B-165402, DEC. 17, 1968

B-165402: Dec 17, 1968

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WHICH ARE EQUAL IN ALL MATERIAL RESPECTS TO THE SPECIFIED GRANGER ANTENNA. THIS PROCUREMENT WAS LIMITED TO THE GRANGER ANTENNA FROM ITS INCEPTION. FOR IT WAS DETERMINED THAT THE DELIVERY REQUIREMENTS WERE SO URGENT THAT ONLY AN ANTENNA WHICH HAD BEEN PREVIOUSLY EVALUATED COULD BE CONSIDERED. IT WAS THE ONLY ANTENNA APPROVED FOR THIS PROCUREMENT. THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY FOR THE PURPOSE OF ADVISING THE PUBLIC OF SUBCONTRACTING OPPORTUNITIES. TECHNOLOGY FOR COMMUNICATIONS INTERNATIONAL AND ANTENNA PRODUCTS COMPANY IMMEDIATELY CONTACTED THE PROCURING ACTIVITY IN AN EFFORT TO HAVE THEIR PRODUCT CONSIDERED IN COMPETITION WITH THE SPECIFIED GRANGER ANTENNA. THESE OFFERS WERE REFUSED.

B-165402, DEC. 17, 1968

TO HY-GAIN ELECTRONICS CORPORATION:

WE REFER TO YOUR TELEGRAM OF OCTOBER 8, 1968, AND SUBSEQUENT COMMUNICATIONS, ALLEGING THAT REQUEST FOR QUOTATIONS NO. N00612-69-Q 0045 ISSUED BY THE COMMANDING OFFICER, NAVAL SUPPLY CENTER, CHARLESTON, SOUTH CAROLINA, IMPROPERLY RESTRICTED COMPETITION TO ONE PARTICULAR MAKE AND MODEL VERTICAL LOG-PERIODIC ANTENNA, THE GRANGER ASSOCIATES MODEL 747V- 66. YOU CONTEND THAT THIS SOURCE RESTRICTION PROHIBITS CONSIDERATION OF ANTENNAS PRODUCED BY OTHER FIRMS, SUCH AS YOUR MODEL LP-1705-3, WHICH ARE EQUAL IN ALL MATERIAL RESPECTS TO THE SPECIFIED GRANGER ANTENNA.

THIS PROCUREMENT WAS LIMITED TO THE GRANGER ANTENNA FROM ITS INCEPTION, FOR IT WAS DETERMINED THAT THE DELIVERY REQUIREMENTS WERE SO URGENT THAT ONLY AN ANTENNA WHICH HAD BEEN PREVIOUSLY EVALUATED COULD BE CONSIDERED. AS ONLY THE GRANGER MODEL 747V-66 MET THIS CRITERION, IT WAS THE ONLY ANTENNA APPROVED FOR THIS PROCUREMENT. ACCORDINGLY, ON SEPTEMBER 18, 1968, THE CONTRACTING AGENCY TELEPHONED GRANGER AND REQUESTED A PRICE QUOTATION ON 12 ANTENNAS FOR DELIVERY IN DECEMBER 1968. THIS CALL LED TO A SERIES OF NEGOTIATIONS BETWEEN THE GOVERNMENT AND GRANGER CONCERNING THE FURNISHING OF COST DATA, THE PRICE AND A REDUCTION IN QUANTITY TO SIX UNITS.

DURING THIS NEGOTIATION PERIOD, ON OCTOBER 8, 1968, THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY FOR THE PURPOSE OF ADVISING THE PUBLIC OF SUBCONTRACTING OPPORTUNITIES. ON LEARNING OF THIS PROCUREMENT, THREE FIRMS, HY-GAIN ELECTRONICS CORPORATION, TECHNOLOGY FOR COMMUNICATIONS INTERNATIONAL AND ANTENNA PRODUCTS COMPANY IMMEDIATELY CONTACTED THE PROCURING ACTIVITY IN AN EFFORT TO HAVE THEIR PRODUCT CONSIDERED IN COMPETITION WITH THE SPECIFIED GRANGER ANTENNA. THESE OFFERS WERE REFUSED, ON THE BASIS THAT THE URGENT NEED FOR THESE ANTENNAS PRECLUDED CONSIDERATION OF ARTICLES WHICH HAD NOT BEEN PREVIOUSLY EVALUATED.

