B-154331, OCT. 12, 1964

B-154331, OCT. 12, 1964

TO AVIEN, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF MAY 29, 1964, AND TO YOUR SUPPLEMENTAL LETTERS OF JULY 8 AND AUGUST 14, 1964, WITH ENCLOSURES, PROTESTING AGAINST A PROPOSED ACTION BY THE DEPARTMENT OF THE AIR FORCE, SAN ANTONIO AIR MATERIEL AREA, TO NEGOTIATE A CONTRACT WITH HOWELL INSTRUMENTS, C., FORT WORTH, TEXAS, FOR A QUANTITY OF JET ENGINE HOT SECTION ANALYZERS.

SPECIFICALLY, YOU PROTEST "THE POSSIBILITY OF A NON-COMPETITIVE SOLE SOURCE PROCUREMENT OF A ,TIME TEMPERATURE INDICATING INTEGRATING AND WARNING SYSTEM" FOR NEW AND RETROFIT AIRCRAFT AS CONTEMPLATED BY AIR FORCE LOGISTICS COMMAND" AS NOT BEING IN THE BEST INTEREST OF THE GOVERNMENT OR APPLICABLE TO EXISTING REGULATIONS.

IN JUSTIFICATION OF THE CONTEMPLATED ACTION THE DEPARTMENT OF THE AIR FORCE ADVISED US ON JULY 23, 1964, AS FOLLOWS:

"2. THIS EQUIPMENT RECORDS AND INDICATES CUMULATIVE JET ENGINE HOT SECTION DAMAGE THROUGH A PROCESS WHERE METAL DEFORMATION RATES ARE INTEGRATED AND COMPUTED AGAINST TIME AND TEMPERATURE FACTORS. IT ALSO INDICATES AND RECORDS JET ENGINE OVERTEMPERATURE EXCURSIONS AND RECORDS EXCESSIVE TEMPERATURE SPREAD IN THE ENGINE EXHAUST GAS TEMPERATURE THERMOCOUPLES (A SYMPTOM OF CLOGGED FUEL NOZZLES).

"3. THE AIR FORCE HAS AN URGENT IMMEDIATE NEED FOR THIS EQUIPMENT TO IMPROVE MISSION CAPABILITY OF JET FIGHTER AIRCRAFT, TO INCREASE JET FIGHTER ENGINE RELIABILITY, AND TO ENHANCE SAFETY OF FLIGHT OF FIGHTER AIRCRAFT. THE AIR FORCE LOGISTICS COMMAND, TO SATISFY THIS NEED, ESTABLISHED A PROJECT FOR SERVICE TESTING THE EXISTING COMMERCIAL MODEL OF HOWELL INSTRUMENTS, C., AERO JETCAL MODEL B SYSTEM. THE DATA RESULTING FROM THIS SERVICE TEST ESTABLISHED SPECIFIC FLIGHT SAFETY GAINS TO BE OBTAINED BY INSTALLATION OF THIS EQUIPMENT IN CERTAIN FIGHTER AIRCRAFT. NO OTHER KNOWN CURRENTLY AVAILABLE OR IDENTIFIABLE EQUIPMENTS, EITHER COMMERCIAL OR MILITARY, CAN PROVIDE THE FUNCTIONS, SERVICES OR PRESENTATIONS REQUIRED TO IDENTIFY INCIPIENT JET ENGINE HOT SECTION DETERIORATION. ANY SUCH EQUIPMENT, EXCEPT THAT OF HOWELL INSTRUMENTS, CAN ONLY BE PRODUCED AFTER EXTENSIVE, TIME CONSUMING, DEVELOPMENT TESTING AND QUALIFICATION PROGRAM. AIR FORCE TECHNICAL PERSONNEL RESPONSIBLE FOR THIS PROGRAM ADVISE THAT TO BRING OTHER EQUIPMENT, COMMERCIAL OR MILITARY, TO EQUAL CAPACITY AND THE SAME PROCUREMENT STATUS AS THE HOWELL EQUIPMENT, WOULD TAKE FROM 18 TO 24 MONTHS. SUCH A DELAY IN ITSELF, EXCLUSIVE OF THE PRODUCTION LEAD TIME PRESENTLY NECESSARY FOR ANY CONTRACTOR TO DELIVER AND INSTALL THESE EQUIPMENTS IN THE FIGHTER AIRCRAFT, IS CLEARLY ADVERSE TO THE GOVERNMENT'S BEST INTEREST. IN VIEW OF THE URGENT AND COMPELLING NEED FOR THE INSTALLATION OF THIS EQUIPMENT, THIS PROCUREMENT COVERS THE REMAINING QUANTITY OF SUCH EQUIPMENTS REQUIRED FOR INSTALLATION ON THE F- 102/F-106 AIRCRAFT.

