B-177543, MAR 6, 1973

B-177543, MAR 6, 1973

BID PROTEST - RESTRICTED SUBCONTRACT SOURCES - GOVERNMENT FURNISHED EQUIPMENT DENIAL OF PROTEST BY MEDICAL COACHES INC., AGAINST THE AWARD OF ANY CONTRACT UNDER AN RFP ISSUED BY THE NAVAL FACILITIES ENGINEERING CENTER, DAVISVILLE, R.I., FOR 30 CUSTOM VANS FOR RECRUITING PURPOSES. THE REFUSAL OF THE CORTEZ CORPORATION TO FURNISH PROTESTANT A PRICE QUOTATION ON THE CHASSIS DOES NOT PROVIDE A BASIS FOR THIS PROTEST SINCE IT IS A LEGITIMATE BUSINESS INTEREST FOR A SUBCONTRACTOR TO CONSIDER THE PROSPECTS OF DEALING WITH ONE BIDDER OVER ANOTHER AND TO REFUSE TO FURNISH PRICE QUOTATIONS TO CERTAIN BIDDERS. B-175961(1) AND (2), NOVEMBER 3, 1972. ALSO, ASPR 13-201 PROVIDES THAT IT IS A MATTER OF ADMINISTRATIVE DISCRETION AS TO WHETHER EQUIPMENT SHOULD BE SUPPLIED TO CONTRACTORS ON A GOVERNMENT-FURNISHED BASIS.

TO MEDICAL COACHES INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 5, 1973, AND PRIOR CORRESPONDENCE PROTESTING AGAINST THE AWARD OF ANY CONTRACT UNDER REQUEST FOR PROPOSALS NO. N62578-73-R-0030, ISSUED BY THE NAVAL FACILITIES ENGINEERING CENTER, DAVISVILLE, RHODE ISLAND.

THE SUBJECT PROCUREMENT WAS FOR THIRTY CUSTOM VANS FOR RECRUITING PURPOSES TO BE DELIVERED AT THE RATE OF 5 VANS A MONTH WITH DELIVERY TO BEGIN 120 DAYS AFTER AWARD. THE SOLICITATION WAS ASSIGNED AN 02 PRIORITY RATING ON THE BASIS OF URGENCY, AND NEGOTIATION WAS AUTHORIZED UNDER 10 U.S.C. 2304(A)(2) AND SECTION 3-202.2 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) AFTER THE APPROPRIATE DETERMINATIONS AND FINDINGS WERE MADE.

BY NOVEMBER 30, 1972, THE FOLLOWING PROPOSALS WERE RECEIVED:

UNIT PRICE TOTAL

WOLF COACH $30,770 $923,100

NOR-CAN INC. 23,330699,900

GRUMMAN CORP. 22,999 689,970

GRUMMAN CORP. (ALTERNATIVE) 22,100 663,001

AFTER YOUR PROTEST WAS FILED, THE NAVY DETERMINED PURSUANT TO ASPR 2 407.8(B) TO MAKE AWARD PRIOR TO RESOLUTION OF YOUR PROTEST AND ON DECEMBER 11, 1972, MADE AWARD TO GRUMMAN CORPORATION IN THE AMOUNT OF $689,970.

YOU PROTESTED THAT THE CHASSIS SPECIFICATIONS WERE RESTRICTIVE AND THAT THEREFORE THE CHASSIS SHOULD HAVE BEEN PROVIDED AS GOVERNMENT FURNISHED EQUIPMENT.

THE SPECIFICATIONS CALLED FOR A FRONT-WHEEL DRIVE CHASSIS WITH A WHEELBASE OF NOT LESS THAN 130 INCHES. YOU STATE THAT ONLY ONE FIRM, THE CORTEZ CORPORATION, MANUFACTURES THIS TYPE OF CHASSIS, AND THAT CORTEZ REFUSED TO FURNISH YOUR FIRM A PRICE QUOTATION ON THE CHASSIS. THEREFORE, YOUR FIRM WAS UNABLE TO COMPETE FOR THE CONTRACT. THE NAVY STATES THAT THERE ARE FOUR OTHER FIRMS WHICH SUPPLY FRONT-WHEEL DRIVE CHASSIS. THE CORRECTNESS OF EITHER STATEMENT ASIDE, OUR OFFICE HAS RECOGNIZED IT TO BE A LEGITIMATE BUSINESS INTEREST FOR A SUBCONTRACTOR TO CONSIDER THE PROSPECTS OF DEALING WITH ONE BIDDER OVER ANOTHER AND TO REFUSE TO FURNISH PRICE QUOTATIONS TO CERTAIN BIDDERS. B-175961(1) AND (2), NOVEMBER 3, 1972.

FURTHER, YOU HAVE STATED THAT IF THE NAVY NEEDED THE CORTEZ CHASSIS, THEN, TO PROMOTE COMPETITION, IT SHOULD HAVE NEGOTIATED DIRECTLY WITH CORTEZ TO OBTAIN THE CHASSIS AND ISSUED A REQUEST FOR PROPOSALS FOR THE CONVERSION WORK TO PRODUCE THE REQUIRED VANS WITH THE CHASSIS AS GOVERNMENT-FURNISHED PROPERTY. ACCORDING TO YOUR CORRESPONDENCE, MANY FIRMS ARE CAPABLE OF DOING THE CONVERSION WORK, BUT DUE TO THE FAILURE OF CORTEZ TO QUOTE YOU PRICES, COMPETITION WAS RESTRICTED NEEDLESSLY BECAUSE OF THE MANNER OF THE PROCUREMENT. HOWEVER, ASPR 13-201 PROVIDES AS FOLLOWS:

POLICY ON FURNISHING MATERIAL. IT IS THE GENERAL POLICY OF THE DEPARTMENT OF DEFENSE THAT CONTRACTORS WILL FURNISH ALL MATERIAL REQUIRED FOR THE PERFORMANCE OF GOVERNMENT CONTRACTS. HOWEVER, THE GOVERNMENT SHOULD FURNISH MATERIAL TO A CONTRACTOR WHEN IT IS DETERMINED TO BE IN THE BEST INTEREST OF THE GOVERNMENT BY REASON OF ECONOMY, STANDARDIZATION, THE EXPEDITING OF PRODUCTION, OR OTHER APPROPRIATE CIRCUMSTANCES.

THUS, IT IS A MATTER OF ADMINISTRATIVE DISCRETION AS TO WHETHER EQUIPMENT SHOULD BE SUPPLIED ON A GOVERNMENT-FURNISHED BASIS TO CONTRACTORS.

ACCORDINGLY, WE FIND NO BASIS TO QUESTION THE LEGAL SUFFICIENCY OF THE SOLICITATION AND THE PROTEST IS DENIED.