B-168753, MAR. 25, 1970

B-168753, MAR. 25, 1970

ADVERTISING--COMMERCE BUSINESS DAILY--FAILURE TO SYNOPSIZE PROCUREMENT PROTESTANT WHO CONTENDS THAT FAILURE TO PUBLICIZE PROCUREMENT IN COMMERCE BUSINESS DAILY RESULTED IN LACK OF FULL COMPETITION, THUS REQUIRING CANCELLATION AND READVERTISING OF FIRST-STEP OF TWO-STEP (FORMAL ADVERTISING) PROCUREMENT, OFFERS NO BASIS FOR DISTURBING AWARD SINCE ADMINISTRATIVE FAILURE TO PUBLISH SYNOPSIS WAS INADVERTENT, WITH NO INTENT TO PRECLUDE PROTESTANT FROM SUBMITTING TECHNICAL PROPOSAL, AND ADEQUATE COMPETITION WAS GENERATED; HOWEVER, GAO IS RECOMMENDING THAT IN FUTURE THERE BE STRICT ADHERENCE TO ASPR 1-1003.1 SYNOPSIS REQUIREMENT.

TO DICKERMAN AND GLAZERMAN:

REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 9, 19 AND FEBRUARY 9, 1970 PROTESTING ON BEHALF OF MICRO-DYNAMICS, INC; AGAINST ANY AWARD UNDER INVITATION FOR BIDS NO. N00140-70-B-0401, ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, BROOKLYN, NEW YORK. WE ALSO HAVE RECEIVED MICRO- DYNAMICS' TELEGRAM OF JANUARY 6, 1970, CONCERNING THIS PROTEST.

IT IS REPORTED THAT IN ACCORDANCE WITH TWO-STEP FORMAL ADVERTISING PROCEDURES, A REQUEST FOR TECHNICAL PROPOSAL COVERING 200 AN/UPA-61 AIMS IFF ANTENNA SWITCHING GROUPS WAS ISSUED TO 10 SOURCES ON JUNE 27, 1969. SUBSEQUENTLY, THE REQUEST FOR TECHNICAL PROPOSAL WAS ISSUED TO FIVE ADDITIONAL FIRMS. THE PROCUREMENT OFFICE REPORTS THAT DUE TO AN OVERSIGHT, THE BUYER DID NOT PROCESS A SYNOPSIS OF THE REQUEST FOR TECHNICAL PROPOSAL TO THE COMMERCE BUSINESS DAILY IN ACCORDANCE WITH PARAGRAPHS 1-1003 AND 2-503.1 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). PRESUMABLY, AS A RESULT OF THIS OVERSIGHT, MICRO-DYNAMICS WAS NOT AFFORDED AN OPPORTUNITY TO PARTICIPATE IN THE PROCUREMENT.

TWO TECHNICAL PROPOSALS WERE SUBMITTED AND BOTH WERE DETERMINED TO BE ACCEPTABLE. THEREAFTER, INVITATION NO. N00140-70-B-0401 WAS ISSUED TO THE TWO FIRMS SUBMITTING ACCEPTABLE TECHNICAL PROPOSALS AND BIDS WERE RECEIVED AS FOLLOWS:

UNIT DATA AND COMPLETE TOTAL

PRICE MANUFACTURING DRAWINGS PRICE MICROWAVE ASSOCIATES, INC. $1,023 $48,604 $253,204 HYLETRONICS CORPORATION 1,450 32,500

322,500

THE GOVERNMENT'S ESTIMATED PRICE FOR THE EQUIPMENT WAS $1,400 PER UNIT. THE BID OF MICROWAVE WAS LOWER THAN THE GOVERNMENT'S ESTIMATED PRICE AND, SINCE ITS TECHNICAL PROPOSAL WAS DETERMINED TO BE ENTIRELY ACCEPTABLE, IT WAS CONSIDERED THAT MICROWAVE'S OFFERED PRICE WAS FAIR AND REASONABLE. ACCORDINGLY, BY LETTER DATED JANUARY 15, 1970, THE PROCURING ACTIVITY NOTIFIED THE NAVAL SUPPLY SYSTEMS COMMAND OF ITS INTENT TO AWARD A CONTRACT TO MICROWAVE AND WE ARE INFORMED THAT SUCH CONTRACT WAS AWARDED ON JANUARY 22, 1970.

