B-170544(4), JAN 22, 1971

B-170544(4): Jan 22, 1971

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IT PROVIDES FOR USE OF A GENERATOR ASSEMBLY AND GOVERNING SYSTEM OTHER THAN THE ONE PRESENTLY EMPLOYED BY THE CURRENT SUPPLIER AND THERE IS NO REASON WHY ASSEMBLY OF THE ITEM IN QUESTION COULD NOT BE DONE BY ANY RESPONSIBLE CONTRACTOR. ANY ATTEMPT BY THE GOVERNMENT TO ISSUE A SECOND DELIVERY ORDER THAT COULD BE FILLED ONLY BY DECREASING THE TIME THE CONTRACTOR WOULD OTHERWISE HAVE AS A CONTRACT RIGHT TO PRODUCE AND TEST THE FIRST ARTICLE WOULD NOT BE ENFORCEABLE. THE PROTEST IS DENIED. TO BOGUE ELECTRIC MANUFACTURING COMPANY: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 24. THE PROCUREMENT WAS UNDERTAKEN TO SATISFY THE REQUIREMENTS OF A MILITARY INTERDEPARTMENTAL PURCHASE REQUEST (MIPR) FROM THE AIR FORCE REFLECTING THAT THE REQUIREMENTS TO BE COVERED ARE BASICALLY THOSE OF FISCAL YEAR 1971.

B-170544(4), JAN 22, 1971

BID PROTEST - COMPETITIVE ADVANTAGE DENIAL OF PROTEST BY BOGUE ELECTRIC MANUFACTURING COMPANY AGAINST AWARD OF A NEGOTIATED CONTRACT ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER FOR 10 DIFFERENT TYPES OF DIESEL-ELECTRIC GENERATOR SETS TO ANY OTHER BIDDER. ALTHOUGH THE PROCUREMENT HAS SOME RESTRICTIVE FEATURES, IT PROVIDES FOR USE OF A GENERATOR ASSEMBLY AND GOVERNING SYSTEM OTHER THAN THE ONE PRESENTLY EMPLOYED BY THE CURRENT SUPPLIER AND THERE IS NO REASON WHY ASSEMBLY OF THE ITEM IN QUESTION COULD NOT BE DONE BY ANY RESPONSIBLE CONTRACTOR. FURTHER, WHERE COMPONENTS REQUIRED FOR FIRST ARTICLE COULD BE MADE AVAILABLE WITHIN THE TIME ALLOTTED, ANY ATTEMPT BY THE GOVERNMENT TO ISSUE A SECOND DELIVERY ORDER THAT COULD BE FILLED ONLY BY DECREASING THE TIME THE CONTRACTOR WOULD OTHERWISE HAVE AS A CONTRACT RIGHT TO PRODUCE AND TEST THE FIRST ARTICLE WOULD NOT BE ENFORCEABLE. FOR THE ABOVE REASONS, THE PROTEST IS DENIED.

TO BOGUE ELECTRIC MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 24, 1970, AND LETTER OF THE SAME DATE PROTESTING AWARD OF ANY CONTRACT UNDER REQUEST FOR PROPOSAL NO. DSA-400-70-R-8075.

THE INSTANT SOLICITATION, ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA, ON JUNE 30, 1970, REQUESTED OFFERS FOR DEPARTMENT OF THE AIR FORCE REQUIREMENTS FOR TEN DIFFERENT TYPES OF DIESEL-ELECTRIC GENERATOR SETS, ALL BELONGING TO THE FAMILIES OF TYPES MB-15 THROUGH MB- 19, FURNISHING 150, 100, 60, 30 AND 15 KW OF POWER, RESPECTIVELY. THE PROCUREMENT WAS UNDERTAKEN TO SATISFY THE REQUIREMENTS OF A MILITARY INTERDEPARTMENTAL PURCHASE REQUEST (MIPR) FROM THE AIR FORCE REFLECTING THAT THE REQUIREMENTS TO BE COVERED ARE BASICALLY THOSE OF FISCAL YEAR 1971, WITH THE AIR FORCE FURNISHING ITS BEST ESTIMATE FOR THE QUANTITY OF EACH OF THE GENERATOR SETS IT ANTICIPATES WILL BE REQUIRED, THE TOTAL QUANTITY IN ASSORTED SIZES AMOUNTING TO 1176 UNITS. THE CONTRACT PERIOD WAS LATER AMENDED TO BEGIN ON NOVEMBER 30, 1970, OR DATE OF AWARD, WHICHEVER IS LATER, AND WILL CONTINUE FOR ORDERING PURPOSES UNTIL FEBRUARY 28, 1972.

THE THREE BASIC ISSUES RAISED IN YOUR PROTEST ARE:

I - FERMONT DIVISION, DYNAMICS CORPORATION OF AMERICA (FERMONT) HAS A COMPETITIVE ADVANTAGE SINCE IT IS MAKING SOLE SOURCE THE PARTS THAT OTHER COMPANIES COULD MAKE IF COMPLETE DRAWINGS AND SPECIFICATIONS WERE MADE AVAILABLE TO THEM.

