B-170102(2), DEC. 2, 1970

B-170102(2): Dec 2, 1970

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PURCHASE AND REVIEW PERSONEL ARE REMINDED OF THE NECESSITY TO RESPOND SPECIFICALLY TO ALL MATTERS RAISED IN THE PROTEST. AWARD OF CONTRACT TO OTHER THAN LOW BIDDER IS NOT PROPER WHERE AWARD IS MADE ON BASIS OF A WAIVER OF FIRST ARTICLE APPROVAL TO OBTAIN QUICKER DELIVERY. SECRETARY: HEREWITH IS A COPY OF OUR DECISION OF TODAY TO FOREST SCIENTIFIC. OTHER MATTERS HAVE COME TO OUR ATTENTION DURING OUR REVIEW OF THE RECORD WHICH MERIT COMMENT. THE DETERMINATION OF URGENCY MADE BY OAMA WAS WITHOUT FOUNDATION. THE SECOND OF THE TWO REASONS IS SET OUT BELOW: "(2) IN OUR DISCUSSIONS WITH MR. ROHMER IT WAS INDICATED THAT THE MAU 87 COUPLER HAD TO BE BOUGHT IMMEDIATELY BECAUSE THEY HAVE THE 514. AS AN URGENCY PROCUREMENT UNDER DECIDED ASPR REGULATIONS. *** " IMMEDIATELY FOLLOWING THIS ALLEGATION IS A REQUEST FOR OUR IMMEDIATE DECISION AND ADVICE THAT "TIME NEVER HAS SEEMED TO BE A FACTOR IN EXPEDITING INFORMATION FROM HILL AIR FORCE BASE TO YOUR AGENCY.".

B-170102(2), DEC. 2, 1970

LETTER ON RESPONSE TO PROTEST AND IMPROPER AWARD OF CONTRACT. ALTHOUGH THE DECISION DENYING THE PROTEST OF FOREST SCIENTIFIC, INC. DEALT ONLY WITH THE CONTENTIONS THERE ADVANCED, GAO REVIEW OF THE CASE RAISED POINTS WHICH MERIT COMMENT. PURCHASE AND REVIEW PERSONEL ARE REMINDED OF THE NECESSITY TO RESPOND SPECIFICALLY TO ALL MATTERS RAISED IN THE PROTEST. AWARD OF CONTRACT TO OTHER THAN LOW BIDDER IS NOT PROPER WHERE AWARD IS MADE ON BASIS OF A WAIVER OF FIRST ARTICLE APPROVAL TO OBTAIN QUICKER DELIVERY. PRESENT POSTURE OF PROCUREMENT PRECLUDES CORRECTIVE ACTION.

TO MR. SECRETARY:

HEREWITH IS A COPY OF OUR DECISION OF TODAY TO FOREST SCIENTIFIC, INC., DENYING ITS PROTEST AGAINST THE AWARD OF CONTRACTS UNDER INVITATION FOR BIDS (IFB) NO. F42600-70-B-1760, ISSUED BY THE OGDEN AIR MATERIEL AREA (OAMA), HILL AIR FORCE BASE, UTAH.

ALTHOUGH OUR DECISION DEALS ONLY WITH THE CONTENTIONS ADVANCED BY THE PROTESTANT, OTHER MATTERS HAVE COME TO OUR ATTENTION DURING OUR REVIEW OF THE RECORD WHICH MERIT COMMENT.

ON JUNE 25, 1970, WE FORWARDED TO THE DEPARTMENT OF THE AIR FORCE A COPY OF FOREST SCIENTIFIC'S LETTER OF PROTEST AND REQUESTED THAT "A COMPLETE DOCUMENTED REPORT, RESPONSIVE TO THE PROTEST, BE FURNISHED OUR OFFICE AT AN EARLY DATE." THE LETTER OF EARLY DATE." THE LETTER OF PROTEST, DATED JUNE 15, 1970, CLEARLY ENUMERATED TWO REASONS IN SUPPORT OF FOREST SCIENTIFIC'S CONTENTION THAT NO URGENCY EXISTED AND, THEREFORE, THE DETERMINATION OF URGENCY MADE BY OAMA WAS WITHOUT FOUNDATION. THE SECOND OF THE TWO REASONS IS SET OUT BELOW:

