B-166229, OCT. 1, 1969

B-166229: Oct 1, 1969

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OFFEROR WHO QUESTIONED PROPRIETY OF NEGOTIATION UNDER PUBLIC EXIGENCY EXCEPTION WHEN DELIVERY REQUIREMENTS WERE EXTENDED AND WHO WAS CONSIDERED OUTSIDE COMPETITIVE RANGE. WAS PROPERLY NOT CONSIDERED FOR AWARD. SINCE IN VIEW OF FACT THAT PROPOSED PRICE AND DELIVERY SCHEDULE WERE SUBSTANTIALLY GREATER THAN PROPOSALS FOUND TO BE WITHIN COMPETITIVE RANGE. ADMINISTRATIVE DISCRETION WAS NOT ABUSED. UNDER 10 U.S.C. 2310(B) ADMINISTRATIVE DETERMINATIONS REGARDING DECISIONS TO NEGOTIATE UNDER PUBLIC EXIGENCY EXCEPTION (10 U.S.C. 2304 (A) (2)) ARE FINAL. INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 14. ITEM NO. 1 OF THE INVITATION WAS FOR TWO 300 KW VAN MOUNTED. ITEM NO. 2 WAS FOR EIGHT 115 KW.

B-166229, OCT. 1, 1969

NEGOTIATION--PUBLIC EXIGENCY--DELIVERY SCHEDULE, PRICE, ETC. UNDER REQUEST FOR PROPOSALS FOR GENERATOR SETS, OFFEROR WHO QUESTIONED PROPRIETY OF NEGOTIATION UNDER PUBLIC EXIGENCY EXCEPTION WHEN DELIVERY REQUIREMENTS WERE EXTENDED AND WHO WAS CONSIDERED OUTSIDE COMPETITIVE RANGE, WAS PROPERLY NOT CONSIDERED FOR AWARD, SINCE IN VIEW OF FACT THAT PROPOSED PRICE AND DELIVERY SCHEDULE WERE SUBSTANTIALLY GREATER THAN PROPOSALS FOUND TO BE WITHIN COMPETITIVE RANGE, ADMINISTRATIVE DISCRETION WAS NOT ABUSED, AND UNDER 10 U.S.C. 2310(B) ADMINISTRATIVE DETERMINATIONS REGARDING DECISIONS TO NEGOTIATE UNDER PUBLIC EXIGENCY EXCEPTION (10 U.S.C. 2304 (A) (2)) ARE FINAL.

TO RAY C. CALL, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 14, 1969, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER TWO SEPARATE SOLICITATIONS.

THE FIRST PART OF YOUR PROTEST CONCERNS INVITATION FOR BIDS NO. DSA 700- 69-B-1249, ISSUED ON NOVEMBER 19, 1968, BY THE DEFENSE SUPPLY AGENCY, DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC).

ITEM NO. 1 OF THE INVITATION WAS FOR TWO 300 KW VAN MOUNTED, DIESEL GENERATOR POWER UNITS TO BE IN ACCORDANCE WITH THE SPECIFICATIONS REFERRED TO AS ATTACHMENT NO. 1, TO BE SHIPPED F. O. B. DESTINATION TO THE JOHN F. KENNEDY SPACE CENTER (KSC), NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA). ITEM NO. 2 WAS FOR EIGHT 115 KW, PORTABLE, DIESEL DRIVEN, GENERATOR SETS TO BE IN ACCORDANCE WITH THE SPECIFICATIONS REFERRED TO AS ATTACHMENT NO. 2, ALSO TO BE SHIPPED F.O.B. DESTINATION TO KSC.

THE INVITATION CONTAINED THE FOLLOWING DESCRIPTIVE LITERATURE REQUIREMENT UNDER ITEM NO. 1:

REQUIREMENT FOR DESCRIPTIVE LITERATURE (OCT. 1960)

