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B-178693, SEP 14, 1973

B-178693 Sep 14, 1973
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INC.: WE ARE IN RECEIPT OF YOUR TELEGRAM OF MAY 18. AN ATTEMPT WAS THEN MADE BY THE NRPO SMALL BUSINESS SPECIALIST TO DETERMINE IF THE PROCUREMENT OF THE 10. WERE CONTACTED. WITH THE EXCEPTION OF A SINGLE COMPANY WHICH WAS FAMILIAR WITH THE REQUIREMENT AND WAS LOCATED NEAR THE USING ACTIVITY. ONLY COMPANIES THAT HAD RESPONDED TO THE PREVIOUS PROCUREMENT IN JANUARY WERE ORALLY SOLICITED ON MAY 10. A TOTAL OF SIX FIRMS WAS SOLICITED FOR THE PROCUREMENT. A LATER QUOTE WAS ALSO RECEIVED FROM LENT INDUSTRIES. BOTH QUOTATIONS RECEIVED AFTER MAY 16 WERE CONSIDERED TO BE LATE PROPOSALS AND. WOODS' PROTEST TO OUR OFFICE WAS RECEIVED PRIOR TO AWARD. 000 ITEMS IN QUESTION WERE URGENTLY REQUIRED AND THAT PROMPT AWARD WAS IN THE GOVERNMENT'S BEST INTEREST.

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B-178693, SEP 14, 1973

DENIAL OF BID PROTEST AGAINST THE AWARD OF A CONTRACT UNDER SOLICITATION NO. N66314-73-R-0868, ISSUED BY THE UNITED STATES NAVAL REGIONAL PROCUREMENT OFFICE, OAKLAND, CALIFORNIA.

TO WOODS INDUSTRIES, INC.:

WE ARE IN RECEIPT OF YOUR TELEGRAM OF MAY 18, 1973, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER SOLICITATION NO. N66314-73-R 0868, ISSUED BY THE UNITED STATES NAVAL REGIONAL PROCUREMENT OFFICE (NRPO), OAKLAND, CALIFORNIA.

THIS SOLICITATION SOUGHT QUOTATIONS ON 10,000 SETS OF PALLET ADAPTERS WITH LUGS FOR THE GPMK82 BOMB. THE INITIAL REQUISITION FROM THE USING ACTIVITY DATED APRIL 27, 1973, REQUESTING 28,000 SETS, CITED A PRIORITY DESIGNATOR 02 AND REQUESTED DELIVERY OF 1,400 SETS PER WEEK COMMENCING THE WEEK OF JUNE 8, 1973. UPON RECEIPT OF THIS REQUISITION NRPO DETERMINED THAT IN VIEW OF TIME CONSTRAINTS, 10,000 OF THE 28,000 SETS WOULD BE SOLICITED BY TELEPHONE WITH THE BALANCE OF 18,000 SOLICITED THEREAFTER BY FORMAL ADVERTISING.

AN ATTEMPT WAS THEN MADE BY THE NRPO SMALL BUSINESS SPECIALIST TO DETERMINE IF THE PROCUREMENT OF THE 10,000 SETS COULD BE SET ASIDE WHOLLY FOR SMALL BUSINESS. IN THE COURSE OF THIS ATTEMPT SEVERAL FIRMS, INCLUDING WOODS INDUSTRIES, INC. (WOODS), WERE CONTACTED.

UPON REVIEW OF PRICES RECEIVED ON PREVIOUS SOLICITATIONS OF THIS ITEM, NRPO DECIDED THAT THE PROCUREMENT SHOULD BE A 50-PERCENT SMALL BUSINESS SET-ASIDE RATHER THAN THE TOTAL SET-ASIDE EARLIER CONTEMPLATED. HOWEVER, IN VIEW OF THE URGENCY FOR THESE ITEMS, WITH THE EXCEPTION OF A SINGLE COMPANY WHICH WAS FAMILIAR WITH THE REQUIREMENT AND WAS LOCATED NEAR THE USING ACTIVITY, ONLY COMPANIES THAT HAD RESPONDED TO THE PREVIOUS PROCUREMENT IN JANUARY WERE ORALLY SOLICITED ON MAY 10, 1973, FOR A QUOTATION. A TOTAL OF SIX FIRMS WAS SOLICITED FOR THE PROCUREMENT, INCLUDING ONE LARGE BUSINESS FIRM.

