B-169042, JUN. 16, 1970

B-169042, JUN. 16, 1970

CONTRACTS--NEGOTIATION--PUBLIC EXIGENCY--JUSTIFICATION FOR NEGOTIATION ARMY PROCUREMENT OF REPRODUCTION SERVICES FOR "SAFEGUARD" UNDER PUBLIC EXIGENCY EXCEPTION IN 10 U.S.C. 2304(A)(2), AFTER WORKLOAD PREVENTED ACCOMPLISHMENT BY USE OF GOVERNMENT FACILITIES, AND ON BASIS OF FINDING THAT ONLY AWARDEE COULD PERFORM ALL SERVICES REQUIRED WITHIN RESTRICTED TIME FRAME, IS NOT OBJECTIONABLE SINCE ADMINISTRATIVE DETERMINATION AND FINDINGS ESTABLISHED FORMAL ADVERTISING WAS NOT FEASIBLE NOR PRACTICABLE. ACCORDINGLY, SUCH FINDINGS MAY BE ACCORDED FINALITY PROVIDED IN 10 U.S.C. 2310(B). MOREOVER, "PUBLIC EXIGENCY" JUSTIFICATION FOR NEGOTIATION CONFERS CONSIDERABLE DISCRETION ON CONTRACTING OFFICER IN DETERMINING EXTENT OF NEGOTIATION TO BE EMPLOYED. SEE COMP. GEN. DECS. CITED.

TO OLYMPIC BLUEPRINT COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 21, 1970, PROTESTING THE AWARD OF CONTRACT NO. DACW09-70-C-0064 TO CONTINENTAL GRAPHICS UNDER REQUEST FOR PROPOSALS (RFP) NO. DACW09-70-R-0004, ISSUED BY THE LOS ANGELES DISTRICT, CORPS OF ENGINEERS. YOUR PROTEST WAS TRANSMITTED TO OUR OFFICE ON FEBRUARY 9, 1970, BY THE HONORABLE GEORGE MURPHY, UNITED STATES SENATE.

BY LETTER OF MARCH 31, 1970, YOU REQUESTED THAT WE FURNISH YOU A COPY OF THE DEPARTMENT OF THE ARMY REPORT CONCERNING YOUR PROTEST FOR YOUR COMMENTS AND REPLY. WE COMPLIED WITH SUCH REQUEST. THEREAFTER, BY LETTER OF APRIL 16, 1970, YOU REQUESTED ADDITIONAL TIME TO SUBMIT YOUR REPLY TO OUR OFFICE AND BY LETTER OF APRIL 22 WE AGREED, AND ASKED FOR RECEIPT OF YOUR COMMENTS BY MAY 4, 1970. TO DATE WE HAVE HEARD NOTHING FURTHER FROM YOU AND, THEREFORE, WE MUST CONSIDER THE MATTER ON THE RECORD PRESENTLY BEFORE US.

THE SUBJECT RFP WAS ISSUED ON JANUARY 9, 1970, PURSUANT TO A DETERMINATION AND FINDINGS WHICH CITED THE PUBLIC EXIGENCY NEGOTIATION EXCEPTION IN 10 U.S.C. 2304(A)(2). THE PROCUREMENT COVERED REPRODUCTION SERVICES FOR PART OF THE PRINTING REQUIREMENTS FOR THE MISSILE SURVEILLANCE RADAR FACILITIES ("SAFEGUARD" SYSTEM, FORMERLY KNOWN AS THE AMB OR ANTI-BALLISTIC MISSILE PROGRAM). THE DETERMINATION AND FINDINGS, ISSUED PURSUANT TO PARAGRAPH 3-303(A)(II) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) AND 10 U.S.C. 2310(B), STATED IN PERTINENT PART THAT:

