B-182340, APR 4, 1975

B-182340: Apr 4, 1975

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SOLE-SOURCE AWARD OF CONTRACT FOR ABSTRACTING SERVICES TO FIRM BELIEVED BY AGENCY TO POSSESS PERSONNEL RESOURCES AND BROAD EXPERTISE UNMATCHED BY ANY OTHER FIRM WAS NOT IMPROPER WHERE CONTRACT WAS NEGOTIATED UNDER PUBLIC EXIGENCY EXCEPTION TO FORMAL ADVERTISING. SINCE THE FACT THAT A FIRM POSSESSES SUPERIOR QUALIFICATIONS AND FACILITIES DOES NOT PRECLUDE EXISTENCE OF OTHER QUALIFIED SOURCES WHICH COULD HAVE SATISFIED GOVERNMENT'S NEEDS. DETERMINATION UNDER 10 U.S.C. 2306(C)(1970) THAT IT WAS IMPRACTICABLE TO SECURE SERVICES OF KIND OR QUALITY RENDERED WITHOUT USE OF A COST-PLUS- FIXED-FEE CONTRACT WAS SUPPORTED BY FINDING. WAS PROPER. THIS CONTRACT WAS DEFINITIZED ON JULY 1. INFORMATICS IS REQUIRED TO ACQUIRE.

B-182340, APR 4, 1975

1. SOLE-SOURCE AWARD OF CONTRACT FOR ABSTRACTING SERVICES TO FIRM BELIEVED BY AGENCY TO POSSESS PERSONNEL RESOURCES AND BROAD EXPERTISE UNMATCHED BY ANY OTHER FIRM WAS NOT IMPROPER WHERE CONTRACT WAS NEGOTIATED UNDER PUBLIC EXIGENCY EXCEPTION TO FORMAL ADVERTISING. HOWEVER, SINCE THE FACT THAT A FIRM POSSESSES SUPERIOR QUALIFICATIONS AND FACILITIES DOES NOT PRECLUDE EXISTENCE OF OTHER QUALIFIED SOURCES WHICH COULD HAVE SATISFIED GOVERNMENT'S NEEDS, GAO RECOMMENDS THAT CONTRACT TERM NOT BE EXTENDED AND THAT AN ATTEMPT BE MADE TO OBTAIN COMPETITION FOR ANY FUTURE PROCUREMENT. 2. DETERMINATION UNDER 10 U.S.C. 2306(C)(1970) THAT IT WAS IMPRACTICABLE TO SECURE SERVICES OF KIND OR QUALITY RENDERED WITHOUT USE OF A COST-PLUS- FIXED-FEE CONTRACT WAS SUPPORTED BY FINDING, AS REQUIRED UNDER 10 U.S.C. 2310(B)(1970), AND WAS PROPER.

LEO KANNER ASSOCIATES:

ON JULY 1, 1974, THE NAVAL REGIONAL PROCUREMENT OFFICE (NRPO), WASHINGTON, D.C., AWARDED CONTRACT NO. N00600-75-C-0018 TO INFORMATICS, INC. (INFORMATICS), ON A SOLE-SOURCE BASIS UNDER REQUISITION NO. N68166 3290-7090 ISSUED BY THE NAVAL INTELLIGENCE SUPPORT CENTER (NISC). THIS CONTRACT WAS DEFINITIZED ON JULY 1, 1974, ON A COST-PLUS-FIXED-FEE BASIS IN THE TOTAL ESTIMATED AMOUNT OF $306,023, FOR THE CONTRACT PERIOD JULY 1, 1974 TO JUNE 30, 1975, WITH AN APPARENT OPTION TO EXTEND THE TERM OF THE CONTRACT BY MUTUAL AGREEMENT OF THE PARTIES. INFORMATICS IS REQUIRED TO ACQUIRE, SCREEN AND EXPLOIT ALL AVAILABLE OPEN SOURCE SOVIET AND EAST EUROPEAN LITERATURE FOR PERTINENT DATA ON (1) LASER TECHNOLOGY; (2) SEISMOGRAPHY; (3) OCEANOGRAPHY; (4) ENERGY TECHNOLOGY, AND VARIOUS ENUMERATED OPTIONAL TOPICS.

