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ployees should not be required to begin travel after midnight in order to have them arrive early in the day before reporting for duty. We have said that employees are not expected to travel during normal periods of rest. 54 Comp. Gen. 1059, 1061 (1975). We also agree that, if the employees in this case had left early in the morning of the day before reporting for work, their respective arrival times late at night would not have given them a sufficient period of rest before reporting for work. The authorizing officials felt that both of these alternatives were unreasonable, and accordingly each employee was allowed to start travel a day earlier in order to permit a reasonable period of rest before reporting for duty. We conclude that the rest periods authorized for Ms. Pinette and Mr. Rhodes were within the limits of reason and not excessive. Accordingly, we would not object to the payment of per diem to both employees for the rest periods permitted at destination.
B-249049, October 20, 1992
Purchases I Propriety Where record shows that agency had an inadvertent, critical shortage of locks, but was not in a position to proceed with fully competitive award for these items, agency's utilization of small purchase procedures to make interim, emergency filler buys on an as-needed, urgency basis was not improper.
Specifications | Minimum needs standards II Competitive restrictions II Design specifications III Justification Solicitation's purchase item description identifying standard commercial lock by manufacturer part number and national stock number (NSN) is not unduly restrictive where (1) procurement is conducted under Federal Acquisition Regulation small purchase procedures; (2) offerors could readily obtain additional item information using either the listed part number or the NSN item number; and (3) solicitation permitted offers for functionally interchangeable, alternate products.
Matter of: Mas-Hamilton Group, Inc.
Mark D. Colley, Esq., Davis, Graham & Stubbs, for the protester.
James H. Roberts III, Esq., Manatt, Phelps, Phillips & Kantor, for Safemasters Co., Inc., and Mark C. Miller for Lockmasters, Inc., interested parties.
John P. Patkus, Esq., Defense Logistics Agency, for the agency.
Behn Miller, Esq., Ralph O. White, Esq., and Andrew T. Pogany, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
Mas-Hamilton Group, Inc. protests any award under request for quotations (RFQ) No. DLA500-92-Q-PD53, issued by the Defense Logistics Agency (DLA) for combination security locks. Mas-Hamilton contends that DLA improperly issued the solicitation under the small purchase procedures, and that the RFQ's purchase item description unduly restricts competition. We deny the protest.
This protest although nominally about an RFQ for a purchase of combination security locks-raises questions about a number of DLA procurements for the locks used on file cabinets reserved for safeguarding sensitive and classified government records throughout the Department of Defense (DOD). Specifically, the RFQ here, issued June 1, 1992, for 337 Sargent & Greenleaf (S&G) combination security locks, is the seventh in a series of small purchases i.e., less than $25,000—for DLA's combination lock needs. While DLA explains that the purchases have been necessary to meet its needs during a period when it has been unable to complete a full competition, Mas-Hamilton argues that DLA is repeatedly using small purchase procedures to avoid specifications that would otherwise be mandatory for a fully competitive procurement, and to restrict competition to one manufacturer's lock.
DLA's Earlier Efforts to Procure Locks In early 1990, DLA recognized that its inventory of combination security locks had fallen to the point where future orders could result in serious shortfalls. As a result, on May 14, 1990, DLA issued request for proposals (RFP) No. DLA500-90-R-0329 (“the 1990 RFP”) for a "primary quantity” of 4,900 mechanical combination security locks. 1 The 1990 RFP set forth the full text of Military Specification MIL-L-15596G which requires all commercially available mechanical combination security locks procured by DOD to meet testing requirements enumerated in the specification. In this regard, the RFP required each offeror to submit 14 locks for “bid sample” testing. The RFP also provided that award would be made to the lowest priced, technically acceptable offeror. By the June 14 closing date, DLA received three offers, and on July 11, the agency submitted each offeror's lock samples to the Naval Civil Engineering Laboratory (NCEL) for testing, as required by MIL-L-15596G. On November 29, 1990, NCEL advised DLA that none of the lock samples met the requirements of MIL-L-15596G, and that all samples had failed the specification's testing requirements. NCEL also advised the agency that since none of the locks met the requirements, NCEL intended to amend the specification to relax the testing requirements. On April 11, 1991-after receiving NCEL's revisions to MIL-L-15596G–DLA issued amendment No. 0002 to the RFP which incorporated the revised specification and requested a second submission of lock samples from each offeror by August 12. On February 28, 1992, after 6 months of laboratory testing, NCEL again advised DLA that all lock samples had failed to pass the revised testing criteria. At this point, DLA was faced with a choice between canceling the 1990 RFP or procuring the locks despite the testing failures. In the interim, however, there was an on-going DOD controversy about whether the agency should continue to purchase mechanical combination locks, or should purchase locks employing newer lock technology.
1 The RFP also requested offerors to provide a price for a "First Alternate Quantity” of 7,350 locks, and a "Second Alternate Quantity” of 9,800 locks. DLA explains that the primary quantity represents the agency's actual demand for locks at the time the RFQ was issued, while the first and second alternate quantity figures represent the inventory manager's estimate of possible changes in the agency's demand for locks. According to DLA, the agency intended to consider changes in inventory and then procure the quantity closest to the agency's current demand.
DOD's Directives on Combination Locks While DLA was attempting to procure mechanical combination locks under the 1990 RFP, other elements of DOD were considering how the agency could improve the security of combination locks for safeguarding sensitive materials. As part of these considerations, agency officials began looking at requiring combination locks used to safeguard sensitive materials to meet higher testing standards than those set forth in MIL-L-15596G. The contracting officer explains that shortly after receiving the news that all lock samples submitted under the 1990 RFP had again failed to meet the requirements of the specification for mechanical locks, he learned of a pending DOD directive that would require all combination locks procured by DOD agencies to meet an even more stringent, federal specification. The directive, issued April 14, 1992, stated: The (DLA) will procure and stock replacement locks meeting FF-L-2740. Procurement of mechanical combination locks meeting Military Specification MIL-L-15596G is to be discontinued. The federal specification referenced in the DOD directive delineates more stringent testing standards than those set forth in MIL-L-15596G; thus far, only electrical combination security locks have met the federal specification. After receiving the directive instructing DLA to procure all combination locks in accordance with federal specification FF-L-2740, DLA canceled the 1990 RFP on May 5, 1992.
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On May 20, DOD issued a second directive modifying the earlier instruction. The May 20 directive required the purchase of combination security locks in accordance with FF-L-2740 only when the storage container for which the lock was required was produced "on or after October 1, 1991," or where the material to be protected is classified at the level of “top secret." Upon receiving the May 20 directive, DI.A apparently decided that it should again attempt to procure locks using the MIL-L-15596G specification. On September 1, 1992, DLA issued an RFP for a large purchase of locks, using the MIL-L-15596G specification. This procurement was also protested by MasHamilton and will be considered in a separate decision.
DLA's Use of Small Purchases During the 1990 to 1992 Time Period While DLA was attempting to procure combination security locks via its 1990 RFP-i.e., from early 1990 until mid-1992—the agency made a number of small purchases for mechanical combination security locks. The record shows the following purchases:
As an apparent continuation of this practice, the agency again issued an RFQ, on June 1, 1992, for 337 S&G locks. On June 12, Mas-Hamilton filed this protest against the RFQ with our Office.
In its protest, Mas-Hamilton argues that DLA is improperly dividing its requirement for combination security locks into a series of small purchases in order to avoid using federal lock specification FF-L-2740, which the protester contends is required for purchases in excess of $25,000. Mas-Hamilton also contends that the solicitation here unduly restricts competition to the S&G mechanical combination lock by not providing potential offerors with a list of the lock's salient characteristics, and by specifying a mechanical lock design, thus excluding MasHamilton's electrical lock. For the reasons explained below, we deny the protest.
CICA mandate agency from dividinracting. 10 U.S.C
Agency's Use of Small Purchase Procedures With respect to Mas-Hamilton's challenge to DLA's decision to issue the current RFQ using small purchase procedures, as a general rule, the Competition in Contracting Act of 1984 (CICA) requires contracting agencies to obtain full and open competition through the use of competitive procedures when conducting a procurement for property or services. 10 U.S.C. § 2304(a)(1)(A) (1988). CICA and its implementing regulations authorize the use of less competitive small purchase procedures where the amount involved does not exceed $25,000. 10 U.S.C. § 2304(g)(2) (Supp. III 1991); Federal Acquisition Regulation (FAR) § 13.000. These procedures set forth abbreviated requirements designed to minimize administrative costs, East West Research, Inc., B-239516, Aug. 29, 1990, 90-2 CPD || 178, and to promote efficiency and economy in contracting. 10 U.S.C. § 2304(g)(1) (1988). In order to prevent an agency from dividing a requirement in order to circumvent the CICA mandate for full and open competition, both CICA and the FAR contain explicit admonitions against manipulating requirements so as to be able to use small purchase procedures. 10 U.S.C. § 2304(g)(3) (Supp. III 1991); FAR § 13.103(b).2 According to Mas-Hamilton, the statutory prohibition against dividing purchases to stay within the small purchase ceiling means that this RFQ has been improperly issued under small purchase procedures. Specifically, Mas-Hamilton contends that this RFQ represents one of a series of procurements undertaken because DLA is dividing its total requirement for combination security locks to avoid using a federal lock specification—FF-L-2740—which the protester asserts is otherwise mandatory for full and open procurements of combination locks. See FAR $ 10.006(a). 3 In response, DLA explains that it conducted this series of small purchase RFQs in an effort to cope with a "chronic problem of backorders.” Since the agency continued to expect that a fully competitive award was imminent, DLA explains that it specifically chose to continue to procure its urgent requirements using small purchases. 4
ecause DLA : this RFQ renall purchase ceiling mer
2 In this regard, CICA provides that:
[a] proposed purchase or contract for an amount above the small purchase threshold may not be divided into several purchases or contracts for lesser amounts in order to use the small purchase procedures ... See 10 U.S.C. § 2304(g)(3) (Supp. III 1991). 3 FAR $ 10.006(a) provides that all federal and military specifications such as FF-L-2740—"are mandatory for use by all agencies acquiring supplies or services covered by such specifications and standards”; however, FAR § 10.006(a)(2) specifically exempts small purchases from such specifications. 4 For example, as evidence of this, DLA states that when it decided to issue the 1990 RFP for its lock requirement, agency personnel also decided to use the small purchase procedures to make emergency filler buys on an asneeded basis until an award could be made under the full and open procurement. Subsequently, at DLA staff meetings held on January 3, 1991 and January 22, 1992—which the record shows were immediately convened after NCEL informed DLA of various MIL-L-15596G lock sample testing failures—the DLA staff discussed and decided to continue making small purchase buys for urgent customer orders as necessary.