"2. PROCUREMENT BY NEGOTIATION OF THE SERVICES IS NECESSARY BECAUSE THE SEPIAS AND NEGATIVES, FROM WHICH OFFSET PLATES WILL BE MADE, MUST BE PRODUCED DURING THE WEEKEND 8-11 JANUARY 1970 (87 HRS.). THE ORIGINAL TRACINGS WILL NOT BE AVAILABLE AFTER 0800 HOURS, 12 JANUARY 1970. THE HALF-SIZE PRINTS MUST BE COMPLETED BY 20 JANUARY 1970. THE REIMBURSABLE ORDER FOR THE SERVICES WAS RECEIVED 18 DECEMBER 1969. A PRE-AWARD SURVEY OF CONTINENTAL GRAPHICS, INC. WAS MADE RECENTLY AND THE FIRM HAS THE CAPABILITY TO PERFORM THE SERVICES IN THE ALLOTTED TIME.

"3. USE OF FORMAL ADVERTISING FOR PROCUREMENT OF THE ABOVE DESCRIBED SERVICE IS IMPRACTICABLE BECAUSE THE TIME FRAME DOES NOT PERMIT THE TIME NECESSARY FOR FORMAL ADVERTISING, CONDUCTING PRE-AWARD SURVEY, ETC."

YOU CONTEND THAT THIS TYPE OF PROCUREMENT IS USUALLY ADVERTISED AND THAT THE INSTANT CONTRACT COULD HAVE BEEN PERFORMED BY SMALL BUSINESS CONCERNS SUCH AS OLYMPIC. IN ITS REPORT TO OUR OFFICE, THE DEPARTMENT OF THE ARMY ADVISES THAT THE SERVICES REQUIRED HAD TO BE ACCOMPLISHED IN A VERY SHORT TIME AND UNTIL A FEW DAYS BEFORE THE ACTUAL DATE WHEN THE SERVICES WERE REQUIRED IT WAS ASSUMED THAT A MAJOR PORTION OF THE SERVICES COULD BE ACCOMPLISHED BY USE OF GOVERNMENT FACILITIES AND ONLY A SMALL PORTION BY CONTRACT. HOWEVER, THE WORKLOAD IN THE LOS ANGELES DISTRICT PREVENTED ACCOMPLISHMENT BY GOVERNMENT FACILITIES AND PERSONNEL.

THE BACKGROUND OF THIS PROCUREMENT WAS INCLUDED IN THE ADMINISTRATIVE REPORT WE FURNISHED TO YOU. IN BRIEF, ON JANUARY 6, 1970, IT WAS DETERMINED THAT THE REPRODUCTION FACILITIES OF THE LOS ANGELES DISTRICT OFFICE WOULD NOT BE AVAILABLE TO PERFORM ANY OF THE WORK PLANNED DUE TO AN UNFORESEEN WORKLOAD. IN VIEW OF THE INSURMOUNTABLE LOGISTIC PROBLEMS THAT WOULD BE CREATED BY TRYING TO HAVE SEVERAL COMMERCIAL FIRMS PERFORM PARTS OF THE WORK AND THE NECESSITY TO ACCOMPLISH THE WORK WITHIN THE RESTRICTED TIME FRAME, IT WAS DETERMINED TO BE IN THE BEST INTERESTS OF THE GOVERNMENT TO NEGOTIATE WITH A FIRM KNOWN TO HAVE THE CAPABILITY OF PERFORMING ALL OF THE SERVICES WITHIN THE TIME ALLOWED. A PRIME FACTOR OF CONSIDERATION WAS THAT ALL OF THE ENGINEERING DESIGN WOULD NOT HAVE BEEN ACCOMPLISHED WHEN THE TRACINGS WERE RELEASED BY THE ARCHITECT-ENGINEER (A- E) AT 5 P.M. ON JANUARY 8, 1970. THE REMAINING DESIGN WAS TO BE INCORPORATED INTO THE DRAWINGS WHEN THEY WERE RETURNED TO THE A-E THE FOLLOWING MORNING. THE CONTRACTING OFFICER THUS HAD BUT 2 DAYS TO AWARD A CONTRACT.