"/A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO "A. DIESEL ENGINE - MAKE, MODEL, BRAKE HORSEPOWER, SPEED (RPM), TYPE OF FUEL FOR MAXIMUM EFFICIENCY, BREAK MEAN EFFECTIVE PRESSURE (BMEP), COOLING SYSTEM, LUBRICATION, ELECTRICAL AND FUEL OIL SYSTEMS, TYPE OF AIR CLEANER, MUFFLER -SPARK ARRESTOR CONFIGURATION, BATTERIES, AND AUTO CRANK CONTROL.'B. GOVERNOR SYSTEM - TYPE, MAKE, AND MODEL OF GOVENOR, STEADY STATE FREQUENCY CONDITIONS, AND RESPONSE.'C. GENERATOR ENGINE CONTROL PANEL - INDICATE ALL THE INSTRUMENTS AND DEVICES TO BE FURNISHED.'D. ENGINE SAFETY DEVICES - ALL SAFETY DEVICES TO BE FURNISHED.'E. ALTERNATOR - MAKE AND MODEL OF ALTERNATOR, KILOWATT CAPACITY VOLTAGE, CYCLES, POWER FACTOR, AUTOMATIC DISTORTION, SHORT CIRCUIT PROTECTION, ENCAPSULATION.'F. EXCITOR AND VOLTAGE REGULATOR - MAKE, MODEL, TYPE, SENSING, UNDER CONTROL AND ANTI HUNT CHARACTERISTICS, SAFETY CONTROL FOR UNDER AND OVER VOLTAGE AND FORWARD CURRENTS, VOLTAGE ADJUSTMENT RANGE, PROVISIONS FOR REMOTE CONTROL, RECOVERY TIME, PARALLEL OPERATION.'G. OPERATING PANEL - GENERATOR - INDICATE ALL CONTROLS AND INSTRUMENTATION THAT WILL BE MOUNTED ON THE OPERATING PANEL, INCLUDING FAULT INDICATING SYSTEM, UNDER/OVER VOLTAGE AND UNDER FREQUENCY CABLES, REMOTE CONTROLS.'H. TRAILER - TYPE OF TRAILER TO BE FURNISHED, STEERING, AXLES, WHEELS, BEARINGS, TIRES, SERVICE BRAKES, PARKING BRAKE, HOUSING, WEIGHT OF LUNETTE, HOOK-UP OF LIGHTS AND TURN SIGNALS, FUEL TANK CAPACITY AND WHERE MOUNTED.

"/B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE, IT MAY BE CONSIDERED UNDER THE PROVISIONS FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.' THE DESCRIPTIVE LITERATURE REQUIREMENT UNDER ITEM NO. 2 WAS SUBSTANTIALLY THE SAME AS THE ONE UNDER ITEM NO. 1.

BIDS WERE OPENED ON DECEMBER 19, 1968, AND THE 5 LOWEST BIDS RECEIVED IN ORDER OF PRICE WERE AS FOLLOWS:

BIDDER ITEM 1 ITEM 2 DISCOUNT

------ ------ ------ -------- 1. PRICE INDUSTRIES, INC.

$30,750 $17,750 NET 2. A. G. SCHOONMAKER CO. 35,000 20,000 NET 3. RAY C CALL, INC 36,288 21,975 NET 4. MELLEY MOTOR SUPPLY, INC.

37,673 21,063 1/2 PERCENT

20 DAYS 5. HOLT BROS.

42,047 26,131 NET

ALL OF THE ABOVE 5 BIDDERS SUBMITTED DESCRIPTIVE LITERATURE WITH THE EXCEPTION OF A. G. SCHOONMAKER; CONSEQUENTLY, THE BID FROM THAT FIRM WAS NOT CONSIDERED FURTHER. DSA FORWARDED THE DESCRIPTIVE LITERATURE FURNISHED BY THE OTHER BIDDERS TO KSC FOR EVALUATION. KSC'S TECHNICAL EVALUATION WHICH WAS FORWARDED TO DCSC BY LETTER DATED JANUARY 8, 1969, INDICATED THAT ONLY THE LITERATURE SUBMITTED BY MELLEY MOTOR SUPPLY, INCORPORATED, WAS RESPONSIVE TO THE DESCRIPTIVE LITERATURE REQUIREMENTS OF BOTH ITEMS NOS. 1 AND 2. ON JANUARY 28, 1969, AWARD WAS MADE TO MELLEY MOTOR SUPPLY AS THE LOW RESPONSIVE, RESPONSIBLE BIDDER.

