B-158550, JUN. 29, 1966

B-158550, JUN. 29, 1966

TO THE FOREGGER COMPANY, INCORPORATED:

REFERENCE IS MADE TO THE LETTER DATED FEBRUARY 15, 1966, FROM YOUR CLIENT, THE FOREGGER COMPANY, INCORPORATED, ROSLYN HEIGHTS, NEW YORK, PROTESTING AGAINST THE ISSUANCE OF REQUEST FOR PROPOSALS NO. DSA-120-66 NEG-1376, BY THE DEFENSE PERSONNEL SUPPORT CENTER, DEFENSE SUPPLY AGENCY, PHILADELPHIA, PENNSYLVANIA, TO THE OHIO CHEMICAL AND SURGICAL EQUIPMENT COMPANY, MADISON, WISCONSIN.

THE ABOVE REFERENCED-REQUEST FOR PROPOSALS (RFP) WAS ISSUED ON JANUARY 3, 1966, FOR THE PROCUREMENT OF 782 UNITS (SUBSEQUENTLY REDUCED TO 723 UNITS) OF ANESTHESIA APPARATUS, GAS, NITROUS OXIDE, ETHER, AND CYCLOPROPANE, PORTABLE, 4 CYLINDER CAPACITY. ONLY ONE FIRM, OHIO CHEMICAL AND SURGICAL EQUIPMENT COMPANY, WAS SOLICITED AND, INDEED, THE SOLICITATION PROVIDED THAT THE APPARATUS TO BE FURNISHED WAS THAT OF OHIO CHEMICAL HAVING BEEN DEVELOPED IN JOINT EFFORT WITH THE ARMY MEDICAL EQUIPMENT RESEARCH AND DEVELOPMENT LABORATORY (MERDL), AT FORT TOTTEN, LONG ISLAND, NEW YORK. JANUARY 31, 1966, A REPRESENTATIVE OF THE FOREGGER COMPANY TELEPHONED THE PURCHASING AGENT AT THE DEFENSE PERSONNEL SUPPORT CENTER (DPSC) TO INQUIRE WHY HIS FIRM HAD NOT BEEN SOLICITED FOR THIS PROCUREMENT AND TO REQUEST THAT COPIES OF THE RFP BE SENT TO HIM IMMEDIATELY. AT THIS TIMEFOREGGER WAS ADVISED OF THE GOVERNMENT'S DETERMINATION THAT ONLY OHIO CHEMICAL COULD FULFILL THE GOVERNMENT'S MINIMUM REQUIREMENTS AND, ACCORDINGLY, THAT FIRM HAD BEEN DESIGNATED AS THE SOLE SOURCE OF SUPPLY FOR THIS PROCUREMENT. NOTWITHSTANDING THIS DETERMINATION, COPIES OF THE RFP AND ALL APPLICABLE DRAWINGS WERE FURNISHED TO THE FOREGGER COMPANY AND ALSO TO THE MCKESSON APPLIANCE COMPANY, TOLEDO, OHIO, AND THE HARRIS CALORIFIC COMPANY, CLEVELAND, OHIO, IN RESPONSE TO SIMILAR INQUIRIES FROM THESE FIRMS. ON FEBRUARY 28, 1966, THE EXTENDED DATE FOR THE RECEIPT OF PROPOSALS, A REPRESENTATIVE OF OHIO CHEMICAL DELIVERED THAT COMPANY'S PROPOSAL TO THE DPSC. NO OTHER PROPOSALS WERE RECEIVED THAT DAY AND NONE HAVE BEEN RECEIVED SINCE. THE FOREGGER COMPANY PROTESTS THAT IT AS WELL AS OTHER INTERESTED PARTIES SHOULD BE ALLOWED TO PARTICIPATE IN AN OPEN, COMPETITIVE BID ON THIS PROCUREMENT AND THAT THE EXTENDED OPENING DATE WAS FOR THE CONVENIENCE OF OHIO CHEMICAL AND DID NOT ALLOW SUFFICIENT TIME FOR FOREGGER AND THE OTHER FIRMS TO DEVELOP ACCURATE PROPOSALS. AT THIS POINT IT SHOULD BE NOTED AN AWARD WAS MADE TO OHIO CHEMICAL AND SURGICAL EQUIPMENT COMPANY FOR 723 UNITS ON MAY 13, 1966.

