B-216543, SEP 24, 1985, 64 COMP.GEN. 871

B-216543: Sep 24, 1985

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CONTRACTS - NEGOTIATION - SOLE-SOURCE BASIS - PROCEDURES - COMMERCE BUSINESS DAILY NOTICE PROCEDURES PROHIBITION IN PUB.L. 98-72 AGAINST COMMENCING NEGOTIATIONS FOR THE AWARD OF A SOLE-SOURCE CONTRACT UNTIL AT LEAST 30 DAYS HAVE ELAPSED FROM THE DATE OF PUBLICATION IN THE COMMERCE BUSINESS DAILY OF A NOTICE OF INTENT TO CONTRACT REFERS TO THE DATE OF ACTUAL PUBLICATION. CONTRACTS - NEGOTIATION SOLE-SOURCE BASIS - PROCEDURES - COMMERCE BUSINESS DAILY NOTICE PROCEDURES - FAILURE TO FOLLOW -NOT PREJUDICIAL CONTRACTING AGENCY'S FAILURE TO TIMELY PUBLISH A SYNOPSIS IN THE COMMERCE BUSINESS DAILY CONCERNING ITS PROPOSED SOLE-SOURCE PROCUREMENT AS REQUIRED BY PUB.L. 98-72 DOES NOT REQUIRE CANCELLATION OF THE PROCUREMENT WHERE IT HAS NOT BEEN SHOWN THAT THE AGENCY ACTED TO DELIBERATELY DENY THE PROTESTER THE OPPORTUNITY TO SUBMIT A PROPOSAL OR THAT THE PROTESTER WAS PREJUDICED BY THE LACK OF TIMELY NOTICE.

B-216543, SEP 24, 1985, 64 COMP.GEN. 871

CONTRACTS - NEGOTIATION - SOLE-SOURCE BASIS - PROCEDURES - COMMERCE BUSINESS DAILY NOTICE PROCEDURES PROHIBITION IN PUB.L. 98-72 AGAINST COMMENCING NEGOTIATIONS FOR THE AWARD OF A SOLE-SOURCE CONTRACT UNTIL AT LEAST 30 DAYS HAVE ELAPSED FROM THE DATE OF PUBLICATION IN THE COMMERCE BUSINESS DAILY OF A NOTICE OF INTENT TO CONTRACT REFERS TO THE DATE OF ACTUAL PUBLICATION, AND MAY NOT BE NEGATED BY A REGULATORY PROVISION, SECTION 5.203 OF DEPARTMENT OF DEFENSE FEDERAL ACQUISITION REGULATION SUPPLEMENT ESTABLISHING A PRESUMPTION THAT A SYNOPSIS ELECTRONICALLY TRANSMITTED TO THE CBD HAS BEEN PUBLISHED 2 DAYS THEREAFTER HARRIS CORP, B-217174, APR 22, 1985, 64 COMP.GEN. 180, 85-2 CPD 455 CLARIFIED. CONTRACTS - NEGOTIATION SOLE-SOURCE BASIS - PROCEDURES - COMMERCE BUSINESS DAILY NOTICE PROCEDURES - FAILURE TO FOLLOW -NOT PREJUDICIAL CONTRACTING AGENCY'S FAILURE TO TIMELY PUBLISH A SYNOPSIS IN THE COMMERCE BUSINESS DAILY CONCERNING ITS PROPOSED SOLE-SOURCE PROCUREMENT AS REQUIRED BY PUB.L. 98-72 DOES NOT REQUIRE CANCELLATION OF THE PROCUREMENT WHERE IT HAS NOT BEEN SHOWN THAT THE AGENCY ACTED TO DELIBERATELY DENY THE PROTESTER THE OPPORTUNITY TO SUBMIT A PROPOSAL OR THAT THE PROTESTER WAS PREJUDICED BY THE LACK OF TIMELY NOTICE, BECAUSE THE RECORD INDICATES THAT THE PROTESTER COULD NOT HAVE MET THE AGENCY'S DELIVERY REQUIREMENTS. CONTRACTS - AWARDS - SEPARABLE OR AGGREGATE - SINGLE AWARD - PROPRIETY AGENCY IS NOT REQUIRED TO HAVE SEPARATELY PURCHASED PANEL ASSEMBLIES FOR MULTIPLEXERS, WHERE THE AGENCY CONCLUDED THAT ITS NEEDS COULD BEST BE MET THROUGH A TOTAL PACKAGE PROCUREMENT APPROACH. PROTESTER HAS NOT SHOWN THAT THE AGENCY DECISION TO USE A SINGLE PROCUREMENT WAS IMPROPER.

MATTER OF: AUL INSTRUMENTS, INC., SEPTEMBER 24, 1985:

AUL INSTRUMENTS, INC. (AUL), PROTESTS THE SOLE-SOURCE AWARD OF CONTRACT NO. DAAB07-84-C-C096 TO BAMMAC, INC. (BAMMAC) BY THE UNITED STATES ARMY COMMUNICATIONS ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY, FOR THE SUPPLY OF 17,458 PANEL ASSEMBLIES, NO. 11A23 THROUGH 11A29, FOR THE TD 660 B/G MULTIPLEXER THE PROTEST IS BASED ON THE FAILURE OF THE AGENCY TO TIMELY PUBLISH IN THE COMMERCE BUSINESS DAILY (CBD) A SYNOPSIS OF ITS PROPOSED SOLE-SOURCE PROCUREMENT FROM BAMMAC AS REQUIRED BY PUB.L. 98-72 AND THE IMPLEMENTING REGULATIONS SET FORTH IN THE DEPARTMENT OF DEFENSE (DOD) FEDERAL ACQUISITION REGULATION (FAR) SUPPLEMENT. ACCORDINGLY, AUL REQUESTS THAT THE AWARD TO BAMMAC BE TERMINATED AND THAT THE PROCUREMENT BE RESOLICITED.

