B-155992, JUN. 1, 1965

B-155992, JUN. 1, 1965

TO THE RUCKER COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 22, 1965, PROTESTING AGAINST AWARD OF CONTRACT TO CARCO ELECTRONICS, UNDER REQUEST FOR PROPOSALS NO. 51988A, ISSUED BY THE U.S. NAVY PURCHASING OFFICE, LOS ANGELES, CALIFORNIA.

THE SUBJECT REQUEST FOR PROPOSALS, ISSUED ON OCTOBER 12, 1964, CALLED FOR PROPOSALS FOR THE PROCUREMENT OF A DYNAMIC TEST TABLE, CONFORMING TO SPECIFICATIONS, TO BE USED IN CONNECTION WITH ANTI RADIATION MISSILE (ARM I) SYSTEM DEVELOPMENT INVESTIGATION, ANALYSIS AND CONSULTATION. THE BACKGROUND OF THIS REQUEST FOR PROPOSALS INDICATES A HIGH PRIORITY ASSIGNMENT SO THAT THE ARM I PROJECT WOULD NOT BE DELAYED, SINCE FACILITIES, EQUIPMENT, AND PERSONNEL COULD NOT BE UTILIZED TO THE FULLEST EXTENT IF ANY DELAY WAS ENCOUNTERED. SINCE THE SPECIFICATIONS INVOLVED WERE NOT SUFFICIENTLY FIRM TO PERMIT ADVERTISING, A DETERMINATION AND FINDING UNDER THE EXCEPTION IN 10 U.S.C. 2304 (A) (10), AS IMPLEMENTED BY ASPR 3-210.2 (XIII), WAS ISSUED ON OCTOBER 5, 1964, AUTHORIZING NEGOTIATION OF THIS PROCUREMENT. IT IS ADMINISTRATIVELY REPORTED THAT REQUESTS FOR PROPOSALS WERE MAILED TO 26 SOURCES, EITHER KNOWN TO HAVE SOME EXPERIENCE IN THE GENERAL FIELD INVOLVED, OR WHO HAD REQUESTED THAT THEY BE SOLICITED AND HAD SUBMITTED SUFFICIENT EVIDENCE OF THEIR THEY BE SOLICITED AND HAD SUBMITTED SUFFICIENT EVIDENCE OF THEIR TECHNICAL CAPABILITIES TO MERIT CONSIDERATION AS POSSIBLE CONTRACTORS. THE REQUEST FOR PROPOSALS PROVIDED FOR THE SUBMISSION OF PROPOSALS BY NOVEMBER 16, 1964, AND, SINCE THE DELIVERY REQUIREMENT WAS CRITICAL, THE REQUEST FOR PROPOSALS STIPULATED THAT "DELIVERY AND COMPLETE INSTALLATION OF THE TEST TABLE AT NOL WITHIN A PERIOD OF NOT MORE THAN FOUR (4) MONTHS FROM DATE OF CONTRACT IS REQUIRED.'

THE TWO PROPOSALS RECEIVED WERE AS FOLLOWS:

CHART

THE RUCKER COMPANY - $65,683

CARCO ELECTRONICS - 98,770

YOUR COMPANY'S PRICE INCLUDED PROVISIONS FOR PROGRESS PAYMENTS, AND YOU SUBSEQUENTLY ADVISED THAT WITHOUT PROGRESS PAYMENTS, YOUR PRICE WOULD BE $69,624, AN INCREASE OF APPROXIMATELY SIX PERCENT. BOTH YOUR PROPOSAL AND CARCO'S PROPOSAL WERE SUBMITTED TO THE NAVAL ORDNANCE LABORATORY, CORONA (NOLC) FOR TECHNICAL EVALUATION ON NOVEMBER 17, 1964, AND SUBSEQUENTLY NOLC EXPRESSED CONCERN OVER THE POSSIBILITY OF YOUR COMPANY PRODUCING, DELIVERING, INSTALLING AND CHECKING OUT A TECHNICALLY RELIABLE TEST TABLE IN ACCORDANCE WITH THE PROJECTED REQUIREMENTS WITHIN THE CRITICAL TIME SCHEDULE AND REQUESTED THAT IMMEDIATE MEETINGS BE HELD WITH YOUR REPRESENTATIVES AND TECHNICAL PERSONNEL OF NOLC BEFORE REACHING A DECISION. AFTER SUCH MEETINGS AND A THOROUGH STUDY OF ALL FACTORS INVOLVED, THE CONTRACTING OFFICER DECIDED THAT IT WAS NOT IN THE BEST INTEREST OF THE GOVERNMENT TO IMPERIL THE CRITICAL SCHEDULE OF THIS DEFENSE PROJECT OR ENDANGER THE INVESTMENT OF TIME AND MONEY ALREADY EXPENDED IN PROSECUTING THE DEVELOPMENT OF THIS MISSILE BY MAKING AN AWARD TO YOUR COMPANY. ACCORDINGLY, AWARD OF CONTRACT FOR THE REQUIRED TEST TABLE WAS MADE TO CARCO ELECTRONICS ON JANUARY 18, 1965.

