B-154040, MAY 11, 1964

B-154040, MAY 11, 1964

TO CAPEHART CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4, 1964, ADDRESSED TO DEFENSE ELECTRONICS SUPPLY CENTER, PROTESTING THE USE OF NEGOTIATION IN THE PROCUREMENT OF FILTERS UNDER REQUEST FOR PROPOSAL DSA-9-64-2562, DATED JANUARY 21, 1964.

YOU STATE THAT THE BID FORM USED IS NOT IN COMPLIANCE WITH ASPR, AND THAT THE USE OF MANUFACTURER'S PART MEMBERS IN DESCRIBING THE REQUIRED UNIT EFFECTED A LIMITATION OF BIDDING. YOU REQUEST THAT CERTAIN ADDITIONAL INFORMATION BE FURNISHED YOU AND URGE THAT THE TIME FOR RECEIVING OFFERS ON THIS PROCUREMENT BE EXTENDED BEYOND THE FEBRUARY 6, 1964, CLOSING DATE SO THAT SUCH INFORMATION MAY BE FURNISHED OR, IN THE ALTERNATIVE, THAT THE PROCUREMENT BE CANCELLED. IN THE EVENT THAT ELECTRONICS SUPPLY CENTER DOES NOT INTEND TO EXTEND THE DATE OR CANCEL THE PROCUREMENT, YOU REQUESTED THAT YOUR PROTEST BE REFERRED TO THIS OFFICE FOR AN OPINION AS TO THE VALIDITY OF THE PROCUREMENT.

REQUEST FOR PROPOSAL DSA-9-64-2562 WAS ISSUED ON JANUARY 21, 1964, BY DEFENSE ELECTRONICS SUPPLY CENTER FOR 2249 UNITS OF FILTER, LOW PASS. THE NOMENCLATURE CARRIED A DESCRIPTION WHICH DETAILED CERTAIN SPECIFIC, BUT NOT COMPLETE, CHARACTERISTICS. IT CITED INTERNATIONAL ELECTRONICS MANUFACTURING COMPANY PART NO. LP 101C AND BAY ROY ELECTRONICS, INC., PART NO. LP-32 IN ACCORDANCE WITH INTERNATIONAL ELECTRONICS MANUFACTURING COMPANY PART NO. LP 101C.

WE ARE ADVISED THAT THE NOMENCLATURE IN THE REQUEST WAS BASED ON THAT CONTAINED IN THE PURCHASE REQUEST DOCUMENT BY WHICH THE PROCUREMENT WAS INITIATED, SUPPORTING INFORMATION WITH WHICH SHOWED THAT THE DATA BRANCH OF DEFENSE ELECTRONICS SUPPLY CENTER HAD LISTED INTERNATIONAL ELECTRONICS MANUFACTURING COMPANY AND BAY ROY ELECTRONICS, INC., AS THE ONLY KNOWN SOURCES FOR THE ITEM, AND THAT NO ENGINEERING DATA WAS AVAILABLE ON WHICH SPECIFICATIONS COULD BE BASED OR ON WHICH AN EVALUATION OF PROPOSALS SUBMITTED BY OTHER MANUFACTURERS COULD BE MADE.

PRIOR TO SENDING THE ABOVE-CITED PROCUREMENT REQUEST DOCUMENT TO THE DIRECTORATE OF PROCUREMENT, THE ENGINEERING SERVICES DIVISION OF DEFENSE ELECTRONICS SUPPLY CENTER HAD WRITTEN TO BAY ROY ON APRIL 29, 1963, ASKING WHETHER TECHNICAL DATA FOR THIS ITEM WOULD BE FURNISHED TO THE GOVERNMENT, AT NO COST, AND WITH THE UNDERSTANDING THAT THE DATA COULD BE USED FOR COMPETITIVE PROCUREMENT. BY LETTER OF MAY 20, 1963, BAY ROY FURNISHED ONLY AN ASSEMBLY DRAWING OF THE UNIT WHICH WAS DETERMINED TO BE INADEQUATE FOR COMPETITIVE PROCUREMENT PURPOSES. NO ATTEMPT WAS MADE BY ENGINEERING SERVICES DIVISION TO CONTACT INTERNATIONAL PRIOR TO THIS PROCUREMENT. HOWEVER, THAT CONCERN WAS CONTACTED BY TELEPHONE ON MARCH 16, 1964, AND REQUESTED TO FURNISH THE DATA ON THIS ITEM. IT REFUSED, POINTING OUT THAT AN OFFER TO SELL THE DATA WAS SOLICITED BY THE REQUEST FOR PROPOSAL. THE NAVY ELECTRONICS SUPPLY OFFICE PREVIOUSLY HAD PROCUREMENT RESPONSIBILITY FOR THIS ITEM, THIS BEING THE FIRST PURCHASE BY DEFENSE ELECTRONICS SUPPLY CENTER SINCE THE TRANSFER OF PROCUREMENT RESPONSIBILITY, AND THE FOREGOING ATTEMPTS TO OBTAIN DATA FOR THIS ITEM WERE MADE BY PERSONNEL AT DEFENSE ELECTRONICS SUPPLY CENTER ONLY AFTER CONTACT WITH THE NAVY ELECTRONICS SUPPLY OFFICE HAD BEEN TO NO AVAIL SO FAR AS THE PRODUCTION OF ADEQUATE ENGINEERING DATA WAS CONCERNED.

