B-150354, MAR. 6, 1963

B-150354, MAR. 6, 1963

TO ROI GEARS, INC.:

FURTHER REFERENCE IS MADE TO A LETTER DATED NOVEMBER 21, 1962, FROM MR. GEORGE H. OHMER, WRITTEN IN YOUR BEHALF, PROTESTING AN AWARD MADE TO THE WESTINGHOUSE ELECTRIC CORPORATION UNDER REQUEST FOR PROPOSAL NO. SA-62- 6105-A24968. IN BRIEF, THE SUBSTANCE OF YOUR PROTEST APPEARS TO BE THAT (1) AN EXCESSIVE PRICE WAS PAID FOR THE MATERIAL INVOLVED AND (2) YOUR CORPORATION'S OFFER WAS NOT PROPERLY EVALUATED AND HANDLED IN A MANNER MOST EXPEDIENT TO THE BEST INTEREST OF THE GOVERNMENT.

AN EXAMINATION OF THE RECORD NOW AVAILABLE IN THIS OFFICE INDICATES THAT REQUEST FOR PROPOSAL NO. SA-62-6105-A24968 ORIGINATED AS A ROUTINE REQUIREMENT FOR 950 SPUR GEARS FOR B-47 AIRCRAFT CLASSIFIED AS A CODE D ITEM, WHICH CODE MEANS THAT DATA ARE NOT AVAILABLE WITHIN THE AIR FORCE SUPPLY SYSTEM; IN OTHER WORDS, THE AIR FORCE DID NOT HAVE ANY SPECIFICATIONS, PLANS OR DRAWINGS ADEQUATE FOR MANUFACTURING THE ITEM. THEREFORE, THE REQUEST FOR PROPOSAL WAS SUBMITTED ONLY TO THE RECOMMENDED SOURCE, WESTINGHOUSE ELECTRIC CORPORATION, ON AUGUST 8, 1962, AND SYNOPSIZED TO THE DEPARTMENT OF COMMERCE ON AUGUST 9. THE OPENING DATE WAS SET FOR SEPTEMBER 7, 1962. THIS REQUEST FOR PROPOSAL WAS ISSUED PURSUANT TO AUTHORITY CONTAINED IN ARMED SERVICES PROCUREMENT REGULATION 3 -210.2 (XV) WHICH PERMITS PROCUREMENT BY NEGOTIATION WHEN THE CONTEMPLATED PROCUREMENT IS FOR PARTS OR COMPONENTS BEING PROCURED AS REPLACEMENT PARTS IN SUPPORT OF EQUIPMENT SPECIALLY DESIGNATED BY THE MANUFACTURER, WHERE DATA AVAILABLE IS NOT ADEQUATE TO ASSURE THAT THE PART OR COMPONENT WILL PERFORM THE SAME FUNCTION IN THE EQUIPMENT AS THE PART OF COMPONENT IT IS TO REPLACE.

ON AUGUST 14, 1962, A TELEGRAPHIC REQUEST FOR PROPOSAL FORMS WAS RECEIVED FROM YOUR CORPORATION, AND THE FORMS WERE IMMEDIATELY FORWARDED TO YOU. UPON RECEIPT OF YOUR LOW PROPOSAL DATED SEPTEMBER 4, 1962, YOU WERE REQUESTED ON SEPTEMBER 19 TO SUBMIT DESCRIPTIVE DATA FOR IDENTIFICATION AND EVALUATION OF YOUR PROPOSED ITEM. YOUR DRAWINGS ON PART NO. 7000 WERE FORWARDED ON SEPTEMBER 20, AND UPON RECEIPT THEREOF THEY WERE EVALUATED BY THE SAN ANTONIO AIR MATERIEL AREA ENGINEERING PERSONNEL, AND ON OCTOBER 9, 1962, IT WAS DETERMINED THAT THE DATA AVAILABLE AT THAT AREA DESCRIBING THE REQUIRED ITEM WAS INADEQUATE TO ASCERTAIN ACCEPTABILITY OF THE ITEMS. AT THAT TIME IT WAS ESTIMATED BY ENGINEERING PERSONNEL THAT AN ADDITIONAL THREE TO FOUR WEEKS WOULD BE REQUIRED TO SECURE THE ADDITIONAL DATA REQUIRED TO PROPERLY EVALUATE ACCEPTABILITY.

