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B-136916, AUGUST 28, 1961, 41 COMP. GEN. 148

B-136916 Aug 28, 1961
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- BIDS - QUALIFIED - NEGOTIATED CONTRACTS WHERE A NEGOTIATED CONTRACT UNDER WHICH THE GOVERNMENT OBTAINED A CONTRACTOR'S DRAWINGS AND DATA WAS AMBIGUOUS BECAUSE THE APPLICABLE MILITARY SPECIFICATION CURRENT AT THE TIME OF SUBMISSION OF THE PROPOSAL PROVIDED THAT THE CONTRACT WAS ONLY FOR THE PURPOSE OF EXAMINATION AND EVALUATION OF EQUIPMENT THAT WAS DESIGNED AND PERFECTED BY THE CONTRACTOR. 1961: REFERENCE IS MADE TO THE PROTEST OF AIRCRAFTSMEN. WHICH WAS CANCELED AND SUPERSEDED BY IFB NO. 101-601-61-988. AIRCRAFTSMEN RENEWED THE PROTEST AND THE OPENING DATE WAS POSTPONED INDEFINITELY PENDING FINAL DETERMINATION OF THE ISSUES PRESENTED. AS YOU ARE AWARE. WHICH HAVE BEEN MADE AVAILABLE TO YOU FOR CONSIDERATION.

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B-136916, AUGUST 28, 1961, 41 COMP. GEN. 148

CONTRACTS - DATA, RIGHTS, ETC. - USE BY GOVERNMENT--- BIDS - QUALIFIED - NEGOTIATED CONTRACTS WHERE A NEGOTIATED CONTRACT UNDER WHICH THE GOVERNMENT OBTAINED A CONTRACTOR'S DRAWINGS AND DATA WAS AMBIGUOUS BECAUSE THE APPLICABLE MILITARY SPECIFICATION CURRENT AT THE TIME OF SUBMISSION OF THE PROPOSAL PROVIDED THAT THE CONTRACT WAS ONLY FOR THE PURPOSE OF EXAMINATION AND EVALUATION OF EQUIPMENT THAT WAS DESIGNED AND PERFECTED BY THE CONTRACTOR, BUT THE CONTRACT CONTAINED A GENERAL PROVISION GIVING THE GOVERNMENT UNLIMITED RIGHTS TO THE DRAWINGS AND DATA, THE INTENTION OF THE CONTRACTOR AT THE TIME OF NEGOTIATION THAT HE DID NOT INTEND TO GIVE UP HIS RIGHT TO THE DRAWINGS AND DATA, TOGETHER WITH THE MEANING THE CONTRACTOR ATTACHED TO THE RIGHTS CLAUSE, SHOULD PREVAIL; THEREFORE, AN ADVERTISED PROCUREMENT USING THE DRAWINGS AND DATA WITHOUT THE EXPRESS AUTHORITY AND CONSENT OF THE CONTRACTOR SHOULD BE CANCELED. A RESERVATION IN A PROPOSAL SUBMITTED INCIDENT TO A NEGOTIATED PROCUREMENT LIMITING THE USE OF THE CONTRACTOR'S DATA AND DRAWINGS BY THE GOVERNMENT DOES NOT MAKE THE OFFER A QUALIFIED BID OR MAKE THE PROPOSAL UNACCEPTABLE IN THE MANNER IN WHICH A QUALIFICATION IN A BID IN RESPONSE TO AN ADVERTISED COMPETITIVE PROCUREMENT DOES.

TO THE SECRETARY OF THE AIR FORCE, AUGUST 28, 1961:

REFERENCE IS MADE TO THE PROTEST OF AIRCRAFTSMEN, INC., DATED OCTOBER 28, 1960, IN WHICH IT CONTENDS THAT EMPENNAGE STAND DRAWING NO. 1001 FURNISHED BY AIRCRAFTSMEN UNDER NEGOTIATED CONTRACT NO. AF 33 /600/-33670 ENTERED INTO AS OF AUGUST 20, 1956, PROPERLY MAY NOT BE USED BY YOUR DEPARTMENT FOR THE PURPOSE OF PROCURING EMPENNAGE STAND REQUIREMENTS ON AN ADVERTISED COMPETITIVE BASIS. THE PROTEST ORIGINALLY RELATED TO IFB NO. 101-601-61- 873, ISSUED AUGUST 19, 1960, WHICH WAS CANCELED AND SUPERSEDED BY IFB NO. 101-601-61-988, SCHEDULED FOR OPENING MARCH 10, 1961. AIRCRAFTSMEN RENEWED THE PROTEST AND THE OPENING DATE WAS POSTPONED INDEFINITELY PENDING FINAL DETERMINATION OF THE ISSUES PRESENTED. AS YOU ARE AWARE, AIRCRAFTSMEN, INC., HAS SUPPLEMENTED THIS PROTEST BY SEVERAL ADDITIONAL LETTERS WITH ACCOMPANYING EXHIBITS AND AFFIDAVITS AND A MEMORANDUM OF POINTS AND AUTHORITIES SUBMITTED APRIL 6, 1961, BY ITS COUNSEL, MR. E. K. GUBIN, WHICH HAVE BEEN MADE AVAILABLE TO YOU FOR CONSIDERATION, AND THE MATTER HAS BEEN THE SUBJECT OF DISCUSSION AND CORRESPONDENCE BETWEEN OUR RESPECTIVE AGENCIES.

IT IS THE POSITION OF AIRCRAFTSMEN THAT THE INTENDED USE FOR WHICH THE DATA AND DRAWINGS WERE FURNISHED UNDER CONTRACT NO. 33670 WAS LIMITED TO THE PURPOSES SPECIFIED IN THE MILITARY SPECIFICATION REFERRED TO IN TABLE 102B OF THE SCHEDULE WHICH EMBRACED ENGINEERING EVALUATION, MAINTENANCE AND OPERATION AND OTHER RELATED PURPOSES BUT DID NOT INCLUDE PROCUREMENT PURPOSES. AIRCRAFTSMEN CONTENDS THAT AN OBJECTION WAS NOT INTERPOSED TO THE INCLUSION OF CLAUSE 38 IN THE CONTRACT BY REASON OF MISLEADING STATEMENTS BY RESPONSIBLE OFFICIALS OF THE AIR FORCE DURING THE CONTRACT NEGOTIATIONS TO THE EFFECT THAT THE EXPRESS RESERVATIONS CONTAINED IN AIRCRAFTSMEN'S PROPOSAL WOULD MAKE IT A QUALIFIED BID AND THAT AIRCRAFTSMEN'S RIGHTS WOULD BE FULLY PROTECTED BY TABLE 102B. IT ALLEGES, HOWEVER, THAT TABLE 102B APPEARING IN THE CONTRACT WAS NOT THE SAME AS TABLE 102B SET OUT IN THE REQUEST FOR PROPOSALS BUT HAD BEEN MODIFIED WITHOUT AIRCRAFTSMEN'S KNOWLEDGE OR CONSENT. AIRCRAFTSMEN ALSO CONTENDS THAT IN VIEW OF THE DISTINCT DIFFERENCE BETWEEN ,TECHNICAL DATA" AND "ENGINEERING DATA" AND THE CLASH BETWEEN CLAUSE 38 AND TABLE 102B, THE CONTRACT BECOMES AMBIGUOUS, AND THEREFORE THE INTENTION AND RIGHTS OF THE PARTIES UNDER THE CONTRACT SHOULD BE DETERMINED ON THE BASIS OF A CONSIDERATION OF ALL OF THE TERMS OF THE CONTRACT AS A WHOLE IN THE LIGHT OF THE CONDUCT OF THE PARTIES WITH RESPECT TO THE MAKING AND PERFORMANCE OF THE CONTRACT AND A FOLLOW-ON PRODUCTION CONTRACT SHOWING THAT THE AIR FORCE HAD NOT OBTAINED UNLIMITED RIGHTS TO THE DRAWINGS. AIRCRAFTSMEN CONTENDS FURTHER THAT A DETERMINATION ON SUCH BASIS IS NOT PRECLUDED BY THE CONTRACT PROVISIONS CONCERNING POSSIBLE INCONSISTENCIES BETWEEN THE GENERAL PROVISIONS, THE SCHEDULE AND THE SPECIFICATION UNDER THE GENERAL RULE OF LAW THAT CONTRACT AMBIGUITIES ARISING FROM SUCH CONFLICT MUST BE RESOLVED AGAINST THE PARTY WHO DREW THE CONTRACT.

