B-168819, MAY 4, 1970

B-168819: May 4, 1970

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NEGOTIATED UNDER 10 U.S.C. 2304 (A) (2) IS NOT LEGALLY OBJECTIONABLE ABSENT SHOWING OF ARBITRARY OR CAPRICIOUS ACTION BY PROCUREMENT OFFICIALS. WHO HAVE PRIMARY RESPONSIBILITY FOR DETERMINING GOVERNMENT NEEDS. SINCE PROCUREMENT WAS ASSIGNED PRIORITY DESIGNATOR NO. 5 UNDER UNIFORM MATERIEL MOVEMENT AND ISSUE PRIORITY SYSTEM. ADMINISTRATIVE DETERMINATION TO SOLE SOURCE WAS IN ACCORD WITH ASPR 3-202.2 AND WAS BASED ON FINDINGS CONTRACTOR WAS ONLY KNOWN PRODUCER ABLE TO MEET REQUIRED DELIVERY SCHEDULE. ITS ANTENNAS WERE CURRENTLY OPERATING SATISFACTORILY. TO ANTENNA PRODUCTS COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 13. THE REQUIREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY "SYNOPSIS OF U.S.

B-168819, MAY 4, 1970

CONTRACTS--NEGOTIATION--SOLE SOURCE BASIS--JUSTIFICATION SOLE SOURCE AIR FORCE PROCUREMENT OF ANTENNAS, ETC; NEGOTIATED UNDER 10 U.S.C. 2304 (A) (2) IS NOT LEGALLY OBJECTIONABLE ABSENT SHOWING OF ARBITRARY OR CAPRICIOUS ACTION BY PROCUREMENT OFFICIALS, WHO HAVE PRIMARY RESPONSIBILITY FOR DETERMINING GOVERNMENT NEEDS, SINCE PROCUREMENT WAS ASSIGNED PRIORITY DESIGNATOR NO. 5 UNDER UNIFORM MATERIEL MOVEMENT AND ISSUE PRIORITY SYSTEM, AND ADMINISTRATIVE DETERMINATION TO SOLE SOURCE WAS IN ACCORD WITH ASPR 3-202.2 AND WAS BASED ON FINDINGS CONTRACTOR WAS ONLY KNOWN PRODUCER ABLE TO MEET REQUIRED DELIVERY SCHEDULE; ITS ANTENNAS WERE CURRENTLY OPERATING SATISFACTORILY; AND REQUIREMENT COULD NOT BE FULFILLED BY COMPETITIVE PROCEDURES WITHIN SHORT TIME PERMITTED.

TO ANTENNA PRODUCTS COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 13, 1970, PROTESTING A PROCUREMENT OF ANTENNAS, SPARE PARTS AND DATA ON A SOLE SOURCE BASIS FROM GRANGER ASSOCIATES BY THE OKLAHOMA CITY AIR MATERIEL AREA (OCAMA), TINKER AIR FORCE BASE, OKLAHOMA, UNDER LETTER REQUEST FOR QUOTATION NO. 0- 26110 ISSUED OCTOBER 3, 1969.

THE REQUIREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY "SYNOPSIS OF U.S. GOVERNMENT PROPOSED PROCUREMENT, SALES AND CONTRACT AWARDS" WHICH STATED THAT THE PROCUREMENT WAS ON A SOLE SOURCE BASIS BECAUSE GRANGER ASSOCIATES WAS THE ONLY KNOWN FIRM WHOSE FACILITIES, DATA, AND TECHNICAL KNOWLEDGE COULD MEET THE CONTRACT REQUIREMENTS. A NOTE TO THE ADVERTISEMENT STATED THAT THE NOTICE DID NOT SOLICIT ADDITIONAL PROPOSALS BUT WAS ISSUED FOR THE BENEFIT OF PROSPECTIVE SUBCONTRACTORS.

YOU STATE THAT THERE ARE NO LESS THAN 5 FIRMS WHICH POSSESS THE FACILITIES AND TECHNICAL ABILITY TO PRODUCE THE ANTENNA EQUIPMENT AND WHICH HAVE A STANDARD PRODUCT LINE ENCOMPASSING EQUIVALENT PRODUCTS. YOU FURTHER STATE THAT OCAMA HAS PROCURED SIMILAR EQUIPMENT FROM YOUR FIRM UNDER CONTRACT NUMBER F34601-67-C-0468.

