B-171226, JAN 8, 1971

B-171226, JAN 8, 1971

BID PROTEST - REBUILT AND OVERHAULED EQUIPMENT DENIAL OF PROTEST BY SIMMONDS PRECISION PRODUCTS, INC., AGAINST AWARD OF A CONTRACT TO ANY OFFEROR FOR TRANSMITTERS (SIMMONDS PRECISION PART NO. EA515B695) PURSUANT TO AN RFP ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER. ALTHOUGH PROTESTANT WAS ONLY FIRM SOLICITED, OTHER FIRMS REQUESTED COPIES OF RFP AND SUBMITTED PROPOSALS OFFERING REBUILT AND OVERHAULED EQUIPMENT AND THE REQUISITIONING ACTIVITY NOTIFIED THE CONTRACTING OFFICER THAT SUCH EQUIPMENT WOULD SATISFY ITS NEEDS, NOTWITHSTANDING THAT THE RFP INITIALLY PROVIDED ONLY FOR "NEW MATERIAL". IF THE SURPLUS DEALER CAN FULFILL THE CONTRACT AND, AS HERE, NO OFFEROR WAS ADVISED OF THE ACCEPTABILITY OF SURPLUS EQUIPMENT UNTIL ISSUANCE OF THE AMENDMENT, THE ASPR 1-208 RECOGNIZES THAT THE NEED OF THE GOVERNMENT MAY BE MET AND ECONOMIES EFFECTED THOUGH THE PURCHASE OF ITEMS THAT ARE NOT NEW AND THEREFORE THE PROTEST MUST BE DENIED.

TO SIMMONDS PRECISION PRODUCTS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 3, 1970, PROTESTING AGAINST AWARD OF A CONTRACT TO ANY OFFEROR OF SURPLUS OVERHAULED OR RECONDITIONED EQUIPMENT PURSUANT TO REQUEST FOR PROPOSALS NO. DSA 400-70-R -7344, ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA.

THE SUBJECT RFP WAS ISSUED ON MAY 21, 1970, WITH A CLOSING DATE OF JUNE 5, 1970, FOR TRANSMITTERS IDENTIFIED AS SIMMONDS PRECISION PART NO. EA515B695. THE RESULTING CONTRACT WAS TO COVER REQUIREMENTS, ESTIMATED AT 350 UNITS, FROM THE DATE OF AWARD TO JUNE 11, 1971. ALTHOUGH SIMMONDS WAS THE ONLY FIRM INITIALLY SOLICITED, FIVE OTHER FIRMS REQUESTED COPIES OF THE RFP AFTER THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY. THE CLOSING DATE WAS EXTENDED BY AN AMENDMENT TO THE RFP UNTIL JUNE 15, 1970. TIMELY PROPOSALS WERE RECEIVED FROM YOU, D. MOODY & CO., INC., AND MULTI-ENGINEERING, INC.

MOODY SUBMITTED A PROPOSAL FOR THE SIMMONDS PART NUMBER SPECIFIED, BUT STATED THE TRANSMITTERS WOULD BE "REBUILT WITH NEW PARTS AND CERTIFIED SERVICEABLE BY AN AUTHORIZED FAA REPAIR FACILITY" AND THAT THEY WERE OBTAINED FROM AIR FORCE SURPLUS IN NOVEMBER 1964. MULTI ENGINEERING OFFERED THE SIMMONDS PART NUMBER SPECIFIED AND STATED, "EVEN THOUGH NEW, THE TRANSMITTERS ARE COMPLETELY OVERHAULED WITH NEW ELECTRICAL AND CURE PARTS IN ACCORD WITH MANUFACTURERS SPECIFICATIONS AND ARE ALSO FAA CERTIFIED TO 'O' TIME." BECAUSE OF THE TWO OFFERS TO FURNISH OTHER THAN "NEW" EQUIPMENT AS REQUIRED AND DEFINED IN THE RFP, THE CONTRACTING OFFICER ASKED THE REQUISITIONING ACTIVITY IF SURPLUS EQUIPMENT WOULD SATISFY ITS NEEDS. THE REPLY WAS AFFIRMATIVE, PROVIDED OVERHAUL INSPECTION AND TESTING WERE ACCOMPLISHED IN ACCORDANCE WITH T.O. 5L14-3-8- 3, SECTION 3, AND SPECIFIC DATA SHEET NUMBER 18, PAGE 127, AND PROVIDED THAT CHECKING FOR CORROSION WAS ACCOMPLISHED. THEREFORE, ON OCTOBER 7, 1970, THE RFP WAS AMENDED TO PROVIDE FOR ACCEPTANCE OF PROPOSALS FOR SURPLUS EQUIPMENT TESTED IN ACCORDANCE WITH THE FOREGOING, AND TO EXTEND THE CLOSING DATE TO NOVEMBER 12, 1970. YOU AND THE OTHER TWO FIRMS ACKNOWLEDGED RECEIPT OF THE AMENDMENT. NO AWARD HAS BEEN MADE.