IT IS THE POSITION OF YOUR DEPARTMENT THAT THE RIGHTS WITH RESPECT TO THE USE OF THE DATA AND DRAWINGS PROCURED BY THE GOVERNMENT FROM AIRCRAFTSMEN UNDER CONTRACT NO. 33670 WERE ESTABLISHED AND ARE GOVERNED BY CLAUSE 38 OF THE " GENERAL PROVISIONS" OF THE CONTRACT, REFERRED TO AS THE ,UNLIMITED RIGHTS" CLAUSE; THAT PURSUANT TO THIS CLAUSE THE CONTRACTOR GRANTED TO THE GOVERNMENT THE RIGHT TO REPRODUCE AND USE THE DRAWINGS FOR "GOVERNMENTAL PURPOSES" WITHOUT ANY LIMITATION OR RESTRICTION; THAT THE PHRASE "FOR GOVERNMENTAL PURPOSES" INCLUDED THE RIGHT TO USE THE DRAWINGS FOR FOLLOW- ON PROCUREMENT OF EMPENNAGE STANDS -- THE CONTRACT "END ITEM"--- FROM SUCH SOURCES AS THE GOVERNMENT MIGHT FIND APPROPRIATE. YOUR DEPARTMENT CONTENDS THAT THE INTENDED PURPOSE OF THE MILITARY SPECIFICATION WAS TO SET FORTH THE QUALITY AND TYPE OF DATA REQUIRED AND THE MANNER IN WHICH THE DRAWINGS WERE TO BE PREPARED; THAT IT WAS NOT THE INTENDED PURPOSE OF THE MILITARY SPECIFICATION TO LIMIT OR RESTRICT THE GOVERNMENT'S RIGHT TO USE SUCH DATA AND DRAWINGS FOR ANY GOVERNMENTAL PURPOSES THEY MIGHT SERVE. YOUR DEPARTMENT URGES THAT IN THE EVENT OF ANY INCONSISTENCY BETWEEN THE GENERAL PROVISIONS AND THE MILITARY SPECIFICATION THE GENERAL PROVISIONS MUST BE REGARDED AS CONTROLLING UNDER THE TERMS OF THE CONTRACT SO PROVIDING AND, IN SUMMARY, THAT THE PRIMARY QUESTION IS " WHAT DOES THE CONTRACT PROVIDE?

AS APTLY POINTED OUT BY MR. JUSTICE DOUGLAS IN HIS OPINION DELIVERED FOR THE SUPREME COURT, DECEMBER 4, 1944, UNITED STATES V. STANDARD RICE CO., 323 U.S. 106, IN GENERAL, THE UNITED STATES AS A CONTRACTOR MUST BE TREATED AS OTHER CONTRACTORS UNDER ANALOGOUS SITUATIONS AND WHEN PROBLEMS OF THE INTERPRETATION OF ITS CONTRACTS ARISE THE LAW OF CONTRACTS GOVERNS. SEE, ALSO, THE CASES CITED IN 54 AM. JUR., UNITED STATES, SECTION 68. A CARDINAL RULE OF CONTRACT CONSTRUCTION IS THAT THE INTENT AND MEANING OF A CONTRACT ARE NOT TO BE DETERMINED BY THE CONSIDERATION OF AN ISOLATED SECTION OR PROVISION THEREOF, BUT THAT THE CONTRACT IS TO BE CONSIDERED IN ITS ENTIRETY, AND EACH PROVISION IS TO BE CONSTRUED IN ITS RELATIONSHIP TO OTHER PROVISIONS AND IN THE LIGHT OF THE GENERAL PURPOSE INTENDED TO BE ACCOMPLISHED BY THE CONTRACTING PARTIES. 13 C.J., CONTRACTS, SECTION 486; 17 C.J.S., CONTRACTS, SECTION 297, AND AUTHORITIES THERE COLLECTED. AMONG THE SURROUNDING CIRCUMSTANCES THAT MAY BE CONSIDERED FOR PURPOSES OF INTERPRETATION ARE THE ACTS AND STATEMENTS OF THE PARTIES ANTECEDENT TO AND CONTEMPORANEOUS WITH THE MAKING OF THE CONTRACT. 3 CORBIN ON CONTRACTS, SECTION 543. AND AS STATED BY THE COURT OF CLAIMS, APRIL 8, 1959, IN BATESON-STOLTE, INC. V. UNITED STATES, 145 CT.1CL. 387, 172 F.1SUPP. 454, 457," THE GOVERNMENT'S STATUS AS A SOVEREIGN CONFERS UPON IT NO PRIVILEGE TO MISLEAD CONTRACTORS, OR TO PROFIT FROM THEIR IGNORANCE.' SEE, ALSO, GEORGE H. WHIKE CONSTRUCTION CO. V. UNITED STATES, MAY 1, 1956, 135 CT.1CL. 126. BASED UPON A CAREFUL CONSIDERATION OF ALL THE AVAILABLE FACTS AND CIRCUMSTANCES IN THIS CASE, AS SET OUT BELOW, IT IS OUR OPINION THAT THE GOVERNMENT DID NOT OBTAIN UNDER CONTRACT NO. 33670 A LICENSE OR RIGHT TO USE THE AIRCRAFTSMEN EMPENNAGE STAND DATA AND DRAWING NO. 1001 FOR COMPETITIVE PROCUREMENT PURPOSES AND THAT BY NECESSARY IMPLICATION THE GOVERNMENT AGREED THAT IT WOULD NOT SO USE SUCH DATA AND DRAWING.

UNDER THE PROVISIONS OF THE SCHEDULE OF CONTRACT NO. 33670 IT WAS PROVIDED, IN PART, AS FOLLOWS:

PART I--- SUPPLIES TO BE FURNISHED

(A) THE CONTRACTOR SHALL FURNISH AND DELIVER TO THE GOVERNMENT THE FOLLOWING ARTICLE AND DATA AT A TOTAL PRICE OF ------------ $30,086.62:

ITEM 1--- FABRICATE AND FURNISH ONE (1) STAND, EMPENNAGE, ADJUSTABLE, GENERAL PURPOSE, IN ACCORDANCE WITH THE REQUIREMENTS SET FORTH HEREIN AND AIR CRAFTSMEN DRAWING NO. 1001, INCORPORATED HEREIN BY REFERENCE. * * *

ITEM 2--- ONE (1) SET OF DRAWINGS IN ACCORDANCE WITH TABLE 102B, ATTACHED HERETO AND MADE A PART HEREOF. * * *

TABLE 102B INCORPORATED INTO THE SCHEDULE BY ITEM 2 QUOTED ABOVE PROVIDED AS FOLLOWS:

1. THE CONTRACTOR SHALL FURNISH COMPLETE DATA IN DIRECTING READING VANDYKE FORM OF THE FOLLOWING:

A. NUMERICAL INDICES OF DRAWINGS AND SPECIFICATION DATA.

B. DRAWINGS CONSISTING OF A MAIN ASSEMBLY (GENERAL ARRANGEMENT) DRAWING, ASSEMBLY DRAWINGS FOR EACH MAJOR OR MINOR ASSEMBLY, SPECIFICATION DRAWINGS AND ALL SUBASSEMBLY AND DETAIL DRAWINGS USED IN THE MANUFACTURE OF THE EQUIPMENT. WIRING DIAGRAMS SHALL BE FURNISHED WHEN ELECTRICAL CIRCUITS ARE EMPLOYED. THE DRAWINGS WILL BE PREPARED IN ACCORDANCE WITH CURRENT ISSUE OF SPECIFICATION MIL-D-5028. MANUFACTURING DATA SHALL BE COMPLETE IN ALL DETAILS AND ADEQUATE FOR USE IN REPRODUCTION OF THE EQUIPMENT FURNISHED.

