B-154590, SEP. 14, 1964

B-154590: Sep 14, 1964

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YOUR PROTEST IS DIRECTED TO THE FACT THAT THESE VEHICLES MUST BE FURNISHED IN ACCORDANCE WITH SPECIFICATION MIL-T-27441A (USAF) WHICH INCORPORATES DRAWINGS OF THE FWD CORPORATION AS COVERED BY DRAWING INDEX 511616. IT IS FURTHER STATED THAT THE TRUCKS MUST BE MANUFACTURED TO THOUSANDS OF FWD SHOP DRAWINGS WITH PROCEDURES AND TECHNIQUES OF FWD. THAT ALTERNATE PARTS OR COMPONENTS OF EQUAL PERFORMANCE ARE NOT ALLOWED. ARE PLACED AT A COMPETITIVE DISADVANTAGE BY REASON OF THE RESTRICTIVE SPECIFICATIONS. IT IS REQUESTED THAT THE INVITATION BE CANCELED AND THE PROCUREMENT READVERTISED WITH "OPEN" DESCRIPTIONS AND SPECIFICATIONS. THIS PROCUREMENT IS BEING ACCOMPLISHED THROUGH TWO-STEP FORMAL ADVERTISING PROCEDURES (ARMED SERVICES PROCUREMENT REGULATION 2-503).

B-154590, SEP. 14, 1964

TO AMERICAN LAFRANCE - AUTOMOTIVE:

BY LETTER DATED JUNE 29, 1964, WITH ENCLOSURE, AS SUPPLEMENTED BY YOUR LETTER OF AUGUST 28, 1964, YOU PROTESTED AGAINST THE SPECIFICATIONS IN INVITATION FOR BIDS NO. 09-603-64-609, ISSUED BY WARNER ROBINS AIR MATERIEL AREA, DEPARTMENT OF THE AIR FORCE, FOR 53 TYPE A/S32P-4 WATER AND FOAM FIRE FIGHTING TRUCKS, TOGETHER WITH CERTAIN DATA AND TESTING REQUIREMENTS.

YOUR PROTEST IS DIRECTED TO THE FACT THAT THESE VEHICLES MUST BE FURNISHED IN ACCORDANCE WITH SPECIFICATION MIL-T-27441A (USAF) WHICH INCORPORATES DRAWINGS OF THE FWD CORPORATION AS COVERED BY DRAWING INDEX 511616. IT IS FURTHER STATED THAT THE TRUCKS MUST BE MANUFACTURED TO THOUSANDS OF FWD SHOP DRAWINGS WITH PROCEDURES AND TECHNIQUES OF FWD; THAT ALL BIDDERS MUST COPY THE EQUIPMENT OF FWD OR PURCHASE PARTS FROM ITS WITH THE EXCEPTION OF THE AXLE AND TRANSFER ASSEMBLY; AND THAT ALTERNATE PARTS OR COMPONENTS OF EQUAL PERFORMANCE ARE NOT ALLOWED. YOU THEREFORE BELIEVE THAT ALL PROSPECTIVE BIDDERS, OTHER THAN FWD, ARE PLACED AT A COMPETITIVE DISADVANTAGE BY REASON OF THE RESTRICTIVE SPECIFICATIONS. IT IS REQUESTED THAT THE INVITATION BE CANCELED AND THE PROCUREMENT READVERTISED WITH "OPEN" DESCRIPTIONS AND SPECIFICATIONS.

THIS PROCUREMENT IS BEING ACCOMPLISHED THROUGH TWO-STEP FORMAL ADVERTISING PROCEDURES (ARMED SERVICES PROCUREMENT REGULATION 2-503). THE FIRST STEP, ISSUANCE OF LETTER REQUEST FOR TECHNICAL PROPOSAL NO. WR-4- 4210-7398, WAS MADE ON FEBRUARY 28, 1964. A PREBIDDING CONFERENCE WAS HELD ON MARCH 11, 1964, AT WHICH TIME ALL INTERESTED BIDDERS WERE GIVEN THE OPPORTUNITY TO SUBMIT QUESTIONS AND OBTAIN CLARIFICATIONS OF ANY OF THE AREAS OF THE PROCUREMENT. AFTER RECEIPT OF THE TECHNICAL PROPOSALS ON OR ABOUT MARCH 30, 1964, AND AFTER EVALUATION THEREOF, INVITATION NO. 09- 603-64-609 WAS ISSUED TO FOUR RESPONDING FIRMS, INCLUDING YOUR COMPANY, ON JUNE 22, 1964.

