B-154028, SEP. 9, 1964

B-154028, SEP. 9, 1964

TO SPACE AVIONICS, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 23, 1964, AND SUBSEQUENT CORRESPONDENCE PROTESTING AWARD TO OTHER THAN THE LOW RESPONSIVE OFFEROR UNDER REQUEST FOR QUOTATIONS (RFQ) NO. 383/911124/64Q, ISSUED DECEMBER 31, 1963, BY THE UNITED STATES NAVY AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA.

THE RFQ SOLICITED A QUOTATION, FOR SUBMISSION BY JANUARY 15, 1964, FROM ROCKET JET ENGINEERING CORPORATION FOR THE FURNISHING OF 1709 RIGID SEAT SURVIVAL KITS AND RELATED TECHNICAL DATA. ROCKET JET IS THE DESIGNER AND DEVELOPER OF THE KIT, AND THE CONTRACTING AGENCY DID NOT CONSIDER THE AVAILABLE DATA ADEQUATE TO PERMIT COMPETITIVE PROCUREMENT. ACCORDINGLY, THE RFQ, IN COMPLIANCE WITH ARMED SERVICES PROCUREMENT REGULATION 1-313 (C), SPECIFIED ROCKET JET PART NUMBER 347000-1. IN ADDITION, THE RFQ WAS ISSUED ONLY TO ROCKET JET AND THE PROCUREMENT WAS PUBLICIZED PURSUANT TO ASPR 1-1003.6 (A) ONLY AS AN AID FOR SUBCONTRACTING TO SMALL BUSINESS AND LABOR SURPLUS AREA CONCERNS.

THE CONTRACTING AGENCY REPORTS THAT ON JANUARY 14, 1964, YOU CALLED THE AGENCY, INDICATED THAT YOU HAD SEEN THE PROCUREMENT SYNOPSIS IN THE COMMERCE BUSINESS DAILY, AND REQUESTED SPECIFICATIONS AND ADDITIONAL TIME TO PREPARE A QUOTATION. YOU WERE ADVISED THAT ADEQUATE DATA WERE NOT AVAILABLE TO PERMIT EITHER FORMAL ADVERTISING OR COMPETITIVE NEGOTIATION, AND YOUR ATTENTION WAS DIRECTED TO THE REQUIREMENT IN THE RFQ FOR ROCKET JET TO FURNISH TECHNICAL DATA AND GRANT THE RIGHT TO USE SUCH DATA IN FUTURE COMPETITIVE PROCUREMENTS.

IT IS FURTHER REPORTED THAT IN A TELEPHONE CONVERSATION OF JANUARY 15, 1964, THE CONTRACTING OFFICE ADVISED YOU THAT THE TIME SET FOR RECEIPT OF QUOTATIONS HAD BEEN EXTENDED TO JANUARY 24, 1964, AND THAT SINCE THE PROCUREMENT WAS A PART NUMBER PURCHASE, ANY QUOTATION SUBMITTED BY YOU SHOULD INCLUDE ADEQUATE DATA (BROCHURES, DESCRIPTIVE MATTER, DRAWINGS, ETC.) WHICH WOULD PERMIT TECHNICAL EVALUATION OF YOUR OFFER AGAINST THE ITEM REQUIRED IN THE PROPOSAL.

ON JANUARY 24, QUOTATIONS HAD BEEN RECEIVED FROM M. STEINTHAL AND CO., INC., FROM ROCKET JET, AND FROM YOU. STEINTHAL, THE LOW OFFEROR, QUOTED ON FURNISHING ITS PART NUMBER C1051, ON WHICH IT SUBMITTED TECHNICAL DESCRIPTION AND DRAWINGS. STEINTHAL ALSO SUBMITTED AN ALTERNATE QUOTATION FOR ITEM 1, THE KIT, WITH CERTAIN ACCESSORIES, IN THE EVENT THE ACCESSORIES WERE TO BE CONTRACTOR-FURNISHED EQUIPMENT. ROCKET JET OFFERED TO FURNISH ITS PART NUMBER 347000-3, WHICH APPEARS TO BE AN IMPROVED VERSION OF ITS PART NUMBER 347000-1.

