B-169877, JUL. 20, 1970

B-169877, JUL. 20, 1970

BID PROTEST -- EVALUATION -- TECHNICAL REPLACEMENT PARTS DECISION DENYING PROTEST OF DOMAR DYNAMIC PRODUCTS, INC. AGAINST NEGOTIATED AWARD OF OXYGEN AND NITROGEN SERVICING TRAILERS WITH MANUFACTURES BY NAVAL AVIATION SUPPLY OFFICE. PROTESTANT WHOSE DATA PRECLUDED A POSITIVE DETERMINATION OF ACCEPTABILITY OF AN ITEM OF SPECIALIZED EQUIPMENT FOR REPLACEMENT MAY NOT HAVE EXCEPTION TAKEN TO ADMINISTRATIVE EVALUATION SINCE PROCUREMENT WAS NEGOTIATED UNDER 10 U.S.C. 2304(A)(10) AND REJECTION OF PROTESTANT'S PROPOSAL IS SUPPORTED BY TECHNICAL EVALUATION REPORT.

TO DOMAR DYNAMIC PRODUCTS, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 19, 1970, PROTESTING ANY AWARD OTHER THAN TO YOUR COMPANY UNDER REQUEST FOR PROPOSALS NO. SBSA- N00383-70-R-0174, ISSUED MARCH 2, 1970, BY THE AVIATION SUPPLY OFFICE, DEPARTMENT OF THE NAVY, PHILADELPHIA, PENNSYLVANIA, FOR SIX ITEMS OF SPARE PARTS REQUIRED IN SUPPORT OF OXYGEN AND NITROGEN SERVICING TRAILERS WHICH HAD BEEN MANUFACTURED BY HENRY SPEN & COMPANY, INCORPORATED, BROOKLYN, NEW YORK, AND STEWART AVIONICS, INCORPORATED, LINDEN, NEW JERSEY.

THE REQUEST FOR PROPOSALS WAS ISSUED PURSUANT TO THE CONTRACT NEGOTIATION AUTHORITY OF 10 U.S.C. 2304(A)(10), WHICH PERMITS NEGOTIATION WHEN IT IS IMPRACTICABLE TO OBTAIN COMPETITION BY FORMAL ADVERTISING. UNDER PARAGRAPH (XV) OF SECTION 3-210.2, ARMED SERVICES PROCUREMENT REGULATION, A CONTRACT MAY BE NEGOTIATED UNDER THIS EXCEPTION WHEN THE CONTEMPLATED PROCUREMENT IS FOR PARTS OR COMPONENTS BEING PROCURED AS REPLACEMENT PARTS IN SUPPORT OF EQUIPMENT SPECIALLY DESIGNED BY THE MANUFACTURER, WHERE DATA IS NOT ADEQUATE TO ASSURE THAT THE PART OR COMPONENT, IF PROCURED BY FORMAL ADVERTISING, WILL PERFORM THE SAME FUNCTION IN THE EQUIPMENT AS THE PART OR COMPONENT IT IS TO REPLACE.

PROPOSALS INITIALLY WERE REQUESTED FROM HENRY SPEN & COMPANY, INCORPORATED, AND STEWART AVIONICS, INCORPORATED. THEIR PARTS HAD BEEN ESTABLISHED AS TECHNICALLY ACCEPTABLE AND THEIR PART NUMBERS WERE LISTED IN THE SYNOPSIS OF THE PROPOSED PROCUREMENT AS PUBLISHED IN THE COMMERCE BUSINESS DAILY. YOU REQUESTED AND RECEIVED A COPY OF THE REQUEST FOR PROPOSALS, AND PROPOSALS WERE RECEIVED FROM ALL THREE COMPANIES ON OR BEFORE MARCH 23, 1970, THE SPECIFIED CLOSING DATE FOR THE RECEIPT OF PROPOSALS.

