B-181073, OCT 15, 1974

B-181073: Oct 15, 1974

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SOLICITATION FOR AIRCRAFT GROUND SUPPORT EQUIPMENT ON NONCOMPETITIVE BASIS WILL NOT BE QUESTIONED BY GAO WHEN CONTRACTING OFFICER'S DETERMINATION AND FINDINGS TO NEGOTIATE SOLE SOURCE IS BASED UPON PROCUREMENT ASSIGNED PRIORITY DESIGNATOR 2 (ASPR 3-202.2(VI)). WAS TO OBTAIN IDENTICAL UNITS INCORPORATING THE LATEST DESIGN IMPROVEMENTS FOUND IN THOSE UNITS WHICH HAD BEEN ABLE TO SUCCESSFULLY PASS FIRST ARTICLE TESTING. IN-TROL'S PROTEST IS BASED ON THE CONTENTION THAT IT WAS DENIED A COPY OF UPDATED SPECIFICATIONS AND THE OPPORTUNITY TO SUBMIT A PROPOSAL ON A COMPETITIVE BASIS FOR THE SUBJECT PROCUREMENT. THE PROTEST IS DENIED. AFTER THE PROCUREMENT WAS ADVERTISED IN THE MARCH 18. WAS FORWARDING A COPY OF THE RFP FOR INFORMATIONAL PURPOSES ONLY.

B-181073, OCT 15, 1974

SOLICITATION FOR AIRCRAFT GROUND SUPPORT EQUIPMENT ON NONCOMPETITIVE BASIS WILL NOT BE QUESTIONED BY GAO WHEN CONTRACTING OFFICER'S DETERMINATION AND FINDINGS TO NEGOTIATE SOLE SOURCE IS BASED UPON PROCUREMENT ASSIGNED PRIORITY DESIGNATOR 2 (ASPR 3-202.2(VI)), AND RECORD SUPPORTS CONCLUSION THAT ONLY ONE SOURCE COULD MEET REQUIRED DELIVERY SCHEDULE.

IN-TROL, A DIVISION OF ASEECO CORP. (IN-TROL), PROTESTED THE SOLE SOURCE NEGOTIATED PROCUREMENT OF 24 EACH MMG-1A MOBILE ELECTRIC POWER PLANTS (MMG -1A) FROM TELEDYNE-INET INC. (TELEDYNE-INET) UNDER REQUEST FOR PROPOSALS (RFP) N00156-74-R-0292, ISSUED BY THE NAVAL AIR ENGINEERING CENTER (NAEC), PHILADELPHIA, PENNSYLVANIA.

MMG-1A UNITS SERVE AS A PART OF THE GROUND SUPPORT EQUIPMENT FOR THE EC2 MILITARY AIRCRAFT. THE SUBJECT PROCUREMENT, AN EXTENSION OF TELEDYNE- INET'S EXISTING NAEC CONTRACT N00156-71-C-0942, WAS TO OBTAIN IDENTICAL UNITS INCORPORATING THE LATEST DESIGN IMPROVEMENTS FOUND IN THOSE UNITS WHICH HAD BEEN ABLE TO SUCCESSFULLY PASS FIRST ARTICLE TESTING. IN-TROL'S PROTEST IS BASED ON THE CONTENTION THAT IT WAS DENIED A COPY OF UPDATED SPECIFICATIONS AND THE OPPORTUNITY TO SUBMIT A PROPOSAL ON A COMPETITIVE BASIS FOR THE SUBJECT PROCUREMENT. FOR REASONS STATED BELOW, THE PROTEST IS DENIED.

AFTER THE PROCUREMENT WAS ADVERTISED IN THE MARCH 18, 1974, COMMERCE BUSINESS DAILY, ISSUE NO. PSA-6029, IN-TROL MADE SEVERAL REQUESTS TO PARTICIPATE IN THE SOLICITATION. BY LETTER DATED APRIL 2, 1974, NAEC INFORMED IN-TROL THAT IT ANTICIPATED AWARD BY APRIL 22, 1974, AND WAS FORWARDING A COPY OF THE RFP FOR INFORMATIONAL PURPOSES ONLY. FURTHER, IT ADVISED THAT A BID FROM IN-TROL COULD NOT BE CONSIDERED DUE TO THE UNAVAILABILITY OF ADEQUATE DETAILED SPECIFICATIONS FOR THE PRODUCTION OF EXACT DUPLICATES OF THE ACCEPTABLE UNITS, AND BECAUSE AN URGENT NEED FOR THE EQUIPMENT WOULD NOT PERMIT THE DELAY INCIDENT TO FORMAL ADVERTISING.