FIRST, YOU CONTEND THAT A SURPLUS DEALER WHO IS NOT A MANUFACTURER OF THE EQUIPMENT IS NOT CAPABLE OF MEETING THE REQUIREMENTS, WHICH MAY EXCEED THE ESTIMATED QUANTITY OF 350, IF ACCEPTABLE SURPLUS PROPERTY IS NOT AVAILABLE. IN THIS CONNECTION, YOU CONTEND THAT A SURPLUS DEALER CANNOT ESTABLISH THAT THE SURPLUS EQUIPMENT CONFORMS TO THE TECHNICAL REQUIREMENTS OF THE EQUIPMENT SINCE SPECIFICATIONS AND DRAWINGS WERE NOT MADE AVAILABLE BY THE GOVERNMENT. FURTHER, YOU ARGUE THAT A SURPLUS DEALER MAY INTEND TO SUPPLY THE GOVERNMENT'S REQUIREMENTS THROUGH SUBCONTRACTING, WHICH YOU CONTEND IS CONTRARY TO PROPER PROCUREMENT PROCEDURES.

DSA POINTS OUT THAT UNDER NO CIRCUMSTANCES CAN THE QUANTITIES ORDERED UNDER ANY CONTRACT AWARDED EXCEED 176 UNITS SINCE THE CONTRACT ORDERING PERIOD RUNS FROM THE DATE OF AWARD THROUGH JUNE 11, 1971, AND DELIVERY OF NO MORE THAN 88 UNITS PER 120-DAY PERIOD CAN BE REQUIRED. A PREAWARD SURVEY OF MOODY'S CAPABILITY SHOWED THAT IT HAD FIRM COMMITMENTS FROM SUBCONTRACTORS SUFFICIENT TO MEET THE REQUIREMENTS ON SCHEDULE. WITH REGARD TO TECHNICAL CONFORMANCE, DSA POINTS OUT THAT MOODY IS OFFERING THE EXACT SIMMOND'S PART NUMBER SPECIFIED, AND THAT THE RFP, AS AMENDED, REQUIRES COMPLIANCE WITH TESTING PROCEDURES BEFORE ACCEPTANCE. DSA ALSO POINTS OUT THAT THERE IS NO PROHIBITION, STATUTORY, REGULATORY, OR IN THE RFP, AGAINST A REGULAR DEALER IN SURPLUS SUPPLYING THE GOVERNMENT'S NEEDS THROUGH SUBCONTRACTING. SINCE THE FOREGOING DETERMINATIONS RELATE TO MOODY'S CAPABILITY TO PERFORM THE CONTRACT, A MATTER PRIMARILY FOR DETERMINATION BY THE CONTRACTING OFFICER, THERE IS NO BASIS FOR OUR OFFICE TO TAKE EXCEPTION IN THE ABSENCE OF CONVINCING EVIDENCE THAT SUCH DETERMINATIONS WERE ARBITRARY, CAPRICIOUS, OR ERRONEOUS. 45 COMP. GEN. 4, 7 (1965). THE CASES CITED BY YOU WITH REGARD TO THIS PROPOSITION ARE READILY DISTINGUISHABLE.