THE PROTEST BY AUL IS DENIED.

THE AGENCY ADVISES THAT THE TD-660 B/G MULTIPLEXER HAS BEEN PROCURED BY THE ARMY SINCE 1966; THAT SUCCESSFUL PRODUCTION OF THE SUBASSEMBLIES (ASSEMBLY PANELS) FOR THE TD-660 REQUIRES THE AVAILABILITY OF NUMEROUS INTEGRATED CIRCUIT DEVICES (IC'S); AND THAT THE AVAILABILITY OF SOME OF THESE IC'S HAS BEEN A PROBLEM FOR SEVERAL CURRENT MANUFACTURERS. ALTHOUGH A TECHNOLOGY INSERTION PROGRAM HAD BEEN ADOPTED TO UPGRADE THE TD-660 WITH PARTS REPRESENTING CURRENT TECHNOLOGY, ARMY OFFICIALS DETERMINED THAT AN URGENT "STOP GAP" PROCUREMENT OF PANEL ASSEMBLIES FOR THE TD-660 USING THE OLDER IC'S WAS NEEDED. IN ANTICIPATION OF THIS PROCUREMENT, IN APRIL 1984, THE ARMY SENT A LETTER OF INQUIRY TO CURRENT PRODUCERS OF THE TD- 660, INCLUDING AUL, AND PRODUCERS OF TD-660 INTERNAL COMPONENTS, INCLUDING BAMMAC. IN ITS LETTER, THE ARMY STATED THAT IT ANTICIPATED PURCHASING APPROXIMATELY 18,000 SUBASSEMBLIES FOR THE TD-660; OUTLINED THE PROPOSED DELIVERY SCHEDULE; EXPRESSED CONCERN ABOUT THE CONTINUED AVAILABILITY OF THE IC DEVICES NEEDED TO MANUFACTURE THE UNITS; STATED THAT ITS INTENT WAS "TO ASCERTAIN PRIOR TO CONTRACT SOLICITATION THAT SUFFICIENT QUANTITIES OF ALL THE REQUIRED IC'S WILL BE AVAILABLE TO COMPLETE THE CONTRACT"; LISTED ALL THE IC'S REQUIRED AND THEIR CURRENT OR PRIOR SOURCE; AND ASKED EACH COMPANY TO SUBMIT, IN CONFIDENCE, WITH RESPECT TO EACH IC DEVICE: (1) THE IDENTITY OF ITS PROPOSED VENDOR/MANUFACTURER; (2) THE QUANTITIES AVAILABLE FROM EACH PROPOSED VENDOR/MANUFACTURER; (3) VENDOR'S OR MANUFACTURER'S LEAD TIME FROM RECEIPT OF PURCHASE ORDERS TO DELIVERY; (4) LENGTH OF TIME AVAILABLE FROM VENDORS/MANUFACTURERS; (5) DETAILED REASONS FOR THE UNAVAILABILITY OF ANY IC; AND (6) ANY PROPOSED EXCEPTIONS TO THE DEVICE REQUIREMENTS SHOWN ON APPLICABLE DRAWINGS TOGETHER WITH DETAILS SUFFICIENT TO DEMONSTRATE THAT THE DEVICE, WITH EXCEPTIONS, WOULD OPERATE PROPERLY IN THE TD-660 B/G. THE ARMY REQUESTED THAT RESPONSES BE SUBMITTED IN 30 DAYS, BUT AUL WAS PERMITTED UNTIL JUNE 5-- ALMOST 2 MONTHS-- IN WHICH TO REPLY.

IN ITS JUNE 4, 1984, RESPONSE TO THE AGENCY INQUIRY, AUL ADVISED THAT THERE APPEARED TO BE ONLY ONE OR NO KNOWN SOURCE FOR SEVERAL OF THE IC'S IDENTIFIED BY THE ARMY AND THAT AUL'S EXPERIENCE INDICATED THAT THERE WAS A HIGH RISK OF NONCONFORMING UNITS AND PRODUCTION VARIATIONS AS TO PERFORMANCE CHARACTERISTICS WHICH MAY NOT BE CONSISTENT WITH TD-660 SPECIFICATIONS. AUL FURTHER ADVISED THAT BECAUSE OF SPORADIC DEMAND THERE WAS A RISK THAT PRODUCTION OF ADDITIONAL IC'S WERE ON "ENGINEERING HOLD" BECAUSE THE MANUFACTURER HAD ENCOUNTERED TECHNICAL PROBLEMS. LASTLY, AUL INDICATED THAT DELIVERY TIME FROM THE MANUFACTURER OF ONE OF THE IC'S PROBABLY WOULD EXCEED 20 WEEKS. ALTHOUGH, AS WE INDICATED ABOVE, THE AGENCY HAD REQUESTED SPECIFIC INFORMATION CONCERNING EACH COMPANY'S SOURCES OF SUPPLY FOR THE IC'S AND THE QUANTITIES AND DELIVERY SCHEDULES AVAILABLE FROM EACH, AS WELL AS ANY PROPOSED EXCEPTIONS TO THE REQUIRED IC'S, AUL DID NOT PROVIDE ANY SPECIFIC INFORMATION IN ITS REPLY AS TO THE AVAILABLE QUANTITIES OF IC'S. BAMMAC, ON THE OTHER HAND, HAD SHOWN THAT IT ALREADY HAD IN ITS INVENTORY OR ON ORDER SUBSTANTIAL QUANTITIES OF ALL OF THE IC'S REQUIRED FOR PANEL ASSEMBLIES 11A23 THROUGH 11A29 AND INDICATED THAT WITH RESPECT TO MOST OF THESE IC'S THE NUMBER ALREADY ON HAND OR ORDERED MET OR EXCEEDED THE QUANTITIES REQUIRED BY THE AGENCY. BAMMAC FURTHER ADVISED THAT IT DID NOT EXPECT TO ENCOUNTER ANY DIFFICULTIES IN OBTAINING THE REMAINING NUMBER OF IC'S REQUIRED BY THE AGENCY. THE ONLY OTHER POTENTIAL OFFEROR TO RESPOND TO THE AGENCY SURVEY, EMERSON ELECTRIC CO., INDICATED CONSIDERABLE DIFFICULTY IN OBTAINING MANY OF THE REQUIRED IC'S, SEVERAL OF WHICH IT REFERRED TO AS "OBSOLETE." IN ADDITION, EMERSON INDICATED DELIVERY DATES FOR SOME IC'S OF UP TO 40 WEEKS AND CHARACTERIZED THESE ESTIMATES AS "OPTIMISTIC."

