B-176248, OCT 31, 1972

B-176248, OCT 31, 1972

BID PROTEST - ALLEGED GOVERNMENT COMPETITION WITH PRIVATE INDUSTRY DECISION DECLINING TO RULE ON THE PROTEST OF THE CITIZEN TAXPAYER PARTY, AGAINST ANY AWARD OF A CONTRACT UNDER AN IFB ISSUED BY THE U.S. ARMY WEAPON COMMAND, ROCK ISLAND, ILL., FOR M79 GRENADE LAUNCHER BARRELS. THE PROPRIETY OF A DETERMINATION BY AN EXECUTIVE AGENCY AS TO WHETHER SERVICES OR PRODUCTS SHOULD BE OBTAINED UNDER CONTRACT WITH PRIVATE ENTERPRISE OR THROUGH THE USE OF GOVERNMENT-OWNED FACILITIES IS NOT A MATTER PERMITTING OF A RULING IN TERMS OF LEGAL RIGHTS AND RESPONSIBILITIES. 42 COMP. GEN. 640 (1963).

TO CITIZEN TAXPAYER PARTY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 12, 1972, PROTESTING AGAINST ANY AWARD OF A CONTRACT UNDER DEPARTMENT OF THE ARMY INVITATION FOR BIDS (IFB) NO. DAAF07-72-B-0415.

THE CIRCUMSTANCES WHICH LED TO THE ISSUANCE OF THE IFB HAVE BEEN REPORTED BY THE DEPARTMENT OF THE ARMY AS FOLLOWS:

"ON 26 APRIL 1971, US ARMY WEAPONS COMMAND, ROCK ISLAND, ILLINOIS, ISSUED SOLICITATION NO. DAAF01-71-B-0873 FOR 2975 M79 GRENADE LAUNCHER BARRELS. DUE TO THE INTERVENING PROTEST BY THE LOW BIDDER, THE AWARD TO FOREST SCIENTIFIC, WAS DELAYED UNTIL 12 APRIL 1972. INITIAL PRODUCTION QUANTITIES UNDER THIS PROCUREMENT ARE SCHEDULED FOR FEBRUARY 1973. THIS DELAY IN MAKING THE AWARD CREATED A CRITICAL SHORTAGE TO THE EXTENT THAT IN APRIL 1972 THE STOCK WAS DEPLETED.

"TO ALLEVIATE THIS CONDITION AGGRAVATED BY A CRITICAL NEED FOR THE ITEMS IN SEA, WECOM ISSUED TO WATERVLIET ARSENAL, A WORK DIRECTIVE, WITH AN ISSUE PRIORITY DESIGNATOR '02,' FOR 1650 BARRELS FOR THE M79 GRENADE LAUNCHER, CALLING FOR 50 UNITS IN OCTOBER 1972, 100 IN NOVEMBER 1972, AND 250 A MONTH THEREAFTER TO COMPLETION. RECOGNIZING, THAT PRIVATE INDUSTRY COULD NOT MEET DELIVERIES PRIOR TO FEBRUARY 1973, WATERVLIET PROPOSED TO OBTAIN THE MATERIALS FROM PRIVATE INDUSTRY AND PERFORM THE MACHINE WORK 'IN HOUSE.' ACCORDINGLY, WATERVLIET ARSENAL ISSUED SOLICITATION NO. DAAF07-72-B-0415 ON 7 JUNE 1972 FOR MATERIALS ONLY AND SENT IT TO 16 PROSPECTIVE BIDDERS. NO BIDS WERE RECEIVED ON 29 JUNE 1972, THE DATE SCHEDULED FOR THE BID OPENING, AND ACCORDINGLY, THE SOLICITATION WAS CANCELLED. NEGOTIATION WAS THEN INITIATED WITH A PREVIOUS SUPPLIER FOR AN ALTERNATE ITEM."

YOU PROTEST AGAINST THE GOVERNMENT COMPETING WITH PRIVATE INDUSTRY. YOU ALLEGE THAT THE GOVERNMENT WILL HAVE TO EXPEND LARGE SUMS OF MONEY FOR STARTUP AND SETUP COSTS. IN THIS CONNECTION, IT IS REPORTED THAT THE COST BREAKDOWN PREPARED BY THE WATERVLIET ARSENAL SHOWS THE AMOUNT OF $1,729 FOR "INITIAL SET-UP."

IN 42 COMP. GEN. 640, 642 (1963), OUR OFFICE STATED:

"*** THUS, THE PROPRIETY OF A DETERMINATION BY AN EXECUTIVE AGENCY AS TO WHETHER SERVICES OR PRODUCTS SHOULD BE OBTAINED UNDER CONTRACT WITH PRIVATE ENTERPRISE OR THROUGH THE USE OF GOVERNMENT-OWNED FACILITIES IS NOT A MATTER PERMITTING OF A RULING IN TERMS OF LEGAL RIGHTS AND RESPONSIBILITIES. WE THEREFORE FIND NO LEGAL BASIS FOR OBJECTION TO THE PROPOSED ADMINISTRATIVE ACTION, AND WE MUST DECLINE TO RULE UPON THE POLICY QUESTION INVOLVED, WHICH WE DEEM TO BE A MATTER FOR RESOLUTION WITHIN THE EXECUTIVE BRANCH."

IN VIEW THEREOF, WE DECLINE TO RULE ON THE PROTEST.