B-172958, SEP 27, 1971

B-172958: Sep 27, 1971

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THE AWARD OF THE CONTRACT BY THE ARMY WAS PROPER. TO STANDARD ARMAMENT: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF MAY 13 AND SEPTEMBER 9. WAS ISSUED PURSUANT TO 10 U.S.C. 2304(A)(16). PERMITTING NEGOTIATIONS WHERE PURCHASES ARE TO BE MADE IN THE INTEREST OF NATIONAL DEFENSE OR INDUSTRIAL MOBILIZATION. WAS AUTHORIZED BY A CLASS DETERMINATION AND FINDINGS. WHICH IS QUOTED IN PERTINENT PART AS FOLLOWS: "5 APR 71: SMUAP FORM 43 DATED 24 MARCH 71 FOR THE REQUIREMENT OF 4. BOMB SUU-14A/A (LESS END PLUGS) WITH INITIAL DELIVERY TO COMMENCE ON 31 JULY 1971 WAS RECEIVED IN THE DIVISION ACTION OFFICE. REQUEST WAS MADE OF THE ITEM MANAGER. APDB 72-9 ISSUED FOR FY 72 PLANNING REQUIREMENTS WAS AMENDED TO INCLUDE THE REQUIREMENT FOR 4.

B-172958, SEP 27, 1971

BID PROTEST - SOLE SOURCE PROCUREMENT - INSUFFICIENT LEAD TIME DENYING PROTEST OF STANDARD ARMAMENT AGAINST THE AWARD OF A CONTRACT TO LASKO METAL PRODUCTS, INC., BY THE DEPARTMENT OF THE ARMY UNDER AN RFP ISSUED FOR 4,000 UNITS DISPENSER, BOMB SUU-14A/A. IN VIEW OF THE URGENCY OF THE PROCUREMENT, THE MINIMUM LEAD TIME REQUIREMENT OF SIX MONTHS NEEDED FOR PROCUREMENT AND PRODUCTION, AND THE FACT THAT LASKO WOULD NOT REQUIRE FIRST ARTICLE TESTING SINCE THEY RETAINED "IN HOUSE CAPABILITY" FROM RECENTLY COMPLETED PRODUCTION OF THE ITEM UNDER ANOTHER CONTRACT, THE AWARD OF THE CONTRACT BY THE ARMY WAS PROPER.

TO STANDARD ARMAMENT:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF MAY 13 AND SEPTEMBER 9, 1971, PROTESTING THE AWARD OF CONTRACT DAAA09-71-C-0326 TO LASKO METAL PRODUCTS, INC. (LASKO), BY THE DEPARTMENT OF THE ARMY UNDER REQUEST FOR QUOTATIONS (RFQ) DAAA09-71-Q-0071.

THE SUBJECT RFQ, FOR 4,000 UNITS EACH DISPENSER, BOMB SUU-14A/A, WAS ISSUED PURSUANT TO 10 U.S.C. 2304(A)(16), AS IMPLEMENTED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-216, PERMITTING NEGOTIATIONS WHERE PURCHASES ARE TO BE MADE IN THE INTEREST OF NATIONAL DEFENSE OR INDUSTRIAL MOBILIZATION, AND WAS AUTHORIZED BY A CLASS DETERMINATION AND FINDINGS, DATED JULY 1, 1970.

THE DEPARTMENT HAS FURNISHED US WITH THE FOLLOWING CHRONOLOGY OF THE PROCUREMENT ACTIONS TAKEN UNDER THE SUBJECT RFQ, WHICH IS QUOTED IN PERTINENT PART AS FOLLOWS:

"5 APR 71:

SMUAP FORM 43 DATED 24 MARCH 71 FOR THE REQUIREMENT OF 4,000 UNITS EACH DISPENSER, BOMB SUU-14A/A (LESS END PLUGS) WITH INITIAL DELIVERY TO COMMENCE ON 31 JULY 1971 WAS RECEIVED IN THE DIVISION ACTION OFFICE, AMSMU -PP-PCRB (SMUAP-APDB). THE REQUIREMENT CARRIED AN 02 PRIORITY IN SUPPORT OF SOUTHEAST ASIA.

