B-172630(2), NOV 17, 1971

B-172630(2): Nov 17, 1971

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SINCE DELIVERY DELINQUENCIES WERE BEING EXPERIENCED UNDER A PRIOR SBA CONTRACT FOR THESE ITEMS. WHICH WERE TO BE PROVIDED AS GOVERNMENT FURNISHED MATERIAL TO VARIOUS PRODUCERS OF BOMB FINS. AWARD WAS MADE TO ERIE AS THE ONLY KNOWN SUPPLIER CAPABLE OF MEETING THE REQUIRED DELIVERY SCHEDULE. WHICH AUTHORIZED NEGOTIATION WHEN THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO FORMAL ADVERTISING. THE CONTRACTING OFFICER'S FINDINGS TO SUPPORT THE PUBLIC EXIGENCY EXCEPTION ARE FINAL UNDER 10 U.S.C. 2310(B) AND NOT SUBJECT TO QUESTION BY GAO. THE PROTEST IS DENIED. INCORPORATED: REFERENCE IS MADE TO YOUR LETTER DATED APRIL 16. THE BACKGROUND OF THIS PROCUREMENT IS AS FOLLOWS: PURSUANT TO SECTION 8(A) OF THE SMALL BUSINESS ACT.

B-172630(2), NOV 17, 1971

BID PROTEST - SOLE-SOURCE PROCUREMENT - PUBLIC EXIGENCY DECISION DENYING PROTEST AGAINST AWARD OF A CONTRACT ON A SOLE-SOURCE BASIS TO ERIE TOOL WORKS BY THE NAVY SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PA., FOR A QUANTITY OF SUSPENSION LUGS. SINCE DELIVERY DELINQUENCIES WERE BEING EXPERIENCED UNDER A PRIOR SBA CONTRACT FOR THESE ITEMS, WHICH WERE TO BE PROVIDED AS GOVERNMENT FURNISHED MATERIAL TO VARIOUS PRODUCERS OF BOMB FINS, AWARD WAS MADE TO ERIE AS THE ONLY KNOWN SUPPLIER CAPABLE OF MEETING THE REQUIRED DELIVERY SCHEDULE, PURSUANT TO 10 U.S.C. 2304(A)(2), WHICH AUTHORIZED NEGOTIATION WHEN THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO FORMAL ADVERTISING. THE CONTRACTING OFFICER'S FINDINGS TO SUPPORT THE PUBLIC EXIGENCY EXCEPTION ARE FINAL UNDER 10 U.S.C. 2310(B) AND NOT SUBJECT TO QUESTION BY GAO, THERE BEING NO EVIDENCE OF AN ABUSE OF DISCRETION ON HIS PART. THEREFORE, THE PROTEST IS DENIED.

TO DUTY MANUFACTURING, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 16, 1971, PROTESTING THE AWARD OF CONTRACT NO. N00104-71C-A-060 BY THE UNITED STATES SHIPS PARTS CONTROL CENTER (USNSPCC), MECHANICSBURG, PENNSYLVANIA, TO ERIE TOOL WORKS, A DIVISION OF TEXTRON CORPORATION (ERIE). THIS OFFICE HAS ALSO RECEIVED LETTERS FROM LAND-AIR, INCORPORATED (LAND-AIR) AND SUPERIOR TOOL COMPANY, INCORPORATED (SUPERIOR) PROTESTING THE AWARD OF THE SAME CONTRACT ON SIMILAR GROUNDS.

THE BACKGROUND OF THIS PROCUREMENT IS AS FOLLOWS:

PURSUANT TO SECTION 8(A) OF THE SMALL BUSINESS ACT, AS AMENDED, 15 U.S.C. 637(A), CONTRACT NO. N00104-71-C-A023 WAS AWARDED ON OCTOBER 27, 1970, TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR 538,954, MS 3314 SUSPENSION LUGS. THE SBA THEN SUBCONTRACTED THE WORK TO QUALITY PRODUCTS COMPANY (QUALITY). WE ARE INFORMED, THAT AS OF MARCH 8, 1971, PERFORMANCE ON THE ABOVE-CITED CONTRACT WAS BEHIND SCHEDULE.

SINCE DELIVERY DELINQUENCIES WERE BEING EXPERIENCED UNDER THE SBA CONTRACT ON THESE LUGS, WHICH WERE TO BE PROVIDED AS GOVERNMENT FURNISHED MATERIAL (GFM) TO VARIOUS PRODUCERS OF BOMB FINS, A COMPLETE REVIEW OF THE REQUIREMENT WAS MADE RESULTING IN A DETERMINATION THAT 991,100 MORE WERE REQUIRED TO MEET EXISTING LOADING/ASSEMBLING SCHEDULES. IT WAS DECIDED IN EARLY MARCH 1971, THAT IN ORDER TO INSURE THE AVAILABILITY OF LUGS AS GFM TO BOMB FIN PRODUCERS AND FOR IN-HOUSE PRODUCTION, A MINIMUM OF 260,616 LUGS HAD TO BE PROCURED ON AN URGENT BASIS FOR DELIVERY OF 57,496 IN APRIL, 101,560 IN MAY, AND 101,560 IN JUNE 1971, THE BALANCE TO BE PROCURED BY FORMAL ADVERTISING.