THE CURRENT ISSUE OF THE MILITARY SPECIFICATION INCORPORATED INTO TABLE 102B-MIL-D-5028B ( ASG) AUGUST 20, 1956--- (SUPERSEDING MIL-D 5028A ( ASG) JANUARY 28, 1954, AND MIL-D-9281 ( USAF) SEPTEMBER 8, 1953/--- AS STIPULATED IN PARAGRAPH 1.1 THEREOF "COVERS THE PREPARATION OF MANUFACTURERS' ENGINEERING DESIGN DRAWINGS, AS DEFINED IN SECTION 6, AND RELATED DATA LISTS FOR PRODUCTION AERONAUTICAL AND ASSOCIATED EQUIPMENT.' PARAGRAPH 6 OF THIS SPECIFICATION PROVIDED IN PART:

6.1 INTENDED USE.--- DRAWINGS AND DATA LISTS COVERED BY THIS SPECIFICATION ARE FOR ENGINEERING EVALUATION OF THE ARTICLES, IDENTIFICATION OF STOCK, ORDERING AND STORING REPLACEMENT PARTS, INSPECTION OF ARTICLES AT OVERHAUL, AND GENERAL MAINTENANCE OF EQUIPMENT IN SERVICE.

CLAUSE 38 WHICH WAS MADE A PART OF THE " GENERAL PROVISIONS" OF CONTRACT NO. 33670 BY CLAUSE 40 (D), PROVIDED AS FOLLOWS:

38. REPRODUCTION AND USE OF TECHNICAL DATA.--- THE CONTRACTOR AGREES TO AND DOES HEREBY GRANT TO THE GOVERNMENT, TO THE FULL EXTENT OF THE CONTRACTOR'S RIGHT TO DO SO WITHOUT PAYMENT OF COMPENSATION TO OTHERS, THE RIGHT TO REPRODUCE, USE, AND DISCLOSE FOR GOVERNMENTAL PURPOSES (INCLUDING THE RIGHT TO GIVE TO FOREIGN GOVERNMENTS FOR THEIR USE AS THE NATIONAL INTEREST OF THE UNITED STATES MAY DEMAND) ALL OR ANY PART OF THE REPORTS, DRAWINGS, BLUEPRINTS, DATA, AND TECHNICAL INFORMATION SPECIFIED TO BE DELIVERED BY THE CONTRACTOR TO THE GOVERNMENT UNDER THIS CONTRACT; PROVIDED, HOWEVER, THAT NOTHING CONTAINED IN THIS PARAGRAPH SHALL BE DEEMED, DIRECTLY OR BY IMPLICATION, TO GRANT ANY LICENSE UNDER ANY PATENT NOW OR HEREAFTER ISSUED OR TO GRANT ANY RIGHT TO REPRODUCE ANYTHING ELSE CALLED FOR BY THIS CONTRACT.

THE CONTRACT ALSO CONTAINED THE FOLLOWING EXPRESS STIPULATIONS:

THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO THIS CONTRACT SHALL BE SUBJECT TO AND GOVERNED BY THE SCHEDULE AND THE GENERAL PROVISIONS. THE EXTENT OF ANY INCONSISTENCY BETWEEN THE SCHEDULE OR THE GENERAL PROVISIONS, AND ANY SPECIFICATIONS OR OTHER PROVISIONS WHICH ARE MADE A PART OF THIS CONTRACT BY REFERENCE OR OTHERWISE, THE SCHEDULE AND THE GENERAL PROVISIONS SHALL CONTROL. TO THE EXTENT OF ANY INCONSISTENCY BETWEEN THE SCHEDULE AND THE GENERAL PROVISIONS, THE SCHEDULE SHALL CONTROL.

THE EVIDENCE AND INFORMATION OF RECORD DISCLOSES THAT AIRCRAFTSMEN, INC., HAS BEEN ENGAGED IN THE DESIGN, DEVELOPMENT AND MANUFACTURE OF AIRCRAFT GROUND SERVICE EQUIPMENT SINCE 1948 WHICH CULMINATED IN THE FILING OF AN APPLICATION SEPTEMBER 1, 1955, FOR A PATENT ON THE EMPENNAGE STAND COVERED BY AIRCRAFTSMEN DRAWING NO. 1001 AND THE GRANTING ON MARCH 25, 1958, OF A PATENT THEREON. IN MARCH 1955 AN AIRCRAFTSMEN NO. 1001 EMPENNAGE STAND WAS ASSEMBLED AND PLACED IN OPERATION AT WEST PALM BEACH AIR FORCE BASE AS PART OF THE " CONTRACTOR FURNISHED" EQUIPMENT REQUIRED UNDER ITS , SERVICE TYPE" CONTRACT AF08/612/-242 COVERING THE PERIOD DECEMBER 20, 1954, TO SEPTEMBER 12, 1955. ADDITIONAL CONTRACTOR-OWNED NO. 1001 EMPENNAGE STANDS WERE FURNISHED BY AIRCRAFTSMEN FOR THE USE OF ITS PERSONNEL IN THE PERFORMANCE OF FOUR SIMILAR " SERVICE TYPE" CONTRACTS AT WEST PALM BEACH AIR FORCE BASE, FLORIDA, FOR THE PERIOD SEPTEMBER 12, 1955, TO MAY 31, 1959 (BASE WAS DEACTIVATED IN JUNE 1959), AND THREE CONTRACTS AT DONALDSON AIR FORCE BASE, SOUTH CAROLINA, FOR THE PERIOD OF JULY 1, 1958, TO JUNE 30, 1961.

PROCUREMENT OF AIRCRAFTSMEN EMPENNAGE STANDS FOR THE AIR FORCE WAS INITIATED BY LETTER DATED JULY 12, 1955, WHEREIN THE COMMANDER OF THE WRIGHT AIR DEVELOPMENT CENTER, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, ADVISED AIRCRAFTSMEN, INC., THAT " THIS CENTER IS NOW IN THE PROCESS OF PREPARING THE NECESSARY FORMS FOR THE PURCHASE OF ONE OF THE ADJUSTABLE HEAVY TRANSPORT EMPENNAGE STANDS DEVELOPED BY AIR CRAFTSMAN FOR WASHING C- 124 AIRCRAFT AT PALM BEACH AIR FORCE BASE.' IT WAS STATED IN THIS LETTER THAT " UPON RECEIPT OF THIS ITEM BY WADC IT WILL BE SERVICE TESTED TO DETERMINE ITS FUNCTIONAL SUITABILITY FOR AIR FORCE USE AND THE FEASIBILITY OF PROCURING THESE STANDS IN ANTITY.' IT WAS ALSO STATED THAT:

IN ORDER TO PROVIDE MORE DETAILED INFORMATION IN THE REQUEST FOR FUNDS FOR THIS PURCHASE IT IS REQUESTED THAT THE FOLLOWING INFORMATION BE FURNISHED THIS CENTER WITHOUT COST OR OBLIGATION TO THE GOVERNMENT.

