B-166285, JUN. 5, 1969

B-166285, JUN. 5, 1969

TO TYCO, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTERS DATED FEBRUARY 28, MARCH 5, MARCH 19, AND APRIL 28, 1969, FURNISHING ENCLOSURES AND COMMENTS RELATIVE TO YOUR PROTEST AGAINST AWARD OF A CONTRACT TO ANOTHER COMPANY UNDER REQUEST FOR PROPOSALS NO. DSA700-69-R-5302, ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, DEFENSE SUPPLY AGENCY, COLUMBUS, OHIO.

THE REQUEST FOR PROPOSALS (RFP) WAS ISSUED BY TELEGRAM DATED JANUARY 10, 1969, AND SENT TO THREE COMPANIES; HOWEVER, THE TELEGRAM WAS NOT SENT TO TYCO, INCORPORATED. NEGOTIATION UNDER 10 U.S.C. 2304 (A) (10) AND PARAGRAPH 3-210.2 (XIII) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WAS SUPPORTED BY A DETERMINATION AND FINDINGS EXECUTED ON JANUARY 9, 1969, THAT DATA WAS NOT AVAILABLE TO ADEQUATELY DESCRIBE THE SUPPLIES REQUIRED. THE RFP SOLICITED OFFERS ON A TOTAL OF 50 CONDENSERS, FSN 4130- 774-5399, FAIRCHILD-HILLER CORPORATION P/N 105897, WITH TERMS AS STATED IN THE TELEGRAM. DELIVERY WAS TO BE "AT THE EARLIEST POSSIBLE DATE.' THE DEADLINE FOR RECEIPT OF PROPOSALS WAS 3 P.M., E.S.T., JANUARY 23, 1969.

TWO OFFERS WERE RECEIVED. FAIRCHILD-HILLER OFFERED THE REQUIRED UNIT AT $1,214.64 PER UNIT. TYCO'S UNIT PRICE WAS $1,208. THE TYCO OFFER CONSISTED OF A TELEGRAM AND A CONFIRMATORY LETTER. THE TELEGRAM WAS DATED JANUARY 21, 1969, AND STATED IN RELEVANT PART: "REL TWX DCSC-DP/VDE-1-048 DSA 700-69-R-5302 FOR FIFTY (50) CONDENSER PART NUMBER 105897 (96193) FSN 4130-774-5399 EACH TWELVE HUNDRED EIGHT DOLLARS (1208.00) * * * CONFIRMATION OF TERMS AND DATA FOLLOWS IN WRITING.' THE LETTER WAS DATED JANUARY 22 AND PORTIONS THEREOF ARE AS FOLLOWS: "CONFIRMING OUR TWX REPLY, WE ARE PLEASED TO PROPOSE THE FOLLOWING:

"/1) 37 - RQN SC0700-8319-H002

4130-774-5399

CONDENSER

P/N 2500-123D (23414)

"/2) 13 - RQN SC0700-8274-U137

4130-774-5399

CONDENSER

P/N 2500-123D (23414)

* * * * * * * "OUR CONDENSER, P/N 2500-123D IS IN EVERY MATERIAL RESPECT IDENTICAL TO THAT CITED IN THE SCHEDULE AND ITS PERFORMANCE WILL BE EQUAL OR BETTER.

* * * * * * * "FOR YOUR CONSIDERATION, ATTACHED IS OUR DRAWING 2500-123D, SHEET 1 AND PHOTOGRAPHS OF THE UNIT CITED * * *

* * * * * * * "PRINTS OF THE P/N 105897 (96193) ARE AVAILABLE ONLY FOR VIEWING AT OUR OFFICE FACILITY, 304 PLUME STREET, NORFOLK, VIRGINIA, TOGETHER WITH A SAMPLE OF THE CONDENSER.' THE TYCO OFFER WAS SUBMITTED FOR TECHNICAL EVALUATION AND ON JANUARY 27, 1969, THE CHIEF OF THE MECHANICAL SECTION, DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC), REPORTED:

"1. THERE IS INSUFFICIENT INFORMATION REFLECTED IN THE PHOTOS AND SHOWN ON THE DRAWING FURNISHED BY TYCO INC. TO ESTABLISH IF THE ITEM OFFERED WILL MEET THE REQUIREMENTS FOR SUBJECT FSN.

"2. IT IS THE POSITION OF THIS OFFICE THAT EVEN IF FAIRCHILD-HILLER DRAWINGS WERE MADE AVAILABLE, ACCEPTANCE OF THE ITEM OFFERED BY TYCO INC. STILL COULD NOT BE DETERMINED. THIS OFFICE HAS NO KNOWLEDGE OF THE HEAT TRANSFER CHARACTERISTICS OR WORKING FLUID PRESSURES.'

