B-142967, OCT. 13, 1960

B-142967, OCT. 13, 1960

TO MMS, INC.:

WE HAVE YOUR LETTER OF JULY 25, 1960, WITH ENCLOSURE, WITH FURTHER REFERENCE TO THE PROCUREMENT OF MAGAZINE ASSEMBLIES FOR THE M14 RIFLE, AND ADVISING THAT THE CANCELLATION OF INVITATION FOR BIDS NO. ORD-19 058-60-75 CONSIDERED IN OUR DECISION OF JULY 18, 1960, TO YOU, WILL NOT RESULT IN ADVANTAGES TO THE GOVERNMENT. YOU NOW CONTEND THAT THE PROCUREMENT OF THE MAGAZINE ASSEMBLIES THROUGH NEGOTIATION PROCEDURES FAVORED CURRENT PRODUCERS AND THAT THE RESULTING CONTRACTS WILL WORK TO THE FINANCIAL DISADVANTAGE OF THE GOVERNMENT.

THE RECORD BEFORE US SHOWS THAT THERE EXISTED AN URGENT PRIORITY REQUIREMENT FOR THE ISSUE OF COMPLETE M14 RIFLES TO TROOPS AND THAT THIS REQUIREMENT RESULTED IN AN EXCEPTIONALLY HEAVY DEMAND ON THE PROCUREMENT AGENCY TO OBTAIN THE MAGAZINE ASSEMBLIES TIMELY. IT IS REPORTED THAT THERE WOULD BE AN URGENT NEED FOR 15,000 MAGAZINE ASSEMBLIES DURING SEPTEMBER, OCTOBER AND NOVEMBER 1960 WHICH COULD NOT POSSIBLY BE MET BY OTHER THAN CURRENT PRODUCERS. HENCE, IT WAS ADMINISTRATIVELY DETERMINED TO PROCURE THE MAGAZINES THROUGH NEGOTIATION PROCEDURES RATHER THAN THROUGH ADVERTISING WHICH WOULD HAVE RESULTED IN EXTENDED DELAYS AND POSSIBLE PRODUCTION DIFFICULTIES. THEREFORE, PROCUREMENT OF THE 45,000 MAGAZINE ASSEMBLIES WAS INITIATED WITH CURRENT PRODUCERS UNDER NEGOTIATION PROCEDURES PURSUANT TO SECTION 3-202, ASPR, WHICH PROVIDES THAT CONTRACTS MAY BE NEGOTIATED UNDER 10 U.S.C. 2304 (A) (2) WHEN "THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING.' AWARD WAS MADE TO BRUNSWICK SPORTS PRODUCTS COMPANY AT $0.9141 PER UNIT UNDER A DELIVERY SCHEDULE WHICH PERMITTED A ONE-MONTH LEAD TIME. WE FEEL THAT THE EXIGENCY OF THIS PROCUREMENT WAS SATISFACTORILY ESTABLISHED BY THE PROCUREMENT AGENCY AND, IN THE ABSENCE OF ANY INDICATION TO THE CONTRARY, WE FIND NO BASIS TO OBJECT TO THE PROCUREMENT.

WHILE TIMELY ACTION WAS TAKEN BY THE PROCUREMENT AGENCY TO RESOLVE THE TECHNICAL DIFFICULTIES WHICH IMPEDED THE MASS PRODUCTION OF THE MAGAZINE ASSEMBLY, SUCH ACTION COULD NOT BE COMPLETED IN TIME SO AS TO RENDER FEASIBLE THE USE OF FORMAL ADVERTISING IN THE PROCUREMENT OF THE REMAINDER OF THE CANCELED INVITATION QUANTITY. IT IS OUR UNDERSTANDING THAT THE ISSUE DEMANDS FOR THE MAGAZINE ASSEMBLIES BEYOND NOVEMBER 1960 COULD NOT BE MET BY REGULAR PROCUREMENT THROUGH FORMAL ADVERTISING SINCE ENGINEERING DATA SET FORTH IN DRAWINGS AND SPECIFICATIONS DID NOT PROVIDE TECHNICAL DATA SUFFICIENT FOR THE PURPOSE OF MANUFACTURING AN ACCEPTABLE PRODUCT BY KNOWN AND READILY AVAILABLE INDUSTRIAL MANUFACTURING TECHNIQUES. HENCE, THE PROCUREMENT AGENCY BELIEVED THAT USE OF CURRENT ENGINEERING DATA WOULD HAVE UNDULY FAVORED CURRENT PRODUCERS AND POSSIBLY WOULD HAVE BEEN INHERENTLY MISLEADING TO OTHERWISE UNINFORMED BIDDERS. ACCORDINGLY, IT WAS ADMINISTRATIVELY DETERMINED TO PROCURE THE REMAINING 115,012 UNITS BY NEGOTIATION PURSUANT TO 10 U.S.C. 2304 (A) (10) AND SECTION 3-210, ASPR, AUTHORIZING NEGOTIATION WHEN IT IS IMPRACTICABLE TO OBTAIN COMPETITION.

AS YOU KNOW, ALL BIDDERS UNDER THE CANCELED INVITATION WERE REQUESTED TO SUBMIT PROPOSALS AND TO ATTEND A PRE-NEGOTIATION CONFERENCE. THE ABSTRACT OF PROPOSALS RECEIVED SHOWS THE RELATIVE POSITION OF THE OFFERORS.

TABLE DISCO TOOL AND DIE CO. $103,395.79 ATWOOD VACUUM MACH.CO.

108,225.09 ROCHESTER MFG.CO. 131,803.75 MMS, INC. 141,050.00 BRUNSWICK SPORTS PRODUCTS CO.

142,419.36 WESTINGHOUSE ELEC.CO. 171,367.88 WEATHERHEAD CO.

227,723.76

THE LOW PROPOSAL OF DISCO TOOL AND DIE WAS REJECTED ON THE BASIS OF A PRE -AWARD SURVEY AND ACTION OF THE SMALL BUSINESS ADMINISTRATION. SINCE ATWOOD WAS THE LOWEST RESPONSIBLE OFFEROR, AWARD WAS MADE TO IT FOR THE REMAINING UNITS TO BE PROCURED. WE FIND THAT THE AWARD OF THIS PROCUREMENT WAS IN ACCORDANCE WITH THE APPLICABLE REGULATIONS CONTAINED IN SECTION 3 OF THE ASPR AND AS REPRESENTING THE MOST PRACTICAL METHOD OF OBTAINING THESE URGENTLY NEEDED SUPPLIES. CONSIDERING THE CRITICAL ASPECTS OF THESE PROCUREMENTS, WE ARE NOT DISPOSED TO QUESTION THE COSTS THEREOF ON THE BASIS OF YOUR REPRESENTATIONS.

ACCORDINGLY, AND SINCE THE DETERMINATIONS REQUIRED BY SECTION 3 210.3, ASPR, ADEQUATELY SUPPORT THE ACTIONS TAKEN AS BEING IN THE BEST INTERESTS OF THE GOVERNMENT, WE WOULD NOT BE JUSTIFIED IN OBJECTING TO THE PROCUREMENT OF THE MAGAZINE ASSEMBLIES UNDER THE NEGOTIATION PROCEDURES UTILIZED. SEE 38 COMP. GEN. 44.