B-161038, DEC. 8, 1967

B-161038, DEC. 8, 1967

BIDS - PROPRIETARY DATA, ETC. DECISION AFFIRMING OPINION OF JULY 10, 1967, AND DENYING REQUEST OF COMET EQUIPMENT CO., INC. THAT MILITARY SPECIFICATION REQUIRING USE OF PATENTED COMET SWIVEL HOOKS REMAIN IN EFFECT UNTIL THOMAS HOOKS HAVE BEEN TESTED AND PROVEN. EVALUATION OF RELATIVE MERITS OF DIFFERENT PRODUCTS AND FORMULATION OF STANDARDS ARE MATTERS IN CONNECTION WITH ADDITIONAL TESTING. UNDER THE GOVERNMENT'S PATENT LICENSE OTHER BIDDERS MAY ELECT EITHER TO PURCHASE THE SWIVEL HOOK FROM COMET OR TO MANUFACTURE THE HOOK UNDER THE GOVT. LICENSE WHICH WOULD INVOLVE A BID EVALUATION FACTOR OF ONLY 1 CENT PER HOOK, THEREFORE COMET'S ALLEGATION OF IMPAIRMENT OF ITS FINANCIAL FUTURE IS NOT UNDERSTOOD. IN A LETTER TO THE SEC. OF ARMY, IT WAS CONCLUDED THAT SINCE THE ADMINISTRATIVE NEED SOLELY FOR THE COMET HOOK HAS NOT BEEN FULLY OR FAIRLY ESTABLISHED THE USE OF PROPRIETARY COMET SWIVEL HOOK IN A PROCUREMENT TO MEET URGENT NEEDS IS NOT APPROVED.

TO SHROUT, HANLEY, NESTLE AND CAPORALE:

WE REFER TO YOUR LETTER OF OCTOBER 13, 1967, AS ATTORNEYS FOR THE COMET EQUIPMENT COMPANY, NC., OMAHA, NEBRASKA, REQUESTING THAT OUR DECISION OF JULY 10, 1967, B-161038, CONCERNING THE BID PROTEST OF THE THOMAS COMPANY, MINNEAPOLIS, MINNESOTA, BE MODIFIED TO THE EXTENT THAT THE PRESENT MILITARY SPECIFICATION AND STANDARDS FOR TIRE CHAIN ASSEMBLIES, REQUIRING USE OF THE PATENTED COMET SWIVEL HOOK, BE PERMITTED TO REMAIN IN EFFECT UNTIL SUCH TIME AS THE COMPETITIVE THOMAS SWIVEL HOOK HAS BEEN TESTED AND PROVEN TO BE SUPERIOR TO THE COMET PRODUCT.

UNDER DATE OF NOVEMBER 15, 1967, THE DIRECTOR OF MATERIEL ACQUISITION, OFFICE OF THE ASSISTANT SECRETARY OF THE ARMY, REQUESTED OUR APPROVAL OF A PROPOSED PROCUREMENT OF STATED QUANTITIES OF TIRE CHAIN ASSEMBLIES TO MEET CURRENT NEEDS, UNDER THE SAME MILITARY SPECIFICATIONS. ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO THE SECRETARY OF THE ARMY, WHICH IS DISPOSITIVE OF CERTAIN OF THE POINTS RAISED IN YOUR LETTER.

WITH RESPECT TO YOUR CONTENTION THAT THE THOMAS HOOK FAILS TO MEET THE PERFORMANCE CRITERION OF ALLOWING THE REPLACEMENT OF CROSS CHAINS WITHOUT TOOLS SINCE IT CONTAINS THE OLD STANDARD CLINCH FASTENER WHICH MUST BE CLAMPED DOWN AROUND THE SIDE CHAIN WITH A TOOL, IT IS APPARENT THAT SUCH ACTION IS NOT REQUIRED IN THE REPLACEMENT OF CROSS CHAINS WHERE THE THOMAS HOOK IS USED IN THE ORIGINAL CHAIN ASSEMBLY. IN ANY EVENT, EVALUATION OF THE RELATIVE MERITS OF DIFFERENT PRODUCTS AND FORMULATION OF THE STANDARDS TO BE PRESCRIBED ARE MATTERS PROPERLY TO BE DEALT WITH IN CONNECTION WITH SUCH ADDITIONAL TESTING AS MAY BE CONDUCTED IN ACCORDANCE WITH PROPER STANDARDIZATION PROCEDURES.

YOU STATE THAT COMET HAS INVESTED CONSIDERABLE SUMS IN EQUIPMENT AND INVENTORY IN ANTICIPATION OF SUPPLYING ITS HOOK TO MANUFACTURERS OF TIRE CHAIN ASSEMBLIES UNDER THE STANDARDIZED SPECIFICATION, AND THAT THE TRUST OF OUR DECISION IS TO SERIOUSLY IMPAIR COMET'S FINANCIAL FUTURE AS WELL AS TO DENY SAVINGS TO THE GOVERNMENT. WITH RESPECT TO THIS, OUR RECORDS INDICATE THAT UNDER THE GOVERNMENT'S PATENT LICENSE WITH COMET, OTHER BIDDERS MAY ELECT EITHER TO PURCHASE THE SWIVEL HOOK FROM COMET (OR ITS LICENSEE) OR TO MANUFACTURE THE HOOK THEMSELVES UNDER THE GOVERNMENT LICENSE, WHICH WOULD INVOLVE A BID EVALUATION FACTOR OF ONLY 1 CENT PER HOOK (THE AMOUNT OF ROYALTY PAYABLE TO COMET).

IN VIEW OF THE FOREGOING WE FIND NO LEGAL BASIS WARRANTING A MODIFICATION OF THE SUBJECT DECISION WHICH IS THEREFORE AFFIRMED.

A COPY OF THIS LETTER IS BEING FORWARDED TO THE SECRETARY OF THE ARMY.