THE ESSENCE OF YOUR PROTEST REVOLVES AROUND THE ISSUE OF CRITICAL DELIVERY TIME REQUIREMENTS OF THIS PROCUREMENT. TO THIS END YOU CONTEND THAT YOU COULD MEET THE CRITICAL TIME REQUIREMENTS FOR DELIVERY, AND THAT SUCH WOULD BE ASSURED BY YOUR WILLINGNESS TO USE PREMIUM FREIGHT METHODS, OVERTIME LABOR AND ENGINEERING WHERE NECESSARY, AND FULL TIME EXPEDITING WHERE NECESSARY ON VENDORS AND SUBCONTRACTORS. YOU ALSO CONTEND THAT YOU ARE A CONSIDERABLY LARGER FIRM THAN THE SUCCESSFUL CONTRACTOR WHICH ALLOWS YOU TO PLACE ASSIGNED PERSONNEL ON THE PROGRAM IMMEDIATELY WHO ARE QUALIFIED TO PROCESS THE NECESSARY ELEMENTS OF THIS CONTRACT IN THE MOST EXPEDITIOUS MANNER. IN VIEW OF THE FOREGOING, YOU URGE THAT AWARD OF CONTRACT SHOULD HAVE BEEN MADE TO YOU IN THIS PROCUREMENT.

THE REPORT FROM THE DEPARTMENT OF THE NAVY, SUBMITTED AT OUR REQUEST, SETS FORTH THE FOLLOWING IN RESPONSE TO THE POINTS RAISED IN YOUR PROTEST:

"10. THE DYNAMIC TEST TABLE REQUIRED BY NOLC IS A FLIGHT SIMULATOR. THE USE OF DYNAMIC MOTION EQUIPMENT TO SIMULATE ACTUAL HIGH PERFORMANCE MISSILE ROTATIONAL FLIGHT MOTIONS HAS UNDOUBTEDLY SAVED THE GOVERNMENT HUNDREDS OF MILLIONS OF DOLLARS IN THE SUCCESSFUL LABORATORY EVALUATION OF GUIDANCE AND CONTROL EQUIPMENT PREVIOUSLY DONE BY HIT-AND-MISS FLIGHT TESTS.

"11. THE MEETINGS WITH THE RUCKER COMPANY ON THE MORNING OF 12 JANUARY AND WITH CARCO ELECTRONICS LATER THAT AFTERNOON, GAVE RISE TO EXTREMELY SERIOUS DOUBTS IN THE MIND OF THE CONTRACTING OFFICER WITH RESPECT TO THE PROBABILITY OF RUCKER BEING ABLE TO MEET THE FUNCTIONAL AND DELIVERY-TIME REQUIREMENTS OF THE INSTANT PROCUREMENT. THIS IS NOT TO SAY THAT THE RUCKER COMPANY IS NOT CAPABLE OF SOLVING THE ENGINEERING PROBLEMS INVOLVED OR OF ULTIMATELY MANUFACTURING A TEST TABLE TO THE PRECISE SPECIFICATION REQUIREMENTS, BUT THAT THE CONTRACTING OFFICER COULD NOT FIND REASONABLE ASSURANCE THAT THESE FACTORS WOULD BE STRICTLY MET WITHIN THE LIMITS OF TIME AND FUNCTION AS REQUIRED BY NOLC.

"12. IT SEEMED FROM THE EVIDENCE DEVELOPED AT THE MEETINGS IN THIS OFFICE ON 12 JANUARY, THAT THE PRESENT STATE-OF-THE-ART IN 3-AXIS FLIGHT SIMULATORS EXISTS ONLY AT CARCO ELECTRONICS. THIS POSITION IN THE INDUSTRY APPEARS TO BE THE RESULT OF ACTUAL ENGINEERING EXPERIENCE IN PRODUCING 25 SUCCESSFUL HIGH-PERFORMANCE 3-AXIS SIMULATORS DURING THE PAST 10 YEARS BY THE ENGINEERING TEAM AT THAT COMPANY.