ON AUGUST 28, 1974, THE DATE THE CONTRACT AWARD WAS PUBLISHED IN THE COMMERCE BUSINESS DAILY (CBD), LEO KANNER ASSOCIATES (LKA) PROTESTED TO NRPO REGARDING THE SOLE-SOURCE AWARD TO INFORMATICS. BY LETTER DATED OCTOBER 18, 1974, NRPO, IN ESSENCE, DENIED LKA'S PROTEST. THEREUPON, LKA FILED ITS PROTEST WITH OUR OFFICE. LKA CONTENDS THAT THE CONTRACT WAS IMPROPERLY NEGOTIATED WITH INFORMATICS ON A SOLE-SOURCE BASIS. ADDITION, LKA PROTESTED THE ACTIVITY'S SELECTION OF A COST-PLUS FIXED FEE CONTRACT. IN THIS REGARD, IT SHOULD BE NOTED THAT ON OCTOBER 4, 1974, LINGUISTIC SYSTEMS, INC., FILED A VIRTUALLY IDENTICAL PROTEST DIRECTLY WITH OUR OFFICE. SUBSEQUENTLY, LINGUISTIC AGREED NOT TO PURSUE ITS PROTEST BECAUSE OF THE PENDING PROTEST BY LKA INVOLVING THE SAME ISSUES.

AS BACKGROUND, ON OCTOBER 17, 1973, NISC ISSUED THE SUBJECT REQUISITION WHICH IT SUBSEQUENTLY FORWARDED TO NRPO. THE REQUISITION WAS ACCOMPANIED BY A "SPECIFICATIONS/WORK STATEMENT" DESCRIBING THE NATURE OF THE PROCURED SERVICES AS THE "TRANSLATION OF FOREIGN LANGUAGE SCIENTIFIC AND TECHNICAL TESTS *** INTO ENGLISH AND OF SHIP PUBLIC RELATIONS MATERIALS FROM ENGLISH INTO VARIOUS FOREIGN LANGUAGES." THE RECORD INDICATES THAT FROM NOVEMBER 1973 UNTIL JUNE 1974, NRPO ATTEMPTED TO DEVELOP A SATISFACTORY CONTRACTUAL ARRANGEMENT TO PROVIDE THE REQUIRED TRANSLATION SERVICES. IN LATE APRIL OR EARLY MAY 1974, THE NRPO NEGOTIATOR CONCLUDED THAT THE ISSUANCE OF BASIC ORDERING AGREEMENTS TO ALL POTENTIAL SOURCES BY THE SUPPLY AND FISCAL OFFICE, NAVAL DISTRICT, WASHINGTON, D.C., WOULD BE THE ONLY SATISFACTORY APPROACH TO OBTAIN THE REQUIRED SERVICES. IN ANTICIPATION OF SUCH ACTION, NISC WITHDREW FUNDING FOR THE REQUISITION.

HOWEVER, BY LETTER OF JUNE 10, 1974, NISC REQUESTED THAT THE SUBJECT REQUISITION BE RESTORED TO AN ACTIVE STATUS AND ADVISED NRPO THAT A CONTRACT FOR THE REQUIRED SERVICES WAS URGENTLY NEEDED BY JULY 1, 1974. IT SHOULD BE NOTED THAT THE NATURE OF THE SERVICES DESCRIBED IN THE "WORK STATEMENT" ACCOMPANYING THE JUNE 10 LETTER WERE NOT THE SAME TRANSLATION SERVICES SPECIFIED BY THE INITIAL REQUISITION. RATHER, THE MORE RECENT SPECIFICATIONS DESCRIBED ABSTRACTING SERVICES IN LIEU OF TRANSLATION SERVICES. NISC DISTINGUISHED THE TWO SERVICES IN A SUBSEQUENT MEMORANDUM DATED NOVEMBER 20, 1974, WHICH READ IN PERTINENT PART:

