In re Self-Powered Lighting, Ltd.
| Decision Date | 13 March 1980 |
| Docket Number | B-195935 |
| Parties | Matter of: Self-Powered Lighting, Ltd. 59 Comp.Gen. 298 |
| Court | Comptroller General of the United States |
Contracts - protests - procedures - bid protest procedures - time for filing - "court interest" exception although general accounting office (GAO) suspended action on protest when protester filed suit in united states district court raising substantially same issues, protest will be considered where court by endorsement has expressed interest in GAO decision. Contracts - negotiation - justification determination to conduct negotiated rather than advertised procurement for rifle sights containing tritium, a nuclear by-product, was reasonable where based on procurement history of similar promethium based item and expectation that licensing requirements would restrict competition. Contracts - negotiation - responsiveness - concept not applicable to negotiated procurements initial proposal which does not comply with government-furnished equipment requirement in request for proposals and which incorporates engineering change proposal offering flat rather than spherical-ended tritium beads on rifle sight May not be rejected as nonresponsive. The rigid rules of bid responsiveness in advertised procurements do not apply to negotiated procurements. Contracts - negotiation - competition - competitive range formula - basis of evaluation inclusion of initial proposal in competitive range was reasonable where major defect, failure to include written permission for use of government- furnished equipment, is easily cured through discussions and engineering change proposal submitted as part of proposal is still under consideration. Contracts - negotiation - competition - discussion with all offerors requirement - deficiencies in proposal - notice request for second round of best and final offers was proper where offeror was not advised of deficiency in proposal which rendered offeror ineligible for award. Also, accepted engineering change proposal was provided to all offerors to equalize competition. Contracts - buy American act - defense department procurement - waiver of act - memorandum of understanding - implementation by secretary exemption from buy American act differentials of offer by united kingdom firm to provide rifle sights for domestic use by army was proper under terms of memorandum of understanding (MOU) between united states and united kingdom. Secretarial determination and findings implementing MOU exempts all united kingdom produced or manufactured defense equipment other than items excluded from mou. Nothing in MOU excludes rifle sights. Contracts - buy American act - defense department procurement - waiver of act - memorandum of understanding - blanket exemption authority blanket exemption from buy American act is authorized by determination and finding of secretary of defense which applies to all items of united kingdom-produced defense materials under congressional direction to secretary to implement "to the maximum feasible extent" policy of NATO standardization and interoperability. Furthermore, departments of defense and army have consistently interpreted secretary's determination as providing blanket exemption. Contracts - buy American act - defense department procurement - waiver of act - memorandum of understanding - notice in individual procurements incorporation of notice of potential foreign source competition in request for proposals is not prerequisite to application of exemption to buy American act. Failure to include notice in solicitation does not invalidate procurement. Requests for best and final offers are not solicitations but merely continuing negotiations not requiring inclusion of notice. Contractors - responsibility - foreign contractor license requirements are matters of responsibility, at heart of which is question whether offeror can Perform. We believe that requirement for license from nuclear regulatory commission (NRC) in procurement involving nuclear by-products is satisfied by foreign offeror whose local representative has qualifying license from state of North Carolina, under state agreement with NRC, and which exempts representative from requirement for obtaining nrc-issued import license. Agents - of private parties - authority - contracts - signatures contracting officer's determination that signer of offer had authority to bind offeror was not unreasonable where evidence before contracting officer included (1) position of signer; (2) inclusion of corporate drawings with proposal; and (3) confirmation from president of corporation designated in offer as authorized to conduct negotiations. Buy American act - waiver - public interest - competitive advantage consideration protester asserts that foreign offeror exempted from buy American act, enjoys competitive edge because not subject to united states laws on equal opportunity, clean air, etc., resulting in unequal treatment of domestic offerors. While there May be some validity to this argument, the only mandated handicap enjoyed by American firms in competition with foreign firms is buy American act. Since secretary of defense determined that it would be inconsistent with public interest to apply buy American act these alleged competitive advantages are not for consideration.
On August 31, 1979, self-powered lighting, Ltd. (SPL), filed a protest with our office against the award of a contract by the united states army to saunders-roe developments, Ltd (srdl), of the united kingdom (u.K.), for the furnishing of front-sight post assemblies for the m 16/m16a1 rifle. We suspended consideration of the protest because on December 14, 1979, SPL filed suit in the united states district court for the southern district of New York, self-powered lighting Ltd. v. United states, civil action no. 79 Civ. 6795 (ew) seeking injunctive and declaratory relief and raising substantially the same issues as raised in the protest. Endorsement, the court has indicated its interest in our decision. For the reasons stated below, we deny the protest.
On July 20, 1978, the united states army armament materiel readiness command (the army) issued a request for proposals (RFP) for the acquisition of front-sight post assemblies for the m 16/16a1 rifle in use by the army. To facilitate night-fire, the sights were to contain a spherical-ended luminescent bead containing tritium, a nuclear by product, as a result of which the RFP required that offerors be licensed to handle such materials. Offerors intending to use government-furnished property were required to submit written permission from the contracting officer having cognizance over the property. The solicitation did not contain a "notice of potential foreign source competition."
Ultimately, 47 solicitations were issued. Five proposals were received by the date set for receipt of proposals. Spl's offer was low. Srdl's offer was second low and was accompanied by an engineering change proposal seeking approval for the provision of flat-ended rather than spherical- ended beads. Srdl's initial proposal also indicated that srdl intended to use government-furnished equipment (GFE) but did not include the required written permission.
By letter dated September 18, SPL was advised of a suspected error in its offer to which SPL responded by increasing its unit price by almost 50 percent, raising it above srdl's offer. However, although srdl's offer was now low, srdl could not be considered for award because its initial proposal did not include the written permission for use of GFE required by the RFP. As a result, SPL remained the low offeror eligible for award.
Best and final offers were requested from each offeror on November 22, 1979. Although SPL remained the low, eligible offeror after submission of best and final offers, action to award the contract to SPL was halted because srdl had been asked to submit its best and final offer without being advised of its ineligibility for award. Consequently, a new round of best and final offers was requested with advice to offerors that the rfp's GFE requirements had to be strictly complied with and that the tritium beta lights could have either spherical ends, as originally specified in the RFP, or flat ends, as the result of acceptance of srdl's engineering change proposal. Srdl's new best and final offer advised that it would not use GFE. With this submission, srdl displaced SPL as the low, eligible offeror. The contracting officer verified the authority of the signer of srdl's offer to commit srdl to a contract and awarded the contract to srdl.
The protester alleges numerous deficiencies in the solicitation and procedures leading to the award of this contract. We will treat each of these in turn.
Use of negotiated procedures
The authority cited for the negotiation of this procurement is 10 U.S.C. 2304(a)(10)(1976), which provides an exemption to the statutory preference for the use of advertised procedures where it is determined that it is "impracticable to obtain competition." The contracting officer's determination and findings (d&f) underlying the decision to negotiate this procurement justifies use of the exemption on the basis that there is only one known supplier for the radioactive material, Minnesota mining and manufacturing company (3m), and in view of the improbability of competition, that the best interests of the government would be served by being able to obtain cost and pricing data. (information regarding an offeror's costs and pricing May be required under the truth in negotiations act, 10 U.S.C. 2306(f), in a negotiated procurement.)
Spl contends that the d&f is erroneous, that the contracting officer immediately became aware of the existence of potential competition, and that, therefore, the basis for use of the exemption became...
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