"6 APR 71:

IN ACCORDANCE WITH ASPR 1-305.2(A) THE CONTRACTING OFFICER CHALLENGED THE INITIAL DELIVERY DATE OF 31 JULY 1971 AS BEING UNREALISTIC AND NOT PERMITTING A COMPETITIVE PROCUREMENT. REQUEST WAS MADE OF THE ITEM MANAGER, AMSMU-PP-PDMC (SMUAP-AMSC) TO RE-EVALUATE THE REQUIRED DELIVERY SCHEDULE WITH THE INTENT THAT A REVISION BE MADE TO PERMIT A COMPETITIVE SOLICITATION.

FL 23 NO. APDB 72-9 ISSUED FOR FY 72 PLANNING REQUIREMENTS WAS AMENDED TO INCLUDE THE REQUIREMENT FOR 4,000 DISPENSERS. THE FL 23 DOCUMENT IS USED BY THE PROCUREMENT DIVISION IN REQUESTING INPUT DATA/PROVISIONS FROM WHICH SOLICITATIONS ARE COMPILED.

"8 APR 71:

THE ITEM MANAGER RESPONDED TO THE 6 APRIL 71 CORRESPONDENCE STATING THE PROPOSED REQUIREMENT WAS IN SUPPORT OF AN URGENT AIR FORCE REQUIREMENT AND THE INITIAL DELIVERY BY 31 JULY 71 WAS MANDATORY TO MEET THE CUSTOMER REQUIREMENT.

"12 APR 71:

PROJECT MANAGER'S OFFICE FOR SELECTED AMMUNITION ADVISED BY TELETYPE THAT PROCUREMENT AUTHORITY WAS BEING STAFFED FOR AN ADDITIONAL 8,000 DISPENSERS. ALTHOUGH FUNDING WAS NOT CURRENTLY AVAILABLE, PMO REQUESTED THAT THE ANTICIPATED QUANTITY OF 8,000 UNITS BE CONTEMPLATED IN THE PROCUREMENT ACTION.

A SECOND REQUEST WAS MADE OF THE ITEM MANAGER TO VERIFY THE URGENCY OF THE REQUIREMENT BY PROVIDING SUPPORT DATA IN THE FORM OF FIELD INVENTORIES, DEPOT INVENTORIES, LAP SCHEDULES, LAP LEAD TIME AND CONSUMPTION RATES. REQUEST WAS ALSO MADE FOR CONFIRMATION OF THE PENDING REQUIREMENT FOR AN ADDITIONAL 8,000 UNITS.

"15 APR 71:

THE ITEM MANAGER FORWARDED A CONFIDENTIAL MEMO REFLECTING CRITICAL FIELD INVENTORIES, DEPOT INVENTORIES, LAP SCHEDULES, LAP LEAD TIME AND CONSUMPTION RATES TO SUPPORT THE MANDATORY INITIAL DELIVERY DATE OF 31 JULY 71. CONFIRMATION WAS ALSO RECEIVED THAT AN UNFUNDED REQUIREMENT FOR AN ADDITIONAL 8,000 UNITS WAS FORTHCOMING.

"16 APR 71:

IN ACCORDANCE WITH ARMY PROCUREMENT PROCEDURE 1-403.55, SOLE SOURCE APPROVAL WAS REQUESTED ON THE BASIS THAT THERE WAS INSUFFICIENT LEAD TIME TO ALLOW FOR A COMPETITIVE PROCUREMENT AND ON THAT BASIS, ONLY ONE PRODUCER, LASKO, COULD POSSIBLY MEET THE MANDATORY INITIAL DELIVERY DATE OF 31 JULY 1971. LASKO, THE LAST PRODUCER OF THE SUU-14 HAD JUST RECENTLY COMPLETED CONTRACT DAAA09-70-C-0070 IN FEBRUARY 1971 AND STILL RETAINED 'IN HOUSE' THE NECESSARY TECHNICAL AND PRODUCTION CAPABILITY TO MEET THE GOVERNMENT'S REQUIREMENT. LASKO WAS THE ONLY PRODUCER TO QUALIFY FOR WAIVER OF FIRST ARTICLE REQUIREMENTS. NO OTHER CONTRACTOR HAD PRODUCED THE SUU-14 SINCE 1968.