IN RESPONSE TO A SIMILAR CONTENTION RAISED BY THE A. G. SCHOONMAKER COMPANY, INC., IT HAS BEEN REPORTED BY THE CONTRACTING OFFICER IN PERTINENT PART:

"THE *** POINT SET FORTH IN THE PROTEST IS THAT CERTAIN ELECTRONIC EQUIPMENT MUST BE BOUGHT FROM ONE MANUFACTURER, NAMELY THAT CONTRACTOR WHO IS PRESENTLY PRODUCING THE GENERATOR SETS FOR THE AIR FORCE. FERMONT DIVISION, DYNAMICS CORPORATION OF AMERICA IS THE CURRENT CONTRACTOR. APPEARS THAT THE PROTESTANT HAS NOT CONSIDERED THE PROVISION ON PAGE 3 OF AMENDMENT NO. 2 TO THE RFP. IT IS SPECIFICALLY STATED THEREIN THAT THE USE OF THE GENERAL ELECTRIC COMPANY GENERATOR ASSEMBLY AND THE WOODWARD HYDRAULIC GOVERNING SYSTEM IN LIEU OF THE KATO GENERATOR ASSEMBLY AND ELECTRONIC GOVERNING SYSTEM IS PERMISSABLE. THE FILES FURNISHED THIS CENTER REFLECT THAT THE GENERAL ELECTRIC COMPANY GENERATOR ASSEMBLY AND THE WOODWARD HYDRAULIC GOVERNING SYSTEM WERE IN THE ORIGINALLY STANDARDIZED SETS AND THE USE OF THE KATO GENERATOR AND FERMONT GOVERNOR AROSE THROUGH ACCEPTANCE OF A VALUE ENGINEERING PROPOSAL MADE BY FERMONT. IT WAS CONSIDERED THAT THIS REDESIGNATION OF TWO COMPONENTS DID NOT AFFECT INTERCHANGEABILITY OF PARTS AND CONSEQUENTLY PURSUANT TO ASPR 3-213.2(E) DID NOT REQUIRE REVISION OF THE STANDARDIZATION APPROVAL PREVIOUSLY GIVEN IN D & F 67 13-3.

"AS MENTIONED IN PARAGRAPH 9 OF THIS CENTER'S ORIGINAL REPORT, THE PERMITTED USE OF A KATO GENERATOR AND FERMONT GOVERNOR GREW OUT OF A VALUE ENGINEERING PROPOSAL SUBMITTED BY FERMONT AND ACCEPTED BY THE AIR FORCE. *** THE AIR FORCE DID NOT PURCHASE OR DEVELOP PRODUCTION DRAWINGS SUITABLE FOR USE IN MANUFACTURING THESE FEW COMPONENTS PRIMARILY BECAUSE THEY DID NOT EXPECT TO HAVE FUTURE USE FOR SUCH DRAWINGS AND CONSEQUENTLY, DID NOT BELIEVE THE ADDITIONAL EXPENSE COULD BE JUSTIFIED. *** THE DRAWING THAT DID NOT SHOW THE BASIC MANUFACTURER, 69 B 38208, HAS BEEN CHANGED TO SHOW SUCH MANUFACTURER AS PART OF AMENDMENT NO. 6 TO THE REQUEST FOR PROPOSALS. HOWEVER, PERMITTING OFFERS CALCULATED ON 'EQUAL' PARTS AS DESIRED BY SCHOONMAKER (AND PRESUMABLY BOGUE) AND CONSEQUENTLY, PERMITTING CONTRACTORS TO FURNISH ITEMS WITH SUCH 'EQUAL' PARTS WITHOUT CONSIDERATION OF THE EFFECT THAT SUCH PROLIFERATION OF PARTS COULD HAVE ON THE GENERATOR PROGRAM IS TOTALLY INCOMPATIBLE WITH THE OBJECTIVES SOUGHT TO BE OBTAINED IN A STANDARDIZATION PROCUREMENT."

THIS PROCUREMENT, SIMILAR TO MOST STANDARDIZATION PROCUREMENTS, HAS SOME RESTRICTIVE FEATURES, AND TO THAT EXTENT THE CURRENT CONTRACTOR MAY HAVE SOME ADVANTAGE OVER OTHER PROSPECTIVE CONTRACTORS. HOWEVER, WE DO NOT FEEL THERE IS ANY REASON WHY ASSEMBLY OF THE ITEMS IN QUESTION COULD NOT BE DONE BY ANY RESPONSIBLE CONTRACTOR USING THE RESTRICTED COMPONENTS TOGETHER WITH THE NON-RESTRICTED ONES, AND WE FAIL TO SEE WHERE THE USE OF SUCH SOLE SOURCE ITEMS WOULD NECESSARILY RESULT IN A GREATER COST TO THE GOVERNMENT.