"*** THE SUBJECT CONTRACT IS NOT A CONTRACT FOR TRANSLATION SERVICES PER SE. ABSTRACTING IS A WHOLLY DIFFERENT ACTIVITY FROM TRANSLATING. ABSTRACTS TELL YOU WHAT AN ARTICLE OR BOOK IS ABOUT, AND CAN BE INDICATIVE (BRIEF) OR SUBSTANTIVE (DETAILED); TO BE RESPONSIVE, THEY MUST BE PREPARED BY EXPERIENCED PERSONS DIRECTLY OR UNDER THE DIRECT CONTROL OF THOSE EXPERIENCED PERSONS COMPETENT IN BOTH SUBJECT MATTER AND FOREIGN LANGUAGE. *** THE SUBJECT CONTRACT CALLS FOR THE TRANSLATION OF 50,000 WORDS OF ITEMS OF SPECIAL INTEREST. THE COST ON THE TRANSLATING MARKET WOULD BE IN THE RANGE OF ONE THOUSAND TO 1.5 THOUSAND DOLLARS. TRANSLATING HAS BEEN PERFORMED UNDER THE CONTRACT AS OF THIS DATE. IT IS IMPOSSIBLE TO PREDICT WHETHER ANY WILL BE. ***"

LKA ASSERTS THAT THIS SOLE-SOURCE AWARD TO INFORMATICS VIOLATED ARMED SERVICES PROCUREMENT REGULATION (ASPR 3-101(B)(1974 ED.), WHICH REQUIRES THAT OFFERS SHOULD BE SOLICITED FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES CONSISTENT WITH THE NATURE AND REQUIREMENTS OF THE SERVICES TO BE PROCURED. SPECIFICALLY, LKA CONTENDS THAT THE SOLE SOURCE AWARD TO INFORMATICS WILL RESULT IN A COSTLY ERROR WHICH COULD HAVE BEEN PREVENTED HAD NISC RECOGNIZED ITS OWN LACK OF EXPERTISE IN THE LITERATURE-SEARCH AND ABSTRACTING AREA AND AVAILED ITSELF OF THE SAFEGUARDS PROVIDED BY COMPETITIVE PROCUREMENT PROCEDURES. THE PROTESTER MAKES REFERENCE TO A CONTRACT OF THE ENVIRONMENTAL PROTECTION AGENCY CLOSELY PARALLELING THE EFFORT REQUIRED BY INFORMATICS UNDER THE SUBJECT CONTRACT WHICH IT CONTENDS CLEARLY ILLUSTRATES THAT THERE ARE ALTERNATIVE COMPETITIVE SOURCES FOR THE CONTRACT BEING PERFORMED BY INFORMATICS AND AT A LOWER COST TO THE GOVERNMENT. LKA FURTHER ASSERTS THAT NISC HAS NOT SUBSTANTIATED ITS CONTENTION THAT THERE HAS BEEN "CONSISTENT HIGH-QUALITY PERFORMANCE FOR DOD, NASA AND OTHERS BY INFORMATICS" AND HAS OVER- EMPHASIZED THE LINGUISTIC/SUBJECT MATTER SKILLS OF MESSRS. HIBBEN AND BOYLAN (THE PRINCIPAL INVESTIGATORS FOR INFORMATICS), WHILE AT THE SAME TIME DE-EMPHASIZING THE SKILLS AND EXPERTISE OF OTHER PERSONNEL REQUIRED IN PERFORMANCE OF THE REQUIRED EFFORT. FINALLY, LKA CONTENDS THAT THE SERVICES BEING PROCURED ARE NOT NOVEL OR UNIQUE TO THE SCIENTIFIC AND TECHNICAL COMMUNICATION INDUSTRY SO AS TO JUSTIFY THE GOVERNMENT INCURRING THE EXCESSIVE COSTS RESULTING FROM A SOLE-SOURCE AWARD TO INFORMATICS ON THE BASIS OF ITS IMAGINED "UNIQUE COMPETENCE," AS PROPOUNDED, BUT NOT CONCLUSIVELY PROVEN BY NISC.