YOUR PROPOSAL WAS ACCOMPANIED BY A LETTER INDICATING THAT YOU INTENDED TO FURNISH PARTS EQUAL TO THE SPEN-STEWART PARTS, THAT THE PRESIDENT OF YOUR COMPANY AND ANOTHER COMPANY ENGINEER FORMERLY HAD BEEN EMPLOYED BY EITHER ONE OR BOTH OF THE ORIGINAL EQUIPMENT MANUFACTURERS, AND THAT THEY HAD EXPERIENCE IN DEVELOPING AND DESIGNING MANY ITEMS OF GROUND SUPPORT EQUIPMENT WHILE WORKING WITH THOSE CONCERNS. YOU INDICATED IN YOUR LETTER OF MAY 19, 1970, TO OUR OFFICE, THAT YOU HAD SUBMITTED THE LOWEST PROPOSAL, THAT THERE HAD BEEN A CONSIDERABLE DELAY IN MAKING A TECHNICAL EVALUATION OF THE PROPOSAL AND THAT YOU DID NOT BELIEVE THAT AN AWARD WOULD BE MADE TO YOUR COMPANY. YOU EXPRESSED THE OPINION THAT THE GOVERNMENT SHOULD NOT BE PLACED IN THE POSITION OF NOT BEING ABLE TO BUY FROM ANOTHER SOURCE OF SUPPLY, PARTICULARLY SINCE THE PARTS IDENTIFIED BY THE SPEN-STEWART PART NUMBERS ARE COVERED BY BUREAU OF AERONAUTICS DRAWINGS AND/OR VENDOR PART NUMBERS. YOU STATED THAT THE HOSE ASSEMBLY, THE PURIFIER ASSEMBLY AND THE BLEED VALVE ASSEMBLY, ITEMS NOS. 1, 2 AND 5 OF THE REQUEST FOR PROPOSALS, ARE AVAILABLE FROM CERTAIN MANUFACTURERS AND THAT THE ASSEMBLIES CALLED FOR UNDER ITEMS NOS. 2, 3, 4, 5 AND 6 OF THE REQUEST FOR PROPOSALS ARE COVERED BY BUREAU OF AERONAUTICS DRAWINGS NOS. 55A4762, 55A47B1, 55A47B24 AND 55A46B26, 55A47C10, AND 55A46B18.

THE CONTRACTING OFFICER STATES IN REGARD TO YOUR PROTEST THAT YOU SUBMITTED INADEQUATELY DIMENSIONED OUTLINE DRAWINGS AND THAT THE BUREAU OF AERONAUTICS DRAWINGS REFERRED TO IN YOUR LETTER OF MAY 19, 1970, ARE NOT TECHNICALLY COMPLETE OR ADEQUATE FOR MANUFACTURE. IT IS REPORTED THAT THE PRESIDENT OF YOUR COMPANY WAS ADVISED AT A MEETING ON MAY 8, 1970, THAT THE PRODUCTS OF YOUR COMPANY COULD NOT BE EVALUATED WITHOUT COMPLETE AND EXTENSIVE TEST, AND WITHOUT COMPLETE ENGINEERING DRAWINGS. BASED UPON A TECHNICAL EVALUATION OF ALL DATA AVAILABLE CONCERNING THE PARTS WHICH THE GOVERNMENT PROPOSED TO PURCHASE, THE AVIATION SUPPLY OFFICE WAS UNABLE TO MAKE A POSITIVE DETERMINATION OF ACCEPTABILITY CONCERNING YOUR PROPOSAL. THE AVAILABLE DATA WAS NOT CONSIDERED ADEQUATE TO ASSURE THAT PARTS OR COMPONENTS FURNISHED BY A CONCERN OTHER THAN HENRY SPEN & COMPANY, INCORPORATED, OR STEWART AVIONICS, INCORPORATED, WOULD PERFORM THE SAME FUNCTIONS AS THE PARTS OR COMPONENTS TO BE REPLACED. THE CONTRACTING OFFICER WAS ADVISED BY COGNIZANT TECHNICAL PERSONNEL AT THE AVIATION SUPPLY OFFICE THAT, BECAUSE OF THE NATURE OF THE OXYGEN AND NITROGEN SERVICING TRAILERS UTILIZING THESE COMPONENTS, SERIOUS INJURY COULD BE INFLICTED UPON NAVAL PERSONNEL OPERATING THE EQUIPMENT IN THE EVENT OF MALFUNCTION OF THESE PARTS.

NEGOTIATION OF A CONTRACT OR CONTRACTS WAS CONSIDERED NECESSARY IN THE FIRST INSTANCE BECAUSE DATA WAS NOT ADEQUATE TO ASSURE THAT PARTS OBTAINABLE FROM SOURCES OTHER THAN THE MANUFACTURERS OF THE SPECIALIZED EQUIPMENT WOULD PERFORM SATISFACTORILY. THE RESPONSIBILITY FOR TECHNICAL EVALUATIONS OF BIDS OR PROPOSALS RESTS PRIMARILY WITH THE GOVERNMENT CONTRACTING AGENCIES CONCERNED, AND WE FIND NO BASIS FOR TAKING EXCEPTION TO THE REPORTED INABILITY OF THE AVIATION SUPPLY OFFICE TO MAKE A POSITIVE DETERMINATION OF ACCEPTABILITY CONCERNING YOUR PROPOSAL.

ACCORDINGLY, YOUR PROTEST TO OUR OFFICE IN THE MATTER IS HEREBY DENIED.