"4. ADEQUATE GOVERNMENT RIGHTS TO THE DATA NECESSARY TO PROCURE EQUIPMENT OF THIS TYPE ARE NOT CURRENTLY AVAILABLE TO THE GOVERNMENT. THE PROPRIETARY NATURE OF THE DATA OF THE HOWELL EQUIPMENT PRECLUDES THE USE OF SUCH DATA FOR REPROCUREMENT PURPOSES. IN THE EVENT THE PROPRIETARY RIGHTS NECESSARY FOR COMPETING FUTURE PROCUREMENTS OF THIS EQUIPMENT FOR SPARE SUPPORT CANNOT BE PROCURED AT A REASONABLE PRICE, IN THE GOVERNMENT'S BEST INTEREST, SUCH RIGHTS WILL NOT BE PURCHASED.

"5. HOWEVER, ENGINE ANALYZERS MORE SOPHISTICATED OR COMPLICATED AND FAR MORE COSTLY THAN THE JET ENGINE HOT SECTION ANALYZER REQUIRED FOR THE F- 102/F-106 AIRCRAFT ARE PRESENTLY BEING DEVELOPED. THESE ANALYZERS ARE AIMED SPECIFICALLY AT THE NEW GENERATION AIRCRAFT SUCH AS THE F-105, F-111 AND THE F-4C. DATA FOR COMPETITIVE PROCUREMENT PURPOSES FOR THE ENGINE ANALYZER IS NOW UNDER CONTRACT. THAT DATA, WHEN DETERMINED ADEQUATE FOR REPROCUREMENT PURPOSES WILL BE USED AS THE BASIS FOR COMPETING FUTURE PROCUREMENTS.

"6. DATA FROM THE HOWELL ENGINE ANALYZERS IS PECULIARLY ESSENTIAL AT REMOTE BASES WHERE ADEQUATE JET ENGINE MAINTENANCE CANNOT BE MAINTAINED ON THE SPOT, AS DURING THE CUBAN CRISIS. IN SUCH CIRCUMSTANCES, GO-OR-NO-GO DECISIONS MUST BE MADE IN PART ON THE BASIS THAT THE HOT SECTION OF THE JET ENGINE OF THE AIRCRAFT APPEARS TO BE CAPABLE OR INCAPABLE OF PERFORMING A TURN-AROUND MILITARY MISSION IMMEDIATELY. WITHOUT THIS DATA, SUCH MILITARY MISSIONS MAY BE ORDERED WHICH WILL UNNECESSARILY RESULT IN INABILITY TO ACCOMPLISH THE MISSION, JEOPARDIZE THE SAFETY OF THE FLYING PERSONNEL, AND LOSE THE MILITARY AIRCRAFT. UNDER THESE CIRCUMSTANCES, IT IS NECESSARY THAT WE PROCURE THE EQUIPMENT CONTEMPLATED BY THIS PROCUREMENT FOR PROMPT AND IMMEDIATE INSTALLATION ON F-102 AND F-106 MILITARY AIRCRAFT.

