B-149403, SEP. 28, 1962

B-149403: Sep 28, 1962

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INCORPORATED: REFERENCE IS MADE TO YOUR LETTER DATED JULY 5. YOUR PROTEST IS BASED PRIMARILY UPON A CONTENTION THAT THE DEPARTMENT OF THE ARMY USED PROPRIETARY INFORMATION. WHICH WAS CONTAINED IN AN UNSOLICITED PROPOSAL SUBMITTED BY YOUR COMPANY ON MARCH 16. THAT THE RELEASE OF SUCH PROPRIETARY INFORMATION TO RELIANCE BY THE DEPARTMENT WAS ILLEGAL. PUMP-MOTOR COMBINATION SUCH AS IS DESCRIBED IN RFQ NO. RDTE 264-J WAS FIRST SUBMITTED TO THAT COMMAND DURING A CONFERENCE WITH A REPRESENTATIVE OF RELIANCE ON NOVEMBER 15. THIS CONFERENCE WAS FOLLOWED BY THE SUBMISSION OF AN UNSOLICITED PROPOSAL FROM RELIANCE DATED DECEMBER 14. WHICH IS STANDARD ON ARMY VEHICLES. THE PROPOSED MOTOR WOULD HAVE COMBINED POWER INVERTOR CIRCUITRY TO INVERT DC VOLTAGE TO AC VOLTAGE AND BE SUBMERGED WITH THE FUEL FLOWING THROUGH IT.

B-149403, SEP. 28, 1962

TO ASTRO DYNAMICS, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 5, 1962, AND ENCLOSURES, PROTESTING AGAINST THE ACTION OF THE DEPARTMENT OF THE ARMY IN AWARDING A CONTRACT FOR THE DEVELOPMENT OF AN INTEGRATED FUEL DISPENSING SYSTEM TO RELIANCE ELECTRIC AND ENGINEERING COMPANY UNDER RFQ NO. RDTE-264-J.

YOUR PROTEST IS BASED PRIMARILY UPON A CONTENTION THAT THE DEPARTMENT OF THE ARMY USED PROPRIETARY INFORMATION, WHICH WAS CONTAINED IN AN UNSOLICITED PROPOSAL SUBMITTED BY YOUR COMPANY ON MARCH 16, 1962, IN DRAWING UP RFQ NO. RDTE-264-J, AND THAT THE RELEASE OF SUCH PROPRIETARY INFORMATION TO RELIANCE BY THE DEPARTMENT WAS ILLEGAL.

IN THIS CONNECTION, THE RECORDS OF THE QUARTERMASTER RESEARCH AND ENGINEERING COMMAND INDICATE THAT THE CONCEPT OF A SUBMERGED, BRUSHLESS, PUMP-MOTOR COMBINATION SUCH AS IS DESCRIBED IN RFQ NO. RDTE 264-J WAS FIRST SUBMITTED TO THAT COMMAND DURING A CONFERENCE WITH A REPRESENTATIVE OF RELIANCE ON NOVEMBER 15, 1961, AND AS A RESULT OF PREVIOUS EFFORTS TO IMPROVE THE FUEL DISPENSING KITS THEN BEING SUPPLIED BY RELIANCE FOR USE ON MILITARY VEHICLES. THIS CONFERENCE WAS FOLLOWED BY THE SUBMISSION OF AN UNSOLICITED PROPOSAL FROM RELIANCE DATED DECEMBER 14, 1961, TO DESIGN AND BUILD A BRUSHLESS MOTOR WITH A 100 GPM PUMP AS AN INTEGRAL PART OF THE MOTOR CAPABLE OF MEETING MILITARY AND TECHNICAL CHARACTERISTICS AND OPERABLE ON 100 AMP, 28 VOLT, DC POWER, WHICH IS STANDARD ON ARMY VEHICLES. THE PROPOSED MOTOR WOULD HAVE COMBINED POWER INVERTOR CIRCUITRY TO INVERT DC VOLTAGE TO AC VOLTAGE AND BE SUBMERGED WITH THE FUEL FLOWING THROUGH IT, USING THE FLUID TO BOTH ISOLATE THE UNIT FROM THE ENVIRONMENT AND AS A COOLANT TO ALLOW OPERATION AT REDUCED SIZE AND WEIGHT.

