B-180429, MAY 23, 1974

B-180429: May 23, 1974

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PROTEST AGAINST PROCEDURES WHICH ALLEGEDLY PREVENTED POTENTIAL SUPPLIER FROM SUBMITTING PROPOSAL TO FURNISH EDDY CURRENT TEST INSTRUMENTS IS DENIED. SINCE SOLE-SOURCE AWARD WAS JUSTIFIED BECAUSE ONLY ONE QUALIFIED SUPPLIER WAS KNOWN TO THE CONTRACTING OFFICER AND BECAUSE FAILURE OF PROCUREMENT SYNOPSIS TO APPEAR IN COMMERCE BUSINESS DAILY UNTIL AFTER CLOSING DATE FOR RECEIPT OF PROPOSALS DID NOT PREJUDICE PROTESTER. WAS ISSUED IN RESPONSE TO A MILITARY INTERDEPARTMENTAL PURCHASE REQUEST (MIPR) RECEIVED FROM KELLY AIR FORCE BASE. BECAUSE THE ONLY KNOWN APPROVED COMMERCIAL ITEM AVAILABLE WAS THAT COMPANY'S PART NUMBER EM3300. PERMITTING NEGOTIATION WHEN IT IS IMPRACTICABLE TO OBTAIN COMPETITION.

B-180429, MAY 23, 1974

PROTEST AGAINST PROCEDURES WHICH ALLEGEDLY PREVENTED POTENTIAL SUPPLIER FROM SUBMITTING PROPOSAL TO FURNISH EDDY CURRENT TEST INSTRUMENTS IS DENIED, SINCE SOLE-SOURCE AWARD WAS JUSTIFIED BECAUSE ONLY ONE QUALIFIED SUPPLIER WAS KNOWN TO THE CONTRACTING OFFICER AND BECAUSE FAILURE OF PROCUREMENT SYNOPSIS TO APPEAR IN COMMERCE BUSINESS DAILY UNTIL AFTER CLOSING DATE FOR RECEIPT OF PROPOSALS DID NOT PREJUDICE PROTESTER.

TO NORTEC CORPORATION:

THE NORTEC CORPORATION (NORTEC) HAS PROTESTED AGAINST THE PROCUREMENT PROCEDURES WHICH ALLEGEDLY PREVENTED IT FROM SUBMITTING A PROPOSAL UNDER RFP DSA-400-74-R-4959, ISSUED BY THE DEFENSE SUPPLY AGENCY'S (DSA) DEFENSE GENERAL SUPPLY CENTER IN RICHMOND, VIRGINIA.

THE SOLICITATION, FOR MULTITEST EDDY CURRENT TEST INSTRUMENTS, WAS ISSUED IN RESPONSE TO A MILITARY INTERDEPARTMENTAL PURCHASE REQUEST (MIPR) RECEIVED FROM KELLY AIR FORCE BASE, TEXAS. THE MIPR SPECIFIED THAT THE INSTRUMENTS MUST BE PROCURED FROM AUTOMATION INDUSTRIES, INC., BECAUSE THE ONLY KNOWN APPROVED COMMERCIAL ITEM AVAILABLE WAS THAT COMPANY'S PART NUMBER EM3300. ACCORDINGLY, ON DECEMBER 10, 1973, DSA ISSUED AN RFP FOR THE SPECIFIED BRAND NAME ITEM, WITH A CLOSING DATE OF DECEMBER 17, 1973. 10 U.S.C. 2304(A)(10), PERMITTING NEGOTIATION WHEN IT IS IMPRACTICABLE TO OBTAIN COMPETITION, WAS CITED AS AUTHORITY FOR THE PROCUREMENT BECAUSE IT WAS DETERMINED THAT ADEQUATE SPECIFICATIONS WERE NOT AVAILABLE FOR COMPETITIVE BIDDING. THE RFP WAS MAILED ONLY TO AUTOMATION INDUSTRIES, AND A PROPOSAL WAS RECEIVED FROM ONLY THAT FIRM. TELEPHONE ACCEPTANCE OF THAT PROPOSAL WAS MADE ON DECEMBER 27, 1973, AND CONFIRMED BY WIRE ON JANUARY 2, 1974. THE FORMAL AWARD DOCUMENT WAS MAILED ON JANUARY 17, 1974.

