B-156025, MAY 4, 1965

B-156025: May 4, 1965

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TO SPERRY GYROSCOPE COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 26. THE RADAR SET IS USED ON THE C -141 AIRCRAFT AND SOMEWHAT SIMILAR SETS ARE USED ON THE C-130 AND C-135 AIRCRAFT. THIS DIFFERENCE INVOLVES THE QUALIFICATION TESTING WHICH IS REQUIRED FOR EACH OF THE TWO SYSTEMS. 5 ADDITIONAL BOXES ARE ADDED TO THE 9 COMPRISING THE C-130/135 SYSTEM. WHILE YOUR FIRM AND BE LOCK WERE BOTH QUALIFIED TO SUPPLY THE C 130/135 SYSTEM. A PROVISION WAS INCLUDED IN THE RFP FOR SUPPLIERS TO QUOTE PRICES ON THE BASIS OF DIFFERENT DELIVERY SCHEDULES. THE SCHEDULES WERE SET UP TO ALLOW BE LOCK ADDITIONAL TIME TO ACCOMPLISH THE ENTIRE SERIES OF FIRST ARTICLE TESTS . THAT IS. YOUR FIRM WAS REQUIRED TO MAKE CERTAIN PRODUCTION DELIVERIES IN 210 DAYS.

B-156025, MAY 4, 1965

TO SPERRY GYROSCOPE COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 26, 1965, AND TO YOUR SUPPLEMENTAL COMMUNICATIONS OF FEBRUARY 9, MARCH 10 AND MARCH 16, 1965, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD OF ANY CONTRACT UNDER REQUEST FOR PROPOSAL 33-657-65-5013 ISSUED NOVEMBER 6, 1964, BY THE AIR FORCE SYSTEMS COMMAND, AERONAUTICAL SYSTEMS DIVISION, WRIGHT PATTERSON AIR FORCE BASE, OHIO.

THE REQUEST FOR PROPOSAL CONCERNED A COMPETITIVE SOLICITATION FROM YOUR FIRM AND BE LOCK INSTRUMENT CORPORATION OF QUOTATIONS ON COMPONENTS OF 69 AN/APN-59B RADAR SETS WITH SPARE COMPONENTS (ITEMS 1 THROUGH 14) PLUS MISCELLANEOUS PARTS (ITEMS 15 THROUGH 19). THE RADAR SET IS USED ON THE C -141 AIRCRAFT AND SOMEWHAT SIMILAR SETS ARE USED ON THE C-130 AND C-135 AIRCRAFT. IN THEIR APPLICATION TO THESE AIRCRAFT THE SETS CONSIST OF A NUMBER OF BOXES COMPRISING A COMPLETE SYSTEM INSTALLATION. A DIFFERENCE SIGNIFICANT TO YOUR PROTEST EXISTS IN THE SYSTEM FOR THE C-130 AND C-135 AIRCRAFT AS COMPARED WITH THE C 141 AIRCRAFT SYSTEM. THIS DIFFERENCE INVOLVES THE QUALIFICATION TESTING WHICH IS REQUIRED FOR EACH OF THE TWO SYSTEMS. UNDER THE C 130/135 SYSTEM, 9 BOXES COMPRISE THE NECESSARY INTEGRAL UNIT TO BE TESTED FUNCTIONALLY AS A SYSTEM. UNDER THE C-141 SYSTEM, 5 ADDITIONAL BOXES ARE ADDED TO THE 9 COMPRISING THE C-130/135 SYSTEM.

WHILE YOUR FIRM AND BE LOCK WERE BOTH QUALIFIED TO SUPPLY THE C 130/135 SYSTEM, YOUR FIRM ALONE HAD BEEN QUALIFIED PRIOR TO THIS SOLICITATION TO DELIVER THE C-141 SYSTEM. BECAUSE OF THE NECESSARY TESTING PROCEDURES APPLICABLE TO FIRST ARTICLE APPROVAL OF THE C-141 SYSTEM AS SET FORTH IN PARAGRAPH 79 OF THE RFP AND THE FACT THAT BE LOCK HAD NOT QUALIFIED ON THE C-141 SYSTEM, A PROVISION WAS INCLUDED IN THE RFP FOR SUPPLIERS TO QUOTE PRICES ON THE BASIS OF DIFFERENT DELIVERY SCHEDULES, DEPENDING ON THE STATUS OF THEIR QUALIFICATION UNDER THE TERMS OF THE SOLICITATION FOR DELIVERY OF ITEMS APPLICABLE TO THE C-141 SYSTEM. THE SCHEDULES WERE SET UP TO ALLOW BE LOCK ADDITIONAL TIME TO ACCOMPLISH THE ENTIRE SERIES OF FIRST ARTICLE TESTS -- THAT IS, THE PARTICULAR TESTS FOR THE FIVE NEW BOXES AND THE ADDITIONAL TESTS ON THE ENTIRE SYSTEM OF 14 BOXES OPERATING AS A COMPLETE AND INTERLOCKING UNIT. BY VIRTUE OF PREVIOUSLY HAVING FIRST ARTICLE APPROVAL, YOUR FIRM WAS REQUIRED TO MAKE CERTAIN PRODUCTION DELIVERIES IN 210 DAYS. BE LOCK, BIDDING ON A FIRST ARTICLE REQUIRED BASIS, WAS ALLOWED AN ADDITIONAL 60 DAYS TO BEGIN AND COMPLETE THE DELIVERY SCHEDULE.