"13. THE MAGNITUDE OF SOME OF THE PROBLEMS ENCOUNTERED WHICH HAVE BEEN RESOLVED BY CARCO BUT WERE STILL TO BE OVERCOME BY THE RUCKER COMPANY MAY BE GLEANED FROM THE SPECIFICATIONS. FOR EXAMPLE, THE NOL REQUIREMENT FOR A REASONABLY LARGE INERTIAL LOAD MAY BE SEEN TO BE:

TABLE

LOAD 0.4 SLUG FT-SQUARED

DISPLACEMENT PLUS OR MINUS 120 DEGREE

MAX. RATE, EXCEEDS 700 DEGREE/SEC

MIN. RATE, LESS THAN 0.0004 DEGREE/SEC

MAX. ACCELERATION, EXCEEDS 50,000 DEGREE/SEC/SEC

RATIO MAX. TO MIN. RATE 1,750,000/1

"FROM A TECHNICAL STANDPOINT THE SERVO DYNAMIC SMOOTH RATE RANGE OF 1,750,000/1 WITH ACCELERATION OF 50,000 DEGREE/SEC/SEC - AND RESULTING FREQUENCY RESPONSES - OF A 3-AXIS SYSTEM CONTAINING NO ELEMENTS WITH UNDESIRABLE MECHANICAL RESONANCES, NO LOW AMPLITUDE LIMIT CYCLING, AND NO CROSS COUPLING BETWEEN AXES, IS NOT SUSCEPTIBLE TO MATHEMATICAL CALCULATION OR RESOLUTION BY ANY CLASSICAL METHOD. ACCORDING TO THE INFORMATION AVAILABLE TO THE CONTRACTING OFFICER, THESE PROBLEMS WERE WORKED OUT BY CARCO OVER THE YEARS BY EMPIRICAL METHODS.

"14. THERE ARE A NUMBER OF EQUIPMENTS WITH GIMBAL SYSTEMS WHICH, TO A LIMITED EXTENT, RESEMBLE HIGH-PERFORMANCE FLIGHT SIMULATORS. GIMBALS IN INERTIAL GUIDANCE PLATFORMS ARE DESIGNED TO STAND STILL, NOT MOVE. ANTENNA TRACKING DEVICES, GIMBALED CAMERA TRACKING DEVICES WOULD BE COMPARABLE TO VERY LOW-PERFORMANCE FLIGHT SIMULATORS, OF WHICH THERE ARE MANY PRODUCERS. THESE DEVICES AT BEST HAVE ONLY ONE OR TWO CYCLES OF SERVO FREQUENCY RESPONSE AND PROBABLY 1/100 OR LESS IN DYNAMIC RANGE. HIGH-PERFORMANCE 3-AXIS FLIGHT SIMULATOR MUST HAVE A FREQUENCY RESPONSE CONSIDERABLY GREATER THAN THE MISSILE IT IS SIMULATING SO THAT ONLY LOW PHASE SHIFTS OCCUR IN THE ACTUAL SIMULATION FREQUENCIES.

"15. IT WAS APPARENT FROM THE DISCUSSION WITH RUCKER IN THIS OFFICE ON 12 JANUARY 1965, THAT THAT COMPANY HAD NOT YET ACTUALLY COMPLETED SOLUTION OF SOME OF THESE TECHNICAL PROBLEMS ALTHOUGH THE REPRESENTATIVES OF THAT COMPANY INDICATED THAT THEY COULD DO SO. SPECIFICALLY, IT WAS STATED THAT A RUCKER ENGINEER, THEN IN HOUSTON, TEXAS, HAD DESIGNED AND BUILT IDENTICAL EQUIPMENT. BUT IT WAS NOT ALTOGETHER CLEAR THAT THAT INDIVIDUAL, WHO WAS APPARENTLY COMMITTED TO THE HUMAN CENTRIFUGE PROGRAM IN HOUSTON, COULD BE FREED FOR ASSIGNMENT TO THIS PROCUREMENT IN TIME TO MEET THE ACTIVITY'S SCHEDULE.

"16. THE DISCUSSION WITH RUCKER DID NOT DISCLOSE ANY FIRM COMMITMENTS BY PROPOSED SUBCONTRACTORS OF TIMELY OR ACCEPTABLE DELIVERY OF INDICATED SUBCONTRACTOR COMPONENTS TO BE INCLUDED IN THE RUCKER DESIGN. THERE WAS EVIDENCE, LATER DEVELOPED, THAT CARCO USED SOME OF THE SAME COMPONENT ITEMS FROM THE SAME SUBCONTRACTORS OR SUPPLIERS AND THAT THE EXPERIENCE OF THAT COMPANY DEMONSTRATED LONGER DELIVERY TIMES THAN ESTIMATED BY RUCKER.

"17. ON THE BASIS OF THE INFORMATION DEVELOPED IN THE DISCUSSION OF 12 JANUARY, THE CONTRACTING OFFICER CONCLUDED THAT EVEN CARCO, WITH ALL ITS PROBLEMS SOLVED AND WITH ITS YEARS OF EXPERIENCE IN PRODUCING THE REQUIRED TEST TABLE, COULD NOT WITH COMPLETE ASSURANCE DELIVER THE REQUIRED EQUIPMENT IN 4 MONTHS WITHOUT PREMIUM TIME IF IT STARTED FROM SCRATCH. CARCO WAS ABLE TO GUARANTEE A SHORTER DELIVERY TIME BECAUSE IT HAD A UNIT IN PRODUCTION AT THE TIME AND COULD IMMEDIATELY APPROPRIATE IT TO THE PROPOSED CONTRACT.

"18. IT IS THE CONTRACTING OFFICER'S OPINION THAT, ALL FACTORS CONSIDERED, THIS PROCUREMENT PERHAPS SHOULD HAVE BEEN MADE ON A SOLE SOURCE BASIS. HOWEVER, IT HAD ORIGINALLY BEEN DECIDED TO SEEK COMPETITION UNDER THE BELIEF THAT SOME OF THE REPUTABLE COMPANIES WHICH HAD BEEN ENGAGED IN TACKLING THE PROBLEMS INVOLVED WITH RESPECT TO THIS TYPE OF TEST TABLE MIGHT HAVE ALREADY SOLVED THESE PROBLEMS. NOLC, ITSELF, HAD AT ONE TIME DESIGNED AND BUILT A TEST TABLE OF RELATED DESIGN BUT WITH MUCH LOWER FREQUENCY RESPONSES. THE ACTIVITY, THEREFORE, WAS WELL AWARE OF THE NATURE OF THE TECHNICAL PROBLEMS ENCOUNTERED AND OF THE DIFFICULTIES IN RESOLVING THEM. IT WAS FOR THIS REASON THAT THE REQUIRING ACTIVITY INSISTED UPON VERY CONVINCING ASSURANCE THAT THE LOW OFFEROR COULD MEET THE STRINGENT REQUIREMENTS OF THIS PROCUREMENT.'

IN CONNECTION WITH THE FOREGOING ADMINISTRATIVE REPORT, IT IS TO BE NOTED THAT MR. F. D. GIAMBATTISTA, WHO REPRESENTED YOUR COMPANY BEFORE OUR OFFICE ON THIS PROTEST, REQUESTED AND WAS GIVEN THE OPPORTUNITY TO PRESENT ANY EVIDENCE YOUR COMPANY DESIRED TO REBUT THE ADMINISTRATIVE REPORTS. DATE, NO SUCH EVIDENCE HAS BEEN RECEIVED BY OUR OFFICE, AND WE NECESSARILY MUST BASE OUR DECISION ON THE RECORD BEFORE US AT THIS TIME.

IT HAS BEEN HELD CONSISTENTLY THAT EVEN UNDER STATUTES REQUIRING PROCUREMENT BY FORMAL ADVERTISING, AND AWARD TO THE RESPONSIBLE BIDDER SUBMITTING THE LOW, RESPONSIVE BID, THE DETERMINATION OF RESPONSIBILITY INCLUDES CONSIDERATION OF THE BIDDER'S FINANCIAL RESOURCES, HIS JUDGMENT, SKILL AND INTEGRITY AND HIS ABILITY TO SUCCESSFULLY CARRY OUT THE CONTRACT. OSBORN V. MITTEN, 6 P.2D 902; WILLIS V. HATHAWAY, 117 SO. 89, 94; INGE V. BOARD OF PUBLIC WORKS, 33 SO. 678, 681; STATE V. RICKARDS, 40 P. 210; 26 COMP. GEN. 676; 30 ID. 235. THE DETERMINATION OF RESPONSIBILITY OF A GIVEN BIDDER (INCLUDING HIS ABILITY TO MAKE DELIVERY WITHIN A CRITICAL TIME PERIOD) IS PRIMARILY A FUNCTION OF THE ADMINISTRATIVE OFFICER CONCERNED AND IS NOT SUBJECT TO QUESTION IN THE ABSENCE OF A SHOWING OF BAD FAITH OR LACK OF REASONABLE FACTUAL BASIS FOR THE DETERMINATION. 37 COMP. GEN. 430, 435; ID. 798.

THE PROCUREMENT IN THIS CASE WAS NOT MADE UNDER FORMAL ADVERTISING PROCEDURES, BUT UNDER STATUTORY AUTHORITY PERMITTING NEGOTIATION, UNDER WHICH THE PROCURING AGENCY IS VESTED WITH A CONSIDERABLY BROADER RANGE OF DISCRETION. WE FIND NOTHING IN THE RECORD IN THIS CASE TO SUPPORT A CONCLUSION THAT THE DETERMINATION MADE BY THE DEPARTMENT OF THE NAVY WAS INFLUENCED BY ANY IMPROPER CONSIDERATIONS OR LACKED A REASONABLE FACTUAL BASIS. IN VIEW THEREOF, WE SEE NO LEGAL BASIS FOR OBJECTING TO AWARD OF THE CONTRACT TO CARCO ELECTRONICS, AND YOUR PROTEST IS THEREFORE DENIED.