NORTEC ASSERTS THAT IT LEARNED OF THE MIPR IN EARLY OCTOBER AND UPON ASKING OFFICIALS AT KELLY AIR FORCE BASE FOR A PROPOSAL PACKAGE WAS TOLD THAT THE PROCUREMENT WAS BEING HANDLED BY DSA AT RICHMOND AND WOULD BE SYNOPSIZED IN THE COMMERCE BUSINESS DAILY. NORTEC FURTHER STATES THAT IT WAS TOLD BY KELLY PERSONNEL THAT IF IT DEMONSTRATED A SATISFACTORY INSTRUMENT, DSA WOULD BE SO ADVISED SO THAT DSA'S CONTRACTING OFFICER COULD CONSIDER A PROPOSAL FROM NORTEC. ACCORDING TO NORTEC, ITS MODEL NDT -11 WAS SATISFACTORILY DEMONSTRATED TO KELLY OFFICIALS, BUT WHEN, ON DECEMBER 19, 1973, IT NEXT INQUIRED OF KELLY AS TO WHEN THE SOLICITATION WOULD BE ISSUED, IT WAS REFERRED TO DSA AND INFORMED BY THAT AGENCY THAT THE RFP HAD BEEN ISSUED AND THAT THE CLOSING DATE HAD ALREADY PASSED. (THE PROCUREMENT WAS NOT SYNOPSIZED IN THE COMMERCE BUSINESS DAILY UNTIL DECEMBER 20, 1973.) NORTEC THEN REQUESTED CANCELLATION OF THE PROCUREMENT SO THAT IT COULD COMPETE ON A RESOLICITATION, BUT THE AIR FORCE DID NOT REQUEST CANCELLATION AND DSA PROCEEDED TO MAKE AN AWARD.

NORTEC CLAIMS THAT IT WAS UNFAIRLY DEPRIVED OF AN OPPORTUNITY TO COMPETE AND THAT THE GOVERNMENT KNEW IT WAS A QUALIFIED SUPPLIER OF THE NEEDED EQUIPMENT. IN THIS REGARD, NORTEC REFERS TO A CONTRACT IT WAS AWARDED IN JUNE 1973, BY MCCLELLAN AIR FORCE BASE, CALIFORNIA WHEN ITS MODEL NDT-6, A LESS SOPHISTICATED VERSION OF THE NDT-11, WAS FOUND TO BE EQUAL TO THE AUTOMATION INDUSTRIES MODEL EM3300 ON A BRAND NAME OR EQUAL PROCUREMENT.

THE RECORD DOES NOT SUPPORT NORTEC'S CONTENTION THAT IT WAS UNFAIRLY KEPT FROM COMPETING ON THE PROCUREMENT. THE AIR FORCE MIPR ORIGINATING AT KELLY AIR FORCE BASE REQUESTED SOLE-SOURCE PROCUREMENT BECAUSE KELLY KNEW OF ONLY ONE COMMERCIALLY AVAILABLE SOURCE. THE FACT THAT ANOTHER AIR FORCE INSTALLATION HAD RECENTLY FOUND NORTEC'S NDT-6 TO BE EQUAL TO THE SOLE-SOURCE ITEM FOR A PARTICULAR PROCUREMENT DOES NOT ESTABLISH EITHER THAT KELLY OR DSA OFFICIALS WERE AWARE OF NORTEC'S PRODUCT OR THAT NORTEC'S PRODUCT WAS ACCEPTABLE FOR THIS PROCUREMENT. AS THE AIR FORCE POINTS OUT, NORTEC'S PRIOR CONTRACT INDICATES ONLY THAT ITS NDT-6 WAS SUITABLE FOR THE PARTICULAR APPLICATION TO WHICH IT WOULD BE PUT BY MCCLELLAN AIR FORCE BASE, WHICH WAS MORE LIMITED THAN THE NEEDS INTENDED TO BE SATISFIED BY THIS PROCUREMENT. THE AIR FORCE FURTHER POINTS OUT THAT THE NDT-6 WAS NOT ACCEPTABLE FOR KELLY'S NEEDS BECAUSE OF SEVERAL ENUMERATED "ESSENTIAL DIFFERENCES" BETWEEN IT AND THE EM3300. EVEN NORTEC'S NDT-11, WHICH WAS DEMONSTRATED TO KELLY PERSONNEL AFTER THE MIPR WAS SENT TO DSA AND WHICH THE AIR FORCE ADMITS REPRESENTS "A CONSIDERABLE ADVANCEMENT IN THE STATE OF THE ART," WAS REGARDED AS HAVING "A NUMBER OF INSTRUMENT FEATURES WHICH WERE UNACCEPTABLE TO THE AIR FORCE." ACCORDINGLY, THERE IS NO BASIS FOR OUR OBJECTING TO THE ORIGINAL DETERMINATION TO PROCURE ON A SOLE-SOURCE BASIS.