GENERALLY, SUPPLIES AND SERVICES FOR THE GOVERNMENT ARE REQUIRED TO BE PROCURED BY FORMAL ADVERTISING. THERE ARE INSTANCES, HOWEVER, WHEN FORMAL ADVERTISING IS NOT FEASIBLE, AND THE PROCUREMENT AGENCY IS, IN SUCH INSTANCES, AUTHORIZED TO NEGOTIATE A PURCHASE OR A CONTRACT. IN THIS REGARD, 10 U.S.C. 2304 (A) (7) PROVIDES AS FOLLOWS:

"/A) PURCHASES OF AND CONTRACTS FOR PROPERTY OR SERVICES COVERED BY THIS CHAPTER SHALL BE MADE BY FORMAL ADVERTISING IN ALL CASES IN WHICH THE USE OF SUCH METHOD IS FEASIBLE AND PRACTICABLE UNDER THE EXISTING CONDITIONS AND CIRCUMSTANCES. IF USE OF SUCH METHOD IS NOT FEASIBLE AND PRACTICABLE, THE HEAD OF AN AGENCY, SUBJECT TO THE REQUIREMENTS FOR DETERMINATIONS AND FINDINGS IN SECTION 2310, MAY NEGOTIATE SUCH A PURCHASE OR CONTRACT, IF---

"/7) THE PURCHASE OR CONTRACT IS FOR MEDICINE OR MEDICAL SUPPLIES; * *

THIS OFFICE HAS BEEN INFORMED BY DPSC THAT AN EXTENDED DELAY, PERHAPS AS MUCH AS FIVE YEARS, COULD RESULT IF THIS PROCUREMENT IS OPENED FOR COMPETITIVE BIDDING BECAUSE OF EXTENSIVE DEVELOPMENT AND TEST PHASES NECESSARY FOR THIS TYPE OF EQUIPMENT. WE FEEL SUCH A DELAY MAKES FORMAL ADVERTISING UNFEASIBLE AND IMPRACTICABLE IN THIS CASE. THUS, DPSC WAS AUTHORIZED BY STATUTE TO PROCURE THE ANESTHESIA APPARATUS BY NEGOTIATION RATHER THAN BY FORMAL ADVERTISING.

THE STATUTE (10 U.S.C. 2304 (G) ( ALSO REQUIRES THAT PROPOSALS SHOULD BE SOLICITED FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES CONSISTENT WITH THE NATURE AND REQUIREMENTS OF THE SUPPLIES OR SERVICES TO BE PROCURED. THE DEFENSE MEDICAL MATERIEL BOARD (DMMB) DETERMINED IN WRITING ON NOVEMBER 1, 1965, THAT "ONLY THE ANESTHESIA APPARATUS AS DESCRIBED ABOVE AND MANUFACTURED BY OHIO CHEMICAL AND SURGICAL EQUIPMENT COMPANY MEETS THE MINIMUM REQUIREMENTS OF THE GOVERNMENT.' THE ARMED SERVICES PROCUREMENT REGULATION, ASPR, PARAGRAPH 3-207.2 (II) REQUIRES, WHENEVER PRACTICABLE, THAT "SUCH ADVANCE PUBLICITY AS IS CONSIDERED SUITABLE WITH REGARD TO THE SUPPLIES INVOLVED AND OTHER RELEVANT CONSIDERATIONS SHALL BE GIVEN FOR A PERIOD OF AT LEAST 15 DAYS BEFORE MAKING A PURCHASE OF OR CONTRACT FOR SUPPLIES OR SERVICES, UNDER THIS AUTHORITY OF THIS PARAGRAPH 3-207, FOR MORE THAN $10,000.' AS NOTED ABOVE, FOREGGER, AS WELL AS MCKESSON APPLIANCE COMPANY AND HARRIS CALORIFIC COMPANY, WAS FURNISHED COPIES OF THE RFP AND ALL APPLICABLE DRAWINGS MORE THAN 15 DAYS BEFORE THE CONTRACT WAS AWARDED.

IN VIEW OF THE FACTS AND CIRCUMSTANCES INVOLVED IN THIS CASE, WE FIND NO ABUSE OF DISCRETION BY THE CONTRACTING OFFICER AND THE PROTEST OF THE FOREGGER COMPANY IS ACCORDINGLY DENIED.