B-172893, AUG 4, 1971

B-172893: Aug 4, 1971

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THE CONTENTION THAT THE OMISSION OF A PROGRESS PAYMENT CLAUSE IN THE ORIGINAL IFB IS PREJUDICIAL TO SMALL BUSINESS FIRMS HAS BEEN MOOTED BY THE INCLUSION OF SUCH A CLAUSE IN A FORTHCOMING AMENDMENT. THE ALLEGATION THAT THE INSPECTION PROCEDURES PERMIT THE DISSEMINATION OF GRENADE LAUNCHERS WITH FLAWS IS WITHOUT MERIT CONSIDERING THE PAST RECORD OF SUCCESSFUL PERFORMANCE OF 26. TO CITIZEN TAXPAYER PARTY: REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 9. THE REFERENCED IFB WAS ISSUED APRIL 26. BID OPENING WAS SET FOR MAY 10. DAAF01-71-B-0873-0001 WAS ISSUED TO DECREASE THE QUANTITY TO 1. TO SUPPORT CONTRACTUAL TEST REQUIREMENTS WAS REDUCED FROM 3500 TO 1825 ROUNDS. THE CONTRACTING OFFICER WAS ADVISED BY THE RESEARCH AND ENGINEERING DIRECTORATE THAT THE M79 GRENADE LAUNCHER BARREL DRAWING 7791569 WAS BEING REVISED AND HE WAS REQUESTED TO SUSPEND THE SUBJECT IFB UNTIL REVISED MATERIAL WAS AVAILABLE.

B-172893, AUG 4, 1971

BID PROTEST - RESTRICTED COMPETITION - INADEQUATE SPECIFICATIONS DECISION DENYING PROTEST AGAINST THE ALLEGED INSUFFICIENCY OF AN IFB ISSUED BY THE ROCK ISLAND ARSENAL FOR THE PROCUREMENT OF A NUMBER OF BARRELS FOR END USE IN THE M79 GRENADE LAUNCHER. THE CONTENTION THAT THE OMISSION OF A PROGRESS PAYMENT CLAUSE IN THE ORIGINAL IFB IS PREJUDICIAL TO SMALL BUSINESS FIRMS HAS BEEN MOOTED BY THE INCLUSION OF SUCH A CLAUSE IN A FORTHCOMING AMENDMENT. ALSO, THE ALLEGATION THAT THE INSPECTION PROCEDURES PERMIT THE DISSEMINATION OF GRENADE LAUNCHERS WITH FLAWS IS WITHOUT MERIT CONSIDERING THE PAST RECORD OF SUCCESSFUL PERFORMANCE OF 26,274 M79 LAUNCHER BARRELS AND 170,977 LAUNCHERS.

TO CITIZEN TAXPAYER PARTY:

REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 9, 1971, AND LETTERS OF MAY 18 AND JULY 12, 1971, IN PROTEST AGAINST INVITATION FOR BIDS (IFB) DAAF01-71- B-0873, ISSUED BY THE ROCK ISLAND ARSENAL, ROCK ISLAND, ILLINOIS.

THE REFERENCED IFB WAS ISSUED APRIL 26, 1971, FOR THE PROCUREMENT OF 2,975 BARRELS FOR END USE IN THE 40MM M79 (HN) GRENADE LAUNCHER, WITH ONE ADDITIONAL UNIT FOR FIRST ARTICLE APPROVAL, AND A REQUIREMENT FOR DATA. BID OPENING WAS SET FOR MAY 10, 1971.

ON MAY 3, 1971, AMENDMENT NO. DAAF01-71-B-0873-0001 WAS ISSUED TO DECREASE THE QUANTITY TO 1,651 UNITS (INCLUDING ONE UNIT FOR FIRST ARTICLE APPROVAL), REVISE THE DELIVERY SCHEDULE, AND TO EXTEND THE DATE OF BID OPENING TO MAY 17, 1971. ALSO, THE QUANTITY OF GOVERNMENT FURNISHED AMMUNITION, FSN 1310-690-5761-B578, TO SUPPORT CONTRACTUAL TEST REQUIREMENTS WAS REDUCED FROM 3500 TO 1825 ROUNDS.

ON MAY 7, 1971, THE CONTRACTING OFFICER WAS ADVISED BY THE RESEARCH AND ENGINEERING DIRECTORATE THAT THE M79 GRENADE LAUNCHER BARREL DRAWING 7791569 WAS BEING REVISED AND HE WAS REQUESTED TO SUSPEND THE SUBJECT IFB UNTIL REVISED MATERIAL WAS AVAILABLE.

BIDS WERE RETURNED UNOPENED ON MAY 11, 1971, AND AMENDMENT DAAF01-71 B- 0873-0002 WAS ISSUED ON THAT DATE EXTENDING BID OPENING TO JULY 1, 1971, DUE TO ADMINISTRATIVE AND TECHNICAL PROBLEMS. IT IS REPORTED THAT UPON RECEIPT OF THE REVISED MATERIAL A FURTHER AMENDMENT TO THE SUBJECT IFB WILL BE ISSUED.

YOU CONTEND THAT THE OMISSION OF A PROGRESS PAYMENT CLAUSE IN THE ORIGINAL IFB IS PREJUDICIAL TO SMALL BUSINESS FIRMS, WHICH WILL REQUIRE FINANCIAL ASSISTANCE PRIOR TO FIRST DELIVERY, AND THEREBY RESTRICTS COMPETITION.

