B-145674, SEP. 14, 1961

B-145674: Sep 14, 1961

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TO SCHAEVITZ ENGINEERING: FURTHER REFERENCE IS MADE TO YOUR PROTEST CONCERNING THE REJECTION BY THE U.S. THE REPORT FURNISHED BY THE DEPARTMENT OF THE ARMY SHOWS THAT THIS PROCUREMENT WAS AUTHORIZED TO BE NEGOTIATED PURSUANT TO 10 U.S.C. 2304 (A) (14) AND PARAGRAPH 3-214 OF THE ARMED SERVICES PROCUREMENT REGULATION ON THE BASIS THAT THE EQUIPMENT CONSTITUTED TECHNICAL OR SPECIALIZED SUPPLIES REQUIRING SUBSTANTIAL INITIAL INVESTMENT OR EXTENDED PERIOD FOR PREPARATION FOR MANUFACTURE. THE DETERMINATION TO NEGOTIATE THE PROCUREMENT WAS BASED UPON THE FINDING THAT THE RADAR SET AN/FPN-36 IS A COMPLEX TECHNICAL AND SPECIALIZED ITEM MEETING STRINGENT MILITARY CHARACTERISTICS REQUIRED FOR GROUND-CONTROLLED APPROACH RADAR EQUIPMENTS.

B-145674, SEP. 14, 1961

TO SCHAEVITZ ENGINEERING:

FURTHER REFERENCE IS MADE TO YOUR PROTEST CONCERNING THE REJECTION BY THE U.S. ARMY SIGNAL CORPS SUPPLY AGENCY, PHILADELPHIA, PENNSYLVANIA, OF YOUR UNSOLICITED PROPOSAL SUBMITTED UNDER REQUEST FOR PROPOSALS NO. SC-36-039- 61-10456-A2 FOR RADAR SETS AN/FPN-36.

THE REPORT FURNISHED BY THE DEPARTMENT OF THE ARMY SHOWS THAT THIS PROCUREMENT WAS AUTHORIZED TO BE NEGOTIATED PURSUANT TO 10 U.S.C. 2304 (A) (14) AND PARAGRAPH 3-214 OF THE ARMED SERVICES PROCUREMENT REGULATION ON THE BASIS THAT THE EQUIPMENT CONSTITUTED TECHNICAL OR SPECIALIZED SUPPLIES REQUIRING SUBSTANTIAL INITIAL INVESTMENT OR EXTENDED PERIOD FOR PREPARATION FOR MANUFACTURE, AND FOR WHICH FORMAL ADVERTISING AND COMPETITIVE BIDDING MIGHT REQUIRE DUPLICATION OF INVESTMENT OR PREPARATION ALREADY MADE, OR WOULD UNDULY DELAY THE PROCUREMENT.

