B-171849, MAY 7, 1971

B-171849: May 7, 1971

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TO TRITAN CORPORATION REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 2. YOU ADVISE THAT YOUR FIRM IS AN APPROVED SOURCE FOR THE ITEMS IN QUESTION. HAVING FURNISHED TWO SUCH UNITS TO THE ARSENAL UNDER A PRIOR CONTRACT ON WHICH YOUR ITEMS WERE CONSIDERED EQUAL TO THE "WATER BLASTER" MODEL MANUFACTURED BY AMERICAN AERO ENGINEERING CORPORATION. YOU HAVE REQUESTED AN EXPLANATION AS TO THE REASON YOUR FIRM WAS NOT EXTENDED AN OPPORTUNITY TO QUOTE. WHICH WAS ASSIGNED AN 02 ISSUE PRIORITY DESIGNATOR. ORAL NEGOTIATIONS WERE CONDUCTED WITH AMERICAN POWERSTAGE. " EXPLAINING THAT THE NECESSITY FOR THIS METHOD OF PROCUREMENT WAS PREDICATED UPON A CRITICAL SUPPLY POSITION OF THE ITEM AT THAT TIME. APPROVAL FOR THE USE OF A LETTER CONTRACT WAS GRANTED BY HEADQUARTERS.

B-171849, MAY 7, 1971

BID PROTEST - SOLE SOURCE PROCUREMENT DECISION DENYING PROTEST AGAINST AWARD OF CONTRACT TO AMERICAN AERO ENGINEERING CORPORATION BY ROCK ISLAND ARSENAL, ILLINOIS FOR 23 HIGH PRESSURE WATER CLEANERS PROCURED ON A SOLE SOURCE BASIS. BECAUSE OF THE URGENCY OF THE REQUIREMENT AND SINCE THE DELIVERY SCHEDULE DID NOT PERMIT DELAY INCIDENT TO ISSUANCE OF A WRITTEN SOLICITATION OR TESTING OF PROTESTANT'S PRODUCT FOR THE INTENDED APPLICATION OF THE REQUIREMENT, THE COMP. GEN. HOLDS THAT COMPETITION MAY BE RESTRICTED TO A SINGLE SOURCE OF SUPPLY.

TO TRITAN CORPORATION

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 2, 1971, REGARDING THE PROCUREMENT OF 23 HIGH PRESSURE WATER CLEANERS BY THE DEPARTMENT OF THE ARMY, ROCK ISLAND ARSENAL, ROCK ISLAND, ILLINOIS.

YOU ADVISE THAT YOUR FIRM IS AN APPROVED SOURCE FOR THE ITEMS IN QUESTION, HAVING FURNISHED TWO SUCH UNITS TO THE ARSENAL UNDER A PRIOR CONTRACT ON WHICH YOUR ITEMS WERE CONSIDERED EQUAL TO THE "WATER BLASTER" MODEL MANUFACTURED BY AMERICAN AERO ENGINEERING CORPORATION. YOUR LETTER THEREFORE REGISTERS YOUR CONSTERNATION WITH THE FAILURE OF THE ARSENAL TO PROVIDE YOU WITH AN OPPORTUNITY TO OFFER A PRICE ON THE PROCUREMENT. ACCORDINGLY, AND IN VIEW OF YOUR DECLARED INABILITY TO OBTAIN INFORMATION CONCERNING THE PROCUREMENT FROM THE LOCAL DCASO OFFICE IN HOUSTON, YOU HAVE REQUESTED AN EXPLANATION AS TO THE REASON YOUR FIRM WAS NOT EXTENDED AN OPPORTUNITY TO QUOTE.

THE HISTORY OF THE PROCUREMENT REVEALS THAT THE ROCK ISLAND ARSENAL RECEIVED A PROCUREMENT/WORK DIRECTIVE (PRON) ON OCTOBER 27, 1970, IMPOSING A PROCUREMENT REQUIREMENT ON THE ARSENAL FOR 23 HIGH PRESSURE WATER CLEANERS, AND CITING AMERICAN WATER BLASTER COMPANY AS THE SOURCE. THE PRON REQUIRED DELIVERY OF 12 OF THE WATER CLEANERS ON DECEMBER 15, 1970, AND 11 MORE ON DECEMBER 31, 1970. UPON RECEIPT OF THE PRON, WHICH WAS ASSIGNED AN 02 ISSUE PRIORITY DESIGNATOR, THE ARSENAL INITIATED PROCEDURES TO PROCURE THE WATER CLEANERS ON A SOLE SOURCE BASIS. BY MEMORANDUM DATED OCTOBER 28, 1970, THE CHIEF OF THE PROCUREMENT DIVISION AT ROCK ISLAND ISSUED AUTHORIZATION FOR THIS METHOD OF PROCUREMENT PREDICATED UPON THE URGENCY OF THE REQUIREMENT, SINCE THE DELIVERY SCHEDULE STIPULATED BY THE PRON DID NOT PERMIT THE DELAY INCIDENT TO ISSUANCE OF A WRITTEN SOLICITATION. ACCORDINGLY, ON OCTOBER 28, 1970, ORAL NEGOTIATIONS WERE CONDUCTED WITH AMERICAN POWERSTAGE, DIVISION OF AMERICAN AERO ENGINEERING CORPORATION (AMERICAN), FOR 23 WATER CLEANERS.