A. VARIOUS PICTURES AND SKETCHES OF STAND SHOWING OPERATING POSITIONS OF THE RAMPS, ETC.

B. OVERALL DIMENSIONS OF STAND AND VERTICAL DIMENSIONS OF RAMPS.

C. APPROXIMATE TOTAL WEIGHT OF THE STAND.

D. INFORMATION REGARDING THE OPERATION OF THE RAMPS AND THE ELECTRICAL POWER SOURCE USED.

E. INFORMATION REGARDING TOWING THE STAND.

F. DEMOUNTABILITY AND PACKAGING OF THE STAND.

G. PART NUMBER OR MANUFACTURER'S TITLE FOR STAND.

H. APPROXIMATE PRICE OF THE STAND ON A ONE ARTICLE BASIS.

I. ANY OTHER DESCRIPTIVE MATERIAL AVAILABLE.

IT WAS STATED FURTHER IN THIS LETTER THAT IT WAS UNDERSTOOD THAT THE " ADJUSTABLE HEAVY TRANSPORT EMPENNAGE STAND DEVELOPED BY AIRCRAFTSMEN IS IN OPERATION AT PALM BEACH AFB, FLORIDA.' THE QUESTION WAS ASKED AS TO WHETHER THIS STAND WILL "BE AVAILABLE IN THE NEAR FUTURE FOR A BRIEF GENERAL INSPECTION BY WADC PERSONNEL" AND REQUEST WAS MADE THAT AIRCRAFTSMEN " PLEASE FORWARD THE PRECEDING INFORMATION AT YOUR EARLIEST CONVENIENCE.' AIRCRAFTSMEN'S RESPONSE TO THE WADC REQUEST OF JULY 12, 1955, WAS MADE BY LETTER DATED JULY 20, 1955, TO THE COMMANDER, WRIGHT AIR DEVELOPMENT CENTER, FURNISHING THE INFORMATION REQUESTED TOGETHER WITH TWO COPIES OF DRAWING NO. 1001, AND VARIOUS PHOTOGRAPHS AND SKETCHES ALL OF WHICH WERE LABELED " PATENT PENDING.' THIS LETTER ALSO ADVISED THE COMMANDER OF WADC THAT THE STAND AT PALM BEACH AFB WAS IN DAILY USE AND WOULD BE AVAILABLE FOR A GENERAL INSPECTION BY WADC PERSONNEL AT HIS CONVENIENCE. APPROXIMATELY 9 MONTHS AFTER WADC'S REQUEST FOR INFORMATION OF JULY 12, 1955, AIRCRAFTSMEN RECEIVED LETTER DATED MAY 4, 1956," SUBJECT: REQUEST FOR PROPOSAL, PURCHASE REQUEST 19299, DUE ATE: 15 MAY 1956" FROM MR. BASIL F. BLIZZARD, CHIEF, PRODUCTION PLANNING AND MATERIALS SECTION, RESEARCH AND DEVELOPMENT BRANCH, AIRLINES MAINTENANCE AND SERVICE CONTRACTS DIVISION, HEADQUARTERS, AIR MATERIEL COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO. THIS LETTER, IN MATERIAL PART, REQUESTED THAT A PROPOSAL BE SUBMITTED TO THIS HEADQUARTERS, ATTENTION: NCPMRP, MR. H. J. SMITH, ON SUBJECT PURCHASE REQUEST TO ARRIVE NOT LATER THAN DUE DATE SPECIFIED IN THE SUBJECT OF THIS LETTER COVERING THE PROCUREMENT OF ITEMS SET FORTH BELOW:

CHART ITEM QTY DESCRIPTION

1 1 EA STAND, EMPENNAGE, ADJUSTABLE, GENERAL PURPOSE,

IN ACCORDANCE WITH THE REQUIREMENTS SET FORTH

HEREIN AND AIRCRAFTSMEN DRAWING NO. 1001.

2 1 SET DRAWINGS IN ACCORDANCE WITH TABLE 102B. * * *

3 1 SET COMPLETE DESIGN CALCULATIONS * * *

THE CONTRACT WILL INCLUDE ALL APPLICABLE PROVISIONS WHICH ARE REQUIRED BY FEDERAL LAW, EXECUTIVE ORDER, AND ARMED SERVICES PROCUREMENT REGULATIONS TOGETHER WITH THE FOLLOWING SPECIAL PROVISIONS:

PARO FORMS: 9-4, 9-7, 9-8, 9-10C.2 AND 9-12.

CONTRACTUAL INFORMATION WILL BE IN ACCORDANCE WITH EXHIBIT MCPMR, ATTACHED HERETO. COMPLIANCE WITH ALL TERMS AND CONDITIONS THEREIN MUST BE INDICATED IN PROPOSAL.

THE TERM "NEGOTIATION" AS USED IN EXHIBIT MCPMR HEREIN ENCLOSED SHALL NOT BE INTERPRETED AS MEANING THAT BIDDERS WILL BE GIVEN THE OPPORTUNITY TO REVISE OR LOWER THEIR ORIGINAL BID PRICE OR OTHERWISE MODIFY THEIR ORIGINAL PROPOSAL. COMPETITIVE BIDS ARE BEING SOLICITED. BIDDERS ARE CAUTIONED TO CAREFULLY REVIEW ALL TERMS AND CONDITIONS AND SPECIFICATIONS OF THIS REQUEST FOR PROPOSAL PRIOR TO SUBMISSION OF BID. THE CONTRACTING OFFICER MAY CONSIDER BIDDER'S ORIGINAL PROPOSAL AS FINAL QUOTATION WITHOUT EXTENDING PRIVILEGE TO MODIFY OR REVISE QUOTATION OR CONDUCT FURTHER NEGOTIATIONS. ( ITALICS SUPPLIED.)

PROPOSALS RECEIVED ARE REQUIRED TO DOCUMENT THE FILE AND NONE WILL BE RETURNED. THE HANDLING OF SUCH INFORMATION WILL BE SUBJECT TO TITLE 18, SECTION 1905, U.S.C. ANNOTATED.

THE LAST SENTENCE OF PARAGRAPH B OF TABLE 102B OF THE " REQUEST FOR PROPOSAL" CONTAINED THE FOLLOWING PROVISO WHICH WAS OMITTED FROM TABLE 102B AS IT APPEARED IN CONTRACT NO. 33670:

* * * PROVIDED, HOWEVER, THAT NOTHING CONTAINED IN THIS TABLE SHALL BE DEEMED, DIRECTLY OR BY IMPLICATION, TO GRANT ANY RIGHT TO REPRODUCE ANY OF THE EQUIPMENT, OR PARTS THEREOF, CALLED FOR BY THIS CONTRACT.

WHILE THE RECORD DOES NOT ESTABLISH WHEN TABLE 102B WAS AMENDED, UNDER THE CIRCUMSTANCES OF THIS CASE IT SEEMS CLEAR THAT THE AMENDMENT WAS NOT MADE WITH THE CONSENT OF THE CONTRACTOR.

THE WADC INQUIRY OF JULY 12, 1955, AND AIRCRAFTSMEN'S RESPONSE THERETO DATED JULY 20, 1955, REFLECT CLEARLY A DESIRE ON THE PART OF THE GOVERNMENT TO OBTAIN AN EMPENNAGE STAND FOR EXAMINATION AND EVALUATION PURPOSES ONLY, AND THE WILLINGNESS ON THE PART OF AIRCRAFTSMEN TO COOPERATE FULLY WITH THE PROCURING OFFICIALS. MANIFESTLY, THE INFORMATION AND DATA REQUESTED BY WADC WERE FURNISHED BY AIRCRAFTSMEN FOR THE LIMITED PURPOSE INDICATED AND FOR NO OTHER. THIS WAS MADE CLEAR IN AIRCRAFTSMEN'S LETTER TO WADC DATED MAY 11, 1956, PROTESTING ANY AWARD UNDER THE RFP OF MAY 4, 1956, IN WHICH IT WAS POINTED OUT THAT AIRCRAFTSMEN'S DESIGN RIGHTS HAD BEEN IGNORED BY DISSEMINATION OF ITS DATA AND DRAWINGS UNDER THE RFP; THAT " AT NO TIME HAVE WE GRANTED, CONSENTED TO, OR IMPLIED THAT OUR DRAWINGS, SPECIFICATIONS OR DESIGN ON THE SUBJECT EMPENNAGE STAND MAY BE USED BY ANYONE OTHER THAN AIRCRAFTSMEN, INC., FOR THE BENEFIT OF THE U.S.A.F. OR FOR ANY OTHER PURPOSE.' AIRCRAFTSMEN SUMMARIZED ITS POSITION IN THIS LETTER, AS FOLLOWS:

IT IS NOT OUR DESIRE THAT THE GOVERNMENT PAY MORE THAN A REASONABLE AND JUST PRICE FOR THE EMPENNAGE STAND, NOTWITHSTANDING THE LARGE DEVELOPMENT COSTS INCURRED BY AIRCRAFTSMEN, INC. IT WOULD NOT BE ETHICAL OR PROPER FOR THE GOVERNMENT TO COMPEL AIRCRAFTSMEN, INC. TO BID COMPETITIVELY AGAINST A COMPANY WHO INCURRED NO DEVELOPMENT OR DESIGN COSTS. FURTHERMORE, NEITHER WOULD IT BE ETHICAL OR FAIR COMPETITION FOR THE GOVERNMENT TO ALLOW A FORMER EMPLOYEE OF AIRCRAFTSMEN, INC., OR A CORPORATION OF WHICH HE IS AN OFFICER, TO BID COMPETITIVELY AGAINST AIRCRAFTSMEN, INC. WHEN ANY INFORMATION THEY MAY HAVE ACCUMULATED AS TO AIRCRAFTSMEN, INC.'S DESIGN WAS OBTAINED DURING HIS GAINFUL EMPLOYMENT BY AIRCRAFTSMEN, INC. WE WISH TO POINT OUT HEREWITH THAT MR. B. F. MATTHEWS, PRESENTLY WITH AIRCRAFT EQUIPMENT COMPANY, HAD ACCESS WHILE AN EMPLOYEE OF AIRCRAFTSMEN, INC. TO OUR DESIGN PROJECTS AND ALSO THAT HE ACTUALLY HAD KNOWLEDGE OF OUR QUOTED FIRM PRICE TO WADC PRIOR TO HIS DEPARTURE FROM AIRCRAFTSMEN, INC.

AT A MEETING ON MAY 14, 1956, IN THE OFFICE OF THE CONTRACTING OFFICER, MR. BASIL F. BLIZZARD, A PROPOSAL DATED MAY 11, 1956, WAS SUBMITTED BY MR. M. M. HERRING, PRESIDENT, AIRCRAFTSMEN, INC., IN MATERIAL PART AS FOLLOWS:

THIS PROPOSAL IS NOT TO BE CONSIDERED AS A COMPETITIVE BID AGAINST ANY OTHER CONCERN'S BID SINCE THE SPECIFIED DESIGN BELONGS SOLELY TO AIRCRAFTSMEN, INC. NOR DO WE GRANT, DIRECTLY OR BY IMPLICATION, ANY RIGHT TO REPRODUCE ANY OF THE EQUIPMENT, OR PARTS THEREOF, OR DRAWINGS RELATED TO SAME WITHOUT OUR SPECIFIC APPROVAL IN EACH INSTANCE.

THIS PROPOSAL IS, HOWEVER, BASED ON ACTUAL RECORDS AND PREVIOUS COSTS OF THE EQUIPMENT.

WE PROPOSE:

CHART ITEM QTY DESCRIPTION PRICE

1 1 EA STAND, EMPENNAGE, ADJUSTABLE, GENERAL $29,561.62

PURPOSE IN ACCORDANCE WITH AIRCRAFTSMEN,

INC. DWG. NO. 1001 AND SPECIFICATIONS A,

B, C, D, E, F, G AND H OF THE SUBJECT REQUEST

FOR PROPOSAL.

2 1 SET DRAWINGS IN ACCORDANCE WITH TABLE 102B 25.00

3 1 SET COMPLETE DESIGN CALCULATIONS AS FOLLOWS: 1,000.00

A. TOTAL LOAD ANALYSIS--- COMBINED

LIVE AND DEAD LOADS

B. WIND LOAD ANALYSIS

TOTAL 30,586.62

AS VERIFIED BY AIRCRAFTSMEN'S LETTER DATED JULY 21, 1956, THE PRICE QUOTED FOR ITEM 3 WAS LATER REDUCED TO $500 RESULTING IN THE TOTAL NET PRICE OF $30,086.62 STIPULATED IN THE CONTRACT SCHEDULE. OPPOSITE THE FIRST PARAGRAPH ON PAGE 1 OF THE COPY OF AIRCRAFTSMEN'S PROPOSAL SUBMITTED BY YOUR DEPARTMENT APPEARS THE HANDWRITTEN NOTATION " DELETE SEE PAGE 2. M M H. MAY 14, 1956.' AT THE BOTTOM OF PAGE 2 OF THE PROPOSAL APPEARS AN ADDITIONAL HANDWRITTEN NOTATION, AS FOLLOWS:

NOTE: PARA. 2 ON PAGE ONE IS DELETED. PAROS 9-4 9-7 9-8 9-10C-2 9 12 ARE ACCEPTABLE. M. M. HERRING.

WHEREAS PARO 9-8 REPRESENTING A ROYALTY CLAUSE, AND PARO 9-10C.2 REPRESENTING A CLAUSE COVERING AUTHORIZATION AND CONSENT OF THE GOVERNMENT FOR THE USE OF PATENTS WERE EXCLUDED FROM THE CONTRACT SINCE THEY OBVIOUSLY COULD HAVE NO APPLICATION, PARO 9-4 " PATENT RIGHTS," PARO 9-7 " COPYRIGHT" AND PARO 9-12 " REPRODUCTION AND USE OF TECHNICAL DATA" WERE INCLUDED AS CLAUSES 36, 37 AND 38 OF THE GENERAL PROVISIONS.

WITH PARTICULAR REFERENCE TO THE CIRCUMSTANCES UNDER WHICH HE MADE THE NOTATIONS ON HIS PROPOSAL AT THE CONFERENCE OF MAY 14, 1956, MR. M. M. HERRING, PRESIDENT OF AIRCRAFTSMEN, INC., HAS SUBMITTED AN AFFIDAVIT DATED APRIL 4, 1961, WHICH SUPPLEMENTS A PREVIOUS AFFIDAVIT DATED MARCH 8, 1961, CORROBORATED BY AN AFFIDAVIT DATED MARCH 11, 1961, BY MR. W. ( WALTER) H. JONES, A FORMER DIRECTOR AND VICE PRESIDENT OF AIRCRAFTSMEN, INC., WHO WAS PRESENT AT THE CONFERENCE. MR. HERRING STATES IN THIS AFFIDAVIT IN PERTINENT PART AS FOLLOWS:

I HANDED THE PROPOSAL DATED MAY 11, 1956 TO MR. BLIZZARD AND THE FOUR OF US PRESENT READ OVER THE ENTIRE PROPOSAL. MR. BLIZZARD STATED THAT IT SEEMED TO BE COMPLETE AND IN GOOD ORDER WITH A FEW EXCEPTIONS.

MR. BLIZZARD'S FIRST OBJECTION WAS IN REFERENCE TO PAGE 1, PARAGRAPH 2, OF THE COVERING LETTER DEALING WITH RESTRICTIONS. NO OFFENSE IS INTENDED TOWARD MR. BLIZZARD, BUT HE ACTUALLY CHUCKLED IN A SORT OF RIDICULING MANNER BEFORE HE STATED THAT THIS PARAGRAPH WOULD HAVE TO BE DELETED.

