B-173627, FEB 10, 1972

B-173627, FEB 10, 1972

BID PROTEST - NONRESPONSIVENESS - SECURITY CLEARANCE REQUIREMENT CONCERNING THE PROTEST OF PANTRONICS, INC., AGAINST AWARD OF A CONTRACT TO ELCOM ELECTRONICS, INC., UNDER AN IFB ISSUED BY THE NAVAL SUPPLY CENTER, CHARLESTON, S.C., FOR EQUIPMENT OVERHAUL. PROTESTANT WAS DETERMINED NONRESPONSIVE FOR FAILING TO OBTAIN A REQUIRED SECURITY CLEARANCE. AS A GENERAL RULE, SUCH REQUIREMENTS RELATE TO BIDDER RESPONSIBILITY RATHER THAN RESPONSIVENESS. B-161211, JULY 11, 1967. THE INSTANT CASE, THERE WAS NO JUSTIFICATION FOR NOT PROCESSING THE SECURITY CLEARANCE AND MAKING THE PRE-AWARD SURVEY OF ELCOM CONCURRENTLY. FURTHER, IT SEEMS THAT THE POSSIBLE ISSUANCE OF AN INTERIM SECURITY CLEARANCE UNDER SECTION 2-102(B) OF THE DOD INDUSTRIAL SECURITY REGULATIONS WAS NEVER CONSIDERED. IN FUTURE PROCUREMENTS, APPROPRIATE MEASURES SHOULD BE TAKEN TO INSURE THAT BIDDERS ARE NOT PREJUDICED BY ADMINISTRATIVE DELAY IN OBTAINING SECURITY CLEARANCES.

TO MR. SECRETARY:

WE REFER TO LETTERS SUP 0222, WITH ENCLOSURES, DATED AUGUST 12, 1971, AND DECEMBER 15, 1971, FROM THE DEPUTY COMMANDER, PROCUREMENT MANAGEMENT, NAVAL SUPPLY SYSTEMS COMMAND, WASHINGTON, D.C., FURNISHING OUR OFFICE WITH REPORTS RELATIVE TO THE PROTEST OF PANTRONICS, INCORPORATED, AGAINST AWARD TO ANY OTHER CONTRACTOR UNDER INVITATION FOR BIDS (IFB) NO. N00612-71-B- 0101, ISSUED BY THE NAVAL SUPPLY CENTER, CHARLESTON, SOUTH CAROLINA. THE SOLICITATION WAS FOR THE OVERHAUL OF THE AN/TRN-14 TACAN AND ANTENNA SYSTEM.

THE INVITATION CONTAINS THE FOLLOWING PROVISION UNDER SECTION C PERTINENT TO OUR CONSIDERATION:

"SECURITY REQUIREMENTS

"CONTRACTOR PERSONNEL PERFORMING SERVICES UNDER THIS CONTRACT SHALL HAVE A SECURITY CLEARANCE OF 'CONFIDENTIAL.'"

PANTRONICS REPORTS THAT PRIOR TO BID OPENING AND UPON RECEIPT OF THE BID PACKAGE ON THIS PROCUREMENT, IT INQUIRED AT DCASR ATLANTA CONCERNING THE OBTAINING OF A COMPANY SECURITY CLEARANCE, AND WAS ADVISED THAT IF IT WERE THE LOW BIDDER ITS INTERESTS "WOULD BE PROTECTED BY ESTABLISHED PROCUREMENT REGULATIONS."

ON JUNE 4, 1971, THE BID OPENING DATE, THREE BIDS WERE RECEIVED. AFTER THE BIDS WERE OPENED, IT WAS DETERMINED THAT THE APPARENT LOW BIDDER HAD QUALIFIED HIS BID AND WAS THEREFORE REJECTED AS NONRESPONSIVE. PANTRONICS HAD SUBMITTED THE SECOND LOW BID. ON JUNE 7, 1971, NAVAL SUPPLY CENTER, CHARLESTON, SOUTH CAROLINA, CONTACTED DCASR ATLANTA AND WAS ADVISED THAT PANTRONICS DID NOT HAVE THE REQUIRED CONFIDENTIAL FACILITY SECURITY CLEARANCE. EXPERIENCE IN OBTAINING SUCH CLEARANCES INDICATED THAT A 30 TO 45 DAY LEAD TIME WOULD BE REQUIRED ASSUMING THE BIDDER HAD NOT POSSESSED A PREVIOUS CLEARANCE. IN THE CASE OF A PREVIOUSLY CLEARED CONTRACTOR, AN AVERAGE OF 21 DAYS WOULD BE REQUIRED. FURTHER, EMERGENCY CLEARANCES COULD BE ACCOMPLISHED IN TWO WEEKS. HOWEVER, THE NAVAL SUPPLY CENTER DETERMINED THAT WHILE THE INSTANT PROCUREMENT WAS "URGENT," IT WAS NOT CONSIDERED AN "EMERGENCY."

THE CONTRACTING OFFICER DETERMINED THAT THE URGENCY OF THE AWARD ALLOWED LESS THAN 15 CALENDAR DAYS TO REQUEST AND OBTAIN THE REQUIRED CLEARANCE. IN VIEW OF THE TIME CONSTRAINTS, IT WAS DETERMINED THAT PANTRONICS WAS NONRESPONSIVE TO THE REQUIREMENTS OF THE IFB.