BASED ON THE RESULTS OF ITS SURVEY, THE AGENCY DETERMINED THAT THE PANEL ASSEMBLIES FOR THE TD-660 SHOULD BE OBTAINED ON A SOLE-SOURCE BASIS FROM BAMMAC. IN ITS JUSTIFICATION FOR THE SOLE-SOURCE AWARD TO BAMMAC, THE AGENCY STATED THAT SEVEN PANEL ASSEMBLIES WOULD BE IN A CRITICAL NEED STATUS BY FEBRUARY 1985; THAT BASED ON THE AVAILABILITY OF IC'S ONLY BAMMAC WOULD BE IN A POSITION TO BEGIN DELIVERY OF THE SUBASSEMBLIES WITHIN 7 MONTHS; AND THAT BAMMAC EVEN WOULD BE ABLE TO ACCELERATE THE BEGINNING OF DELIVERIES TO 3 MONTHS OF AWARD. THE HEAD OF THE CONTRACTING ACTIVITY APPROVED THE PROPOSED SOLE-SOURCE PROCUREMENT OF THE TD-660 PANEL ASSEMBLIES FROM BAMMAC ON JULY 21, 1984.

ON SEPTEMBER 15, 1984, THE SYNOPSIS OF THE ARMY'S PROPOSED SOLE SOURCE PROCUREMENT WAS PUBLISHED IN THE CBD AND THE CONTRACT TO BAMMAC WAS AWARDED ON SEPTEMBER 21, 1984.

AUL HAS PROTESTED THE SOLE-SOURCE AWARD TO BAMMAC ON THE BASIS THAT THE AGENCY VIOLATED THE PROVISIONS OF PUB.L. 98-72 AND THE IMPLEMENTING REGULATIONS IN THE DOD FAR SUPPLEMENT WHICH SET FORTH CERTAIN REQUIREMENTS FOR ADVANCE PUBLICATION IN THE CBD OF SOLE-SOURCE PROCUREMENTS. AUL ASSERTS THAT AS A RESULT OF THIS STATUTORY VIOLATION, IT WAS PREJUDICED. AUL ALSO QUESTIONS WHETHER BAMMAC IN FACT WAS IN A UNIQUE POSITION TO SUPPLY THESE ITEMS AND MAINTAINS THAT, AT BEST, ONLY ONE OF THE SEVEN ASSEMBLIES MAY HAVE BEEN APPROPRIATE FOR A SOLE-SOURCE PROCUREMENT.

UNDER PUB.L. 98-72 AN AGENCY SHALL NOT COMMENCE NEGOTIATIONS FOR THE AWARD OF A SOLE-SOURCE CONTRACT UNTIL AT LEAST 30 DAYS HAVE ELAPSED FROM THE DATE OF PUBLICATION IN THE CBD. SEE 15 U.S.C. SEC. 637(E)(2)(C) (SUPP. I, 1983). FURTHERMORE, PUB.L. 98-72 REQUIRES THAT THE NOTICE OF INTENT TO CONTRACT ON A SOLE-SOURCE BASIS CONTAIN A STATEMENT THAT INTERESTED PARTIES ARE INVITED TO IDENTIFY THEIR INTEREST AND CAPABILITY TO RESPOND TO THE PROCUREMENT REQUIREMENT OR MAY SUBMIT PROPOSALS IN RESPONSE TO THE CBD NOTICE WITHIN THE 30-DAY NOTICE PERIOD. SEE 15 U.S.C. SEC. 637(E)(3)(C) (SUPP. I, 1983). WE NOTE THAT THE AGENCY HAS NOT CLAIMED THAT THIS PROCUREMENT WAS OF "SUCH UNUSUAL OR COMPELLING URGENCY" THAT IT WAS EXEMPT FROM THE REQUIREMENT THAT IT BE SYNOPSIZED. SEE 15 U.S.C. SEC. 637(E)(1)(B) (SUPP. I, 1983).