I VEHEMENTLY OBJECTED TO THE REMOVAL OF RESTRICTIONS ON THE USE OF OUR DRAWINGS AND DESIGN RIGHTS. I SAID THAT I HAD DESIGNED AND DEVELOPED THIS STAND IN 1954 AND THAT A PATENT WAS THEN PENDING SINCE SEPTEMBER 1, 1955. I FURTHER STATED THAT A COPY OF THE PATENT APPLICATION WITH PATENT DRAWINGS WAS IN THE WADC FILE. I TOLD MR. BLIZZARD THAT I HAD NO INTENTIONS OF GIVING UP ANY DESIGN OR DRAWING RIGHTS.

MR. BLIZZARD SHOWED MR. JONES AND MYSELF MCP 71-9, 23 JAN 56--- FP R AND D ENTITLED " GENERAL PROVISIONS FIXED PRICE RESEARCH AND DEVELOPMENT CONTRACT" AND STATED THAT IT WOULD BE INCLUDED IN ANY CONTRACT AWARDED. QUESTIONED MR. BLIZZARD AS TO THE APPLICABILITY OF THIS SET OF PROVISIONS SINCE THEY APPARENTLY WERE INTENDED FOR CONTRACT WORK WHEREIN RESEARCH AND DEVELOPMENT WORK WAS TO BE PERFORMED. I SAID THAT THERE WAS NO RESEARCH OR DEVELOPMENT WORK INVOLVED IN THIS PROPOSED CONTRACT. I ADDED FURTHER THAT THE STAND WAS DESIGNED AND DEVELOPED SOME 2 YEARS AGO AT NO COST WHATSOEVER TO THE GOVERNMENT. MR. BLIZZARD SAID HE WAS AWARE OF THIS FACT BUT THAT THIS WAS A STANDARD SET OF PROVISIONS FOR ANY WADC CONTRACT.

I GLANCED OVER ALL CLAUSES IN THIS MCP 71-9 SEEKING OUT CLAUSES THAT SEEMED TO BE CONTRARY TO MY INTENTIONS OR AT LEAST CONTROVERSIAL AND REQUIRING AN INTERPRETATION OR EXPLANATION.

CLAUSE 36. PATENT RIGHTS CAME TO MY ATTENTION. I READ THIS CLAUSE OVER VERY CAREFULLY AND COULD DO NOTHING HARMFUL TO MY INTENDED PURPOSE, I.E., MY DESIRE TO PROTECT MY RIGHTS. IT WAS MY CONCLUSION THAT THE EFFECT THIS CLAUSE WOULD HAVE ON THE PROPOSED CONTRACT HINGED ON THE TWO WORDS," SUBJECT INVENTION" AND SINCE THE INVENTION WAS MADE AND REDUCED TO PRACTICE PRIOR TO THE CONTRACT, THIS CLAUSE WOULD HAVE NO BEARING ON THE CONTRACT. I ASKED MR. BLIZZARD HOW HE INTERPRETED THE CLAUSE. HE STATED THAT ANY INVENTION MADE PRIOR TO THIS TIME WOULD NOT BE CLASSED AS A " SUBJECT INVENTION" UNDER THE CONTRACT AND THEREFORE, NO RIGHTS WOULD BE GRANTED TO THE GOVERNMENT UNDER THIS CLAUSE.

CLAUSE 38. REPRODUCTION AND USE OF TECHNICAL DATA NEXT CAME IN FOR A BRIEF DISCUSSION. TO ME THIS CLAUSE SEEMED TO BE AMBIGUOUS AND CONFLICTING WITHIN ITSELF BUT SINCE IT WAS ENTITLED " REPRODUCTION AND USE OF TECHNICAL DATA" I WAS NOT TOO CONCERNED; HOWEVER, I DID ASK MR. BLIZZARD WHAT THIS PARAGRAPH 38 MEANT. MR. BLIZZARD STATED IT COVERED HANDBOOKS, OPERATING INSTRUCTIONS AND REPAIR MANUALS IF ANY WERE REQUIRED FOR GOVERNMENTAL USE.

I ASKED MR. BLIZZARD TO EXPLAIN FULLY THE GOVERNMENTAL USE AS PERTAINING TO DRAWINGS AND BLUEPRINTS MENTIONED IN THIS PARAGRAPH. MR. BLIZZARD SAID THAT I HAD NOTHING TO WORRY ABOUT AS THIS CLAUSE REFERRED TO DRAWINGS AND BLUEPRINTS AS REQUIRED IN OVERHAUL AND REPAIR MANUALS, ETC.

I WAS RELUCTANT TO GIVE THE DRAWINGS UNDER ANY CIRCUMSTANCE AND BOTH MR. JONES AND I QUESTIONED MR. BLIZZARD AS TO THE REASON WHY THE AIR FORCE WAS REQUIRING A SET OF DRAWINGS AS COMPLETE AS TABLE 102B SPECIFIES. MR. BLIZZARD SAID THE AIR FORCE MUST HAVE THE DRAWINGS COMPLETE IN ORDER TO EVALUATE THE STAND, FOR MAINTENANCE, AND REPAIRS IF THE NEED ARISES. MR. BLIZZARD FURTHER STATED THAT THIS STAND IS BEING PROCURED FOR EVALUATION ONLY AS TO ANY POSSIBLE USE IT MAY HAVE TO THE AIR FORCE AND THAT THE AIR FORCE IS NOT BUYING ANY DESIGN, OR REPRODUCTION RIGHTS OR PATENT RIGHTS THAT MAY BE GRANTED ME BY MY PENDING PATENT APPLICATION. MR. BLIZZARD ALSO SAID THAT THE DRAWINGS TO BE DELIVERED ON THE CONTRACT WOULD BE USED ONLY BY PERSONS IN THE EMPLOY OF THE GOVERNMENT.

WE AGAIN DISCUSSED PAR. 2, P. 1 IN MY COVER LETTER. MR. BLIZZARD STATED THAT BEFORE A CONTRACT IS AWARDED IT MUST BE APPROVED BY A COMMITTEE AND HE KNEW THEY WOULD NOT EVEN CONSIDER MY BID UNLESS I DELETED THIS PARAGRAPH SINCE IT WOULD BE A QUALIFICATION TO MY BID. MR. BLIZZARD ALSO STATED THE DELETION WOULD NOT EFFECT THE CONTRACT SINCE I WAS AFFORDED FULL PROTECTION UNDER THE CONDITIONS ESTABLISHED BY TABLE 102B WHICH WOULD BE INCORPORATED IN THE CONTRACT AND GOVERNS THE DRAWINGS REQUIREMENT. MR. BLIZZARD THEN READ TO ME PAR. B OF TABLE 102B, THE LAST SENTENCE OF WHICH CONTAINED THE PROVISO MENTIONED ON THE NEXT PAGE OF THIS AFFIDAVIT. MR. BLIZZARD ALSO ADVISED ME THAT MY COVER LETTER, P. 2, FURTHER TIED IN TABLE 102B WITH MY BID, AS THAT LETTER STATED SPECIFICALLY I WAS FURNISHING THE DRAWINGS "IN ACCORDANCE WITH TABLE 102B.'

AFTER GOING OVER ALL THE PERTINENT CLAUSES AND LISTENING TO MR. BLIZZARD'S EXPLANATIONS AND INTERPRETATIONS, HIS CONCLUSIONS DID APPEAR REASONABLE AND LOGICAL. AT ANY RATE, HE INDUCED ME TO DELETE PARAGRAPH 2 OF MY COVERING LETTER. THIS I DID WITH THE UNDERSTANDING THAT THE DELETION WOULD NOT EFFECT THE RESTRICTION WHICH I HAD PLACED ON USE OF MY DRAWINGS OR DESIGNS.

APPROXIMATELY FOUR MONTHS THEREAFTER I RECEIVED THE CONTRACT FOR MY SIGNATURE. I NOTED THE REFERENCE TO 102B ON P. B AND P. 16 AND SAW THAT THE TABLE ITSELF WAS ATTACHED, BUT I DID NOT READ THE TABLE WORD FOR WORD BECAUSE I HAD NO REASONS TO BELIEVE THE AIR FORCE WOULD CHANGE WORDS IN A STANDARD CLAUSE WITHOUT FIRST NOTIFYING THE CONTRACTOR, PARTICULARLY WHEN THE CLAUSE HAD BEEN POINTED OUT AS MY PROTECTION, AND ITS EXISTENCE USED TO INDUCE ME TO DELETE A RESTRICTIVE PARAGRAPH FROM MY COVERING LETTER.