IN JANUARY 1962 AN ARTICLE BY YOUR COMPANY, PUBLISHED IN THE NOVEMBER- DECEMBER 1961 ISSUE OF MILITARY SYSTEMS DESIGNS AND ENTITLED "BRUSHLESS DC AND UNIVERSAL MOTORS," CAME TO THE ATTENTION OF THE TECHNICAL PERSONNEL OF THE AGENCY. DUE TO THE SIMILARITY OF SOME OF THE FEATURES DESCRIBED THEREIN TO THOSE PROPOSED BY RELIANCE, IT WAS DECIDED TO EXPLORE THIS UNIT WITH A VIEW TO DETERMINING IF YOUR COMPANY COULD BE SOLICITED AS AN ALTERNATE SOURCE IN THE EVENT FUNDS BECAME AVAILABLE FOR A CONTRACT TO DEVELOP A UNIVERSAL INTEGRATED MOTOR-PUMP COMBINATION FUEL DISPENSING KIT. A MEETING WAS ARRANGED WITH YOUR REPRESENTATIVES ON FEBRUARY 9, 1962. AT THIS CONFERENCE, IT WAS REVEALED THAT YOUR CONCEPT WAS RELATED PRIMARILY TO MOTORS OF FRACTIONAL HORSE POWER AND NO FURTHER DISCUSSION WAS HELD RELATIVE TO APPLYING THEIR CONCEPT TO FUEL DISPENSING KITS, EXCEPT TO SUGGEST SUBMISSION OF AN UNSOLICITED PROPOSAL FOR REVIEW BY TECHNICAL PERSONNEL. NO PROPOSAL WAS SUBMITTED. IN EARLY MARCH 1962, WHEN IT APPEARED THAT FUNDS MIGHT BECOME AVAILABLE FOR THIS PROJECT, A MEETING WAS HELD WITH YOUR REPRESENTATIVES WHEREIN DATA RELATING TO THE MILITARY AND TECHNICAL CHARACTERISTICS OF THE DISPENSING KIT WERE CONVEYED TO YOU. THIS DATA INCLUDED AVAILABLE AMPERAGE, VOLTAGE, MAXIMUM SPACE FRAME, PERMISSIBLE TEMPERATURE RISE, FLOW RATE, INLET AND OUTLET HOSE SIZES, AND THE NEED FOR AN INTEGRATED MOTOR-PUMP AND FILTER SEPARATION. YOUR UNSOLICITED PROPOSAL DATED MARCH 16, 1962, WAS RECEIVED ON MARCH 21, 1962. REVIEW OF THIS PROPOSAL REVEALED THAT IT CONTAINED A SUMMARIZATION OF THE BRUSHLESS MOTOR PRINCIPLE PREVIOUSLY PUBLISHED IN THE AFORESAID ARTICLE AND A LISTING OF THE MILITARY TECHNICAL REQUIREMENTS WHICH WERE CONVEYED TO YOU DURING THE ABOVE MEETING. THE PROPOSAL CONTAINED THE FOLLOWING DISCREPANCIES WHICH WERE BROUGHT TO YOUR ATTENTION:

(1) PRESSURE DROP ACROSS THE FUEL PUMP

(2) INSUFFICIENT HORSEPOWER (1 HP)

(3) INSUFFICIENT AMPERAGE (50 AMPS)

(4) EXCESSIVE HOT SPOT TEMPERATURE (160 DEGREES F)

(5) LUBRICATED SLEEVE BEARINGS WHICH COULD RESULT IN FUEL CONTAMINATION

IN VIEW OF THE FOREGOING IT IS APPARENT THAT YOUR UNSOLICITED PROPOSAL OF MARCH 16, 1962, WAS NOT THE BASIS FOR THE RFP.