IN A TELEPHONE CONVERSATION ON JANUARY 31, 1969, TYCO OFFERED TO BRING ALL ITS DRAWINGS TO COLUMBUS FOR EVALUATION. ON FEBRUARY 13, A CONTRACT WAS SENT TO FAIRCHILD-HILLER WHICH WAS SIGNED ON FEBRUARY 20 AND RECEIVED BY DCSC ON OR ABOUT FEBRUARY 25, 1969. IT DOES NOT APPEAR THAT ANY REPRESENTATIVE OF TYCO VISITED COLUMBUS FOR A FULL TECHNICAL EVALUATION UNTIL MARCH 10, 1969, AND THEN THE VISIT WAS MADE IN CONNECTION WITH A SEPARATE PROCUREMENT.

AS YOU STATED IN YOUR APRIL 28 LETTER, THE BASIS OF THE PROTEST IS DISCRIMINATION BY DCSC AGAINST YOUR FIRM, SPECIFICALLY IN FAILING TO ENTER INTO NEGOTIATIONS WITH YOU AND IN IGNORING THE FACT THAT DATA AND DRAWINGS WERE WITHIN THE GOVERNMENT'S POSSESSION. IT IS ALSO COMPOUNDED BY THE FACT THAT NO PROPER NOTICE OF AWARD WAS FURNISHED TO YOU UNTIL YOU RECEIVED FROM US A COPY OF THE ADMINISTRATIVE REPORT ON APRIL 17, 1969. CONCERNING THIS LATTER POINT, THE POST AWARD NOTICE TO UNSUCCESSFUL OFFERORS, REQUIRED BY ASPR 3-508.3, IS A PROCEDURAL REQUIREMENT, VIOLATION OF WHICH WILL NOT INVALIDATE AN OTHERWISE PROPERLY NEGOTIATED AWARD. SEE B-161513, JULY 24, 1967.

THE CONDUCT OF WRITTEN OR ORAL DISCUSSIONS IN NEGOTIATED PROCUREMENTS IS GOVERNED BY 10 U.S.C. 2304 (G). THE FIRST PORTION OF THE SUBSECTION IS RELEVANT IN THE PRESENT CIRCUMSTANCES AND READS AS FOLLOWS:

"IN ALL NEGOTIATED PROCUREMENTS IN EXCESS OF $2,500 IN WHICH RATES OR PRICES ARE NOT FIXED BY LAW OR REGULATION AND IN WHICH TIME OF DELIVERY WILL PERMIT, PROPOSALS SHALL BE SOLICITED FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES CONSISTENT WITH THE NATURE AND REQUIREMENTS OF THE SUPPLIES OR SERVICES TO BE PROCURED, AND WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE, AND OTHER FACTORS CONSIDERED: * * *" ASPR 3- 805.1 (A) CONTAINS THE FOLLOWING PERTINENT PROVISION:

"AFTER RECEIPT OF INITIAL PROPOSALS, WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS (INCLUDING TECHNICAL QUALITY WHERE TECHNICAL PROPOSALS ARE REQUESTED) CONSIDERED, EXCEPT THAT THIS REQUIREMENT NEED NOT NECESSARILY BE APPLIED TO:

"/III) PROCUREMENTS IN WHICH TIME OF DELIVERY WILL NOT PERMIT SUCH DISCUSSIONS; " IN HER REPORT, THE CONTRACTING OFFICER STATES THAT:

"* * * DUE TO THE FACT THAT THE PURCHASE REQUESTS FOR THE ITEM WERE BY THIS TIME (JANUARY 31) ABOUT 95 DAYS OLD, AND DUE TO THE FACT THAT THERE WAS NO STOCK ON HAND TO FILL EXISTING REQUISITIONS FOR 55 UNITS AND ANTICIPATED DEMANDS OF 50 UNITS, IT WAS DETERMINED THAT DELAY * * * WOULD NOT BE IN THE BEST INTEREST OF THE GOVERNMENT.' OF COURSE, THE DETERMINATION WHETHER CIRCUMSTANCES PERMIT THE CONDUCT OF NEGOTIATIONS INVOLVES AN ASSESSMENT OF FACTS WITH WHICH WE DO NOT NORMALLY INTERFERE. FOR EXAMPLE, IN OUR DECISION B-155700, MARCH 18, 1965, A CASE SIMILAR TO THIS ONE IN SEVERAL RESPECTS, WE REVIEWED THE CIRCUMSTANCES AND CONCLUDED THAT WE COULD NOT PROPERLY SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING OFFICER ON THE QUESTION OF WHETHER FURTHER DELAY INCIDENT TO QUALIFYING AN ALTERNATE PRODUCT WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT.