ON OCTOBER 30, 1970, THE ROCK ISLAND ARSENAL SUBMITTED TO HEADQUARTERS, U.S. ARMY WEAPONS COMMAND A "REQUEST FOR LETTER CONTRACT APPROVAL," EXPLAINING THAT THE NECESSITY FOR THIS METHOD OF PROCUREMENT WAS PREDICATED UPON A CRITICAL SUPPLY POSITION OF THE ITEM AT THAT TIME, AND THAT THE RETROGRADE OF EQUIPMENT AND TROOPS FROM VIETNAM REQUIRED DELIVERY OF THE WATER CLEANERS AT THE EARLIEST POSSIBLE DATE. THE ARSENAL ALSO EXPLAINED THAT EMPLOYMENT OF THE PROPOSED LETTER CONTRACT WOULD PERMIT SHIPMENT OF 4 OF THE WATER CLEANERS BY NOVEMBER 13, 1970, THUS RELIEVING, TO SOME EXTENT, THE CRITICAL STATUS OF THE SUPPLY POSITION, WHEREAS FAILURE TO UTILIZE A LETTER CONTRACT WOULD RESULT IN FURTHER SLIPPAGE IN THE SUPPLY POSITION OF THIS ITEM, WHICH WOULD BE HIGHLY DELETERIOUS TO CURRENT MILITARY OPERATIONS IN SOUTHEAST ASIA.

APPROVAL FOR THE USE OF A LETTER CONTRACT WAS GRANTED BY HEADQUARTERS, U.S. ARMY WEAPONS COMMAND BY CORRESPONDENCE DATED OCTOBER 30, 1970. SUBSEQUENTLY, THE ROCK ISLAND ARSENAL BOARD OF AWARDS WAS CONVENED FOR THE PURPOSE OF REVIEWING THE PROPOSED AWARD TO AMERICAN AERO ENGINEERING CORPORATION. APPROVAL WAS GRANTED ONLY AFTER AN ANALYSIS OF THE EXPLANATION OFFERED IN SUPPORT OF SOLICITING ONLY AMERICAN, WHICH INCLUDED THE INFORMATION THAT TWO OF YOUR WATER CLEANERS HAD PREVIOUSLY BEEN PROCURED AS AN EQUAL TO THE AMERICAN WATER BLASTER MODEL, BUT THOSE UNITS WERE FOR AN ENTIRELY DIFFERENT APPLICATION AND HAD NEVER BEEN DEPLOYED OR FIELD TESTED FOR THE INTENDED APPLICATION OF THE PRESENT PROCUREMENT. FURTHER, THE URGENCY WAS CONSIDERED SUCH THAT TIME WOULD NOT PERMIT TESTING OF THE TRITAN UNIT FOR THIS PARTICULAR PURPOSE. ADDITIONALLY, THE SIX PREVIOUSLY PROCURED AMERICAN WATER BLASTERS HAD BEEN DEPLOYED IN THE VIETNAMESE AMPHITHEATRE FOR THE STATED APPLICATION, HAD BEEN SUCCESSFULLY TESTED FOR THIS APPLICATION, AND THE RECIPIENTS OF THESE UNITS HAD BEEN PROVIDED WITH TRAINING ON OPERATIONAL PROCEDURES, MAINTENANCE, AND TECHNICAL ASSISTANCE. IT WAS ONLY AFTER THIS ASPECT OF THE PROBLEM WAS DISCUSSED AND REVIEWED THAT THE BOARD OF AWARDS APPROVED AWARD OF A LETTER CONTRACT TO AMERICAN.

ON NOVEMBER 12, 1970, THE LETTER CONTRACT WAS DEFINITIZED AT A UNIT PRICE OF $12,511.31 AND A TOTAL CONTRACT PRICE OF $310,223.91 WHICH INCLUDED A NINE MONTHS SUPPLY OF SPARE PARTS.

OUR OFFICE HAS CONCLUDED IN THE PAST THAT COMPETITION MAY BE RESTRICTED TO A SINGLE SOURCE OF SUPPLY IN PROCUREMENTS WHERE TIME OF DELIVERY IS OF THE ESSENCE AND, AS SUCH, WOULD NOT PERMIT TESTING OF A PRODUCT OFFERED BY A SOURCE OTHER THAN A SOLE SOURCE TO MEET THE DELIVERY SCHEDULE. 167661(1), MAY 5, 1970; B-158550, JUNE 29, 1966; B-158705, JUNE 6, 1966; B -151310, JUNE 25, 1963.