IN VIEW OF THE INFORMATION FURNISHED BY ENGINEERING SERVICES DIVISION AS SHOWN ABOVE, A DETERMINATION AND FINDING WAS MADE BY THE CONTRACTING OFFICER AND CONCURRED IN BY THE BRANCH CHIEF ON JANUARY 16, 1964, TO THE EFFECT THAT THE PROCUREMENT COULD BE NEGOTIATED UNDER THE AUTHORITY OF 10 U.S.C. 2304 (A) (10), AS IMPLEMENTED BY ASPR 3 210.2 (XIII). SUCH DETERMINATION WAS BASED UPON THE IMPRACTICABILITY OF OBTAINING COMPETITION RESULTING FROM THE IMPOSSIBILITY OF DRAFTING ADEQUATE SPECIFICATIONS, OR AN ADEQUATE PURCHASE DESCRIPTION, FOR COMPETITIVE BIDDING.

INASMUCH AS THE INFORMATION REQUESTED IN YOUR LETTER OF FEBRUARY 4, 1964, COULD NOT BE FURNISHED FROM ENGINEERING DATA AVAILABLE AT DEFENSE ELECTRONICS SUPPLY CENTER, NO EXTENSION OF TIME FOR SUBMISSION OF OFFERS WAS GIVEN ON THE PROCUREMENT. THREE PROPOSALS WERE RECEIVED ON THE PROCUREMENT. THESE INCLUDED INTERNATIONAL AND BAY ROY, THE FIRMS WHOSE PART NUMBERS WERE CITED IN THE PROPOSAL REQUEST, AND SIERRA ELECTRONICS DIVISION OF PHILCO CORPORATION, WHOSE PROPOSAL COULD NOT BE EVALUATED BECAUSE OF THE LACK OF ENGINEERING DATA AS INDICATED ABOVE.

THE PROPOSALS OF BOTH INTERNATIONAL AND BAY ROY ELECTRONICS, INC., INCLUDED THE FURNISHING OF TECHNICAL DATA FOR THE REQUIRED ITEM TO THE GOVERNMENT, SO THAT SUBSEQUENT PROCUREMENTS MAY BE ACCOMPLISHED ON A FULLY COMPETITIVE BASIS.

YOUR ALLEGATION THAT "THE FORM OF THE BID IS NOT IN ACCORDANCE WITH ASPR- S" APPARENTLY INDICATES THAT YOU BELIEVE AN INVITATION FOR BID SHOULD HAVE BEEN USED RATHER THAN THE REQUEST FOR PROPOSAL. HOWEVER, IN A FORMALLY ADVERTISED PROCUREMENT SITUATION, THE GOVERNMENT MUST POSSESS SUFFICIENT INFORMATION ABOUT THE DESIRED ITEM TO BE ABLE TO DRAFT A DESCRIPTION OR SPECIFICATION FROM WHICH MANUFACTURERS DESIROUS OF ENTERING BIDS WILL BE ABLE TO PRODUCE THE ARTICLE NEEDED. FURTHER, THE GOVERNMENT MUST BE ABLE TO EVALUATE BIDS WHICH ARE SUBMITTED TO DETERMINE WHETHER THE ITEMS OFFERED ARE SUITABLE. IF KNOWLEDGE IS LACKING SO THAT NO DESCRIPTION CAN BE DRAFTED NOR BID EVALUATED, THE ISSUANCE OF AN INVITATION FOR BID IS NOT INDICATED.

IN THE PRESENT CASE THE PROCURING AGENCY REPORTS THAT IT DID NOT POSSESS ANY INFORMATION ABOUT THE ITEM EXCEPT THE PART NUMBER OF TWO MANUFACTURERS, A BRIEF DESCRIPTION WHICH WAS INCOMPLETE IN DETAIL, AND A DRAWING SUPPLIED BY ONE OF THE NAMED CONCERNS WHICH WAS INADEQUATE TO DESCRIBE THE WORKING PARTS OR THE CHARACTERISTICS OF THE ITEM. IN SUCH A SITUATION WE ARE UNABLE TO SAY THAT THE CONTRACTING OFFICER DID NOT TAKE THE PROPER ACTION IN SOLICITING OFFERS. 37 COMP. GEN. 72; B 152866, DATED FEBRUARY 7, 1964.

IN YOUR LETTER OF FEBRUARY 4, 1964, YOU STATE THE NECESSITY FOR INFORMATION REGARDING FIVE TECHNICAL ASPECTS OF THE ITEM. IT IS REPORTED THAT INFORMATION AS TO TWO OF THE FIVE POINTS ARE SHOWN IN BAY ROY DRAWING LP-32. HOWEVER, YOUR REQUEST FOR THE REMAINING INFORMATION CANNOT BE GRANTED FOR THE SAME REASON THAT NEGOTIATION RATHER THAN ADVERTISING WAS UNDERTAKEN.

WHILE THE REPORTED CIRCUMSTANCES ARE SUCH AS TO RAISE A QUESTION AS TO THE PROPRIETY OF THE GOVERNMENT'S PRIOR PROCEDURES IN PROCURING THESE ITEMS, WE SEE NO SATISFACTORY ALTERNATIVE TO THE PROCEDURE ADOPTED IN THIS INSTANCE, AND YOUR PROTEST IS THEREFORE DENIED.