B-153464, MAY 14, 1964

B-153464: May 14, 1964

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SINCE THE PROCUREMENT IS TO BE EFFECTED FROM THE BENDIX CORPORATION ON A SOLE SOURCE BASIS. YOU QUESTION THE RESTRICTIVE CHARACTER OF THE PROCUREMENT AND CONTEND THAT YOU ARE TECHNICALLY QUALIFIED TO PRODUCE THE RADIO SETS AS REQUIRED WITHIN THE TIME SPECIFIED IN THE REQUEST FOR PROPOSALS. THE BASES OF YOUR POSITION IN THIS REGARD ARE AS FOLLOWS: 1. "WE PREPARED WHAT WE FEEL IS A RESPONSIBLE BID FOR EQUIPMENTS CALLED FOR UNDER THIS PROPOSAL. THEY HAVE STATED TO US THAT THEY DO NOT HAVE SUFFICIENT TECHNICAL DATA AVAILABLE TO ENABLE THEM TO NEGOTIATE WITH US FOR PROCUREMENT OF THIS EQUIPMENT. WE HAVE IN OUR POSSESSION. AN ADDITIONAL BASIS FOR ADEQUATE TECHNICAL DATA IS THE FACT THAT EQUIPMENTS OF THIS TYPE ARE IN EXISTENCE AND THAT A UNIT COULD BE FURNISHED AS A MODEL.

B-153464, MAY 14, 1964

TO TELEVISO ELECTRONICS, DIVISION OF DOUGHBOY INDUSTRIES, INC.:

BY LETTER DATED FEBRUARY 6, 1964, AND SUBSEQUENT CORRESPONDENCE, YOU PROTESTED AGAINST THE ACTIONS TAKEN BY THE UNITED STATES ARMY ELECTRONICS MATERIEL AGENCY UNDER REQUEST FOR PROPOSALS NO. AMC/E/-36 039-64-10409-B4, ISSUED ON JANUARY 10, 1964, FOR 668 AN/ARC-45 RADIO SETS.

SINCE THE PROCUREMENT IS TO BE EFFECTED FROM THE BENDIX CORPORATION ON A SOLE SOURCE BASIS, YOU QUESTION THE RESTRICTIVE CHARACTER OF THE PROCUREMENT AND CONTEND THAT YOU ARE TECHNICALLY QUALIFIED TO PRODUCE THE RADIO SETS AS REQUIRED WITHIN THE TIME SPECIFIED IN THE REQUEST FOR PROPOSALS. THE BASES OF YOUR POSITION IN THIS REGARD ARE AS FOLLOWS:

1. "WE PREPARED WHAT WE FEEL IS A RESPONSIBLE BID FOR EQUIPMENTS CALLED FOR UNDER THIS PROPOSAL, NAMELY A QUANTITY OF RADIO SET AN/ARC 45. THEY HAVE STATED TO US THAT THEY DO NOT HAVE SUFFICIENT TECHNICAL DATA AVAILABLE TO ENABLE THEM TO NEGOTIATE WITH US FOR PROCUREMENT OF THIS EQUIPMENT. WE HAVE IN OUR POSSESSION, SUFFICIENT TECHNICAL DATA TO PERFORM ON A CONTRACT THAT COULD BE AWARDED UNDER THE AFOREMENTIONED RFP. AN ADDITIONAL BASIS FOR ADEQUATE TECHNICAL DATA IS THE FACT THAT EQUIPMENTS OF THIS TYPE ARE IN EXISTENCE AND THAT A UNIT COULD BE FURNISHED AS A MODEL.

WE HAVE DONE SOME INVESTIGATION AND HAVE FOUND THAT AT SEVERAL LOCATIONS, SPECIFICALLY THE LEXINGTON SIGNAL DEPOT, THERE ARE UNITS AVAILABLE. OUT OF THE SEVERAL HUNDREDS OF EQUIPMENTS ALREADY PROCURED, THERE SHOULD BE NO QUESTION THAT PROVISION OF ONE UNIT AS A MODEL WOULD AT ALL IMPAIR THE PURPOSES OF USAEMA IN SUPPLYING USER ACTIVITIES.