WITH YOUR QUOTATION, YOU SUBMITTED DATA INDICATING SOME OF YOUR CAPABILITIES AND PLANT EQUIPMENT. UPON REQUEST FOR YOUR DESCRIPTIVE DATA, IT WAS DEVELOPED THAT YOU WERE OFFERING THE ROCKET JET PART NUMBER SPECIFIED IN THE RFQ.

UPON TECHNICAL EVALUATION OF THE PROPOSALS, IT WAS DETERMINED THAT THE ARTICLES OFFERED BY YOU AND STEINTHAL COULD NOT BE CONSIDERED ACCEPTABLE ALTERNATES TO THE SPECIFIED SURVIVAL KIT, AND BOTH OF YOU WERE SO ADVISED. THE BASIS FOR SUCH REJECTIONS WAS THE ABSENCE OF SUFFICIENT TECHNICAL DATA REGARDING DIMENSIONS, TOLERANCES, MATERIAL, AND OTHER ESSENTIAL FACTORS. FURTHER, IT WAS BELIEVED ANY INEXPERIENCED MANUFACTURER WOULD REQUIRE AT LEAST A YEAR TO DEVELOP AND QUALIFY AN ACCEPTABLE KIT, AND TIME DID NOT PERMIT SUCH DEVELOPMENT BY A NEW PRODUCER, SINCE THE KITS ARE URGENTLY REQUIRED FOR INSTALLATION IN VARIOUS AIRCRAFT TO REDUCE THE HIGH INCIDENCE OF SERIOUS BACK INJURIES RESULTING FROM USE OF AIRCRAFT EJECTION SEATS.

IN PROTESTING AWARD TO ROCKET JET, WHOSE OFFER IS HIGHER THAN YOUR QUOTATION, YOU MAKE THE FOLLOWING ASSERTIONS:

"/1) SPACE AVIONICS IS WILLING AND READY TO PRODUCE THE PRODUCT REQUESTED IN THE RFQ.

"/2) THE NAVY (A.S.O.) UP TO THE TIME OF OUR PROTEST SHOWED LITTLE OR NO INTEREST IN CHECKING OUR FACILITY OR OUR COMPETENCE AND HAS NOT DONE SO TO THIS DATE.

"/3) TO THIS WRITING WE HAVE NOT BEEN INFORMED OR TOLD WHY WE CANNOT PRODUCE THIS PRODUCT FOR THE NAVY.

"/4) A PROTOTYPE MODEL WHICH PEOPLE IN BUWEPS AIRBORNE EQUIPMENT DIVISION AND THE PURCHASING DEPARTMENT AT A.S.O. PHILADELPHIA CLAIM DOES NOT EXIST IS EXTANT.'

AS TO YOUR FIRST CONTENTION, THE CONTRACTING AGENCY CONCEDES THE ULTIMATE CAPABILITY OF YOUR FIRM TO PRODUCE A RIGID SEAT SURVIVAL KIT WHICH WILL PERFORM SATISFACTORILY. HOWEVER, BECAUSE OF THE TESTS WHICH ARE NECESSARY BEFORE ACCEPTANCE OF YOUR PRODUCT, THERE CAN BE NO ASSURANCE YOU WILL BE ABLE TO PRODUCE AN ACCEPTABLE ITEM WITHIN THE ACTUAL TIME REQUIRED. THEREFORE, AT THIS TIME, THE PRODUCT YOU OFFER CANNOT BE CONSIDERED ACCEPTABLE, A FACT WHICH IS NOT ALTERED BY YOUR WILLINGNESS TO PRODUCE THE REQUIRED ITEM, OR BY THE FACT THAT YOU MAY ULTIMATELY DEMONSTRATE YOUR ABILITY TO DO SO.