THE AIR FORCE REPORTS THAT RESPONSIBLE TECHNICIANS DETERMINED IT WAS ESSENTIAL THAT TESTS BE CONDUCTED ON A COMPLETE SYSTEM BASIS AS SPECIFIED, AND IT IS STATED THAT ANY ADVANTAGE ACCRUING TO BE LOCK UNDER THE DELIVERY ARRANGEMENT IS OFFSET BY YOUR FEWER COST CONTINGENCIES ARISING FROM ABSENCE OF FULL SYSTEM TESTNG AS REQUIRED OF BE LOCK AND YOUR COST ADVANTAGE GAINED THROUGH PAST PRODUCTION EXPERIENCE ON THE C-141 SYSTEM.

PROPOSALS WERE RECEIVED ON DECEMBER 8, 1964, AND BE LOCK'S PROPOSAL AT $4,247,778 WAS LOWER THAN THE PROPOSAL SUBMITTED BY YOUR FIRM. FACILITY CAPABILITY REPORT ACTION WAS THEN INITIATED TO DETERMINE THE CAPABILITY OF BE LOCK TO PERFORM. ON DECEMBER 30, 1964, YOUR FIRM SUBMITTED A REVISED PROPOSAL REDUCING ITS PRICE TO A FIGURE LOWER THAN THAT QUOTED IN BE LOCK'S PROPOSAL. SINCE YOUR FIRM WAS NOT THE "OTHERWISE SUCCESSFUL OFFEROR," CONSIDERATION OF YOUR PROPOSED REDUCTION WAS PROHIBITED BY THE PROVISIONS OF SECTION 3-505 OF THE ARMED SERVICES PROCUREMENT REGULATION AND PARAGRAPH 62 OF THE RFP PERTAINING TO LATE PROPOSALS AND MODIFICATIONS, AND IT WAS THEREFORE REJECTED.

THEREAFTER, BY LETTER TO THE CONTRACTING OFFICER DATED JANUARY 14, 1965, YOU PROTESTED AGAINST AN AWARD UNDER THE RFP FOR THE PRINCIPAL REASONS THAT (1) THE SOLICITATION IS AMBIGUOUS AND DISCRIMINATORY IN THE MANNER IN WHICH DIFFERENT DELIVERY SCHEDULES ARE REQUIRED; (2) INCONSISTENCIES EXIST BETWEEN EXHIBITS IN THE SOLICITATION AS REGARDS FIRST ARTICLE TESTING ON ARTICLES 15 THROUGH 19; AND (3) AMBIGUOUS PROVISIONS EXIST IN THE SOLICITATION WITH REGARD TO RELIABILITY TESTING. THE CONTRACTING OFFICER RESPONDED TO YOUR PROTEST BY LETTER OF JANUARY 26, 1965, IN WHICH YOUR PROTEST WAS DENIED. PRIOR TO RECEIPT OF SUCH LETTER YOUR PROTEST WAS LODGED WITH THIS OFFICE BY LETTER DATED JANUARY 26, 1965, WHICH SET FORTH THE SAME ALLEGATIONS, IN GENERAL, AS STATED ABOVE. SINCE THE ITEMS WERE URGENTLY NEEDED BY THE AIR FORCE, THE CONTRACTING OFFICER WAS AUTHORIZED BY HIGHER AUTHORITY TO PROCEED WITH THE PROCUREMENT IN ACCORDANCE WITH PERTINENT REGULATIONS AND THE CONTRACT WAS AWARDED TO BE LOCK INSTRUMENT COMPETITION ON MARCH 15, 1965.

YOUR ORIGINAL PROTEST HAS BEEN AMPLIFIED BY YOUR SUBSEQUENT COMMUNICATIONS TO THIS OFFICE AND YOUR PRESENT VIEWS APPEAR TO BE SET FORTH IN YOUR LETTER OF MARCH 16 AS FOLLOWS:

"1. SUBSEQUENT TO OUR FILING OF THE SUBJECT PROTEST WE HAVE CONTINUED TO RE-EXAMINE THE PROVISIONS OF THE RFP IN AN EFFORT TO INTERPRET THE AIR FORCE REQUIREMENTS WITH REFERENCE TO FIRST ARTICLE APPROVAL AND DELIVERY SCHEDULES, SPECIFICALLY IN THE LIGHT OF THE CONTRACTING OFFICER'S LETTER STATING THAT THE FIRST ARTICLES ARE REQUIRED ON A SYSTEM BASIS. WE HAVE RE-EXAMINED IN PARTICULAR EXHIBIT ASNLS 61-13A PARAGRAPHS 4.1.2.1 ON FAA TSO COMPLIANCE AND 4.1.2.2 ON SYSTEM COMPATIBILITY TEST.