THE FACTS BEFORE US SHOW THAT THE AGENCY ISSUED THE SOLE-SOURCE SOLICITATION OF BAMMAC ON AUGUST 3, 1984, AND RECEIVED BAMMAC'S PROPOSAL ON AUGUST 14. THE SOLICITATION REQUIRED INITIAL DELIVERY OF THE PANELS 120 DAYS AFTER THE DATE OF CONTRACT AWARD. ON AUGUST 9, THE AGENCY ELECTRONICALLY TRANSMITTED THE SYNOPSIS OF THE PROPOSED SOLE SOURCE PROCUREMENT FROM BAMMAC TO THE CBD FOR PUBLICATION HOWEVER, DUE TO AN APPARENT BACKLOG AT THE CBD THE NOTICE OF THE PROPOSED SOLE SOURCE PROCUREMENT WAS NOT PUBLISHED UNTIL SEPTEMBER 15, 6 DAYS PRIOR TO THE DATE OF AWARD TO BAMMAC ON SEPTEMBER 21, 1984. AUL STATES THAT IT DID NOT RECEIVE THE SEPTEMBER 15 ISSUE OF THE CBD UNTIL SEPTEMBER 25, SOME 4 DAYS AFTER THE CONTRACT WAS AWARDED.

AUL ASSERTS THAT IF THE REQUIREMENTS OF PUB.L. 98-72 HAD NOT BEEN VIOLATED, AUL WOULD HAVE BEEN INTERESTED IN COMPETING FOR THE PROCUREMENT OF THE PANEL ASSEMBLIES. AUL STATES THAT SINCE IT HAS BEEN PREJUDICED BY THE AGENCY'S VIOLATION OF THE NOTICE REQUIREMENT OF PUB.L. 98-72, THE SOLE -SOURCE AWARD TO BAMMAC SHOULD BE TERMINATED AND THE PROCUREMENT RESOLICITED.

IN RESPONSE TO AUL'S PROTEST, THE AGENCY ASSERTS THAT IT MADE EVERY ATTEMPT TO COMPLY WITH THE NOTICE REQUIREMENTS OF PUB.L. 98-72 AND THAT ITS FAILURE TO PROVIDE TIMELY NOTICE IN THE CBD OF THE PROPOSED SOLE SOURCE PROCUREMENT WAS NOT DELIBERATE. THE AGENCY IN PART POINTS OUT THAT SECTION 5.203 DOD FAR SUPPLEMENT, 48 C.F.R. SEC. 205.203 (1984), PROVIDES IN PERTINENT PART THAT CONTRACTING OFFICERS MAY PRESUME PUBLICATION IN THE CBD 2 DAYS AFTER ELECTRONIC TRANSMITTAL OF THE SYNOPSIS. THUS, THE AGENCY STATES THAT IT PRESUMED THAT THE SYNOPSIS OF THE PROPOSED SOLE-SOURCE PROCUREMENT WAS PUBLISHED ON AUGUST 11. THE AGENCY STATES THAT IT HAD BEEN UNAWARE THAT THE SYNOPSIS HAD NOT BEEN TIMELY PUBLISHED UNTIL AUL BROUGHT THE MATTER TO ITS ATTENTION.

ALTHOUGH WE AGREE WITH THE AGENCY THAT THE RECORD DOES NOT ESTABLISH THAT IT SOUGHT TO DELIBERATELY EXCLUDE AUL FROM CONSIDERATION, WE BELIEVE THAT THE AGENCY FAILED TO COMPLY WITH THE REQUIREMENTS SET FORTH IN PUB.L. 98-72 FOR THE ADVANCE NOTICE IN THE CBD OF PROPOSED SOLE-SOURCE PROCUREMENTS. AS STATED ABOVE, THAT STATUTE SPECIFICALLY PROVIDES THAT THE AGENCY SHALL NOT COMMENCE NEGOTIATIONS FOR THE AWARD OF A SOLE-SOURCE CONTRACT UNTIL AT LEAST 30 DAYS HAVE ELAPSED FROM THE "DATE OF PUBLICATION" OF THE SYNOPSIS OF THE PROPOSED PROCUREMENT. GIVEN THE EXPRESS LANGUAGE OF PUB.L. 98-72 SPECIFYING "PUBLICATION" IN THE CBD, WE DO NOT BELIEVE THAT THE PRESUMPTIONS OF PUBLICATION IN THE CBD CONTAINED IN SECTION 5.203 OF THE DOD FAR SUPPLEMENT (1984) OPERATED TO SATISFY THE REQUIREMENTS OF CBD PUBLICATION WHERE THE SYNOPSIS HAD NOT IN FACT BEEN TIMELY PUBLISHED. THUS, IN THE MATTER BEFORE US, THE DATE OF ACTUAL PUBLICATION OF THE SYNOPSIS IN THE CBD, SEPTEMBER 15, AND NOT THE PRESUMED DATE OF PUBLICATION, AUGUST 11, WAS THE PERTINENT DATE FOR THE PURPOSE OF DETERMINING WHETHER THE ADVANCE NOTICE REQUIREMENTS OF PUB.L. 98-72 WERE MET. IN ANY EVENT, SINCE THE AGENCY ISSUED THE SOLE-SOURCE SOLICITATION TO BAMMAC 6 CALENDAR DAYS PRIOR TO THE AGENCY'S TRANSMITTAL OF THE SYNOPSIS TO THE CBD, THE AGENCY WOULD NOT HAVE COMPLIED WITH THE STATUTORY 30-DAY REQUIREMENT EVEN IF THE SYNOPSIS HAD BEEN PUBLISHED PROMPTLY UPON RECEIPT.