"7. AVIEN ALLEGES IN ITS LETTER OF 8 JULY 1964 THAT SUFFICIENT TECHNICAL INFORMATION WAS AVAILABLE TO THE AIR FORCE TO DEFINE THE ENGINE ANALYZER SYSTEM WHICH WE DESIRE TO OBTAIN AND INSTALL IN CURRENT AIRCRAFT AND REFERS TO SPECIFICATIONS MIL-I-38296 AND MIL-A-38297, BOTH DATED 8 APRIL 1964. PUBLICATION OF SUCH SPECIFICATIONS FOR AN IMPROVED EXHAUST GAS TEMPERATURE INDICATOR, OF A BASIC TYPE LONG IN AIR FORCE USE, DOES NOT IMPLY THAT THE TECHNICAL INFORMATION FOR A PERFORMANCE SPECIFICATION COVERING A COMPLETE ANALYZER PACKAGE IS SIMILARLY AVAILABLE. WHILE IT MAY BE TRUE THAT PERFORMANCE DATA FOR AN ANALYZER SPECIFICATION CAN BE OBTAINED AND A SPECIFICATION PREPARED, NOTWITHSTANDING THE PROPRIETARY NATURE OF CERTAIN OF THE DATA OF THE HOWELL EQUIPMENT, NEVERTHELESS THE TIME REQUIRED TO BRING OTHER EQUIPMENT TO THE SAME PROCUREMENT STATUS AS THE HOWELL EQUIPMENT IS CLEARLY NOT IN THE GOVERNMENT'S BEST INTERESTS, AS STATED ABOVE.

"8. IN VIEW OF THE ABOVE, WE FIND NO VALID BASIS TO PROTEST AND RECOMMEND THAT IT BE DENIED.

"9. AS THIS IS A PROTEST PRIOR TO AWARD AND THE DELIVERY OF THIS EQUIPMENT IS URGENTLY NEEDED BY THE AIR FORCE, IT IS REQUESTED THAT YOUR DECISION BE FURNISHED AT THE EARLIEST PRACTICABLE DATE. ATTACHED ARE DOCUMENTS, LETTERS AND MIL-I-38296 (USAF) AND MIL-A-38297 (USAF), BOTH DATED 8 APRIL 1964, APPLICABLE TO THE PROTEST.'

IN YOUR LETTER OF AUGUST 14 YOU TOOK NUMEROUS EXCEPTIONS TO THE CONTENTS OF THE ABOVE REPORT, ESPECIALLY TO THE AIR FORCE POSITION THAT 18 TO 24 MONTHS WOULD BE REQUIRED TO BRING EQUIPMENT OF OTHER CONCERNS TO EQUAL CAPACITY AND PROCUREMENT STATUS AS THE HOWELL PRODUCT, AND TO THE VIEW THAT USE OF THE PROPRIETARY DATA OF THE HOWELL PRODUCT WOULD BE REQUIRED FOR PROCUREMENT OF ACCEPTABLE EQUIPMENT TO MEET THE GOVERNMENT'S IMMEDIATE NEEDS. BECAUSE OF THE SERIOUS NATURE OF THE ABOVE AND OTHER OF YOUR CONTENTIONS A FURTHER REPORT WAS REQUESTED FROM THE DEPARTMENT OF THE AIR FORCE. THE REPORT WAS MADE UNDER DATE OF SEPTEMBER 22, 1964, AND RESPONDS TO YOUR MAJOR ALLEGATIONS AS FOLLOWS:

"THE ENTIRE PROGRAM FOR THE HOT SECTION ANALYZER WAS AND IS PREDICATED UPON THE AVAILABILITY OF A COMMERCIAL ITEM. NO OTHER WAS AVAILABLE AT THE INCEPTION OF THE PROGRAM AND NO OTHER IS KNOWN TO BE AVAILABLE IN A COMPLETE HARDWARE STAGE AT THIS DATE. ADMITTEDLY, THE EXPERIENCE GAINED IN THE EXTENSIVE AFLC SERVICE TEST HAS PROVIDED THE DETAILED PERFORMANCE KNOWLEDGE REQUIRED FOR PREPARING A PERFORMANCE SPECIFICATION BY THE PROPER AF AGENCY. THIS, HOWEVER, WOULD LEAD TO THE TIME-CONSUMING IFB FOR COMPETITIVE SOURCES, DEVELOPMENT CONTRACT AWARD, PRODUCTION GEAR-UP, TESTING AND QUALIFICATION AND EVENTUAL HARDWARE DELIVERIES. THE FLIGHT SAFETY ASPECTS OF THE SITUATION CANNOT LIVE WITH FURTHER DELAYS AS ENGINE FAILURES CONTINUE TO DOMINATE F106 AND F102 ACCIDENT CAUSES. SOLE SOURCE PROCUREMENT FROM HOWELL ALLOWS THE MOST RAPID REALIZATION OF BENEFITS OF THE TESTED TYPE ANALYZER.

"A NUMBER OF COMPETENT AIRCRAFT INSTRUMENT MANUFACTURERS HAVE THE CAPABILITY TO QUALIFY AND PRODUCE AGAINST THIS TYPE OF SPECIFICATION (MIL- I-38296). AVIEN WON THE TFX (F-111) EGT INSTRUMENT COMPETITION ON A TECHNICAL PROPOSAL; HOWEVER, THE HOWELL ENGINE ANALYZER WAS SELECTED BY PROVEN PERFORMANCE IN ITS OPERATING ENVIRONMENT. THE AVIEN STATEMENT THAT IT CAN PRODUCE AN INITIAL PRODUCTION EGT INDICATOR (INSTRUMENT) IN FIVE TO SIX MONTHS DOES NOT INSURE THAT AVIEN COULD DEVELOP AN ANALYZER, CONDUCT OPERATIONAL TESTING FOR OVER TWELVE MONTHS AND PRODUCE A QUALIFIED PRODUCT IN LESS THAN THE "EXAGGERATED 18 TO 24 MONTHS.'

"SPECIFICATION RELIABILITY REQUIREMENTS DICTATE A SIMULATED ENVIRONMENTAL TESTING TO PROVE DESIGN RELIABILITY. A SERVICE TEST (OF THE HOWELL ENGINE ANALYZER) WAS CONDUCTED FOR OVER 8,000 FLIGHT HOURS TO VERIFY RELIABILITY IN THE ACTUAL OPERATIONAL ENVIRONMENT. SELECTING THE HOWELL EQUIPMENT SAVES 18 MONTHS LEAD TIME NORMALLY REQUIRED TO TEST ANY COMPETING SYSTEM TO A SIMILAR DEGREE OF RELIABILITY IF ONE WERE AVAILABLE. NO GUN FIRE TESTS WERE RUN BECAUSE NEITHER THE F102 NOR F106 IS A GUN EQUIPPED AIRCRAFT. THE TESTING VERIFIED THE FUNCTIONAL COMPATIBILITY OF THE EQUIPMENT TO THE AIRCRAFT INVOLVED. GUN FIRING TESTS WILL BE CONDUCTED ON AN F100 TO DETERMINE VIBRATION EFFECTS ON THE ANALYZER.

"THE AF IS STRIVING FOR ICE AND AN EFFECTIVE DETERRENT AS SOON AS POSSIBLE. A PROVEN PIECE OF EQUIPMENT IS NEEDED, NOT A TECHNICAL PROPOSAL. THE AF HAS TESTED AN EQUIPMENT BUILT ON THE INITIATIVE AND EXPENSE OF THE ONLY COMMERCIAL PRODUCER INTERESTED ENOUGH TO OFFER A SOLUTION TO THE EXISTING SAFETY PROBLEM.