THE ADMINISTRATIVE REPORT TO THIS OFFICE SHOWS THAT THE AIR FORCE EASTERN TEST RANGE (AFETR) HAS CRITICAL HIGH SPEED DATA REQUIREMENTS TO SUPPORT THE APOLLO, MINUTEMAN, POSEIDON AND OTHER PROGRAMS AT THEIR MAJOR RANGE STATIONS. UNSATISFACTORY PERFORMANCE OF SOME EXISTING ANTENNAS CAUSED THE AFETR TO FALL BEHIND SCHEDULE IN INSTALLING RELIABLE HIGH FREQUENCY CIRCUITS. IN ORDER TO MEET THE STRINGENT REQUIREMENTS PLACED UPON IT, THE AFETR HAS HAD TO LEASE COMBAT CHANNELS AT CONSIDERABLE ADDITIONAL EXPENSE. AS RELIABLE HIGH FREQUENCY CIRCUITS ARE COMPLETED, THE NUMBER OF COMBAT CHANNELS LEASED IS REDUCED. THE INSTANT PROCUREMENT WAS INITIATED TO FULFILL A REQUIREMENT IN TRINIDAD, WHERE THE EXISTING HIGH FREQUENCY FACILITY WAS TO BE MOVED FROM A VALLEY TO A RADAR SITE ON A MOUNTAINTOP. HOWEVER, PREPARATION OF THE NEW SITE COULD NOT BE ACCOMPLISHED UNTIL THE TYPE AND MODEL OF ANTENNA TO BE USED WAS KNOWN. AFETR'S ENGINEERING CONSULTANTS CONCLUDED THAT CERTAIN GRANGER ASSOCIATES ANTENNAS MET THE REQUIREMENTS IMPOSED BY THE SITE. FURTHER, AFETR DETERMINED THAT ONLY GRANGER ASSOCIATES COULD MEET THEIR NEEDS BY THE REQUIRED DELIVERY DATE.

UNDER THESE CIRCUMSTANCES, THE PROCUREMENT WAS ASSIGNED PRIORITY DESIGNATOR NO. 5 UNDER THE UNIFORM MATERIEL MOVEMENT AND ISSUE PRIORITY SYSTEM (UMMIPS). THE PURCHASE REQUEST FOR THE INSTANT PROCUREMENT ALSO CONTAINED A "SOLE SOURCE STATEMENT" UNDER WHICH GRANGER ASSOCIATES WAS TO BE CONSIDERED THE SOLE SOURCE OF SUPPLY FOR THE ANTENNAS BECAUSE: (1) GRANGER WAS THE ONLY KNOWN SOURCE WHICH COULD MEET THE REQUIRED DELIVERY SCHEDULE; (2) GRANGER ANTENNAS THEN IN USE HAD OPERATED SATISFACTORILY; AND (3) THE REQUIREMENT COULD NOT BE FULFILLED USING COMPETITIVE PROCUREMENT PROCEDURES WITHIN THE SHORT TIME PERMITTED.

THE CONTRACT WAS THEN NEGOTIATED WITH GRANGER ASSOCIATES PURSUANT TO A DETERMINATION BY THE CONTRACTING OFFICER UNDER THE AUTHORITY OF 10 U.S.C. 2304 (A) (2), AS DELEGATED BY THE SECRETARY, THAT THE PUBLIC EXIGENCY WOULD NOT PERMIT THE DELAY INCIDENT TO FORMAL ADVERTISING. IMPLEMENTING REGULATIONS ARE CONTAINED IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-202.2 AND PROVIDE FOR USE OF SUCH AUTHORITY WHERE THE PURCHASE REQUEST CITES A UMMIPS ISSUE PRIORITY DESIGNATOR OF 1 THROUGH 6. SUCH FINDINGS ARE MADE FINAL BY THE PROVISIONS OF 10 U.S.C. 2310 (B).

WITH RESPECT TO THE EQUIPMENT YOU PREVIOUSLY FURNISHED THE AIR FORCE UNDER CONTRACT NUMBER F34601-67-C-0468, WE ARE ADVISED THAT CONTRACT RESULTED FROM A REQUIREMENT WHICH COULD BE MET BY ANY ONE OF FOUR MANUFACTURERS' ANTENNAS DESCRIBED BY PART NUMBER. THEREFORE, THAT SOLICITATION WAS UPON A COMPETITIVE BASIS. NONE OF THE PART NUMBERS IDENTIFIED IN THAT SOLICITATION WERE PURCHASED IN THE INSTANT PROCUREMENT.

IT IS WELL ESTABLISHED THAT PROCURING ACTIVITIES OF THE GOVERNMENT HAVE PRIMARY RESPONSIBILITY FOR DETERMINING THEIR NEEDS FOR EQUIPMENT AND FOR DETERMINING WHETHER OFFERED EQUIPMENT MEETS SUCH NEEDS, AND IN THE ABSENCE OF A CLEAR SHOWING OF ARBITRARY OR CAPRICIOUS ACTION BY THE PROCUREMENT OFFICIALS THEIR DETERMINATIONS IN SUCH MATTERS ARE CONTROLLING. HERE, FOR THE REASONS SHOWN ABOVE AND PURSUANT TO THE AUTHORITY VESTED IN HIM, THE CONTRACTING OFFICER FOUND THAT THERE WAS AN URGENT AND COMPELLING NEED FOR THE ANTENNAS AND RELATED EQUIPMENT WHICH COULD NOT BE SATISFIED WITHIN THE REQUIRED TIME BY PROCUREMENT FROM ANY SOURCE OTHER THAN GRANGER ASSOCIATES. WE HAVE REVIEWED THE CIRCUMSTANCES OF THIS PROCUREMENT AND WE CANNOT CONCLUDE THAT THE CONTRACTING OFFICER'S DETERMINATION AND FINDINGS WERE IN ANY WAY THE RESULT OF ARBITRARY OR CAPRICIOUS ACTION, OR THAT THEY ARE CLEARLY UNSUPPORTED BY THE CIRCUMSTANCES.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR QUESTIONING THE ADMINISTRATIVE ACTION IN THIS MATTER, AND YOUR PROTEST MUST THEREFORE BE DENIED.