ALTHOUGH THIS WAS A SOLE-SOURCE PROCUREMENT, PARAGRAPH C58 OF THE RFP PROVIDED FOR THE FURNISHING OF A COPY OF THE SOLICITATION TO OTHER SOURCES DEMONSTRATING AN ABILITY TO PRODUCE THE REQUIRED ITEM. WE DO NOT BELIEVE THAT THE FURNISHING OF COPIES OF THE SOLICITATION PROPERLY COULD BE LIMITED TO SUCH SOURCES, AND WE HAVE RECENTLY HELD THAT SUCH PROVISIONS CONSTITUTE AN UNDUE RESTRICTION ON COMPETITION AND SHOULD NOT BE USED. COMP. GEN. 609 (B-178624(1), OCTOBER 5, 1973). IT IS ALSO WELL ESTABLISHED THAT CONTRACTS MAY BE AWARDED TO FIRMS WHICH CAN FURNISH AN ACCEPTABLE PRODUCT NOTWITHSTANDING IDENTIFICATION IN A SOLICITATION OF ONLY ONE FIRM'S PRODUCT. B-174384, MAY 9, 1972; 52 COMP. GEN. 546 (1973). THUS, HAD NORTEC REQUESTED A COPY OF THE SOLICITATION FROM THE DSA CONTRACTING OFFICER AND SUBMITTED A PROPOSAL, AND HAD ITS PRODUCT BEEN TESTED AND FOUND ACCEPTABLE WITHIN THE TIME CONSTRAINTS OF THE PROCUREMENT, IT WOULD HAVE BEEN ELIGIBLE FOR AWARD UNDER THIS RFP.

WE NOTE THAT THE PROCUREMENT WAS NOT SYNOPSIZED EITHER 10 DAYS PRIOR TO THE ISSUANCE OF THE RFP OR NOT LATER THAN THE RFP ISSUE DATE, AS REQUIRED BY ASPR 1.1003-2. HOWEVER, THE CONTRACTING OFFICER POINTS OUT THAT SYNOPSIZING THIS PROCUREMENT WAS NOT REQUIRED AT ALL IN VIEW OF THE CIRCUMSTANCES AND THAT THEREFORE THE LATE APPEARANCE OF THE SYNOPSIS CANNOT BE REGARDED AS PREJUDICING NORTEC. ASPR 1.1003 1(C)(IV) PROVIDES THAT PROCUREMENTS "NEED NOT BE PUBLICIZED IN THE SYNOPSIS" WHEN THE PROCUREMENT "IS OF SUCH URGENCY THAT THE GOVERNMENT WOULD BE SERIOUSLY INJURED BY THE DELAY INVOLVED IN PERMITTING THE DATE SET FOR RECEIPT OF *** PROPOSALS *** TO BE MORE THAN 15 CALENDAR DAYS FROM THE DATE OF TRANSMITTAL OF THE SYNOPSIS OR THE DATE OF ISSUANCE OF THE SOLICITATION, WHICHEVER IS EARLIER." HERE, THE RECORD SHOWS THAT AUTOMATION INDUSTRIES HAD SUBMITTED AN UNSOLICITED PROPOSAL TO FURNISH THE INSTRUMENTS ON NOVEMBER 27, 1973. THE PROPOSAL STATED THAT DELIVERY WAS GUARANTEED BY APRIL 15, 1974 (THE AIR FORCE REQUIRED APRIL DELIVERY) IF AWARD WAS MADE ON OR BEFORE DECEMBER 28, 1973. THEREAFTER, DSA, BELIEVING THAT THERE WAS ONLY ONE FIRM ELIGIBLE TO PROVIDE THE INSTRUMENTS, AND THAT AWARD TO THAT FIRM WOULD HAVE TO BE MADE BY DECEMBER 28, 1973, ISSUED THE RFP WITH ONLY 7 DAYS ALLOWED FOR SUBMISSION OF PROPOSALS.