WE RECOGNIZE THAT OUR DECISION IN HARRIS CORP., B-217174, APR. 22 1985, 64 COMP.GEN. 480, 85-2 CPD PARA. 455, MAY BE READ AS PROVIDING SUPPORT FOR THE VIEW THAT THE PRESUMPTION OF PUBLICATION WHICH WAS SET FORTH IN SECTION 5.203 OF THE DOD FAR SUPPLEMENT WAS PROPER, BECAUSE WE CITED THAT PROVISION WITHOUT CRITICISM. HOWEVER, IN HARRIS, SUPRA, OUR OFFICE DID NOT EXPRESSLY CONSIDER THE VALIDITY OF THE PRESUMPTION OF PUBLICATION CONTAINED IN SECTION 5.203 SINCE THE AGENCY MADE A SOLE-SOURCE AWARD ON A DATE WHICH WAS PRIOR TO THE EXPIRATION OF THE MANDATORY 30-DAY CBD NOTICE REQUIREMENT EVEN IF THE PRESUMED DATE OF PUBLICATION HAD BEEN THE ACTUAL DATE OF PUBLICATION.

ALTHOUGH STATUTORY AND REGULATORY CHANGES HAVE OCCURRED SINCE THE PROCUREMENT WHICH IS THE SUBJECT OF AUL'S PROTEST, THERE REMAINS A BASIC CONFLICT BETWEEN STATUTORY NOTICE REQUIREMENTS FOUNDED UPON ACTUAL PUBLICATION AND REGULATORY PROVISIONS ESTABLISHING A PRESUMPTION OF PUBLICATION WITHIN A CERTAIN PERIOD AFTER A SYNOPSIS HAS BEEN TRANSMITTED BY THE PROCURING AGENCY TO THE CBD. THE PROVISIONS OF PUB.L. 98-72 AS SET FORTH IN 15 U.S.C. SEC. 637(E) (SUPP. I, 1983) HAVE BEEN SUPERSEDED BY THE PROVISIONS ADDED BY SECTIONS 303 AND 404 OF PUB.L. 98-577. THE NEW PROVISIONS, EFFECTIVE WITH REGARD TO SOLICITATIONS ISSUED AFTER MARCH 31, 1985, PROVIDE FOR ADVANCE "PUBLICATION" IN THE CBD OF CERTAIN PROCUREMENT ACTIONS AND DIRECT THE SECRETARY OF COMMERCE TO "PUBLISH PROMPTLY" THE REQUIRED CBD NOTICES. WE FURTHER NOTE THAT EFFECTIVE WITH RESPECT TO SOLICITATIONS ISSUED AFTER MARCH 31, 1985, THE FAR PROVIDES THAT UNLESS THEY HAVE EVIDENCE TO THE CONTRARY, CONTRACTING OFFICERS MAY PRESUME THAT NOTICE HAS BEEN PUBLISHED 10 DAYS-- 6 DAYS IF ELECTRONICALLY TRANSMITTED-- FOLLOWING TRANSMITTAL OF THE SYNOPSIS TO THE CBD. SEE SECTION 5.203(F) OF THE FAR, 50 FED.REG. 1726, 1728-9 (1985) FAR CIRCULAR 84-5 (APRIL 1, 1985) (TO BE CODIFIED AT 48 C.F R. SEC. 5.203(F). /1/ SINCE PUB.L. 98-577 EXPRESSLY REQUIRES PUBLICATION IN THE CBD (AS DID PUB.L. 98-72), WE BELIEVE THAT THE PRESUMPTION IN THE FAR, TO BE CODIFIED AT 48 C.F.R. SEC. 5.203(F) IS INCONSISTENT WITH THE STATUTORY REQUIREMENT OF ACTUAL PUBLICATION. WHILE WE ARE AWARE OF THE BURDEN WHICH THE LACK OF A PRESUMPTION OF CBD PUBLICATION WOULD PLACE ON CONTRACTING OFFICERS, THE STATUTORY REQUIREMENTS CONCERNING PUBLICATION ARE CLEAR AND MUST BE FOLLOWED. WE URGE THE DIRECTOR OF THE FAR SECRETARIAT AND THE SECRETARY OF COMMERCE TO DEVELOP PROCEDURES WHICH WOULD ENSURE THE PROMPT PUBLICATION OF PROCUREMENT SYNOPSES IN THE CBD.

ALTHOUGH THE AGENCY'S ACTIONS VIOLATED THE REQUIREMENTS OF PUB.L. 98-72, WE DO NOT BELIEVE THAT THE AGENCY'S VIOLATION OF THE STATUTE REQUIRES TERMINATION OF ITS CONTRACT WITH BAMMAC SINCE THE RECORD BEFORE US SHOWS THAT AUL WAS NOT PREJUDICED BY THE AGENCY'S FAILURE TO FOLLOW THE STATUTE'S REQUIREMENTS. PUB.L. 98-72 CONTAINS NO EXPRESSION OF A CONGRESSIONAL INTENT TO REQUIRE AGENCIES TO TERMINATE OTHERWISE PROPER AWARDS OR TO CANCEL OTHERWISE VALID PROCUREMENTS AND REPROCURE IN EVERY INSTANCE WHERE THE EXACT LETTER OF THE APPLICABLE NOTICE REQUIREMENT IS NOT MET AND THERE IS NO INDICATION THAT THIS WAS CONGRESS' INTENT. SEE MORRIS GURALNICK ASSOC., INC., B-214751.2, DEC. 3, 1984, 84-2 CPD PARA. 597. FURTHERMORE, WE HAVE HELD THAT THE CONTRACTING AGENCY'S FAILURE TO PROPERLY PUBLISH A SYNOPSIS IN THE CBD CONCERNING AN INTENDED PROCUREMENT, AS REQUIRED BY PUB.L. 98-72, DOES NOT REQUIRE A CANCELLATION OF THE SOLICITATION AND RESOLICITATION WHERE THE PROTESTER HAS NOT BEEN PREJUDICED BY THE FAILURE TO GIVE PROPER NOTICE IN THE CBD. SEE TRI-COM, INC., B-214864, JUNE 19, 1984, 84-1 CPD PARA. 643.

