B-175094, MAY 9, 1972

B-175094: May 9, 1972

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IT IS THE OPINION OF THE COMP. THAT AWARD OF THE SUBJECT CONTRACT ON A SOLE-SOURCE BASIS WAS IMPROPER BECAUSE OTHER COMPETITORS WERE AVAILABLE BUT NOT SOLICITED AS REQUIRED BY FPR 1-3.802(B) AND BECAUSE MANY OF THE ITEMS PURCHASED ARE NOT PARTICULARLY UNIQUE TO ONE SUPPLIER. IT WAS FELT. COST ESTIMATES FOR RESTORATION BY THIS METHOD WERE REQUESTED AND RECEIVED FROM THREE FIRMS. CORRESPONDENCE REGARDING THE MATTER WAS EXCHANGED WITH OTHER PERSONS KNOWLEDGEABLE IN THE FIELD. FIVE OTHER FIRMS WERE OFFERED THE OPPORTUNITY TO SUBMIT COST ESTIMATES. NPS WAS ADVISED TO DISCUSS THE RESTORATION WITH CERTAIN PERSONNEL IN THE DEPARTMENT OF THE NAVY. ONE OF THESE INDIVIDUALS WHO WAS EXPERIENCED IN THIS AREA EXAMINED THE STATUES AND CONCLUDED THAT RESTORATION OF THE EXTERIOR SURFACE COULD BE ACCOMPLISHED BY BRUSH PLATING AND THAT RESTORATION OF BOTH THE INTERIOR AND EXTERIOR OF THE STATUES SHOULD BE COORDINATED BY ONE CONTRACTOR.

B-175094, MAY 9, 1972

BID PROTEST - SOLE-SOURCE PROCUREMENT - PROPRIETY OF CONCERNING THE PROTEST OF SELECTRONS, LTD., AGAINST AWARD OF A SOLE SOURCE PROCUREMENT TO BROOKTRONICS ENGINEERING CORPORATION BY THE NATIONAL PARK SERVICE FOR THE RESTORATION OF THE EQUESTRIAN STATUES AT MEMORIAL BRIDGE, WASHINGTON, D.C. IT IS THE OPINION OF THE COMP. GEN. THAT AWARD OF THE SUBJECT CONTRACT ON A SOLE-SOURCE BASIS WAS IMPROPER BECAUSE OTHER COMPETITORS WERE AVAILABLE BUT NOT SOLICITED AS REQUIRED BY FPR 1-3.802(B) AND BECAUSE MANY OF THE ITEMS PURCHASED ARE NOT PARTICULARLY UNIQUE TO ONE SUPPLIER. SINCE OVER 65 PERCENT OF THE PROJECT HAS ALREADY BEEN COMPLETED, THE COMP. GEN. CAN ONLY RECOMMEND THAT ANY FURTHER PROCUREMENT OF MATERIALS AND EQUIPMENT BE OBTAINED ON A COMPETITIVE BASIS.

TO MR. SECRETARY:

WE REFER TO THE LETTER OF MARCH 14, 1972, FROM THE DEPUTY ASSISTANT SECRETARY REPORTING ON THE PROTEST OF SELECTRONS, LTD., AGAINST AWARD BY THE NATIONAL PARK SERVICE OF CONTRACT NO. 14-10-6-950-550 FOR THE RESTORATION OF THE EQUESTRIAN STATUES AT MEMORIAL BRIDGE, WASHINGTON, D.C.

OFFICIALS OF THE NATIONAL PARK SERVICE (NPS) BEGAN STUDYING THE CONDITION OF THE STATUES EARLY IN 1968. AT FIRST, IT WAS FELT, AFTER CONSULTATION WITH AND TESTING BY PERSONNEL OF THE METALLURGY DIVISION OF THE NATIONAL BUREAU OF STANDARDS (NBS), THAT RESTORATION OF THE STATUES WOULD REQUIRE THE APPLICATION OF GOLD LEAF. COST ESTIMATES FOR RESTORATION BY THIS METHOD WERE REQUESTED AND RECEIVED FROM THREE FIRMS, AND CORRESPONDENCE REGARDING THE MATTER WAS EXCHANGED WITH OTHER PERSONS KNOWLEDGEABLE IN THE FIELD. FIVE OTHER FIRMS WERE OFFERED THE OPPORTUNITY TO SUBMIT COST ESTIMATES, BUT DECLINED DUE TO THE MAGNITUDE OF THE WORK. SOON THEREAFTER, NPS AGAIN REQUESTED ADVICE AND RECOMMENDATIONS FROM NBS. NPS WAS ADVISED TO DISCUSS THE RESTORATION WITH CERTAIN PERSONNEL IN THE DEPARTMENT OF THE NAVY. ONE OF THESE INDIVIDUALS WHO WAS EXPERIENCED IN THIS AREA EXAMINED THE STATUES AND CONCLUDED THAT RESTORATION OF THE EXTERIOR SURFACE COULD BE ACCOMPLISHED BY BRUSH PLATING AND THAT RESTORATION OF BOTH THE INTERIOR AND EXTERIOR OF THE STATUES SHOULD BE COORDINATED BY ONE CONTRACTOR. DURING THIS PERIOD, $200,000 WAS BUDGETED FOR RESTORATION OF THE STATUES.