THE DETERMINATION TO NEGOTIATE THE PROCUREMENT WAS BASED UPON THE FINDING THAT THE RADAR SET AN/FPN-36 IS A COMPLEX TECHNICAL AND SPECIALIZED ITEM MEETING STRINGENT MILITARY CHARACTERISTICS REQUIRED FOR GROUND-CONTROLLED APPROACH RADAR EQUIPMENTS. IT REQUIRES THE HIGHEST DEGREE OF SKILL IN ITS ASSEMBLY, IN CALIBRATION AND TESTING DURING MANUFACTURE, AND IS DESIGNED TO WITHSTAND EXTREME CONDITIONS OF TEMPERATURE, HUMIDITY, CONCUSSION AND SHOCK. IT HAS TREMENDOUS OPERATIONAL CAPABILITY AND VERSATILITY AND THERE IS NO OTHER KNOWN AVAILABLE EQUIPMENT WHICH WILL FULLY SATISFY THE REQUIREMENT FOR WHICH IT IS NEEDED. GILFILLAN BROTHERS HAS BEEN DEVELOPING AND IMPROVING GROUND-CONTROLLED APPROACH RADAR SYSTEMS SINCE 1942 WHEN THEY PRODUCED THE AN/MPN-1 FOR THE ARMY AND THE AIR FORCE. THE FIRST FEW YEARS AFTER WORLD WAR II GILFILLAN BROTHERS DEVELOPED THE AN/CPN-4, THE AN/FPN-16 AND THE AN/MPN-11, ALL GROUND-CONTROLLED APPROACH SYSTEMS FOR THE AIR FORCE, AND SUPPLIED THESE EQUIPMENTS IN QUANTITY TO THE U.S. ARMED FORCES, NATO COUNTRIES AND OTHER ALLIES OF THE UNITED STATES. SUBSTANTIAL QUANTITIES OF THESE EQUIPMENTS, SPARE PARTS, ACCESSORIES AND MODIFICATIONS HAVE BEEN DELIVERED BY GILFILLAN BROTHERS, WHICH REPRESENT PRODUCTION UNITS WHICH WERE FULLY DEVELOPED AT THEIR OWN EXPENSE. WITH THEIR EXTENSIVE BACKGROUND IN THIS FIELD, GILFILLAN BROTHERS IN THE EARLY 1950'S UNDERTOOK, AT ITS OWN EXPENSE, THE DEVELOPMENT, DESIGN AND INITIAL PRODUCTION OF A LIGHTWEIGHT, TACTICAL TYPE GROUND-CONTROLLED APPROACH EQUIPMENT. THE RESULT OF THIS EFFORT WAS THE EQUIPMENT KNOWN COMMERCIALLY AS THE GILFILLAN "QUADRADAR" AND THE MILITARIZED VERSIONS THEREOF, THE AN/FPN-33 AND THE AN/FPN-36. GILFILLAN BROTHERS HAS SPENT OVER SIX YEARS AND INVESTED A SUBSTANTIAL AMOUNT OF MONEY IN THE DEVELOPMENT, DESIGN, FIELD TESTING, MILITARIZATION AND ENVIRONMENTAL ADAPTATION OF THESE EQUIPMENTS. AS A RESULT, GILFILLAN BROTHERS HAS ACQUIRED BACKGROUND, KNOWLEDGE AND "KNOW-HOW," INCLUDING SOURCES OF SUPPLY FOR COMPONENT PARTS, AS WELL AS EXPERIENCED TECHNICAL PERSONNEL, WHICH ARE NOT AVAILABLE TO ANY OTHER KNOWN CONTRACTOR. GILFILLAN BROTHERS POSSESSES APPROXIMATELY $200,000 WORTH OF COMPANY-OWNED TOOLING AND MANUFACTURING FACILITIES FOR THIS EQUIPMENT AND THE GOVERNMENT HAS AN INVESTMENT OF APPROXIMATELY $85,000 IN FACILITIES AND SPECIAL TEST EQUIPMENT WHICH THE CONTRACTOR IS UTILIZING AT THE PRESENT TIME.

IT WAS FURTHER DETERMINED THAT WHILE THE TECHNICAL MANUALS AND OTHER SIMILAR TECHNICAL DATA MAY PROVIDE GENERAL INFORMATION APPLICABLE TO THE EQUIPMENT, ITS OPERATION AND MAINTENANCE, THEY DO NOT PROVIDE THE ESSENTIAL AND PARTICULAR SPECIFICATIONS, TESTING AND CALIBRATION REQUIREMENTS, CRITICAL ELECTRICAL TOLERANCES, SPECIALIZED TECHNICAL "KNOW- HOW" AND PRODUCTION TECHNIQUES NECESSARY TO PRODUCE THE REQUIRED EQUIPMENT. THESE WOULD HAVE TO BE DEVELOPED BY A FIRST TIME PRODUCER AND, IN VIEW OF THE TIME REQUIRED FOR SUCH DEVELOPMENT, DELIVERIES OF THE EQUIPMENT COULD NOT BE ACCOMPLISHED WITHIN THE TIME REQUIRED.

UNDER THE PROVISIONS OF 10 U.S.C. 2310, THE FINDINGS AND DETERMINATIONS ISSUED BY AN ASSISTANT SECRETARY TO AUTHORIZE THE NEGOTIATION OF A CONTRACT UNDER SECTION 2304 (A) (14) ARE FINAL, AND THIS OFFICE HAS NO AUTHORITY TO SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING AGENCY OR TO REFUSE TO RECOGNIZE THE VALIDITY OF A CONTRACT NEGOTIATED PURSUANT TO SUCH DETERMINATION. ASIDE FROM THE FINALITY OF THE FINDING, HOWEVER, WE FIND NO IMPROPRIETY IN ITS USE IN THIS CASE ON THE BASIS OF THE FACTS OF RECORD. ACCORDINGLY YOUR PROTEST MUST BE DENIED.