CONCERNING YOUR CONTENTION THAT THE BRUSHLESS DC MOTOR IS AN INTEGRAL PART OF THE INTEGRATED FUEL DISPENSING SYSTEM, AND THAT PRODUCTION OF THE SYSTEM BY RELIANCE WILL VIOLATE YOUR PROPRIETARY RIGHTS SINCE A MOTOR OF THIS TYPE USING SOLID STATE SWITCHING DEVICES WAS DEVELOPED BY YOUR COMPANY AND IS COVERED BY ASTRO PATENT APPLICATION NO. 804,750, DATED APRIL 7, 1959, WE HAVE SUBMITTED BOTH YOUR PROPOSAL AND THAT OF RELIANCE TO THE OFFICE OF THE CHIEF OF ENGINEERS FOR EVALUATION. WE ARE ADVISED BY REPRESENTATIVES OF THAT OFFICE THAT THE USE OF A SATURABLE CORE INVERTER TO SUPPLY AN AC MOTOR IS NOT PROPRIETARY IN ITSELF; THAT THERE ARE BASIC DIFFERENCES IN THE TYPES OF CONTROLS OFFERED BY THE TWO PROPOSALS; AND THAT THERE IS NOTHING IN THE PROPOSAL BY RELIANCE WHICH INDICATES AN INFRINGEMENT OF YOUR DESIGN. WHETHER PRODUCTION IN ACCORDANCE WITH THE DESIGN OF RELIANCE WILL, OR WILL NOT, INFRINGE ANY RIGHTS WHICH MAY ACCRUE TO YOUR COMPANY UNDER PATENT APPLICATION NO. 804,750 IS NOT FOR DETERMINATION BY THIS OFFICE. HOWEVER, THE FACT THAT BASIC DIFFERENCES DO EXIST BETWEEN YOUR DESIGN AND THE DESIGN SUBMITTED BY RELIANCE WOULD APPEAR TO SUBSTANTIATE THE POSITION OF THE QUARTERMASTER RESEARCH AND ENGINEERING COMMAND THAT NONE OF THE INFORMATION INCLUDED IN YOUR PROPOSAL WAS FURNISHED TO RELIANCE FOR USE IN PREPARING ITS PROPOSAL.

WITH REFERENCE TO THAT PORTION OF YOUR PROTEST WHICH QUESTIONS THE EVALUATION OF THE PROPOSALS RECEIVED AND THE BASIS FOR THE AWARD TO RELIANCE, THE RECORDS OF THE QUARTERMASTER RESEARCH AND ENGINEERING COMMAND INDICATE THE FOLLOWING CIRCUMSTANCES.

THE RFQ REQUIRED SOLICITED FIRMS TO SUBMIT THEIR ENGINEERING APPROACH TO ACCOMPLISH THE PROPOSED WORK AND ALSO ADVISED THAT, DUE TO THE LIMITED FUNDS AVAILABLE, ONLY THE FIRST PHASE OF THE THREE-PHASED SCOPE OF WORK WOULD BE FUNDED AT THE TIME OF AWARD, ALTHOUGH IT WAS THE INTENTION OF THE GOVERNMENT TO ENTER INTO A CONTRACT FOR THE THREE PHASES OF WORK. BOTH SOLICITED FIRMS SUBMITTED QUOTATIONS AS FOLLOWS:

TABLE

PHASE I PHASE II PHASE III TOTAL RELIANCE ELECTRIC $35,050.00 $13,875.00 $20,600.00 $69,525.00 AND ENGINEERING CO. (ENCLOSURE 5) ASTRO DYNAMICS, INC. $23,723.18 $55,959.29 $18,479.30 $98,161.77 (ENCLOSURE 6)

THE MECHANICAL ENGINEERING DIVISION, WHICH IS RESPONSIBLE FOR THE TECHNICAL ADMINISTRATION OF THE CONTRACT, AFTER EXTENSIVE REVIEW OF THE TECHNICAL APPROACHES SUBMITTED BY EACH FIRM, RECOMMENDED RELIANCE FOR AWARD PRIMARILY ON THE BASIS OF THEIR ENGINEERING APPROACH WHICH OFFERED A COMPACT, SELF-CONTAINED, INTEGRATED UNIT WITH A SELF-PRIMING FEATURE AND, SECONDARILY, BECAUSE OF THEIR MORE REALISTIC TOTAL COST ESTIMATE WHICH WAS APPROXIMATELY $30,000 DOLLARS LOWER THAN THAT SUBMITTED BY YOUR COMPANY. THE TECHNICAL APPROACH OF YOUR COMPANY WAS CONSIDERED INFERIOR FOR THE FOLLOWING REASONS:

A. THE PROPOSED CONTROL CIRCUIT EMPLOYING FEED-BACK WINDING WOULD REQUIRE ELECTRICAL SATURATION OF THE CORE THEREBY REDUCING THE EFFECTIVE USE OF AVAILABLE WATTAGE.

B. THE ELECTRONIC CONTROL CIRCUITRY WAS TO BE LOCATED OUTSIDE THE MOTOR CONFINES.

C. THE AXIAL FLOW PUMP PROPOSED IS NOT CONSIDERED A SELF-PRIMING PUMP.

ON THE BASIS OF THE RECOMMENDATION OF THE TECHNICAL DIVISION AND REQUIRED PREAWARD COST EVALUATION WHICH REVEALED THAT SUBMITTED COSTS WERE FAIR AND REASONABLE, AWARD WAS MADE TO RELIANCE.

AS INDICATED ABOVE, THE RFQ ADVISED OFFERORS THAT IT WAS THE INTENTION OF THE GOVERNMENT TO ENTER INTO A CONTRACT FOR ALL THREE PHASES OF THE WORK, ALTHOUGH ONLY THE FIRST PHASE WOULD BE FUNDED AT THE TIME OF AWARD. THE CONTRACT AWARDED TO RELIANCE WAS IN ACCORD WITH THIS ADVICE. SINCE THE COST QUOTATION BY RELIANCE FOR ALL WORK WAS APPROXIMATELY $30,000 LOWER THAN THAT SUBMITTED BY YOUR COMPANY, RELIANCE WAS PROPERLY CONSIDERED THE LOW OFFEROR, NOTWITHSTANDING THE FACT THAT YOUR COST QUOTATION ON PHASE I OF THE WORK WAS LOWER THAN THAT SUBMITTED BY RELIANCE. THE FAILURE OF THE CONTRACTING AGENCY TO FURNISH PRECISE REASONS WHY YOUR PROPOSAL WAS NOT ACCEPTED THEREFORE DID NOT CONSTITUTE A VIOLATION OF ASPR 3-106 (B).

CONCERNING YOUR CONTENTION THAT THE EVALUATION OF YOUR COMPANY'S TECHNICAL COMPETENCE AS A SMALL BUSINESS CONCERN WAS INCOMPLETE, IT IS THE POSITION OF THE CONTRACTING AGENCY THAT THERE HAS NEVER BEEN ANY QUESTION RELATIVE TO THE TECHNICAL COMPETENCE OF YOUR COMPANY TO PERFORM THE TYPE OF WORK REQUIRED BY THE CONTRACT, AND THAT THE SELECTION OF RELIANCE WAS BASED UPON A DETERMINATION THAT ITS TECHNICAL PLAN OF APPROACH WAS SUPERIOR TO THAT SUBMITTED BY YOUR COMPANY.

BASED UPON THE FOREGOING, IT IS OUR OPINION THAT THE RECORD OF THIS PROCUREMENT AFFORDS NO VALID BASIS TO SUPPORT A CONCLUSION THAT THE CONTRACT WAS IMPROPERLY AWARDED TO RELIANCE, OR THAT THE CONTRACT DOES NOT CONSTITUTE A VALID AND BINDING OBLIGATION ON THE PART OF THE GOVERNMENT. IN VIEW THEREOF, AND SINCE THE CONTRACT WAS NEGOTIATED UNDER 10 U.S.C. 2304 (A) (1) PURSUANT TO A DETERMINATION WHICH BECOMES FINAL UNDER THE PROVISIONS OF 10 U.S.C. 2310 (S), YOUR PROTEST MUST BE DENIED.