THE AGENCY ASSERTS THAT AUL WAS NOT ADVERSELY AFFECTED BY THE FAILURE TO TIMELY PUBLISH A SYNOPSIS OF THE SOLE-SOURCE PROCUREMENT IN THE CBD SINCE AUL'S RESPONSE TO THE AGENCY'S APRIL INQUIRY AS TO THE AVAILABILITY OF IC'S REQUIRED FOR THE TD-660 PANEL ASSEMBLIES INDICATED THAT AUL WOULD BE UNABLE TO TIMELY DELIVER THE PANEL ASSEMBLIES DUE TO THE UNAVAILABILITY OF CERTAIN NEEDED IC'S. FURTHERMORE, THE AGENCY HAS ADVISED THAT AS OF THE TIME OF ITS REPORT, AUL WAS APPROXIMATELY 1 YEAR BEHIND ON ITS CURRENT CONTRACT FOR THE PRODUCTION OF THE TD-660.

ALTHOUGH AUL STATES IN GENERAL TERMS THAT IT WOULD HAVE BEEN INTERESTED IN COMPETING FOR THIS PROCUREMENT HAD IT BEEN PROPERLY SYNOPSIZED, AUL HAS NOT STATED HOW IT WOULD HAVE MET THE AGENCY'S URGENT DELIVERY REQUIREMENTS DESPITE ITS JUNE REPLY TO THE AGENCY THAT THERE APPEARED TO BE SOME DIFFICULTIES WITH OBTAINING SOME OF THE IC'S NEEDED FOR THE PANEL ASSEMBLIES. FURTHERMORE, AUL HAS NOT DISPUTED THE AGENCY'S STATEMENT THAT IT WAS ABOUT 1 YEAR BEHIND IN DELIVERY UNDER ITS EXISTING CONTRACT FOR THE PRODUCTION OF THE TD-660.

IN SUPPORT OF ITS POSITION, AUL HAS CITED THE DECISION IN TRI-COM. INC., V. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, CIV. ACT. NO. 84-1058 (D.D.C. OCT. 31, 1984) (MEMORANDUM OF FINDINGS AND CONCLUSIONS) WHEREIN THE COURT DISAGREED WITH OUR DECISION IN TRI-COM, B-214864, SUPRA, 84-1 CPD PARA. 640, IN WHICH WE HELD THAT THE CONTRACTING AGENCY'S FAILURE TO PUBLISH A SYNOPSIS IN THE CBD REQUIRED BY PUB.L. 98 72 HAD NOT PREJUDICED THE PROTESTER WHERE THE PROTESTER BECAME AWARE OF THE PROCUREMENT SOME 17 DAYS PRIOR TO AWARD. THE COURT FOUND THAT TESTIMONY PRESENTED BY TRI-COM AT AN EVIDENTIARY HEARING SHOWED THAT IT WAS LIKELY THAT TRI-COM WOULD HAVE PREPARED A RESPONSIVE PROPOSAL AND WOULD HAVE BEEN ENTITLED TO THE CONTRACT IF NOTICE OF THE PROCUREMENT HAD BEEN PUBLISHED IN THE CBD AT LEAST 30 DAYS PRIOR TO AWARD AS WAS REQUIRED BY PUB.L. 98-72.

WE DO NOT VIEW THE COURT'S DECISION IN TRI-COM AS SUPPORTING AUL'S POSITION THAT IT WAS PREJUDICED BY THE LACK OF TIMELY PUBLICATION OF THE SYNOPSIS OF THE SOLE-SOURCE PROCUREMENT. THE COURT DID NOT HOLD THAT THE FAILURE TO PUBLISH A TIMELY CBD NOTICE BY ITSELF CONSTITUTED PREJUDICE TO TRI-COM, BUT HELD THAT EVIDENCE PRESENTED BY TRI-COM DEMONSTRATED A LIKELIHOOD THAT TRI-COM WOULD HAVE SUBMITTED A RESPONSIVE PROPOSAL IF IT HAD THE ADDITIONAL TIME IN WHICH TO PREPARE IT, WHICH PUBLICATION IN THE CBD WOULD HAVE PROVIDED.

HERE, AUL WAS PERMITTED ALMOST 2 MONTHS IN WHICH TO REPLY TO A LETTER IN WHICH THE ARMY (1) STATED THE APPROXIMATE NUMBER OF PANEL ASSEMBLIES IT ANTICIPATED PURCHASING; (2) SET FORTH ITS PROPOSED DELIVERY SCHEDULE; (3) EXPRESSED ITS CONCERN ABOUT THE AVAILABILITY OF CERTAIN KEY COMPONENTS NECESSARY FOR THE MANUFACTURE OF THESE ITEMS AND STATED THAT ITS INTENT WAS TO ASCERTAIN WHETHER ENOUGH OF THESE COMPONENTS WERE AVAILABLE TO COMPLETE THE CONTRACT; (4) IDENTIFIED EACH OF THESE COMPONENTS AND ITS CURRENT OR PRIOR SOURCE; AND (5) REQUESTED EACH ADDRESSEE TO PROVIDE SPECIFIC INFORMATION WHICH WOULD ESTABLISH WHETHER THAT FIRM WOULD HAVE AVAILABLE TO IT THOSE QUANTITIES OF THE NECESSARY COMPONENTS IN TIME TO MEET THE PROPOSED DELIVERY SCHEDULE. ALTHOUGH A PROPER CBD SYNOPSIS WAS NOT PROVIDED, THE ARMY'S LETTER OF INQUIRY WOULD APPEAR TO HAVE PROVIDED AN EQUIVALENT OPPORTUNITY FOR INTERESTED FIRMS TO DEMONSTRATE THEIR "CAPABILITY TO RESPOND" TO THE ARMY'S NEEDS. /2/ AUL, HOWEVER, HAS NOT PRESENTED ANY EVIDENCE TO SHOW THAT IT COULD HAVE BEEN RESPONSIVE TO THE ARMY'S URGENT "STOP-GAP" PROCUREMENT OF THE TD-660 PANEL ASSEMBLIES EVEN IF IT HAD RECEIVED TIMELY NOTICE OF THE PROCUREMENT PURSUANT TO THE REQUIREMENTS OF PUB.L. 98-72. THEREFORE, WE CANNOT CONCLUDE THAT AUL WAS PREJUDICED BY THE LACK OF A PROPER SYNOPSIS.