ACCORDINGLY, SINCE TIME OF DELIVERY IN THE INSTANT PROCUREMENT PRECLUDED TESTING OF YOUR PRODUCT FOR THE INTENDED PURPOSE, WE ARE UNABLE TO CONCLUDE THAT THE DETERMINATION TO SOLICIT AMERICAN AS A SOLE SOURCE WAS IMPROPER.

YOU ALSO CONTEND THAT YOU WERE ORALLY CONTACTED IN EARLY OCTOBER 1970 BY MRS. WEMPE OF THE ROCK ISLAND ARSENAL AND DIRECTED TO PREPARE A PRICE FOR A QUANTITY OF THE WATER BLASTERS, SINCE YOU WERE TO BE PHONED WITHIN TWO WEEKS TO STATE A PRICE, HOWEVER, YOU WERE NEVER SO CONTACTED.

A POSSIBLE CLARIFICATION OF THIS MATTER IS PROVIDED BY A STATEMENT IN THE RECORD FROM MRS. WEMPE REVEALING THAT IN EARLY OCTOBER SHE WAS INSTRUCTED TO CALL YOU AND AMERICAN TO INQUIRE ABOUT POSSIBLE DELIVERY SCHEDULES FOR WATER BLASTERS SHOULD A RUSH PROCUREMENT DEVELOP. YOU WERE ALSO REQUESTED TO FORWARD A DESCRIPTIVE CATALOG, A STANDARD PRACTICE WHICH DOES NOT VIOLATE THE PROCUREMENT REGULATIONS. IT IS HER POSITION THAT SHE DID NOT STATE THAT A REQUIREMENT EXISTED, NOR DID SHE MAKE ANY PROMISE CONCERNING A PROPOSED GOVERNMENT PROCUREMENT. THAT CALL WAS FOR INFORMATIONAL PURPOSES ONLY. IN VIEW OF THE FACT THAT THE PRON WAS NOT RECEIVED UNTIL OCTOBER 27, WHEREAS THE CONVERSATION IN QUESTION OCCURRED IN EARLY OCTOBER, WE ARE INCLINED TO ACCEPT THE FOREGOING EXPLANATION.

YOU ALSO CONTEND THAT YOU WERE UNABLE TO OBTAIN INFORMATION CONCERNING THE AWARD OF THE IMMEDIATE PROCUREMENT EITHER FROM THE ROCK ISLAND ARSENAL OR THE LOCAL DCASO OFFICE IN HOUSTON.

WE ARE ADVISED THAT AN EXTENSIVE INVESTIGATION AT ROCK ISLAND ARSENAL CONDUCTED BY LEGAL COUNSEL FROM HEADQUARTERS, AMC, HAS FAILED TO DISCLOSE ANY KNOWN INSTANCE WHEREIN YOU MADE INQUIRY CONCERNING THE SUBJECT CONTRACT AND WERE REFUSED INFORMATION. WHILE IT IS ACKNOWLEDGED THAT TELEPHONE CONVERSATIONS WERE CONDUCTED BETWEEN ROCK ISLAND PERSONNEL AND YOUR REPRESENTATIVES, SUCH CONVERSATIONS DID NOT RELATE TO REQUESTS FOR INFORMATION CONCERNING THE AWARD OF THE CONTRACT TO AMERICAN AERO ENGINEERING CORPORATION. ADDITIONALLY, AN INQUIRY SUBMITTED TO DCASO, HOUSTON, DID DISCLOSE THAT YOUR MR. GRONAUER DISCUSSED THIS SPECIFIC PROCUREMENT WITH THAT ACTIVITY'S QUALITY ASSURANCE REPRESENTATIVE (QAR). HOWEVER, SINCE THIS WAS A ROCK ISLAND PROCUREMENT, AND SINCE THE QAR POSSESSED NO CONTRACT FILE OR DETAILED KNOWLEDGE OF THE PROCUREMENT, HE ADVISED THAT HE DECLINED TO DISCUSS THE MATTER WITH YOUR REPRESENTATIVE. THE ARSENAL ADVISES THAT NO OTHER INSTANCE WHICH MIGHT BE INTERPRETED AS A REFUSAL TO PROVIDE INFORMATION COULD BE IDENTIFIED.

IN VIEW OF THE FOREGOING, AND SINCE THE CONTRACT AWARDED TO AMERICAN PROVIDED FOR DELIVERY OF THE FINAL UNITS MORE THAN A MONTH BEFORE YOUR PROTEST WAS FILED IN THIS OFFICE, WE SEE NO ALTERNATIVE TO DENIAL OF YOUR PROTEST. WE HAVE, HOWEVER, ADVISED THE DEPARTMENT OF THE ARMY TO TAKE ALL NECESSARY ACTION TO ASSURE THAT FUTURE PROCUREMENTS OF THESE ITEMS WILL BE ACCOMPLISHED ON A COMPETITIVE BASIS.