B-146275, SEP. 1, 1961

B-146275, SEP. 1, 1961

TO DEL MAR ENGINEERING LABORATORIES:

WE REFER TO YOUR LETTERS OF JUNE 27 AND AUGUST 17, 1961, WITH ENCLOSURES, PROTESTING AGAINST THE TYPE OF CONTRACT AWARDED UNDER REQUEST FOR QUOTATIONS NO. 0061, ISSUED MAY 19, 1961, BY THE UNITED STATES NAVAL AIR DEVELOPMENT CENTER, JOHNSVILLE, PENNSYLVANIA.

THE REQUEST CALLED FOR QUOTATIONS ON SERVICES AND MATERIAL NECESSARY TO FABRICATE AERO 47 SUPERSONIC TOW TARGETS IN ACCORDANCE WITH NAVAL AIR DEVELOPMENT CENTER DRAWING J-11733, A COPY OF WHICH WAS FURNISHED WITH THE RFQ. QUOTATIONS WERE TO BE SUBMITTED BY JUNE 12, 1961. THE RFQ ALSO CONTAINED ADVICE THAT A "BIDDERS CONFERENCE" WOULD BE HELD ON MAY 26, 1961.

ELEVEN FIRMS, INCLUDING YOURS, SENT REPRESENTATIVES TO THE CONFERENCE AT WHICH THE REQUIREMENTS WERE EXPLAINED AND QUESTIONS RELATIVE TO FABRICATION WERE ANSWERED. BY LETTER OF JUNE 6, 1961, INTERESTED PARTIES WERE FURNISHED DRAWING IJ-11749 PROVIDING DETAILED INFORMATION CONCERNING THE METHOD OF ATTACHMENT OF THE HORIZONTAL AND VERTICAL FINS TO THE AERO 47 SUPERSONIC TOW TARGETS. THIS INFORMATION SUPERSEDED THE FIN ATTACHMENT SCHEME SHOWN ON THE PREVIOUSLY FURNISHED DRAWING.

BY THE DEADLINE DATE, JUNE 12, 1961, QUOTATIONS HAD BEEN RECEIVED FROM 11 FIRMS. YOUR FIRM OFFERED THE LOWEST PRICE FOR 20 TOW TARGETS, $4,568.80. THE NEXT LOW OFFER FOR 20, IN THE AMOUNT OF $15,900, WAS SUBMITTED BY A FIRM WHOSE FACILITIES WERE DETERMINED TO BE INADEQUATE FOR THE PURPOSE. THE THIRD LOW OFFER FOR THE 20, AT $20,140, CAME FROM THE COLONIAL AIRCRAFT CORPORATION.

BY LETTER OF JUNE 21, 1961, FIVE DETAIL DESIGN DRAWINGS WERE SENT THE FIRST AND THIRD LOW QUOTERS. THE THIRD LOW FIRM INCREASED ITS PRICE TO $21,379.60. ON JUNE 27, 1961, YOUR FIRM WAS OFFERED A CONTRACT AT THE QUOTED PRICE. THE NEXT DAY THE CONTRACTING OFFICE RECEIVED A LETTER FROM YOU PROTESTING ANY AWARD FOR REASONS WHICH WILL BE CONSIDERED BELOW. JUNE 30, 1961, YOU SENT A TELEGRAM TO THE CONTRACTING OFFICE INCREASING YOUR PRICE TO $33,660. IN VIEW OF THE INCREASE IN PRICE YOUR QUOTATION WAS NO LONGER LOW. ON THE SAME DAY, JUNE 30, 1961, UPON A DETERMINATION THAT A PROMPT AWARD WOULD BE MOST ADVANTAGEOUS TO THE GOVERNMENT, A CONTRACT WAS ENTERED INTO WITH THE COLONIAL AIRCRAFT CORPORATION AT $21,379.60.

YOU CONTEND THAT THE DRAWINGS FURNISHED WITH THE RFQ WERE INADEQUATE FOR MANUFACTURING PURPOSES WITHOUT ADDITIONAL RESEARCH AND DEVELOPMENT TO OBTAIN DETAILED DESIGN CRITERIA AND SPECIFICATIONS. IN YOUR LETTER OF JUNE 26, 1961, TO THE CONTRACTING OFFICE YOU RAISE 18 QUESTIONS CONCERNING DESIGN WHICH YOU ALLEGE ARE NOT ADEQUATELY COVERED BY THE DRAWINGS FURNISHED WITH THE RFQ. IT IS YOUR POSITION THAT TWO-STEP FORMAL ADVERTISING AS SET OUT IN ASPR 2-501 THROUGH 2 503 SHOULD HAVE BEEN UTILIZED FOR THE PROCUREMENT.

THE CONTRACTING OFFICE, IN CONTRAST TO YOUR POSITION, CONTENDS THAT THE DRAWINGS FURNISHED WITH THE RFQ WERE ADEQUATE FOR THE PREPARATION OF QUOTATIONS. IT IS NOTED FURTHER THAT ALL INTERESTED SUPPLIERS HAD AN OPPORTUNITY TO RAISE ANY QUESTIONS WITH RESPECT TO THE SPECIFICATIONS AT THE ,BIDDERS CONFERENCE" REFERRED TO ABOVE. FINALLY IT IS STATED, AS YOU AGREED IN AN ENCLOSURE TO YOUR LETTER OF AUGUST 17, THAT THE DRAWINGS FURNISHED TO THE RESPONSIBLE FIRMS SUBMITTING THE TWO LOW PROPOSALS ANSWERED ALL OF THE QUESTIONS RAISED IN YOUR LETTER OF PROTEST CONCERNING DESIGN DETAILS, DIMENSIONS, TOLERANCES, ETC.

THE SUBJECT PROCUREMENT WAS NEGOTIATED PURSUANT TO 10 U.S.C. 2304 (A) (1). THE TERMS AND CONDITIONS UPON WHICH PROPOSALS ARE REQUESTED IN NEGOTIATED PROCUREMENTS ARE MATTERS FOR THE ADMINISTRATIVE OFFICE CONCERNED IN THE EXERCISE OF ITS BEST JUDGMENT AS TO THE INTERESTS OF THE GOVERNMENT. IN THIS INSTANCE, THE CONTRACTING OFFICE DETERMINED THAT THE DRAWINGS FURNISHED WITH THE RFQ WERE SUFFICIENTLY DEFINITE TO PERMIT PREPARATION OF PROPOSALS. WHETHER THIS POSITION IS OR IS NOT CORRECT, THE FACT REMAINS THAT YOURS WAS ONE OF THE TWO FIRMS RECEIVING THE LATER DRAWINGS, WHICH YOU CONCEDE ANSWERED ALL OF THE QUESTIONS YOU RAISED CONCERNING DETAIL, AND, SINCE YOU HAD THE RIGHT-- WHICH YOU IN FACT EXERCISED--- TO MODIFY YOUR PROPOSAL AT ANY TIME PRIOR TO ACCEPTANCE TO REFLECT THE ADDITIONAL INFORMATION IN THE LATER DRAWINGS, WE DO NOT FIND THAT YOUR OPPORTUNITY TO PARTICIPATE IN THE PROCUREMENT WAS PREJUDICED MATERIALLY BY THE PROCEDURES FOLLOWED BY THE CONTRACTING OFFICE. IN VIEW OF THE FOREGOING AND OF THE WIDE DISCRETION VESTED IN ADMINISTRATIVE OFFICIALS IN NEGOTIATED PROCUREMENTS, WE CANNOT CONCLUDE THAT THE PARTICULAR PROCUREMENT WAS IMPROPER.