National Aerospace Group, Inc., B-282843, August 30, 1999

B-282843 Aug 30, 1999 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Agency's justification for sole-source procurement is inadequate where the documentation does not reasonably show that only this exact product will satisfy the agency's needs. Does not show that the agency's need for the item is of unusual and compelling urgency that was not created by a lack of advance planning. 2. Protest is sustained where agency did not provide protester with a reasonable opportunity to demonstrate the acceptability of its alternate product prior to. Where rejection of alternate item is based entirely on agency's unsupported assertion that it cannot evaluate alternate without the original equipment manufacturer's technical data. National contends that the agency's failure to allow the firm to have its own alternate item evaluated deprived National of a reasonable opportunity to compete under the solicitation. View Decision Matter of: National Aerospace Group, Inc. File: B-282843 Date: August 30, 1999 DIGEST Attorneys DECISION National Aerospace Group, Inc. protests its exclusion from competition under request for proposals (RFP) No. SPO740-99-R-3210, issued by the Defense Supply Center Columbus (DSCC), Defense Logistics Agency, for a quantity of metallic tubing identified as an approved product, listing its original manufacturer's part number and national stock number (NSN). National contends that the agency's failure to allow the firm to have its own alternate item evaluated deprived National of a reasonable opportunity to compete under the solicitation. We sustain the protest. In October 1998, National submitted its own technical data and drawing for this tubing to DSCC and requested its approval as an alternate, in anticipation of future requirements for the product. Protest at 1. On December 18, National resubmitted its drawing to DSCC's technical staff and again requested approval. Protest, exh. 3 at 1. On March 29, 1999, DSCC announced its intention in the Commerce Business Daily (CBD) to procure the item on a sole-source basis from the original equipment manufacturer (OEM), Specialized Metals, as the only approved source. Agency Report, Tab 5. In the notice, DSCC invoked 10 U.S.C. Sec. 2304(c)(1) (1994), which permits the use of other than competitive procedures when the property or services needed by the agency are available from only one responsible source, and no other property or services will satisfy the agency's needs. On April 1, DSCC issued request for quotations (RFQ) No. SPO740-99-Z-4044 for 219 feet of the tubing. As a result of an increase in the amount of material required, the contracting officer later canceled the RFQ and, on May 4, again announced the agency's intention in the CBD to solicit and contract "with only approved sources," stating that "specifications, plans or drawings are not available," now citing 10 U.S.C. Sec. 2304(c)(2). Agency Report, Tab 6. Under this authority, an agency may use other than competitive procedures to procure property or services where the agency's requirements are of such an unusual and compelling urgency that the government would be seriously injured if the agency was not permitted to limit the number of sources from which it seeks bids or proposals. On May 5, DSCC issued the RFP at issue here, SPO740-99-R-3210, which, as amended, calls for 541 feet of the tubing. The RFP required that offers be submitted by May 11. A purchase item description (PID) associated with the NSN 014250937 states that the metal tubes are 12-inch pieces of round, seamless tubing, 1-inch in diameter, made of cobalt alloy L-605, with walls that are .049 inches thick. There is no physical description in the solicitation of the tubing, nor does the RFP describe the use to which the tubes will be put. During conference calls conducted by our Office among the protester's counsel, DSCC counsel, and DSCC technical personnel, agency counsel described the tubes' purpose as "use in a variety of welding projects," and DSCC technical personnel stated that the four military services that currently require the tubes use them for "certifying welders," adding that "they may also be used for other purposes," but admitting that DSCC staff did not know what those uses might be. Specialized Metals, which filed comments as an intervenor in the protest, states only that the tubing is "used by the military services for a variety of purposes." Intervenor's Comments at 2. The solicitation at section B, "Part Number," advised offerors as follows: This requirement is in accordance with manufacturer's part number and the part number(s) listed in Section B – Item Description are the only approved items as of the date of this solicitation. THERE ARE NO DRAWINGS AVAILABLE AT THIS CENTER FOR THIS REQUIREMENT. RFP Sec.