"(2) IN OUR DISCUSSIONS WITH MR. JARRARD AND MR. ROHMER IT WAS INDICATED THAT THE MAU 87 COUPLER HAD TO BE BOUGHT IMMEDIATELY BECAUSE THEY HAVE THE 514,000 DRIVE ASSEMBLIES (ATU 35/B) ON HAND TO FULFILL THAT REQUIREMENT SO THAT THE URGENCY FOR THE 477,709 PARTS ON PROTESTED CONTRACT COULD NOT BE NEEDED AT THIS TIME, AS AN URGENCY PROCUREMENT UNDER DECIDED ASPR REGULATIONS. *** "

IMMEDIATELY FOLLOWING THIS ALLEGATION IS A REQUEST FOR OUR IMMEDIATE DECISION AND ADVICE THAT "TIME NEVER HAS SEEMED TO BE A FACTOR IN EXPEDITING INFORMATION FROM HILL AIR FORCE BASE TO YOUR AGENCY."

ON SEPTEMBER 2, 1970, WE RECEIVED A LETTER DATED SEPTEMBER 1, FROM THE CHIEF, CONTRACT PLACEMENT DIVISION, DIRECTORATE OF PROCUREMENT POLICY, DEPUTY CHIEF OF STAFF, SYSTEMS AND LOGISTICS, FURNISHING US A REPORT ON THE PROTEST. HOWEVER, THE INTERVAL OF TIME BETWEEN OUR REQUEST AND THE DEPARTMENT RESPONSE IN THIS INSTANCE IS NOT A MATTER OF CONCERN TO US AT THIS TIME. BUT WE ARE CONCERNED THAT APPARENTLY NO ONE, AT ANY LEVEL DURING EITHER PREPARATION OR REVIEW OF THE INITIAL REPORT, BELIEVED IT NECESSARY TO RESPOND TO FOREST SCIENTIFIC'S SECOND CONTENTION. WHATEVER ELSE MAY BE SAID OF THE REPORT AS AN ATTEMPT TO JUSTIFY THE ACTION TAKEN, THE REPORT, IN THIS RESPECT, WAS NOT RESPONSIVE TO THE LETTER OF PROTEST. MOREOVER, DOCUMENTATION SUPPORTING CERTAIN ALLEGATIONS OF OCCURRENCES ON SPECIFIC DATES WAS NOT PROVIDED IN THE REPORT ALTHOUGH THE DATES AND OCCURRENCES WERE IMPORTANT TO YOUR DEPARTMENT'S AGREEMENT THAT THE ACTION TAKEN BY OAMA DID NOT CIRCUMVENT THE SMALL BUSINESS ADMINISTRATION'S CERTIFICATE OF COMPETENCY (COC) PROCEDURES. UNDER SUCH CIRCUMSTANCES, WE CAN ONLY CONCLUDE THAT THE REPORT DID NOT CONSTITUTE A "COMPLETE DOCUMENTED REPORT" REQUESTED BY OUR OFFICE.

WE HASTEN TO ADD THAT BOTH OF THE FOREGOING DEFICIENCIES WERE PROMPTLY CORRECTED UPON REQUEST FROM OUR OFFICE AND THAT IN BRINGING THIS MATTER TO YOUR ATTENTION, WE DO NOT INTEND TO CRITICIZE ANY PARTICULAR INDIVIDUAL. WE RECOMMEND, HOWEVER, THAT PURCHASING AND REVIEW PERSONNEL BE REMINDED OF THE NECESSITY TO RESPOND SPECIFICALLY TO MATTERS RAISED BY PROTESTANTS AND TO DOCUMENT FULLY ALL FACTS ASSERTED IN THE REPORT.

WITH RESPECT TO THE SECOND MATTER WE WISH TO RAISE, WE NOTE THAT THE IFB SOLICITED PRICES ON AN ALTERNATE BASIS OF A FIRST ARTICLE TESTING REQUIREMENT AND THE WAIVER OF THAT REQUIREMENT. SPECIFICALLY, PARAGRAPH "N" OF THE IFB STATES, IN PERTINENT PART:

"(3) OFFERS SUBMITTED UNDER BID 'A' (FIRST ARTICLE APPROVAL REQUIRED) OR UNDER BID 'B' (FIRST ARTICLE APPROVAL NOT REQUIRED) ARE EQUALLY ACCEPTABLE TO THE GOVERNMENT, AS APPLICABLE, AND AWARD WILL BE MADE THEREON WITH THE BEST INTEREST OF THE GOVERNMENT CONSIDERED. (57 FEB)

"(4) THE GOVERNMENT RESERVES THE RIGHT TO WAIVE ANY OF THE ABOVE REQUIREMENTS AS TO THOSE PREVIOUSLY PROCURED OR TESTED AND APPROVED BY THE GOVERNMENT."

