B-172357, AUG 12, 1971

B-172357, AUG 12, 1971

BID PROTEST - SOLE-SOURCE PROCUREMENT - URGENT REQUIREMENT DECISION DENYING PROTEST AGAINST THE SOLE-SOURCE PROCUREMENT OF A CIRCUIT TESTER FROM HUGHES AIRCRAFT COMPANY UNDER AN RFP ISSUED BY ROBINS AFB. THE RFP WAS ISSUED PURSUANT TO A DETERMINATION AND FINDINGS WHICH CITED THE PUBLIC EXIGENCY EXCEPTION IN 10 U.S.C. 2304(A)(2) AND BECAUSE A COMPLETE DATA PACKAGE COULD NOT HAVE BEEN ASSEMBLED AND FURNISHED COMPETING CONTRACTORS TO COMPLY WITH THE PROGRAMMING REQUIREMENTS, IT WAS PROPER TO OBTAIN THE PRODUCT ON A SOLE-SOURCE BASIS.

TO DIT-MCO INTERNATIONAL:

REFERENCE IS MADE TO YOUR LETTERS DATED MARCH 23 AND MAY 5, 1971, PROTESTING AGAINST A SOLE-SOURCE PROCUREMENT FROM HUGHES AIRCRAFT COMPANY UNDER REQUEST FOR PROPOSALS F09650-71-R-3703, ISSUED BY THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, ROBINS AIR FORCE BASE, GEORGIA, FOR A MOBILE FLEXIBLE AUTOMATIC CIRCUIT TESTER.

YOU STATE THAT AFTER LEARNING OF THE AWARD OF A CONTRACT FOR THE ABOVE ITEM IN THE COMMERCE BUSINESS DAILY, YOU CONTACTED THE CONTRACTING OFFICE AND WERE INFORMED THAT THE SOLICITATION HAD BEEN ISSUED ON A SOLE-SOURCE BASIS TO HUGHES AIRCRAFT. YOU CONTEND THAT THE SOLICITATION SHOULD HAVE BEEN ISSUED ON A COMPETITIVE BASIS SINCE YOUR COMPANY AS WELL AS OTHER COMPANIES MANUFACTURE EQUIPMENT OF THE TYPE SOUGHT HERE. YOU DISAGREE WITH THE EMERGENCY BASIS OF THE SOLE-SOURCE PROCUREMENT, STATING THAT IF YOU HAD BEEN SUPPLIED WITH THE SAME INFORMATION AS HUGHES AIRCRAFT YOU COULD HAVE SUBMITTED A BID WITHIN THE SAME TIME FRAME.

AS INDICATED IN THE CONTRACTING OFFICER'S STATEMENT, THE PURCHASE REQUEST FOR THE CIRCUIT TESTER WAS INITIATED ON AN "URGENT-WALK-THRU" BASIS FOR PROCUREMENT AS AN EMERGENCY REQUIREMENT IN SUPPORT OF PRIORITY REQUIREMENTS FOR THE F-106 AIRCRAFT. THE ITEM IS STATED TO BE REQUIRED TO PERFORM TESTS ON ELECTRONIC CIRCUITS (9 RELAY UNITS) IN AIR DEFENSE SYSTEMS USED IN THE F-106 AIRCRAFT.

THE SUBJECT REQUEST FOR PROPOSAL WAS ISSUED ON DECEMBER 31, 1970, AND WAS SYNOPSIZED IN THE DEPARTMENT OF COMMERCE BUSINESS DAILY. THE SOLE PROPOSAL SOLICITED WAS OPENED ON JANUARY 20, 1971. AFTER COST ANALYSIS, AUDIT AND SUBSEQUENT NEGOTIATION, AWARD WAS MADE TO HUGHES AIRCRAFT COMPANY ON MARCH 12, 1971, CALLING FOR DELIVERY OF THE ITEM IN 90 DAYS. THE REQUEST FOR PROPOSALS WAS ISSUED PURSUANT TO A DETERMINATION AND FINDINGS WHICH CITED THE PUBLIC EXIGENCY EXCEPTION IN 10 U.S.C. 2304(A)(2). IT IS REPORTED THAT ALTHOUGH THE REQUIREMENT FOR THE TESTER WAS ESTABLISHED IN LATE AUGUST 1970, FOUR MONTHS ELAPSED IN ACCOMPLISHING PRESCRIBED INTERNAL ACTIONS AND CLEARANCE OF FUNDS PRIOR TO INITIATION OF THE RFP ON DECEMBER 31, 1970. THE FILE ALSO CONTAINS A SOLE-SOURCE JUSTIFICATION DATED DECEMBER 28, 1970, STATING THAT HUGHES AIRCRAFT IS THE ONLY KNOWN SOURCE WHICH CAN SATISFY THE PROCUREMENT REQUIREMENTS OF THE PROPOSAL WITHIN THE PRESCRIBED TIME PERIOD. IN SUPPORT OF THIS SOLE- SOURCE JUSTIFICATION IT IS REPORTED THAT:

