B-174809, APR 20, 1972, 51 COMP GEN 658

B-174809, APR 20, 1972, 51 COMP GEN 658

CONTRACTS - NEGOTIATION - DETERMINATION AND FINDINGS - FINALITY ALTHOUGH THE WRITTEN FINDING, PURSUANT TO 10 U.S.C. 2310(B), BY A CONTRACTING OFFICER OF HIS DETERMINATION TO NEGOTIATE A PROCUREMENT PURSUANT TO THE "PUBLIC EXIGENCY" EXCEPTION TO THE USE OF FORMAL ADVERTISING SET FORTH AT 10 U.S.C. 2304(A)(2), AS IMPLEMENTED BY PARAGRAPH 3-202.2(VI) OF THE ARMED SERVICE PROCUREMENT REGULATION, IS FINAL UNDER THE TERMS OF THE STATUTE, THE UNITED STATES GENERAL ACCOUNTING OFFICE IS NOT PRECLUDED FROM QUESTIONING WHETHER THE DETERMINATION BASED ON THE FINDINGS IS PROPER. TO THE EXTENT PRIOR DECISIONS CITING 10 U.S.C. 2310(B) ARE CONTRARY TO THIS HOLDING, THEY SHOULD NOT BE FOLLOWED.

TO THE SECRETARY OF THE ARMY, APRIL 20, 1972:

ENCLOSED IS A COPY OF OUR DECISION OF TODAY CONCERNING THE PROTEST OF AMERICAN OPTICAL CORPORATION AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER RFP DAAA25-72-R-0202, ISSUED AT FRANKFORD ARSENAL, PHILADELPHIA, PENNSYLVANIA.

ALTHOUGH WE HAVE DENIED THE PROTEST, WE BELIEVE A CERTAIN PORTION OF THE RECORD WARRANTS FURTHER COMMENT.

THE SUPPLEMENTAL REPORT DATED FEBRUARY 28, 1972, FROM HEADQUARTERS, ARMY MATERIEL COMMAND, STATES AS THE POSITION OF THAT HEADQUARTERS, THAT "A DETERMINATION AND FINDINGS UNDER THE PUBLIC EXIGENCY EXCEPTION IS FINAL AND NOT SUBJECT TO QUESTION BY (OUR) OFFICE." THIS COMMENT WAS PART OF A RESPONSE TO OUR INQUIRY CONCERNING THE VALIDITY OF THE REQUIRED "DETERMINATION AND FINDINGS" (D&F) SIGNED BY THE CONTRACTING OFFICER, WHEREIN HE DETERMINED TO NEGOTIATE THIS PROCUREMENT PURSUANT TO THE "PUBLIC EXIGENCY" EXCEPTION TO THE USE OF FORMAL ADVERTISING SET FORTH AT 10 U.S.C. 2304(A)(2), AND AS IMPLEMENTED BY ASPR 3-202.2(VI).

WE ARE OF THE VIEW THAT CONGRESS INTENDED FOR FINALITY TO ATTACH ONLY TO THE "FINDINGS" CONTAINED IN SUCH A D&F. IN THIS REGARD 10 U.S.C. 2310(B) READS AS FOLLOWS:

(B) EACH DETERMINATION OR DECISION UNDER CLAUSES (11)-(16) OF SECTION 2304(A), SECTION 2306(C), SECTION 2306(G)(1), SECTION 2307(C), OR SECTION 2313(C) OF THIS TITLE AND A DECISION TO NEGOTIATE CONTRACTS UNDER CLAUSES (2), (7), (8), (10), (12), OR FOR PROPERTY OR SUPPLIES UNDER CLAUSE (11) OF SECTION 2304(A), SHALL BE BASED ON A WRITTEN FINDING BY THE PERSON MAKING THE DETERMINATION OR DECISION, WHICH FINDING SHALL SET OUT FACTS AND CIRCUMSTANCES THAT (1) ARE CLEARLY ILLUSTRATIVE OF THE CONDITIONS DESCRIBED IN CLAUSES (11)-(16) OF SECTION 2304(A), (2) CLEARLY INDICATE WHY THE TYPE OF CONTRACT SELECTED UNDER SECTION 2306(C) IS LIKELY TO BE LESS COSTLY THAN ANY OTHER TYPE OR THAT IT IS IMPRACTICABLE TO OBTAIN PROPERTY OR SERVICES OF THE KIND OR QUALITY REQUIRED EXCEPT UNDER SUCH A CONTRACT, (3) SUPPORT THE FINDINGS REQUIRED BY SECTION 2306(G)(1), (4) CLEARLY INDICATE WHY ADVANCE PAYMENTS UNDER SECTION 2307(C) WOULD BE IN THE PUBLIC INTEREST, (5) CLEARLY INDICATE WHY THE APPLICATION OF SECTION 2313(B) TO A CONTRACT OR SUBCONTRACT WITH A FOREIGN CONTRACTOR OR FOREIGN SUBCONTRACTOR WOULD NOT BE IN THE PUBLIC INTEREST, OR (6) CLEARLY AND CONVINCINGLY ESTABLISH WITH RESPECT TO THE USE OF CLAUSES (2), (7), (8), (10), (12), AND FOR PROPERTY OR SUPPLIES UNDER CLAUSE (11) OF SECTION 2304(A), THAT FORMAL ADVERTISING WOULD NOT HAVE BEEN FEASIBLE AND PRACTICABLE. SUCH A FINDING IS FINAL AND SHALL BE KEPT AVAILABLE IN THE AGENCY FOR AT LEAST SIX YEARS AFTER THE DATE OF THE DETERMINATION OR DECISION. A COPY OF THE FINDING SHALL BE SUBMITTED TO THE GENERAL ACCOUNTING OFFICE WITH EACH CONTRACT TO WHICH IT APPLIES.

IN LIGHT OF THE TERMS OF THIS STATUTE, WE ARE PRECLUDED FROM DISTURBING THE FINDINGS UPON WHICH THE "PUBLIC EXIGENCY" EXCEPTION TO FORMAL ADVERTISING IS JUSTIFIED. HOWEVER, THE STATUTE DOES NOT PRECLUDE OUR QUESTIONING WHETHER THE DETERMINATION, BASED ON THOSE FINDINGS, IS PROPER.

TO THE EXTENT THAT THIS OFFICE HAS ISSUED ANY PRIOR DECISIONS CITING 10 U.S.C. 2310(B) AS AUTHORITY FOR THE POSITION URGED BY HEADQUARTERS, ARMY MATERIEL COMMAND, THOSE DECISIONS SHOULD NOT BE FOLLOWED.

THE FILE FORWARDED WITH THE REPORT TO OUR OFFICE ON FEBRUARY 4, 1972, BY THE DEPUTY GENERAL COUNSEL HEADQUARTERS, ARMY MATERIEL COMMAND IS RETURNED.