YOU FURTHER ALLEGE THAT THE BID DOCUMENTS ARE INCOMPATIBLE WITH EACH OTHER, AND WILL RESULT EITHER IN EXCESSIVE COSTS OR A DEFECTIVE PRODUCT WHICH WOULD IMPERIL THE SAFETY OF TROOPS IN THE FIELD. IT IS SPECIFICALLY CONTENDED IN SUCH RESPECT THAT PAGE 33 OF THE IFB (GOVERNMENT FURNISHED PROPERTY) SPECIFIES HIGH PRESSURE AMMUNITION TO BE USED FOR THE PROOF FIRING TEST BUT THAT SUPPLEMENTARY QUALITY ASSURANCE PROVISION 7791569, AND DRAWING 7791569, SPECIFIED IN THE INSPECTION AND ACCEPTANCE PROVISIONS OF THE IFB, REQUIRE THE USE OF STANDARD AMMUNITION AND CARTRIDGE IN TESTING THE PRODUCT. CONSEQUENTLY, YOU IMPLY THAT IF A CONTRACTOR RELIED ON THE NECESSITY OF USING HIGH PRESSURE AMMUNITION, HIS PROOF FIRING COSTS WOULD BE HIGHER THAN HAD HE USED STANDARD AMMUNITION. ON THE OTHER HAND, YOU SAY THAT IF A CONTRACTOR WERE TO BID AT A LOWER COST ON THE BASIS OF USING STANDARD AMMUNITION, THE INSPECTION PROCEDURES SPECIFIED IN THE IFB WOULD BE INADEQUATE TO ELIMINATE GRENADE LAUNCHER BARRELS CONTAINING FLAWS WHICH ARE ACCEPTABLE TO THOSE INSPECTION PROCEDURES, THEREBY PERMITTING SHIPMENT OF UNSAFE BARRELS TO THE FIELD WHERE THEY WOULD ENDANGER THE SAFETY OF ARMED FORCES PERSONNEL.

WITH REGARD TO YOUR FIRST CONTENTION, WE HAVE BEEN ADVISED BY THE DEPARTMENT OF THE ARMY THAT A PROGRESS PAYMENT CLAUSE WILL BE INCLUDED IN A FORTHCOMING AMENDMENT TO THE IFB. IN VIEW THEREOF, IT WOULD APPEAR THAT THIS SEGMENT OF YOUR PROTEST REQUIRES NO FURTHER CONSIDERATION BY OUR OFFICE.

IT APPEARS THAT YOU REGARDED THE GOVERNMENT-FURNISHED AMMUNITION FSN 1310 -690-5761-B578, SHOWN ON PAGE 33 OF THE IFB, AS BEING HIGH PRESSURE BECAUSE OF A PRIOR SOLICITATION IN WHICH THE AMMUNITION TO BE FURNISHED FOR TESTING M79 GRENADE LAUNCHERS WAS DESCRIBED AS "HIGH PRESSURE TEST AMMUNITION B578." WE HAVE BEEN APPRISED BY ARMY OFFICIALS THAT THE AMMUNITION PERSONNEL AT THE PICATINNY ARSENAL REPORT THAT THE M79 GRENADE LAUNCHER AMMUNITION SPECIFIED ON PAGE 33 OF THE IFB IS NOT A HIGH PRESSURE ROUND, BUT IS A 40MM ROUND, DESIGNATED M387, AND IS CLASSIFIED AS A "STANDARD ROUND," CONTAINING THE SAME LOAD AS ALL OTHER 40MM ROUNDS. THEREFORE WOULD SEEM THAT THE PRIOR SOLICITATION WAS INCORRECT IN REFERRING TO THE B578 AMMUNITION AS BEING HIGH PRESSURE.

IN VIEW THEREOF, WE MUST CONCLUDE THAT THERE IS NO DISPARITY BETWEEN THE TYPE OF AMMUNITION SPECIFIED ON PAGE 33 OF THE IFB AND THE TYPE REQUIRED FOR TESTING BY THE PERTINENT INSPECTION AND ACCEPTANCE PROVISIONS OF THE INVITATION.

WHILE YOU ALLEGE THAT USE OF THE INSPECTION PROCEDURES SPECIFIED BY THE IFB PERMITS THE DISSEMINATION TO THE FIELD OF GRENADE LAUNCHERS WITH FLAWS WHICH ARE POTENTIALLY DANGEROUS TO OUR ARMED FORCES PERSONNEL, WE HAVE BEEN ADVISED THAT THE GOVERNMENT HAS PROCURED APPROXIMATELY 26,274 M79 LAUNCHER BARRELS AND 170,977 LAUNCHERS, EXCLUSIVE OF SPARE PARTS, AND THAT THERE IS NO KNOWN INSTANCE WHERE A BARREL MANUFACTURED TO GOVERNMENT SPECIFICATIONS HAS IMPAIRED THE SAFETY OF THE WEAPON. IN ANY EVENT, IT IS WELL ESTABLISHED THAT THE DRAFTING OF SPECIFICATIONS ADEQUATE TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT IS THE PROPER FUNCTION OF THE PROCURING AGENCY, AND THE AGENCY'S DECISION AS TO WHAT WILL SATISFY ITS NEEDS IS NOT SUBJECT TO LEGAL OBJECTION BY OUR OFFICE. 49 COMP. GEN. 156, 160 (1969).

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.