THE SUBJECT PROCUREMENT WAS NEGOTIATED UNDER 10 U.S.C. 2304(A) (2), (1970) THE "PUBLIC EXIGENCY" EXCEPTION TO FORMAL ADVERTISING. THE DETERMINATION AND FINDINGS ISSUED BY THE CONTRACTING OFFICER ON JUNE 18, 1974, STATED THAT THE DECISION TO NEGOTIATE UNDER THE "PUBLIC EXIGENCY" EXCEPTION WAS PREDICATED UPON THE PROCUREMENT BEING ASSIGNED A UNIFORM MATERIAL MOVEMENT AND ISSUE PRIORITY SYSTEM (UMMIPS) 02 PRIORITY DESIGNATOR. IN THIS CONNECTION, ASPR 3-202(VI) (1974 ED.) AUTHORIZES PROCUREMENT BY NEGOTIATION UNDER THE "PUBLIC EXIGENCY" EXCEPTION WHEN THE PURCHASE REQUEST CITES A UMMIPS PRIORITY DESIGNATION OF 01 THROUGH 06, INCLUSIVE. WHILE 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 AMOUNT OF DISCRETION TO DETERMINE THE AMOUNT OF COMPETITION CONSISTENT WITH THE EXIGENCY SITUATION. MATTER OF JANKE AND COMPANY, INC., B-181064, AUGUST 29, 1974; B-176919(1), APRIL 16, 1973. FURTHERMORE, IT HAS BEEN THE CONSISTENT POLICY OF OUR OFFICE NOT TO QUESTION THE CONTRACTING OFFICER'S DECISION TO MAKE A SOLE-SOURCE AWARD UNLESS IT IS CLEAR FROM THE WRITTEN RECORD THAT HE ACTED IN AN ARBITRARY OR CAPRICIOUS MANNER IN ABUSE OF THAT DISCRETION. MATTER OF ENGINEERING RESEARCH, INC., B-180893, SEPTEMBER 12, 1974; B-172542, JULY 2, 1971. ALTHOUGH THE CONTRACTING OFFICER WAS FULLY JUSTIFIED IN NEGOTIATING THE CONTRACT UNDER THE "PUBLIC EXIGENCY" EXCEPTION ON THE BASIS OF THE PROCUREMENT BEING ASSIGNED AN UMMIPS 02 PRIORITY DESIGNATION (SEE ASPR 3-202(VI)(1974 ED.)) ASPR 3-101(D)(1974 ED.) REQUIRES THAT WHEN A PROPOSED NEGOTIATED PROCUREMENT APPEARS TO BE NONCOMPETITIVE, THE CONTRACTING OFFICER IS RESPONSIBLE FOR ASSURING THAT COMPETITIVE PROCUREMENT IS NOT FEASIBLE. SUCH ACTION OF THE CONTRACTING OFFICER INCLUDES BOTH EXAMINATION OF THE REASONS FOR THE PROCUREMENT BEING NONCOMPETITIVE AND STEPS TO FOSTER COMPETITIVE CONDITIONS FOR SUBSEQUENT PROCUREMENTS.

IN THE INSTANT PROCUREMENT, THE RECORD INDICATES THAT ON THE BASIS OF THE SOLE-SOURCE JUSTIFICATION ENCLOSED WITH NISC'S LETTER OF JUNE 10, 1974, AND ADDITIONAL VERBAL INFORMATION (SUBSEQUENTLY CONFIRMED IN AN NISC MEMORANDUM DATED NOVEMBER 20, 1974), THE NRPO NEGOTIATOR ISSUED A "JUSTIFICATION FOR NON-COMPETITIVE PROCUREMENT" WHICH STATES IN PART:

"1. THE PROPOSED PROCUREMENT IS NECESSARILY NONCOMPETITIVE BECAUSE ONLY INFORMATICS, INC., POSSESSES THE SUPERIOR PERSONNEL RESOURCES ESSENTIAL TO THE PROVISION OF TIMELY TRANSLATION SERVICES OF HIGH QUALITY."

