B-150318, JUN. 6, 1963
Highlights
TO THE SECRETARY OF THE AIR FORCE: ENCLOSED ARE COPIES OF OUR DECISIONS OF TODAY ON PROTESTS OF ELCOM CORPORATION AGAINST THE AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) FO 4120-3046-0002. THESE PROTESTS WERE THE SUBJECT OF YOUR REPORT TO OUR OFFICE DATED MARCH 21. YOUR PARTICULAR ATTENTION IS DIRECTED TO THE THIRD PARAGRAPH OF OUR DECISION TO ELCOM CORPORATION. 250 IF THE DAVIS BACON ACT WERE DETERMINED TO BE INAPPLICABLE TO THIS CONTRACT. WHILE THIS REDUCTION WOULD HAVE MADE ITS PRICE LOWER THAN THE SUCCESSFUL OFFEROR. WE CANNOT SAY THAT UNDER A PROPER RFP ITT KELLOGG WOULD HAVE BEEN THE LOW OFFEROR. SINCE WE DO NOT KNOW IF THE SUCCESSFUL OFFEROR WOULD HAVE OFFERED A LOWER PRICE IF NO MENTION OF THE DAVIS-BACON ACT HAD BEEN MADE IN THE RFP.
B-150318, JUN. 6, 1963
TO THE SECRETARY OF THE AIR FORCE:
ENCLOSED ARE COPIES OF OUR DECISIONS OF TODAY ON PROTESTS OF ELCOM CORPORATION AGAINST THE AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) FO 4120-3046-0002, AND OF ITT KELLOGG COMMUNICATIONS SYSTEMS AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. 04 606-63-65. THESE PROTESTS WERE THE SUBJECT OF YOUR REPORT TO OUR OFFICE DATED MARCH 21, 1963.
YOUR PARTICULAR ATTENTION IS DIRECTED TO THE THIRD PARAGRAPH OF OUR DECISION TO ELCOM CORPORATION. WE NOTE THAT ITT KELLOGG COMMUNICATIONS SYSTEMS, THE SECOND LOW OFFEROR UNDER THE CITED REQUEST FOR PROPOSALS, PROPOSED TO REDUCE ITS PRICE BY $12,250 IF THE DAVIS BACON ACT WERE DETERMINED TO BE INAPPLICABLE TO THIS CONTRACT. WHILE THIS REDUCTION WOULD HAVE MADE ITS PRICE LOWER THAN THE SUCCESSFUL OFFEROR, WE CANNOT SAY THAT UNDER A PROPER RFP ITT KELLOGG WOULD HAVE BEEN THE LOW OFFEROR, SINCE WE DO NOT KNOW IF THE SUCCESSFUL OFFEROR WOULD HAVE OFFERED A LOWER PRICE IF NO MENTION OF THE DAVIS-BACON ACT HAD BEEN MADE IN THE RFP. HOWEVER, IT DOES APPEAR THAT THE IMPROPER INCLUSION OF DAVIS-BACON PROVISIONS IN THE CONTRACT RESULTED IN A HIGHER PRICE TO THE GOVERNMENT THAN NECESSARY.
YOUR ATTENTION IS ALSO DIRECTED TO THE LAST PARAGRAPH IN THAT DECISION, WHEREIN WE OBSERVE THAT THE OPERATION OF THE STATUTE AUTHORIZING PROGRESS PAYMENTS IS DISCRETIONARY WITH THE ADMINISTRATIVE AGENCY. HOWEVER, IT SHOULD BE NOTED THAT APPENDIX E, ARMED SERVICES PROCUREMENT REGULATION (ASPR), PARAGRAPH 502.1, DIRECTS THAT THE RFP SHALL ADVISE BIDDERS THAT PROGRESS PAYMENTS WILL BE MADE IN CONFORMITY TO REGULATIONS, AND THAT THE REGULATIONS AT PARAGRAPH 505 WOULD APPEAR TO PERMIT THE GRANTING OF A REQUEST FOR PAYMENTS IN EXCEPTIONAL CIRCUMSTANCES, NOTWITHSTANDING A SHORT DELIVERY PERIOD. THEREFORE, WE SUGGEST THAT FUTURE RFP'S BE DRAWN IN ACCORDANCE WITH PARAGRAPH 502.1, OR THAT THE PARAGRAPH BE MODIFIED TO EXCEPT PROCUREMENTS WHERE CUSTOMARY PROGRESS PAYMENTS ARE INAPPLICABLE AND UNUSUAL PROGRESS PAYMENTS CAN BE DETERMINED PRIOR TO THE ISSUANCE OF RFP NOT TO BE WORTHY OF SPECIAL APPROVAL.
ENCLOSURES TO LETTERS OF FEBRUARY 27 AND MARCH 21, 1963, FROM THE CHIEF, PROCUREMENT OPERATIONS DIVISION, DIRECTORATE, PROCUREMENT MANAGEMENT, DCS/S AND L, ARE RETURNED, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT.