B-158134, MAR. 3, 1966

B-158134, MAR. 3, 1966

TO BORDERS ELECTRONICS COMPANY, INC.:

WE REFER AGAIN TO YOUR LETTER OF DECEMBER 2, 1965, PROTESTING AGAINST A SOLE SOURCE AWARD TO RADIATION, INCORPORATED, MELBOURNE, FLORIDA, FOR AN AUTOMATIC MULTIPLE ADDRESS PROCESSING FACILITY.

ON NOVEMBER 22, 1965, THE OKLAHOMA CITY AIR MATERIEL AREA (OCAMA), THE PROCURING ACTIVITY, RECEIVED A PURCHASE REQUEST NO. OC-6-16940, CONTAINING A STATEMENT OF WORK PREPARED BY HEADQUARTERS, GROUND ELECTRONICS ENGINEERING INSTALLATION AGENCY (GEEIA), GRIFFISS AFB, NEW YORK, STATING THAT AN AUTOMATIC MULTIPLE ADDRESS PROCESSING FACILITY (AMARS) AND SPARE PARTS THEREFOR WERE URGENTLY NEEDED BY THE AIR FORCE AS A "SOUTHEAST ASIA LOGISTICS REQUIREMENT.' THESE SUPPLIES WERE IDENTIFIED ON THE PURCHASE REQUEST AS AN ISSUE PRIORITY DESIGNATOR 1-6 UNDER THE UNIFORM MATERIAL ISSUE PRIORITY SYSTEM. SEE DEPARTMENT OF DEFENSE INSTRUCTION 4410.6, ISSUED AUGUST 20, 1964. FURTHERMORE, ATTACHMENT "A" TO THE PURCHASE REQUEST STATED THAT THE REQUIRED DELIVERY DATE IN SOUTHEAST ASIA FOR THE AMARS WAS DECEMBER 22, 1965, JUST THIRTY DAYS AFTER RECEIPT OF THE REQUEST AT OCAMA. ATTACHMENT "B" ENTITLED "SOLE SOURCE JUSTIFICATION FOR PR OC-6- 16940," ISSUED BY GEEIA STATES THAT:

"RADIATION INCORPORATED IS THE ONLY KNOWN MANUFACTURER WHO CAN PROVIDE A MULTIPLE ADDRESS PROCESSING UNIT OF THE TYPE REQUIRED WITHIN THE EXISTING TIME FRAME.'

AND PARAGRAPH 3.1.2 OF THE STATEMENT OF WORK STATES IN PART:

"THE AUTOMATIC MULTIPLE ADDRESS ROUTING FACILITY (SYSTEM) (AMARS), MODEL 6702A MANUFACTURED BY RADIATION, INCORPORATED, MELBOURNE, FLORIDA, IS THE MAJOR COMPONENT OF THE FACILITY OUTLINED IN THIS STATEMENT OF WORK.'

UPON READING OF THE CONTEMPLATED AWARD TO RADIATION IN THE COMMERCE BUSINESS DAILY OF NOVEMBER 30, 1965, YOU CONTACTED THE PROCURING ACTIVITY ON DECEMBER 2, 1965, AND ADVISED THEM THAT YOU WERE LODGING A PROTEST ASKING THAT THE PROCUREMENT BE HELD IN ABEYANCE SINCE YOU MANUFACTURE A SIMILAR SYSTEM AND HAD NOT BEEN CONTACTED FOR EITHER DELIVERY OR PRICING INFORMATION. THE NEXT DAY, DECEMBER 3, 1965, THE CONTRACTING OFFICER CONTACTED HEADQUARTERS, USAF, REGARDING RECEIPT OF A PROTEST FROM YOU AND WAS HIMSELF ADVISED LATER THAT DAY THAT NEITHER USAF NOR THE GENERAL ACCOUNTING OFFICE HAD RECEIVED ANY SUCH PROTEST; AND FURTHERMORE, THAT NO ONE FROM BORDERS HAD DISCUSSED A PROTEST WITH USAF. IN VIEW OF THESE FACTS AND THE URGENT NEED FOR THIS EQUIPMENT, THE CONTRACTING OFFICER, ON DECEMBER 3, 1965, ISSUED PURCHASE ORDER OC-66-1 UNDER BASIC ORDER AGREEMENT CONTRACT AF 09/603/ 60173 TO RADIATION.

IT IS YOUR CONTENTION THAT THE SYSTEM YOU ARE PRESENTLY BUILDING FOR THE NAVY, AN/FGC-73A (V), UNDER CONTRACT N600/63133-126) 63787, IS SIMILAR TO RADIATION'S SYSTEM AND COSTS ABOUT HALF AS MUCH; THAT YOU COULD RESPOND TO A PROCUREMENT WITHIN TWENTY-FOUR HOURS AFTER RECEIPT; AND THAT YOU COULD MAKE DELIVERY WITHIN THIRTY DAYS AFTER AWARD OF A CONTRACT. FOR THESE REASONS YOU FEEL A SOLE SOURCE AWARD TO RADIATION CANNOT BE JUSTIFIED AND IS NOT IN THE BEST INTEREST OF THE GOVERNMENT.

