B-168629, SEP 3, 1970, 50 COMP GEN 163

B-168629, SEP 3, 1970, 50 COMP GEN 163

BIDDERS - QUALIFICATIONS - EXPERIENCE - SPECIALIZED, ETC. UNDER A LETTER REQUEST, THE FIRST STEP OF A TWO-STEP PROCUREMENT, WHICH CONTAINED A "BIDDER'S TECHNICAL QUALIFICATION CLAUSE" STATING TECHNICAL PROPOSALS WOULD BE ACCEPTED ONLY FROM THOSE CONTRACTORS WHO HAVE MANUFACTURED AND CAN DEMONSTRATE AT AN OPERATING AIRFIELD A SOLID STATE CONVENTIONAL INSTRUMENT LANDING SYSTEM, THE EVALUATION OF THE CAPABILITIES OF A PRIME CONTRACTOR AND ITS SUBCONTRACTOR - A FRENCH FIRM WHO MANUFACTURED AND DEMONSTRATED THE SYSTEM IN FRANCE - ALTHOUGH WITHIN THE POLICY ENUNCIATED IN PARAGRAPH 4-117 OF THE ARMED SERVICES PROCUREMENT REGULATION, WHICH RECOGNIZES THE INTEGRITY AND VALIDITY OF CONTRACTOR TEAM ARRANGEMENTS, WAS CONTRARY TO THE INTENT OF THE CLAUSE, AND THE PROPOSAL PREMISED ON THE SUBCONTRACTOR'S SYSTEM SHOULD NOT HAVE BEEN CONSIDERED. THEREFORE, IN FUTURE PROCUREMENTS, THE CLAUSE SHOULD SPECIFY PERMISSIBLE RELATIONSHIPS OR REFER TO THE ASPR PROVISION.

TO THE SECRETARY OF THE AIR FORCE, SEPTEMBER 3, 1970:

REFERENCE IS MADE TO A LETTER DATED AUGUST 5, 1970, FROM THE CHIEF, CONTRACT PLACEMENT DIVISION, DIRECTORATE OF PROCUREMENT POLICY, DCS/S&L (SPPLA), FURNISHING A REPORT ON THE PROTEST OF AMERICAN-STANDARD, INCORPORATED, UNDER INVITATION FOR BIDS (IFB) NO. 33657-70-B0166, ISSUED BY THE AERONAUTICAL SYSTEMS DIVISION, WRIGHT-PATERSON AIR FORCE BASE, OHIO.

ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO AMERICAN-STANDARD. ALTHOUGH WE DENIED THAT FIRM'S PROTEST, WE BELIEVE ONE ASPECT OF THIS PROCUREMENT WARRANTS COMMENT.

THE LETTER REQUEST FOR TECHNICAL PROPOSALS WHICH CONSTITUTED THE FIRST STEP OF THIS PROCUREMENT CONTAINED THE FOLLOWING "BIDDERS TECHNICAL QUALIFICATION CLAUSE":

3. THIS PROCUREMENT WILL BE ACCOMPLISHED IN TWO DISTINCT STEPS: (1) SOLICITATION, SUBMISSION AND EVALUATION OF DETAILED TECHNICAL PROPOSALS WITHOUT PRICING TO DETERMINE ACCEPTABILITY OF THE PRODUCTS OFFERED, AND (2) ISSUANCE OF A FORMAL INVITATION FOR BIDS ONLY TO THOSE FIRMS HAVING ACCEPTABLE TECHNICAL PROPOSALS. BIDDERS WHO CANNOT COMPLY WITH THE ATTACHED BIDDERS QUALIFICATION CLAUSE SHOULD NOT SUBMIT A TECHNICAL PROPOSAL.

BIDDERS TECHNICAL QUALIFICATION CLAUSE

SOLID STATE INSTRUMENT LANDING SYSTEM

TECHNICAL PROPOSALS WILL BE ACCEPTED ONLY FROM THOSE CONTRACTORS WHO HAVE MANUFACTURED AND CAN DEMONSTRATE AT AN OPERATING AIRFIELD A SOLID STATE CONVENTIONAL INSTRUMENT LANDING SYSTEM. THE SYSTEM MUST BE COMPRISED OF AT LEAST THE FOLLOWING COMPONENTS: A TWO-FREQUENCY (CAPTURE EFFECT), DUAL EQUIPMENT VHF LOCALIZER STATION; A SINGLE FREQUENCY, DUAL EQUIPMENT UHF GLIDESLOPE STATION; AND A VHF MARKER BEACON STATION. THE SYSTEM MUST HAVE SUCCESSFULLY PASSED A FLIGHT CHECK FOR CATEGORY I SIGNAL QUALITY CONDUCTED BY THE FAA OR OTHER INTERNATIONAL CIVIL AVIATION ORGANIZATION RECOGNIZED FLIGHT CHECKING AGENCY. INSPECTION OF SUCH A SYSTEM BY THE GOVERNMENT WILL BE CONDUCTED BY GOVERNMENT ENGINEERS AND TECHNICIANS. THE INSPECTION WILL BE PART OF THE EVALUATION OF TECHNICAL PROPOSALS. FURTHER INFORMATION ON THE ARRANGEMENT FOR SUCH AN INSPECTION IS CONTAINED IN ATTACHMENT NO. 1.

TEXAS INSTRUMENTS, INC., AS A PRIME CONTRACTOR, SUBMITTED A TECHNICAL PROPOSAL WHICH DESCRIBED IN DETAIL A TEAM ARRANGEMENT IT HAD MADE WITH THOMSON-CSF, A FRENCH FIRM, FOR PERFORMANCE OF THIS PROCUREMENT. THE ADMINISTRATIVE REPORT FURNISHED OUR OFFICE BY YOUR DEPARTMENT STATES: "THE ARRANGEMENT UNDER WHICH (TEXAS INSTRUMENTS AND THOMSON-CSF) PARTICIPATED WAS CLEARED WITH THE LOCAL STAFF JUDGE ADVOCATE OFFICE." TEXAS INSTRUMENTS MET THE REQUIREMENTS OF THE ABOVE-QUOTED "BIDDERS TECHNICAL QUALIFICATION CLAUSE" BY DEMONSTRATING IN FRANCE AN ILS SYSTEM MANUFACTURED THERE BY ITS TEAM MEMBER, THOMSON-CSF. IT IS CLEAR FROM THE RECORD THAT THE ACCEPTABILITY OF TEXAS INSTRUMENTS TECHNICAL PROPOSAL, AND THUS ITS ELIGIBILITY TO BID ON THE SECOND STEP OF THIS PROCUREMENT, WAS PREMISED IN LARGE PART UPON THE CAPABILITIES OF ITS SUBCONTRACTOR.

WE RECOGNIZE THAT ARMED SERVICES PROCUREMENT REGULATION (ASPR) 4-117 ENUNCIATES A GENERAL POLICY OF RECOGNIZING THE INTEGRITY AND VALIDITY OF CONTRACTOR TEAM ARRANGEMENTS SUCH AS THAT OF TEXAS INSTRUMENTS AND THOMSON -CSF, AND THAT IT WAS IN THE LIGHT OF THAT POLICY THAT THE CAPABILITIES OF BOTH THE PRIME CONTRACTOR AND ITS SUBCONTRACTOR WERE CONSIDERED IN THE EVALUATION OF TECHNICAL PROPOSALS. HOWEVER, IT IS OUR OPINION THAT THE PROCURING ACTIVITY'S INTENTION DID NOT FIND ADEQUATE EXPRESSION IN THE "BIDDERS TECHNICAL QUALIFICATIONS CLAUSE," WHICH PROVIDED THAT TECHNICAL PROPOSALS WOULD "BE ACCEPTED ONLY FROM THOSE CONTRACTORS WHO HAVE MANUFACTURED AND CAN DEMONSTRATE AT AN OPERATING AIRFIELD A SOLID STATE CONVENTIONAL INSTRUMENT LANDING SYSTEM." THEREFORE, WE RECOMMEND THAT IN FUTURE PROCUREMENTS IN WHICH IT IS INTENDED THAT THE REQUIREMENTS OF SUCH QUALIFICATION CLAUSES MAY BE SATISFIED BY VARYING CONTRACTOR RELATIONSHIPS (SUCH AS THOSE RECOGNIZED BY ASPR 4-117), SUCH CLAUSES SPECIFICALLY (OR BY REFERENCE TO ASPR 4-117) DESCRIBE THOSE RELATIONSHIPS WHICH ARE PERMISSIBLE.

THE ENCLOSURES TO THE LETTER OF AUGUST 5 ARE RETURNED.