IN MARCH 1971, NBS SUBMITTED ITS TECHNICAL REPORT TO NPS. ON THE BASIS OF THIS REPORT AND FURTHER STUDIES BY NPS, IT WAS DECIDED THAT BRUSH PLATING WOULD BE THE LEAST COSTLY AND LONGEST LASTING OF THE POSSIBLE METHODS OF RESTORATION. CONSEQUENTLY, THE NAVY EXPERT AND NBS WERE CONSULTED CONCERNING THE SOURCES WHO HAD THE ABILITY TO DO THIS TYPE OF WORK. THE NAVY EXPERT ALLEGEDLY MENTIONED SELECTRONS, LTD., OF NEW YORK CITY, PIDDINGTON AND ASSOCIATES LTD. OF PASADENA, CALIFORNIA, AND BROOKTRONICS ENGINEERING CORPORATION OF NORTH HOLLYWOOD, CALIFORNIA. APPARENTLY, BROOKTRONICS WAS RECOMMENDED AS BEST QUALIFIED TO PERFORM THE RESTORATION. NEGOTIATIONS WERE CONDUCTED, THEREFORE, WITH BROOKTRONICS PURSUANT TO SECTION 302(C)(4) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT, 41 U.S.C. 252(C)(4), WHICH PROVIDES FOR NEGOTIATION OF PERSONAL OR PROFESSIONAL SERVICES.

AWARD OF A CONTRACT WAS MADE TO BROOKTRONICS ON SEPTEMBER 27, 1971, AT AN APPROXIMATE PRICE OF $20,000. THIS PRICE WAS COMPRISED OF $1,000 PER WEEK FOR CONSULTATIVE AND SUPERVISORY SERVICES AND $800 PER WEEK FOR TRAINING NPS PERSONNEL TO PERFORM THE TYPE OF RESTORATION WORK INVOLVED. THE CONTRACT PROVIDED IN ARTICLE III THAT:

"SELECTION OF MATERIALS, SUPPLIES AND EQUIPMENT REQUIRED TO EFFECT THE RESTORATION, PRESERVATIONS AND DESIRED FINISH OF THE STATUARY SHALL BE THE RESPONSIBILITY OF THE CONTRACTOR AS THE GOVERNMENT SHALL DEPEND ON HIS PROFESSIONAL OPINION TO PRESCRIBE AND IMPLEMENT EVERY FACET OF THE ENTIRE PROJECT."