ALTHOUGH THESE FACTS SUGGEST THAT THE CONTRACTING OFFICER COULD REASONABLY BELIEVE THAT AUTOMATION INDUSTRIES' REQUIRED AWARD DATE PRECLUDED A CLOSING DATE FOR RECEIPT OF PROPOSALS OF DECEMBER 25 OR LATER, THEY DO NOT ESTABLISH THAT THE GOVERNMENT WOULD BE SERIOUSLY INJURED IF AWARD TO AUTOMATION INDUSTRIES WAS NOT MADE BY DECEMBER 28. WHILE THE CONTRACTING OFFICER FREQUENTLY REFERS TO THE URGENCY OF THE AIR FORCE REQUIREMENT, THE PROCUREMENT REQUEST WAS CATEGORIZED AS "ROUTINE" AND THE AIR FORCE DENIES THAT IT EVER UPGRADED ITS REQUEST TO URGENT.

NEVERTHELESS, THERE IS NO INDICATION IN THE RECORD TO SUPPORT NORTEC'S SUGGESTION THAT THE DELAY WAS PART OF A DELIBERATE EFFORT TO PROTECT THE DECISION TO PROCURE SOLE-SOURCE. MOREOVER, WE DO NOT BELIEVE THAT NORTEC WAS PREJUDICED BY THE LATE PUBLICATION OF THE SYNOPSIS, SINCE IT IS CLEAR THAT ITS PRODUCT DID NOT HAVE AIR FORCE APPROVAL AS OF THE CLOSING DATE. FURTHERMORE, WHILE NORTEC MIGHT HAVE BEEN ABLE TO MODIFY THE UNACCEPTABLE FEATURES OF ITS INSTRUMENT TO THE SATISFACTION OF THE AIR FORCE IN TIME FOR AWARD CONSIDERATION IN THIS PROCUREMENT, THE AIR FORCE'S REFUSAL TO REQUEST DSA TO CANCEL THE PROCUREMENT BECAUSE IT WOULD INVOLVE LONG DELAY BEFORE THE AIR FORCE WOULD OBTAIN THE NEEDED EQUIPMENT SUGGESTS OTHERWISE.

FINALLY, NORTEC QUESTIONS THE "FAST AWARD" THAT WAS MADE IN THIS CASE. ALTHOUGH THE PROCUREMENT WAS NOT REGARDED AS URGENT, THE CONTRACTING OFFICER BELIEVED THAT RAPID AWARD WAS NECESSARY TO INSURE DELIVERY BY THE REQUIRED DATE. HE ALSO HAD BEEN INFORMED THAT THE PROPOSAL PRICE WOULD BE INCREASED AS OF JANUARY 2, 1974 (THE RFP PERMITTED WITHDRAWAL OF THE PROPOSAL AT ANYTIME). UNDER THESE CIRCUMSTANCES, AND IN THE ABSENCE OF ANY INDICATION FROM KELLY AIR FORCE BASE THAT THE AIR FORCE WANTED TO CONSIDER NORTEC'S INSTRUMENT FOR THIS PROCUREMENT, WE THINK THE CONTRACTING OFFICER ACTED PROPERLY AND IN THE BEST INTEREST OF THE GOVERNMENT.

FOR THE FOREGOING REASONS, THE PROTEST IS DENIED.