KSC'S TECHNICAL EVALUATION INDICATES THAT RAY C. CALL'S BID WAS DETERMINED TO BE NONRESPONSIVE FOR THE FOLLOWING DEFICIENCIES IN THE DESCRIPTIVE LITERATURE FURNISHED WITH THAT BID:

"/1) ITEM 1, 300 KW GENERATOR SET

"/A) THE BATTERIES PROPOSED ARE TYPE 8D, THE SPECIFICATIONS REQUIRE TYPE 4D. (PARAGRAPH 5.1.8)

"/B) THE INFORMATION ON VOLTAGE RESPONSE, AS REQUIRED UNDER DESCRIPTIVE LITERATURE, WAS NOT FURNISHED. NO DETAILED INFORMATION WAS FURNISHED ON THE ALTERNATOR THEREFORE IT WAS IMPOSSIBLE TO DETERMINE THE RESPONSE. (PARAGRAPH 5.6)

"/C) NO INFORMATION WAS FURNISHED ON THE FUEL OIL SYSTEM; I.E., FILTER SYSTEM. (PARAGRAPH 5.1.3)

"/D) NO DETAILS WERE FURNISHED ON THE ENGINE COOLING SYSTEM. (PARAGRAPH 5.1.1)

"/E) NO INFORMATION WAS FURNISHED ON THE TYPE AIR CLEANERS, IF ANY, TO BE SUPPLIED. (PARAGRAPH 5.1.5)

"/F) THERE IS NO REMOTE CONTROL CAPABILITY INDICATED IN THIS PROPOSAL. (PARAGRAPH 6.4)

"/2) ITEM 2, 115 KW GENERATOR SET

"/A) THE ENGINE PROPOSED IS AN IN-LINE TYPE, NOT V-TYPE AS REQUIRED BY THE SPECIFICATIONS. (PARAGRAPH 5.1)

"/B) THE BATTERIES PROPOSED ARE TYPE 8D, THE SPECIFICATIONS REQUIRE TYPE 4D. (PARAGRAPH 5.1.8)

"/C)THE INFORMATION ON THE VOLTAGE RESPONSE, AS REQUIRED UNDER DESCRIPTIVE LITERATURE, WAS NOT FURNISHED. NO DETAILED INFORMATION WAS FURNISHED ON THE ALTERNATOR, THEREFORE IT IS IMPOSSIBLE TO DETERMINE THE RESPONSE. (PARAGRAPH 5.6)

"/D) NO INFORMATION WAS FURNISHED ON THE FUEL OIL SYSTEM; I.E., FILTER SYSTEM. (PARAGRAPH 5.1.3)

"/E) NO DETAILS ON THE ENGINE COOLING SYSTEM. (PARAGRAPH 5.1.1.)

"/F) THERE IS NO REMOTE CONTROL CAPABILITY INDICATED IN THIS PROPOSAL. (PARAGRAPH 6.4)"

YOUR PROTEST URGES THAT UNDER THE ADVERTISED SOLICITATION CONSIDERED IN OUR DECISION TO YOU, B-164444, SEPTEMBER 18, 1968, YOUR BID WAS FOUND TO BE RESPONSIVE BUT YOU WERE NOT AWARDED THE CONTRACT SINCE ANOTHER CONCERN, MELLEY MOTOR SUPPLY, SUBMITTED THE LOW BID. IT IS URGED THAT THE SPECIFICATIONS UNDER THE PRIOR PROCUREMENT WERE SUBSTANTIALLY THE SAME AS THE SPECIFICATIONS IN THIS PROCUREMENT. YOU THEREFORE QUESTION WHY YOUR BID WAS CONSIDERED RESPONSIVE TO THE PRIOR SOLICITATION BUT NOT RESPONSIVE TO THE PRESENT SOLICITATION. YOUR PROTEST ASKS WHETHER THERE IS DISCRIMINATION IN FAVOR OF ONE PARTICULAR BIDDER AT KSC. YOUR LETTER ESTIMATES THAT MELLEY MOTOR SUPPLY HAS BEEN AWARDED CONTRACTS IN EXCESS OF $918,000 BY KSC AT A PROFIT IN EXCESS OF 30 PERCENT.