AUL ALSO CHALLENGES THE PROPRIETY OF THE SOLE-SOURCE AWARD TO BAMMAC, ALLEGING THAT THE DIFFICULTIES WHICH AUL CITED IN ITS JUNE 1984 RESPONSE TO THE AGENCY'S INQUIRY WOULD APPLY TO ANY PROSPECTIVE CONTRACTOR, INCLUDING BAMMAC. THE PROTESTER POINTS OUT THAT THERE IS NO INDICATION THAT THE ARMY INDEPENDENTLY VERIFIED WHETHER BAMMAC IN FACT HAD THE UNIQUE ABILITY TO PERFORM THE CONTRACT WHICH IT CLAIMED.

THE ARMY DISPUTES AUL'S ASSERTION THAT ALL PROSPECTIVE CONTRACTORS WOULD BE IN THE IDENTICAL POSITION WITH RESPECT TO THE SUPPLY OF IC'S AVAILABLE TO THEM. THE CONTRACTING OFFICER STATES THAT AS OF THE TIME OF HER REPORT ON THE PROTEST BAMMAC WAS PRODUCING THE PANEL ASSEMBLIES IN QUESTION, UNDER AN EXISTING CONTRACT, ON A TIMELY BASIS. AUL HAS PRESENTED NO EVIDENCE WHICH INDICATES THAT BAMMAC COULD NOT PERFORM ON SCHEDULE; IN FACT, THE ARMY ADVISES THAT BAMMAC HAS ACCELERATED DELIVERY. SINCE THE RECORD DOES NOT SUPPORT AUL'S ASSERTION THAT BAMMAC WAS IN THE SAME POSITION AS ANY OTHER PROSPECTIVE CONTRACTOR WITH RESPECT TO ITS SUPPLY OF IC'S, THIS ASPECT OF THE PROTEST IS DENIED.

AUL ALSO ASSERTS THAT BAMMAC HAD REJECTED LARGE QUANTITIES OF PARTS, IC'S SM-B-525283-2 AND SM-B-525283-3, WHICH ARE USED IN SUBASSEMBLIES 11A23 AND 11A28, DUE TO NONCONFORMANCE AND THAT BAMMAC PROVIDED THE MANUFACTURER WITH A WAIVER OF THIS NONCONFORMANCE IN OCTOBER 1984. AUL POINTS OUT THAT THE TWO IC'S IN QUESTION ARE THOSE WHICH IT ADVISED THE AGENCY IN ITS JUNE 4 LETTER WERE ON "ENGINEERING HOLD" BY THE MANUFACTURER BECAUSE OF TECHNICAL PROBLEMS. THE AGENCY DENIES AUL'S ASSERTIONS AND ADVISES THAT BAMMAC HAS NEITHER ACCEPTED ANY DEFECTIVE PARTS NOR ISSUED A WAIVER FOR THE ACCEPTANCE OF NONCONFORMING PARTS. THE ARMY ADVISES THAT BAMMAC HAD RESOLVED THE PROBLEM OF THE AVAILABILITY OF THE IC'S BY MEANS OF AN ENGINEERING CHANGE PROPOSAL. ONCE A CONTRACT HAS BEEN AWARDED THE MATTER AS TO WHETHER THE AWARDEE IN FACT SUPPLIES ITEMS CONFORMING TO THE TERMS OF THE CONTRACT SPECIFICATIONS IS A MATTER OF CONTRACT COMPLIANCE AND ADMINISTRATION WHICH ARE THE RESPONSIBILITY OF THE CONTRACTING AGENCY AND NOT OUR OFFICE. MKC ELECTRONICS CORP., B-216584, OCT. 22, 1984, 84-2 CPD PARA. 438. WE NOTE THAT THE AGENCY HAS ADVISED THAT BAMMAC HAS NOT ONLY INDICATED THAT IT WOULD MEET THE CONTRACT'S DELIVERY SCHEDULE BUT THAT BAMMAC HAS ACCELERATED THE DELIVERY SCHEDULE BY UP TO 3 MONTHS ON MOST PANEL ASSEMBLIES AND IS PLANNING TO MAINTAIN THIS ACCELERATED DELIVERY SCHEDULE THROUGHOUT THE CONTRACT.

