B-182086, MAR 13, 1975

B-182086: Mar 13, 1975

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DISCUSSION OF PROTEST ISSUES RAISED REGARDING PROPRIETY OF SOLE SOURCE PROCUREMENT OF PROJECTORS AND ALLEGED UNDUE RESTRICTIVE NATURE OF MIL-STD-14115 WOULD SERVE NO USEFUL PURPOSE SINCE NAVY WILL CONDUCT NEXT PROCUREMENT OF PROJECTORS ON COMPETITIVE BASIS WITH RESULTING PRODUCT FORMING BASIS FOR NEW MILITARY STANDARD. ANY MEANINGFUL RELIEF AS TO INSTANT PROCUREMENT WAS PRECLUDED BY DELIVERY OF PROJECTORS SHORTLY AFTER FILING OF PROTEST. 2. WHETHER CASSETTES SUPPLIED BY CONTRACTOR UNDER SOLE-SOURCE PROCUREMENT OF PROJECTORS CONFORM TO REQUIREMENTS OF MIL-STD-14115 IS ISSUE OF CONTRACT ADMINISTRATION. WHICH IS FUNCTION AND RESPONSIBILITY OF CONTRACTING AGENCY. DOCUMENTARY RECORD ON MATTER WAS DEVELOPED DURING PROTEST TO PROVIDE INTERESTED PARTIES WITH AS MUCH INFORMATION AS POSSIBLE.

B-182086, MAR 13, 1975

1. DISCUSSION OF PROTEST ISSUES RAISED REGARDING PROPRIETY OF SOLE SOURCE PROCUREMENT OF PROJECTORS AND ALLEGED UNDUE RESTRICTIVE NATURE OF MIL-STD-14115 WOULD SERVE NO USEFUL PURPOSE SINCE NAVY WILL CONDUCT NEXT PROCUREMENT OF PROJECTORS ON COMPETITIVE BASIS WITH RESULTING PRODUCT FORMING BASIS FOR NEW MILITARY STANDARD, AND ANY MEANINGFUL RELIEF AS TO INSTANT PROCUREMENT WAS PRECLUDED BY DELIVERY OF PROJECTORS SHORTLY AFTER FILING OF PROTEST. 2. WHETHER CASSETTES SUPPLIED BY CONTRACTOR UNDER SOLE-SOURCE PROCUREMENT OF PROJECTORS CONFORM TO REQUIREMENTS OF MIL-STD-14115 IS ISSUE OF CONTRACT ADMINISTRATION, WHICH IS FUNCTION AND RESPONSIBILITY OF CONTRACTING AGENCY. HOWEVER, DOCUMENTARY RECORD ON MATTER WAS DEVELOPED DURING PROTEST TO PROVIDE INTERESTED PARTIES WITH AS MUCH INFORMATION AS POSSIBLE.

FAIRCHILD CAMERA AND INSTRUMENT CORPORATION:

BY MEMORANDUM DATED FEBRUARY 22, 1974, THE CHIEF OF NAVAL EDUCATION AND TRAINING SUPPORT (CNETS), BROUGHT TO THE ATTENTION OF THE COMMANDING OFFICER, NAVAL TRAINING EQUIPMENT CENTER (NTEC), THE PRIOR CNETS DIRECTION TO PLAN FOR THE TRANSITION OF NAVY TRAINING FILMS TO THE SUPER 8MM FORMAT. THE MEMORANDUM DIRECTED NTEC TO PROCURE 1,000 EASTMAN KODAK SUPER 8MM MODEL 60Z PROJECTORS TO BEGIN IMPLEMENTATION OF THIS PLAN. CONSOLIDATED PROCUREMENT DIRECTIVE, TASK NO. 4231P25 WAS PREPARED ON MARCH 3, 1974, TO PROCURE THE 1,000 PROJECTORS.

A "DETERMINATION AND FINDINGS" (D&F), DATED JUNE 5, 1974, AUTHORIZED NEGOTIATION FOR THE DESIRED PROJECTORS PURSUANT TO 10 U.S.C. SEC. 2304(A)(10) (1970), AS IMPLEMENTED BY SEC. 3-210.2(I) (1973 ED.) OF THE ARMED SERVICES PROCUREMENT REGULATION, BASED UPON THE FACT THAT IT WOULD BE IMPRACTICABLE TO OBTAIN COMPETITION BY FORMAL ADVERTISING. THE NAVY REPORT TO OUR OFFICE ON THE PROTEST NOTES THAT "*** NTEC WAS WELL AWARE OF THE POTENTIAL FOR AN INDUSTRY CHALLENGE TO THE PROPOSED AWARD TO EASTMAN KODAK; THUS, THE INTENT TO ISSUE A COMMERCE BUSINESS DAILY (CBD) NOTICE THEREOF. ***" ON MAY 29, 1974, A SYNOPSIS OF THE PROPOSED AWARD APPEARED IN THE CBD UNDER CATEGORY 69 - TRAINING AIDS AND DEVICES, WITH THE FIRST LINE INDICATING IN BOLD FACE "*69 - PROJECTOR, MOTION PICTURE, 8MM."

