B-170052, AUG. 25, 1970

B-170052, AUG. 25, 1970

BID PROTEST DENIAL OF PROTEST AGAINST NEGOTIATED AWARD TO SECS, INC., FOR AIRCRAFT GEAR DRIVES FOR WARNER ROBINS AIR MATERIEL AREA ON BASIS THAT BIDDER DID NOT RECEIVE REQUEST FOR PROPOSAL. AN ORIGINAL SOURCE FIRM THAT DID NOT RECEIVE A REQUEST FOR PROPOSALS SENT OUT UNDER A MECHANIZED BIDDER LIST SYSTEM WHICH WAS AN OVERSIGHT MAY NOT HAVE SUCH OVER-SIGHT REGARDED AS BASIS FOR QUESTIONING THE LEGALITY OF AN AWARD SINCE PROCUREMENT WAS SYNOPSIZED AND THERE IS NO EVIDENCE OF INTENT TO EXCLUDE FIRM FROM PARTICIPATION.

TO PLANET INSTRUMENTS, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 15, 1970, PROTESTING THE AWARD OF A CONTRACT TO SECS, INC., UNDER REQUEST FOR PROPOSALS (RFP) NO. F09603- 70-R-4631, ISSUED BY WARNER ROBINS AIR MATERIEL AREA (WRAMA), DIRECTORATE OF PROCUREMENT AND PRODUCTION, WARNER ROBINS AIR FORCE BASE, GEORGIA.

THE REFERENCED SOLICITATION WAS ISSUED ON MARCH 5, 1970, FOR PROPOSALS FOR 848 FSN 5895 736 5587EW GEAR DRIVES FOR THE ALT 13/28 SYSTEM USED IN B -52 AIRCRAFT, WITH OPTIONS FOR THE PURCHASE OF ADDITIONAL INCREMENTS OF 848, 424 AND 212 OF THE GEAR DRIVES. ON AUGUST 28, 1969, THE PROCURING ACTIVITY HAD RECEIVED A PURCHASE REQUEST FOR TWO QUANTITIES OF THE FSN 5895 736 5587EW GEAR DRIVES. THE FIRST QUANTITY WAS PROCURED ON A SOLE SOURCE BASIS FROM HALLICRAFTERS DUE TO THE URGENCY OF THE REQUIREMENT. THE SECOND QUANTITY WAS ALSO SOLICITED FROM HALLICRAFTERS ON A SOLE SOURCE BASIS, HOWEVER, DURING DATA REVIEW TO ASCERTAIN THE REASONABLENESS OF THE PRICE PROPOSAL THE PROCURING ACTIVITY DETERMINED THAT ADEQUATE DATA EXISTED FOR A COMPETITIVE PROCUREMENT. A DATA PACKAGE WAS THEREFORE PREPARED AND A MECHANIZED BIDDER'S LIST, SUPPLEMENTED BY THE ADDITION OF HALLICRAFTERS, WAS USED TO RESOLICIT THE REQUIREMENTS.

ADVANCE SYNOPSIS OF THE PROCUREMENT WAS PUBLISHED IN THE COMMERCE BUSINESS DAILY OF FEBRUARY 27, 1970. TWENTY SOURCES WERE SOLICITED FROM THE MECHANIZED BIDDER'S LIST AND TEN ADDITIONAL REQUESTS FOR COPIES OF THE SOLICITATION WERE RECEIVED AS A RESULT OF THE SYNOPSIS. SIX PROPOSALS HAD BEEN RECEIVED BY APRIL 17, 1970, THE CLOSING DATE FOR RECEIPT OF PROPOSALS, AND AWARD WAS MADE TO SECS, INC., ON JUNE 5, 1970, AFTER A POSITIVE PREAWARD SURVEY HAD BEEN ISSUED ON THAT FIRM.

THE SPECIFICATIONS CONTAINED HALLICRAFTERS' ENVELOPE DRAWING NO. 150 007410, "GEAR DRIVE ASSEMBLY," WHICH IN NOTE 11 STATES:

"11. VENDOR - PLANET INSTRUMENT, INC. FORT

WAYNE, INDIANA CODE IDENT. NO. - NONE

VENDOR PART NO. A-359-1"

YOU COMPLAIN THAT YOUR FIRM WAS NOT SENT A COPY OF THE RFP EVEN THOUGH YOU ARE THE ORIGINAL SOURCE, THE ONLY QUALIFIED SOURCE, AND THE ONLY SOURCE LISTED ON THE DRAWINGS CONTAINED IN THE SPECIFICATIONS FOR THESE GEAR DRIVES. YOU STATE THAT YOUR UNIT PRICE OF $46.00 PER GEAR DRIVE WOULD HAVE SAVED THE GOVERNMENT APPROXIMATELY $8,000 ON THE PROCUREMENT.