THE PROCUREMENT ACTIVITY MAINTAINS THAT THE AWARD TO BROOKTRONICS WAS WARRANTED BECAUSE OF THE RAPIDLY ADVANCING DETERIORATION OF THE STATUES EVIDENCED AFTER AN ALMOST 4-YEAR STUDY OF THE RESTORATION PROBLEM. IT IS FURTHER MAINTAINED THAT CONSIDERATION WAS GIVEN TO EACH OF THE THREE FIRMS MENTIONED BY THE NAVY EXPERT AND THAT BROOKTRONICS WAS DETERMINED TO BE THE BEST QUALIFIED FOR SEVERAL REASONS. BROOKTRONICS WAS CONSIDERED TO HAVE MORE EXPERIENCE IN THE FIELD OF RESTORATION THAN THE OTHER FIRMS, WHOSE EXPERTISE WAS FELT TO BE IN THE INDUSTRIAL APPLICATION OF THE BRUSH PLATING TECHNIQUE. BROOKTRONICS WAS ALSO CONSIDERED BETTER ABLE TO DO THE WORK LESS EXPENSIVELY BECAUSE IT WAS WILLING TO TRAIN THE NPS PERSONNEL ON SITE, WHEREAS THE TWO OTHER FIRMS HELD THEIR TRAINING CLASSES ELSEWHERE THAN WASHINGTON AND THIS WOULD HAVE NECESSITATED EXPENDITURES FOR TRAVEL, PER DIEM, AND THE LIKE. FINALLY, BROOKTRONICS OFFERED TO SUPPLY THE GOLD SOLUTION NEEDED FOR THE RESTORATION AT $960 PER GALLON, WHEREAS THE SELECTRONS PRICE LIST SHOWED A PRICE IN THE AREA OF $2,000 PER GALLON. CONCERNING CONTRACT ARTICLE III, ABOVE, NPS BELIEVES THAT TO HOLD BROOKTRONICS CONTRACTUALLY RESPONSIBLE FOR THE ENTIRE PROJECT AND THEN TO REQUIRE IT TO BUY OR ACCEPT MATERIALS FROM OTHERS WOULD, IN EFFECT, NULLIFY THE PURPOSE OF THE ARRANGEMENT WITH BROOKTRONICS.

IT IS THE CONTENTION OF THE PROTESTANT THAT EITHER THE NAME OF SELECTRONS, LTD., WAS NEVER DISCUSSED DURING THE EVENTS CULMINATING IN THE AWARD TO BROOKTRONICS, OR THAT THE EXPERTISE OF THAT FIRM WAS DEEMPHASIZED IN SUCH A MANNER AS TO MAKE IT APPEAR THAT THE ONLY TWO FIRMS CAPABLE OF EFFECTING THE RESTORATION WERE TO BE FOUND ON THE WEST COAST, THUS MAKING MORE PALATABLE A RECOMMENDATION OF BROOKTRONICS AS THE BEST QUALIFIED SOURCE. IT IS NOTED AS UNUSUAL THAT WHILE THE NAVY EXPERT MENTIONED THE AUTHORIZED WEST COAST REPRESENTATIVE FOR DALIC, SHE FAILED TO MENTION DALIC WHOSE MAIN PLANT IS IN CLEVELAND, OHIO, A SITE CONSIDERABLY CLOSER TO WASHINGTON THAN IS CALIFORNIA. IT IS FURTHER ALLEGED THAT BROOKTRONICS' BROCHURES SHOW THAT FIRM TO HAVE NO MORE EXPERIENCE OUTSIDE OF THE INDUSTRIAL APPLICATION OF BRUSH PLATING THAN EITHER DALIC OR SELECTRONS. AS CONCERNS THE TRAINING OF NPS PERSONNEL, SELECTRONS ASSERTS THAT WHILE ADMITTEDLY IT DOES CONDUCT COURSES ON A MONTHLY BASIS IN NEW YORK CITY AND LOS ANGELES, IT ALSO HAS CONDUCTED THESE COURSES ON SITE FOR THE GOVERNMENT AND COULD HAVE DONE SO HERE. THESE COURSES ARE ALLEGEDLY OFFERED FREE TO CUSTOMERS PURCHASING SELECTRONS' PRODUCTS. IT IS NOTED THAT THE GOVERNMENT IS BOTH PAYING FOR BROOKTRONICS' PRODUCTS AND FOR BROOKTRONICS' TRAINING SESSIONS UNDER THIS PROCUREMENT. CONCERNING THE PRICE OF THE GOLD SOLUTION, IT IS NOTED THAT A BROOKTRONICS PRICE LIST SHOWS ITS QUOTE TO BE AT LOWEST $565 PER QUART, SLIGHTLY LOWER THAN THE SELECTRONS QUOTE PER QUART. NOWHERE, HOWEVER, IS THERE A QUOTE PER GALLON ON THE BROOKTRONICS PRICE LIST. CONSEQUENTLY, IT IS CONTENDED THAT THE COMPARISON OF PRICES MADE BY THE NPS WAS AT BEST A COMPARISON BETWEEN THE SELECTRONS LIST PRICE PER GALLON AND THE NEGOTIATED BROOKTRONICS PRICE PER GALLON DISCOUNTED FOR A QUANTITY PURCHASE OF MORE THAN 68 GALLONS. SELECTRONS WAS NOT ASKED TO QUOTE A PRICE DISCOUNTED FOR A QUANTITY PURCHASE. THUS, THE PROTESTANT QUESTIONS THE PROPRIETY OF ALLOWING PURCHASE OF THE MATERIALS REQUIRED FOR THE RESTORATION ON A BASIS OTHER THAN THAT OF COMPETITIVE BIDDING.