"AS REFERENCED IN PREVIOUS CORRESPONDENCE, A PERFORMANCE SPECIFICATION BASED ON EXPERIENCE GAINED IN THE SERVICE TEST (OF THE HOWELL JET ENGINE HOT SELECTION ANALYZER) COULD BE PREPARED WITHIN A REASONABLE PERIOD OF TIME. HOWEVER, THE MERE EXISTENCE OF SUCH A SPECIFICATION WITHIN A THIRTY TO SIXTY DAY PERIOD DOES NOT IN ITSELF PROVIDE HARDWARE. THE REAL TIME CONSUMING FACTORS ASSOCIATED WITH A COMPETITIVE PROCUREMENT, FOLLOWING AVAILABILITY OF A SUITABLE PERFORMANCE SPECIFICATION ARE:

A. PREPARATION OF A "BID PACKAGE" BY THE PROCURING ACTIVITY.

B. FORMAL BID ADVERTISING.

C. EVALUATION OF BIDS (WITH ATTENDANT FCR).

D. CONTRACT AWARD AND CONTRACT NEGOTIATION.

E. DEVELOPMENT (NO EQUIPMENT/EQUIPMENT NOW AVAILABLE).

F. PRODUCTION TOOL UP AND HARDWARE LOAD TIME.

G. FIRST ARTICLE ACCEPTANCE.

H. FIRST ARTICLE TEST/EVALUATION.

I. RELIABILITY TESTING.

J. PRODUCTION RELEASE.

K. PRODUCTION DELIVERIES.

EXPERIENCE WITH PROGRAMS OF THIS NATURE VERIFY THAT AN 18 TO 24 MONTH PERIOD ELAPSES PRIOR TO COMPLETION OF ALL THE TASKS INVOLVED AND ACTUAL DELIVERY OF HARDWARE. THE HARDWARE THEN WOULD BE UNPROVEN IN THE OPERATION ENVIRONMENT AND WOULD UNDOUBTEDLY REQUIRE EXTENSIVE MODIFICATION FOR SUITABILITY, MAINTAINABILITY AND COMPATIBILITY.

"AS PREVIOUSLY STATED IN COMMENTS RELATIVE TO PARAGRAPH 12 AND 18, THE AIR FORCE DOES NOT DENY THAT A PERFORMANCE SPECIFICATION COULD BE PREPARED. THE OVERRIDING FACTOR IS THE TIME ELEMENT REQUIRED FOR COMPETITIVE PROCUREMENT AND EVENTUAL DELIVERY TO THE AIR FORCE. THE EXISTING ENGINE SAFETY OF FLIGHT PROBLEMS IN BOTH THE F102 AND F106 DO NOT PERMIT THE EXTRAVAGANCE OF THE 18 TO 24 MONTH PERIOD INVOLVED WITH A COMPETITIVE PROCUREMENT. SHOULD THE REQUIREMENT FOR THE ANALYZER BE PERMITTED TO SLIP ANY APPRECIABLE PERIOD OF TIME, THEN THAT REQUIREMENT COULD NOT BE JUSTIFIED ON A SAFETY OF FLIGHT BASIS AND THE REQUIREMENT WOULD REQUIRE FURTHER EVALUATION AND JUSTIFICATION.'

WE HAVE BEEN FURTHER INFORMED THAT ALTHOUGH CONSIDERATION WAS ORIGINALLY GIVEN TO NEGOTIATING THE PROCUREMENTS WITH HOWELL PURSUANT TO THE PROVISIONS OF 10 U.S.C. 2304 (A) (10), WHICH AUTHORIZES NEGOTIATION OF CONTRACTS "FOR PROPERTY OR SERVICES FOR WHICH IT IS IMPRACTICABLE TO OBTAIN COMPETITION," THE DETERMINATION AND FINDINGS ACTUALLY MADE AUTHORIZE THE NEGOTIATION PURSUANT TO THE AUTHORITY OF 10 U.S.C. 2304 (A) (2) AS SUPPLEMENTED BY ASPR 3-202.2, BECAUSE EXIGENCY, IN AS MUCH AS ASPR 3-210.3 PROVIDES THAT THE AUTHORITY PROVIDED BY 10 U.S.C. 2304 (A) (10) SHALL NOT BE USED WHEN NEGOTIATION IS AUTHORIZED BY ANY OTHER AUTHORITY SET FORTH IN THAT SECTION.

