B-146237, AUG. 29, 1961

B-146237, AUG. 29, 1961

TO DEPICTO FILMS CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 23, 1961, PROTESTING AGAINST THE AWARD OF A NEGOTIATED CONTRACT BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C., TO WILDING, INC., FOR THE PREPARATION OF A SCRIPT AND THE PRODUCTION OF A MOTION PICTURE ENTITLED "THE BIG E" WHICH IS TO BE COMPLETED BEFORE SEPTEMBER 15, 1961, AND IS COVERED BY NEGOTIATION NO. 118 -61Q.

THE PROCUREMENT WAS INITIATED BY A REQUEST ISSUED BY THE BUREAU OF NAVAL WEAPONS AND IN ITS REQUEST THE BUREAU SPECIFIED THAT PROPOSALS BE SOLICITED ONLY FROM THE FOUR PROVEN SOURCES OF SUPPLY NAMED THEREIN BECAUSE OF THE SHORT PERIOD OF TIME ALLOWED FOR PRODUCTION OF THE MOTION PICTURE. THE NAME OF YOUR FIRM WAS NOT ONE OF THOSE LISTED THEREIN. THE RECORD SHOWS THAT BIDS WERE SOLICITED FROM THE FOUR PROVEN SOURCES OF SUPPLY AND THAT FIVE PROPOSALS WERE RECEIVED, ONE FROM AN UNSOLICITED FIRM, FORDEL FILMS, INC. IT IS REPORTED THAT YOUR FIRM WAS NOT SOLICITED FOR A PROPOSAL FOR THE REASON THAT YOUR FIRM WAS NOT CONSIDERED TECHNICALLY QUALIFIED FOR PRODUCTION OF THIS PARTICULAR MOTION PICTURE. THE LOWEST PROPOSAL WAS SUBMITTED BY FORDEL FILMS, INC. HOWEVER, THAT FIRM'S PROPOSAL WAS REJECTED BECAUSE IT WAS CONSIDERED THAT IT WAS NOT TECHNICALLY QUALIFIED TO PRODUCE THIS PARTICULAR MOTION PICTURE. ON APRIL 13, 1961, CONTRACT NO. N600/19/56632 IN THE AMOUNT OF $37,244.53 WAS AWARDED TO WILDING, INC.

YOU CONTEND THAT THE PRODUCTION OF THE MOTION PICTURE IN QUESTION SHOULD HAVE BEEN PROCURED THROUGH A STANDARD ADVERTISED INVITATION TO BID RATHER THAN BY NEGOTIATION SINCE THE WORK IN THE CONTRACT IN QUESTION IS NOT ANY DIFFERENT FROM THAT INVOLVED IN MANY PREVIOUS MOTION PICTURE PRODUCTIONS MADE FOR THE DEPARTMENT OF THE NAVY UNDER CONTRACTS ENTERED INTO BY FORMAL ADVERTISING.

THIS CONTRACT IS REPORTED TO HAVE BEEN NEGOTIATED PURSUANT TO SECTION 2304 (A) (10) OF TITLE 10, U.S.C. WHICH AUTHORIZES THE AGENCY HEAD TO NEGOTIATE WITHOUT FORMAL ADVERTISING A PURCHASE OR CONTRACT IF THE PURCHASE OR CONTRACT IS FOR PROPERTY OR SERVICES FOR WHICH IT IS IMPRACTICABLE TO OBTAIN COMPETITION. IN FURTHERANCE OF THE LAW SECTION 3- 210.2 (VI) OF THE ARMED SERVICES PROCUREMENT REGULATION LISTS CIRCUMSTANCES IN WHICH IT MAY BE DETERMINED THAT IT IS IMPRACTICABLE TO OBTAIN COMPETITION. AMONG SUCH CIRCUMSTANCES ARE: "/VI) WHEN THE CONTEMPLATED PROCUREMENT IS FOR TRAINING FILM, MOTION PICTURE PRODUCTIONS, OR MANUSCRIPTS.' PURSUANT TO THE LAW AND REGULATION AN ADMINISTRATIVE DETERMINATION WAS MADE TO NEGOTIATE THE CONTRACT.

IN HIS STATEMENT JUSTIFYING THE USE OF THE AUTHORITY TO NEGOTIATE THE CONTRACTING OFFICER STATES THAT SINCE CREATIVE ABILITY IS BEING PROCURED RATHER THAN MATERIAL, IT IS NOT POSSIBLE TO PROVIDE SPECIFICATIONS AND IDEAS IN SUFFICIENT DETAIL TO ADVERTISE THE PROCUREMENT.

WE FIND NO FACTUAL BASIS IN THE PRESENT RECORD TO QUESTION THE ADMINISTRATIVE DETERMINATIONS MADE RESPECTING THE NEGOTIATION OF THE CONTRACT, ESPECIALLY SINCE ADEQUATE COMPETITION WAS OBTAINED.

YOU ALSO CONTEND THAT EVEN IF NEGOTIATION OF THIS PARTICULAR CONTRACT WAS JUSTIFIED, THE PROCEDURE USED IN THIS INSTANCE WAS ILLEGAL IN THAT CERTAIN CONTRACTORS, INCLUDING WILDING, INC., WERE PLACED IN A FAVORABLE POSITION IN THEIR BIDDING BECAUSE THEY WERE PAID PERSONAL VISITS BY NAVY REPRESENTATIVES FOR THE PURPOSE OF DISCUSSING THE SPECIFICATIONS. IN THAT REGARD, THE NAVY PROJECT SUPERVISOR HAS STATED THAT THIS IS NOT THE CASE AND IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, WE MUST ACCEPT THE ADMINISTRATIVE STATEMENT AS CORRECT.

YOU STATE THAT UPON CAREFUL REVIEW OF THE SPECIFICATIONS AND THE AMOUNT OF THE CONTRACT AWARDED TO WILDING, INC., IT IS YOUR OPINION THAT THE CORPORATION WILL BE UNABLE TO PRODUCE A MOTION PICTURE IN ACCORDANCE WITH THE SPECIFICATIONS AT ITS BID PRICE AND THAT THE DEPARTMENT OF THE NAVY WILL HAVE TO PAY MORE, BY VIRTUE OF ILLUSORY REQUESTS FOR CHANGES BY THE NAVY REPRESENTATIVES OR THE CONTRACTOR, FOR THE MOTION PICTURE IF IT HOLDS THE CONTRACTOR TO STRICT COMPLIANCE WITH THE REQUIREMENTS OF THE SPECIFICATIONS. THE MATTER OF DETERMINING WHETHER A CONTRACTOR COMPLIES WITH THE REQUIREMENTS OF THE SPECIFICATIONS IS AN ADMINISTRATIVE RESPONSIBILITY AND WE SEE NO BASIS FOR CONCLUDING THE DEPARTMENT WILL NOT HOLD THE CONTRACTOR TO THE REQUIREMENTS OF THE SPECIFICATIONS.

IN THE ABSENCE OF ANY INDICATION THAT THE ADMINISTRATIVE DISCRETION WAS IMPROPERLY EXERCISED, WE PERCEIVE NO LEGAL BASIS FOR OBJECTING TO THE AWARD AS MADE IN THIS INSTANCE.