B-154286, AUG. 9, 1965

B-154286: Aug 9, 1965

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THE ITEM TO BE PROCURED IS ESSENTIAL TO THE NATIONAL DEFENSE AND ANY FURTHER DELAY IN THE DISPOSITION OF THE CONTROVERSY WOULD BE UNWARRANTED. WE ARE INFORMALLY ADVISED THAT A SO- CALLED "CLEAN" SPECIFICATION HAS BEEN DRAFTED BY GOVERNMENT ENGINEERS UNFAMILIAR WITH THE UNSOLICITED PROPOSALS AND HARDWARE SUBMITTED BY PRD. WHICH IN NO WAY INFRINGES RIGHTS PROPRIETARY TO THAT COMPANY AND DOES NOT DISCLOSE INFORMATION REVEALED TO THE DEPARTMENT IN CONFIDENCE WHICH THE GOVERNMENT IS NOT OTHERWISE AUTHORIZED TO USE. WE HAVE CONCLUDED THAT OUR OFFICE WOULD NOT BE OBLIGED TO OBJECT TO THE ISSUANCE OF A PROPOSED TWO-STEP. COPIES OF THIS LETTER WILL BE FURNISHED TO THE PROTESTANTS INVOLVED. THE MATERIAL SENT WITH THE SECOND REPORT IS HEREBY RETURNED.

B-154286, AUG. 9, 1965

TO THE SECRETARY OF THE AIR FORCE:

WE UNDERSTAND FROM REPORTS DATED SEPTEMBER 28, 1964, AND APRIL 9, 1965, THAT THE DEPARTMENT OF THE AIR FORCE PRESENTLY HAS A REQUIREMENT FOR A TEST SET, DESIGNATED AS "INDICATOR, STANDING WAVE RATIO AN/ALM 47," USED FOR THE MEASUREMENT AND CONTINUOUS PANORAMIC DISPLAY OF THE VOLTAGE STANDING WAVE RATIO OR REFLECTION COEFFICIENT OF RADIO FREQUENCY ANTENNA SYSTEMS AND COMPONENTS THEREOF OPERATING OVER CERTAIN FREQUENCY RANGES. BY TELEGRAM DATED MAY 19, 1964, AND LETTER DATED MAY 21, 1964, TO OUR OFFICE, GENERAL MICROWAVE CORPORATION OF FARMINGDALE, NEW YORK, PROTESTED AGAINST THE ALLEGED REFUSAL OF YOUR DEPARTMENT TO FURNISH THEM WITH A REQUEST FOR PROPOSALS AND AGAINST THE APPARENT INTENTION TO NEGOTIATE A CONTRACT ON A SOLE-SOURCE BASIS WITH PRD ELECTRONICS, INCORPORATED, OF BROOKLYN, NEW YORK. THE LATTER COMPANY HAS, SINCE THE ARRIVAL OF THE AFOREMENTIONED CORRESPONDENCE, REGISTERED A PROTEST AGAINST THE AWARD OF A CONTRACT FOR THE FULFILLMENT OF THE REQUIREMENT TO ANY OTHER COMPANY ON THE GROUND THAT THE SOLICITATION OF COMPETITIVE PROPOSALS ON THE PROCUREMENT WOULD NECESSARILY VIOLATE RIGHTS PROPRIETARY TO PRD AND CONFIDENCES REPOSED IN THE AIR FORCE UNDER THE UMBRELLA OF ARDC FORM 91 AGREEMENTS.

THE MATTER HAS BEEN PENDING BEFORE US FOR OVER A YEAR NOW WITHOUT RESOLUTION. THE ITEM TO BE PROCURED IS ESSENTIAL TO THE NATIONAL DEFENSE AND ANY FURTHER DELAY IN THE DISPOSITION OF THE CONTROVERSY WOULD BE UNWARRANTED. YOUR DEPARTMENT NOW TAKES THE POSITION THAT THERE EXISTS NO LEGAL OR TECHNICAL REQUIREMENT THAT WOULD NECESSITATE THE SOLE SOURCE NEGOTIATION OF A CONTRACT WITH PRD. WE ARE INFORMALLY ADVISED THAT A SO- CALLED "CLEAN" SPECIFICATION HAS BEEN DRAFTED BY GOVERNMENT ENGINEERS UNFAMILIAR WITH THE UNSOLICITED PROPOSALS AND HARDWARE SUBMITTED BY PRD, WHICH IN NO WAY INFRINGES RIGHTS PROPRIETARY TO THAT COMPANY AND DOES NOT DISCLOSE INFORMATION REVEALED TO THE DEPARTMENT IN CONFIDENCE WHICH THE GOVERNMENT IS NOT OTHERWISE AUTHORIZED TO USE.

ON THE BASIS OF THE RECORD BEFORE US, AND AFTER EXTENSIVE STUDY OF THE LEGAL ISSUES INVOLVED, WE HAVE CONCLUDED THAT OUR OFFICE WOULD NOT BE OBLIGED TO OBJECT TO THE ISSUANCE OF A PROPOSED TWO-STEP, FORMALLY ADVERTISED COMPETITIVE SOLICITATION BASED ON SUCH A "CLEAN" SPECIFICATION.

WE REACH THIS CONCLUSION ON THE UNDERSTANDING THAT THE SPECIFICATION CONSTITUTES NO MORE THAN A GENERALLY PHRASED, PERFORMANCE TYPE, STATEMENT OF THE GOVERNMENT'S REQUIREMENTS.

COPIES OF THIS LETTER WILL BE FURNISHED TO THE PROTESTANTS INVOLVED. THE MATERIAL SENT WITH THE SECOND REPORT IS HEREBY RETURNED.