NISC'S SOLE-SOURCE JUSTIFICATION REFERRED TO ABOVE WAS AS FOLLOWS:

"INFORMATICS, INC., IN THE PERSONS OF ITS PRINCIPAL INVESTIGATORS, MESSRS. STUART HIBBEN AND LEE BOYLAN, OFFERS UNIQUE LINGUISTIC/SUBJECT MATTER SKILLS AND CAPABILITIES DEVELOPED OVER 14 AND 16 YEARS OF APPLICABLE EXPERIENCE RESPECTIVELY. THE OVER-RIDING CRITERION FOR MEASURING PERFORMANCE IN FOREIGN LITERATURE EXPOLITATION EFFORT IS THE NUMBER OF 'HITS' SCORED BY SCIENTISTS DOING SUBJECT-MATTER SEARCHES. THE SUPERIORITY OF THE SELECTION OF THE INFORMATION INFORMATICS GENERATES HAS BEEN SO DEMONSTRABLY CLEAR OVER THE PAST 4 YEARS UNDER AN ARPA CONTRACT THAT MAJOR DOD RESEARCH EFFORTS, ESPECIALLY IN THE MAIN SUBJECT AREAS, WOULD BE SHARPLY DEGRADED IF THE CONTRACT WERE NOT TO BE AWARDED TO INFORMATICS. THE SUPERIORITY IS FURTHER REFLECTED IN THE FACT THAT 95% OF THE HITS WERE NOT DUPLICATES, BUT REPRESENT INFORMATION MISSED BY OTHER NON-INFORMATICS INPUTS. IT IS IMPOSSIBLE TO IMPART OR RELY BY DIRECTIVE OR INSTRUCTION THE KNOWLEDGE AND THE DISCRIMINATION WHICH ACCOUNTS FOR THAT EXCELLENCE. THE SUCCESS IS DIRECTLY ATTRIBUTABLE TO THE GENIUS OF MESSRS. HIBBEN AND BOYLAN, WHICH WAS RECOGNIZED BY ARPA BY RENEWING FOR 3 CONSECUTIVE YEARS A CONTRACT WHICH IT IS PROPOSED TO CONTINUE HEREWITH, THE ONLY DIFFERENCE BEING THAT NISC IS THE PROJECT MANAGER VICE THE AF OFFICE OF SCIENTIFIC RESEARCH.

"NEGOTIATIONS SHOULD THEREFORE BE LIMITED TO THE SOURCE INDICATED ABOVE ON THE BASIS THAT ITS PURPOSE IS TO PROVIDE FOLLOW-ON SUPPORT FOR AN ONGOING RESEARCH AGREEMENT FOR THE EXPLORATION OF AN UNSOLICITED PROPOSAL WHICH OFFERS SIGNIFICANT SCIENTIFIC OR TECHNOLOGICAL PROMISE, REPRESENTS THE PRODUCT OF ORIGINAL THINKING, AND WAS SUBMITTED IN CONFIDENCE BY ONE SOURCE."

NISC'S MEMORANDUM DATED NOVEMBER 20, REFERRED TO ABOVE, ADVANCED A NUMBER OF REASONS WHY, IN NISC'S JUDGMENT, THE INSTANT PROCUREMENT MUST BE NEGOTIATED SOLELY WITH INFORMATICS AS POSSESSING THE REQUISITE EXPERTISE AND EXPERIENCE AVAILABLE TO ACCOMPLISH THE OBJECTIVES OF THE REQUIRED EFFORT. THE MEMORANDUM OF NOVEMBER 20, JUSTIFIED THE SOLE SOURCE NEGOTIATION OF THE SUBJECT CONTRACT WITH INFORMATICS IN THE FOLLOWING MANNER:

"2. SCIENTISTS IN THE UNITED STATES ARE OVERWHELMED BY THE VOLUME OF LITERATURE OF INTEREST TO THEM. CONSEQUENTLY, TO REDUCE NON-PRODUCTIVE READING BY THE SCIENTIST, HE MUST BE GIVEN ONLY PERTINENT INFORMATION CAREFULLY SELECTED BY EXPERIENCED FOREIGN-LITERATURE RESEARCHERS COMPETENT IN BOTH SUBJECT MATTER AND FOREIGN LANGUAGE. THE NUMBER OF ABSTRACTS TO BE PREPARED UNDER EACH SUBJECT THEREFORE CANNOT BE STIPULATED; ONLY THE QUALITY OF THE PRODUCT COUNTS.