THE P-4 VEHICLE WAS DEVELOPED BY FWD UNDER A RESEARCH AND DEVELOPMENT CONTRACT, AND ONE P-4 WAS FABRICATED UNDER AN AIR FORCE CONTRACT AWARDED IN 1958. THE DRAWINGS COVERED BY DRAWING INDEX WERE PROCURED FROM FWD UNDER THIS CONTRACT. WE ARE ADVISED THAT THE P-4 VEHICLE WAS EXTENSIVELY AND SUCCESSFULLY TESTED, INCLUDING COSTLY MOBILITY TESTING. THIS TESTING IS REQUIRED AS A CONDITION TO BE MET PRIOR TO THE QUANTITY PROCUREMENT OF ANY NEW OR MODIFIED FIRE FIGHTING OF THE P-4 TYPE. SEE DOD INSTRUCTION 3224.2 DATED JUNE 17, 1963. THE DRAWINGS IN INDEX 511616 DO NOT INCLUDE MANUFACTURING DRAWINGS FOR CERTAIN PROPRIETARY ITEMS MAKING UP THE P-4. THESE PROPRIETARY ITEMS INCLUDE THE ENGINES, AXLES, WHEELS, HOSE NOZZLES AND OTHERS. THE SIGNIFICANT ITEMS OF THE P-4 ARE THE DRIVE TRAIN COMPONENTS CONSISTING OF THE WHEELS, ENGINES, AXLES, POWER DIVIDER, AND TRANSFER ASSEMBLY. THE AIR FORCE IS OF THE VIEW THAT THESE ARE SIGNIFICANT BECAUSE SUBSTITUTION FOR ANY PREVIOUSLY PROVED DRIVE TRAIN COMPONENT WILL NECESSITATE EXTENSIVE AND EXPENSIVE MOBILITY AND/OR FIRE FIGHTING TESTING, AND BECAUSE THE AXLES AND TRANSFER ASSEMBLY ARE AVAILABLE ONLY FROM FWD. WHILE THE TRANSFER ASSEMBLY IS NOT A PROPRIETARY FWD ITEM, FWD WILL NOT SELL ITS PROPRIETARY AXLES WITHOUT THE TRANSFER ASSEMBLY. WE UNDERSTAND THAT THIS IS NOT AN UNCOMMON INDUSTRY PRACTICE. HOWEVER, TO ENCOURAGE INDUSTRY PARTICIPATION IN THE PROCUREMENT, THE LETTER REQUEST WAS AMENDED TO PERMIT THE SUBMISSION OF ALTERNATE TECHNICAL PROPOSALS RELATIVE TO THE SUBSTITUTION OF SPECIFIED AXLES AND TRANSFER ASSEMBLY ONLY.

IN RESPONSE TO THE LETTER REQUEST, AS AMENDED, YOU SUBMITTED A BASIC PROPOSAL CONTEMPLATING THE USE OF THE FWD AXLES AND TRANSFER ASSEMBLY, AND AN ALTERNATE PROPOSAL CONTEMPLATING THE USE OF THE ROCKWELL STANDARD CORPORATION DRIVE TRAIN COMPONENTS. YOUR BASIC PROPOSAL WAS FOUND TO BE ACCEPTABLE BUT YOUR ALTERNATE WAS REJECTED FOR FAILURE TO FURNISH INFORMATION TENDING TO ESTABLISH THE COMPARABILITY OF THE ROCKWELL EQUIPMENT TO THE FWD EQUIPMENT. YOU WERE ADVISED OF THIS BY LETTER DATED JUNE 18, 1964, AS FOLLOWS:

"1. YOUR ALTERNATE PROPOSAL, WHICH CONTEMPLATED USE OF ROCKWELL STANDARD CORPORATION DRIVE TRAIN COMPONENTS, HAS BEEN DETERMINED TO BE UNACCEPTABLE. NO EVIDENCE WAS SUBMITTED TO INDICATE THAT THE PROPOSED MODIFIED TRANSFER CASE AND THE NEWLY DESIGNED DIFFERENTIAL LOCKS HAVE EVER BEEN INCORPORATED IN EITHER COMMERCIAL OR MILITARY VEHICLES OR THAT OPERATIONAL PERFORMANCE DATA EXIST ON WHICH TO BASE AN "EQUAL" ASSUMPTION. THIS INFORMATION WAS SPECIFICALLY REQUESTED BY OUR LETTER OF 18 MAY 64, AND AN ALLEGED "EQUAL" ITEM MUST BE SUPPORTED BY PERFORMANCE DATA AND NOT ON THE DRAWING CONCEPT ALONE.'

