B-175412, JUN 20, 1972

B-175412: Jun 20, 1972

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THE PROCUREMENT WAS SYNOPSIZED AND PUBLISHED IN THE COMMERCE BUSINESS DAILY. IT APPEARS THAT SUFFICIENT SOURCES WERE SOLICITED TO SATISFY THE REQUIREMENTS OF FULL AND FREE COMPETITION CONTAINED IN ASPR 3-807.1(B)(1). INC.: REFERENCE IS MADE TO YOUR LETTER DATED MAY 2. PROPOSALS WERE TO BE SUBMITTED BY FEBRUARY 25. YOU PROTEST BECAUSE KECO WAS NOT INITIALLY MAILED A COPY OF THE RFQ AND DID NOT RECEIVE A COPY OF THE RFQ UNTIL FEBRUARY 16. YOU STATE THAT 9 DAYS WAS INSUFFICIENT TIME TO PREPARE YOUR PROPOSAL AND. A SYNOPSIS OF THIS PROCUREMENT WAS PUBLISHED IN THE COMMERCE BUSINESS DAILY (CBD). 33 RFQ'S WERE MAILED TO PROSPECTIVE CONTRACTORS. THESE MAILINGS WERE THE RESULT OF 27 REQUESTS FROM THE SYNOPSIS IN THE CBD.

B-175412, JUN 20, 1972

BID PROTEST - REFUSAL TO EXTEND BID CLOSING DATE DECISION DENYING THE PROTEST OF KECO INDUSTRIES, INC; AGAINST THE REFUSAL OF THE MOBILITY EQUIPMENT COMMAND, FORT BELVOIR, VA; TO EXTEND THE CLOSING DATE UNDER AN RFQ FOR THE ENGINEERING, DEVELOPMENT, DESIGN, AND TESTING, OF AIR CONDITIONER FANS. THE PROCUREMENT WAS SYNOPSIZED AND PUBLISHED IN THE COMMERCE BUSINESS DAILY, PURSUANT TO ASPR 1-1003, AND IT APPEARS THAT SUFFICIENT SOURCES WERE SOLICITED TO SATISFY THE REQUIREMENTS OF FULL AND FREE COMPETITION CONTAINED IN ASPR 3-807.1(B)(1). IN VIEW OF THE FOREGOING, AND ABSENT A DELIBERATE ATTEMPT TO EXCLUDE ANY PROSPECTIVE CONTRACTOR, THE PROTEST MUST BE DENIED.

TO KECO INDUSTRIES, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 2, 1972, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER REQUEST FOR QUOTATIONS (RFQ) NO. DAAK02-72-Q-0048, ISSUED BY THE UNITED STATES MOBILITY EQUIPMENT COMMAND, FORT BELVOIR, VIRGINIA. AWARD HAS BEEN MADE TO DATE.

THE SUBJECT RFQ, ISSUED ON JANUARY 27, 1972, CALLED FOR ENGINEERING DEVELOPMENT, DESIGN AND TESTING OF IMPROVED FANS FOR VERTICAL COMPACT FAMILY OF AIR CONDITIONERS (VCFAC). PROPOSALS WERE TO BE SUBMITTED BY FEBRUARY 25, 1972. YOU PROTEST BECAUSE KECO WAS NOT INITIALLY MAILED A COPY OF THE RFQ AND DID NOT RECEIVE A COPY OF THE RFQ UNTIL FEBRUARY 16, 1972. YOU STATE THAT 9 DAYS WAS INSUFFICIENT TIME TO PREPARE YOUR PROPOSAL AND, THEREFORE, BY LETTER OF FEBRUARY 17, 1972, YOU REQUESTED THE PROCUREMENT AGENCY TO EXTEND THE CLOSING DATE. YOU PROTEST THE REFUSAL TO EXTEND THE CLOSING DATE AS REQUESTED.

ON DECEMBER 29, 1971, A SYNOPSIS OF THIS PROCUREMENT WAS PUBLISHED IN THE COMMERCE BUSINESS DAILY (CBD). A NOTE TO THE SYNOPSIS STATED THAT REQUESTS FOR THE RFQ MUST BE RECEIVED WITHIN 10 DAYS OF THE PUBLISHED NOTICE. ON JANUARY 27, 1972, 33 RFQ'S WERE MAILED TO PROSPECTIVE CONTRACTORS. THESE MAILINGS WERE THE RESULT OF 27 REQUESTS FROM THE SYNOPSIS IN THE CBD, PLUS SIX SOURCES RECOMMENDED TO THE CONTRACTING OFFICER BY THE UNITED STATES ARMY MOBILITY EQUIPMENT RESEARCH AND DEVELOPMENT CENTER (MERDC).

