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ON BASIS THAT PROTESTANT HAD EARLIER BID ON RECORD WHICH WAS LOWER THAN MODIFICATION PRICE. OFFERS NO BASIS FOR OBJECTION SINCE MODIFICATION WAS NOT FOR ADDITIONAL UNITS BUT FOR SECOND-YEAR INCREMENT INCLUDED IN ORIGINAL CONTRACT AND DELAY REQUIRED FOR COMPETITION WOULD NOT BE JUSTIFIED IN VIEW OF PRIORITY FOR RADIOS. PRESIDENT: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 30. BID FROM YOUR COMPANY LOWER THAN THE MODIFICATION PRICE AND THAT THE MODIFICATION CANNOT BE JUSTIFIED ON THE GROUNDS THAT THERE IS AN URGENT REQUIREMENT FOR THE RADIO SETS BEING PROCURED OR THAT THERE IS A LACK OF DATA WHICH WOULD PERMIT COMPETITION. CONTRACT DAAB05-67-C-0170/E) IS A 2-YEAR MULTI-YEAR PROCUREMENT FOR AN/PRC-77) ( RADIO SETS AWARDED ON APRIL 28.

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B-161031, DEC. 7, 1967

CONTRACTS - MULTI-YEAR - MODIFICATION DECISION TO DECITRON ELECTRONICS CORP. DENYING PROTEST AGAINST MODIFICATION OF CONTRACT BETWEEN RCA AND ARMY ELECTRONICS COMMAND. BIDDER WHO PROTEST MODIFICATION OF 2-YEAR MULTI-YEAR CONTRACT AWARDED DEVELOPER AND SOLE-SOURCE PRODUCER OF RADIO SETS, ON BASIS THAT PROTESTANT HAD EARLIER BID ON RECORD WHICH WAS LOWER THAN MODIFICATION PRICE, AND THAT MODIFICATION CANNOT BE JUSTIFIED ON GROUNDS OF URGENT REQUIREMENT OR LACK OF DATA TO PERMIT COMPETITION, OFFERS NO BASIS FOR OBJECTION SINCE MODIFICATION WAS NOT FOR ADDITIONAL UNITS BUT FOR SECOND-YEAR INCREMENT INCLUDED IN ORIGINAL CONTRACT AND DELAY REQUIRED FOR COMPETITION WOULD NOT BE JUSTIFIED IN VIEW OF PRIORITY FOR RADIOS.

TO MR. H. T. STARKAND, PRESIDENT:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 30, 1967, PROTESTING THE AUGUST 16, 1967, MODIFICATION OF CONTRACT DAAB05-67-C-0170/E) WITH RADIO CORPORATION OF AMERICA (RCA), CAMDEN, ON THE BASIS THAT THE UNITED STATES ARMY ELECTRONICS COMMAND HAS ON RECORD A MARCH 7, 1967, BID FROM YOUR COMPANY LOWER THAN THE MODIFICATION PRICE AND THAT THE MODIFICATION CANNOT BE JUSTIFIED ON THE GROUNDS THAT THERE IS AN URGENT REQUIREMENT FOR THE RADIO SETS BEING PROCURED OR THAT THERE IS A LACK OF DATA WHICH WOULD PERMIT COMPETITION.

CONTRACT DAAB05-67-C-0170/E) IS A 2-YEAR MULTI-YEAR PROCUREMENT FOR AN/PRC-77) ( RADIO SETS AWARDED ON APRIL 28, 1967, TO RCA, THE EQUIPMENT DEVELOPER AND SOLE CURRENT PRODUCER, ON THE BASIS THAT THERE WAS NO PROCUREMENT DATA AVAILABLE FOR COMPETITION AND THAT THE COMPANY AS THE DEVELOPER OF THE RADIO WAS THE ONLY KNOWN SOURCE CAPABLE OF FURNISHING THE SETS WITHIN THE REQUIRED TIME FRAME. THE CONTRACT WAS AWARDED UNDER THE AUTHORITY OF 10 U.S.C. 2304 (A) (2) AND PARAGRAPH 3 202.2 (VI) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). THE STATUTE AUTHORIZES CONTRACTS TO BE NEGOTIATED IF THE PUBLIC EXIGENCY WILL NOT PERMIT DELAY INCIDENT TO ADVERTISING. ASPR 3-202.2 (VI) PERMITS UTILIZATION OF THIS AUTHORITY WHEN A PURCHASE REQUEST CITES AN ISSUE PRIORITY DESIGNATOR 1 THOUGH 6. THE FIRST-YEAR REQUIREMENT WAS ASSIGNED AN 06 DESIGNATOR AND THE SECOND YEAR AN 02 DESIGNATOR. SECTION 2310 (B) OF TITLE 10, UNITED STATES CODE, SPECIFICALLY PROVIDES THAT ADMINISTRATIVE DECISIONS TO NEGOTIATE UNDER 10 U.S.C. 2304 (A) (2) ARE FINAL. SEE B-161031, JUNE 1, 1967, REGARDING THE SAME PROCUREMENT. THEREFORE, NO LEGAL BASIS EXISTS TO OBJECT TO THE "URGENCY" DETERMINATION.

THE AUGUST 16, 1967, MODIFICATION OF CONTRACT DAAB05-67-C-0170/E) DID NOT PROVIDE FOR ANY MORE UNITS THAN WERE CONTEMPLATED BY THE CONTRACT. MERELY REPRESENTS THE SECOND-YEAR INCREMENT WHICH WAS INCLUDED IN THE ORIGINAL MULTI-YEAR QUANTITIES AND TOTAL CONTRACT PRICE. ANY UNDERSTANDING THAT THE MODIFICATION ADDED QUANTITIES OVER THE ORIGINAL CONTRACT QUANTITIES MAY HAVE ARISEN FROM INCOMPLETE INFORMATION PUBLISHED IN THE COMMERCE BUSINESS DAILY WITH RESPECT TO THE MODIFICATION.

WITH RESPECT TO THE LACK OF COMPETITIVE PROCUREMENT DATA, THE CONTRACTING OFFICER HAS ADVISED THAT RCA DID NOT DELIVER DRAWINGS SUITABLE FOR PROCESSING FOR A DATA PACKAGE FOR COMPETITIVE PROCUREMENT UNTIL SEPTEMBER 1, 1967. FURTHER, HE HAS INDICATED THAT IF THE SECOND YEAR REQUIREMENT WAS POSTPONED UNTIL THE ARTICLE COULD BE LET TO COMPETITION, THERE WOULD BE A DELAY IN INITIAL DELIVERY WHICH WAS NOT CONSIDERED JUSTIFIED IN VIEW OF THE PRIORITY FOR THE RADIOS.

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