WITH SPECIFIC REFERENCE TO YOUR POINTS OF PROTEST, YOU ARE ADVISED AS FOLLOWS:

THE DRAWINGS COMPRISING INDEX 511616 ARE GOVERNMENT PROPERTY WHICH HAD BEEN PROCURED FROM FWD. TO THIS EXTENT, THEY ARE "FWD SHOP DRAWINGS.' TECHNICAL PERSONNEL HAVE REVIEWED THESE DRAWINGS AND HAVE CONCLUDED THAT COMPLIANCE THEREWITH DOES NOT REQUIRE PROCEDURES AND TECHNIQUES OTHER THAN THOSE WHICH ARE NORMAL WITHIN THE INDUSTRY, AND THAT THEY ARE ADEQUATE FOR TWO-STEP PROCUREMENT PURPOSES. THERE IS ALSO FOR CONSIDERATION THE FACT THAT THE PROTOTYPE P-4 VEHICLE COULD BE FURNISHED TO THE SUCCESSFUL BIDDER.

WHILE THE AXLES ARE PROPRIETARY TO FWD AND NO DETAILED OR MANUFACTURING DRAWINGS ARE AVAILABLE, SPECIFICATION MIL-T-27441A (USAF) CONTAINS INFORMATION RELATIVE TO THE PURPOSE AND PERFORMANCE REQUIREMENTS OF THE P- 4 VEHICLE. YOU, AS A QUALIFIED MANUFACTURER OF FIRE FIGHTING EQUIPMENT, SHOULD BE AWARE OF THE WEIGHT AND SIZE OF THE P-4 VEHICLE. IF YOU REQUIRED CLARIFICATION OR ADDITIONAL INFORMATION WITH RESPECT TO THE "EQUAL" REQUIREMENTS, THE PROCUREMENT AGENCY WOULD HAVE PROVIDED ASSISTANCE.

YOUR ALLEGATION THAT "BIDDERS DESIRING TO USE ALTERNATE COMPONENTS ARE REQUIRED TO ACCELERATE THEIR PREPRODUCTION MODEL DELIVERY SCHEDULE AND INCLUDE SUBSTANTIAL COSTS FOR CONDUCTING TESTS AT ABERDEEN PROVING GROUNDS" IS SOMEWHAT MISLEADING. UNDER THIS PROCUREMENT, CERTAIN REQUIRED TESTS MUST BE PERFORMED WHETHER OR NOT SUBSTITUTE COMPONENTS ARE USED. ABERDEEN TESTING IS REQUIRED IF SUBSTITUTE AXLES AND TRANSFER ASSEMBLY ARE USED. SEE AMENDMENT NO. 2 TO THE LETTER REQUEST (STEP NO. 1 OF THE PROCUREMENT). THE LETTER REQUEST PROVIDED A DELIVERY SCHEDULE TO OBTAIN AN APPROVED PREPRODUCTION SAMPLE WITHIN 300 DAYS AFTER AWARD. WHERE ABERDEEN TESTING IS NOT REQUIRED, 300 DAYS WOULD BE ALLOWED FOR COMPLETION OF TESTING. BUT WHERE ABERDEEN TESTING IS REQUIRED, 210 DAYS WOULD BE ALLOWED FOR COMPLETION OF ALL TESTING, EXCEPT ABERDEEN TESTING AND THE SUBMISSION OF THE VEHICLE TO ABERDEEN. THE COSTS THAT MAY BE INCIDENT TO SUCH ABERDEEN TESTING AND REFLECTED IN BID PRICES ARE ENTIRELY THE BIDDER'S RESPONSIBILITY IF SUCH BIDDER ELECTS TO BID ON THE BASIS OF "EQUAL" AXLES AND TRANSFER ASSEMBLY RATHER THAN THE SPECIFIED COMPONENTS.

IN B-151273 DATED JULY 5, 1963, WE CONSIDERED A PRIOR ADVERTISED PROCUREMENT OF THESE FIRE FIGHTING TRUCKS UNDER ALMOST IDENTICAL SPECIFICATIONS AND WE CONCLUDED THAT IT WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT TO OBJECT TO AN AWARD ON THE BASIS OF THE ADVERTISED RESTRICTIVE SPECIFICATIONS. IN THAT CASE, THE INVITATION SPECIFIED CERTAIN PROPRIETARY COMPONENTS OF THE TRUCK BY MANUFACTURER'S NAME (FWD) AND MODEL NUMBER. A PROTEST WAS MADE ON THE BASIS THAT THE PROPRIETARY COMPONENTS (AXLES) HAD TO BE PURCHASED FROM FWD, AND THAT FUND BY TYING THE SALE OF OTHER COMPONENTS TO THE SALE OF ITS AXLES AND QUOTING HIGH PRICES, HAD PREVENTED THE SUBMISSION OF COMPETITIVE BIDS. WE HELD, IN PERTINENT PART, THAT:

"THE AIR FORCE ADVISES US THAT THE NEED FOR MAINTENANCE AND FOR LOGISTIC SUPPORT ASSUMES INCREASED IMPORTANCE OVER THE SAME TYPE OF SUPPORT NEEDED FOR SNOWPLOWS. THE SIGNIFICANCE OF THIS DISPARITY IS APPARENT NOT ONLY FROM THE EMERGENCY NATURE OF THE NEED INTENDED TO BE SERVED BY THE FIRE FIGHTING TRUCKS, BUT ALSO FROM THE FACT THAT IN THE CASE OF SNOWPLOWS THE AIR FORCE AT LEAST ENJOYS A SUMMER RESPITE DURING WHICH THE VEHICLES MAY BE REHABILITATED, AND CAN THEREFORE AFFORD THE 30 DAYS WHICH ORDINARILY WILL ELAPSE BETWEEN THE REQUISITION AND THE DELIVERY OF MAJOR STANDARD SPARE PARTS FROM A GIVEN MANUFACTURER. IT CANNOT AFFORD THIS AMOUNT OF DOWN TIME FOR THE SUBJECT FIRE FIGHTING TRUCKS, AND IS REQUIRED TO KEEP CRITICAL SPARE PARTS AT EACH USING BASE FOR EMERGENCY EMPLOYMENT. THEREFORE, WE ARE ADVISED, EXPENDITURES IN THIS AND THE ONE PRIOR PROCUREMENT FOR SPARE PARTS WILL TOTAL ROUGHLY ONE MILLION DOLLARS. FOR EACH NEW SPARE PART, THE COST OF STOCK LISTING, TECHNICAL ORDERS AND STORAGE BINS WILL APPROXIMATE $1,000. IT THUS APPEARS THAT THE NEED FOR INTERCHANGEABILITY OF PARTS AND LOGISTIC SUPPORT FOR THESE FIRE FIGHTING TRUCKS IS OF SUCH CRITICAL SIGNIFICANCE AS TO JUSTIFY THE DEGREE OF RESTRICTION IMPOSED BY THE REQUIREMENT FORFWD AXLES ONLY. IT MAY ALSO BE OBSERVED THAT THE NEED FOR INTERCHANGEABILITY OF PARTS IS JUSTIFICATION FOR NEGOTIATION. SEE 10 U.S.C. 2304 (A) (13) AND ASPR 3 213.

"YOU OBJECT TO THE FACT THAT FWD HAS REFUSED TO SELL ITS AXLE TO PROSPECTIVE BIDDERS UNLESS ITS TRANSFER ASSEMBLY AND COLLECTOR GEAR BOX WERE ALSO PURCHASED. IT APPEARS THAT SEVERAL MANUFACTURERS, INCLUDING THE ONE ON WHOSE PRODUCE YOU WISHED TO BASE YOUR BID, TIE THE SALE OF THEIR TRANSFER ASSEMBLIES TO THE SALE OF THEIR AXLES. FWD HAS CARRIED THIS ARRANGEMENT ONE STEP FURTHER BY INCLUDING ITS GEAR BOX ASSEMBLY, ALLEGEDLY ON THE GROUNDS THAT BOTH ASSEMBLIES ARE SO INTRICATELY CONNECTED WITH ITS AXLES THAT IT COULD NOT GUARANTEE AND THEREFORE WOULD NOT SELL ITS AXLES WITHOUT THE ASSEMBLIES. THIS, OF COURSE, RAISES THE QUESTION WHETHER A BIDDER WHO IS THE SOLE SUPPLIER OF ONE OR MORE ITEMS, WHICH REPRESENT OVER 10 PERCENT OF THE COST OF THE PROCUREMENT, HAS BEEN AFFORDED AN OPPORTUNITY OF QUOTING PRICES WITHOUT FEAR OF REAL COMPETITION. IN VIEW OF WHAT WE HAVE ALREADY SAID, THE ANSWER TO BOTH THIS ISSUE AND THAT REGARDING THE ABSENCE OF AN "OR EQUAL" CLAUSE DEPENDS UPON WHETHER OR NOT THE RECORD CONTAINS AFFIRMATIVE EVIDENCE THAT THE PRICE SUBMITTED BY THE LOW BIDDER IS REASONABLE.'