WE HAVE REVIEWED AN ANALYSIS MADE BY NASA OF THE VARIOUS SPECIFICATIONS FOR GENERATOR SETS. NASA'S ANALYSIS INDICATES THAT YOU ARE CORRECT IN YOUR CONTENTION THAT THE SPECIFICATIONS FOR THE FIVE 300 KW GENERATOR SETS UNDER INVITATION FOR BIDS NO. CC-304-8, ISSUED MARCH 18, 1968, THE INVITATION CONSIDERED IN OUR DECISION, B-164444, SEPTEMBER 18, 1968, ARE BASICALLY THE SAME AS THE SPECIFICATIONS FOR THE INSTANT PROCUREMENT. THE MAJOR CHANGES IN THE TWO SPECIFICATIONS ARE STATED TO BE THE REVISION OF THE NUMBERING SYSTEM AND THE PROCUREMENT OF SKID-MOUNTED GENERATORS RATHER THAN THE TRAILER MOUNTED, SHEET METAL ENCLOSED UNITS.

THE SOLICITATION UNDER INVITATION FOR BIDS NO. CC-304-8, ALSO CONTAINED A DESCRIPTIVE LITERATURE REQUIREMENT. NASA'S REPORT TO OUR OFFICE DOES NOT DISCLOSE WHETHER AND TO WHAT EXTENT YOUR DESCRIPTIVE LITERATURE SUBMITTED TO THE PRIOR PROCUREMENT DIFFERED FROM THE DESCRIPTIVE LITERATURE SUBMITTED TO THE INSTANT PROCUREMENT. WE HAVE REQUESTED A REPORT FROM NASA ON THE TECHNICAL DIFFERENCES, IF ANY, IN THE DESCRIPTIVE LITERATURE REQUIREMENTS OF THE TWO SOLICITATIONS. ALSO, WE HAVE REQUESTED A REPORT ON THE DIFFERENCES, IF ANY, IN THE DESCRIPTIVE LITERATURE SUBMITTED BY YOUR CONCERN TO THE TWO PROCUREMENTS. IN THE CIRCUMSTANCES WE WILL LEAVE OPEN OUR DECISION ON THIS ASPECT OF YOUR PROTEST UNTIL NASA'S SUPPLEMENTAL REPORT ON THESE QUESTIONS HAS BEEN RECEIVED AND REVIEWED BY OUR OFFICE.

THE PROCUREMENT OFFICER STATES THAT THERE IS NO RECORD EVIDENCE AVAILABLE AT KSC TO INDICATE PROFITS IN EXCESS OF 10 PERCENT ON CONTRACTS WITH MELLEY MOTOR SUPPLY. MELLEY MOTOR SUPPLY HAS CERTIFIED THAT THE PROFIT ON ELECTRIC GENERATOR SETS FURNISHED TO KSC HAS NEVER EXCEEDED 10 PERCENT OF THE TOTAL CONTRACT PRICE. SINCE YOUR CONTENTION CONCERNING EXCESS PROFITS IS UNSUBSTANTIATED WE HAVE NO BASIS FOR QUESTIONING THE INFORMATION FURNISHED BY KSC ON THIS POINT.

THE SECOND PART OF YOUR PROTEST CONCERNS REQUEST FOR PROPOSALS (REP) NO. 3-155-9, ISSUED ON JANUARY 6, 1969, BY KSC FOR SIX 30 KW TRAILER MOUNTED GENERATOR SETS UNDER ITEM NO. 1 AND TECHNICAL MANUALS UNDER ITEM NO. 1A. THIS SOLICITATION WAS NEGOTIATED PURSUANT TO THE PUBLIC EXIGENCY EXCEPTION TO THE ADVERTISING REQUIREMENTS IN 10 U.S.C. 2304 (A) (2). IN REVIEWING THIS PROCUREMENT WE WILL CONSIDER IT FROM THE POINT OF VIEW OF NASA'S REASONS FOR INVOKING THE PUBLIC EXIGENCY EXCEPTION AND THE REASONS WHY YOU WERE NOT THE SUCCESSFUL OFFEROR TO THIS PROCUREMENT.