"19 APR 71:

TELETYPE CONCURRENCE WAS RECEIVED FROM THE PROJECT MANAGER'S OFFICE FOR SELECTED AMMUNITION FOR SOLE SOURCE AWARD TO LASKO DUE TO INSUFFICIENT LEAD TIME.

"21 APR 71:

SOLE SOURCE APPROVAL WAS GRANTED BY THE ACTING DIRECTOR OF PROCUREMENT AND PRODUCTION FOR THE AWARD OF THE PROPOSED REQUIREMENT TO LASKO METAL PRODUCTS, INCORPORATED. APPROVAL WAS ALSO GRANTED FOR THE INCLUSION OF A 225% OPTION PROVISION.

IN ACCORDANCE WITH ASPR 3-501(D)(II), AUTHORIZATION WAS GRANTED FOR THE USE OF ORAL SOLICITATION BY THE PROCUREMENT DIVISION BRANCH OFFICE AMSMU- PP-PCR (SMUAP-APD) AND A VERBAL REQUEST WAS MADE OF LASKO TO QUOTE ON THE PROPOSED REQUIREMENT.

"22 APR 71:

TELETYPE RFQ DAAA09-71-Q-0071 WAS ISSUED TO LASKO METAL PRODUCTS, INCORPORATED CONFIRMING VERBAL REQUEST FOR QUOTATION.

A REQUEST WAS ALSO MADE OF THE BRANCH OFFICE TO CONCUR IN A DETERMINATION THAT THE PROCUREMENT, DUE TO THE URGENCY, SHOULD NOT BE SYNOPSIZED IN ACCORDANCE WITH ASPR 1-1003.1(C)(IV).

"23 APR 71:

TELETYPE WAS RECEIVED FROM LASKO QUOTING A UNIT PRICE OF $130.00 FOR THE BASIC QUANTITY OF 4,000 UNITS AND A UNIT PRICE OF $110.00 FOR AN OPTION PROVISION OF 225%.

A COPY OF LASKO'S QUOTE WAS FORWARDED TO APSA'S PRICING OFFICE, AMSMU PP- PCAC REQUESTING THEIR REVIEW AND RECOMMENDATIONS.

"27 APR 71:

APSA'S PRICING OFFICE ADVISED THAT A COST ANALYSIS DEFINITELY MUST BE MADE TO SUPPORT LASKO'S QUOTED PRICES BUT FURTHER ADVISED THAT FOR THE PURPOSE OF A LETTER CONTRACT, THE QUOTED PRICES, SHOWN AS CEILING PRICES, WOULD BE ACCEPTABLE.

THE DETERMINATION OF NOT TO SYNOPSIZE THE PROPOSED PROCUREMENT WAS RETURNED FROM THE BRANCH OFFICE WITH NON-CONCURRENCE WITH THE INSTRUCTION THAT SYNOPSIS SHOULD BE MADE FOR SUBCONTRACTING PURPOSES (APSA PROCUREMENT POLICY MEMORANDUM 1-1003 DATED 28 APRIL 70 - PROPOSED PROCUREMENTS WITH SINGLE-SOURCE OR LIMITED SOURCE SOLICITATION MUST BE SYNOPSIZED).

"28 APR 71:

BASED ON THE URGENCY OF THE PROPOSED PROCUREMENT AND THE FACT THAT THE NEGOTIATION OF A DEFINITIVE CONTRACT IN SUFFICIENT TIME TO MEET THE PROCUREMENT NEED WAS NOT POSSIBLE, LETTER CONTRACT APPROVAL WAS REQUESTED IN ACCORDANCE WITH ASPR 3-408 AND ARMY PROCUREMENT PROCEDURE 3-408.

"29 APR 71:

SYNOPSIS ISSUED FOR SUBCONTRACTING PURPOSES ONLY.

"3 MAY 71:

EEO COMPLIANCE REVIEW WAS REQUESTED.

"4 MAY 71:

LETTER CONTRACT APPROVAL WAS GRANTED BY THE DIRECTOR OF PROCUREMENT AND PRODUCTION AND ALL ACTIONS SHORT OF THE AWARD OF THE LETTER CONTRACT WERE COMPLETED EXCEPT FOR APSA'S BOARD OF AWARDS APPROVAL.

