B-155742, JAN. 29, 1965

B-155742, JAN. 29, 1965

TO CALIBRATION STANDARDS CORPORATION:

FURTHER REFERENCE IS MADE TO COPY OF YOUR LETTER DATED DECEMBER 7, 1964, ADDRESSED TO U.S. NAVY AVIATION SUPPLY OFFICE (ASO), 700 ROBBINS AVENUE, PHILADELPHIA, PROTESTING ANY AWARD TO OTHER THAN THE LOWEST BIDDER UNDER REQUEST FOR QUOTATIONS NO. 383/904070/65Q.

BY REQUEST FOR QUOTATIONS NO. 383/904070/65Q, THE ASO REQUESTED JOHN FLUKE MANUFACTURING COMPANY, INC., SEATTLE, WASHINGTON, TO QUOTE A PRICE FOR THE FURNISHING OF 105 AC-DC DIFFERENTIAL VOLTMETERS, FLUKE PART NO. 803D/AD. THE QUOTATION WAS REQUESTED TO BE FURNISHED BEFORE CLOSE OF BUSINESS SEPTEMBER 8, 1964. SOLICITATION WAS LIMITED TO JOHN FLUKE, BECAUSE THE GOVERNMENT DID NOT HAVE DATA ADEQUATE TO SOLICIT COMPETITIVE BIDS OR QUOTATIONS. A TIMELY QUOTATION WAS RECEIVED FROM JOHN FLUKE. ADDITION, TIMELY UNSOLICITED QUOTATIONS WERE RECEIVED FROM YOUR COMPANY AND FROM NON-LINEAR SYSTEMS, INC., DEL MAR, CALIFORNIA. YOUR COMPANY OFFERED ITS MODEL AC-116BQ WHICH YOU ALLEGE ESSENTIALLY MET OR EXCEEDED ALL SPECIFICATIONS OF THE JOHN FLUKE MODEL 803D/AD. IN ADDITION, YOU OFFERED A BID SAMPLE AND ANY SERVICES OR INFORMATION WHICH MIGHT EXPEDITE ITS EVALUATION. THE PRICES QUOTED WERE CALIBRATION STANDARDS CORPORATION, $96,750.00; JOHN FLUKE MANUFACTURING COMPANY, INC., $108,063.05; AND NON- LINEAR SYSTEMS, INC., $115,850.00.

THE DIFFERENTIAL VOLTMETER IS A PIECE OF TEST EQUIPMENT USED IN TESTING THE VOLTAGE OUTPUT OF THE APS-80 RADAR SYSTEM USED ON THE P-3A AIRCRAFT. THE JOHN FLUKE MODEL 803D/AD WAS ORIGINALLY SUPPLIED BY JOHN FLUKE TO LOCKHEED AIRCRAFT CORPORATION, AFTER TEST BY LOCKHEED, FOR USE IN TESTING THE APS-80 RADA SYSTEM INSTALLED IN THE LOCKHEED P 3A AIRCRAFT. THERE ARE NO OTHER COMMERCIAL EQUIPMENTS KNOWN TO ASO OR TO THE BUREAU OF NAVAL WEAPONS THAT ARE ADEQUATE FOR THE TESTING OF THE APS-80 RADAR SYSTEM. VIEW OF THIS, A DETERMINATION WAS MADE IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-210.2 (II) BY THE CONTRACTING OFFICER AUTHORIZING THE PROCUREMENT ON A SOLE SOURCE BASIS FROM JOHN FLUKE.

IT IS REPORTED THAT AT THE TIME THE UNSOLICITED QUOTATIONS WERE RECEIVED FROM YOUR COMPANY AND NON-LINEAR SYSTEMS, INC., THE COGNIZANT TECHNICAL PERSONNEL AT ASO WERE CONSULTED IN AN EFFORT TO DETERMINE WHETHER THE UNSOLICITED QUOTATIONS COULD BE CONSIDERED. THEY ADVISED THAT ASO DID NOT HAVE TECHNICAL DATA ON THE FLUKE PART AND THUS HAD NO WAY TO EVALUATE THE PARTS OFFERED. THEY FURTHER ADVISED THAT ANY ATTEMPT TO DETERMINE THE ADEQUACY OF THE OFFERED PARTS BY SOME SORT OF TESTING PROGRAM WOULD TAKE SEVERAL MONTHS (PERHAPS AS MUCH AS SIX MONTHS SINCE STABILITY WOULD HAVE TO BE VERIFIED) WITH NO ASSURANCE THAT THE RESULTS WOULD BE CONCLUSIVE AS TO THE ADEQUACY OF THE EQUIPMENT. THEREFORE, THE CONTRACTING OFFICER REJECTED THE LOW UNSOLICITED QUOTATION SUBMITTED BY YOUR COMPANY AND, BY TELEPHONE CONVERSATION OF DECEMBER 4, 1964, SO ADVISED YOU. SINCE THE ONLY TESTS WHICH CAN BE PERFORMED AT PRESENT ARE COMPARATIVE TESTS WITH THE FLUKE UNIT, THE AWARD OF THE PROCUREMENT COULD NOT BE WITHHELD PENDING THIS ATTEMPT AT QUALIFICATION. THE CURRENT STOCK POSITION OF THE VOLTMETERS AT THE TIME OF THE AWARD WAS CRITICAL SO THAT AN IMMEDIATE AWARD AND EARLY DELIVERY WERE NECESSARY TO SATISFY EXISTING REQUIREMENTS. IN VIEW OF THIS CIRCUMSTANCE A CONTRACT WAS LETON DECEMBER 28, 1964, FOLLOWING ADHERENCE TO PROVISIONS OF ASPR 2-407.9.

