B-173188, JAN 13, 1972

B-173188: Jan 13, 1972

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ALTHOUGH ELECTRONIC'S BID WAS LOW. AWARD WAS MADE TO COLLINS AFTER IT WAS DETERMINED THAT THE COMMONALITY OF THE COLLINS TRANSCEIVER WITH EQUIPMENT IN THE NAVY INVENTORY WOULD PERMIT SUBSTANTIAL SAVINGS. AFTER COLLINS WAS ALLOWED TO REVISE ITS BID PRICE. ELECTRONIC OBJECTS THAT THE COMMONALITY OF THE SUBSYSTEM WAS NOT STATED AS AN EVALUATION FACTOR IN THE ORIGINAL ITQ. WHEN THE PRIME CONTRACT IS WITH AN INDEPENDENT CONTRACTOR. THE GOVERNMENT WILL ONLY BE SUBJECT TO REGULATIONS GOVERNING DIRECT PROCUREMENT WHERE THE AWARD TO THE SUBCONTRACTOR IS PREJUDICIAL TO THE INTERESTS OF THE UNITED STATES. THE CONTRACT WAS CERTAINLY NOT PREJUDICIAL AND THE PROTEST MUST ACCORDINGLY BE DENIED. 000 WAS LOWER THAN THE COLLINS PRICE OF $3.

B-173188, JAN 13, 1972

BID PROTEST - ALTERATION OF EVALUATION FACTORS DENIAL OF PROTEST OF ELECTRONIC COMMUNICATIONS, INC., AGAINST THE AWARD OF A SUBCONTRACT TO COLLINS RADIO COMPANY UNDER AN ITQ ISSUED BY GRUMMAN AIRCRAFT AND ENGINEERING COMPANY, A PRIME CONTRACTOR WITH THE NAVAL AIR SYSTEMS COMMAND, WASHINGTON, D.C. ALTHOUGH ELECTRONIC'S BID WAS LOW, AWARD WAS MADE TO COLLINS AFTER IT WAS DETERMINED THAT THE COMMONALITY OF THE COLLINS TRANSCEIVER WITH EQUIPMENT IN THE NAVY INVENTORY WOULD PERMIT SUBSTANTIAL SAVINGS, AND AFTER COLLINS WAS ALLOWED TO REVISE ITS BID PRICE. ELECTRONIC OBJECTS THAT THE COMMONALITY OF THE SUBSYSTEM WAS NOT STATED AS AN EVALUATION FACTOR IN THE ORIGINAL ITQ. WHEN THE PRIME CONTRACT IS WITH AN INDEPENDENT CONTRACTOR, THE GOVERNMENT WILL ONLY BE SUBJECT TO REGULATIONS GOVERNING DIRECT PROCUREMENT WHERE THE AWARD TO THE SUBCONTRACTOR IS PREJUDICIAL TO THE INTERESTS OF THE UNITED STATES. SEE 49 COMP. GEN. 669, 670 (1970). SINCE THE AWARD TO COLLINS RESULTED IN A SAVINGS FOR THE GOVERNMENT, THE CONTRACT WAS CERTAINLY NOT PREJUDICIAL AND THE PROTEST MUST ACCORDINGLY BE DENIED.

TO ELECTRONIC COMMUNICATIONS, INC.:

WE REFER TO YOUR LETTER OF DECEMBER 10, 1971, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A SUBCONTRACT TO THE COLLINS RADIO COMPANY (COLLINS) BY THE GRUMMAN AIRCRAFT AND ENGINEERING COMPANY AS PRIME CONTRACTOR UNDER CONTRACT NO. N00019-68-C-0542 WITH THE NAVAL AIR SYSTEMS COMMAND, WASHINGTON, D.C.

