B-171920(2), SEP 2, 1971

B-171920(2): Sep 2, 1971

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ADVISES THAT WHILE THERE WAS A DELAY IN IMPLEMENTING CERTAIN CIRCUITS. THE DELAY WAS ATTRIBUTABLE SOLELY TO THE GOVERNMENT AND WOULD HAVE BEEN NECESSARY EVEN IF THE AWARD HAD BEEN MADE TO ANOTHER CONTRACTOR. THE PROTEST IS DENIED FOR SUBSTANTIALLY THE SAME REASONS STATED IN B 171920(1) OF THIS DATE. INC.: THIS IS IN REPLY TO YOUR PROTEST OF MARCH 10. WITH THE IMPLEMENTATION OF THE IJCS-PAC CUTOVER PLAN THE 20 PHILIPPINES-JAPAN CIRCUITS HAVE BEEN REPLACED BY 24 INDIVIDUAL CIRCUITS UTILIZING A NEW PHILIPPINES OVERSEAS TELECOMMUNICATIONS CORPORATION TROPO-SCATTER SYSTEM BETWEEN THE PHILIPPINES AND TAIWAN. THESE CIRCUITS ARE EXTENDED TO OKINAWA AND JAPAN VIA GOVERNMENT FACILITIES. THE FOUR ADDITIONAL CHANNELS WERE UTILIZED BY ESTABLISHING THREE PHILIPPINES-OKINAWA AND ONE PHILIPPINES-TAIPAI CIRCUITS THAT WERE FORMERLY PROVIDED BY GOVERNMENT RADIO FACILITIES.

B-171920(2), SEP 2, 1971

BID PROTEST - DELAYED PERFORMANCE DECISION DENYING PROTEST AGAINST AWARD OF A CONTRACT TO WESTERN UNION INTERNATIONAL, INC. BASED ON SIMILAR POSITION OF ITT WORLD COMMUNICATIONS, INC. THE COMP. GEN. ADVISES THAT WHILE THERE WAS A DELAY IN IMPLEMENTING CERTAIN CIRCUITS, THE DELAY WAS ATTRIBUTABLE SOLELY TO THE GOVERNMENT AND WOULD HAVE BEEN NECESSARY EVEN IF THE AWARD HAD BEEN MADE TO ANOTHER CONTRACTOR. THE PROTEST IS DENIED FOR SUBSTANTIALLY THE SAME REASONS STATED IN B 171920(1) OF THIS DATE.

TO RCA GLOBAL COMMUNICATIONS, INC.:

THIS IS IN REPLY TO YOUR PROTEST OF MARCH 10, 1971, AGAINST THE AWARD OF A CONTRACT BY THE DEFENSE COMMERCIAL COMMUNICATIONS OFFICE (DECCO) TO WESTERN UNION INTERNATIONAL, INC. (WUI) FOR CERTAIN COMMUNICATIONS SERVICES BETWEEN THE PHILIPPINES AND TAIWAN AS SPECIFIED IN DECCO COMPETITIVE INQUIRY DA-22 JAN 71-305/I D346-27 AND AMENDMENTS.

THE PROCUREMENT IMPLEMENTS THE INTEGRATED JOINT COMMUNICATIONS SYSTEM PACIFIC (IJCS-PAC) CUTOVER PLAN WHICH REALIGNED COMMUNICATIONS CIRCUITRY LOCATED IN THE WESTERN PACIFIC AREA. PRIOR TO THIS PLAN, DECCO LEASED FROM RCA GLOBAL COMMUNICATIONS, INC. (RCA) AND ITT WORLD COMMUNICATIONS, INC. (ITT), 20 INDIVIDUAL CIRCUITS BETWEEN THE PHILIPPINES AND JAPAN. TWELVE OF THOSE CIRCUITS TERMINATED IN VARIOUS LOCATIONS WITHIN JAPAN AND THE REMAINING EIGHT EXTENDED FROM JAPAN TO OKINAWA VIA GOVERNMENT-OWNED OVER-THE-HORIZON RADIO SYSTEM. WITH THE IMPLEMENTATION OF THE IJCS-PAC CUTOVER PLAN THE 20 PHILIPPINES-JAPAN CIRCUITS HAVE BEEN REPLACED BY 24 INDIVIDUAL CIRCUITS UTILIZING A NEW PHILIPPINES OVERSEAS TELECOMMUNICATIONS CORPORATION TROPO-SCATTER SYSTEM BETWEEN THE PHILIPPINES AND TAIWAN. THESE CIRCUITS ARE EXTENDED TO OKINAWA AND JAPAN VIA GOVERNMENT FACILITIES. THE FOUR ADDITIONAL CHANNELS WERE UTILIZED BY ESTABLISHING THREE PHILIPPINES-OKINAWA AND ONE PHILIPPINES-TAIPAI CIRCUITS THAT WERE FORMERLY PROVIDED BY GOVERNMENT RADIO FACILITIES.

