY REVIEWING THE FACTS OF RECORD, IT IS OUR OPINION THAT THE ACTIONS OF THE GOVERNMENT PERSONNEL WERE JUSTIFIED AND IN NO WAY WERE INTENDED TO RESTRICT COMPETITION. IN RESPONSE TO THE NUMEROUS TECHNICAL QUESTIONS RAISED BY THE OFFERORS, NARF, THE REQUISITIONING ACTIVITY, CONDUCTED THOROUGH REVIEWS AND MADE CHANGES TO AND CLARIFIED THE SPECIFICATIONS IN THOSE AREAS WHERE IT WAS CONSIDERED NECESSARY AND DISSEMINATED INFORMATION FAIRLY AND EQUITABLY TO ALL PROSPECTIVE CONTRACTORS THROUGH SOLICITATION AMENDMENTS ISSUED BY THE CONTRACTING OFFICER. HENCE, ON THE BASIS OF THE RECORD BEFORE US, WE AGREE WITH THE STATEMENT OF THE CONTRACTING OFFICER THAT THERE IS NO EVIDENCE TO INDICATE THAT THE ACTIONS OF THE TECHNICAL PERSONNEL OF THE GOVERNMENT WERE OTHER THAN THOSE FOUND NECESSARY TO ENSURE THAT ALL EQUIPMENT FEATURES VITAL TO THE GOVERNMENT WERE RETAINED IN THE SOLICITATION WHILE AT THE SAME TIME ATTEMPTING WHEREVER POSSIBLE TO INCORPORATE CHANGES DESIRED BY ALL PROSPECTIVE CONTRACTORS. IT IS, THEREFORE, OUR VIEW THAT THE TECHNICAL PERSONNEL OF THE GOVERNMENT EXERTED EVERY EFFORT TO STIMULATE, AND NOT RESTRICT, COMPETITION WITHOUT JEOPARDIZING THE ESSENTIAL OPERATIONAL REQUIREMENTS OF THE EQUIPMENT. WHILE CANCELLATION OF THE PROCUREMENT IS REGRETTABLE IN VIEW OF THE EXTENT OF OFFEROR PARTICIPATION, THE GOVERNMENT'S INTERESTS IN SATISFYING ITS ESSENTIAL TECHNICAL REQUIREMENTS MUST BE REGARDED AS THE PARAMOUNT CONSIDERATION.

INASMUCH AS IT APPEARS THAT THE PROCUREMENT WAS DELAYED FOR APPROXIMATELY 6 MONTHS AS A RESULT OF THE MANY DISCUSSIONS REGARDING THE SPECIFICATIONS AND SINCE REFUNDING OF THE PROCUREMENT IS NOW NECESSARY DURING THE CURRENT 1970 FISCAL YEAR, WE FEEL THAT CANCELLATION OF THE RFP AND THE INCORPORATION OF THE REQUIREMENT IN A NEW SOLICITATION IS NOT SUBJECT TO QUESTION BY OUR OFFICE.