THE ACTIVITY DETERMINED THAT IN ORDER TO MEET THIS SCHEDULE FIRST ARTICLE TEST REQUIREMENTS WOULD HAVE TO BE WAIVED. WE ARE INFORMED THAT ALL AVAILABLE SOURCES OF SUPPLY WERE CONSIDERED INCLUDING THE PROTESTING FIRMS. THE TECHNICAL SECTION OF THE ACTIVITY THEN DETERMINED THAT THE FIRST ARTICLE REQUIREMENTS COULD ONLY BE WAIVED FOR ERIE, LAND-AIR AND QUALITY. QUALITY WAS ELIMINATED BECAUSE OF DELINQUENCY ON THE CONTRACT WITH THE SBA. LAND-AIR WAS ELIMINATED DUE TO THE FACT THAT THEY WERE COMMITTED BY SUBCONTRACT TO SHIP THE FIRST THREE MONTHS' DELIVERY UNDER THE QUALITY CONTRACT. THEREFORE, ON MARCH 10, 1971, CONTRACT NO. N00104- 71-C-A060 WAS AWARDED TO ERIE, AS THE ONLY KNOWN SUPPLIER CAPABLE OF MEETING THE GOVERNMENT'S REQUIRED DELIVERY SCHEDULE, PURSUANT TO 10 U.S.C. 2304(A)(2), WHICH AUTHORIZES NEGOTIATION WHEN THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING.

THE THREE PROTESTING FIRMS ALL CONTEND THAT SINCE THE LUGS WERE SMALL BUSINESS SET-ASIDE ITEMS, THE AWARD TO ERIE, A LARGE BUSINESS, WAS IMPROPER IN THAT NONE OF THE PROTESTING SMALL BUSINESS WAS GIVEN AN OPPORTUNITY TO NEGOTIATE EVEN THOUGH ALL ASSERT THEY ARE CAPABLE OF MEETING THE DELIVERY SCHEDULE. THEY ALSO NOTE THAT THE SMALL BUSINESS REPRESENTATIVE WAS NOT MADE AWARE OF THE PROCUREMENT.

PARAGRAPH 3-202.3 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES THAT A DETERMINATION AND FINDINGS (D&F) BY THE CONTRACTING OFFICER JUSTIFYING USE OF THE PUBLIC EXIGENCY EXCEPTION TO FORMAL ADVERTISING UNDER THE AUTHORITY OF 10 U.S.C. 2304(A)(2), NEED ONLY STATE THE EXISTENCE OF A PRIORITY DESIGNATOR OF 1 THROUGH 6 IN ORDER TO JUSTIFY USE OF THAT EXCEPTION. IN THE INSTANT CASE THE CONTRACTING OFFICER ISSUED A D&F ON APRIL 12, 1971, CARRYING AN .02 PRIORITY DESIGNATOR. FINDINGS IN SUPPORT OF SUCH A DETERMINATION TO NEGOTIATE UNDER THE PUBLIC EXIGENCY EXCEPTION ARE MADE FINAL PURSUANT TO 10 U.S.C. 2310(B), AND ARE, THEREFORE, NOT SUBJECT TO QUESTION BY OUR OFFICE. WHILE THE STATUTE AND THE REGULATIONS REQUIRE THAT EVEN WHERE AUTHORITY EXISTS TO NEGOTIATE PROCUREMENTS, PROPOSALS SHOULD BE SOLICITED FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES CONSISTENT WITH THE NATURE AND REQUIREMENTS OF THE SUPPLIES OR SERVICES TO BE PROCURED, THE PUBLIC EXIGENCY JUSTIFICATION CLOTHES THE CONTRACTING OFFICER WITH A CONSIDERABLE DEGREE OF DISCRETION IN DETERMINING THE EXTENT OF NEGOTIATION CONSISTENT WITH THE EXIGENCY OF THE SITUATION. IN SUCH CASES THIS OFFICE WILL NOT OVERTURN THE CONTRACTING OFFICER'S DECISION TO NEGOTIATE A SOLE-SOURCE AWARD PURSUANT TO THE PUBLIC EXIGENCY EXCEPTION UNLESS IT IS CLEAR THAT HE HAS ABUSED THE DISCRETION VESTED IN HIM IN AN ARBITRARY OR CAPRICIOUS MANNER. SEE 44 COMP. GEN. 590 (1965).

IN REGARD TO THE CONTENTION THAT THE SMALL BUSINESS REPRESENTATIVE WAS NOT MADE AWARE OF THE PROCUREMENT, WE NOTE THAT ASPR 1-706.1(B) PROVIDES THAT THE SMALL BUSINESS REPRESENTATIVE, AT HIS REQUEST SHALL BE INFORMED (TO THE EXTENT OF HIS SECURITY CLEARANCE) OF ALL PROPOSED PROCUREMENTS EXPECTED TO EXCEED $2,500 ON WHICH UNILATERAL SET-ASIDES HAVE NOT BEEN MADE BY THE CONTRACTING OFFICER. WE DO NOT KNOW WHETHER A REVIEW WAS REQUESTED BY THE REPRESENTATIVE. HOWEVER, EVEN ASSUMING SUCH A REQUEST, IN VIEW OF THE URGENT NATURE OF THIS PROCUREMENT AND THE FACT THAT AWARD HAS BEEN MADE, WE DO NOT BELIEVE THE CIRCUMSTANCES WOULD JUSTIFY OVERTURNING AN EXISTING AWARD.

IN ACCORDANCE WITH THE FOREGOING, YOUR PROTEST MUST BE DENIED.