THE GRUMMAN INVITATION TO QUOTE (ITQ) NO. 23-E2C-1, ISSUED ON JUNE 15, 1970, REQUESTED THE SUBMISSION OF QUOTATIONS ON A UHF DATA LINK SUBSYSTEM FOR THE E-2C AIRPLANE. AS OF MARCH 1971, THE ELECTRIC COMMUNICATIONS INC., (ECI), OFFER OF $3,814,000 WAS LOWER THAN THE COLLINS PRICE OF $3,851,800. CONSEQUENTLY, AT THE TIME THE GRUMMAN E 2C PROGRAM MANAGER RECOMMENDED COLLINS TO THE CHAIRMAN OF THE GRUMMAN SOURCE SELECTION BOARD ON MARCH 16, 1971, ECI WAS LOWER THAN COLLINS BY $37,800. THE DECISION TO RECOMMEND AWARD TO COLLINS WAS BASED IN PART UPON A DETERMINATION THAT A POTENTIAL SUPPORT SAVINGS OF $1.5 MILLION ( OR - 10%) WOULD ACCRUE TO THE NAVY OVER A 10 YEAR LIFE SPAN THROUGH UTILIZATION OF THE TRANSCEIVER OFFERED BY COLLINS, WHICH IS THE SAME AS THAT USED ON THE S-3A AIRPLANE. IN APRIL 1971, COLLINS SUBMITTED A REVISED PRICE OF $3,753,000, AND WAS SUBSEQUENTLY AWARDED THE CONTRACT.

ECI PROTESTS THE AWARD ON THE GROUNDS THAT THE ORIGINAL ITQ MADE NO REFERENCE TO THE FACT THAT COMMONALITY OF THE SUBSYSTEM TO BE OFFERED WITH PRIOR FURNISHED RADIOS IN THE NAVY INVENTORY WOULD BE USED AS AN EVALUATION FACTOR IN MAKING THE AWARD AND THAT ECI WAS ADVISED OF THIS FOR THE FIRST TIME AT A DEBRIEFING ON APRIL 29, 1971, WHEN IT WAS ALLEGEDLY TOLD THAT COMMONALITY OF THE EQUIPMENT PROPOSED BY COLLINS WITH SIMILAR EQUIPMENT IN THE NAVY INVENTORY WAS THE MAJOR FACTOR IN MAKING THE AWARD TO COLLINS. ECI CONTENDS THAT THE LATE CHANGE IN EVALUATION FACTORS AMOUNTED TO AN UNFAIR PRACTICE IN THAT HAD ECI BEEN ORIGINALLY ADVISED OF THE COMMONALITY FACTOR IT WOULD NEVER HAVE EXPENDED THE EFFORT AND FUNDS NECESSARY FOR PREPARATION OF ITS PROPOSAL.

WE AGREE THAT COMMONALITY WAS NOT CLEARLY INDICATED IN THE ITQ AS BEING AN EVALUATION FACTOR. WHILE IT IS UNFORTUNATE THAT ECI MIGHT HAVE EXPENDED FUNDS AND EFFORT IN THE PREPARATION OF ITS PROPOSAL THAT IT MIGHT NOT HAVE UTILIZED IF IT KNEW COMMONALITY WAS TO BE A FACTOR, WE ARE NOT AWARE OF ANYTHING THAT WOULD HAVE PRECLUDED THE ITQ FROM BEING AMENDED AFTER THE RECEIPT OF PROPOSALS TO PROVIDE FOR COMMONALITY AS AN EVALUATION FACTOR. IF THIS HAD BEEN DONE, ECI WOULD HAVE STILL BEEN FACED WITH THE EXPENDITURE OF FUNDS AND EFFORT. FURTHER, THE CONTRACTING PRACTICES AND PROCEDURES EMPLOYED BY PRIME CONTRACTORS OF THE UNITED STATES, WHERE THE PRIME IS, AS HERE, AN INDEPENDENT CONTRACTOR AND NOT AN AGENT OF THE UNITED STATES, ARE GENERALLY NOT SUBJECT TO THE STATUTORY AND REGULATORY REQUIREMENTS WHICH WOULD GOVERN DIRECT PROCUREMENTS BY THE UNITED STATES AND ESSENTIALLY THE TEST IN CASES OF THIS NATURE IS WHETHER THE AWARD OF THE SUBCONTRACT IS PREJUDICIAL TO THE INTERESTS OF THE UNITED STATES. COMP. GEN. 668, 670 (1970). WE CANNOT CONCLUDE FROM THE FOREGOING THAT THE AWARD TO COLLINS WAS PREJUDICIAL TO THE INTERESTS OF THE UNITED STATES.

ACCORDINGLY, THE PROTEST IS DENIED.