2. "THE STATEMENT THAT THE ARMY DOES NOT HAVE TEST PARAMETERS AND RELATED DATA DOES NOT SOUND AT ALL REASONABLE. THERE HAS BEEN MORE THAN ONE PROCUREMENT FOR THIS EQUIPMENT, ONE OF WHICH IS CURRENTLY IN PROCESS AND IT DOES NOT SEEM LOGICAL TO SAY THAT THE GOVERNMENT WOULD ACCEPT MILLIONS OF DOLLARS WORTH OF ELECTRONIC EQUIPMENT WITHOUT INSPECTION BY ARMY PERSONNEL. IF THEY ARE INSPECTING THE EQUIPMENT, THEY MUST HAVE SOMETHING TO INSPECT IT TO.

"ON GOOD AUTHORITY, WE HAVE LEARNED THAT THERE HAS BEEN OVERHAUL AND REPAIR ACTIVITY AT ONE OR MORE OF THE SIGNAL DEPOTS BY ARMY PERSONNEL ON THE ARC-45. WHEN A PIECE OF EQUIPMENT IS OVERHAULED OR REPAIRED, IT IS NECESSARY TO DETERMINE WHETHER OR NOT IT IS FUNCTIONING PROPERLY. TO DO THIS, IT IS NECESSARY TO KNOW WHAT ITS OPERATING CHARACTERISTICS SHOULD BE. THESE CHARACTERISTICS WOULD, IN OUR OPINION, BE SUFFICIENT DATA TO BE THE BASIS OF A LEGAL CONTRACT. AN INTERESTING QUESTION ARISES ITSELF AS TO THE REASONS WHY ARC-45'S REQUIRED REPAIR.

3. "IT IS OUR OPINION THAT THE PRICE WE HAVE QUOTED TO THE ARMY IS VERY LIKELY IN THE AMOUNT OF SEVERAL HUNDRED THOUSANDS OF DOLLARS LESS THAN THAT OFFERED BY BENDIX RADIO CORPORATION, THE ALLEGED ONLY ACCEPTABLE SUPPLIER OF THIS EQUIPMENT. IT WOULD SEEM THAT WITH THIS POTENTIAL SAVING TO THE GOVERNMENT, THAT A FULL INVESTIGATION OF THIS MATTER AND A CESSATION OF ANY FURTHER ACTIVITY BY USAEMA TOWARD AWARDING A CONTRACT TO BENDIX RADIO CORPORATION WOULD BE WARRANTED.

"THE HISTORY OF THE ARC-45 IS NOT A SHORT ONE AND THERE ARE MANY OTHER ACTIONS IN THIS HISTORY WHICH RAISE QUESTIONS TO WHICH WE HAVE BEEN UNABLE TO GET SATISFACTORY ANSWERS FROM USAEMA.'

THE ABOVE-QUOTED CONTENTIONS ARE CONSIDERED BELOW.