WE FIND NOTHING IN THE RECORD TO DISPUTE THE CONTRACTING OFFICER'S JUSTIFICATION FOR NEGOTIATING SOLE SOURCE WITH TELEDYNE-INET. WE NOTE THAT NAEC HAD AWARDED THREE PREVIOUS CONTRACTS TO BUILD AN MMG-1A POWER PLANT. THE FIRST TWO CONTRACTS WERE TERMINATED AFTER THE PRODUCT OFFERED FAILED TO MEET FIRST ARTICLE TEST REQUIREMENTS. UNDER THE THIRD CONTRACT, TELEDYNE-INET'S ACCEPTABLE POWER PLANT WAS SAID TO HAVE ENCOUNTERED NUMEROUS DIFFICULTIES WHICH RESULTED IN SEVERAL DESIGN CHANGES AND IMPROVEMENTS BEING INCORPORATED INTO THE UNIT WHICH WERE NOT IN THE CONTRACT SPECIFICATIONS. TELEDYNE-INET'S SUCCESSFUL PRODUCT REQUIRED 16 MONTHS FOR FIRST ARTICLE APPROVAL AND THE FIRST PRODUCTION QUANTITY WAS DELIVERED 8 MONTHS LATER, THEREBY RESULTING IN 2 YEARS PROCUREMENT LEAD TIME. THE FIRST PRODUCTION UNITS WERE DELIVERED IN JUNE 1973, AND AT THE TIME OF THE SUBJECT SOLICITATION, 36 UNITS WERE STILL DUE FOR DELIVERY UNDER THE CONTRACT.

THE NEW SOLICITATION REQUIRED DELIVERY REQUIREMENTS OF 15 UNITS WITHIN 105 DAYS AND THE BALANCE OF 9 UNITS WITHIN 135 DAYS. MOREOVER, IT HAD BEEN ASSIGNED A PRIORITY DESIGNATOR OF 2 UNDER THE UNIFORM MOVEMENT AND ISSUE PRIORITY SYSTEM (UMIPS). THE CONTRACTING OFFICER'S DETERMINATION AND FINDINGS DATED MARCH 5, 1974, CONCLUDED THAT DUE TO THE URGENCY AND THE LACK OF ADEQUATE SPECIFICATIONS, THE SUBJECT CONTRACT SHOULD BE NEGOTIATED UNDER THE "PUBLIC EXIGENCY" EXCEPTION OF 10 U.S.C. 2304(A)(2), AS IMPLEMENTED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3- 202.2(VI), WHICH AUTHORIZES PROCUREMENT BY NEGOTIATION WHEN THE PURCHASE REQUEST CITED A UMIPS DESIGNATOR OF 1 THROUGH 6, INCLUSIVE.

FINDINGS IN SUPPORT OF A DETERMINATION TO NEGOTIATE UNDER THE "PUBLIC EXIGENCY" EXCEPTION (SUPRA) ARE MADE FINAL BY 10 U.S.C. 2310(B), AND OUR OFFICE IS PRECLUDED FROM QUESTIONING THE LEGAL SUFFICIENCY OF SUCH FINDINGS. 52 COMP. GEN. 57, 62 (1972). ALTHOUGH USE OF THE "PUBLIC EXIGENCY" EXCEPTION DOES NOT IN AND OF ITSELF CLOAK THE CONTRACTING OFFICER WITH AUTHORITY TO PROCURE ITEMS ON A NONCOMPETITIVE BASIS, HE IS VESTED WITH A CONSIDERABLE DEGREE OF DISCRETION TO DETERMINE THE AMOUNT OF COMPETITION CONSISTENT WITH THE EXIGENCY SITUATION. MATTER OF JANKE AND COMPANY, INCORPORATED, B-181064, AUGUST 29, 1974.

IN LIGHT OF NAEC'S PRIOR EXPERIENCES IN OBTAINING AN ACCEPTABLE UNIT, THE RECORD CLEARLY AND CONVINCINGLY ESTABLISHES THAT NEITHER FORMAL ADVERTISING NOR ACCEPTANCE OF A PROPOSAL FROM IN-TROL WOULD HAVE BEEN FEASIBLE AND PRACTICABLE IN ORDER TO FULFILL THE OBJECTIVES OF THE PROCUREMENT WITHIN THE TIME PERMITTED. THEREFORE, SINCE THERE IS NO EVIDENCE THAT THE CONTRACTING OFFICER'S ACTIONS WERE UNREASONABLE OR CONSTITUTED AN ABUSE OF HIS DISCRETION, WE MUST CONCLUDE THAT THE CONTRACTING OFFICER'S DECISION TO NEGOTIATE ON A SOLE-SOURCE BASIS WITH TELEDYNE-INET IS NOT SUBJECT TO QUESTION BY OUR OFFICE.