THE DEVELOPMENT OF SPECIFICATIONS TO MEET THE NEEDS OF THE GOVERNMENT IS OBVIOUSLY A FUNCTION PRIMARILY OF THE ADMINISTRATIVE AGENCY CONCERNED. COMP. GEN. 554. HOWEVER, WE HAVE CONSISTENTLY TAKEN THE POSITION THAT ADVERTISED SPECIFICATIONS SHOULD BE STATED IN SUCH TERMS AS TO PERMIT THE BROADEST FIELD OF COMPETITION CONSISTENT WITH THE NEEDS OF THE AGENCY. COMP. GEN. 384. IT MUST BE RECOGNIZED THAT IN THE ORDINARY SITUATION THE PROCUREMENT OF SUPPLIES AND EQUIPMENT IS MERELY A TOOL FOR THE ACCOMPLISHMENT OF THE DUTIES AND RESPONSIBILITIES WITH WHICH THE AGENCIES OF THE GOVERNMENT ARE CHARGED. WHILE CONSISTENT WITH THE PRINCIPLES STATED ABOVE, AN AGENCY SHOULD, IN OUR VIEW, BE ALERT TO NEW DEVELOPMENTS AND NEW PRODUCTS WHICH WILL PERMIT THE CARRYING OUT OF THEIR FUNCTIONS MORE EFFICIENTLY OR ECONOMICALLY, THE PRIMARY OBJECTIVE OF ITS SPECIFICATIONS MUST BE TO MEET ITS ACTUAL NEEDS RATHER THAN TO INCREASE COMPETITION FOR THE FILLING OF THEM. 36 COMP. GEN. 610. THE DEPARTMENT OF THE AIR FORCE, WHICH IS PRIMARILY CONCERNED WITH ITS TACTICAL AND STRATEGIC MISSIONS, IS, AS A PRACTICAL PROPOSITION, LIMITED AS TO FUNDS AND TIME FOR THE TESTING OF NEW PRODUCTS WHICH MAY CONTRIBUTE TO A GREATER OR LESSER DEGREE TO THE ACHIEVEMENT OF ITS MISSIONS, AND WE MUST ACCEPT ITS DETERMINATIONS AS TO THE TYPES OF EQUIPMENT BEST SUITED TO ITS NEEDS IN THE ABSENCE OF CLEAR INDICATION THAT SUCH DETERMINATIONS ARE ARBITRARY OR CAPRICIOUS.

WE DO NOT BELIEVE IT TO BE EITHER PRACTICAL OR ADVISABLE TO REQUIRE THE AIR FORCE TO AGAIN ENDURE THE EXTENSIVE DELAY AND INCUR THE DUPLICATE COST FOR THE PROLONGED AND COSTLY TESTING NECESSARY TO ESTABLISH THAT EQUIVALENT COMPONENTS OF THE P-4 VEHICLE WILL SATISFY AIR FORCE REQUIREMENTS. ALSO, WE DO NOT BELIEVE THAT IT IS FEASIBLE FOR THE AIR FORCE TO CONTINUE DETERMINING WHETHER OTHER VEHICLES CAN BE DEVELOPED AND TESTED TO MEET AIR FORCE REQUIREMENTS FOR THIS VEHICLE. HOWEVER, WE ARE ADVISED BY THE AIR FORCE THAT IF ANY MANUFACTURER HAS A DESIRE TO CONDUCT AN APPROVED TESTING PROGRAM OF AN EXISTING COMPONENT, OR AN EXISTING VEHICLE, AT APPROVED FACILITIES AND AT NO COST TO THE GOVERNMENT, TO DEMONSTRATE THE CAPABILITY OF HIS PRODUCTS TO MEET ALL PERFORMANCE REQUIREMENTS FOR A VEHICLE OF THE SIZE AND TYPE OF THE P-4 VEHICLE, THE AIR FORCE WILL COOPERATE IN EVERY WAY POSSIBLE. UPON SATISFACTORY COMPLETION OF SUCH ATEST PROGRAM, THE SPECIFICATION WOULD THEN BE REWRITTEN IN SUCH A MANNER AS TO ALLOW CONSIDERATION OF SUCH PRODUCTS FOR PROCUREMENT.

ON THE BASIS OF THE RECORD BEFORE US, WE FIND NO BASIS TO QUESTION AN OTHERWISE PROPER AWARD UNDER THIS INVITATION.