"B. PARAGRAPH 2(A)(1). DATA FOR FOUR (4) OF THE NINE (9) RELAYS TO BE TESTED ARE NOT AVAILABLE AT WRAMA NOR AT THE AFLC ENGINEERING DATA DEPOSITORY. A COMPLETE DATA PACKAGE COULD NOT HAVE BEEN FURNISHED TO A COMPETING CONTRACTOR TO COMPLY WITH THE PROGRAMMING REQUIREMENTS OF THE RFP STATEMENT OF WORK. ALTHOUGH HUGHES MAINTAINS CURRENT DATA, THE COST INCIDENT TO ACQUISITION OF DATA IN A FORM SUITABLE FOR AIR FORCE USE IN A COMPETITIVE PROCUREMENT WOULD OFFSET ANY PRICE REDUCTION ADVANTAGE GAINED BY COMPETITION. THE DELAY ASSOCIATED WITH ACQUISITION AND VERIFICATION OF ADEQUACY FOR COMPETITIVE PROCUREMENT OF THIS ONE TIME BUY WOULD HAVE SERIOUSLY DELAYED SUPPORT OF AN AIR DEFENSE COMMAND MAINTENANCE PROJECT (PROJECT CIKR) IN SUPPORT OF THE F-106 AIRCRAFT.

"C. PARAGRAPHS 2(A)(2) AND 5. WRAMA HAS THE HUGHES SPECIFICATION T550- 800 WHICH DESCRIBES THE FACT II TESTER WE ARE BUYING. THIS IS A GENERAL DESCRIPTION SPECIFICATION. IN ORDER TO PROCURE A TESTER OF THIS TYPE ON A COMPETITIVE BASIS, WRAMA WOULD HAVE TO OBTAIN TECHNICAL INFORMATION ON OTHER TESTERS AVAILABLE IN INDUSTRY AND PERFORM A REVIEW OF THIS INFORMATION TO DETERMINE THE TESTERS THAT MET OUR MINIMUM REQUIREMENTS. IT THEN WOULD HAVE BEEN NECESSARY TO WRITE A GENERAL SPECIFICATION AND SOLICIT PROPOSALS FROM ALL QUALIFIED FIRMS.

"D. PARAGRAPHS 3 AND 4. IT WAS NOT DEEMED PRUDENT, IN VIEW OF THE URGENCY OF THE REQUIREMENT, TO SOLICIT TECHNICAL PROPOSALS FROM CONCERNS IN THE CIRCUIT TESTER INDUSTRY. THE SELECTION OF THE HUGHES TESTER WAS BASED IN PART ON THE SATISFACTORY USAGE OF TWO (2) HUGHES TESTERS IN THE MA-1 SYSTEM AND WAS NOT INTENDED TO IMPLY ANY SUPERIORITY OF OTHER COMPETITORS' PRODUCTS. ADAPTATION OF THE HUGHES TESTER FOR ADC USAGE WAS DETERMINED THE MOST PRACTICAL UNDER THE URGENT CONDITION PREVALENT AT THE TIME OF PROCUREMENT."

THUS, THE ADMINISTRATIVE REPORT STATES, THAT DATA WAS NOT AVAILABLE ON FOUR OF THE NINE RELAYS TO BE TESTED AT EITHER THE WARNER ROBINS AIR MATERIEL AREA OR THE AIR FORCE LOGISTICS CENTER; THAT A COMPLETED DATA PACKAGE COULD NOT HAVE BEEN ASSEMBLED AND FURNISHED COMPETING CONTRACTORS TO COMPLY WITH THE PROGRAMMING REQUIREMENTS OF THE PROCUREMENT. IN THIS CONNECTION IT IS REPORTED THAT IN ORDER TO PROCURE A TESTER OF THIS TYPE ON A COMPETITIVE BASIS, THE WARNER ROBINS AIR MATERIEL AREA WOULD HAVE HAD TO OBTAIN TECHNICAL INFORMATION ON OTHER TESTERS AVAILABLE IN INDUSTRY AND PERFORM A REVIEW OF THIS INFORMATION TO DETERMINE THAT THE TESTERS MET MINIMUM REQUIREMENTS; THAT IT THEN WOULD HAVE BEEN NECESSARY TO WRITE A GENERAL SPECIFICATION AND SOLICIT PROPOSALS FROM ALL QUALIFIED FIRMS; AND THAT THE COST AND TIME INCIDENT TO THIS PROCEDURE WOULD OFFSET ANY PRICE REDUCTION ADVANTAGE GAINED BY COMPETITION FOR A SINGLE TESTER AT AN APPROXIMATE PRICE OF $118,000.

WE HAVE CAREFULLY REVIEWED YOUR CONTENTIONS AND THE ADMINISTRATIVE DOCUMENTS AND CANNOT CONCLUDE THAT THE CONTRACTING OFFICER ACTED IN AN ARBITRARY OR CAPRICIOUS MANNER, OR IN A MANNER, IN VIEW OF THE URGENT NEED, NOT IN THE BEST INTERESTS OF THE GOVERNMENT.

ACCORDINGLY, WE MUST DENY YOUR PROTEST.