B-164172, JUL. 9, 1968

B-164172, JUL. 9, 1968

TO MR. J. T. HUTSON:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 25, 1968, AND OF THE COPY OF THE APRIL 29, 1968, LETTER TO THE DEFENSE SUPPLY AGENCY PROTESTING THE DELETION OF AN EAGLE ENGINEERING CORPORATION PART NUMBER FROM REQUEST FOR PROPOSALS DSA700-68-R-5776.

THE REQUEST FOR PROPOSALS, AS AMENDED, SOLICITED OFFERS TO FURNISH GENERATOR STATOR AND HOUSING ASSEMBLIES, BOGUE ELECTRIC MANUFACTURING COMPANY PART NUMBER D15792 AND EAGLE ENGINEERING CORPORATION PART NUMBER 977-0008. THE EAGLE PART NUMBER SUBSEQUENTLY WAS DELETED FROM THE REQUEST FOR PROPOSALS BECAUSE PARTS IN THE GENERATOR SETS PRODUCED BY EAGLE UNDER CONTRACT DA 23-195-AMC-01130/T) DID NOT MEET SPECIFICATION TOLERANCES AND IN THE OPERATION OF THE GENERATOR SETS THERE WAS RUBBING BETWEEN ROTORS AND STATORS AND BETWEEN FANS AND STATOR HOUSING.

YOU CONTEND THAT THE EAGLE PART NUMBER SHOULD NOT HAVE BEEN DELETED FROM THE REQUEST FOR PROPOSALS BECAUSE EAGLE IS MANUFACTURING AND ASSEMBLING THE STATOR AND HOUSING ASSEMBLIES IN ACCORDANCE WITH MILITARY DESIGN DRAWING D13213E4101; THAT SUCH DRAWING IS THE ONE THAT WAS UTILIZED TO MANUFACTURE THE BOGUE PART; AND THAT THE ASSEMBLIES SHOULD BE PROCURED IN ACCORDANCE WITH THE DRAWING. YOU HAVE STATED FURTHER THAT EAGLE HAS A LETTER FROM THE CONTRACTING OFFICER ON CONTRACT DA 23-195-AMC-01130/T) STATING THAT IT HAS PRODUCED ACCEPTABLE GENERATOR SETS UNDER THE CONTRACT.

THE ADMINISTRATIVE OFFICE HAS REPORTED THAT THE DRAWING CONTAINS DIMENSIONAL REQUIREMENTS FOR PRODUCTION OF THE GENERATOR, BUT DOES NOT HAVE ADEQUATE PROVISION FOR TESTING TO INSURE THAT THE PARTS PRODUCED UNDER THE DRAWING MEET THE GOVERNMENT'S REQUIREMENTS. IT IS REPORTED THAT SUCH TESTS AND ENGINEERING STANDARDS ARE IN THE PROCESS OF BEING ESTABLISHED. FURTHER, ALTHOUGH YOU HAVE STATED THAT THE CONTRACTING OFFICER HAS ADVISED THAT EAGLE PRODUCED ACCEPTABLE GENERATOR SETS UNDER CONTRACT DA 23-195-AMC-01130/T), THE ADMINISTRATIVE REPORT STATES THAT THE CONTRACTING OFFICER HAS SENT YOUR COMPANY A LETTER ASKING IT TO SHOW CAUSE WHY THE CONTRACT SHOULD NOT BE TERMINATED FOR DEFAULT. IN VIEW OF THE UNSATISFACTORY PERFORMANCE OF THE EAGLE GENERATOR SETS, THE ADMINISTRATIVE OFFICE DID NOT BELIEVE IT COULD RELY UPON THE UTILIZATION OF THE EAGLE PART NUMBER TO OBTAIN ADEQUATE PARTS IN THE PROCUREMENT AND, ACCORDINGLY, IT DELETED IT FROM THE REQUEST FOR PROPOSALS. AWARD HAS BEEN MADE TO BOGUE ELECTRIC MANUFACTURING.

THE ADMINISTRATIVE OFFICE HAS ADVISED THAT THE PROCUREMENT WAS NEGOTIATED PURSUANT TO 10 U.S.C. 2304 (A) (10). THAT SECTION PROVIDES THAT CONTRACTS MAY BE NEGOTIATED IF FOR PROPERTY FOR WHICH IT IS IMPRACTICABLE TO OBTAIN COMPETITION. WHERE, AS HERE, A CONTRACTING OFFICER HAS MADE A DETERMINATION THAT A CONTRACT SHOULD BE NEGOTIATED UNDER THE AUTHORITY OF 10 U.S.C. 2304 (A) (10), SUCH A DETERMINATION IS "FINAL" UNDER 10 U.S.C. 2310 (B). ACCORDINGLY, SUCH A DETERMINATION TO NEGOTIATE MAY NOT BE QUESTIONED BY OUR OFFICE.