UNDER THE PROVISIONS OF 10 U.S.C. 2304 (A) (10) PURCHASES AND CONTRACTS MAY BE NEGOTIATED IF IT IS IMPRACTICABLE TO OBTAIN COMPETITION FOR THE PROPERTY OR SERVICES. IN LINE WITH THIS AUTHORITY PARAGRAPH 3-210.2 OF ASPR SETS FORTH CERTAIN CIRCUMSTANCES UNDER WHICH THE AUTHORITY TO NEGOTIATE MAY BE USED. FOR EXAMPLE, UNDER SUBPARAGRAPH (I) IT IS STATED THAT CONTRACTS MAY BE NEGOTIATED WHERE THE SUPPLIES CAN BE OBTAINED FROM ONLY ONE PERSON OR FIRM (SOLE SOURCE OF SUPPLY) AND UNDER SUBPARAGRAPH (XIII) NEGOTIATION IS PERMITTED WHEN IT IS IMPOSSIBLE TO DRAFT, FOR SOLICITATION OF BIDS, ADEQUATE SPECIFICATIONS OR ANY OTHER ADEQUATELY DETAILED DESCRIPTION OF THE REQUIRED SUPPLIES. THE USE OF EXCEPTION NO. (10) TO 10 U.S.C. 2304 (A) IS DEPENDENT UPON THE EXISTENCE OF SPECIFIED FACTUAL SITUATIONS TWO OF WHICH ARE CITED ABOVE.

IN THE CIRCUMSTANCES HERE REPORTED SOLICITATION WAS LIMITED TO JOHN FLUKE BECAUSE IT WAS IMPOSSIBLE TO DRAFT ADEQUATE SPECIFICATIONS IN ORDER TO EVALUATE QUOTATIONS FROM OTHER SOURCES FOR ALTERNATE MATERIAL. FURTHER, NO OTHER SOURCE OF SUPPLY WAS KNOWN TO ASO AND DUE TO THE CRITICAL NEED FOR VOLTMETERS, IT WAS NOT POSSIBLE TO DETERMINE WITHIN A REASONABLE TIME THE ACCEPTABILITY OF OFFERINGS MADE SUBSEQUENT TO THE SOLICITATION BY OTHER QUOTERS. THE ABOVE DETERMINATIONS AS AMPLIFIED BY THE FACTS OF RECORD CLEARLY AND CONVINCINGLY ESTABLISH THAT NEITHER FORMAL ADVERTISING NOR ACCEPTANCE OF YOUR QUOTATION OR YOUR OFFER TO ASSIST IN EVALUATION WOULD HAVE BEEN FEASIBLE AND PRACTICABLE IN THE CIRCUMSTANCES. SEE 10 U.S.C. 2310 (B), AS AMENDED BY PUBLIC LAW 87-653, SECTION 1 (F), 76 STAT. 529, APPROVED SEPTEMBER 10, 1962, WHICH ALSO SPECIFICALLY PROVIDES THAT SUCH DETERMINATIONS SUPPORTING NEGOTIATIONS UNDER EXCEPTION NO. (10) SHALL BE FINAL.

WE HAVE ALWAYS RECOGNIZED THE PRIMARY RIGHT OF THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT TO DETERMINE, AS HERE, THE EXISTENCE OF FACTS AS THE BASIS OF ADMINISTRATIVE ACTION. SINCE THE ADMINISTRATIVE ACTIONS TAKEN HERE WERE IN ACCORD WITH LAW AND REGULATION, WE MUST CONCLUDE THAT THE INSTANT PROCUREMENT IS NOT SUBJECT TO QUESTION BY OUR OFFICE.

ACCORDINGLY, YOUR PROTEST IS DENIED.

THE DEPARTMENT OF THE NAVY ADVISES THAT BECAUSE OF THE INTEREST EXPRESSED BY YOUR COMPANY AND NON-LINEAR SYSTEMS, INC., IN THIS EQUIPMENT AND THE POSSIBILITY THAT ADDITIONAL SOURCES MAY THUS BE OBTAINED, THE ASO WILL INVESTIGATE THE POSSIBILITY OF HAVING THE BUREAU OF NAVAL WEAPONS SET UP A PROJECT FOR THE TESTING OF THESE UNITS WITH THE GOAL OF QUALIFYING THEM FOR FUTURE PROCUREMENTS.