B-170174, JAN 22, 1971, 50 COMP GEN 500

B-170174, JAN 22, 1971, 50 COMP GEN 500

CONTRACTS - SPECIFICATIONS - QUALIFIED PRODUCTS - EFFECT OF SPECIFICATION REVISION THE ADMINISTRATIVE DETERMINATION THAT THE CHANGE IN THE WEIGHT OF WEBBING FOR PARACHUTES TO BE PROCURED FROM THE QUALIFIED PRODUCTS LIST (QPL) DID NOT INVALIDATE EXISTING TEST DATA OR REQUIRE THE REQUALIFICATION OF MANUFACTURERS ALREADY ON THE QPL WAS PROPER WHERE THE MODIFICATION WAS NOT THE CAUSE OF REJECTING SAMPLE PARACHUTES SUBMITTED FOR QUALIFICATION UNDER AN INVITATION CANCELED AND REISSUED; AND THE FACT THAT THE CAUSE FOR THE FAILURE OF THE PARACHUTE SAMPLES TO PASS THE DROP TEST CANNOT BE DETERMINED DOES NOT IMPOSE THE DUTY ON THE GOVERNMENT TO PINPOINT THE FAILURE WHERE THE UNREASONABLE EXPENDITURE OF TIME AND MONEY WOULD BE INVOLVED, NOR MAY A CONDITIONAL QUALIFICATION BE APPROVED ON THE BASIS THE CONTRACTOR IS NOT RELIEVED FROM COMPLYING WITH DRAWINGS AND SPECIFICATIONS.

TO THE SWITLIK PARACHUTE COMPANY, INC., JANUARY 22, 1971:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAMS OF JUNE 29, 1970, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE STANDARDS AND PROCEDURES UTILIZED BY THE DEPARTMENT OF THE AIR FORCE IN TESTING YOUR FIRM'S PARACHUTE SYSTEM FOR INCLUSION ON QUALIFIED PRODUCTS LIST (QPL) 83255-1 IN CONNECTION WITH THE PROCUREMENT OF AIR FORCE TYPE A/B 28K-5 PARACHUTE SYSTEMS UNDER INVITATIONS FOR BIDS (IFB) NOS. F41608-70-B 1250 AND F41608- 71-B-0058, ISSUED BY THE SAN ANTONIO AIR MATERIAL AREA, KELLY AIR FORCE BASE, TEXAS.

IFB-1250 WAS ISSUED ON MAY 1, 1970, WITH BID OPENING SET FOR JUNE 2, 1970, FOR 1,040 TYPE A/B 28K-5, 23-FOOT SPECIAL WEAPONS PARACHUTE SYSTEMS, IN ACCORDANCE WITH SPECIFICATION MIL-P-83255 DATED FEBRUARY 17, 1970. THE ITEMS FOR PROCUREMENT ARE COVERED BY QPL NO. 83255-1 DATED MARCH 4, 1970. ON JUNE 1 AND 10, 1970, THAT IFB WAS AMENDED BY MODIFICATIONS NOS. 0001 AND 0002 TO PROVIDE FOR CERTAIN CHANGES IN THE DELIVERY PROVISIONS AND FOR AN EXTENSION OF THE BID OPENING DATE TO JUNE 30, 1970.

ON THE EXTENDED BID OPENING DATE OF JUNE 30, 1970, THREE BIDS WERE RECEIVED, THE LOWEST OF WHICH WAS SUBMITTED BY YOUR FIRM. THE OTHER TWO BIDS WERE RECEIVED FROM PIONEER PARACHUTE COMPANY, INC., AND M. STEINTHAL & CO., INC. ON JULY 17, 1970, THE AIR FORCE REJECTED ALL BIDS AND CANCELED IFB -1250. BIDDERS WERE ADVISED THAT THE BASIS FOR THIS ACTION WAS AN AMBIGUITY IN THE DELIVERY SCHEDULE OF THE IFB AND THAT THERE WOULD BE A RESOLICITATION COVERING THE SAME REQUIREMENT.