THE SCOPE OF WORK TO BE PERFORMED WITHIN THE TIME FRAME OF THIS PROCUREMENT WAS AS FOLLOWS:

A. (1) 1,523 TRACINGS, FULL SIZE 30" X 42" TO BE RELEASED BY THE A-E AT 5 P.M. ON JANUARY 8, 1970;

(2) PRINT EIGHT SETS OF SEPIAS, FULL SIZE (12,184 DRAWINGS);

(3) PRINT 36 SETS OF BLUE LINES, FULL SIZE (54,828 DRAWINGS);

(4) MAKE 35 MM. MICROFILM OF EACH OF THE 1,523 TRACINGS;

(5) PREPARE A NEGATIVE FROM WHICH OFFSET PLATES WILL BE MADE FOR EACH OF THE 1,523 TRACINGS;

(6) RETURN THE TRACINGS TO THE A-E BY 8 A.M. ON JANUARY 12, 1970. (TOTAL TIME 87 HOURS, 48 HOURS OF WHICH WAS A WEEKEND.)

B. (1) PREPARE 1,523 OFFSET PLATES, HALF SIZE 15" X 21";

(2) PRINT 600 SETS, HALF SIZE (913,800 DRAWINGS);

(3) COLLATE BY ENGINEERING DISCIPLINES;

(4) BIND INTO 600 SETS OF 17 VOLUMES (10,200 VOLUMES);

(5) PACKAGE AND MAIL ALL DRAWINGS BY JANUARY 23, 1970.

SECTION 2304(A), TITLE 10 OF THE U.S.C. PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"(A) PURCHASES OF AND CONTRACTS FOR PROPERTY OR SERVICES COVERED BY THIS CHAPTER SHALL BE MADE BY FORMAL ADVERTISING IN ALL CASES IN WHICH THE USE OF SUCH METHOD IS FEASIBLE AND PRACTICABLE UNDER THE EXISTING CONDITIONS AND CIRCUMSTANCES. IF USE OF SUCH METHOD IS NOT FEASIBLE AND PRACTICABLE, THE HEAD OF AN AGENCY, SUBJECT TO THE REQUIREMENTS FOR DETERMINATIONS AND FINDINGS IN SECTION 2310, MAY NEGOTIATE SUCH A PURCHASE OR CONTRACT IF--

"(2) THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING;"

WHILE THE STATUTE (10 U.S.C. 2304(G)) AND THE REGULATION (ASPR 3 202.2) REQUIRE THAT EVEN WHERE AUTHORITY EXISTS TO NEGOTIATE PROCUREMENTS, PROPOSALS SHOULD BE SOLICITED FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES CONSISTENT WITH THE NATURE AND REQUIREMENTS OF THE SUPPLIES OR SERVICES TO BE PROCURED, THE "PUBLIC EXIGENCY" JUSTIFICATION FOR NEGOTIATION CLOTHES THE CONTRACTING OFFICER WITH A CONSIDERABLE DEGREE OF DISCRETION IN DETERMINING THE EXTENT OF NEGOTIATION CONSISTENT WITH THE EXIGENCY OF THE SITUATION. 44 COMP. GEN. 590 (1965); B-166886, AUGUST 7, 1969. WE FIND NO EVIDENCE THAT IN EXERCISING THIS DISCRETION THE CONTRACTING OFFICER ACTED UNREASONABLY. MOREOVER, SINCE THE RECORD ADEQUATELY SUPPORTS THE DECISION TO LIMIT NEGOTIATIONS TO CONTINENTAL GRAPHICS, IN THE LIGHT OF THE INFORMATION THEN AT HAND, WE FIND NO BASIS TO QUESTION THE AWARD.

WE HAVE REVIEWED THE RECORD SUPPORTING THIS AWARD AND WE BELIEVE THAT THE DETERMINATION AND FINDINGS ESTABLISH THAT FORMAL ADVERTISING WAS NOT FEASIBLE AND PRACTICABLE FOR THE PURPOSES OF THIS PROCUREMENT. THEREFORE, SUCH FINDINGS MAY BE ACCORDED THE FINALITY PROVIDED BY 10 U.S.C. 2310(B). 48 COMP. GEN. 605 (1969). ACCORDINGLY, YOUR PROTEST IS DENIED.