B-146275, NOV. 6, 1961

B-146275: Nov 6, 1961

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TO DEL MAR ENGINEERING LABORATORIES: WE HAVE YOUR LETTER OF SEPTEMBER 15. WAS DENIED IN THE TELEGRAM DATED JUNE 9. THE LETTER OF JUNE 21 STATED AS FOLLOWS: "FORWARDED HEREWITH ARE COPIES OF DETAIL DRAWINGS FOR USE IN FABRICATION OF THE SUPERSONIC TOW TARGET SPECIFIED IN RFQ 0061.'. IT IS DIFFICULT TO PERCEIVE HOW THIS LETTER COULD HAVE STATED IN MORE EXPLICIT TERMS THAT THESE WERE DRAWINGS OF THE TARGETS DESCRIBED IN RFQ 0061. WE FEEL THAT IT WAS UNREASONABLE TO CONCLUDE THAT THE DRAWINGS REFERRED TO ANYTHING OTHER THAN THE TARGETS DESCRIBED IN THE ORIGINAL REQUEST FOR QUOTATIONS. THE LANGUAGE USED IN THE LETTER PRECLUDES ANY SERIOUS CONTENTION THAT THE DRAWINGS REFERRED TO A SECOND REQUIREMENT WHICH WAS SEPARATE AND DISTINCT FROM THE FIRST.

B-146275, NOV. 6, 1961

TO DEL MAR ENGINEERING LABORATORIES:

WE HAVE YOUR LETTER OF SEPTEMBER 15, 1961, WITH ENCLOSURE, REQUESTING RECONSIDERATION OF OUR DECISION OF SEPTEMBER 1, 1961, REGARDING THE PROCEDURES FOLLOWED BY THE CONTRACTING OFFICE UNDER REQUEST FOR QUOTATIONS NO. 0061, ISSUED MAY 19, 1961, BY THE UNITED STATES NAVAL AIR DEVELOPMENT CENTER, JOHNSVILLE, PENNSYLVANIA.

YOU SUGGEST THAT WE LACKED COMPLETE INFORMATION AND YOU FURNISH A COPY OF YOUR TELEGRAM OF JUNE 30, 1961, TO THE CONTRACTING OFFICE. YOU CONTEND THAT THE TELEGRAM CANNOT BE CONSIDERED AS INCREASING THE PRICE OF YOUR ORIGINAL OFFER IN RESPONSE TO RFQ 0061 AND YOU REGARD THIS FACT AS SIGNIFICANT IN VIEW OF YOUR STATED BELIEF THAT THE NAVY HAD TWO SEPARATE AND DISTINCT REQUIREMENTS, ONE FOR THE TARGETS DESCRIBED IN RFQ 0061 AND A SECOND FOR TARGETS DESCRIBED IN THE FIVE DETAIL DRAWINGS FURNISHED TO YOU BY LETTER OF JUNE 21, 1961. YOU POINT OUT THAT YOUR REQUEST FOR AN EXTENSION OF THE CLOSING DATE OF RFQ 0061, JUNE 12, 1961, WAS DENIED IN THE TELEGRAM DATED JUNE 9, 1961, FROM THE CONTRACTING OFFICER.

THE LETTER OF JUNE 21 STATED AS FOLLOWS: "FORWARDED HEREWITH ARE COPIES OF DETAIL DRAWINGS FOR USE IN FABRICATION OF THE SUPERSONIC TOW TARGET SPECIFIED IN RFQ 0061.' IT IS DIFFICULT TO PERCEIVE HOW THIS LETTER COULD HAVE STATED IN MORE EXPLICIT TERMS THAT THESE WERE DRAWINGS OF THE TARGETS DESCRIBED IN RFQ 0061. UNDER THE CIRCUMSTANCES, WE FEEL THAT IT WAS UNREASONABLE TO CONCLUDE THAT THE DRAWINGS REFERRED TO ANYTHING OTHER THAN THE TARGETS DESCRIBED IN THE ORIGINAL REQUEST FOR QUOTATIONS. THE LANGUAGE USED IN THE LETTER PRECLUDES ANY SERIOUS CONTENTION THAT THE DRAWINGS REFERRED TO A SECOND REQUIREMENT WHICH WAS SEPARATE AND DISTINCT FROM THE FIRST.

DESPITE THE EARLIER REFUSAL OF AN EXTENSION OF THE CLOSING TIME, IT WAS APPARENT THAT YOU WERE BEING AFFORDED AN OPPORTUNITY TO REVISE YOUR QUOTATION BASED ON THE SPECIFICATIONS CONTAINED IN THE DETAIL DRAWINGS. IN YOUR TELEGRAM OF JUNE 30 YOU TOOK ADVANTAGE OF THE OPPORTUNITY TO QUOTE A PRICE OF $1,683 PER TARGET FOR 20 TARGETS AS COMPARED TO YOUR ORIGINAL QUOTATION OF $228.44 PER TARGET FOR 20 TARGETS. THIS RESULTED IN A TOTAL PRICE OF $33,660, WHICH WAS SUBSTANTIALLY HIGHER THAN THE TOTAL PRICE OF $21,379.60 OFFERED BY COLONIAL AIRCRAFT AFTER RECEIPT OF THE DETAIL DRAWINGS.

