B-155227, OCT. 27, 1965

B-155227: Oct 27, 1965

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PRESIDENT: REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 18. NUMBER 1660-856-4509 WAS A FEDERAL STOCK NUMBER DESIGNATING AIRBORNE RESEARCH AND DEVELOPMENT CORP. THE REQUEST FOR PROPOSALS WAS PREPARED FROM A PURCHASE REQUEST WHICH HAD SPECIFIED THE AIRBORNE RESEARCH PART. TO DETERMINE WHETHER THE ESSEX VALVE WAS INTERCHANGEABLE WITH THE AIRBORNE RESEARCH VALVE AND WHETHER IT WAS ACCEPTABLE. SEMES IS THE AIR FORCE QUALIFYING ACTIVITY FOR OXYGEN EQUIPMENT. SEMES ADVISED THE CONTRACTING OFFICER THAT THE ESSEX VALVE WAS PHYSICALLY INTERCHANGEABLE WITH THE VALVE IN LOCKHEED DRAWING 695895-5 AND WOULD BE CONSIDERED ACCEPTABLE AS LONG AS IT MET THE PERFORMANCE REQUIREMENTS OF MILITARY SPECIFICATION MIL-V-5027B.

B-155227, OCT. 27, 1965

TO MR. RICHARD H. HAHN, PRESIDENT:

REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 18, 1964, AND FEBRUARY 17, 1965, REGARDING YOUR PROTEST WITH RESPECT TO REQUEST FOR PROPOSALS RFP OCPDSB-4733 ISSUED BY THE OKLAHOMA CITY AIR MATERIAL AREA (OCAMA), TINKER AIR FORCE BASE, OKLAHOMA.

THE SUBJECT REQUEST FOR PROPOSALS SOLICITED OFFERS FOR FURNISHING TO THE AIR FORCE 743 NUMBER 1660-856-4509 HIGH PRESSURE OXYGEN SYSTEM VALVES. NUMBER 1660-856-4509 WAS A FEDERAL STOCK NUMBER DESIGNATING AIRBORNE RESEARCH AND DEVELOPMENT CORP. PART NUMBER 6025-5.

THE REQUEST FOR PROPOSALS WAS PREPARED FROM A PURCHASE REQUEST WHICH HAD SPECIFIED THE AIRBORNE RESEARCH PART. HOWEVER, IN AN EFFORT TO DEVELOP A SECOND SOURCE FOR THE ARTICLE, IN ADDITION TO SOLICITING AIRBORNE RESEARCH, PROCUREMENT PERSONNEL ISSUED A REQUEST FOR PROPOSALS TO ESSEX CRYOGENICS, INC., AT THE SUGGESTION OF THE CONTRACTING OFFICER WHO HAS STATED THAT HE RECOMMENDED SUCH ACTION BECAUSE HE KNEW THAT ESSEX HAD PURCHASED LINDE OXYGEN COMPANY TOGETHER WITH ITS TOOLING AND PARTS.

ESSEX OFFERED AN ESSEX VALVE AT MORE THAN HALF THE PRICE QUOTED BY AIRBORNE RESEARCH. THE CONTRACTING OFFICER REQUESTED TECHNICAL PERSONNEL AT THE AIR FORCE SYSTEMS COMMAND (SEMES), WRIGHT-PATTERSON AIR FORCE BASE, OHIO, TO DETERMINE WHETHER THE ESSEX VALVE WAS INTERCHANGEABLE WITH THE AIRBORNE RESEARCH VALVE AND WHETHER IT WAS ACCEPTABLE. SEMES IS THE AIR FORCE QUALIFYING ACTIVITY FOR OXYGEN EQUIPMENT. SEMES ADVISED THE CONTRACTING OFFICER THAT THE ESSEX VALVE WAS PHYSICALLY INTERCHANGEABLE WITH THE VALVE IN LOCKHEED DRAWING 695895-5 AND WOULD BE CONSIDERED ACCEPTABLE AS LONG AS IT MET THE PERFORMANCE REQUIREMENTS OF MILITARY SPECIFICATION MIL-V-5027B. DRAWING 695895-5 LISTS FIVE VALVES WHICH HAVE RECEIVED VARIOUS LEVELS OF APPROVAL FROM LOCKHEED. THE SYMBOL -5 FOLLOWING 695875 DESIGNATES AIRBORNE RESEARCH PART NUMBER 6025-5.

ESSEX CERTIFIED THAT THE VALVES WOULD MEET THE PERFORMANCE REQUIREMENTS OF THE MILITARY SPECIFICATION AND AN AWARD WAS MADE TO IT FOR THOSE ARTICLES.

YOU HAVE PROTESTED THE AWARD TO ESSEX ON THE BASIS THAT ESSEX RECEIVED PREFERENTIAL TREATMENT FROM OCAMA IN THAT AN ADDITIONAL MANUFACTURER, ROYLYN, INC., LISTED IN LOCKHEED DRAWING 695895 WAS NOT SOLICITED, AND BECAUSE OCAMA ALLEGEDLY ASSISTED ESSEX BY FURNISHING IT A PROPRIETARY DRAWING PREVIOUSLY FURNISHED TO OCAMA ON A LIMITED BASIS BY AIRBORNE RESEARCH. FURTHER, YOU STATE THAT THE ESSEX VALVE DOES NOT CONTAIN THE "YELLOW DOT" MODIFICATION WHICH IS A PART OF YOUR PRODUCT AND YOU CONTEND THAT THE ESSEX VALVE WILL BE A FIRE HAZARD WITHOUT IT.

WITH RESPECT TO THE FAILURE TO SOLICIT ROYLYN FOR A PROPOSAL ON THE PROCUREMENT, THE CONTRACTING OFFICER HAS STATED THAT IT WAS NOT A KNOWN SOURCE AT THE TIME THE REQUEST FOR PROPOSALS WAS ISSUED. ALTHOUGH THE COMPANY IS LISTED ON THE LOCKHEED DRAWING, APPARENTLY PROCUREMENT PERSONNEL AT OCAMA DID NOT HAVE THE DRAWING IN THEIR POSSESSION WHEN THE REQUEST FOR PROPOSALS WAS RELEASED AND DID NOT KNOW WHAT INFORMATION WAS CONTAINED IN THE DRAWING.

AS TO YOUR CONTENTION THAT YOUR PROPRIETARY DRAWING WAS TURNED OVER TO ESSEX TO ASSIST IT IN PREPARING A PROPOSAL, PERSONNEL AT OCAMA CANNOT ESTABLISH WHAT DISPOSITION WAS MADE OF THE DRAWING INVOLVED BUT DENY HAVING FURNISHED IT TO ESSEX. IN OUR INVESTIGATION OF THE CASE, TWO EMPLOYEES INTERVIEWED AT LOCKHEED STATED THAT THEY HAD TELEPHONE CONVERSATIONS WITH A REPRESENTATIVE OF ESSEX WHO TOLD THEM THAT ESSEX HAD OBTAINED A COPY OF THE DRAWING FOR PART 6025-5 FROM OCAMA. THE INDIVIDUAL AT ESSEX WHO WAS SUPPOSED TO HAVE MADE THE STATEMENTS WAS INTERVIEWED AND HE DENIED THAT ESSEX EVER HAD THE DRAWING AND THAT HE HAD EVER MADE A STATEMENT TO THAT EFFECT.

WHILE THE ABSENCE OF YOUR DRAWING FROM AIR FORCE RECORDS IS UNEXPLAINED, INASMUCH AS THE LOCKHEED EMPLOYEES DO NOT KNOW FOR A FACT THAT THE AIR FORCE GAVE YOUR DRAWING TO ESSEX AND SINCE BOTH AIR FORCE AND ESSEX PERSONNEL HAVE DENIED YOUR ALLEGATION IN THAT RESPECT, WE CANNOT CONCLUDE THAT THE EVIDENCE ESTABLISHES THAT THE DRAWING WAS DISPOSED OF IN THE MANNER YOU SUGGEST.

WITH REGARD TO THE "YELLOW DOT" MODIFICATION, OCAMA HAS ADVISED THAT ALL KNOWN PERSONS HAVING TO DO WITH THE TECHNICAL ASPECTS OF THE VALVE HAVE BEEN CONTACTED AND NO INFORMATION IS AVAILABLE TO ANY ONE OF THEM AS TO WHAT CHANGE WAS MADE IN THE VALVE TO OCCASION THE "YELLOW DOT.' IN ANY EVENT, IT APPEARS THAT TECHNICAL PERSONNEL HAVE DECIDED THAT AS LONG AS THE ESSEX VALVE MEETS THE PERFORMANCE SPECIFICATIONS OF THE CITED MILITARY SPECIFICATION THAT WILL BE SATISFACTORY. MOREOVER, OCAMA VALVE TECHNICIANS HAVE STATED THAT THE AIR FORCE HAS NOT EXPERIENCED ANY DIFFICULTIES WITH THE ESSEX VALVE.

WE BELIEVE THAT THE RECORD REVEALS SOME WEAKNESS IN THE MANNER IN WHICH THE PROCUREMENT WAS ACCOMPLISHED. WHILE IT IS COMMENDABLE THAT OCAMA SOUGHT TO MAKE A COMPETITIVE PROCUREMENT OUT OF WHAT MIGHT OTHERWISE HAVE BEEN A SOLE-SOURCE SITUATION, IT DOES NOT APPEAR THAT BEFORE DOING SO IT CONTACTED TECHNICAL PERSONNEL TO ASCERTAIN IF THERE WERE SOURCES OTHER THAN AIRBORNE RESEARCH THAT MIGHT BE AVAILABLE. HAD THIS BEEN DONE, IT SEEMS POSSIBLE THAT OCAMA MIGHT HAVE LEARNED OF THE EXISTENCE OF ROYLYN. ADDITIONALLY, IN SPECIFYING IN THE REQUEST FOR PROPOSALS AN AIRBORNE RESEARCH PART NUMBER, OCAMA PLACED AIRBORNE IN THE POSITION OF HAVING TO OFFER A QUOTATION ON A SPECIFIC PART WHEREAS A PURCHASE DESCRIPTION EMPLOYING THE GOVERNMENT'S MINIMUM NEEDS IN TERMS OF MILITARY SPECIFICATIONS AND OUTLINE SKETCHES APPARENTLY WOULD HAVE BEEN ADEQUATE FOR THE PROCUREMENT. IN ADDITION, THE CASE DEMONSTRATES THE NEED FOR AN IMPROVEMENT IN THE METHOD OF ACCOUNTING FOR PROPRIETARY DATA FURNISHED TO THE GOVERNMENT FOR LIMITED PURPOSES.

THESE MATTERS ARE BEING BROUGHT TO THE ATTENTION OF THE SECRETARY OF THE AIR FORCE WITH A RECOMMENDATION THAT APPROPRIATE CORRECTIVE ACTION BE TAKEN. WE DO NOT BELIEVE THAT ANY OTHER ACTION IS APPROPRIATE OR REQUIRED BY OUR OFFICE IN THIS CASE.