B-164927, NOV. 19, 1968

B-164927, NOV. 19, 1968

TO ENGELHARD HANOVIA, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF JULY 22 AND AUGUST 2, 1968, PROTESTING AN AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. DAAB07-68-B-0473, ISSUED BY THE U.S. ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY.

THE SUBJECT IFB, ISSUED ON JUNE 1, 1968, SOUGHT THE PURCHASE OF 1,516 LAMPS, XENON, SHORT-ARC, 2.2 KW (WITH CONTAINER ASSEMBLY) TO BE MANUFACTURED IN ACCORDANCE WITH SIGNAL CORPS DRAWINGS SC-D-613920 AND SC-D -613912, MILITARY SPECIFICATIONS MIL-L-52446A (EL), DATED JANUARY 31, 1968; AND IDENTIFIED AS FEDERAL STOCK NUMBER (FSN) 6230-012-1957. (FEDERAL SUPPLY CATALOG GROUP 62 CLASS 6230.)

THE TWO LOWEST OF THE FOUR BIDS RECEIVED IN RESPONSE TO THE INVITATION WERE AS FOLLOWS:

UNIT PRICE TOTAL PRICE

WITH WITHOUT WITH WITHOUT

DISCOUNT DISCOUNT DISCOUNT DISCOUNT

------------------ ------------------------ ITT ELCT TUBE DIV., $303.93$307.00 $462,242.88 $466,912.00 ITT CORP. ENGELHARD HANOVIA, 344.96 352.00 522,959.36 533,632.00 INC.

ON JULY 12, 1968, A CONTRACT FOR THE SUBJECT LAMPS WAS AWARDED TO I.T.T. ELECTRON TUBE DIVISION, INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION (I.T.T.), EASTON, PENNSYLVANIA.

YOUR PROTEST IS BASED ON THE FOLLOWING CONTENTIONS: "1) THE LAMP IN QUESTION IS A XENON SHORT ARC 2.2 KW LAMP FOR SEARCHLIGHT, INFRA RED, 28 VOLTS, 110 AMPERES, AS PER SPECIFICATION MIL-L-52446A (EL) DATED JANUARY 31, 1968 AND AS PER DRAWING NO. SC-D-613920. "2) THIS LAMP IS LISTED ON THE FEDERAL SUPPLY SCHEDULE (CONTRACT GS-00S-74687), EFFECTIVE THROUGH OCTOBER 31, 1968, AS ENGELHARD HANOVIA, INC. PART NO. 942-C99. "3) THE PROCUREMENT OF THE LAMP FROM ITT WAS BASED UPON AN IFB ISSUED BY THE ARMY ON JUNE 1, 1968. "4) THE LAMP IN QUESTION IS A GROUP 62 CLASS 6240 ITEM - MEANING THAT UNDER THE ARMED SERVICES PROCUREMENT REGULATIONS PROCUREMENT VIA THE FEDERAL SUPPLY SCHEDULE IS MANDATORY. "5) THEREFORE, PROCUREMENT BY MEANS OF AN IFB CONSTITUTED A VIOLATION OF THE ASPR AND AN ILLEGAL PROCUREMENT.'