SECTION 2304 (A), TITLE 10, OF THE U.S.C. AUTHORIZES NEGOTIATION WHEN THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING. THE CONTRACTING OFFICER DETERMINED PURSUANT TO THE REGULATIONS PUBLISHED IN ASPR 3-202.2 AND 3-202.3 THAT THERE WAS AN URGENT NEED FOR THE EQUIPMENT THAT COULD NOT BE SATISFIED BY PROCUREMENT FROM ANY SOURCE OTHER THAN HOWELL INSTRUMENTS, INCORPORATED, WHICH FIRM IS STATED TO HAVE A NORMAL MANUFACTURING LEAD TIME OF 180 DAYS FOR THE ITEM. THE AIR FORCE REPORTS SHOW THAT RESPONSIBLE TECHNICAL PERSONNEL ADVISE THAT TO BRING OTHER EQUIPMENT, COMMERCIAL OR MILITARY, TO EQUAL CAPACITY AND THE SAME PROCUREMENT STATUS AS THE HOWELL EQUIPMENT WOULD TAKE FROM 18 TO 24 MONTHS AND THAT CONCLUSION IS CONCURRED IN BY ALL RESPONSIBLE OFFICIALS INVOLVED IN THE PROCUREMENT. EVEN IF YOU COULD, AS YOU CONTEND, PRODUCE AND EST EQUIVALENT INSTRUMENTS IN FOUR OR SIX MONTHS, WE CANNOT DISAGREE WITH THE AIR FORCE POSITION THAT ACTUAL USE UNDER OPERATIONAL CONDITIONS FOR A SUBSTANTIAL PERIOD OF TIME WOULD BE REQUIRED BEFORE UNRESTRICTED PURCHASING WOULD BE JUSTIFIED. THE ANALYZERS HAVE BEEN DESIGNATED AS SAFETY OF FLIGHT EQUIPMENT AND THE REPORT SHOWS THAT FAILURE TO RECEIVE THE EQUIPMENT AT THE EARLIEST PRACTICABLE DATE WILL RESULT IN UNNECESSARY JEOPARDY TO THE AIRCRAFT AND FLYING PERSONNEL AND SERIOUSLY DETRACT FROM THE AIRCRAFT PERFORMING THEIR ASSIGNED MISSIONS. CLEARLY, A LENGTHLY EXTENSION OF SUCH CONDITIONS IS NOT IN THE BEST INTEREST OF THE GOVERNMENT AND IN VIEW OF THE REPORTED CIRCUMSTANCES HERE INVOLVED, WE CANNOT CONCLUDE THAT THE DETERMINATION MADE BY THE CONTRACTING OFFICER THAT THE PUBLIC EXIGENCY DOES NOT PERMIT THE ADDITIONAL DELAY REQUIRED FOR COMPETITIVE PROCUREMENT OF THE EQUIPMENT IS UNREASONABLE.

ACCORDINGLY, WE FIND NO LEGAL BASIS TO QUESTION THE CONTEMPLATED ACTION OF THE PROCURING AGENCY IN THIS MATTER. IT IS NOTED IN THIS CONNECTION, HOWEVER, THAT THE SUBJECT PROCUREMENT INVOLVES A TOTAL OF ONLY 612 AIRCRAFT, AND THAT THE DEPARTMENT OF THE AIR FORCE HAS CONTRACTED FOR DATA FOR ENGINE ANALYZERS FOR ITS NEWER AIRCRAFT WHICH WILL BE USED AS A BASIS FOR COMPETING FUTURE PROCUREMENTS WHEN THAT DATA IS DETERMINED ADEQUATE FOR REPROCUREMENT PURPOSES.