WE ARE OF THE OPINION THAT THE PRESENT PROCUREMENT WAS DEFICIENT IN THAT THERE ARE OTHER FIRMS THAT APPARENTLY ENGAGE IN THE SAME SERVICES AS BROOKTRONICS, AND THEY WERE NOT PROVIDED WITH AN OPPORTUNITY TO COMPETE WITH BROOKTRONICS FOR THE PROCUREMENT. ALTHOUGH THE DETERMINATION TO NEGOTIATE WITH BROOKTRONICS ALONE WAS BASED UPON RECOMMENDATIONS OF GOVERNMENT PERSONNEL, THE FACT REMAINS THAT OTHER FIRMS THAT ENGAGE IN SIMILAR SERVICES WERE NOT PROVIDED WITH AN OPPORTUNITY TO PRESENT THEIR CREDENTIALS AND PRICES FOR THE CONTRACT. IN THAT REGARD, FEDERAL PROCUREMENT REGULATIONS 1-3.802(B) REQUIRES THAT COMPETITIVE PROPOSALS BE SOLICITED FROM A SUFFICIENT NUMBER OF COMPETENT SOURCES TO INSURE ADEQUATE COMPETITION. FURTHER, IN 43 COMP. GEN. 353 (1963), WE HELD THAT THE NEGOTIATION OF CONTRACTS WITHOUT PRICE COMPETITION BASED SOLELY ON A DETERMINATION THAT, AS HERE, A PARTICULAR PROSPECTIVE CONTRACTOR WOULD FURNISH SERVICES OF A HIGHER QUALITY THAN ANY OTHER PROSPECTIVE CONTRACTOR WAS IMPROPER. SEE, IN ACCORD, SCHOENBROD V. UNITED STATES, 410 F.2D 400 (1969) AND 50 COMP. GEN. 110 (1970).

ALSO, WE OBSERVE THAT MATERIAL FOR THE RESTORATION OF THE EQUESTRIAN STATUES HAS BEEN PROCURED FROM THE PROFESSIONAL SERVICE CONTRACTOR BY A SEPARATE CONTRACT UNDER 41 U.S.C. 252(C)(10). THE BASIS FOR THE SOLE SOURCE PROCUREMENT IS THAT THE PROFESSIONAL SERVICE CONTRACT PLACES UPON THE CONTRACTOR SOLE RESPONSIBILITY FOR SELECTING AND PRESCRIBING THE MATERIALS THAT ARE TO BE USED UNDER THE CONTRACT. HOWEVER, AN EXAMINATION OF A PURCHASE ORDER INDICATES THAT THE ITEMS THAT HAVE BEEN PURCHASED FROM THE CONTRACTOR ON A SOLE-SOURCE BASIS HAVE INCLUDED GAUZE, STERILE COTTON, RAZOR BLADES, BEAKERS, GOLD SOLUTION, WIRE BRUSHES, ETC. -- ITEMS THAT ARE NOT PARTICULARLY UNIQUE TO ONE SUPPLIER. IN THE CIRCUMSTANCES, WE DOUBT THE VALIDITY OF THE SOLE SOURCE DETERMINATION.

WE ARE ADVISED THAT AS OF FEBRUARY 23, 1972, 65 PERCENT OF THE PROJECT HAS BEEN COMPLETED. THEREFORE, WE HAVE NO RECOMMENDATION TO OFFER WITH RESPECT TO THE AWARDS MADE OTHER THAN TO RECOMMEND THAT APPROPRIATE CORRECTIVE MEASURES BE TAKEN TO PRECLUDE A RECURRENCE OF THE INSTANT PROCEDURES DISCUSSED HERE. IN THAT REGARD, WE RECOMMEND THAT ANY FURTHER PROCUREMENT OF MATERIALS, SUPPLIES, OR EQUIPMENT FOR THE EQUESTRIAN THE EXTENT FEASIBLE.

THE EXHIBITS THAT WERE REQUESTED TO BE RETURNED IN THE MARCH 14 REPORT ARE ENCLOSED.