IN RESPONSE TO YOUR CONTENTION CONCERNING THE PROPER CLASSIFICATION OF THE SUBJECT SEARCHLIGHTS, THE CONTRACTING OFFICER STATED IN PART AS FOLLOWS: "/1) ENGELHARD HANOVIA HAD BID AGAINST A SIMILAR PROCUREMENT AND WAS AWARDED A PREVIOUS CONTRACT FOR SIMILAR LAMPS WHICH WOULD INDICATE THAT THEY DID NOT AT THAT TIME FEEL THAT THE ITEM WAS COVERED BY FEDERAL SUPPLY SCHEDULE CONTRACT. "/2) THE IFB FOR THE PROTESTED AWARD REQUIRED A FORMAL RESPONSE PRIOR TO BID OPENING TO STATE ANY OBJECTIONS TO THE IFB. ENGELHARD HANOVIA SUBMITTED NO EXCEPTIONS AND MADE A FORMAL POSITIVE RESPONSE TO THE IFB. "/3) NO LAMP HAD PREVIOUSLY BEEN MANUFACTURED UNDER THE SPECIFICATION REQUIRED FOR THE PURCHASE UNDER IFB DAAB07-68-B0473. THIS PROCUREMENT SPECIFIES MIL-L 52446A (EL), DATED 31 JANUARY 1968, AND DRAWINGS SC-D-613920 AND SC-D 613912. THE FSS CONTRACT REFERS ONLY TO THE OUTDATED CORPS OF ENGINEERS DRAWING NO. 13200E8342 WHICH IN TURN MAKES REFERENCE TO MIL L-52446 (MO), DATED 1 SEPTEMBER 1965. THERE ARE SEVENTEEN CHANGES TO THE ORIGINAL SPECIFICATION. ALL OF THESE DIFFERENCES ARE IN THE NATURE OF IMPROVEMENTS TO THE ORIGINAL SPECIFICATION. THESE DEFICIENCIES WERE NOTED DURING ACTUAL FIELD TESTING. IN REGARD TO THE DRAWINGS, THERE ARE 30 DIFFERENCES BETWEEN THE ORIGINAL AND THE NEW SET OF DRAWINGS. THE UPDATED SPECIFICATIONS AND DRAWINGS HAVE ALTERED AND IMPROVED THE LAMP, THEREFORE IT IS NOT THE SAME LAMP AS CALLED FOR BY THE FSS CONTRACT.'

THE REPORT ALSO STATES THAT THE SUBJECT LAMPS WERE PROCURED OVER A CONSIDERABLE PERIOD OF TIME INDEPENDENTLY OF YOUR FSS CONTRACT, AND WITHOUT ANY APPARENT OBJECTION ON YOUR PART. FOR INSTANCE, THE RECORD SHOWS THAT IN RESPONDING TO RFP DAAB07-67-6-R0421 ON MARCH 13, 1967, FOR LAMPS "F.S.N. 6230-012-1957" YOU MADE NO MENTION OFA GSA CONTRACT. LETTER DATED APRIL 18, 1968, YOU NOTED THAT YOU HAD SHIPPED 3,787 LAMPS UNDER CONTRACT DAAB07-67-C-0469 AND THAT IN ANTICIPATION OF ADDITIONAL PROCUREMENT UNDER THE OPTION CLAUSE YOU RECOMMENDED A DELIVERY EXTENSION FOR THE BALANCE OF 1,340 LAMPS. IN A LETTER OF MAY 13, 1968, REFERRING TO THE APRIL 18, 1968, LETTER AND RECENT IFB ON 23 INCH TANK SEARCHLIGHT SPECIFYING THAT THE LAMPS WOULD BE GOVERNMENT FURNISHED, YOU ADVISED THAT SUCH LAMPS COULD BE ADDED UNDER THE OPTION CLAUSE, POINTING OUT THAT THE LAMP WAS SPECIFICALLY DEVELOPED FOR THE ARMY BY YOU AND THAT SERIOUS CONSIDERATION SHOULD BE GIVEN TO QUALIFICATION OF POTENTIAL SOURCES WHENEVER A PROCUREMENT WAS CONTEMPLATED. AGAIN NO MENTION OF A GSA CONTRACT WAS MADE. IT APPEARS ALSO, THAT ON THE PRESENT PROCUREMENT YOU SUBMITTED YOUR BID WITHOUT EXCEPTIONS FOR THE LAMPS IDENTIFIED AS "FSN 6230," AND OBJECTED TO THIS CLASSIFICATION ONLY AFTER BIDS HAD BEEN OPENED.

PROCEDURES APPLICABLE TO THE DEPARTMENT OF DEFENSE FOR PROCUREMENT OF ITEMS SHOWN IN THE FEDERAL SUPPLY SCHEDULES ARE PROMULGATED UNDER PART I, SECTION V, OF THE ASPR, WHICH STATES IN PART: "5-102.1 GENERAL. FEDERAL SUPPLY SCHEDULES UNDER WHICH PROCUREMENT IS MANDATORY ON THE DEPARTMENT OF DEFENSE ARE LISTED IN 5-102.3. THE PERTINENT CONTRACTS PROVIDE THAT FOR A DEFINITE PERIOD THE CONTRACTOR IS OBLIGATED TO DELIVER ALL SUPPLIES OR SERVICES THAT MAY BE ORDERED THEREUNDER BY GOVERNMENT AGENCIES, SUBJECT TO THE STATED MINIMUM AND MAXIMUM ORDER LIMITATIONS.