IN YOUR LETTER OF MAY 2, 1972, COMMENTING UPON THE ADMINISTRATIVE REPORT, YOU STATE THAT THE CLAIM IN THAT REPORT THAT KECO IS WITHOUT EXPERTISE OR EXPERIENCE IN FAN DESIGN AND THE AERODYNAMICS OF AIR CONDITIONING IS INCORRECT. IN THIS REGARD, YOU STATE THAT KECO HAS, IN FACT, DESIGNED AND PRODUCED A FAN FOR THE VCFAC WHICH WAS APPROVED BY MERDC PERSONNEL UNDER CONTRACT NO. DAAK01-68-C-8459. YOU ALSO STATE THAT "KECO HAS BEEN RESPONSIBLE FOR THE DESIGN AND ENGINEERING OF FANS EMPLOYED BY IT IN THE PRODUCTION OF A LARGE NUMBER AND WIDE VARIETY OF MILITARY AIR CONDITIONERS, AND HAS CONDUCTED MANY ENGINEERING STUDIES CONCERNED WITH AIR FLOW, NOISE LEVELS, AND PERFORMANCE OF FANS."

THE CONTRACTING OFFICER REPORTS ON THIS QUESTION THAT DUE TO THE FACT THAT THIS PROCUREMENT WAS FOR A SPECIALTY ITEM, IT WAS CONSIDERED THAT THE BACKGROUND KNOWLEDGE FOR SUCH INVESTIGATION, DEVELOPMENT, DESIGN AND FABRICATION IN THE SCIENTIFIC, ENGINEERING AND INDUSTRIAL COMMENTS WOULD BE FOUND IN COMPANIES PRIMARILY CONCERNED WITH AERODYNAMICS AS APPLIED TO AIR CONDITIONERS RATHER THAN IN COMPANIES WITH PRIOR EXPERIENCE IN AIR- CONDITIONER PRODUCTION, SUCH AS KECO. THE CONTRACTING OFFICER STATES THAT KECO WAS NOT INCLUDED AMONG THE SIX RECOMMENDED SOURCES BECAUSE INSOFAR AS MERDC TECHNICAL PERSONNEL KNEW, KECO HAD NEVER CONDUCTED ANY ENGINEERING EFFORT IN THIS FIELD, BUT HAD ALWAYS PURCHASED FANS AS A COMPLETE COMPONENT WHEN PRODUCING ITEMS OF THE VCFAC. THE CONTRACTING OFFICER STATES THAT NONE OF THE SIX RECOMMENDED SOURCES WERE PRODUCERS OF VCFAC AND NONE OF THE OTHER PRODUCERS OF THE VCFAC RESPONDED TO THE SNYOPSIS OR OTHERWISE REQUESTED COPIES OF THE RFQ. WITH RESPECT TO YOUR CONTENTION THAT KECO POSSESSES THE CAPABILITY AND HAS, IN FACT, DESIGNED AN AIR- CONDITIONER FAN FOR USE IN A PRIOR MERDC CONTRACT FOR THE SAME FAMILY OF AIR CONDITIONERS AS INVOLVED HERE, WE HAVE BEEN INFORMALLY ADVISED BY THE ARMY THAT THE CITED CONTRACT WAS FOR PRODUCTION ONLY RATHER THAN FOR DESIGN AND THAT IT, THEREFORE, WAS NOT CONSIDERED AS ESTABLISHING THAT KECO POSSESSED THE NECESSARY DESIGN CAPABILITY. FURTHER, IT WOULD NOT APPEAR THAT KECO'S TECHNICAL CAPABILITY OR LACK THEREOF HAS ANY BEARING ON THE PROPRIETY OF THE CONTRACTING OFFICER'S DETERMINATION THAT SUFFICIENT COMPETITION HAD BEEN OBTAINED WITHOUT EXTENSION OF THE CLOSING DATE FOR PROPOSAL SUBMISSION.

