B-167209, SEP. 3, 1969

B-167209, SEP. 3, 1969

BID PROTEST - SOLE SOURCE - BIDDER QUALIFICATION DECISION TO GULF AEROSPACE CORPORATION DENYING PROTEST AGAINST SOLE SOURCE AWARD TO VARO, INC., FOR FURNISHING AIR FORCE OF ROCKET LAUNCHERS AND POWER SUPPLIES BECAUSE PROTESTANT WAS NOT AFFORDED OPPORTUNITY TO COMPETE AS QUALIFIED SOURCE. SINCE ABSENCE OF COMPETITIVE BIDDING OR SOLICITATION WAS NOT OCCASIONED BY PROTESTANT'S QUALIFICATION BUT WAS REQUIRED BY PURCHASING FOREIGN GOVERNMENT AND PERMITTED BY ASPR. THEREFORE, OBJECTION TO AWARD MAY NOT BE MADE.

TO GULF AEROSPACE CORPORATION:

WE REFER TO YOUR PROTEST, BY TELEGRAM DATED JUNE 11, 1969, AS SUPPLEMENTED BY YOUR LETTERS DATED JUNE 12 AND AUGUST 12, ADDRESSED TO WARNER ROBINS AIR MATERIEL AREA (WRAMA), AGAINST A SOLE SOURCE AWARD TO VARO, INC. (VARO), OF CONTRACT F09603-69-C-4187 FOR THE FURNISHING OF LAU- 7/A SIDEWINDER ROCKET LAUNCHERS AND POWER SUPPLIES.

THE SUBSTANCE OF YOUR PROTEST IS THAT YOU ARE A QUALIFIED SOURCE FOR THE EQUIPMENT IN QUESTION AND THEREFORE SHOULD HAVE BEEN ACCORDED AN EQUAL OPPORTUNITY TO COMPETE WITH VARO, WHO IS ALSO A QUALIFIED SOURCE, FOR THE PROCUREMENT NEED. FURTHER, THE AWARD TO VARO WITHOUT SUCH COMPETITION, YOU CLAIM, WOULD APPEAR TO BE IN VIOLATION OF, AND CONTRARY TO, THE PROVISIONS AND INTENT OF RULES AND REGULATIONS OF THE DEPARTMENT OF DEFENSE.

YOU FURTHER STATE THAT YOU ARE A SMALL BUSINESS CONCERN AND THAT YOU HAVE INVESTED A CONSIDERABLE PORTION OF YOUR CAPITAL IN TOOLING, ENGINEERING, TEST EQUIPMENT, DOCUMENTATION, AND PREPRODUCTION QUALIFICATION OF THE LAU- 7 LAUNCHER PROGRAM. ACCORDINGLY, YOU URGE THAT DENIAL TO YOU OF AN OPPORTUNITY TO COMPETE FOR PROCUREMENTS OF THIS TYPE CONSTITUTES A GROSS INEQUITY AND INJUSTICE TO YOU AND DOES NOT APPEAR TO BE IN THE BEST INTEREST OF THE GOVERNMENT.

IN SUPPORT OF YOUR PROTEST, YOU HAVE FURNISHED AS EVIDENCE OF YOUR QUALIFICATION TO SUPPLY THE PROCUREMENT ITEMS COPIES OF COMMUNICATIONS FROM THE NAVAL AIR SYSTEMS COMMAND, RELATING TO YOUR PERFORMANCE OF DEPARTMENT OF THE NAVY CONTRACT N00019-68-C-0450 FOR LAU-7/A LAUNCHERS, WHICH INDICATE THAT YOUR PREPRODUCTION SAMPLES WERE APPROVED AND PRODUCTION AUTHORIZED FOR LAUNCHERS IN MARCH 1969 AND FOR THE POWER SUPPLIES IN JULY 1969.

THE DEPARTMENT OF THE AIR FORCE REPORTS THAT CONTRACT F09603-69-C 4187 IS A LETTER CONTRACT WHICH WAS AWARDED BY WRAMA TO VARO ON MAY 1, 1969, FOR A QUANTITY OF 124 LAU-7 LAUNCHERS AND THAT THE CONTRACT WAS AMENDED ON MAY 15 TO INCREASE THE QUANTITY BY 176 UNITS. THE PROCUREMENT, THE FIRST OF ITS KIND AWARDED BY WRAMA, WAS NEGOTIATED PURSUANT TO THE PUBLIC EXIGENCY AUTHORITY IN 10 U.S.C. 2304 (A) (2) TO SATISFY AN URGENT REQUIREMENT OF A FOREIGN GOVERNMENT, WHICH REQUIRES DELIVERY OF THE LAUNCHERS TO COINCIDE WITH DELIVERY OF AIRCRAFT ON WHICH THE LAUNCHERS ARE TO BE INSTALLED. THE PURCHASE IS BEING EFFECTED UNDER THE MILITARY ASSISTANCE PROGRAM (MAP) AUTHORIZED PURSUANT TO SECTION 604 OF THE FOREIGN ASSISTANCE ACT OF 1961, 22 U.S.C. 2354, WITH THE DEPARTMENT OF THE AIR FORCE SERVING AS PURCHASING AGENT FOR THE FOREIGN PURCHASER, WHO WILL ULTIMATELY REIMBURSE THE UNITED STATES FOR THE COST OF THE PROCUREMENT ITEMS.

