B-172676, AUG 26, 1971

B-172676: Aug 26, 1971

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THE PROCUREMENT ACTIVITY WAS NOT UNDER ANY OBLIGATION TO PURCHASE FROM PROTESTANT UNDER ITS FSS CONTRACT. TO PACIFIC MEASUREMENTS INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF APRIL 19. THE RFP WAS ISSUED ON DECEMBER 7. WERE RECEIVED BY THE JANUARY 11. AWARD WAS MADE ON APRIL 13. IT IS YOUR CONTENTION THAT THE PROCUREMENT ACTIVITY COULD HAVE PURCHASED THE 91 UNITS UNDER YOUR FEDERAL SUPPLY SCHEDULE (FSS) CONTRACT WITH THE GENERAL SERVICES ADMINISTRATION (GSA) FOR $49. YOU STATE THAT THE DESCRIPTION AND SPECIFICATIONS YOU RECEIVED AS PART OF THE RFP WERE IDENTICAL TO THE DESCRIPTION AND SPECIFICATIONS FROM YOUR CURRENT INSTRUCTION MANUAL FOR THE PACIFIC MEASUREMENTS INSTRUMENT. THE RECORD INDICATES THAT WHILE THE SIGNAL DATA CONVERTERS REQUIRED BY THE SUBJECT RFP ARE ESSENTIALLY A COMMERCIAL ITEM.

B-172676, AUG 26, 1971

BID PROTEST - FSS LISTED COMMERCIAL ITEM - SPECIFICATIONS FOR MILITARY PROCUREMENT DECISION DENYING PROTEST OF PACIFIC MEASUREMENTS INCORPORATED AGAINST THE AWARD OF A CONTRACT TO REACTION INSTRUMENTS, INC. UNDER RFP FOR 91 SIGNAL DATA CONVERTERS ISSUED BY U.S. ARMY MISSILE COMMAND. SINCE THE COMMERCIAL INSTRUMENT LISTED IN PROTESTANT'S FSS CONTRACT WITH GSA DID NOT MEET THE MILITARY SPECIFICATIONS AND THE ENVIRONMENTAL DURABILITY REQUIREMENTS CALLED FOR UNDER SUBJECT RFP, THE PROCUREMENT ACTIVITY WAS NOT UNDER ANY OBLIGATION TO PURCHASE FROM PROTESTANT UNDER ITS FSS CONTRACT.

TO PACIFIC MEASUREMENTS INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 19, 1971, PROTESTING THE AWARD OF A CONTRACT TO REACTION INSTRUMENTS, INC., UNDER REQUEST FOR PROPOSALS (RFP) NO. DAAH01-71-R-0466, ISSUED BY THE UNITED STATES ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA.

THE RFP WAS ISSUED ON DECEMBER 7, 1970, FOR 91 SIGNAL DATA CONVERTERS, FSN 4931-168-9880, IN ACCORDANCE WITH MISSILE INTERIM SPECIFICATION 10407. TWO PROPOSALS, INCLUDING ONE FROM YOUR FIRM, WERE RECEIVED BY THE JANUARY 11, 1971, CLOSING DATE. AWARD WAS MADE ON APRIL 13, 1971, TO REACTION INSTRUMENTS, INC., AS THE LOW RESPONSIBLE OFFEROR.

IT IS YOUR CONTENTION THAT THE PROCUREMENT ACTIVITY COULD HAVE PURCHASED THE 91 UNITS UNDER YOUR FEDERAL SUPPLY SCHEDULE (FSS) CONTRACT WITH THE GENERAL SERVICES ADMINISTRATION (GSA) FOR $49,280.00, F.O.B. DESTINATION, WITH A PROMPT PAYMENT DISCOUNT OF 1/2 OF 1 PERCENT 20 DAYS. YOU STATE THAT THE DESCRIPTION AND SPECIFICATIONS YOU RECEIVED AS PART OF THE RFP WERE IDENTICAL TO THE DESCRIPTION AND SPECIFICATIONS FROM YOUR CURRENT INSTRUCTION MANUAL FOR THE PACIFIC MEASUREMENTS INSTRUMENT. FURTHER, YOU STATE THAT REACTION INSTRUMENTS, INC., HAS HAD NO PREVIOUS EXPERIENCE IN PRODUCING THIS TYPE OF INSTRUMENTATION AND YOU CONTEND THAT A "MATURE" INSTRUMENT CANNOT BE DESIGNED, PRODUCED AND DELIVERED IN 90 DAYS, AS SPECIFIED IN THE CONTRACT.

