B-177674(2), MAY 11, 1973

B-177674(2): May 11, 1973

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SECRETARY: REFERENCE IS MADE TO THE LETTER DATED JANUARY 29. ENCLOSED IS A COPY OF OUR DECISION OF TODAY WHEREIN WE CONCLUDE THAT PATTY WAS IMPROPERLY DENIED A COPY OF THE RFP. THE FURNISHING OF WHICH WAS REQUIRED BY ASPR 1-1002.1. WE ARE DISTURBED BY OTHER ASPECTS OF THIS PROCUREMENT WHICH WE FEEL ALSO MERIT YOUR ATTENTION. THE RECORD OF THIS CASE INDICATES THAT THE 434 BOMB RACKS COVERED UNDER THE SUBJECT RFP WERE ORIGINALLY INCLUDED IN THE FIRM QUANTITY AND OPTION QUANTITY FOR WHICH OFFERS WERE SOLICITED UNDER RFP N00019-72-R 0090 (RFP - 0090) WHICH WAS ISSUED ON JUNE 8. IT IS REPORTED THAT ONLY PRIOR PRODUCERS VARO AND TALLEY WERE ACTIVELY SOLICITED UNDER RFP -0090 WHICH HAD BEEN ISSUED PURSUANT TO 10 U.S.C. 2304(A)(2).

B-177674(2), MAY 11, 1973

PRECIS - UNAVAILABLE

TO MR. SECRETARY:

REFERENCE IS MADE TO THE LETTER DATED JANUARY 29, 1973, FROM COUNSEL, NAVAL AIR SYSTEMS COMMAND (NAVAIR), REPORTING ON THE PROTEST BY PATTY PRECISION PRODUCTS COMPANY (PATTY) UNDER RFP N00019-73-R-0064, ISSUED BY NAVAIR, WASHINGTON, D.C., FOR A QUANTITY OF 434 BRU-10A/A BOMB RACKS.

ENCLOSED IS A COPY OF OUR DECISION OF TODAY WHEREIN WE CONCLUDE THAT PATTY WAS IMPROPERLY DENIED A COPY OF THE RFP, THE FURNISHING OF WHICH WAS REQUIRED BY ASPR 1-1002.1. IN ADDITION, WE ARE DISTURBED BY OTHER ASPECTS OF THIS PROCUREMENT WHICH WE FEEL ALSO MERIT YOUR ATTENTION.

THE RECORD OF THIS CASE INDICATES THAT THE 434 BOMB RACKS COVERED UNDER THE SUBJECT RFP WERE ORIGINALLY INCLUDED IN THE FIRM QUANTITY AND OPTION QUANTITY FOR WHICH OFFERS WERE SOLICITED UNDER RFP N00019-72-R 0090 (RFP - 0090) WHICH WAS ISSUED ON JUNE 8, 1972, AND FIRST OPENED ON JULY 28, 1972. IT IS REPORTED THAT ONLY PRIOR PRODUCERS VARO AND TALLEY WERE ACTIVELY SOLICITED UNDER RFP -0090 WHICH HAD BEEN ISSUED PURSUANT TO 10 U.S.C. 2304(A)(2), PERMITTING NEGOTIATION OF CONTRACTS IF THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING. THE REPORT STATES THAT THE PROTEST OF A FIRM KNOWN AS MINOWITZ MANUFACTURING COMPANY AGAINST THE POSSIBLE REJECTION OF ITS PROPOSAL PROMPTED AN INQUIRY INTO THE PROCUREMENT. AFTER A LENGTHY REASSESSMENT A DETERMINATION WAS MADE THAT DELIVERY OF 434 OF THE BOMB RACKS WAS URGENTLY REQUIRED, FOR WHICH THE SUBJECT SOLICITATION WAS PREPARED. THE PRIOR RFP -0090 WAS RESTRUCTURED TO PROVIDE SUFFICIENT LEAD TIME FOR NEW PRODUCERS AND AN AWARD THEREUNDER WAS ULTIMATELY MADE TO MINOWITZ.

THE RECORD SHOWS THAT TO MEET THE URGENT REQUIREMENT FOR 434 BOMB RACKS FORCE ACTIVITY DESIGNATOR (FAD) II WAS ASSIGNED ON OCTOBER 26, 1972, AND ISSUE PRIORITY DESIGNATOR 5 UNDER THE UNIFORM MATERIAL MOVEMENT AND ISSUE PRIORITY SYSTEMS WAS ASSIGNED ON NOVEMBER 1, 1972. NOTWITHSTANDING THE OCCURRENCES ON THE ABOVE DATES, ISSUANCE OF THE SUBJECT SOLICITATION WAS DELAYED UNTIL DECEMBER 11, WITH AN OPENING DATE OF DECEMBER 20, AT WHICH POINT THERE WAS NOT SUFFICIENT TIME TO ALLOW FOR PUBLICATION OF THE PROCUREMENT IN THE COMMERCE BUSINESS DAILY. IN ADDITION, ANY INTERESTED PROSPECTIVE NEW PRODUCER SUCH AS PATTY COULD NOT BE AFFORDED AN OPPORTUNITY TO HAVE ITS DELIVERY CAPABILITY DETERMINED AFTER RECEIPT OF PROPOSALS BY APPROPRIATE INVESTIGATION AND, IF NECESSARY, TO HAVE THE MATTER REFERRED TO THE SMALL BUSINESS ADMINISTRATION FOR CERTIFICATE OF COMPETENCY ACTION. IN OUR OPINION THE CIRCUMSTANCES OF THIS CASE CREATE THE OBJECTIONABLE APPEARANCE OF HAVING UNFAIRLY RESTRICTED THE PROCUREMENT TO THE TWO PRIOR PRODUCERS. SEE 45 COMP. GEN. 642 (1966) INVOLVING ANOTHER NAVY PROCUREMENT OF BOMB RACKS IN WHICH A SMALL BUSINESS CONCERN WAS IMPROPERLY EXCLUDED FROM COMPETING FOR THE AWARD.

WE SUGGEST THAT APPROPRIATE STEPS BE TAKEN TO INSURE THAT THE REGULATIONS ARE OBSERVED AND FUTURE PROCUREMENTS ARE PLANNED SO AS TO PERMIT MAXIMUM COMPETITION FOR THE AWARDS.

THE FILE TRANSMITTED WITH THE REPORT OF JANUARY 29 IS RETURNED.