I DID NOT LEARN THAT TABLE 102B, AS IT APPEARED IN THE R.F.P. HAD BEEN ALTERED BY DELETING THE LAST 33 WORDS, UNTIL FEBRUARY 1961, WHEN THE AIR FORCE LETTER DATED FEB. 16, 1961 WAS RECEIVED.

AT THAT TIME MR. RAY AND I IN GOING OVER THE AIR FORCE LETTER SUDDENLY FOUND THIS DELETION WHEREIN THE FOLLOWING WORDS WERE DELETED "PROVIDED, HOWEVER, THAT NOTHING CONTAINED IN THIS TABLE SHALL BE DEEMED, DIRECTLY OR BY IMPLICATION, TO GRANT ANY RIGHT TO REPRODUCE ANY OF THE EQUIPMENT, OR PARTS THEREOF, CALLED FOR BY THIS CONTRACT," AND REALIZED FOR THE FIRST TIME THAT TABLE 102B HAD BEEN CHANGED BY THE AIR FORCE (WITHOUT NOTICE TO ME) DURING THE PERIOD FROM MAY TO AUGUST 1956. IT SEEMS TO ME THAT WHEN AN R.F.P. CONTAINS ONE CLAUSE WHICH IS CHANGED WHEN A CONTRACT UNDER THAT R.F.P. IS PREPARED FOR SIGNATURE, THAT THE CONTRACT PAGE WHICH MENTIONED THAT CLAUSE, SUCH AS P. 16 OF MY CONTRACT, SHOULD BEAR THE STATEMENT," TABLE 102B AS AMENDED.'

THE CONTRACTING OFFICER, MR. BASIL F. BLIZZARD, HAS ALSO SUBMITTED AN AFFIDAVIT DATED MAY 12, 1961, IN WHICH IT IS STATED:

THAT, HE HAS READ THE GOVERNMENT CONTRACT FILE ON CONTRACT AF 33/600) 33670 WITH AIRCRAFTSMEN, INC. AND THE TWO AFFIDAVITS FILED BY MR. M. M. HERRING.

THAT, SO FAR AS HE CAN RECOLLECT MR. HERRING DID NOT VEHEMENTLY OBJECT TO THE WITHDRAWAL OF THE PARAGRAPH 2 OF THE LETTER DATED 11 MAY 1956.

THAT, THE CONFERENCE AT WHICH MR. HERRING WITHDREW THE PARAGRAPH AND AFFIRMATIVELY CONSENTED TO THE " DATA" CLAUSE AS IT APPEARS IN THE CONTRACT AF 33/600) 33670 FOLLOWED IMMEDIATELY UPON ANOTHER CONFERENCE ATTENDED BY MR. HERRING AND MR. BLIZZARD WITH THE CHIEF OF THE PATENTS AND ROYALTY DIVISION AFLC, HQ WHERE THE MATTER OF MR. HERRING PROTESTING A BID BY A COMPETITOR WAS FULLY DISCUSSED AS WELL AS THE CONDITIONS OF THE RFP WHICH RESULTED IN THE CONTRACT AF 33/600) 33670.

THAT, MR. HERRING AT NO TIME APPEARED TO BE IN DOUBT AS TO THE MEANING OF THE LEGAL EFFECT OF THE " DATED" CLAUSE REQUIRED TO BE IN ANY RESULTING CONTRACT.

THAT, THE GOVERNMENT DESIRED CHANGES MADE TO THE AIRCRAFTSMEN STAND SUFFICIENT TO REQUIRE THE INSERTION OF THE PATENTS RIGHTS CLAUSE.

THAT, TO THE BEST OF HIS RECOLLECTION, MR. BLIZZARD DID NOT MISLEAD MR. HERRING AS TO THE USE TO WHICH THE DRAWINGS WILL BE PUT.

THAT, MR. BLIZZARD DOES NOT RECOLLECT EVER INFORMING MR. HERRING THAT THE GOVERNMENT DESIRED TO PURCHASE ANY PATENT RIGHTS TO THE AIRCRAFTSMEN STAND.

THAT, MR. BLIZZARD CANNOT RECOLLECT EVERY INFORMING MR. HERRING THAT ONLY GOVERNMENT PERSONNEL WOULD USE THE DRAWINGS. MR. BLIZZARD HAVING HAD FIVE YEARS' EXPERIENCE WITH THE GOVERNMENT IN A CONTRACTING CAPACITY WOULD NOT KNOWINGLY MAKE SUCH A FALSE STATEMENT.

THAT, MR. BLIZZARD CANNOT RECOLLECT ASSURING MR. HERRING AS TO THE LEGAL EFFECT, IF ANY, OF THE TERMS OF TABLE 102B.

THAT, MR. BLIZZARD HAS NO RECOLLECTION OF INFORMATION AS TO MR. HERRING BEING INDUCED TO DELETE THE PARAGRAPH 2 OF HIS COVERING LETTER BY ANY STATEMENTS OTHER THAN THE MERE STATEMENTS AS TO THE , DATA" CLAUSE BEING A PART OF THE CONTRACT.

FROM THE CONTEXT OF THE AFFIDAVIT BY MR. HERRING IT IS SEEN THAT SWORN STATEMENTS ARE MADE WHICH ARE CORROBORATED BY MR. JONES TO THE EFFECT THAT AFFIRMATIVE REPRESENTATIONS WERE MADE BY THE CONTRACTING OFFICER WITH RESPECT TO THE RESERVATION CONTAINED IN AIRCRAFTSMEN'S PROPOSAL TO INDUCE THE DELETIONS NOTED THEREON AND THE INCLUSION OF CLAUSE 38 IN THE CONTRACT, TOGETHER WITH REPRESENTATIONS CONCERNING THE PURPOSE AND INTENT OF CLAUSE 38 IN CONJUNCTION WITH TABLE 102B OF THE SCHEDULE. IN CONTRAST, THE CONTRACTING OFFICER BY HIS AFFIDAVIT, WHICH DOES NOT DENY THE ALLEGED REPRESENTATIONS, MAKES GENERAL STATEMENTS AS TO HIS LACK OF RECOLLECTION THAT MR. HERRING WAS MISLED AS TO THE INTENDED USE OF THE DRAWINGS AND AS TO THE LEGAL EFFECT OF TABLE 102B "OTHER THAN THE MERE STATEMENTS AS TO THE " DATA" CLAUSE BEING A PART OF THE CONTRACT.' THUS, THE NARROW QUESTION ACTUALLY PRESENTED GOES TO THE MAKING AND SUBSTANCE OF THE CONTRACT.