ON JULY 20, 1970, IFB NO. -0058 WAS ISSUED AND SENT TO PROSPECTIVE BIDDERS REQUESTING BIDS - TO BE OPENED AUGUST 4, 1970 - FOR FURNISHING 1,040 A/B28K5, 23-FOOT SPECIAL WEAPONS PARACHUTE SYSTEMS. PROSPECTIVE BIDDERS WERE ADVISED THAT THERE WAS AN URGENT REQUIREMENT FOR THE PARACHUTE SYSTEMS.

IT IS REPORTED THAT BIDS WERE RECEIVED FROM PIONEER PARACHUTE COMPANY, INC., AND M. STEINTHAL & CO., INC., IN THE AMOUNTS OF $697 AND $731, RESPECTIVELY. A BID WAS RECEIVED FROM YOUR FIRM; HOWEVER, IN A TELEGRAM DATED SEPTEMBER 18, 1970, YOU REQUESTED THAT YOUR BID BE RETURNED TO YOU UNOPENED BECAUSE OF YOUR PROTEST AGAINST THE ALLEGED DIFFERENT METHODS USED BY THE AIR FORCE IN TESTING YOUR PARACHUTE SYSTEM AND THE PARACHUTE SYSTEMS OF OTHER COMPANIES. THE RECORD INDICATES THAT STEINTHAL, THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER UNDER IFB -1250, PETITIONED THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FOR AN INJUNCTION RESTRAINING THE AIR FORCE FROM OPENING BIDS RECEIVED IN RESPONSE TO IFB -0058, OR IF BIDS HAVE BEEN OPENED, RESTRAINING THE AIR FORCE FROM MAKING AN AWARD. ON AUGUST 14, 1970, THE DISTRICT COURT (CIVIL ACTION NO. 2422-70) ISSUED A TEMPORARY RESTRAINING ORDER, AND ON SEPTEMBER 17, 1970, THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BY ORDER NO. 24,595 DISSOLVED THE ORDER OF THE DISTRICT COURT FOR THE PURPOSE OF PERMITTING THE AIR FORCE TO OPEN THE BIDS. WE HAVE BEEN INFORMALLY ADVISED BY THE AIR FORCE THAT AN AWARD UNDER IFB -0058 WAS MADE TO PIONEER ON SEPTEMBER 24, 1970, AT $697 PER UNIT.

YOUR PROTEST WAS ORIGINALLY INITIATED WITH RESPECT TO IFB -1250. IN YOUR LETTER OF JULY 9, 1970, YOU CONTEND THAT THE TIME ALLOWED IN THE PROCUREMENT COVERED BY IFB -1250 FOR QUALIFICATION OF YOUR FIRST SAMPLE PARACHUTE SYSTEM WAS INSUFFICIENT AND VIOLATED THE REQUIREMENTS OF PARAGRAPH 1-1105 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). HOWEVER, SINCE IFB -1250 HAS BEEN CANCELED, IT APPEARS THAT THAT QUESTION IS ACADEMIC. ALSO, THE RECORD INDICATES THAT YOUR FIRM SUBMITTED A SECOND SAMPLE PARACHUTE SYSTEM FOR TESTING AND THAT SUCH PARACHUTE SYSTEM, IN ADDITION TO YOUR FIRST SAMPLE PARACHUTE SYSTEM, ALSO FAILED TO PASS THE TESTS CARRIED OUT BY THE KIRTLAND AIR FORCE BASE.

IN REGARD TO THE QUALIFICATION TESTING OF YOUR TWO SAMPLE PARACHUTE SYSTEMS, WRIGHT-PATTERSON AIR FORCE BASE REPORTS AS FOLLOWS:

SUBJ: QUALIFICATION TESTING OF THE SWITLIK PARACHUTE.

1. YOUR PPI 011925Z JUL 70. THE AF CONSIDERS THE DESIGN OF THE MC2606 (AF TYPE A/B28K-5) AS FIRM AND CAPABLE OF FULFILLING THE MILITARY CHARACTERISTICS FOR WEAPON DELIVERY. THIS DECISION WAS MADE PRIOR TO RELEASE OF THE PROCUREMENT DATA PACKAGE TO THE AFLC AND HAS REMAINED UNCHANGED. FOR PARACHUTE DESIGN ASSURANCE, THE AEC (SANDIA CORP) IMPOSED A REQUIREMENT FOR FIVE CONSECUTIVE, SUCCESSFUL OVERSTRENGTH TESTS WITH THE SAME DESIGN CONFIGURATION. THIS TEST CONDITION REQUIRES THE INITIATION OF PARACHUTE DEPLOYMENT (TAIL CAN BLOW OFF) AT AN AERODYNAMIC PRESSURE OF APPROXIMATELY 2670 POUNDS PER SQUARE FOOT. STOCKPILE SAMPLING TESTS TO THIS SAME REQUIREMENT ARE PROGRAMMED FOR THE PRODUCTION MC2606 PARACHUTE ON THE BASIS OF ONE PARACHUTE PER YEAR PER MANUFACTURER. EACH SUBMITTER OF A QUALIFICATION SAMPLE WAS SPECIFICALLY NOTIFIED BY LETTER THAT HIS ITEM WOULD BE SUBJECTED TO THIS 125 PERCENT (2670 PSF) TEST CONDITION. SUCCESSFUL COMPLETION OF THE OVERSTRENGTH TEST SERIES WAS COMPLETED IN MAR 1970. THREE SEPARATE PLANT FACILITIES HAVE NOW DEMONSTRATED A CAPABILITY TO MANUFACTURE AN ACCEPTABLE QUALITY ITEM USING THE AF DESIGN CRITERIA.

2. ALL TESTS, INCLUDING QUALIFICATION, ARE CONDUCTED WITH AN INSTRUMENTED TEST SHAPE AND AT AN INSTRUMENTED TEST RANGE. RECEIPT AND EVALUATION OF THIS DATA ARE REQUIRED IN ORDER TO OBTAIN FULL INFORMATION OF THE TEST PROFILE. A READOUT OF UNSMOOTHED, UNCORRECTED TEST DATA ON THE SWITLIK PARACHUTE INDICATES THE TEST PROGRAM OBJECTIVES WERE FULFILLED UP UNTIL THE TIME OF FAILURE. THE PRELIMINARY REVIEW OF THE TELEMETRY DATA INDICATES THAT THE PARACHUTE FAILED AT A LESSER FORCE (G VALUE) THAN HAS BEEN SUCCESSFULLY SUSTAINED ON OTHER MANUFACTURER'S PARACHUTES. SWITLIK HAS NOT DEMONSTRATED A CAPABILITY TO BUILD A HIGH QUALITY MC2606 PRODUCT.

3. SWITLIK INITIATED QUALIFICATION ACTION AFTER WE HAD RELEASED A VISION TO THE SLOTTED WEBBING SPECIFICATION, MIL-W-38321. USE OF THIS REVISION WAS REQUIRED IN THE IFB PACKAGE AND ITS USE WAS REQUIRED OF SWITLIK. THE REQUIRED USE OF MIL-W-38321A WAS TO THE ADVANTAGE OF SWITLIK IN THAT IT PERMITS CONTROL BY THE FABRICATING PLANT TO PLACE THEIR SPECIFIC REQUIREMENTS FOR DIMENSIONAL SPACING BETWEEN SLOTS UPON THE WEAVER OF THE WEBBING. IN FACT ON 29 APR 70, WE RECEIVED VERY FAVORABLE COMMENTS FROM SWITLIK PERSONNEL THAT THEY RECOGNIZED WE HAD APPARENTLY SOLVED SOME PROBLEMS EXPERIENCED BY THEM IN PAST USE OF THE BASIC EDITION OF THE SLOTTED WEBBING SPECIFICATION. DURING THIS SAME CONVERSATION, SWITLIK REPORTED THE USE OF THE SAME WEBBING SUPPLIER AS BEING USED BY PIONEER. REQUIRED USE OF THE REVISED SPECIFICATION DOES NOT OBSOLETE MATERIAL IN USE OR INVALIDATE TESTS WHICH HAVE USED MATERIAL PROVIDED TO THE BASIC ISSUE DATED 1 NOV 1965. FROM A PARACHUTE DESIGN STANDPOINT NO CHANGE OCCURRED BY VIRTUE OF THE SPECIFICATION REVISION. THE SLOTTED WEBBING MATERIAL DID NOT FAIL IN THE SWITLIK TEST SAMPLE.

4. PRELIMINARY INFORMATION RECEIVED FROM AFSWC PERSONNEL WHO HAVE REVIEWED THE ON-BOARD CAMERA COVERAGE, REPORTS THE FAILURE OF THE PARACHUTE STARTED WITH THE HORIZONTAL RIBBON MATERIAL AT THE APPROXIMATE MID POINT OF GORE HEIGHT.

5. THIS OFFICE HAS ISSUED A MESSAGE TO SANDIA CORP AND THE AFSWC REQUESTING A PRIORITY EFFORT BE MADE TO PROVIDE THE REDUCED TEST DATA AND RETURN OF THE TEST PARACHUTES TO ASD. THE SWITLIK TEST PARACHUTE WILL UNDERGO A DETAILED INSPECTION ANALYSIS AFTER RECEIPT.

SUBJ: SWITLIK QUALIFICATION TESTING ON PARACHUTE SYSTEM A/B28K-5.

REF: ASD MSG 1415502 AUG 70, SUBJECT AS ABOVE, AND ASD MSG 281837Z AUG 70 TO AFSWC WITH INFO SAAMA AND SANDIA CORP.

SUBJ: PARACHUTE OVERTEST CRITERIA FOR THE B43 UPGRADE PROGRAM.

1. THIS MESSAGE IS TO CONFIRM THE ASD POSITION IN THE MATTER OF SUBJECT QUALIFICATION.

2. THE DYNAMIC PRESSURE OVERTEST CRITERIA FOR THE PARACHUTE DEVELOPMENT PROGRAM IS A REQUIREMENT LEVIED BY THE AEC/SANDIA CORP TO PERMIT THEIR UNRESTRICTED ACCEPTANCE OF THE PRODUCTION PARACHUTE SYSTEM. IN A MEETING WITH SANDIA CORP AND AFSWC PERSONNEL AT KIRTLAND AFB ON 20 AUG 70 THE TOLERANCES FOR THE OVERTEST CONDITION WERE DEFINED AS PLUS 3 MINUS 5 PERCENT AND THAT ANY TEST EXCEEDING THE UPPER LIMIT WOULD BE CONSIDERED ACCEPTABLE IF PARACHUTE PERFORMANCE WERE SATISFACTORY. ANY TEST EXCEEDING THE UPPER LIMIT RESULTING IN UNSUCCESSFUL DELIVERY OF THE TEST SHAPE WOULD BE CLASSIFED "NO TEST." ANY TEST BELOW THE LOWER LIMIT IS CLASSIFIED "NO TEST."

3. BY APPLICATION OF THE ABOVE CRITERIA IN RETROSPECT, WE NOTE THAT THE FIRST SWITLIK QUALIFICATION SAMPLE WAS SUBJECTED TO A "NO TEST" CONDITION (HAVING EXCEEDED THE OVERTEST CONDITION BY SIX (6) PERCENT). SWITLIK'S SECOND QUALIFICATION SAMPLE WAS TESTED WITHIN THE SANDIA CORP STATED RANGE OF OBTAINABLE ACCURACY AND IS THEREFORE CLASSIFIED AS A FAILURE.