THE REP INITIALLY HAD A DESIRED DELIVERY DATE OF 30 DAYS AND A REQUIRED DELIVERY DATE OF 45 DAYS. AMENDMENT NO. 2 TO THE SOLICITATION, ISSUED JANUARY 16, 1969, INCREASED THE QUANTITY FROM SIX TO ELEVEN GENERATOR SETS; EXTENDED THE OPENING DATE FROM JANUARY 21, 1969 TO JANUARY 28, 1969; AND REVISED THE DELIVERY REQUIREMENTS AS FOLLOWS:

DESIRED DELIVERY: 3 EACH - 30 DAYS

3 EACH - 60 DAYS 5 EACH -

90 DAYS

REQUIRED DELIVERY: 2 EACH - 45 DAYS

2 EACH - 60 DAYS 7 EACH -

90 DAYS

A MEMORANDUM IN THE FILE FROM THE CHIEF, PLANT ENGINEERING AND MAINTENANCE, KSC, DATED DECEMBER 20, 1968, STATES THAT THE 30 KW GENERATORS ARE URGENTLY REQUIRED FOR THE LAUNCH OF THE AS-504 AND SUBSEQUENT LAUNCHES. THIS MEMORANDUM FURTHER STATES: "3. INCREASED REQUIREMENTS, WHICH HAVE BEEN GENERATED DURING PREPARATION FOR LAUNCH OF AS-503, AS WELL AS BREAKDOWN OF EXISTING EQUIPMENT WHICH IS BEYOND THE POINT OF ECONOMICAL REPAIR, NECESSITATES THIS EMERGENCY ACTION. THE EXISTING EQUIPMENT, WHICH FAILED, WAS OBTAINED FROM GOVERNMENT SURPLUS AND IS IN EXCESS OF TEN YEARS OLD. INCREASED USAGE HAS SHORTENED THE EXPECTED USEFUL LIFE. ADDITIONAL GENERATORS ARE REQUIRED AT KSC TO SUPPORT THE TITAN III PROGRAM.'4. FAILURE TO OBTAIN THESE GENERATORS COULD RESULT IN SLIPPAGE OF THE APOLLO/SATURN PROGRAM AND/OR THE TITAN III R-AND-D PROGRAM.' A SIMILAR MEMORANDUM APPEARS WITH RESPECT TO THE FIVE GENERATOR UNITS WHICH WERE ADDED TO THE SOLICITATION BY AMENDMENT NO. 2.

THE BACKGROUND FOR THIS PROCUREMENT IS SUMMARIZED IN NASA'S REPORT AS FOLLOWS: "SIXTY-FIVE POTENTIAL SOURCES WERE FURNISHED COPIES OF THE RFP AND SIX PROPOSALS WERE RECEIVED. IN THE INTERVAL BETWEEN JANUARY 29 AND FEBRUARY 26, 1969, THE SIX PROPOSALS WERE TECHNICALLY EVALUATED. FEBRUARY 26, 1969, ALL SIX PROPOSERS WERE REQUESTED TO FURNISH ADDITIONAL OR CLARIFYING TECHNICAL DATA TO DETERMINE THE ACCEPTABILITY OF THEIR OFFERS AND, IN ADDITION, RAY C. CALL AND * * * ANOTHER OFFEROR, WERE REQUESTED TO SUBMIT REVISIONS CONFORMING AS NEARLY AS POSSIBLE TO THE REQUIRED DELIVERY SCHEDULE. * * * (THIRD OFFEROR) RECEIVED THE SAME REQUEST DURING SUBSEQUENT ORAL DISCUSSIONS. IN LETTER OF MARCH 4, 1969 * * *, RAY C. CALL SUBMITTED A REVISED DELIVERY SCHEDULE; HOWEVER, THE SCHEDULE PROPOSED STILL DID NOT MEET GOVERNMENT REQUIREMENTS. * * * (TWO OTHER OFFERORS) AGREED TO MEET THE REQUIRED DELIVERY SCHEDULE.'NOTWITHSTANDING THAT THE RAY C. CALL PROPOSAL DID NOT MEET DELIVERY REQUIREMENTS, ITS PROPOSAL AND THE FIVE OTHERS RECEIVED WERE DETERMINED TO BE TECHNICALLY ACCEPTABLE. ACCORDINGLY, DURING THE PERIOD APRIL 11, 1969, TO MAY 1, 1969, ACTION WAS TAKEN TO EVALUATE THE PRICE OFFERS BY OBTAINING COST AND PRICING INFORMATION. AFTER ANALYSIS OF THE REVISED PRICE PROPOSALS SUBMITTED BY THE SIX OFFERORS, IT WAS DETERMINED THAT THE PRICES SUBMITTED BY RAY C. CALL AND (ANOTHER FIRM) WERE NOT WITHIN THE COMPETITIVE RANGE. ACCORDINGLY, THESE TWO PROPOSERS WERE NOTIFIED ON MAY 1, 1969 * * *, THAT THEIR PROPOSALS WOULD NOT RECEIVE FURTHER CONSIDERATION. ON THE SAME DATE THE REMAINING FOUR PROPOSERS WERE NOTIFIED BY TELEGRAM * * * THAT THE FINAL DATE FOR CLOSE OF NEGOTIATIONS WAS MAY 8, 1969, AND THAT ANY PRICE OR TECHNICAL REVISION RECEIVED AFTER THAT DATE WOULD BE TREATED AS A LATE PROPOSAL. FURTHER NEGOTIATIONS WERE CONDUCTED WITH THESE FIRMS. AT THE CLOSE OF NEGOTIATIONS, MELLEY'S PRICE OF $134,090 WAS THE LOWEST RECEIVED FROM THE FOUR TECHNICALLY ACCEPTABLE PROPOSERS * * *. ACCORDINGLY, IN VIEW OF THE URGENT REQUIREMENT FOR THE EQUIPMENT (AS HEREINAFTER DISCUSSED), THE NASA DIRECTOR OF PROCUREMENT AUTHORIZED KSC ON MAY 22, 1969, TO PROCEED WITH AWARD OF A CONTRACT TO MELLEY MOTOR SUPPLY, INC. * * *.'