THE RECORD INDICATES THAT BEGINNING ON OCTOBER 10, 1962, VARIOUS STEPS WERE TAKEN BY THE ENGINEERING PERSONNEL TO SECURE THE NECESSARY DATA FOR APPROVAL OF YOUR GEAR. IN THE MEANTIME, ON OCTOBER 29, 1962, THE REQUIREMENT WAS RECLASSIFIED FROM "ROUTINE" TO "SUPER URGENT" BECAUSE OF THE ALL OUT DEFENSE EFFORT WHICH DEVELOPED IN CONNECTION WITH THE CUBAN CRISIS. THIS RECLASSIFICATION CARRIED THE FURTHER STATEMENT THAT FAILURE TO RECEIVE 475 EACH BY DECEMBER 15, 1962, AND 475 EACH BY JANUARY 15, 1963, WOULD RESULT IN AN "AIRCRAFT OUT OF COMMISSION FOR PARTS" STATUS ON B-47 AIRCRAFT. UPON RECEIPT OF THIS RECLASSIFICATION, THEREFORE, THE ENGINEERING PERSONNEL WERE IMMEDIATELY CONTACTED FOR A STATUS REPORT REGARDING APPROVAL OF YOUR GEAR, AND THEY WERE UNABLE TO FORECAST DEFINITELY WHEN SUCH APPROVAL COULD BE GIVEN. IN VIEW OF THIS SITUATION, A TELEGRAPHIC NOTICE OF AWARD WAS SUBMITTED TO THE APPROVED SOURCE, WESTINGHOUSE ELECTRIC CORPORATION, ON NOVEMBER 2, 1962. ACCORDINGLY, FURTHER NEGOTIATIONS WERE NOT CONDUCTED WITH YOUR CORPORATION ONLY BECAUSE IT COULD NOT BE DETERMINED WHEN APPROVAL OF YOUR PROPOSED ITEM WOULD BE FORTHCOMING; HOWEVER, EFFORTS WERE CONTINUED TO SECURE APPROVAL OF YOUR GEAR FOR CONSIDERATION ON FUTURE PROCUREMENTS. IN THIS CONNECTION, WE NOW ARE INFORMED THAT ON JANUARY 11, 1963, YOUR GEAR HAD BEEN COMPLETELY EVALUATED AND FOUND TO BE ACCEPTABLE, AND THAT YOU HAVE BEEN SO ADVISED.

CAREFUL CONSIDERATION HAS BEEN GIVEN TO THE CONTENTIONS URGED IN SUPPORT OF YOUR PROTEST, BUT WE ARE UNABLE TO CONCLUDE THAT THE ACTION TAKEN BY THE CONTRACTING OFFICIALS WAS WITHOUT JUSTIFICATION. AS STATED ABOVE, IN VIEW OF THE "SUPER URGENT" STATUS OF THE REQUIREMENT, AND THE FACT THAT THE TIME REQUIRED FOR QUALIFICATION OF YOUR GEAR COULD NOT BE ACCURATELY FORECAST, AND IN VIEW OF THE FURTHER FACT THAT THE METHOD OF NEGOTIATION RESORTED TO WAS WITHIN THE BOUNDS OF AUTHORITY SET FORTH IN THE ABOVE- CITED SECTION OF THE ARMED SERVICES PROCUREMENT REGULATION, WE MUST CONCLUDE THAT THERE HAS NOT BEEN A SUFFICIENT BASIS FOR DETERMINING THAT THE PROCUREMENT IN THE INSTANT CASE SHOULD BE REGARDED AS INVALID. WHETHER THE ENGINEERING EVALUATION OF THE GEARS OFFERED BY YOU COULD OR SHOULD HAVE BEEN HANDLED MORE EXPEDITIOUSLY, AS CONTENDED BY YOU, INVOLVES TECHNICAL CONSIDERATIONS AS TO WHICH WE ARE NOT QUALIFIED TO FORM AN INDEPENDENT CONCLUSION, BUT MUST RELY LARGELY UPON THE TECHNICAL PERSONNEL OF THE AIR FORCE. IN ANY EVENT, IT IS OUR INFORMATION THAT THE PARTICULAR PROCUREMENT INVOLVED HAS BEEN COMPLETED AND NO ACTION BY OUR OFFICE WOULD NOW APPEAR TO BE REQUIRED.