CONCERNING YOUR REQUEST FOR CLOSING DATE EXTENSION, IT IS REPORTED THAT ON FEBRUARY 10, 1972, A REPRESENTATIVE OF YOUR FIRM REQUESTED BY TELEPHONE A COPY OF THE RFQ AND ASKED WHY YOUR FIRM WAS NOT PLACED ON THE ORIGINAL SOURCE LIST. THE REPRESENTATIVE OF YOUR FIRM WAS INFORMED AT THAT TIME OF THE CLOSING DATE OF FEBRUARY 25, 1972, AND THAT NO EXTENSIONS WERE CONTEMPLATED. ON FEBRUARY 14, 1972, A COPY OF THE RFQ WAS MAILED TO YOUR FIRM. ON FEBRUARY 23, 1972, A LETTER DATED FEBRUARY 17, 1972, FROM KECO WAS RECEIVED WHICH ACKNOWLEDGED RECEIPT OF THE COPY OF THE RFQ ON FEBRUARY 16, 1972. THIS LETTER REQUESTED THAT THE CLOSING DATE BE EXTENDED TO MARCH 15, 1972. THE CONTRACTING OFFICER STATES THAT ON FEBRUARY 23, 1972, HE HAD RECEIVED TWO PROPOSALS AND THAT A REPRESENTATIVE OF YOUR FIRM WAS ADVISED BY MR. NORMAN HARRISON OF MERDC PROCUREMENT OFFICE THAT THERE WAS NO JUSTIFICATION FOR EXTENDING THE CLOSING DATE. AS OF FEBRUARY 25, 1972, TWO QUOTATIONS AND 15 "NO QUOTE" ACKNOWLEDGMENTS HAD BEEN RECEIVED. YOUR FIRM HAD NOT SUBMITTED A PROPOSAL AS OF THE CLOSING DATE.

UNDER THE CIRCUMSTANCES OF THIS CASE, WE FIND NO LEGAL BASIS TO QUESTION THE REFUSAL OF THE CONTRACTING OFFICER TO EXTEND THE CLOSING DATE FOR RECEIPT OF PROPOSALS. THE RECORD INDICATES THAT THE AGENCY SATISFIED THE REQUIREMENT OF PARAGRAPH 1-1003 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) THAT THE PROCUREMENT BE SYNOPSIZED AND PUBLISHED IN THE CBD. IT IS UNFORTUNATE THAT YOUR FIRM DID NOT NOTE THE CONTENTS OF THE DECEMBER 29, 1971, SYNOPSIS WHICH CLEARLY INDICATED THAT REQUESTS FOR THE RFQ MUST BE RECEIVED WITHIN 10 DAYS OF THE PUBLISHED NOTICE. WHILE THE CBD SYNOPSIS WAS PUBLISHED UNDER THE HEADING "ARCHITECT, ENGINEER, EXPERT, AND CONSULTANT SERVICES" RATHER THAN UNDER HEADINGS "FANS" OR "AIR CONDITIONERS," AS YOU POINT OUT, IT IS THE ARMY'S POSITION THAT THIS HEADING WAS APPROPRIATE IN VIEW OF THE FACT THAT THE CONTRACT CONTEMPLATED IN THIS INSTANCE WAS FOR ENGINEERING DESIGN RATHER THAN FOR SUPPLIES.

ALSO, WE DO NOT AGREE WITH YOUR CONTENTION THAT SUFFICIENT COMPETITION WAS NOT RECEIVED. TWO QUOTATIONS AND 15 "NO QUOTE" ACKNOWLEDGMENTS WERE RECEIVED AS OF THE FEBRUARY 25, 1972, CLOSING DATE. THIS WOULD APPEAR TO CONSTITUTE SUFFICIENT COMPETITION IN ACCORDANCE WITH ASPR 3-807.1(B)(1) WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"(1) ADEQUATE PRICE COMPETITION. (A) PRICE COMPETITION EXISTS IF OFFERS ARE SOLICITED AND (I) AT LEAST TWO RESPONSIBLE OFFERORS (II) WHO CAN SATISFY THE PURCHASER'S (E.G; THE GOVERNMENT'S) REQUIREMENTS (III) INDEPENDENTLY CONTEND FOR A CONTRACT TO BE AWARDED TO THE RESPONSIVE AND RESPONSIBLE OFFEROR SUBMITTING THE LOWEST EVALUATED PRICE (IV) BY SUBMITTING PRICED OFFERS RESPONSIVE TO THE EXPRESSED REQUIREMENTS OF THE SOLICITATION."

IT THEREFORE APPEARS THAT SUFFICIENT SOURCES WERE SOLICITED TO SATISFY THE REQUIREMENTS OF FULL AND FREE COMPETITION, AS DEFINED IN THE ABOVE- QUOTED REGULATION. SEE B-175217, APRIL 6, 1972.

THE RECORD DOES NOT CONTAIN ANY EVIDENCE OF A CONSCIOUS OR DELIBERATE INTENT TO EXCLUDE A PROSPECTIVE CONTRACTOR FROM PARTICIPATING IN THE COMPETITION. THEREFORE, THE FACT THAT YOUR FIRM DID NOT HAVE SUFFICIENT TIME TO SUBMIT AN OFFER DID NOT RENDER THE PROCUREMENT LEGALLY DEFECTIVE.

ACCORDINGLY, YOUR PROTEST IS DENIED.