THE REPORT GOES ON TO STATE THAT GENERAL ACCOUNTING OFFICE WAS ADVISED PROMPTLY OF THE AWARD.

THE FOLLOWING QUOTATION CONCERNS SEVERAL ADDITIONAL CONTENTIONS BY RAY C. CALL WHICH HAVE BEEN BROUGHT TO NASA'S ATTENTION AND NASA'S REPLY TO THESE CONTENTIONS:

"* * * THAT THE DELIVERY REQUIREMENTS OF RFP 3-155-9, AS AMENDED, WOULD BE IMPOSSIBLE TO MEET UNLESS CALL WAS GIVEN A 60 DAY LEAD TIME TO ORDER SUPPLIES; THAT KSC'S REQUEST FOR A 60 DAY EXTENSION OF THE PROPOSAL ACCEPTANCE DATE WAS NOT COMPATIBLE WITH THE CENTER'S STATED URGENT NEED, AND THAT THE DELAY WOULD GIVE ANOTHER OFFEROR (PRESUMABLY MELLEY) SUFFICIENT LEAD TIME TO ORDER MATERIEL -IF HE HAD PRIOR KNOWLEDGE THAT HE WOULD GET THE AWARD.'"OUR (NASA-S) COMMENTS ON CALL'S REMARKS WILL FOLLOW. AT THE TIME THE RFP WAS ISSUED (JANUARY 6, 1969), AN URGENT NEED EXISTED FOR THE GENERATOR SETS IN ORDER TO PROVIDE SUPPORT FOR AS504 (APOLLO IX) AND SUBSEQUENT LAUNCHES * * *. AS A MATTER OF FACT, OLD EQUIPMENT HAD TO BE REPAIRED AND USED AS BACK-UP SPARES FOR THE LAUNCH OF AS504 (APOLLO IX) AND AS505 (APOLLO X). THE ORIGINAL DELIVERY REQUIREMENT OF 45 DAYS WAS RELAXED BECAUSE IT WAS DETERMINED THAT THE NUMBER OF ENGINEERING HOURS REQUIRED WOULD MAKE IT IMPOSSIBLE FOR ANY OFFEROR TO DELIVER THE GENERATORS WITHIN THAT TIME FRAME * * *. WITH REGARD TO KSC'S REQUEST TO PROPOSERS THAT THEY EXTEND THEIR PROPOSAL ACCEPTANCE DATES, THIS REQUEST WAS MADE TO PERMIT CAREFUL EVALUATION OF PROPOSALS AND TO ASSURE THAT NONE OF THE PROPOSALS WOULD BE ELIMINATED DUE TO EXPIRATION OF PROPOSAL ACCEPTANCE PERIODS. THE EXTENSION OF THE PROPOSAL ACCEPTANCE PERIODS, TO WHICH CALL ACQUIESCED, WAS NOT REQUESTED FOR THE PURPOSE OF PROVIDING ANY ONE PROPOSER WITH AN ADVANTAGE OVER THE OTHERS, BUT WAS REQUESTED TO GAIN ADDITIONAL TIME FOR NEGOTIATIONS. WHILE MELLEY ULTIMATELY WAS AWARDED FIXED PRICED CONTRACT NO. NAS 10-6662, ON MAY 26, 1969, IN THE AMOUNT OF $134,090, THE AWARD WAS NOT ON THE BASIS THAT THE COMPANY WAS FAVORED OVER OTHER OFFERORS, BUT STRICTLY ON THE BASIS THAT MELLEY'S PRICE WAS THE LOWEST OFFERED BY THE FOUR TECHNICALLY ACCEPTABLE PROPOSERS WITHIN THE COMPETITIVE RANGE. IT IS THEREFORE RECOMMENDED THAT THE CALL PROTEST UNDER RFP 3-155-9 BE DENIED.'