SECOND, YOU CONTEND THAT SINCE THE RFP INITIALLY PROVIDED ONLY FOR "NEW MATERIAL" THE PROPOSALS BY MOODY AND MULTI-ENGINEERING TO SUPPLY SURPLUS OVERHAULED OR RECONDITIONED MATERIAL WERE NONRESPONSIVE AND SHOULD HAVE BEEN REJECTED. IN SUPPORT OF THIS CONTENTION YOU CITE B 162826, JANUARY 23, 1968 (47 COMP. GEN. 390). IN THAT CASE THE RFP INCLUDED THE "NEW MATERIAL" AND "GOVERNMENT SURPLUS" PROVISIONS PRESCRIBED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1208(A) AND (D), RESPECTIVELY, WHICH REQUIRE THAT EVEN SURPLUS PROPERTY BE "NEW (NOT USED OR RECONDITIONED, AND NOT OF SUCH AGE OR SO DETERIORATED AS TO IMPAIR THEIR USEFULNESS OR SAFETY)." OFFERS TO FURNISH "OVERHAULED CERTIFIED" EQUIPMENT WERE RECEIVED AND THE CONTRACTING OFFICER'S QUERY TO THE REQUISITIONING ACTIVITY AS TO THEIR ACCEPTABILITY WAS NEGATIVE. THEREFORE, SUCH OFFERS WERE CONSIDERED NONRESPONSIVE. IN THE INSTANT CASE, THE REQUISITIONING ACTIVITY CONCLUDED THAT OTHER THAN NEW EQUIPMENT WOULD SATISFY ITS NEEDS. ASPR 3-805.1(E) AUTHORIZES AMENDMENT OF THE RFP WHEN, DURING NEGOTIATIONS, A SUBSTANTIAL CHANGE OCCURS IN THE GOVERNMENT'S REQUIREMENTS. SINCE THE RFP OVERSTATED THE MINIMUM NEEDS OF THE GOVERNMENT, THE CONTRACTING OFFICER WOULD HAVE BEEN JUSTIFIED IN CANCELLING AND RESOLICITING ON THE BASIS OF REVISED SPECIFICATIONS IF OTHER POTENTIAL SOURCES COULD THEREBY HAVE BEEN GENERATED. IN THIS CONNECTION, ASPR 1-1208 RECOGNIZES THAT THE NEEDS OF THE GOVERNMENT MAY SOMETIMES BE MET, AND ECONOMIES EFFECTED, THROUGH THE PURCHASE OF ITEMS THAT ARE NOT NEW. HOWEVER, SINCE YOU WERE AFFORDED AN OPPORTUNITY TO REVISE YOUR PROPOSAL AFTER THE AMENDMENT, INCLUDING QUOTING ON SURPLUS EQUIPMENT, WE FIND THAT YOU WERE NOT PREJUDICED.

FINALLY, YOU STATE THAT THERE MAY HAVE BEEN A VIOLATION OF ASPR 3 106.1, CONCERNING PREQUALIFICATION OF OFFERORS, AND ASPR 3-805.1(E), CONCERNING THE SIMULTANEOUS NOTIFICATION TO OFFERORS OF ANY CHANGES IN THE GOVERNMENT'S REQUIREMENTS DURING NEGOTIATIONS. YOU IMPLY THAT MOODY AND MULTI-ENGINEERING WERE INFORMED PRIOR TO THE ORIGINAL CLOSING DATE THAT SURPLUS EQUIPMENT WOULD BE ACCEPTABLE, WHEREAS YOU WERE NOT SO INFORMED UNTIL ISSUANCE OF THE AMENDMENT. IT IS YOUR BELIEF THAT THIS PROTRACTED PERIOD OF TIME PERMITTED THEM TO SHOP AROUND FOR SUFFICIENT SURPLUS EQUIPMENT TO MEET THE GOVERNMENT'S NEEDS. THE CONTRACTING OFFICER REPORTS THAT NO OFFEROR WAS ADVISED OF THE ACCEPTABILITY OF SURPLUS EQUIPMENT UNTIL ISSUANCE OF THE AMENDMENT. HOWEVER, MOODY AND MULTI-ENGINEERING WERE REQUESTED TO FURNISH CERTAIN INFORMATION CONCERNING THE SURPLUS EQUIPMENT THAT HAD BEEN OFFERED IN THEIR PROPOSALS SUBMITTED PRIOR TO JUNE 15, 1970.

IN THE CIRCUMSTANCES, THERE IS NO BASIS UPON WHICH OUR OFFICE MAY PROPERLY OBJECT TO THE PROPOSED AWARD.