B-141195, FEB. 2, 1960

B-141195, FEB. 2, 1960

TO MR. A. LANGSAM, PRESIDENT:

IN TELEGRAM OF NOVEMBER 9, 1959, YOU PROTESTED AGAINST THE AWARD OF A CONTRACT TO ANY OTHER OFFEROR AT A PRICE HIGHER THAN YOUR PROPOSAL OR ON TERMS DIFFERENT THAN THOSE IN REQUEST FOR PROPOSAL 36-600-60 5092.

THE SUBJECT REQUEST FOR PROPOSAL SOLICITED PRICES FOR A NEGOTIATED FIXED PRICE CONTRACT FOR 25,000 THERMOCOUPLE AND HARNESS ASSEMBLIES DESCRIBED AS:

"GENERAL ELECTRIC COMPANY PART NO. 9888683G5, OR THE B. G. CORPORATION PART NO. 14970-1, OR BEAKATRON MANUFACTURING CORPORATION PART NO. C-683. FSN 6119-6685-610-1254. APPLICABLE TO J-47 SERIES AIRCRAFT ENGINE.'

THE DEPARTMENT OF THE AIR FORCE REPORTS THAT THESE REPLACEMENT PARTS WERE BEING PROCURED IN SUPPORT OF SPECIALLY DESIGNED EQUIPMENT, REQUIRING STRICT ADHERENCE TO PREVIOUS FABRICATION CONFIGURATIONS, AND THAT COMPLETE PRODUCTION DATA WAS NOT AVAILABLE TO ASSURE THAT THE PART WOULD PERFORM THE SAME FUNCTION IN THE EQUIPMENT AS THE PART IT WAS TO REPLACE. THEREFORE WAS ADMINISTRATIVELY DETERMINED THAT IT WAS IMPRACTICABLE TO SECURE COMPETITION BY MEANS OF FORMAL ADVERTISING AND THAT THE SUPPLIES SHOULD BE OBTAINED BY NEGOTIATION UNDER 10 U.S.C. 2304 (A) (10).

EACH OF THE SPECIFIED FIRMS AND YOU SUBMITTED PROPOSALS WITHIN THE REQUIRED DEADLINE. BEAKATRON SUBMITTED THE LOW PROPOSAL TO SUPPLY ITS PART WITHIN 150 DAYS AFTER AWARD AT A UNIT PRICE OF $18.94. YOU PROPOSED TO FURNISH "WOODSIDE PART W-58-912 EQUIVALENT TO THE GENERAL ELECTRIC COMPANY PART NO. 9888683G5 AND BEAKATRON PART C-683, MEETING ALL THE REQUIREMENTS OF FSN-6119-6685-610-1254" WITHIN 120 DAYS AFTER AWARD AT A UNIT PRICE OF $22.04. SUBSEQUENTLY, WITHOUT FURTHER SOLICITATION, YOU VOLUNTARILY REDUCED YOUR PROPOSAL TO $18.70 PER UNIT.

THE CONTRACTING OFFICER DISREGARDED YOUR PROPOSAL BECAUSE YOU DID NOT OFFER ANY OF THE PROPRIETARY PRODUCTS ENUMERATED IN THE REQUEST FOR PROPOSAL AND BECAUSE HE DETERMINED THAT ANY POSSIBLE SAVINGS RESULTING FROM CONTRACTING WITH YOU WOULD NOT COMPENSATE THE GOVERNMENT FOR THE COST OF TESTING YOUR PART TO DETERMINE WHETHER IT IS EQUIVALENT TO THE PARTS IN LIEU OF WHICH IT IS OFFERED. NEGOTIATIONS WERE THEREFORE CONDUCTED WITH BEAKATRON AND THE CONTRACT WAS AWARDED TO THAT COMPANY FOR DELIVERY OF THE SUPPLIES WITHIN 180 DAYS AFTER AWARD AT A UNIT PRICE OF $18.25. EXTENSION OF THE DELIVERY TIME BY 30 DAYS IS VIEWED AS PERMISSIVE AND WITHIN THE DELIVERY TERMS OF THE REQUEST FOR PROPOSAL, SINCE IT DID NOT PROVIDE THAT DELIVERIES BEYOND 150 DAYS WOULD NOT BE CONSIDERED, BUT ONLY THAT THEY "MAY BE CONSIDERED NONRESPONSIVE AND THE OFFER MAY BE REJECTED.'

THE DESIGNATION OF PROPRIETARY PRODUCTS, WITHOUT PERMITTING THE FURNISHING OF EQUIVALENT OR "OR EQUAL" PRODUCTS, AND THE CHANGE IN THE OFFERED DELIVERY SCHEDULE WOULD NOT BE PROPER, AS A GENERAL RULE, IN THE CASE OF A FORMALLY ADVERTISED COMPETITIVE PROCUREMENT. HOWEVER, INASMUCH AS THIS IS A NEGOTIATED PROCUREMENT, THE RULES OF FORMALLY ADVERTISED COMPETITIVE BIDDING DO NOT APPLY, AND THE TERMS AND CONDITIONS UPON WHICH PROPOSALS ARE REQUESTED AND THE SELECTION OF CONTRACTORS ARE DETERMINED ARE MATTERS FOR THE ADMINISTRATIVE OFFICE CONCERNED IN THE EXERCISE OF ITS BEST JUDGMENT AS TO THE INTERESTS OF THE GOVERNMENT. IN SUCH NEGOTIATED PROCUREMENTS, IT IS THE DUTY OF THE CONTRACTING OFFICER TO NEGOTIATE THE CONTRACT WITH THE SUPPLIER MAKING THE BEST PROPOSAL RESPONSIVE TO THE AGENCY'S NEEDS AS IT DETERMINES THEM.

THE CONTRACTING AGENCY HAS DETERMINED THAT THE AWARD TO BEAKATRON IS IN THE BEST INTERESTS OF THE GOVERNMENT. IN VIEW OF THE WIDE DISCRETION VESTED IN ADMINISTRATIVE OFFICIALS IN NEGOTIATED PROCUREMENTS, WE ARE CONSTRAINED TO HOLD THAT THE FAILURE TO CONSIDER YOUR BID WAS NOT IMPROPER.