FINALLY, AUL ASSERTS THAT IN ITS LETTER OF JUNE 4, IT CLEARLY INDICATED THAT FOUR OF THE SEVEN PANEL ASSEMBLIES, WHICH WERE EVENTUALLY PROCURED FROM BAMMAC, WERE READILY AVAILABLE AND THAT TWO OTHER SUBASSEMBLIES, PANEL ASSEMBLIES WHICH REQUIRED IC'S SM-B525283-2 AND SM-B-525283-3, ALLEGEDLY WERE ON "ENGINEERING HOLD" BECAUSE OF TECHNICAL PROBLEMS. THUS, AUL ASSERTS THAT ONLY ONE PANEL ASSEMBLY, 11A25, WHICH REQUIRES IC-SM-B- 525291, MIGHT HAVE BEEN PROPERLY PROCURED ON A SOLE-SOURCE BASIS FROM BAMMAC IF THAT FIRM HAD THIS SUBASSEMBLY IN STOCK, SINCE AUL HAD INDICATED IN THE JUNE 4 LETTER THAT THIS PARTICULAR IC HAD BEEN DISCONTINUED AUL CONTENDS THAT THERE WAS NO PROPER BASIS UPON WHICH TO INCLUDE THE OTHER PANEL ASSEMBLIES IN THE SOLE-SOURCE PROCUREMENT. WE DISAGREE.

AUL'S JUNE 4 RESPONSE TO THE AGENCY'S INQUIRY OF AVAILABILITY OF IC'S DOES NOT CLEARLY INDICATE THAT AUL COULD PROVIDE FOUR OF THE PANEL ASSEMBLIES WITHOUT ANY DIFFICULTY. FURTHERMORE, AS STATED ABOVE, AUL OMITTED IN ITS RESPONSE TO THE AGENCY'S SURVEY MUCH OF THE SPECIFIC INFORMATION WHICH HAD BEEN REQUESTED BY THE AGENCY, INCLUDING INFORMATION ON THE QUANTITIES OF IC'S AVAILABLE TO IT. IN ADDITION, AS SET FORTH ABOVE, THE AGENCY HAS ADVISED THAT BAMMAC HAS SUCCESSFULLY RESOLVED THE POTENTIAL PROBLEMS WITH THE "ENGINEERING HOLD" ON IC'S SM B-525283-2 AND SM-B-525283-3.

MOREOVER, THE AGENCY ADVISES THAT IT IS USING COMPETITIVE PROCEDURES TO PROCURE THESE ITEMS TO THE EXTENT FEASIBLE. IT ADVISES THAT THE 17,458 PANEL ASSEMBLIES REQUIRED UNDER THE CURRENT CONTRACT WITH BAMMAC REPRESENT LESS THAN HALF OF THE TOTAL GOVERNMENT REQUIREMENT OF 38,292 ASSEMBLIES. OF THE REMAINING 20,834 ASSEMBLIES, 20,076 HAVE BEEN "BROKEN OUT" FOR THE TECHNOLOGY INSERTION PROGRAM, WHICH WILL BE COMPETITIVELY PROCURED, AND AUL HAS SUBMITTED A PROPOSAL TO SUPPLY THE REMAINING 758 FILTER ASSEMBLIES. IN ADDITION, THE AGENCY STATES THAT IT ISSUED A SINGLE SOLICITATION FOR ALL THE PANEL ASSEMBLIES NEEDED UNDER THE "STOP-GAP" PROCUREMENT SINCE THE MAJORITY OF THE REQUIRED IC'S ARE UTILIZED ON MORE THAN ONE ASSEMBLY.

AUL HAS CITED OUR DECISION IN INTERMEM CORP., B-212964, JULY 31, 1984, 84-2 C.P D. PARA. 133, IN SUPPORT OF ITS POSITION THAT PANEL ASSEMBLIES 11A23 THROUGH 11A29 SHOULD HAVE BEEN PROCURED THROUGH SEPARATE SOLICITATIONS. OUR DECISION IN INTERMEM, SUPRA, IS CLEARLY DISTINGUISHABLE FROM THE SITUATION BEFORE US. IN INTERMEM, THE AGENCY NOT ONLY DID NOT OFFER ANY BASIS FOR ITS TOTAL PACKAGE PROCUREMENT BUT IN EFFECT AGREED THAT A DIVISIBLE COMPONENT OF THE EQUIPMENT BEING PURCHASED SHOULD BE PROCURED COMPETITIVELY.

WE CONSISTENTLY HAVE HELD THAT IT IS FOR THE CONTRACTING AGENCY TO DETERMINE WHETHER TO PROCURE BY MEANS OF A TOTAL PACKAGE APPROACH OR TO BREAK OUT DIVISIBLE PORTIONS OF THE TOTAL REQUIREMENT FOR SEPARATE PROCUREMENTS. IN SUCH CASES, WE WILL NOT DISTURB THE AGENCY'S DECISION TO PROCURE ON A TOTAL PACKAGE BASIS UNLESS THE PROTESTER SHOWS BY CONVINCING EVIDENCE THAT THE AGENCY'S APPROACH IS CLEARLY UNREASONABLE. J&J MAINTENANCE, INC., B-214209, NOV. 2, 1984, 84-2 CPD PARA. 488. SINCE AUL HAS NOT PRESENTED EVIDENCE WHICH WOULD SHOW THAT THE AGENCY'S TOTAL PACKAGE APPROACH TO THE PROCUREMENT OF THE PANEL ASSEMBLIES IS CLEARLY IMPROPER, WE WILL NOT OBJECT TO THE AGENCY'S USE OF A SINGLE SOLICITATION FOR THIS "STOP-GAP" PROCUREMENT.

/1/ THE PRESUMPTION OF CBD PUBLICATION IN SECTION 5.203 OF THE DOD FAR SUPPLEMENT (1984) WAS DELETED EFFECTIVE WITH REGARD TO SOLICITATIONS ISSUED AFTER MARCH 31, 1985.

/2/ IT DOES NOT APPEAR THAT THE CBD SYNOPSIS STIMULATED ANY RESPONSE OTHER THAN AUL'S PROTEST.