SUCH A PHILOSOPHY PLACES A PREMIUM ON THE SELECTION OF THE PRINCIPAL INVESTIGATORS (SEE ENCL. 1). MESSRS. HIBBEN AND BOYLAN HELD LEADING POSITIONS IN THE ORGANIZATION WHICH USER CONSENSUS HELD TO BE THE MOST RESPONSIVE, HIGH-QUALITY BROAD-COVERAGE FOREIGN LITERATURE SCREENING PROGRAM IN THE UNITED STATES, THE AEROSPACE TECHNOLOGY DIVISION (ATD), WHOSE UNFORTUNATE DEMISE IS ATTRIBUTABLE TO REASONS OTHER THAN THOSE UNDER CONSIDERATION HERE. AS AN EXAMPLE OF HIS EXPERTISE, MR. BOYLAN IS ON THIS DATE DELIVERING AN ORIGINAL PAPER IN SAN DIEGO, CALIFORNIA. THE MAJORITY OF THE INFORMATICS, INC. LITERATURE SEARCHERS ARE FORMER ATD EMPLOYEES.

"3. IMPLICIT IN ANY FOREIGN LITERATURE SCREENING PROGRAM IS THE REQUIREMENT FOR RETROSPECTIVE SEARCH, THAT IS TO INVESTIGATE LITERATURE OF PAST YEARS. INFORMATICS, INC., MAINTAINS A LIBRARY OF SEVERAL HUNDRED FOREIGN (MAINLY RUSSIAN) PERIODICALS GOING BACK SIX YEARS. RETROSPECTIVE SEARCH IS USUALLY MADE ON NEW SUBJECTS, SUCH AS THE ONES LABELED "OPTIONAL" IN THE CONTRACT. SUBSCRIPTIONS AND SUBSCRIPTION RENEWALS TO SOVIET PERIODICALS HAVE TO BE ENTERED IN AUGUST FOR THE FOLLOWING YEAR. CERTAIN HIGHLY TECHNICAL LITERATURE OF LIMITED PRINT CAN BE OBTAINED ONLY THROUGH FOREIGN PROFESSIONAL CONTACTS, WHICH MESSRS. HIBBEN AND BOYLAN MAINTAIN. THEREFORE, THE ADVANTAGE TO THE GOVERNMENT OF GOING TO A SOURCE WITH AN ESTABLISHED FLOW OF LITERATURE IS EVIDENT.