THE FILE MADE AVAILABLE TO OUR OFFICE BY THE DEPARTMENT OF THE AIR FORCE INCLUDES EVIDENCE THAT VARO WAS SELECTED ON MARCH 5, 1969, AS THE SOLE SOURCE FOR THE PROCUREMENT BY THE PARTICULAR FOREIGN GOVERNMENT FOR WHICH THE ITEMS ARE BEING PROCURED AND THAT THE RELATED AGREEMENT BETWEEN SUCH GOVERNMENT AND THE DEPARTMENT OF DEFENSE INCLUDES A PROVISION FOR SINGLE VENDOR INTEGRITY. FURTHER, THE PURCHASE REQUEST RECEIVED BY THE PROCURING ACTIVITY WAS ACCOMPANIED BY A SOLE SOURCE JUSTIFICATION, WHICH STATED,"THESE LAUNCHERS BEING PROCURED FOR --- MUST BE IDENTICAL IN CONFIGURATION, I.E., SAME PART NUMBER AND MANUFACTURER CODE AS THOSE INSTALLED ON THE AIRCRAFT. THEREFORE, SINGLE VENDOR INTEGRITY MUST BE USED AND CONTRACT AWARDED TO VARO MFG. CO., GARLAND, TEXAS.' A FURTHER NOTATION ON THE PURCHASE REQUEST SPECIFIED THAT SUBSTITUTION IS NOT AUTHORIZED AND THAT DELIVERY MUST BE AGAINST THE SPECIFIC PART NUMBER AND MANUFACTURER CODE REFLECTED ON THE PURCHASE REQUEST.

ON THE BASIS THAT THE SOLE SOURCE AWARD WAS NECESSARY TO SATISFY A LEGITIMATE REQUIREMENT OF THE PROCURING FOREIGN GOVERNMENT, THE DEPARTMENT OF THE AIR FORCE RECOMMENDS THAT YOUR PROTEST BE DENIED.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 6-703.2 PROVIDES FOR THE USE OF FORMAL ADVERTISING FOR MAP PROCUREMENTS WHEREVER PRACTICABLE BUT PERMITS NEGOTIATION UNDER ANY APPROPRIATE EXCEPTION OF 10 U.S.C. 2304 (A) (1) THROUGH (16). ASPR 6-705.2 (B), WHICH PROVIDES FOR PRE AWARD SOLICITATION OF PRICES FOR MAP PROCUREMENTS, EXCEPTS FROM SUCH PRICING REQUIREMENT PROCUREMENTS WHICH "CANNOT BE PLACED ON THE BASIS OF PRICE COMPETITION (AS, FOR EXAMPLE, WHERE THE FOREIGN CUSTOMER HAS DESIGNATED ONLY ONE SOURCE AS ACCEPTABLE).'

FROM THE FOREGOING IT IS APPARENT THAT THE ABSENCE OF COMPETITIVE BIDDING OR SOLICITATION ON THIS PROCUREMENT WAS NOT OCCASIONED BY ANY QUESTION AS TO YOUR QUALIFICATION TO FURNISH THE PROCUREMENT ITEMS IN ACCORDANCE WITH THE APPLICABLE SPECIFICATIONS, BUT WAS REQUIRED BY THE PURCHASING FOREIGN GOVERNMENT AND PERMITTED BY ASPR. ACCORDINGLY, WE SEE NO LEGAL BASIS TO OBJECT TO THE AWARD WHICH WAS MADE TO VARO OR TO THE SUBSEQUENT AMENDMENT OF THE CONTRACT TO INCREASE THE PROCUREMENT QUANTITY AT THE REQUEST OF THE FOREIGN PURCHASER. B-160870, JULY 27, 1967. FURTHER, THERE IS NO INDICATION IN THE RECORD OF ANY OTHER SIMILAR PROCUREMENT BY WRAMA.