ON OCTOBER 17, 1968, THE NEGOTIATIONS WERE CONCLUDED AND THE GOVERNMENT TELEGRAPHICALLY ADVISED GRANGER THAT IT HAD BEEN AWARDED A CONTRACT IN THE AMOUNT OF $79,500 TO PRODUCE 6 MODEL 747V-66 ANTENNAS. THE FORMAL CONTRACT DOCUMENTS WERE MAILED AND SIGNED BY THE PARTIES SHORTLY THEREAFTER, AND GRANGER IS PRESUMABLY PERFORMING THE CONTRACT AT PRESENT.

YOUR PROTEST AGAINST THIS CONTRACT AWARD IS LIMITED TO THE DECISION TO PROCURE THE PRODUCT OF JUST ONE MANUFACTURER, GRANGER. OUR REVIEW OF THE RECORD REVEALS THAT THE CONTRACTING ACTIVITY ACTED PROPERLY OTHERWISE, AND IF THE GOVERNMENT ACTED PROPERLY IN LIMITING COMPETITION, THE AWARD IN QUESTION IS UNOBJECTIONABLE.

THE RECORD DOES NOT SHOW WHEN THE PURCHASE REQUEST ORIGINATING THIS PROCUREMENT WAS ISSUED. HOWEVER, THE FILE DOES CONTAIN A MEMORANDUM DATED SEPTEMBER 9, 1968, OF A MEETING BETWEEN REPRESENTATIVES OF THE CONTRACTING ACTIVITY AND PERSONNEL OF THE NAVAL ELECTRONICS SYSTEMS COMMAND DISCUSSING THE DEVELOPMENT OF THE GRANGER ANTENNA, SO WE MAY ASSUME THAT THE REQUEST WAS RECEIVED BY THE PROCURING ACTIVITY IN LATE AUGUST OR EARLY SEPTEMBER 1968. ACCORDING TO THIS MEMORANDUM, THE PURCHASE REQUEST REQUIRED DELIVERY BY DECEMBER 31, 1968.

THE USING ACTIVITY NEEDS THE NEW ANTENNAS TO REPLACE EXISTING OPERATIONAL ANTENNAS OF A DIFFERENT DESIGN WHICH DO NOT PERFORM SATISFACTORILY. FOR THIS REASON, IT WAS DETERMINED THAT REPLACEMENTS SHOULD BE OBTAINED AS QUICKLY AS POSSIBLE TO BRING THE SYSTEM TO FULL OPERATIONAL USE. WHILE A NUMBER OF OTHER MANUFACTURERS HAVE THE CAPACITY TO PRODUCE ACCEPTABLE ANTENNAS FOR THIS PURPOSE, ONLY THE GRANGER MODEL 747V-66, FURNISHED TO THE NAVY UNDER A PRIOR CONTRACT, HAD UNDERGONE THE NECESSARY EVALUATION PROCESS. AND BECAUSE THE DELIVERY REQUIREMENTS WOULD NOT PERMIT THE TIME- CONSUMING TESTING, ANALYZING AND REVIEWING NECESSARY TO DEMONSTRATE THE SUITABILITY OF A NEW ANTENNA, IT WAS DETERMINED THAT ONLY THE GRANGER ANTENNA WOULD SATISFY THE GOVERNMENT'S NEEDS.

THE RECORD SHOWS WHAT WE BELIEVE TO BE AN ADEQUATE BASIS FOR THE NAVY'S CONCLUSION THAT EVALUATION OF ANOTHER ANTENNA WOULD HAVE EXTENDED DELIVERY BEYOND THE DECEMBER DEADLINE. IN PARTICULAR, WHEN DEVELOPING THE GRANGER MODEL 747V-66, GRANGER SPENT NINE MONTHS AFTER ITS BID WAS ACCEPTED BEFORE OBTAINING FINAL APPROVAL OF ITS ANTENNA DOCUMENTATION. THIS DELAY WAS A RESULT OF MANY FACTORS, INCLUDING THE PREPARATION OF STRESS ANALYSES, THE REVIEW OF THE ANALYSES BY THE NAVY, AND THE CORRECTION OF THE ANALYSES WHEN NEEDED.

YOU ARGUE THAT HY-GAIN WOULD NOT BE REQUIRED TO SPEND THIS TIME DEMONSTRATING THE SUITABILITY OF ITS PRODUCT BECAUSE THE NAVY HAS ALREADY APPROVED HY-GAIN'S ANTENNA DOCUMENTATION UNDER THE FIRST STEP OF THE PRIOR PROCUREMENT WHICH RESULTED IN AN AWARD TO GRANGER. YOU ASSERT THAT YOUR ANTENNA UNDERWENT THE SAME TECHNICAL EVALUATION AS THE GRANGER MODEL 747V- 66 WHEN YOUR FIRM SUBMITTED ITS TECHNICAL DESCRIPTION OF ITS PROPOSED ANTENNAS UNDER NAVAL ELECTRONICS SYSTEMS COMMAND REQUEST FOR PROPOSALS NO. N00600-67-B-0122. YOU ASSERT THAT BECAUSE YOUR PROPOSAL, AS WELL AS GRANGER-S, WAS DETERMINED TO BE TECHNICALLY ACCEPTABLE UNDER THE FIRST STEP OF THAT PROCUREMENT, YOUR FIRM'S ANTENNA HAS BEEN FULLY EVALUATED, EVEN THOUGH GRANGER OBTAINED THE AWARD BY OFFERING A BETTER PRICE ON THE SECOND STEP.