SUBSEQUENTLY, ON THE SAME DAY, A TELEPHONE CALL WAS RECEIVED FROM STANDARD ARMAMENT, DIVISION OF HARVARD INDUSTRIES, INCORPORATED, ST. LOUIS, MISSOURI INQUIRING ABOUT SUU-14 REQUIREMENTS. THEY WERE INFORMED BY THE CONTRACT SPECIALIST THAT NO REQUIREMENTS WERE AVAILABLE. THE MATTER WAS RELATED TO THE CONTRACTING OFFICER IN THE PRESENCE OF A REPRESENTATIVE FROM APSA'S LEGAL OFFICE. IT WAS DETERMINED THAT BECAUSE OF THE STATUS OF THE PENDING AWARD, NO REQUIREMENTS WERE IN FACT IN EXISTENCE, THEREFORE, THE STATEMENT TO STANDARD ARMAMENT WAS PROPER.

"5 MAY 71:

BOARD OF AWARDS RECOMMENDED APPROVAL OF PROPOSED AWARD SUBJECT TO RECEIPT OF THE EEO COMPLIANCE REVIEW.

"6 MAY 71:

CONFIRMATION RECEIVED THAT CONTRACTOR WAS IN COMPLIANCE WITH THE TERMS OF THE EQUAL OPPORTUNITY CLAUSE.

SYNOPSIS APPEARED IN THE COMMERCE BUSINESS DAILY.

"7 MAY 71:

LETTER CONTRACT DAAA09-71-C-0326 WAS AWARDED TO LASKO METAL PRODUCTS, INCORPORATED, WEST CHESTER, PENNSYLVANIA."

YOU MAINTAIN THAT THE PROCUREMENT WAS NOT SYNOPSIZED IN THE COMMERCE BUSINESS DAILY IN A TIMELY MANNER; THAT ALL QUALIFIED BIDDERS WERE NOT AFFORDED THE OPPORTUNITY TO COMPETE FOR THE PROCUREMENT; AND THAT THE BIDDING TIME FOR THE PROCUREMENT WAS UNNECESSARILY SHORT.

WITH RESPECT TO YOUR STATEMENT THAT THE PROCUREMENT WAS NOT TIMELY SYNOPSIZED IN THE COMMERCE BUSINESS DAILY, ASPR 1-1003.1(C)(IV) PROVIDES THAT A PROCUREMENT (WHETHER ADVERTISED OR NEGOTIATED) WHICH IS OF SUCH URGENCY THAT THE GOVERNMENT WOULD BE SERIOUSLY INJURED BY THE DELAY INVOLVED IN PERMITTING THE DATE SET FOR RECEIPT OF BIDS, PROPOSALS, OR QUOTATIONS TO BE MORE THAN 15 DAYS FROM THE DATE OF TRANSMITTAL OF THE SYNOPSIS OR THE DATE OF ISSUANCE OF THE SOLICITATION, WHICHEVER IS EARLIER, NEED NOT BE SYNOPSIZED. WHILE THIS REGULATION CONTEMPLATES COMPETITIVE PROCUREMENTS, THE DATE SET FOR RECEIPT OF THE QUOTATION FROM LASKO WAS APRIL 23, 1971; THE DATE OF TRANSMITTAL OF THE SYNOPSIS WAS APRIL 29, 1971; AND THE DATE OF ISSUANCE OF THE SOLICITATION WAS APRIL 21, 1971. SINCE THE DATE SET FOR RECEIPT OF THE QUOTATION WAS NOT MORE THAN 15 DAYS FROM THE DATE OF ISSUANCE OF THE SOLICITATION, AND THE DEPARTMENT DETERMINED THAT THE GOVERNMENT WOULD BE SERIOUSLY INJURED BY PERMITTING A LATER DATE FOR RECEIPT OF LASKO'S QUOTATION, THE SYNOPSIZING WAS NOT REQUIRED UNDER THIS EXCEPTION EVEN IF THE PROCUREMENT HAD NOT BEEN ON A SOLE SOURCE BASIS.