SINCE NO CHALLENGES WERE MADE TO THE PROPOSED AWARD, THE NAVY REQUESTED AND KODAK SUBMITTED A PROPOSAL FOR 1,000 PROJECTORS ON JUNE 12, 1974. SUBSEQUENTLY, THE MARINE CORPS REQUISITIONED 300 SIMILAR PROJECTION UNITS AND THE DECISION WAS MADE TO CONSOLIDATE THE MARINE CORPS' REQUIREMENTS WITH THE NAVY'S. FURTHERMORE, THE NAVY DECIDED TO PROCURE 2,000 ADDITIONAL PROJECTORS WHICH, IN THE ORIGINAL D&F, HAD BEEN REFERENCED AS AN OPTION QUANTITY. A NEW D&F WAS PREPARED TO OBTAIN 3,300 PROJECTORS, AND KODAK SUBMITTED A FIRM PRICE THEREFOR. ON JUNE 25, 1974, THE CONTRACTING OFFICER APPROVED AN AWARD TO KODAK IN THE AMOUNT OF $1,001,619. THE AWARD WAS ACCEPTED BY KODAK ON JUNE 27, 1974, AND DELIVERY OF ALL UNITS HAS BEEN COMPLETED.

TWO MONTHS LATER, ON AUGUST 20, 1974, FAIRCHILD CAMERA AND INSTRUMENT CORPORATION (FAIRCHILD) PROTESTED THE SOLE-SOURCE AWARD. FAIRCHILD HAS ALLEGED THAT A SOLE-SOURCE PROCUREMENT FOR PROJECTORS OF THIS NATURE WAS IMPROPER AND THAT THE REQUIREMENTS OF THE REQUISITE MILITARY STANDARD (MIL -STD) 14115 ARE UNDULY RESTRICTIVE, CAUSING MANUFACTURERS OTHER THAN KODAK TO REDESIGN THEIR PRODUCTS TO BE COMPATIBLE WITH KODAK'S "CLAMSHELL" SYSTEM. THE ORIGINAL PROTEST, AS SUPPLEMENTED BY SUBSEQUENT CORRESPONDENCE AND SEVERAL REPORTS FROM THE NAVY, HAVE PRESENTED OUR OFFICE WITH VARIOUS ISSUES FOR RESOLUTION REGARDING THE PROPRIETY OF THE PROCUREMENT, INCLUDING THE TIMELINESS OF THE FILING OF THE PROTEST UNDER OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 C.F.R. PART 20 (1974)).

HOWEVER, WE OBSERVE THAT ANY MEANINGFUL RELIEF WHICH OUR OFFICE MIGHT HAVE RECOMMENDED WITH RESPECT TO THE INSTANT PROCUREMENT WAS PRECLUDED BY THE DELIVERY OF THE PROJECTORS SHORTLY AFTER THE FILING OF THE PROTEST. IN ADDITION, BY LETTER DATED DECEMBER 19, 1974, THE ASSISTANT SECRETARY OF THE NAVY (INSTALLATIONS & LOGISTICS), ADVISED OUR OFFICE, IN EFFECT, THAT FUTURE PROCUREMENTS FOR THE PROJECTORS WOULD BE ACCOMPLISHED ON A COMPETITIVE BASIS, AS FOLLOWS:

"IN RESPECT TO YOUR OFFICE'S RECENT INQUIRY AT THE FAIRCHILD CAMERA PROTEST CONFERENCE CONCERNING THE NAVY'S PLAN FOR THE NEXT SUBSTANTIAL PROCUREMENT OF SUPER 8MM PROJECTOR/CASSETTE SYSTEMS, I WISH TO INFORM YOU THAT THE NAVY WILL CONDUCT A COMPETITIVE PROCUREMENT BASED ON PERFORMANCE SPECIFICATIONS AND SELECT THE SOURCE WHICH OFFERS THE NAVY THE MOST ADVANTAGE IN TERMS OF LIFE CYCLE COST WHICH INCLUDES INITIAL ACQUISITION COST. IT IS INTENDED THAT THE SELECTION WILL FORM THE BASIS FOR THE MILITARY STANDARD WHICH WILL BE INCORPORATED IN FUTURE PROCUREMENT SPECIFICATIONS FOR SUPER 8MM PROJECTOR/CASSETTE SYSTEMS."

IN VIEW OF THE ABOVE, WE BELIEVE THAT ANY FURTHER DISCUSSION OF THE ISSUES OF PROTEST REGARDING THE CONTRACT AWARD WOULD SERVE NO USEFUL PURPOSE.

FAIRCHILD HAS QUESTIONED WHETHER THE CASSETTES SUPPLIED BY KODAK COMPLY WITH THE REQUIREMENTS OF MIL-STD-14115. THIS MATTER PERTAINS TO CONTRACT ADMINISTRATION WHICH, AS PRIOR DECISIONS OF OUR OFFICE HAVE STATED, IS A FUNCTION AND RESPONSIBILITY OF THE CONTRACTING AGENCY. HOWEVER, IN VIEW OF THE HISTORY SURROUNDING THIS PROTEST, A DOCUMENTARY RECORD ON THIS MATTER WAS DEVELOPED DURING THE PROTEST TO PROVIDE ALL INTERESTED PARTIES WITH AS MUCH INFORMATION AS POSSIBLE.