B-172798(2), SEP 13, 1971

B-172798(2): Sep 13, 1971

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TO GENERAL ROBINSON: REFERENCE IS MADE TO OUR LETTER OF MAY 3. THIS MATTER WAS THE SUBJECT OF A REPORT FURNISHED BY LETTER DATED MAY 26. A COPY OF OUR DECISION DENYING THE DYNASTAT PROTEST IS ENCLOSED. WHILE WE HAVE DENIED THE PROTEST. THE MATTER IS BEING BROUGHT TO YOUR ATTENTION SINCE YOU MAY WISH TO CONSIDER WHETHER CHANGES IN FUTURE PROCUREMENTS OF THE ITEM AND USE OF THE PRODUCTS OFFERED CLAUSE ARE NEEDED. WE NOTE THAT CIRCUMSTANCE (XIII) IN ASPR 3-210.2 WAS CITED BY THE CONTRACTING OFFICER IN USING THE AUTHORITY OF THAT PARAGRAPH FOR NEGOTIATION OF THE PROCUREMENT. IN FINDING THAT USE OF FORMAL ADVERTISING WAS IMPRACTICABLE. THE CONTRACTING OFFICER STATED AS HIS REASON THAT IT WAS IMPOSSIBLE TO DRAFT ADEQUATE SPECIFICATIONS OR ANY OTHER ADEQUATELY DETAILED DESCRIPTION OF THE EQUIPMENT.

B-172798(2), SEP 13, 1971

BID PROTEST - LACK OF COMPETITIVE PROCUREMENT REGARDING PROTEST OF DYNASTAT, INC., AGAINST AWARD OF A CONTRACT TO ANOTHER FIRM UNDER RFP ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA. ADVISING THAT UNDER THE CIRCUMSTANCES SHOWN BY PROTEST OF DYNASTAT, THAT PROCUREMENT SPECIFICATIONS MIGHT BE PREPARED OR OBTAINED BY THE GOVERNMENT, DURING THE TIME BEFORE ANY REPROCUREMENT, WHICH WOULD PERMIT FORMAL ADVERTISING, MORE COMPETITION, AND THE ATTENDANT OPPORTUNITY FOR THE GOVERNMENT TO RECEIVE THE BENEFIT OF LOWER PRICES ON THE ITEM.

TO GENERAL ROBINSON:

REFERENCE IS MADE TO OUR LETTER OF MAY 3, 1971, ADDRESSED TO YOUR PREDECESSOR, LIEUTENANT GENERAL EARL C. HEDLUND, REQUESTING A REPORT ON THE PROTEST OF DYNASTAT, INC., UNDER REQUEST FOR PROPOSAL DSA400-71-R 4188 ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA. THIS MATTER WAS THE SUBJECT OF A REPORT FURNISHED BY LETTER DATED MAY 26, 1971, DSAH-G, FROM YOUR ASSISTANT COUNSEL.

A COPY OF OUR DECISION DENYING THE DYNASTAT PROTEST IS ENCLOSED. WHILE WE HAVE DENIED THE PROTEST, THE MATTER IS BEING BROUGHT TO YOUR ATTENTION SINCE YOU MAY WISH TO CONSIDER WHETHER CHANGES IN FUTURE PROCUREMENTS OF THE ITEM AND USE OF THE PRODUCTS OFFERED CLAUSE ARE NEEDED.

WE NOTE THAT CIRCUMSTANCE (XIII) IN ASPR 3-210.2 WAS CITED BY THE CONTRACTING OFFICER IN USING THE AUTHORITY OF THAT PARAGRAPH FOR NEGOTIATION OF THE PROCUREMENT. IN FINDING THAT USE OF FORMAL ADVERTISING WAS IMPRACTICABLE, THE CONTRACTING OFFICER STATED AS HIS REASON THAT IT WAS IMPOSSIBLE TO DRAFT ADEQUATE SPECIFICATIONS OR ANY OTHER ADEQUATELY DETAILED DESCRIPTION OF THE EQUIPMENT. WHILE IT MAY HAVE BEEN IMPOSSIBLE FOR THE GOVERNMENT TO DRAFT A DETAILED DESCRIPTION OF THE EQUIPMENT FOR THE SUBJECT PROCUREMENT, IN VIEW OF THE CRITICAL SUPPLY AND TIME CIRCUMSTANCES, WE NOTE THAT THE FURNISHING OF A DETAILED DESCRIPTION OF ONE OF THE LISTED ACCEPTABLE PRODUCTS WAS SUBSTANTIALLY WHAT WAS BEING REQUIRED UNDER THE PRODUCTS OFFERED CLAUSE OF THOSE OFFERORS WHO DID NOT PROPOSE TO FURNISH ONE OF THE ACCEPTABLE PRODUCTS SHOWN IN THE SOLICITATION. IT FURTHER APPEARS THAT NEITHER AN ACCEPTABLE ITEM NOR ADEQUATE TIME, BEFORE SUBMISSION OF OFFERS, WAS MADE AVAILABLE FOR SUCH PROSPECTIVE SUPPLIERS TO REVERSE ENGINEER THE ITEM IN ORDER TO FURNISH THE REQUIRED DATA WITH THEIR OFFERS.

THIS MATTER IS OF SPECIAL CONCERN WHEN IT IS OBSERVED THAT AT LEAST TWO PRIOR PROCUREMENTS OF THE SAME ITEM (TAB 17, DSA REPORT) HAVE BEEN MADE AND APPEAR TO HAVE COVERED REQUIREMENTS FOR AT LEAST THE PAST THREE YEARS. IN ADDITION, THE PROTESTER'S CONTENTION THAT THE ITEM IS UNSOPHISTICATED AND SIMPLE TO CONSTRUCT HAS NOT BEEN CHALLENGED, AND THE REPORT FURNISHED THIS OFFICE DOES NOT INDICATE THAT OBTAINING ADEQUATE DESCRIPTIVE MATERIAL TO PERMIT FUTURE PROCUREMENTS OF THE ITEM BY FORMAL ADVERTISING IS EITHER IMPRACTICABLE OR UNWARRANTED. IT SEEMS, THEREFORE, THAT PROCUREMENT SPECIFICATIONS MIGHT BE PREPARED OR OBTAINED BY THE GOVERNMENT, DURING THE TIME BEFORE ANY REPROCUREMENT, WHICH WOULD PERMIT FORMAL ADVERTISING, MORE COMPETITION, AND THE ATTENDANT OPPORTUNITY FOR THE GOVERNMENT TO RECEIVE THE BENEFIT OF LOWER PRICES ON THE ITEM.

THE FILE OF THE CONTRACTING OFFICER TRANSMITTED BY YOUR ASSISTANT COUNSEL, S. F. WILLIAMS, ON MAY 26, 1971, IS ENCLOSED.