IN THIS REGARD THE ARMY STATES THAT IT DECIDED TO SYNOPSIZE THE PROCUREMENT FOR SUBCONTRACTING PURPOSES ONLY, IN ACCORDANCE WITH ASPR 1 1003.6(A)(1). THIS REGULATION PROVIDES THAT CONTRACTING OFFICERS SHALL, UNLESS NOT IN THE GOVERNMENT'S INTEREST OR SUBCONTRACTING OPPORTUNITIES DO NOT EXIST, PUBLISH IN THE COMMERCE BUSINESS DAILY THE NAMES AND ADDRESSES OF FIRMS TO WHOM REQUESTS FOR PROPOSALS ARE TO BE ISSUED IN ORDER TO BROADEN THE OPPORTUNITY IN NEGOTIATED PROCUREMENTS FOR SUBCONTRACTING BY SMALL BUSINESS CONCERNS AND OTHERS.

WITH RESPECT TO YOUR CONTENTION THAT ALL QUALIFIED BIDDERS WERE NOT AFFORDED THE OPPORTUNITY TO COMPETE FOR THIS PROCUREMENT, IT IS THE POSITION OF THE ARMY THAT LASKO WAS THE ONLY QUALIFIED CONTRACTOR CAPABLE OF MEETING THE INITIAL REQUIRED DELIVERY DATE OF JULY 31, 1971. THE RECORD INDICATES THAT THIS DETERMINATION WAS BASED ON THE FOLLOWING FACTORS: (1) PRIOR EXPERIENCE HAD DEMONSTRATED THAT FOR COMPETITIVE PROCUREMENTS A MINIMUM OF 6 TO 8 MONTHS WAS REQUIRED FOR PROCUREMENT AND PRODUCTION LEAD TIME; (2) LASKO, HAVING RECENTLY COMPLETED CONTRACT DAAA09 -70-C-0070 FOR THE SAME ITEM IN FEBRUARY 1971, STILL RETAINED "IN-HOUSE" THE NECESSARY TECHNICAL AND PRODUCTION CAPABILITY; (3) INASMUCH AS ONLY LASKO HAD BEEN ACTIVE IN THE DISPENSER BOMB SUU-14A/A PROGRAM SINCE 1968, ANY OTHER PRODUCER WOULD HAVE BEEN REQUIRED TO SUBMIT FIRST ARTICLE SAMPLES; AND IT IS INCONCEIVABLE THAT ANY NEW PRODUCER, HAVING TO COMPLY WITH A FIRST ARTICLE REQUIREMENT, COULD HAVE MET THE INITIAL FIRST MONTH DELIVERY DATE.

IN THIS REGARD, IT SHOULD ALSO BE NOTED THAT YOUR CONCERN WAS NOT LISTED AS AN EXISTING OR A SELECTED MOBILIZATION BASE PRODUCER FOR THE END ITEM IN THE CLASS DETERMINATIONS AND FINDINGS, CITED ABOVE, AND THAT THE DEPARTMENT WAS NOT THEREFORE OBLIGED TO OFFER YOUR CONCERN THE OPPORTUNITY TO SUBMIT AN OFFER UNDER THE SUBJECT PROCUREMENT. IN ADDITION, SUBSEQUENT TO YOUR PROTEST A THIRD REVERIFICATION WAS RECEIVED BY THE PROCURING ACTIVITY THAT AS OF JUNE 2, 1971, THE ITEM WAS STILL URGENTLY NEEDED AND THAT THE DELIVERY SCHEDULE COULD NOT BE RELAXED.

BASED UPON OUR REVIEW OF THE RECORD AS SET FORTH ABOVE, WE CANNOT CONCLUDE THAT THE ARMY'S DECISION TO RESTRICT NEGOTIATION FOR THIS PROCUREMENT TO LASKO WAS IMPROPER UNDER THE EXISTING CIRCUMSTANCES, AND THE QUESTION OF WHETHER SUFFICIENT TIME AND PROPER NOTIFICATION WAS PROVIDED FOR SUBMISSION OF COMPETITIVE PROPOSALS FROM OTHER MANUFACTURERS BECOMES ACADEMIC.

FOR THE REASONS SET FORTH ABOVE, YOUR PROTEST MUST BE DENIED.