IN VIEW OF THE FACT THAT UNDER THE IFB DELIVERY TIME FOR PRODUCTION ARTICLES WAS THE SAME WHETHER OR NOT FIRST ARTICLE APPROVAL WAS REQUIRED, IT APPEARS THAT THE FIRST ARTICLE APPROVAL REQUIREMENT OR WAIVER OF THE SAME WOULD HAVE NO EFFECT WHATEVER ON THE TIME FOR DELIVERY. CONSEQUENTLY, SO LONG AS NO EXCEPTION WAS TAKEN TO THE GOVERNMENT'S PROPOSED DELIVERY SCHEDULE (AND NO EXCEPTION WAS TAKEN APPARENTLY), DELIVERY TIME WAS NOT A FACTOR IN THE EVALUATION OF BIDS. WE CONCLUDE, THEN, THAT THE "BEST INTEREST OF THE GOVERNMENT" REFERRED TO IN SUBPARAGRAPH (3) OF PARAGRAPH "N" ABOVE HAD REFERENCE TO THE BEST PRICE OBTAINABLE ON EITHER BASIS.

IT WAS DETERMINED IN THIS CASE THAT AWARD HAD TO BE MADE WITHOUT DELAY TO THOSE BIDDERS (NON-SET-ASIDE AND SET-ASIDE PORTIONS) WHO WERE EITHER PRESENTLY IN PRODUCTION OF THE ITEM OR WHO HAD RECENT MANUFACTURING EXPERIENCE IN ORDER TO MEET THE NOW REQUIRED DELIVERY TIME OF OCTOBER 1970. MAXSON ELECTRONICS CORPORATION FELL WITHIN THE LATTER CATEGORY SINCE IT HAD COMPLETED DELIVERY ON THE ITEM IN APRIL 1970 AND, ACCORDINGLY, WAS AWARDED A CONTRACT OF THE NON-SET-ASIDE PORTION OF THE PROCUREMENT. THAT COMPANY HAD SUBMITTED A BID PRICE BASED ON WAIVER OF FIRST ARTICLE. THE PURCHASING ACTIVITY OBVIOUSLY FELT THAT AWARD TO SUCH A FIRM WOULD SAVE TIME WITH RESPECT TO FIRST ARTICLE TESTING AND WOULD ALLOW PRODUCTION TO BEGIN WITH A MINIMUM OF DELAY SO AS TO ACCOMPLISH DELIVERY OF THE FIRST INCREMENT IN OCTOBER 1970.

IN B-168278, MARCH 30, 1970, 49 COMP. GEN. , WE HELD, INTER ALIA, THAT AWARD WAS MADE ON THE BASIS OF A WAIVER OF FIRST ARTICLE APPROVAL SO AS TO OBTAIN QUICKER DELIVERY THAN ORIGINALLY REQUIRED BY THE INVITATION FOR BIDS IN A SITUATION WHERE THE PROCUREMENT WAS URGENTLY NEEDED. THERE ARE, OF COURSE, FACTUAL DIFFERENCES BETWEEN THAT CASE AND THE PRESENT CASE. NONETHELESS, IT APPEARS THAT THE CONTRACTS IN BOTH CASES WERE EVALUATED ON A BASIS NOT PROVIDED FOR IN THE ORIGINAL IFB'S SINCE, IN BOTH INSTANCES, THE TIME SAVED IN NOT OBTAINING FIRST ARTICLE APPROVAL WAS A FACTOR IN EVALUATION FOR AWARD. EVEN IF THE IFB HAD PROVIDED FOR A SHORTER DELIVERY SCHEDULE ON THE BASIS OF WAIVING THE FIRST ARTICLE APPROVAL REQUIREMENT, EVALUATION ON SUCH A BASIS WOULD BE CONTRARY TO PARAGRAPH 1-1903(A)(I) OF THE ARMED SERVICES PROCUREMENT REGULATION. WHILE AWARD TO MAXSON OF THE NON-SET-ASIDE PORTION ON SUCH A BASIS WAS, THEREFORE, IMPROPER, THE PRESENT POSTURE OF THE PROCUREMENT PRECLUDES CORRECTIVE ACTION AT THIS LATE DATE. HOWEVER, WE RECOMMEND, AS STATED IN B-168278, SUPRA, IN FUTURE SIMILAR CIRCUMSTANCES THAT THE IFB BE CANCELED AND THE PROCUREMENT NEGOTIATED UNDER 10 U.S.C. 2304(A)(2) AS AN URGENT PROCUREMENT.