THE ARC-45 IS A LIGHTWEIGHT AIRBORNE RADIO SET USED IN LIGHT AIRCRAFT AND PROVIDES COMMUNICATIONS IN THE FREQUENCY RANGE OF 225 TO 399 MEGACYCLES WITH TWO WATT OUTPUT AND TWELVE PRE-SET CHANNELS. THE DEVELOPMENT OF THE ARC-45 WAS BEGUN BY BENDIX UNDER AN AIR FORCE CONTRACT AWARDED IN 1950. THIS CONTRACT PROVIDED FOR THE DEVELOPMENT OF A RECEIVER-TRANSMITTER OPERATING IN THE FREQUENCY RANGE OF 225 TO 399 MEGACYCLES WITH AN OUTPUT OF ONE WATT ON ANY EIGHT PRE-SET CHANNELS. SERVICE TEST MODELS WERE EVALUATED IN 1954 BUT THE CONTRACT WAS TERMINATED IN 1954 PRIOR TO COMPLETION OF THE DEVELOPMENT OF THE RADIO SETS. IMMEDIATELY AFTER TERMINATION BENDIX REDESIGNED THE ARC 45 INTO A TWO WATT, TWELVE PRE-SET CHANNEL RADIO RECEIVER WITHOUT GOVERNMENT ASSISTANCE. THESE SETS WERE SOLD COMMERCIALLY AS THE BENDIX MODEL RTA-45 FOR USE BY THE GERMAN AIR FORCE. WE HAVE ASCERTAINED THAT THE GOVERNMENT DID NOT ACQUIRE ANY RIGHTS TO USE TECHNICAL DATA COVERING THE RTA -45; THAT THE TECHNICAL DATA GENERATED UNDER THE AIR FORCE DEVELOPMENT CONTRACT HAS NO PERTINENCY TO THE RTA-45; AND THAT THE RTA-45 IS A SUBSTANTIALLY DIFFERENT RADIO SET THAN THE ONE ORIGINALLY DEVELOPED UNDER THE AIR FORCE CONTRACT IN CIRCUITRY, GEAR DRIVE ASSEMBLY, WATTAGE AND NUMBER OF PRE-SET CHANNELS. THE RTA-45 OR ARC-45 HAS BEEN PROCURED FROM BENDIX UNDER THREE CONTRACTS WHICH WERE EXECUTED ON A SOLE SOURCE BASIS. HOWEVER, THE GOVERNMENT DID NOT PURCHASE OR OTHERWISE ACQUIRE RIGHTS TO USE TECHNICAL DATA FOR THE ARC 45.

THE REQUEST FOR PROPOSALS, HERE INVOLVED, REPRESENTS, ACCORDING TO ARMY OFFICIALS, THE LAST PROCUREMENT FOR THE ARC-45. AS ISSUED, THE REQUEST FOR PROPOSALS CALLED FOR RADIO SETS ,AN/ARC-45, BENDIX RADIO PART NO. 653289-1 * * *.' PRIOR THERETO, THE PROCUREMENT AGENCY ATTEMPTED TO DEVELOP A TECHNICAL DATA PACKAGE FOR THE COMPETITIVE PROCUREMENT OF THE ARC-45. AFTER A DETAILED REVIEW OF AVAILABLE DATA, IT WAS DETERMINED BY THE ELECTRONICS COMMAND THAT THERE WAS INSUFFICIENT DATA TO ADEQUATELY SPECIFY THE DETAILS OF PROCUREMENT AND TEST PARAMETERS FOR PRODUCTION. THERE WAS LACKING IN THE PROCUREMENT ACTIVITY TECHNICAL PERFORMANCE AND TEST PARAMETER INFORMATION REQUIRED TO PROVIDE A LEGALLY SUFFICIENT CONTRACT FOR THE ARC-45 USING THE MINIMAL TECHNICAL DATA APPROACH. THE MINIMAL PACKAGE--- WHICH THE GOVERNMENT DID NOT POSSESS--- WOULD HAVE TO CONSIST OF: INTERNAL NOISE, REGENERATION, LIMITER ACTION, SQUELCH OVERLAP, CRYSTAL CIRCUIT ACCURACY, AUTOMATIC MODULATION CONTROL, RADIO INTERPRETATIONS, SPURIOUS RESPONSE, AND EQUIPMENT EFFICIENCY.