"5. BEFORE WRITING THE SOLE SOURCE JUSTIFICATION FOR THE SUBJECT CONTRACT, I CONSULTED THE FOUR SENIOR TRANSLATION SERVICES DIVISION STAFF MEMBERS, WHOSE AGGREGATE PERTINENT EXPERIENCE, INCLUDING THE 28 YEARS OF THE UNDERSIGNED, TOTALS OVER 100 YEARS. THEIR EXPERTISE IS UNMATCHED ANYWHERE IN THE UNITED STATES. WE WERE UNABLE TO IDENTIFY A SINGLE FIRM OR SERVICE IN EXISTENCE IN THE UNITED STATES WHICH COULD APPROACH THE EXPERTISE OF INFORMATICS. IT IS THE STRONG BELIEF OF THE UNDERSIGNED THAT NO PROCUREMENT REGULATION EXISTS WHICH WOULD OVERRIDE THAT PROFESSIONAL EVALUATION, WHICH IS BASED ON CONSISTENT CONSENSUS HIGH-QUALITY PERFORMANCE FOR DOD, NASA, AND OTHERS, BY INFORMATICS." THUS, THE DECISION TO AWARD NONCOMPETITIVELY TO INFORMATICS APPEARS TO HAVE BEEN BASED UPON THE OPINION OF NISC, ADOPTED BY THE CONTRACTING OFFICER, THAT INFORMATICS POSSESSED PERSONNEL RESOURCES AND BROAD EXPERTISE UNMATCHED BY ANY OTHER FIRM KNOWN TO THE ACTIVITY. HOWEVER, WHILE THE JUNE 10, 1974, SOLE-SOURCE JUSTIFICATION AND NOVEMBER 20, 1974, MEMORANDUM, QUOTED ABOVE, STRESSED THE SUPERIOR QUALIFICATIONS, EXPERTISE AND FACILITIES OF INFORMATICS, THE EXISTENCE OF SUCH FACTS DOES NOT PRECLUDE THE EXISTENCE OF OTHER QUALIFIED SOURCES WHICH WERE NOT SOLICITED AND WHICH COULD HAVE SATISFIED THE GOVERNMENT'S MINIMUM NEEDS. IN THIS CONNECTION, WE HAVE HELD THAT THE NEGOTIATION OF A CONTRACT BASED SOLELY ON A DETERMINATION THAT A PARTICULAR PROSPECTIVE CONTRACTOR WOULD FURNISH SERVICES OF A HIGHER QUALITY THAN ANY OTHER PROSPECTIVE CONTRACTOR WAS IMPROPER. 175094, MAY 9, 1972. SINCE THE INSTANT CONTRACT WAS NEGOTIATED UNDER THE PUBLIC EXIGENCY EXCEPTION TO FORMAL ADVERTISING, WE ARE NOT PREPARED TO CONCLUDE THAT THE FAILURE TO CONDUCT A COMPETITIVE PROCUREMENT WAS IMPROPER UNDER THE CIRCUMSTANCES. HOWEVER, WE ARE RECOMMENDING TO THE SECRETARY OF THE NAVY THAT THE CONTRACT TERM NOT BE EXTENDED AND THAT AN ATTEMPT BE MADE TO OBTAIN COMPETITION FOR ANY FUTURE PROCUREMENT OF THESE SERVICES.

CONCERNING THE USE OF A COST-PLUS-FIXED-FEE (CPFF) CONTRACT IN THE SUBJECT PROCUREMENT, CPFF CONTRACTS ARE AUTHORIZED BY 10 U.S.C. 2306(C)(1970) AND ASPR 3-405.1(C) (1974 ED.), WHEN THE HEAD OF AN AGENCY DETERMINES THAT SUCH A METHOD OF CONTRACTING IS LIKELY TO BE LESS COSTLY THAN OTHER METHODS OR IT IS IMPRACTICAL TO SECURE PROPERTY OR SERVICES OF THE KIND OF QUALITY REQUIRED EXCEPT UNDER SUCH A CONTRACT. THE APPLICABLE DETERMINATION AND FINDINGS, EXECUTED ON JULY 18, 1974, STATES IN PART:

"FINDINGS

"2. THE EXACT NATURE AND EXTENT OF THE WORK COVERED BY THE PROPOSED CONTRACT, AND THE PRECISE METHOD OF PERFORMING THAT WORK, CANNOT BE ESTABLISHED IN ADVANCE, BUT MUST BE FREELY SUBJECT TO IMPROVISATION AND CHANGE AS THE WORK PROGRESSES.

"3. THE COSTS OF PERFORMING THE WORK UNDER THE PROPOSED CONTRACT CANNOT BE ACCURATELY FORECAST SO AS TO PERMIT THE UNDERTAKING OF SUCH WORK FOR A FIXED PRICE.

"DETERMINATIONS

"1. IT IS IMPRACTICABLE TO SECURE SERVICES OF THE KIND OR QUALITY REQUIRED WITHOUT THE USE OF THE PROPOSED TYPE OF CONTRACT."

THE PROVISIONS OF 10 U.S.C. 2310(B)(1970) MAKE THE FINDINGS OF THE D & F FINAL. THEREFORE, WE ARE UNABLE TO CONCLUDE THAT IT WAS IMPROPER FOR THE CONTRACTING OFFICER TO DETERMINE THAT IT WAS IMPRACTICABLE TO SECURE THE REQUIRED SERVICES WITHOUT THE USE OF A CPFF CONTRACT.