IN THE PRESENT CASE, THE PURCHASE REQUESTS WERE OVER 3 MONTHS OLD, THERE WAS NO STOCK ON HAND, AND THERE WERE ANTICIPATED ADDITIONAL NEEDS. ALTHOUGH YOU TAKE ISSUE WITH THE ADMINISTRATIVE STATEMENT THAT THERE WERE NO STOCKS ON HAND AND, IN SUPPORT OF YOUR POSITION, CITE THREE NAVY CONTRACTS UNDER WHICH A TOTAL OF 55 CONDENSERS WERE PURCHASED BETWEEN SEPTEMBER 1967 AND JANUARY 1969, IT APPEARS THAT AT LEAST 45 OF THESE CONDENSERS WERE URGENTLY NEEDED REPLACEMENT PARTS FOR EXISTING EQUIPMENT. FURTHERMORE, OF THESE 45, PURCHASED IN JANUARY, ONE IS SCHEDULED FOR DELIVERY ON MAY 20, 1969, AND 44 ARE TO BE DELIVERED BY AUGUST 29, 1969. WITH RESPECT TO THE OTHER 10 CONDENSERS PURCHASED UNDER THE SEPTEMBER 1967 NAVY CONTRACT, YOU STATE THAT THESE 10 WERE "IN STOCK FOR EMERGENCY ISSUES.' GIVEN THE URGENCY WHICH THE NAVY ACCORDED TO THE PURCHASE OF THE 45 CONDENSERS, IT DOES NOT SEEM THAT THE 10 PURCHASED EARLIER WERE DESTINED FOR "STOCK.' IN ANY EVENT, WE DO NOT THINK THAT YOU HAVE DEMONSTRATED THAT THE ADMINISTRATIVE REPRESENTATION THAT THERE WERE NO CONDENSERS IN STOCK WAS IN ERROR. WHERE THERE IS A DISPUTE BETWEEN THE ADMINISTRATIVE AGENCY AND A PROTESTANT INVOLVING A QUESTION OF FACT, THE ADMINISTRATIVE VERSION WILL BE ACCEPTED AS CORRECT IN THE ABSENCE OF SUBSTANTIAL EVIDENCE TO THE CONTRARY. 40 COMP. GEN. 178.

IN VIEW OF THE ADMINISTRATIVE REPORT AND CONSIDERING THAT THE JANUARY 10 TELEGRAM FROM DCSC SPECIFIED A VERY EARLY DATE FOR RECEIPT OF OFFERS, WE CONCLUDE THAT THE AGENCY'S FAILURE TO CONDUCT NEGOTIATIONS FINDS SUBSTANTIAL JUSTIFICATION IN THE PREVIOUSLY QUOTED PROVISIONS OF THE STATUTE AND REGULATIONS.

THE OTHER MAJOR POINT ALLEGED IN YOUR PROTEST IS THAT THE AGENCY IGNORED THE FACT THAT DATA AND DRAWINGS WERE WITHIN THE GOVERNMENT'S POSSESSION. IN RELATION TO THIS CONTENTION, YOU HAVE PROVIDED US WITH COPIES OF A TELEGRAM DATED APRIL 18, 1968, AND LETTER DATED APRIL 23, 1968, FROM FAIRCHILD-HILLER TO THE NAVY SHIPS PARTS CONTROL CENTER AT MECHANICSBURG, PENNSYLVANIA. THESE COMMUNICATIONS SHOW THAT ON THE LATTER DATE FAIRCHILD -HILLER SENT A COPY OF ITS DRAWING 105897 TO MECHANICSBURG FOR INFORMATION AND FILES. HOWEVER, THE FACT THAT THE NAVY HAD DRAWING 105897 DOES NOT MEAN THAT IT WAS AVAILABLE TO DCSC. MOREOVER, EVEN ASSUMING DCSC KNEW THAT THE NAVY HAD THE DRAWING, IT APPEARS THAT DCSC COULD NOT HAVE OBTAINED IT SINCE THE NAVY CONSIDERED THIS DRAWING PROPRIETARY TO FAIRCHILD-HILLER.

YOU EMPHASIZE CERTAIN TELEPHONE CONVERSATIONS OF JANUARY 31 THROUGH FEBRUARY 25, 1969, AS EVIDENCING DISCRIMINATION AGAINST YOU, ESPECIALLY INSOFAR AS THE AGENCY TOOK NO ACTION IN RESPONSE TO YOUR JANUARY 31 OFFER TO BRING A COPY OF DRAWING 105897 AND RELATED MATERIAL TO COLUMBUS FOR EVALUATION. IT APPEARS, HOWEVER, THAT FURTHER DELAY INCIDENT TO QUALIFYING YOUR PART NUMBER AS AN ACCEPTABLE ALTERNATE WOULD HAVE BEEN PREJUDICIAL TO THE GOVERNMENT'S INTERESTS IN MAKING A PROMPT AWARD. ALSO, EFFORTS TO QUALIFY YOUR PART NUMBER WITHIN THE SHORT TIME FRAME WOULD HAVE SERVED NO USEFUL PURPOSE FOR THE REASONS MENTIONED IN THE SECOND PARAGRAPH OF THE JANUARY 27, 1969, REPORT OF THE CHIEF OF THE MECHANICAL SECTION, QUOTED ABOVE. THEREFORE, WE CANNOT AGREE THAT THE RECORD DEMONSTRATES THAT DCSC ACTED ARBITRARILY OR PRACTICED DISCRIMINATION AGAINST YOUR FIRM.

WE HAVE CAREFULLY REVIEWED YOUR DETAILED LETTER OF APRIL 28, 1969, AND WE CANNOT CONCLUDE THAT THERE IS ANY LEGAL OBJECTION TO THE AWARD MADE IN THIS CASE. ACCORDINGLY, YOUR PROTEST IS DENIED.