WE HAVE REVIEWED THE SOLE SOURCE JUSTIFICATION ADVANCED BY THE PROCUREMENT AGENCY IN THE LIGHT OF THE REPRESENTATIONS MADE BY YOU, AND WE HAVE CONCLUDED THAT, UNDER THE REQUEST FOR PROPOSALS AS ISSUED, YOUR PROPOSAL WAS ENTIRELY NONRESPONSIVE TO THE GOVERNMENT'S REQUIREMENTS. THE MOST, YOUR PROPOSAL OFFERED "AN EQUAL" MODEL WHEREAS THE REQUEST SPECIFIED ONLY A BENDIX MODEL AND NONE OTHER. EVEN ASSUMING, BUT NOT CONCEDING, THAT YOU SUBMITTED AN ACCEPTABLE RESPONSE TO THE REQUEST FOR PROPOSALS, THE GOVERNMENT WOULD HAVE NO ASSURANCE THAT THE IDENTICAL MODEL WOULD BE PRODUCED AND FURNISHED WITHIN THE REQUIRED DELIVERY SCHEDULE. ALSO, WE HAVE ASCERTAINED THAT IT IS IMPRACTICAL, AT THIS TIME, TO CONDUCT TESTS OF SUFFICIENT ARC-45 MODELS TO ESTABLISH TEST PARAMETERS WHICH WOULD ASSURE PRODUCTION OF THE ARC-45 BY ANOTHER COMPETENT SOURCE WITHIN THE CRITICAL DELIVERY SCHEDULE. WE ARE OF THE OPINION THAT THE RISKS INHERENT IN PERMITTING A NEW PRODUCER TO FABRICATE THE ARC-45 ON THE BASIS OF ADMITTEDLY INADEQUATE SPECIFICATIONS AND TECHNICAL DATA OVERRIDE ANY BENEFITS WHICH MIGHT RESULT THEREFROM.

WHILE BY HINDSIGHT IT WOULD SEEM THAT THE PROCUREMENT AGENCY SHOULD HAVE ANTICIPATED THAT COMPLETE PROCUREMENT INFORMATION SHOULD HAVE BEEN ACQUIRED TO SUPPORT FUTURE ARC-45 PROCUREMENTS, THE COST OF DEVELOPING SUCH PROCUREMENT DATA WOULD HAVE BEEN PROHIBITIVE IN VIEW OF THE CONSTANTLY CHANGING REQUIREMENTS FOR THE ARC-45.

THE DECISION OF THE PROCUREMENT ACTIVITY TO CONTRACT WITH BENDIX IS, IN OUR OPINION, NOT SUBJECT TO LEGAL OBJECTION. WE HAVE ASCERTAINED THAT DELIVERY OF ACCEPTABLE ARC-45 SETS MUST BE MADE TO AIRCRAFT PRODUCERS ON A TIMELY BASIS TO AVOID DELAYS IN THE AVIONICS PROGRAM, AND THAT THE ONLY ASSURANCE THAT SUCH CRITICAL DELIVERIES CAN BE MET WOULD BE THROUGH AN AWARD TO THE PRESENT PRODUCER. THIS MATTER OF URGENCY HAS BEEN REVIEWED BY US AND WE FIND THAT EXCEPT AS TO THE NEED FOR SB-328 CONTROLS, THE DETERMINATION OF URGENCY IS SUPPORTED BY THE FACTS OF RECORD.

PURSUANT TO ASPR 3-210.3, THE CONTRACTING OFFICER HAS MADE THE REQUIRED DETERMINATION AND FINDINGS THAT THE ARC-45 SHOULD BE PROCURED BY NEGOTIATION UNDER 10 U.S.C. 2304 (A) (10) AND ASPR 3-210.2 (XIII) FOR THE FOLLOWING REASONS:

1. THE ITEM IS AIRBORNE CONSISTING OF BENDIX RADIO COMMERCIAL PARTS;

2. THERE IS NO SUFFICIENT INFORMATION AVAILABLE WITH RESPECT TO TEST SPECIFICATIONS, PERFORMANCE TOLERANCES, DESIGN FOR COMPONENTS OR OTHER CHARACTERISTICS;

3. THERE IS NO KNOWN SUBSTITUTE FOR THIS RADIO SET;

4. THAT FORMAL ADVERTISING IS IMPRACTICABLE DUE TO INADEQUATE PROCUREMENT DATA DEFINING THE ITEM IN SUFFICIENT DETAIL.

UPON REVIEW, WE FIND NO LEGAL BASIS TO QUESTION THE CONTEMPLATED PROCUREMENT OF ARC-45 RADIO SETS FROM BENDIX. ACCORDINGLY, AND SINCE THE NEGOTIATION OF THIS PROCUREMENT WOULD SATISFY THE CRITERIA OF THE STATUTE AND THE IMPLEMENTING ASPR PROVISIONS, YOUR PROTEST MUST BE DENIED.