THE PROCURING ACTIVITY ACKNOWLEDGES THAT DUE TO AN OVERSIGHT DURING DATA REVIEW YOU WERE NOT SENT A COPY OF THE RFP, BUT THE AGENCY EMPHASIZES THAT THE OVERSIGHT WAS NOT INTENTIONAL NOR IN ANYWAY MEANT TO ELIMINATE COMPETITION.

CONCERNING YOUR CONTENTIONS THAT YOUR FIRM IS THE ORIGINAL SOURCE AND THE ONLY QUALIFIED SOURCE FOR THE ITEM, WE DO NOT CONSIDER THE ORIGINAL SOURCE OF THE ITEM AS MATERIAL IN DECIDING THE PROPRIETY OF THE AWARD. HOWEVER, THE AGENCY STATES THAT ALL PREVIOUS PROCUREMENTS HAVE BEEN CONDUCTED WITH THE HALLICRAFTERS COMPANY WHICH DESIGNED, DEVELOPED AND PRODUCED THE ALT 13/28 SYSTEM. IN REGARD TO YOUR CONTENTION THAT YOU ARE THE ONLY QUALIFIED SOURCE, THE AGENCY STATES THAT THE PREAWARD SURVEY CONDUCTED ON SECS, INC., DATED MAY 5, 1970, ESTABLISHES THAT SECS IS QUALIFIED TO MANUFACTURE THESE ITEMS. IN ADDITION, AS PREVIOUSLY INDICATED, THE ITEMS WERE RECENTLY PROCURED ON A SOLE SOURCE BASIS FROM HALLICRAFTERS UNDER CONTRACT NO. F09603-70-C-3606. THUS, IT DOES NOT APPEAR THAT YOU ARE THE ONLY QUALIFIED SOURCE FOR THE ITEM.

IT HAS BEEN THE CONSISTENT POSITION OF THIS OFFICE THAT A FAILURE ON THE PART OF THE GOVERNMENT TO SEND A COPY OF A SOLICITATION TO AN INTERESTED FIRM DOES NOT ORDINARILY REQUIRE EITHER A RESOLICITATION OR THE ACCEPTANCE OF AN OFFER SUBMITTED AFTER THE CLOSING TIME SET FOR THE RECEIPT OF PROPOSALS, UNLESS THERE IS SOME INDICATION IN THE RECORD THAT THERE WAS A CONSCIOUS AND DELIBERATE INTENTION TO EXCLUDE A FIRM FROM PARTICIPATING IN THE PROCUREMENT. SEE B-168591, APRIL 21, 1970, AND B-161241, MAY 8, 1967. IN THE INSTANT CASE, THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY IN ACCORDANCE WITH SECTION 1 1003.1(A) OF THE ARMED SERVICES PROCUREMENT REGULATION. THERE IS NO INDICATION OF A REQUEST BY YOUR FIRM TO BE PLACED ON THE MECHANIZED BIDDER'S LIST FOR THE ITEM INVOLVED, OR OF ANY CONSCIOUS OR DELIBERATE ATTEMPT TO EXCLUDE YOUR FIRM FROM PARTICIPATING IN THE PROCUREMENT. WE THEREFORE SEE NO BASIS ON WHICH TO QUESTION THE LEGALITY OF THE AWARD IN THIS PROCUREMENT.

IN CONNECTION WITH FUTURE PROCUREMENTS, WE HAVE BEEN ADVISED BY THE AIR FORCE THAT IN ORDER TO PREVENT A RECURRENCE OF THE ABOVE SITUATION YOUR FIRM'S NAME HAS BEEN ADDED TO WRAMA'S MECHANIZED SOURCE LIST WHICH WAS UTILIZED FOR PROCUREMENT OF THIS ITEM. IN ADDITION AIR FORCE PROCUREMENT INSTRUCTION FORM 24 "COMMODITY LIST DATA," AND STANDARD FORM 129 "BIDDER'S MAILING LIST APPLICATION" HAVE BEEN FORWARDED TO YOUR FIRM TO INSURE THAT YOU WILL BE SOLICITED ON ALL ITEMS ON WHICH YOU MIGHT DESIRE TO SUBMIT A BID OR PROPOSAL.

FOR THE ABOVE REASONS, YOUR PROTEST MUST BE DENIED.