IT IS YOUR POSITION THAT WUI DOES NOT FULFILL THE BASIC REQUIREMENT THAT THE CARRIER BE LICENSED OR FRANCHISED IN THE COUNTRIES INVOLVED IN ORDER TO BE ELIGIBLE FOR SOLICITATION AND AWARD OF ANY CONTRACT OR SERVICE REQUIREMENT OF DECCO. IN THIS CONNECTION YOU CITE DECCO INSTRUCTION 340- 135-1, 6 MARCH 1968, IN EFFECT AT THE TIME THE INQUIRY WAS ISSUED, AND SUPERSEDING INSTRUCTION 300-70-5, WHICH PROVIDE INTERNATIONAL LEASING PROCEDURES. YOU NOTE THAT BOTH INSTRUCTIONS PROVIDE THAT A "COMPETITIVE INQUIRY FOR THE REQUIRED SERVICE WILL BE FORWARDED TO EACH OF THE CARRIERS ELIGIBLE TO PROVIDE THE TYPE OF INTERNATIONAL/TRANSOCEANIC SERVICES REQUIRED IN THE GEOGRAPHICAL AREA INVOLVED." YOUR PROTEST FURTHER NOTES THAT THE ABOVE-REFERENCED INSTRUCTIONS STATE THAT "A SERVICE MAY BE PROVIDED SOLELY BY THE COORDINATING CARRIER OR MAY FOR SOME PORTIONS OF THE END-TO-END SERVICE REQUIRE THE FACILITIES OF ANOTHER U.S. INTERNATIONAL CARRIER, A FOREIGN CORRESPONDENT, A DOMESTIC CARRIER, OR THE U.S. GOVERNMENT." YOU ARGUE THAT THERE IS NO PROVISION FOR AWARDING DEFENSE COMMUNICATIONS AGENCY CONTRACTS TO CARRIERS NOT ELIGIBLE TO PROVIDE ANY PART OF THE CIRCUITS DIRECTLY.

WE CANNOT AGREE THAT THE ABOVE-MENTIONED INSTRUCTIONS MUST BE INTERPRETED AS PRECLUDING THE SOLICITATION OF, AND AWARD TO, WUI.

THE CITED DECCO INSTRUCTIONS SPECIFICALLY AUTHORIZE THE CONTRACTOR, OR OVERALL COORDINATOR, TO UTILIZE FACILITIES OTHER THAN THOSE OWNED BY THE COORDINATING CARRIER. WHILE THE INSTRUCTIONS SEEM TO CONTEMPLATE THE USE OF SOME OF THE CONTRACTOR'S OWN FACILITIES, THERE IS NO ACTUAL REQUIREMENT IN THE PERTINENT PROCEDURES THAT IT DO SO. IT APPEARS THAT THE MAIN CONSIDERATION BY DECCO IN DETERMINING WUI'S ELIGIBILITY FOR THE SOLICITATION AND THE AWARD WAS WHETHER THAT FIRM COULD PROVIDE THE REQUIRED SERVICES, EITHER THROUGH USE OF ITS OWN FACILITIES OR THROUGH THE FACILITIES OF OTHER CARRIERS. THE PROCURING AGENCY BELIEVED WUI TO BE UNIQUELY QUALIFIED TO PROVIDE THE SERVICES, AND WE CANNOT CONCLUDE THAT DECCO'S DETERMINATION THAT WUI WAS ELIGIBLE FOR THE SOLICITATION AND AWARD IS SUBJECT TO LEGAL OBJECTION BY THIS OFFICE.