4. ASD MSG 191234Z AUG 70 NOTIFIED SWITLIK PARACHUTE CO, INC OF THE SECOND TEST STRUCTURAL FAILURE AND OF DISAPPROVAL FOR LISTING ON QPL 83255. THE SPECIFIC CAUSE OF FAILURE WAS UNKNOWN AT THAT TIME.

5. ASD'S CONTINUED INVESTIGATION HAS FAILED TO PRODUCE ANY EVIDENCE WHICH MIGHT POSITIVELY DEFINE THE CAUSE OF FAILURE OF THE SWITLIK SAMPLE. ADDITION TO EXAMINATION OF THE FAILED PARACHUTE WE HAVE COMPLETELY REVIEWED OUR PARACHUTE DESIGN AND THE TEST DATA ON DEVELOPMENT ACCEPTANCE AND QUALIFICATION OF M. STEINTHAL AND CO., INC, AND PIONEER PARACHUTE CO. (TWO SAMPLES FOR TWO DIFFERENT PLANTS.) NO DISCREPANCIES OR DEFICIENCIES HAVE BEEN FOUND AND WE HAVE VERBAL CONFIRMATION OF ACCEPTANCE OF THE ASD PARACHUTE DESIGN FROM SANDIA CORP.

6. A LETTER TO SWITLIK IS BEING PREPARED APPRISING THEM OF OUR FINDINGS ALONG WITH PHOTOS OF THE DAMAGE. IN ADDITION WE HAVE CONTACTED AFSWC TO DETERMINE IF THE SANDIA CORP CAN RELEASE (WITHIN SECURITY LIMITATIONS) THE DATA PERTINENT TO THE TWO SWITLIK QUALIFICATION TESTS.

IN YOUR TWO TELEGRAMS AND LETTER DATED SEPTEMBER 18, 1970, TO THE DEPARTMENT OF THE AIR FORCE, FOUR REASONS ARE GIVEN AS TO WHY YOU BELIEVE THAT NO AWARD SHOULD BE MADE BY THE AIR FORCE UNDER IFB-0058.

FIRST, YOU CONTEND THAT THE AIR FORCE IS PURCHASING TO A QPL (NO. 83255- 1) WHICH IS DEFECTIVE. YOU STATE THAT YOUR COMPANY WAS REQUESTED TO QUALIFY ITS PRODUCT TO SPECIFICATIONS DIFFERENT FROM THOSE SPECIFICATIONS USED BY THE OTHER ELIGIBLE FIRMS, IN THAT YOUR FIRM WAS REQUIRED TO USE WEBBING HEAVIER THAN THAT USED BY OTHER ELIGIBLE SUPPLIERS. YOU CONTEND THAT THIS CHANGE IN SPECIFICATIONS ORDINARILY WOULD REQUIRE THOSE SUPPLIERS TO REQUALIFY THEIR PRODUCTS, BUT THAT THE AIR FORCE DID NOT REQUIRE SUCH REQUALIFICATION.

WE ARE ADVISED WITH REGARD TO THE FOREGOING BY HEADQUARTERS AERONAUTICAL SYSTEMS DIVISION AS FOLLOWS:

A. MILITARY SPECIFICATION, MIL-W-38321, REVISION A, DATED 4 MAR 70, WAS COORDINATED WITH INDUSTRY AND RELEASED FOR USE INDEPENDENT OF ANY KNOWN REQUIREMENT FOR A DESIGN OR PERFORMANCE CHANGE IN THE AIR FORCE TYPE A/B28K-5 PARACHUTE SYSTEM. THE DESIGN OF THE A/B28K-5 PARACHUTE WAS CONFIRMED PRIOR TO ISSUANCE OF THE REVISED WEBBING SPECIFICATION. ACCEPTANCE OF THE SPECIFICATION FOR CONTINUED USE IN THE PARACHUTE SYSTEM WAS MADE AFTER A DETERMINATION THAT THE REVISION DID NOT REPRESENT A DESIGN CHANGE. THE SPECIFICATION CHANGE WAS MADE TO FACILITATE PRODUCTION.