II - YOU ALSO CONTEND THAT CERTAIN OF THE SOLE SOURCE COMPONENTS WOULD NOT BE AVAILABLE IN TIME TO PRODUCE THE FIRST ARTICLE WITHIN THE TIME ALLOTTED (145 DAYS) UNDER THE SOLICITATION.

IN SUPPORT OF THIS CONTENTION YOU HAVE FURNISHED QUOTATIONS FROM FERMONT AND STEWART WARNER CORPORATION (SW) QUOTING 180 AND 150 DAYS DELIVERY, RESPECTIVELY. IT IS REPORTED THAT SINCE THESE QUOTATIONS SHOWED DATES FOR DELIVERY OF PRODUCTION QUANTITIES OF THE COMPONENTS AND DID NOT INDICATE WHEN THE ONE TO FIVE UNITS NEEDED FOR FIRST ARTICLES COULD BE DELIVERED, THE BUYER INQUIRED OF SW AND FERMONT IF AND WHEN THE COMPONENTS NEEDED FOR FIRST ARTICLE COULD BE MADE AVAILABLE. SW ADVISED THAT IT IS PRESENTLY FURNISHING THE SAME ITEM (HEATER KIT) TO FERMONT, THE CURRENT CONTRACTOR, AND THAT IT COULD PULL 1 TO 10 UNITS FROM ITS PRODUCTION LINE TO SHIP TO ANYONE WHO NEEDS THE UNITS SOON AFTER IT RECEIVES THE ORDER. FERMONT ADVISED BY TELEPHONE AND CONFIRMED BY TELEGRAM THAT IT COULD DELIVER SOLE SOURCE ITEMS TO THE SUCCESSFUL OFFEROR IN 90 TO 120 DAYS IN SUFFICIENT QUANTITY TO MAKE FIRST ARTICLES. IN THIS REGARD, WE HAVE BEEN INFORMALLY ADVISED BY A REPRESENTATIVE OF FERMONT THAT A SIMILAR TELEGRAM WAS SENT TO ALL COMPANIES REQUESTING QUOTATIONS ON DECEMBER 1, 1970. THEREFORE, IN VIEW OF THE REPORTED FACTS, IT WOULD APPEAR THAT THE SOLE SOURCE ITEMS CAN BE OBTAINED WITHIN SUFFICIENT TIME TO MEET THE FIRST ARTICLE DELIVERY SCHEDULE.

III - YOUR THIRD CONTENTION IS THAT THE DELIVERY SCHEDULE IS CONSTRUCTED SO AS TO PERMIT THE GOVERNMENT TO REQUIRE DELIVERY OF GENERATORS ORDERED UNDER A SECOND DELIVERY ORDER PRIOR TO DELIVERIES UNDER THE FIRST DELIVERY ORDER. IN RESPONSE TO THIS ASSERTION THE CONTRACTING OFFICER HAS ADVISED:

"FROM A READING OF THE REQUEST FOR PROPOSALS, AS A WHOLE, IT IS APPARENT THAT THE DELIVERY TIME FOR THE FIRST DELIVERY ORDER FOR EACH GENERATOR SET IS EXTENDED BEYOND THE DELIVERY TIME FOR SUBSEQUENT ORDERS TO GIVE CONTRACTORS A CERTAIN AMOUNT OF TIME TO PRODUCE AND TEST THE FIRST ARTICLES. THE PROVISIONS OF THE FIRST ARTICLE CLAUSE SPECIFICALLY GIVE THE CONTRACTOR A CERTAIN AMOUNT OF TIME TO PRODUCE AND TEST THE FIRST ARTICLE AND THIS TIME IS CALCULATED FROM THE ISSUANCE OF THE FIRST DELIVERY ORDER. THE CONTRACTOR IS NOT EXPECTED TO BEGIN QUANTITY PRODUCTION UNTIL THE FIRST ARTICLE IS APPROVED. THE GOVERNMENT WILL NOT ISSUE A SECOND DELIVERY ORDER THAT CAN BE FILLED ONLY BY DECREASING THE TIME THE CONTRACTOR WOULD OTHERWISE HAVE AS A CONTRACT RIGHT TO PRODUCE AND TEST THE FIRST ARTICLE AND IT IS BELIEVED THAT IF IT ATTEMPTED TO DO SO, THE DELIVERY PROVISIONS OF THE SECOND ORDER WOULD NOT BE ENFORCEABLE. THE DELIVERY ORDER TIMES ARE SHOWN IN THE LAST FEW LINES OF THE PAGE NUMBERED 43 OF AMENDMENT NO. 6."

FROM OUR REVIEW OF PAGE 43, AS AMENDED, IT IS CLEAR THAT A LEAD TIME OF 150 DAYS IS GIVEN FOR SUCCEEDING ORDERS, AND WE THEREFORE AGREE WITH THE STATEMENT OF THE CONTRACTING OFFICER THAT A DIFFERENT INTERPRETATION OF THE DELIVERY PROVISIONS WOULD NOT BE ENFORCEABLE.

FOR ALL OF THE FOREGOING REASONS, YOUR PROTEST IS DENIED.