YOUR LETTER ALSO CONTENDS THAT WUI IS NOT A RESPONSIBLE BIDDER TO WHOM THE AWARD MAY BE MADE, SINCE IT IS NOT FRANCHISED TO PERFORM THE SERVICES. SINCE THE PERTINENT INSTRUCTIONS DO NOT REQUIRE THAT THE CONTRACT BE AWARDED TO A CARRIER FRANCHISED IN THE AREA CONCERNED, AND SINCE THE AGENCY DOES NOT CONSIDER IT ESSENTIAL THAT THE CONTRACTOR, ITSELF, BE FRANCHISED IN ORDER TO PROVIDE THE REQUIRED SERVICES, WE SEE NO BASIS FOR QUESTIONING WUI'S RESPONSIBILITY ON THE GROUNDS SUGGESTED. THIS CONNECTION DCA REPORTS THAT WUI HAS BEEN SUCCESSFUL TO DATE IN PROVIDING THE SERVICES REQUIRED.

WE HAVE ALSO NOTED THE QUESTIONS RAISED IN YOUR PROTEST AS TO THE FAIRNESS OF PERMITTING A CARRIER NOT FRANCHISED IN ANY OF THE AREAS WHERE THE COMMUNICATIONS CIRCUITS ARE TO BE EXTENDED TO BID COMPETITIVELY AGAINST CARRIERS FRANCHISED IN SUCH AREAS. YOU STATE THAT YOUR FIRM, AS A FRANCHISED CARRIER IS IN A DISADVANTAGEOUS COMPETITIVE POSTURE SINCE YOUR BID IS SUBJECT TO REGULATORY CONSTRAINTS IN THE AREA WHEREAS WUI IS NOT SUBJECT TO THE JURISDICTION OF THE REGULATORY BODIES IN THE AREA INVOLVED. IN OUR OPINION, WE SEE NO BASIC UNFAIRNESS IN THIS SITUATION SINCE WUI PROPOSED TO USE A FRANCHISED CARRIER IN THE PERFORMANCE OF ITS CONTRACT.

WE HAVE ALSO TAKEN NOTE OF YOUR STATEMENTS REGARDING A POSSIBLE IMPACT OF THE IMPLEMENTATION OF THE REALIGNED COMMUNICATIONS CIRCUITRY UPON CERTAIN AUTOVON AGREEMENTS BETWEEN THE DEPARTMENT OF DEFENSE AND THE JAPANESE FIRM, KOKOSAI DENSHIN DENWA. IN THIS CONNECTION THE DIRECTOR, DCA, HAS ADVISED THIS OFFICE THAT THE MATTER HAS BEEN DISCUSSED WITH THAT FIRM AND THERE IS NO REASON TO EXPECT ANY ADVERSE IMPACT ON OTHER COMMUNICATIONS PROGRAMS IN THE PACIFIC AS A RESULT OF THIS PROCUREMENT.

FINALLY, YOU CONTEND THAT THE COST TO THE UNITED STATES OF AWARDING THIS CONTRACT TO WUI MAY ACTUALLY BE HIGHER BY ABOUT $4,000 OVER THE THREE YEARS THAT THE CIRCUITS ARE TO BE IN OPERATION. IN COMPARING THE COST OF THE WUI PROPOSAL TO YOUR OWN YOU HAVE ADDED A FACTOR OF $27,416 TO THE WUI PROPOSAL WHICH YOU CLAIM IS THE COST TO THE GOVERNMENT FOR WUI DELAY IN IMPLEMENTING FIVE CIRCUITS FOR 10 DAYS. WHILE THE RECORD SHOWS THAT THERE WAS SUCH A DELAY, DCA ADVISES THAT THE DELAY WAS ATTRIBUTABLE SOLELY TO THE GOVERNMENT RATHER THAN WUI, AND A LIKE DELAY WOULD HAVE BEEN NECESSARY EVEN IF THE AWARD HAD BEEN MADE TO ANOTHER CONTRACTOR. ACCORDINGLY, WE ARE UNABLE TO AGREE THAT ACCEPTANCE OF WUI PROPOSAL RESULTED IN A HIGHER COST TO THE GOVERNMENT.

FOR THE REASONS STATED, WE PERCEIVE NO LEGAL OBJECTION TO THE CONTRACT AWARDED IN THIS CASE.