B. THE SWITLIK PARACHUTE COMPANY WAS REQUESTED TO USE THE REVISED SPECIFICATION AS IT REPRESENTED THE LATEST ISSUE IN EFFECT AT THE TIME. FOR THIS SAME REASON THE REVISION WAS APPLICABLE TO BID SOLICITATION.

C. THE REVISED SPECIFICATION DOES NOT OBSOLETE MATERIAL IN USE OR INVALIDATE TESTS OF PARACHUTES (PREVIOUSLY) FABRICATED *** .

3. BASED UPON THE ABOVE INFORMATION NO JUSTIFICATION EXISTS FOR CHANGING THE CURRENT QUALIFICATION STATUS OF SOURCES FOR THE A/B28K-5 PARACHUTE SYSTEM.

ASPR 1-1101 REFERENCES CHAPTER IV OF THE DEFENSE STANDARDIZATION MANUAL (DSM) 4120.3-M, WHICH IS CONCERNED WITH QUALIFIED PRODUCTS AND QUALIFICATION PROCEDURES.

PARAGRAPH 4-109, CHAPTER IV, DSM, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

*4-109 RE-EXAMINATION AND RETEST. RE-EXAMINATION OF A QUALIFIED PRODUCT SHALL BE REQUIRED BY THE PREPARING ACTIVITY UNDER ANY OF THE FOLLOWING CONDITIONS:

(B) THE REQUIREMENTS IN THE SPECIFICATION HAVE BEEN REVISED SUFFICIENTLY TO AFFECT THE CHARACTER OF THE PRODUCT.

SINCE IT HAS BEEN DETERMINED ADMINISTRATIVELY THAT THE SPECIFICATION CHANGE AS TO WEBBING DID NOT INVALIDATE EXISTING TEST DATA OR AFFECT THE CHARACTER OF THE SYSTEM, WE FIND NO BASIS TO QUESTION THE DECISION OF THE AIR FORCE NOT TO REQUIRE REQUALIFICATION SOLELY BECAUSE THE WEIGHT OF THE WEBBING WAS INCREASED.

SECOND, YOU MAINTAIN THAT THE DESIGN OF THE PARACHUTE SYSTEM WHICH WAS PREPARED BY THE AIR FORCE IS COMPLETELY FAULTY AND THAT THE DEPARTMENT DOES NOT HAVE AN ADEQUATE QPL FOR THE TYPE A/B 28K-5 PARACHUTE SYSTEM. YOU POINT OUT THAT THE AIR FORCE ADMITS THAT YOUR FIRST SAMPLE PARACHUTE WAS TESTED AT 6 PERCENT OVER THE TEST CRITERIA ESTABLISHED BY THE ATOMIC ENERGY COMMISSION (AEC); THAT SUCH CIRCUMSTANCES RESULTED IN A "NO TEST" CONDITION; THAT YOUR FIRST SAMPLE PARACHUTE WAS DROPPED AND DESTROYED AT SPEEDS GREATER THAN THE AUTHORIZED TEST SPEEDS; AND THAT IF SUCH ACTION BY THE AIR FORCE WAS ACCIDENTAL, IT IS POSSIBLE THAT THE TWO OTHER QUALIFIED FIRMS HAD THEIR SAMPLE PARACHUTES TESTED AT SPEEDS BELOW THE AEC TEST CRITERIA. WE HAVE BEEN INFORMALLY ADVISED BY THE AIR FORCE THAT THE DROPPING OF YOUR FIRST SAMPLE PARACHUTE AT AN EXCESSIVE SPEED WAS ACCIDENTAL. HOWEVER, YOUR SECOND SAMPLE PARACHUTE WAS TESTED WITHIN THE AEC STATED RANGE OF OBTAINABLE ACCURACY, BUT IT FAILED TO MEET TEST REQUIREMENTS. IT ALSO IS REPORTED BY THE AIR FORCE THAT IT HAS REVIEWED THE DESIGN OF A/B 28K 5 PARACHUTE SYSTEM AND FOUND IT TO BE NOT FAULTY. IT IS REGRETTABLE THAT THE AIR FORCE HAS BEEN UNABLE TO DETERMINE THE EXACT CAUSE OF THE FAILURE OF YOUR SECOND SAMPLE PARACHUTE TO PASS THE DROP TEST; HOWEVER, WE DO NOT FEEL THAT THE AIR FORCE HAS A DUTY TO PINPOINT TEST FAILURES WHERE TO DO SO WOULD INVOLVE THE UNREASONABLE EXPENDITURE OF TIME AND MONEY.