BY MAY 16, 1973, THE CLOSING DATE FOR QUOTATION, ONLY TWO CONCERNS, ONE SMALL BUSINESS AND ONE LARGE BUSINESS, HAD SUBMITTED QUOTATIONS. ON THE FOLLOWING DAY, WOODS, ANOTHER SMALL BUSINESS, SUBMITTED A QUOTATION LOWER THAN THAT ALREADY RECEIVED FROM THE OTHER SIMILARLY SIZED FIRM. A LATER QUOTE WAS ALSO RECEIVED FROM LENT INDUSTRIES, ANOTHER SMALL BUSINESS.

BOTH QUOTATIONS RECEIVED AFTER MAY 16 WERE CONSIDERED TO BE LATE PROPOSALS AND, THEREFORE, UNACCEPTABLE. WOODS' PROTEST TO OUR OFFICE WAS RECEIVED PRIOR TO AWARD. HOWEVER, THE NAVY DETERMINED THAT THE 10,000 ITEMS IN QUESTION WERE URGENTLY REQUIRED AND THAT PROMPT AWARD WAS IN THE GOVERNMENT'S BEST INTEREST. THEREFORE, AN AWARD WAS MADE DURING THE PENDENCY OF THIS PROTEST PURSUANT TO PARAGRAPH 2-407.8(B)(2) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

WOODS CONTENDS THAT THE NAVY ACTED IMPROPERLY IN NOT INFORMING IT AS TO THE REQUIREMENTS AND THE CLOSING DATE OF THE SOLICITATION, ESPECIALLY SINCE IT WAS INFORMED ON MAY 7, 1973, THAT A SOLICITATION WAS FORTHCOMING AND THAT IT WOULD BE CONTACTED FOR A QUOTE. IN FACT, WOODS STATES THAT THE FAILURE TO CONTACT IT WAS NOT AN OVERSIGHT, BUT RATHER AN INTENTIONAL OMISSION BY THE NAVY.

THE AGENCY STATES THAT AT NO TIME DID ITS PERSONNEL INFORM ANY CONCERN, INCLUDING WOODS, THAT IT WOULD BE SOLICITED FOR THE PROCUREMENT AND THAT THE SOLE INTENT OF ITS CALLS WAS TO DETERMINE IF THERE WAS SUFFICIENT INTEREST IN THE PROCUREMENT TO SUPPORT A SMALL BUSINESS SET-ASIDE. THE AGENCY DENIES THAT IT INTENTIONALLY WITHHELD INFORMATION FROM ANY POTENTIAL CONTRACTOR.

WE HAVE HELD THAT EVEN THOUGH A FIRM MAY HAVE BEEN LED TO BELIEVE THAT IT WOULD BE SOLICITED ON A FUTURE PROCUREMENT, SUBSEQUENT FAILURE TO SOLICIT THE FIRM IN AND OF ITSELF IS NOT DETERMINATIVE OF THE PROPRIETY OF THE SOLICITATION. B-177547, MAY 29, 1973. SINCE THERE IS NO DISPUTE HERE THAT TIME WAS CRITICAL AND, IN THE ABSENCE OF EVIDENCE THAT THE NAVY'S DETERMINATION TO SOLICIT QUOTATIONS ONLY FROM FIRMS THAT EITHER HAD PREVIOUSLY BID ON THIS ITEM OR WERE ALREADY FAMILIAR WITH THE REQUIREMENTS WAS NOT SUPPORTED BY ANY RATIONAL BASIS TO DO SO, WE FEEL THE AGENCY DID NOT ACT IMPROPERLY.

WHILE IT IS REGRETTABLE THAT WOODS WAS NOT CONTACTED FOR A QUOTE, WE FEEL THAT THE SOLICITATION OF QUOTATIONS FROM SIX FIRMS, NOTWITHSTANDING THE FACT THAT ONLY TWO CHOSE TO QUOTE, IS CONSISTENT WITH THE PROVISIONS OF ASPR 3-202.2 WHICH STATES THAT WHERE NEGOTIATION IS REQUIRED BECAUSE OF URGENCY "*** COMPETITION TO THE MAXIMUM EXTENT PRACTICABLE, WITHIN THE TIME ALLOWED, SHALL BE OBTAINED."

FOR THE ABOVE-NOTED REASONS, WE BELIEVE THAT THE SOLICITATION WAS PROPER AND, THEREFORE, WOODS' PROTEST IS DENIED.

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