ELCOM ELECTRONICS, INCORPORATED, WAS THE THIRD LOW BIDDER. ALTHOUGH THE CONTRACTING OFFICER WAS AWARE ON JUNE 7, 1971, THAT ELCOM HAD THE NECESSARY SECURITY CLEARANCE, THE ACTIVITY HAD NO OTHER INFORMATION AVAILABLE AS TO THAT FIRM'S RESPONSIBILITY. A PRE-AWARD SURVEY ON THE FIRM IN CONNECTION WITH ANOTHER PROCUREMENT WAS THEN IN PROGRESS AND THE RESULTS WERE EXPECTED BY JUNE 15, 1971. BECAUSE OF THE NATURE OF THE WORK AND THE REQUIREMENT FOR THE CONTRACTING OFFICER TO DETERMINE THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR, THE CONTRACTING OFFICER COULD NOT MAKE AN AWARD WITHOUT VERIFYING THE FIRM'S CAPABILITY FOR PERFORMANCE. HOWEVER, COMPLETION OF THE PRE-AWARD SURVEY WAS UNAVOIDABLY DELAYED AND THE AWARD WAS NOT MADE UNTIL JUNE 21, 1971, WITH THE COMMENCEMENT OF PERFORMANCE ON JUNE 28, 1971, AND COMPLETION BY AUGUST 16, 1971, WHICH WAS ACCELERATED AFTER AWARD TO JULY 31, 1971. THE TIME PERIOD WHICH WAS ALLOWED TO LAPSE WHILE AWAITING THE PRE-AWARD SURVEY ON ELCOM REPRESENTED A POTENTIALLY SUFFICIENT TIME FRAME TO HAVE OBTAINED A SECURITY CLEARANCE FOR PANTRONICS. WE ARE NOT ABLE TO FIND SUFFICIENT JUSTIFICATION FOR NOT CONCURRENTLY PROCESSING A SECURITY CLEARANCE FOR PANTRONICS WHILE AWAITING THE RESULTS OF THE PRE AWARD SURVEY ON ELCOM.

IN THIS CONNECTION, WE HAVE CONSISTENTLY HELD THAT SECURITY CLEARANCE REQUIREMENTS RELATE TO THE RESPONSIBILITY OF THE BIDDER AND DO NOT CONSTITUTE A MATTER OF RESPONSIVENESS. SEE B-161211, JULY 11, 1967, AND CASES CITED THEREIN; AND B-173489, SEPTEMBER 15, 1971 (51 COMP. GEN. ). THE CRITICAL TIME FOR MEETING THIS RESPONSIBILITY REQUIREMENT IS THE TIME FOR COMMENCEMENT OF PERFORMANCE, PLUS ANY NECESSARY LEAD TIME.

THE RECORD INDICATES THAT AN EMERGENCY CLEARANCE COULD HAVE BEEN ACCOMPLISHED WITHIN TWO WEEKS, WHICH WAS WITHIN THE AVAILABLE TIME FRAME FOR MEETING THE SECURITY REQUIREMENT. HOWEVER, WHILE THE PROCURING ACTIVITY FOUND THE INSTANT PROCUREMENT URGENT, IT DID NOT CONSIDER IT TO BE AN EMERGENCY. WE FAIL TO SEE ANY MEANINGFUL DISTINCTION.

ALSO, THE NAVY HAS RECOGNIZED THE AVAILABILITY AND ACCEPTABILITY OF UTILIZING THE INTERIM FACILITY SECURITY CLEARANCE. WE HAVE CONCURRED IN ITS USE UNDER THE PROPER CIRCUMSTANCES. B-173489, SEPTEMBER 15, 1971. NOTE THAT SECTION 2-102(B) OF THE DOD INDUSTRIAL SECURITY REGULATIONS (DOD DIRECTIVE NO. 5220.22-R) RECOGNIZES THE POSSIBILITY OF THE ISSUANCE OF AN INTERIM SECURITY CLEARANCE WHERE AN AWARD MUST PROCEED DUE TO URGENCY. THIS REGARD, THE NAVAL FACILITIES ENGINEERING COMMAND STATED WITH RESPECT TO THE PROTEST OF OCEAN ELECTRIC CORPORATION IN B-173489, SUPRA:"AN INTERIM CLEARANCE IS FULLY AS VALID AS THE FINAL CLEARANCE AS FAR AS ACCESS TO CLASSIFIED MATERIALS AND AREAS IS CONCERNED, AND IS ISSUED AS AN EXPEDIENT WHERE CIRCUMSTANCES DICTATE." WE FEEL THAT THE APPROPRIATE CIRCUMSTANCES WERE PRESENT IN THE INSTANT PROCUREMENT BUT WE NOTE THAT NO ATTEMPT WAS INITIATED BY THE PROCURING ACTIVITY TO ACQUIRE AN INTERIM FACILITY CLEARANCE.

OF COURSE IT IS TOO LATE TO RECOMMEND AFFIRMATIVE ACTION IN REGARD TO THIS PROCUREMENT. HOWEVER, WE RECOMMEND THAT APPROPRIATE STEPS BE TAKEN TO INSURE THAT BIDDERS WHO TAKE ALL THE NECESSARY STEPS IN A TIMELY MANNER TO QUALIFY FOR NECESSARY SECURITY CLEARANCES ARE NOT FRUSTRATED BY ADMINISTRATIVE DELAYS TOTALLY BEYOND THEIR CONTROL. WE FEEL THAT SUCH INEQUITABLE RESULTS CAN BE PREVENTED BY UTILIZING THE COURSES OF ACTION OUTLINED ABOVE.