* * * * * * * "5 102.3 APPLICABILITY OF LISTED FEDERAL SUPPLY SCHEDULES. SUPPLIES AND SERVICE COVERED BY THE FEDERAL SUPPLY SCHEDULES LISTED HEREIN ARE MANDATORY IN WHOLE OR IN PART UPON SOME ELEMENT OF THE DEPARTMENT OF DEFENSE. SOME OF THE FEDERAL SUPPLY SCHEDULES LISTED INCLUDE CLASSES UNRELATED TO THE FEDERAL SUPPLY GROUP WHICH IDENTIFIES THE SCHEDULE. AID IN LOCATING AN ITEM IN THE MANDATORY SCHEDULES, THE CLASSES INCLUDED IN EACH SCHEDULE HAVE BEEN LISTED. THE REMARKS COLUMN STATES EXCEPTIONS TO THE MANDATORY PROVISIONS OF THE SCHEDULE WHEN APPLICABLE. THE SCHEDULES SHOULD BE CHECKED FOR COMPLETE DETAIL CONCERNING THE EXCEPTIONS.

(A) MANDATORY NATIONALLY.

FSC GROUP CLASS TITLE OF SCHEDULE REMARKS

62 ---- LIGHTING FIXTURES AND NOT MANDATORY ON ARMY OR

LAMPS, PART I. AIR FORCE FOR ITEMS

COVERED BY ARMY OR

6230 HOUSEHOLD AND QUARTERS MILITARY SPECIFICATIONS.

LAMPS.

62* ---- LIGHTING FIXTURES AND NO EXCEPTIONS.

LAMPS, PART II.

6240 ELECTRIC LAMPS.'

WE FIND THAT DEFENSE GENERAL SUPPLY CENTER'S PUBLICATION ENTITLED "FEDERAL SUPPLY CATALOG DEPARTMENT OF DEFENSE SECTION IDENTIFICATION LIST OF ITEMS USED BY U.S. ARMY, FSC GROUP 62 LIGHTING FIXTURES AND LAMPS," EFFECTIVE DATE JULY 1, 1967, LISTS FEDERAL STOCK NUMBER 012 1957, LAMP AND CONTAINER ASSEMBLY, UNDER CLASS 6230. IN VIEW OF THIS CLASSIFICATION, AND SINCE THE ITEM IN QUESTION IS COVERED BY MILITARY SPECIFICATIONS, WE CONCLUDE THAT THE PURCHASE OF SUCH ITEMS FROM A FSS CONTRACT IS NOT MANDATORY. DESPITE YOUR LISTING OF THE SAME OR A SIMILAR ITEM IN YOUR CATALOG FURNISHED UNDER YOUR CONTRACT FOR CLASS 6240, YOUR PREVIOUS CONDUCT IN SUPPLYING THESE LAMPS UNDER INDEPENDENT CONTRACTS WITH THE ARMY, AT PRICES DIFFERENT FROM THOSE QUOTED UNDER YOUR SUPPLY CONTRACT, AND IN BIDDING ON THE PRESENT PROCUREMENT, APPEARS TO BE WHOLLY INCONSISTENT WITH YOUR PRESENT CLAIM.

IN THESE CIRCUMSTANCES, AND IN THE LIGHT OF THE PROCURING AGENCY'S REPORT OF THE NUMEROUS SPECIFICATION CHANGES INCORPORATED IN THE MILITARY SPECIFICATION AND DRAWING CITED IN THE SUBJECT PROCUREMENT, WE CONCLUDE THAT THERE IS NO ADEQUATE LEGAL BASIS UPON WHICH WE MAY OBJECT TO THE AWARD IN THIS CASE, AND YOUR PROTEST IS THEREFORE DENIED.