THIRD, YOU STATE IN YOUR LETTER OF JULY 9, 1970, THAT SINCE THE PARACHUTE SUBMITTED BY YOUR COMPANY MET THE REQUIREMENTS OF THE SPECIFICATIONS AS TO CONSTRUCTION, YOUR FIRM SHOULD HAVE BEEN GIVEN A CONDITIONAL QUALIFICATION, SINCE PRIOR QUALIFICATION IN NO WAY RELIEVES THE CONTRACTOR FROM COMPLYING WITH THE DRAWINGS AND SPECIFICATIONS. YOU STATE THAT PRODUCTION HAS BEEN COMPLETED OF 732 17-FOOT RIBBON PARACHUTES, WHICH YOU STATE ARE IDENTICAL TO THE 23-FOOT PARACHUTES COVERED BY THE INSTANT PROCUREMENT EXCEPT AS TO SIZE.

IN REGARD TO THE GRANTING OF A CONDITIONAL QUALIFICATION, YOU SUBMITTED A CLIPPING FROM "THE GOVERNMENT CONTRACTOR," SEPTEMBER 30, 1963, ISSUE, IN WHICH OUR DECISION OF SEPTEMBER 4, 1963, REPORTED IN 43 COMP. GEN. 223, WAS DISCUSSED. IN THAT DECISION, WE HELD AS FOLLOWS (QUOTING THE SYLLABUS):

THE SUBSTITUTION BY THE GOVERNMENT OF A NONDEFECTIVE TUBE IN AN OSCILLOSCOPE SAMPLE BEING TESTED FOR THE QUALIFIED PRODUCTS LIST DOES NOT RESULT IN INEQUITABLE TREATMENT OF COMPETING BIDDERS AND IS PERMISSIBLE, THE MERE LISTING OF A PRODUCT ON THE QUALIFIED PRODUCTS LIST NOT RELIEVING THE CONTRACTOR FROM THE OBLIGATION TO MEET THE SPECIFICATIONS; THEREFORE, THE GOVERNMENT TO AVOID ELIMINATING COMPETITION MAY INFORM A MANUFACTURER OF A DEFECT IN A PRODUCT SUBMITTED FOR QUALIFICATION, AND A REMEDY WHEN KNOWN, AND IN VIEW OF THE RESTRICTIVE ASPECTS OF THE QUALIFIED PRODUCTS SYSTEM, A REASONABLE EFFORT, AVOIDING DISCRIMINATORY PRACTICES SUCH AS DISCLOSING CONFIDENTIAL OR PROPRIETARY INFORMATION TO COMPETITORS, OR OFFERING ACTIVE ENGINEERING OR OTHER ASSISTANCE IN THE MANUFACTURE OR CONSTRUCTION OF THE PRODUCT TO BE TESTED, SHOULD BE MADE TO QUALIFY AS MANY AVAILABLE SOURCES OF SUPPLY AS POSSIBLE.