THE FIRST BASIS OF YOUR PROTEST IS THAT THE PROCUREMENT WAS NOT SYNOPSIZED IN THE COMMERCE BUSINESS DAILY IN ACCORDANCE WITH ASPR 2 503.1 AND 1-1003. IN THIS RESPECT, ASPR 1-1003.1 PROVIDES THAT EVERY PROPOSED PROCUREMENT WHICH MAY RESULT IN AN AWARD IN EXCESS OF $10,000 SHALL BE PUBLICIZED PROMPTLY IN THE COMMERCE BUSINESS DAILY "SYNOPSIS OF U.S. GOVERNMENT PROPOSED PROCUREMENT, SALES AND CONTRACT AWARDS." YOU CONTEND THAT THE FAILURE TO PUBLICIZE THE PROCUREMENT RESULTED IN A LACK OF FULL AND FREE COMPETITION, THUS REQUIRING CANCELLATION AND READVERTISING OF THE PROCUREMENT. HOWEVER, THE ADMINISTRATIVE FAILURE TO PUBLISH A SYNOPSIS WAS ENTIRELY AN INADVERTENT OMISSION AND IT IS REPORTED THAT THERE WAS ABSOLUTELY NO INTENT OR PURPOSE ON THE PART OF THE PERSONNEL INVOLVED TO PRECLUDE MICRO-DYNAMICS OR ANY OTHER PROSPECTIVE CONTRACTOR FROM SUBMITTING A TECHNICAL PROPOSAL. IN THE ABSENCE OF SUCH INTENT AND PURPOSE AND, SINCE ADEQUATE COMPETITION WAS GENERATED, WE MUST CONCLUDE THAT THE FAILURE TO SYNOPSIZE THE PROCUREMENT IN THIS CASE DOES NOT PROVIDE A LEGAL BASIS FOR DISTURBING THE AWARD MADE TO MICROWAVE. SEE B- 161224, AUGUST 9, 1967, AND B 156310, JUNE 10, 1965. HOWEVER, WE ARE RECOMMENDING THAT IN FUTURE PROCUREMENTS THERE BE STRICT ADHERENCE TO THE ASPR 1-1003.1 SYNOPSIS REQUIREMENT. IN THIS CONNECTION, THE PROCUREMENT OFFICE HAS STATED THAT COMPLETE MANUFACTURING DRAWINGS WILL BE USED AS A BASIS FOR PROCUREMENT OF FUTURE REQUIREMENTS BY FORMAL ADVERTISING AND MICRO DYNAMICS WILL BE GIVEN AN OPPORTUNITY TO PARTICIPATE IN ALL SUCH FUTURE PROCUREMENTS.

YOU HAVE ALSO PROTESTED THAT THE AWARD WAS MADE CONTRARY TO THE REQUIREMENTS OF ASPR 2-407,8 (B) (3) THAT AWARD SHALL NOT BE MADE UNTIL THE PROTEST IS RESOLVED UNLESS THE CONTRACTING OFFICER DETERMINES THE ITEMS TO BE PROCURED ARE URGENTLY REQUIRED, DELIVERY OR PERFORMANCE WILL BE UNDULY DELAYED, OR A PROMPT AWARD WOULD BE OTHERWISE ADVANTAGEOUS TO THE GOVERNMENT, AND THAT WRITTEN NOTICE OF THE DECISION TO PROCEED WITH AWARD BE GIVEN TO THE PROTESTER AND OTHERS CONCERNED. WITH RESPECT TO SUCH REQUIREMENTS, THE PROCUREMENT OFFICE STATED IN ITS NOTICE OF INTENTION TO PROCEED WITH AWARD AS FOLLOWS:

"* * * BIDS UNDER THE SUBJECT IFB WILL EXPIRE ON 22 JANUARY 1970. ONE THIRTY-DAY EXTENSION OF THE TIME FOR ACCEPTANCE HAS ALREADY BEEN GRANTED BY THE BIDDERS AND THIS OFFICE IS RELUCTANT TO SEEK STILL ANOTHER EXTENSION. THE EQUIPMENT TO BE DELIVERED UNDER THE PROPOSED CONTRACT WILL BE INSTALLED ON NEW SHIPS UNDER CONSTRUCTION AND ON EXISTING NAVAL VESSELS DURING SCHEDULED OVERHAUL AND REPAIR. BY DISPATCH DATED 24 DECEMBER 1969, THE COMMANDER, NAVAL ELECTRONICS SYSTEM COMMAND ADVISED THAT THE INSTALLATION PLAN FOR THESE EQUIPMENTS WAS BASED ON DELIVERY COMMENCING NO LATER THAN DECEMBER 1970. THEREFORE, IT WAS REQUESTED THAT AWARD BE EXPEDITED. DELIVERIES UNDER THE CONTRACT WILL COMMENCE 300 DAYS AFTER AWARD. EVEN IF A FURTHER EXTENSION OF THE TIME FOR ACCEPTANCE OF BIDS WERE OBTAINED, THE CONTRACT WOULD STILL HAVE TO BE AWARDED IN FEBRUARY 1970 IF DELIVERIES ARE TO COMMENCE IN DECEMBER 1970. THEREFORE, IT IS MY DETERMINATION THAT DELIVERY OF EQUIPMENT WILL BE UNDULY DELAYED BY FAILURE TO MAKE AWARD PROMPTLY."

THIS DETERMINATION WAS CONCURRED IN BY THE COUNSEL, NAVAL SUPPLY SYSTEMS COMMAND, AND WE WERE SO ADVISED ON JANUARY 21, 1970. ALTHOUGH THERE WAS NO WRITTEN NOTICE TO THE PROTESTER, AS REQUIRED BY THE REGULATION, WE DO NOT VIEW THIS AS INVALIDATING THE AWARD. SEE B 167353, DECEMBER 4, 1969, 49 COMP. GEN. , AND 48 COMP. GEN. 702 (1969). WE ARE BRINGING THIS DEFICIENCY TO THE ATTENTION OF THE DEPARTMENT OF THE NAVY.