THE RECORD INDICATES THAT WHILE THE SIGNAL DATA CONVERTERS REQUIRED BY THE SUBJECT RFP ARE ESSENTIALLY A COMMERCIAL ITEM, MILITARY SPECIFICATIONS REQUIRE CERTAIN ADDITIONAL CONSTRUCTION TESTING AND ENVIRONMENTAL DURABILITY REQUIREMENTS TO INSURE SUITABILITY FOR THE ARMY'S USE. WE ARE ADVISED THAT THE COMMERCIAL CATALOG INSTRUMENT WHICH YOU INITIALLY OFFERED DID NOT PROVIDE FOR THESE MILITARY REQUIREMENTS. HOWEVER, THE RECORD INDICATES THAT DURING THE COURSE OF NEGOTIATIONS YOU AGREED TO MEET THESE REQUIREMENTS AND YOUR FIRM'S PRICE WAS INCREASED TO $54,401 TO COVER THE ADDITIONAL EXPENSES ASSOCIATED WITH THE ENVIRONMENTAL TESTS REQUIRED BY THE SPECIFICATION. REACTION INSTRUMENTS, DURING THE COURSE OF NEGOTIATIONS, REDUCED ITS PRICE TO $54,145, WHICH RESULTED IN AN AWARD TO THAT FIRM AS THE LOWEST RESPONSIBLE OFFEROR.

SINCE THE COMMERCIAL INSTRUMENT LISTED IN YOUR FSS CONTRACT WITH GSA DID NOT MEET THE MILITARY SPECIFICATIONS AND THE ENVIRONMENTAL DURABILITY REQUIREMENTS CALLED FOR UNDER THE SUBJECT RFP, THE PROCUREMENT ACTIVITY WAS NOT UNDER ANY OBLIGATION TO PURCHASE THE 91 UNITS FROM YOUR FIRM UNDER ITS FSS CONTRACT. IN ANY EVENT, WE ARE ADVISED THAT THE FSS CONTRACT COVERING YOUR ITEM IS AN OPTIONAL SCHEDULE ITEM. IN VIEW THEREOF AND PURSUANT TO PARAGRAPH 5-104.1 OF THE ARMED SERVICES PROCUREMENT REGULATION, THE CONTRACTING OFFICER COULD NOT HAVE AWARDED A CONTRACT TO YOUR FIRM WITHOUT CONSIDERING OTHER AVAILABLE SOURCES, ASSUMING THE TECHNICAL ACCEPTABILITY OF YOUR FSS COMMERCIAL ITEM.

WITH RESPECT TO YOUR QUESTION CONCERNING THE ABILITY OF REACTION INSTRUMENTS TO DESIGN, PRODUCE AND DELIVER A "MATURE" INSTRUMENT, THE PREAWARD SURVEY ON THAT FIRM CONCLUDED THAT IT DID HAVE THE ABILITY TO MEET THE DELIVERY SCHEDULE. UPON REVIEW OF THE RECORD, WE FIND NO BASIS TO QUESTION THIS CONCLUSION. ALTHOUGH A "MATURE" INSTRUMENT MAY BE DESIRABLE, THE PROCUREMENT ACTIVITY DECIDED THAT A RESTRICTION OF COMPETITION TO PRIOR PRODUCERS WAS NOT JUSTIFIED BECAUSE A NUMBER OF QUALIFIED SUPPLIERS COULD SATISFY THE ACTUAL NEEDS OF THE GOVERNMENT IN A TIMELY MANNER.

WE HAVE REVIEWED THE RECORD BEFORE US AND WE HAVE FOUND NOTHING WHICH WOULD REQUIRE US TO DISTURB THE AWARD MADE TO REACTION INSTRUMENTS, INC. ACCORDINGLY, YOUR PROTEST IS DENIED.