THE FACTS REPORTED IN 43 COMP. GEN. 223 ARE DIFFERENT FROM THOSE PRESENT HERE. IN THE CITED CASE, THE GOVERNMENT FOUND THAT A COMPONENT WAS DEFECTIVE DURING THE TESTING PROCEDURES; AND IN ORDER TO COMPLETE THE TESTING, A NEW COMPONENT WAS USED BY THE GOVERNMENT. IN YOUR CASE, THE GOVERNMENT WAS UNAWARE OF THE CAUSE OF THE FAILURE OF YOUR SECOND SAMPLE PARACHUTE TO PASS THE DROP TEST, AND THE AIR FORCE WAS NOT IN A POSITION TO CORRECT A DEFECT BEFORE OR DURING TESTING.

IN YOUR LETTER OF JULY 9, 1970, YOU STATE THAT YOUR FIRM WAS IN NO POSITION TO KNOW THE EXACT NATURE OF THE TEST TO WHICH THE PARACHUTE MIGHT BE SUBJECTED, SINCE NO OBJECTIVE STANDARDS FOR TESTING WERE RELEASED BY THE AIR FORCE. IT IS REPORTED THAT THE PARACHUTE DESIGN AGENCY DOES NOT ISSUE AND PUBLISH STANDARDS FOR SPECIAL WEAPONS PARACHUTE QUALIFICATION TESTING BECAUSE OF THE RESTRICTIVE NATURE OF THE DATA. HOWEVER, YOUR FIRM WAS ADVISED BY LETTER DATED MARCH 26, 1970, FROM HEADQUARTERS AERONAUTICAL SYSTEMS DIVISION, OF THE APPLICABLE DESIGN DATA REQUIRED FOR QUALIFICATION OF THE PARACHUTE SYSTEM. SPECIFICALLY, YOU WERE ADVISED OF THE PARAMETERS OF THE DROP TEST.

FINALLY, YOU STRESS THAT STEINTHAL WAS FOUND TO BE QUALIFIED ON THE BASIS OF ITS PRODUCTION OF AN EXPERIMENTAL MODEL UNDER A RESEARCH AND DEVELOPMENT CONTRACT AND THAT PIONEER ORIGINALLY HAD BEEN QUALIFIED AS A RESULT OF TESTS MADE IN FEBRUARY 1970, WHICH, YOU STATE, WERE MADE PRIOR TO THE REVISION OF THE WEBBING SPECIFICATION. YOU POINT OUT THAT PIONEER'S PARACHUTE WEIGHED APPROXIMATELY 130 POUNDS; THAT YOUR PARACHUTE WEIGHED APPROXIMATELY 136 POUNDS; THAT THE 6-POUND DIFFERENCE IS THE EXACT DIFFERENCE IN WEIGHT OCCASIONED BY THE HEAVIER WEBBING WHICH, YOU ALLEGE, ONLY YOUR FIRM WAS REQUIRED TO USE; AND THAT THIS EXTRA WEIGHT TRAVELING AT 1,250 MILES PER HOUR PLACES A TREMENDOUS ADDITIONAL STRAIN ON THE PARACHUTE. YOU CONTEND THAT THE ACTION OF THE AIR FORCE IN REQUIRING ONLY YOUR FIRM TO USE THE HEAVIER WEBBING WAS CLEARLY DISCRIMINATORY TO YOUR COMPANY. HOWEVER, THE CONTRARY APPEARS TO BE THE CASE. THE AIR FORCE HAS STATED THAT AT THE TIME OF THE DROP TEST THE PARACHUTE OF STEINTHAL WEIGHED APPROXIMATELY 136 POUNDS - THE SAME AS YOUR PARACHUTE - THAT STEINTHAL'S PARACHUTE WAS TESTED WITHIN THE REQUIRED RANGE OF OBTAINABLE ACCURACY; AND THAT NOTWITHSTANDING THE FACT THAT IT WEIGHED APPROXIMATELY 136 POUNDS, STEINTHAL'S PARACHUTE SUCCESSFULLY PASSED THE DROP TEST.

FOR THE REASONS SET FORTH ABOVE, YOUR PROTEST IS DENIED.