IT IS AMPLY ESTABLISHED BY THE RECORD THAT THE CONTRACT NEGOTIATED WAS NOT FOR THE PERFORMANCE OF RESEARCH AND DEVELOPMENT WORK BY AIRCRAFTSMEN, INC. IT WAS A CONTRACT FOR PROCUREMENT OF AN EMPENNAGE STAND WHICH HAD ALREADY BEEN DESIGNED AND PERFECTED BY AIRCRAFTSMEN, INC., TOGETHER WITH DATA AND DRAWINGS REQUIRED BY THE GOVERNMENT FOR EVALUATING THE UTILITY AND TESTING THE PERFORMANCE CHARACTERISTICS OF THE STAND AND DETERMINING THE FEASIBILITY OF PROCURING IT IN QUANTITY. AIRCRAFTSMEN HAD A CLEAR LEGAL RIGHT TO LIMIT THE USE OF THE DATA AND DRAWINGS REQUIRED AND UNQUESTIONABLY THE RESERVATION CONTAINED IN ITS PROPOSAL DID NOT RENDER AIRCRAFTSMEN'S OFFER A ,QUALIFIED BID" OR MAKE THE PROPOSAL UNACCEPTABLE TO THE GOVERNMENT, AND THE RECORD IS DEVOID OF ANY EVIDENCE WHICH WOULD WARRANT CONSIDERING THIS PROCUREMENT AS AN ADVERTISED COMPETITIVE TRANSACTION. MOREOVER, IT APPARENTLY IS NOT CONTENDED BY YOUR DEPARTMENT AND NOTHING HAS BEEN BROUGHT TO OUR ATTENTION TO SHOW THAT EXISTING STATUTORY AND REGULATORY PROVISIONS REQUIRED THE INCLUSION OF CLAUSE 38 IN THE CONTRACT. HOWEVER THAT MAY BE, THE RECORD FAILS TO SHOW THAT ANY CONSIDERATION WAS IN FACT GIVEN DURING THE NEGOTIATIONS TO OBTAINING "UNLIMITED RIGHTS" FOR THE GOVERNMENT IN THE USE OF THE DRAWINGS. THE INTENDED USE OF THE DRAWINGS SET OUT IN THE MILITARY SPECIFICATION HERE SEEMS ENTIRELY CONSISTENT WITH THE PURPOSES OF THE PROCUREMENT STATED IN THE WADC REQUEST FOR THE PROPOSAL AND THE REPRESENTATIONS BY THE CONTRACTING OFFICER, AND WE BELIEVE THE POSITIVE STATEMENT OF THE SPECIFICATION SHOULD BE GIVEN CONSIDERABLE, IF NOT CONTROLLING, WEIGHT UNDER THE CIRCUMSTANCES NOTWITHSTANDING THE CONTRACT PROVISION CONCERNING THE EFFECT TO BE GIVEN THE SCHEDULE, GENERAL PROVISIONS AND SPECIFICATIONS IN CASE OF ANY INCONSISTENCY OR CONFLICT BETWEEN THEM. CF. HOLLERBACH V. UNITED STATES, APRIL 6, 1914, 233 U.S. 165. IN FACT, IT APPEARS THAT TABLE 102B AND THE MILITARY SPECIFICATION WERE MADE A PART OF THE SCHEDULE WHICH THE CONTRACT PROVIDED SHOULD CONTROL IN CASE OF CONFLICT WITH THE GENERAL PROVISIONS.

FURTHERMORE, THE RECORD SEEMS SUFFICIENT TO ESTABLISH THAT THE CONTRACTING OFFICER KNEW THAT AIRCRAFTSMEN DID NOT INTEND TO GIVE UP ITS RIGHT TO RETAIN FOR ITSELF THE USE OF THE DRAWINGS FOR THE MANUFACTURE OF THE EMPENNAGE STANDS, IF REQUIRED IN QUANTITY, AND THAT IN VIEW OF THE VALUE OBVIOUSLY PLACED BY AIRCRAFTSMEN ON ITS DESIGN AND MANUFACTURING KNOW-HOW IT HAD NO INTENTION OF GRANTING "UNLIMITED RIGHTS" THEREIN TO THE GOVERNMENT IN CONSIDERATION OF THE PAYMENT OF $25 WHICH COVERED MERELY THE COST OF DUPLICATING THE DRAWINGS. UNDER THE CIRCUMSTANCES, WE BELIEVE IT WAS THE DUTY OF THE CONTRACTING OFFICIALS, IN ALL FAIRNESS, TO EXPRESS THEIR VIEWS AND INTENTIONS IN CLEAR LANGUAGE IF THEY WERE DIFFERENT FROM THOSE OF AIRCRAFTSMEN. THIS THEY FAILED TO DO AND, IN THIS CONNECTION, THE MODIFICATION OF TABLE 102B WITHOUT THE THE KNOWLEDGE AND CONSENT OF AIRCRAFTSMEN APPEARS PARTICULARLY SIGNIFICANT. IT SEEMS ONLY REASONABLE TO CONCLUDE, THEREFORE, THAT THE MEANING AIRCRAFTSMEN ATTACHED TO THE LANGUAGE DRAFTED BY THE GOVERNMENT IS CONTROLLING. SEE AKTIEBOLAGET BOFORS V. UNITED STATES, 139 CT.1CL. 642, 153 F.1SUPP. 397, WHERE IT WAS HELD THAT IN VIEW OF THE CONTRACT NEGOTIATIONS THERE INVOLVED THE PHRASE "FOR THE UNITED STATES USE" APPEARING IN A GOVERNMENT CONTRACT GRANTING A LICENSE TO MANUFACTURE ANTI-AIRCRAFT GUNS DEVELOPED BY THE PLAINTIFF DID NOT INCLUDE A LICENSE TO EXPORT SUCH GUNS AS CONTENDED BY THE GOVERNMENT. OF. SMITH V. DRAVO CORP., 7TH C.C.A., APRIL 10, 1953, 203 F.2D 369, 376, IN WHICH THE COURT CONSIDERED A SITUATION WHERE DRAWINGS WERE FURNISHED FOR THE LIMITED PURPOSE OF ENABLING DEFENDANT TO APPRAISE THE PLAINTIFF'S PRODUCT, AND PRESSED STEEL CAR CO. V. STANDARD STEEL CAR CO., 210 PA. 464, 60 A. 4, CITED AND QUOTED WITH APPROVAL IN THE COURT'S OPINION.

AIRCRAFTSMEN, INC., HAS POINTED OUT THAT DISTINCT DIFFERENCES WHICH LONG HAVE EXISTED BETWEEN TYPES OF DATA AND THEIR USE HAVE BEEN RECOGNIZED IN GOVERNMENT REGULATORY PROVISIONS AND PUBLICATIONS AND UNDER CONTRACT PROVISIONS CURRENTLY PRESCRIBED. AS EVIDENCED BY THE FOLLOW-ON PROCUREMENT EFFECTED UNDER LETTER CONTRACT AF 101/601/-29735, DATED MARCH 18, 1960, SIX EMPENNAGE STANDS WERE PROCURED FROM AIRCRAFTSMEN, INC. THE SCHEDULE OF THIS CONTRACT AS DEFINITIZED EFFECTIVE AUGUST 17, 1960, EXPRESSLY PROVIDED THAT THE DRAWINGS REQUIRED WERE " TO BE USED FOR MAINTENANCE AND OPERATION ONLY.' HOWEVER, SINCE DRAWINGS HAD BEEN DELIVERED UNDER CONTRACT NO. 33670, ADDITIONAL DRAWINGS WERE NOT NEEDED OR FURNISHED. THE CANON OF CONTEMPORANEOUS AND SUBSEQUENT CONSTRUCTION OF A CONTRACT APPLIES NOT ONLY TO INDIVIDUALS BUT ALSO TO GOVERNMENTAL AGENCIES. SEE NOLTE V. HUDSON NAV. CO., 16 F.2D 182, AND THE AUTHORITIES IN 3 CORBIN ON CONTRACTS, SECTIONS 558 AND 559.

THE IFB 106-601-91-988 ON WHICH ACTION HAS BEEN SUSPENDED SHOULD BE CANCELED AND DATA AND DRAWINGS OBTAINED UNDER CONTRACT NO. AF 33/600/ 33670 SHOULD NOT BE USED FOR COMPETITIVE PROCUREMENT PURPOSES IN THE ABSENCE OF EXPRESS AUTHORITY AND CONSENT BY AIRCRAFTSMEN. WE ARE SO ADVISING AIRCRAFTSMEN BY TRANSMITTAL OF A COPY OF THIS DETERMINATION PURSUANT TO OUR LETTER OF TODAY, COPY ENCLOSED.

THE SENATE SELECT COMMITTEE ON SMALL BUSINESS IS ALSO BEING SIMILARLY ADVISED, AS REQUESTED.

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