GENERALLY, SUPPLIES AND SERVICES FOR THE GOVERNMENT ARE PROCURED BY MEANS OF FORMAL ADVERTISING SINCE IT IS FELT THAT THE COMPETITION WHICH RESULTS FROM THIS METHOD WILL PRODUCE A BETTER PRODUCT OR SERVICE FOR THE GOVERNMENT AT A BETTER PRICE. THERE ARE INSTANCES, HOWEVER, WHEN FORMAL ADVERTISING IS NOT PRACTICABLY FEASIBLE, AND THE GOVERNMENT IS, IN SUCH INSTANCES, AUTHORIZED TO NEGOTIATE A PURCHASE OR A CONTRACT. IN THIS REGARD, 10 U.S.C. 2304/A) (2) PROVIDES AS FOLLOWS:

"PURCHASES OF AND CONTRACTS FOR PROPERTY OR SERVICES COVERED BY THIS CHAPTER SHALL BE MADE BY FORMAL ADVERTISING IN ALL CASES IN WHICH THE USE OF SUCH METHOD IS FEASIBLE AND PRACTICABLE UNDER THE EXISTING CONDITIONS AND CIRCUMSTANCES. IF USE OF SUCH METHOD IS NOT FEASIBLE AND PRACTICABLE, THE HEAD OF AN AGENCY, * * * MAY NEGOTIATE SUCH A PURCHASE OR CONTRACT, IF --- * * * THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING; * * *.'

ALTHOUGH SECTION 3-202 OF THE ARMED SERVICES PROCUREMENT REGULATION, ASPR, WHICH AUTHORIZES USE OF THE ABOVE STATUTE, LIMITS THE USE OF THE "PUBLIC EXIGENCY" EXCEPTION TO CASES WHERE THE GOVERNMENT WOULD BE SERIOUSLY INJURED IF THE SUPPLIES OR SERVICES WERE NOT FURNISHED BY A CERTAIN DATE, IT PERMITS ITS USE WHEN THEY COULD NOT BE PROCURED BY THAT DATE BY MEANS OF FORMAL ADVERTISING. IN THIS REGARD, THE CONTRACTING OFFICER FELT THAT RADIATION WAS THE ONLY CONTRACTOR CAPABLE OF MEETING THE GOVERNMENT'S DELIVERY REQUIREMENTS. MOREOVER, AS NOTED ABOVE, THE PURCHASE REQUEST CITED AN ISSUE PRIORITY DESIGNATOR 1-6 UNDER THE UNIFORM MATERIAL ISSUE PRIORITY SYSTEM. WHEN THIS IS THE CASE, ASPR 3-202.2/VI) PROVIDES THAT THE "PUBLIC EXIGENCY" EXCEPTION TO FORMAL ADVERTISING MAY BE USED, NO FURTHER JUSTIFICATION BEING REQUIRED.

WHILE THE STATUTE (10 U.S.C. 2304/G) ( AND THE REGULATION (ASPR 3 202.2) REQUIRE THAT EVEN WHEN AUTHORITY EXISTS TO NEGOTIATE PROCUREMENTS, PROPOSALS SHOULD BE SOLICITED FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES CONSISTENT WITH THE NATURE AND REQUIREMENTS OF THE SUPPLIES OR SERVICES TO BE PROCURED, THE "PUBLIC EXIGENCY" JUSTIFICATION FOR NEGOTIATION CLOTHES THE CONTRACTING OFFICER WITH A CONSIDERABLE DEGREE OF DISCRETION IN DETERMINING THE EXTENT OF NEGOTIATION CONSISTENT WITH THE EXIGENCY OF THE SITUATION. SEE B 155820. WE FIND NO EVIDENCE OF AN ARBITRARY OR CAPRICIOUS ABUSE OF THIS DISCRETION. INDEED, THIS OFFICE HAS BEEN INFORMED BY THE DEPARTMENT OF THE AIR FORCE THAT YOUR SYSTEM OPERATES AT ONLY 850 WORDS PER MINUTE, WHEREAS THE STATEMENT OF WORK, PARAGRAPH 3.1.1, REQUIRES THAT:

"THIS FACILITY SHALL OPERATE AT 1200 WORDS PER MINUTE * * *.'

IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE FIND NO REASON TO OBJECT TO THE ACTIONS OF THE CONTRACTING OFFICER, AND YOUR PROTEST IS ACCORDINGLY DENIED.