THE NAVY REPORT AGREES WITH YOUR CONTENTIONS TO THE EXTENT THAT YOUR FIRM SUBMITTED A PROPOSAL EVIDENCING THE TECHNICAL ABILITY TO DESIGN AND PRODUCE THE DESIRED GROUP OF ANTENNAS PROCURED UNDER THE PRIOR SOLICITATION. HOWEVER, FOR COST REASONS, UNDER THIS PRIOR PROCUREMENT OFFERORS WERE REQUIRED TO SUBMIT ONLY A TYPICAL STRESS ANALYSIS AS PROOF OF THEIR ABILITY TO PERFORM THE SUBSEQUENT ANALYSES REQUIRED FOR EACH ANTENNA UNDER THE CONTRACT. SIMILARLY, ON OTHER MATTERS, OFFERORS WERE ONLY REQUIRED TO DEMONSTRATE THEIR APPROACH, AND THEIR TECHNICAL CAPABILITY, WHILE THE FINAL DESIGN, EVALUATION AND APPROVAL OF EACH ANTENNA WAS RELEGATED TO THE PERIOD AFTER AWARD. IT FOLLOWS, THEREFORE, THAT THE GOVERNMENT'S ACCEPTANCE OF HY-GAIN'S OFFER UNDER THE FIRST STEP OF THE EARLIER PROCUREMENT DOES NOT FURNISH A BASIS FOR THE CONCLUSION THAT THE NAVY HAS EVALUATED HY-GAIN'S ANTENNAS FOR PURPOSES OF THE PRESENT PROCUREMENT.

WE BELIEVE THAT THE RECORD SUBSTANTIATES THE NAVY'S POSITION, THAT ONLY THE GRANGER MODEL 747V-66 HAD PREVIOUSLY UNDERGONE THE EVALUATION NEEDED FOR THIS CLASS OF ITEM, WHICH MEANT THAT ONLY GRANGER COULD SATISFY THE URGENT DELIVERY REQUIREMENTS OF THIS PROCUREMENT.

YOU ALSO SUGGEST THAT UNDER SUCH DECISIONS OF THIS OFFICE AS B 164848, OCTOBER 15, 1968, THE GOVERNMENT'S DESIGNATION OF A PARTICULAR MAKE AND MODEL NUMBER IS NOT TO BE CONSTRUED AS RESTRICTING COMPETITION TO THE MAKE AND MODEL SO DESIGNATED. WE AGREE WITH THIS STATEMENT, AS A GENERAL PRINCIPLE. HOWEVER, THE PRESENT CASE DIFFERS FROM THE ORDINARY CASE IN ITS TIME PARAMETERS. FOR EXAMPLE, 143 DAYS ELAPSED BETWEEN ISSUANCE OF THE SOLICITATION AND AWARD IN THE CITED CASE, WHILE IN THE PRESENT CASE ONLY 30 DAYS ELAPSED, A SUBSTANTIALLY SHORTER TIME SPAN.

WERE THE DELIVERY REQUIREMENTS NOT SO URGENT HERE, WE WOULD FOLLOW THE RULE SET OUT IN B-164848. HOWEVER, UNDER THE CIRCUMSTANCES HERE, THE GENERAL RULE IS NOT FOR APPLICATION, FOR TIME CONSIDERATIONS DO NOT PERMIT THE EVALUATION PERIOD INCIDENT TO BROADENED COMPETITION.

FOR THE REASONS DISCUSSED ABOVE, WE HAVE NO LEGAL OBJECTION TO THE SOURCE RESTRICTION CONNECTED WITH THE SUBJECT PROCUREMENT. ACCORDINGLY, YOUR PROTEST IS DENIED.

FOR YOUR INFORMATION, WE ARE ENCLOSING A COPY OF OUR DECISION OF TODAY DENYING A RELATED PROTEST ENTERED BY TECHNOLOGY FOR COMMUNICATIONS INTERNATIONAL AGAINST THE SAME PROCUREMENT ACTION.

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