REGARDING THE NAVY'S FAILURE TO CHECK YOUR FACILITY OR COMPETENCE,THE DETERMINATION THAT YOUR PROPOSAL WAS TECHNICALLY UNACCEPTABLE OBVIATED THE NEED FOR A FACILITY SURVEY. ALSO, REFERRAL TO THE SMALL BUSINESS ADMINISTRATION WAS NOT REQUIRED, SINCE THE SMALL BUSINESS REFERRAL REQUIREMENTS OF ASPR 1-705.6 (B) RELATE ONLY TO "OTHERWISE ACCEPTABLE" BIDS OR PROPOSALS OF SMALL BUSINESS CONCERNS WHICH CONTRACTING OFFICERS PROPOSE TO REJECT SOLELY FOR THE REASON THAT THE BIDDERS OR OFFERORS HAVE BEEN FOUND TO BE INADEQUATE AS TO CAPACITY OR CREDIT.

WITH RESPECT TO YOUR STATEMENT THAT YOU HAVE NOT BEEN INFORMED WHY YOU CANNOT PRODUCE THE ITEM FOR THE NAVY, THE CONTRACTING AGENCY STATES THAT DURING A TELEPHONE CONVERSATION ON APRIL 13, 1964, BOTH MR. NEW FIELD AND ANOTHER REPRESENTATIVE OF YOUR FIRM (PRESUMABLY ITS PRESIDENT) WERE INFORMED OF THE PRINCIPAL REASONS FOR NONACCEPTANCE OF YOUR PROPOSAL.

AS TO THE EXISTENCE OF A PROTOTYPE MODEL, THE CONTRACTING OFFICER ADVISES AS FOLLOWS:

"THE FURNISHING OF A "CHINESE COPY" OF THE ROCKET JET SURVIVAL KIT DOES NOT NECESSARILY INCLUDE THE VITAL FACTOR "INTEGRITY.' THE MERE POSSESSION OF A SURVIVAL KIT, AND THE MAKING OF A REPLICA OF SUCH KIT, WILL NOT ASSURE INTEGRITY OF THE PRODUCT. PROCUREMENT ON THIS BASIS WOULD SIMPLY FORCE THE ADDED AND UNACCEPTABLE (FROM A TIME DELAY POINT OF VIEW) BURDEN OF PROOF UPON THE GOVERNMENT TO ASCERTAIN CAPABILITY OF THE PRODUCT TO PERFORM ITS SAFETY OF FLIGHT FUNCTION. BEST ESTIMATES INDICATE TESTING FOR APPROXIMATELY A YEAR WILL BE NECESSARY TO "PROVE" THE PRODUCT OF ANY SUPPLIER OTHER THAN ROCKET JET.'

IN VIEW OF THE FACT THAT YOUR COMPANY WAS FURNISHED A COPY OF THE REPORT OF THE CONTRACTING AGENCY TO THIS OFFICE, AND HAS ELECTED NOT TO SUBMIT ANY EVIDENCE IN REFUTATION OF THE INFORMATION CONTAINED THEREIN, WE MUST ACCEPT THE CONCLUSION THAT THE PROCUREMENT IS FOR AN URGENTLY NEEDED ITEM FOR WHICH ADEQUATE SPECIFICATIONS ARE NOT CURRENTLY AVAILABLE TO ASSURE THE TIMELY DELIVERY OF ACCEPTABLE ITEMS BY ANY PRODUCER OTHER THAN ROCKET JET. NEGOTIATION OF THE PROCUREMENT WITH ROCKET JET WAS THEREFORE WITHIN THE AUTHORITY VESTED IN THE CONTRACTING AGENCY UNDER 10 U.S.C. 2304 (10), AND YOUR PROTEST MUST BE DENIED.

IN CONNECTION WITH FUTURE REQUIREMENTS, HOWEVER, THE BUREAU OF NAVAL WEAPONS REPORTS THAT A PROCUREMENT SPECIFICATION AND DRAWINGS FOR THE KIT ARE IN PREPARATION, AND SUCH SPECIFICATION WILL CONTAIN A QUALIFICATION REQUIREMENT. THE BUREAU WILL THEN SOLICIT MANUFACTURERS TO SUBMIT QUALIFICATION SAMPLES AND WILL ESTABLISH A QUALIFIED PRODUCTS LIST FOR USE IN FUTURE PROCUREMENTS.