YOUR TELEGRAM OF JUNE 30 REQUESTED AUTHORITY TO CHANGE THE CONTRACT PROPOSED UNDER RFQ 0061 IF YOUR NEW QUOTATION WAS ACCEPTABLE. THAT REQUEST, TOGETHER WITH YOUR STATEMENT THAT THE BASIC ASSUMPTIONS UPON WHICH YOUR ORIGINAL QUOTATION WAS BASED HAD TO BE DRASTICALLY CHANGED TO COMPLY WITH THE DRAWINGS, MADE IT IRRELEVANT FOR YOU TO ADD THAT YOUR ORIGINAL QUOTATION, BASED ON SUCH ERRONEOUS ASSUMPTIONS, WAS STILL OPEN SINCE THE GOVERNMENT HAD ONLY ONE REQUIREMENT WHICH WAS CLEARLY STATED. WE CANNOT, THEREFORE, REGARD YOUR TELEGRAM OF JUNE 30 AS EVIDENCE TO SUPPORT YOUR CONTENTION THAT YOU WERE PREJUDICED BY THE PROCEDURES USED IN THIS PROCUREMENT AND FOR THIS REASON THE TELEGRAM WAS NOT DISCUSSED IN OUR DECISION OF SEPTEMBER 1, 1961, ALTHOUGH THE DEPARTMENT OF THE NAVY FURNISHED A COPY OF THE TELEGRAM AS A PART OF THE RECORD WHICH WE CONSIDERED BEFORE ARRIVING AT OUR DECISION.

WE MUST POINT OUT AGAIN THAT THIS PROCUREMENT WAS NEGOTIATED PURSUANT TO 10 U.S.C. 2304 (A) (1) AND THAT PROCEDURES WHICH MIGHT NOT BE ACCEPTABLE IN FORMAL ADVERTISING ARE PERMITTED IN NEGOTIATION. THE TERMS AND CONDITIONS OF REQUESTS FOR QUOTATIONS ARE WITHIN THE ADMINISTRATIVE DISCRETION OF THE PROCURING AGENCY WITH THE PRIMARY LIMITATION THAT NEGOTIATION BE CONDUCTED IN THE BEST INTEREST OF THE GOVERNMENT. IN THIS INSTANCE, ALL OFFERORS WERE ADVISED, ON PAGE 3 OF RFQ 0061, OF THE POSSIBILITY OF AWARD ON THE BASIS OF INITIAL PROPOSALS WITHOUT FURTHER DISCUSSION AND WERE WARNED TO SUBMIT THEIR MOST FAVORABLE TERMS INITIALLY. THE DECISION TO ALLOW AN ADDITIONAL QUOTATION ON THE BASIS OF THE DETAIL DRAWINGS WAS NOT AN INDICATION THAT NEGOTIATIONS WOULD BE PROLONGED INDEFINITELY. THE PRICE YOU OFFERED FOR THE GOVERNMENT'S STATED REQUIREMENT AS SET FORTH IN RFQ 0061 AND THE DETAIL DRAWINGS WAS MORE THAN 50 PERCENT HIGHER THAN THE PRICE QUOTED BY COLONIAL AIRCRAFT CORPORATION. WE DO NOT PROPOSE TO ENTER INTO SPECULATION WHETHER PROLONGED NEGOTIATION WITH YOUR COMPANY WOULD HAVE RESULTED IN A REDUCTION OF YOUR QUOTATION SINCE YOU HAD NO REASON TO EXPECT SUCH NEGOTIATION. THERE IS NOTHING IN THE RECORD TO REFUTE THE CONTRACTING OFFICER'S DETERMINATION OF JUNE 30, 1961, THAT A PROMPT AWARD WOULD BE MOST ADVANTAGEOUS TO THE GOVERNMENT.

ALTHOUGH WE CAN APPRECIATE THAT YOU WERE DISAPPOINTED BY YOUR FAILURE TO RECEIVE AN AWARD IN THIS PROCUREMENT, FOR THE REASONS STATED WE MUST CONCLUDE THAT THE CIRCUMSTANCES INVOLVED HERE PROVIDE NO SUPPORT FOR YOUR CONTENTION THAT YOUR RIGHTS WERE PREJUDICED AND WE FIND NO BASIS FOR OBJECTION TO THE ACTIONS OF THE ADMINISTRATIVE OFFICIALS IN THIS NEGOTIATION.

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