IT IS THE VIEW OF THIS OFFICE THAT ANY FIRM'S PROPOSAL MUST BE REGARDED AS WITHIN A COMPETITIVE RANGE UNLESS IT IS SO TECHNICALLY INFERIOR OR OUT OF LINE FROM A PRICE STANDPOINT AS TO PRECLUDE THE POSSIBILITY OF MEANINGFUL NEGOTIATIONS. SEE 47 COMP. GEN. 252, 262; 45 COMP. GEN. 417, 427. SUCH A DETERMINATION HAVING A SUBJECTIVE ELEMENT, WE RECOGNIZE A REASONABLE DEGREE OF ADMINISTRATIVE DISCRETION IN ITS FORMULATION. 163024, AUGUST 27, 1968 AND B-158042, MARCH 30, 1966. PURSUANT TO OUR REVIEW WE FIND THAT YOUR DELIVERY SCHEDULE WAS SUBSTANTIALLY GREATER THAN THE REQUIRED SCHEDULE WHILE ALL OF THE OTHER OFFERORS SUBMITTED PROPOSALS WHICH COMPLIED WITH THE REQUIRED DELIVERY REQUIREMENTS. EXCEPT FOR ONE OTHER OFFER, WHICH WAS ALSO FOUND TO BE OUT OF THE COMPETITIVE RANGE, THE PRICE IN YOUR PROPOSAL WAS SUBSTANTIALLY GREATER THAN THE PRICES IN THE OTHER FOUR PROPOSALS WHICH WERE FOUND TO BE WITHIN A COMPETITIVE RANGE. IN THE CIRCUMSTANCES WE CANNOT SAY THAT THE PROCURING ACTIVITY ABUSED ITS DISCRETION IN MAKING ITS DETERMINATION THAT YOUR OFFER WAS NOT WITHIN A COMPETITIVE RANGE. CONSEQUENTLY, WE HAVE NO BASIS FOR QUESTIONING THE AWARD TO ANOTHER CONCERN UNDER THIS SOLICITATION.

AS INDICATED, THE PRESENT PROCUREMENT WAS NEGOTIATED UNDER THE AUTHORITY OF 10 U.S.C. 2304 (A) (2). SECTION 2310 (B) OF TITLE 10, U.S.C. SPECIFICALLY PROVIDES THAT ADMINISTRATIVE DETERMINATIONS AND FINDINGS REGARDING DECISIONS TO NEGOTIATE UNDER 10 U.S.C. 2304 (A) (2) ARE ,FINAL". IN THE CIRCUMSTANCES OF THIS CASE, THERE IS NO BASIS FOR OUR OFFICE TO OBJECT TO THE DETERMINATION TO NEGOTIATE FOR THE ELEVEN 30 KW GENERATOR SETS. SEE B-164593, AUGUST 27, 1968 AND B-161031, JUNE 1, 1967.

FOR THE FOREGOING REASONS, YOUR PROTEST AGAINST THE NEGOTIATED SOLICITATION IS DENIED.

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