"2. BASED ON OUR RE-EXAMINATION OF THE PROVISIONS OF THIS RFP AS OUTLINED IN MORE DETAIL BELOW WE REMAIN OF THE OPINION THAT WE HAVE PREVIOUSLY ASSERTED, NAMELY THAT THE FIRST ARTICLE APPROVAL REQUIREMENTS ARE SUBJECT TO DIFFERENT POSSIBLE INTERPRETATIONS WHICH HAVE NOT BEEN SATISFACTORILY RESOLVED TO DATE AND THAT THE DIFFERENCE IN DELIVERY SCHEDULES BETWEEN BID A AND BID B IS DISCRIMINATORY REGARDLESS OF THE MANNER IN WHICH THE AMBIGUOUS PROVISIONS FOR FIRST ARTICLE APPROVAL MAY BE RESOLVED. HOWEVER, IT MAY BE HELPFUL IN YOUR REVIEW OF OUR PROTEST TO HAVE OUR FURTHER COMMENT IN THIS REGARD.

"3. THE RFP DIFFERENTIATES BETWEEN BID A AND BID B OFFERORS ON THE BASIS OF WHETHER OR NOT THE OFFEROR HAD PREVIOUSLY FURNISHED AN ACCEPTED C-141 CONFIGURED SYSTEM. BE LOCK HAS NOT PREVIOUSLY FURNISHED SUCH A SYSTEM ALTHOUGH AS PART OF A DIFFERENT AN/APN-59 CONFIGURATION IT HAD PREVIOUSLY FURNISHED THE FIRST NINE OF THE FOURTEEN COMPONENTS COMPRISING THIS C-141 SYSTEM. SPERRY HAS FURNISHED A COMPLETE C-141 CONFIGURED SYSTEM UNDER A PRIOR PROCUREMENT.

"4. A REASONABLE INTERPRETATION OF THE INCLUSION OF THE BID A VERSUS BID B FEATURE IN THE RFP IS THAT BE LOCK IN THE EVENT OF A CONTRACT AWARD UNDER THIS RFP WOULD THEN HAVE TO QUALIFY AS FIRST ARTICLES THOSE COMPONENTS THAT ARE PECULIAR TO THE C-141 CONFIGURED SYSTEM AND WHICH BE LOCK HAD NOT THERETOFORE FURNISHED, I.E. ITEMS 10 THRU 14 INCLUSIVE. IS LOGICAL TO ASSUME THAT THIS QUALIFICATION WOULD BE CONDUCTED IN THE SAME MANNER AS WAS USED TO QUALIFY THE SAME COMPONENTS WHEN FIRST FURNISHED BY SPERRY AS PART OF THE THEN NEW C 141 CONFIGURATION.

"5. AS TO THE FIRST ARTICLE PREPRODUCTION TESTS REQUIRED BY PARAGRAPH 4.4 OF SPECIFICATION MIL-R-25527C, PARAGRAPH 79 OF THE RFP LIMITS THIS TESTING TO ITEMS 10 THRU 14 INCLUSIVE. HOWEVER, PARAGRAPH 4.4.1 OF MIL-R-25527C INVOKES THE TEST CONDITIONS SPECIFIED AND PARAGRAPH 4.4.1.1 REQUIRES THE USE OF THE PREPRODUCTION TEST PROCEDURES. THESE CONDITIONS AND PROCEDURES REQUIRE THAT WHEN SUBJECTING ITEMS 10 THRU 14 TO THESE TESTS IN PRACTICE THESE COMPONENTS MUST BE OPERATING AS PART OF A COMPLETE AS PART OF A COMPLETE SYSTEM, I.E. IN CONJUNCTION WITH THE REMAINING COMPONENTS OF THE SYSTEM REPRESENTED BY THE FIRST NINE ITEMS 1 THRU 9 INCLUSIVE. IT IS THEREFORE REASONABLE TO CONSTRUE THE REQUIREMENT OF THE "NOTE" AT THE BOTTOM OF PAGE 1 OF EXHIBIT A OF THE RFP AS CONSISTENT WITH THIS PRACTICE IN THAT IT STIPULATES A "SYSTEM" TYPE OF TEST BUT REFLECTS THE OMISSION OF ITEMS 1 THRU 9 INCLUSIVE FROM CERTAIN OF THE PREPRODUCTION TESTS NORMALLY REQUIRED SINCE THESE PARTICULAR ITEMS ARE COMMON TO OTHER SYSTEM CONFIGURATIONS AND HAVE PREVIOUSLY BEEN SUBJECT TO SUCH TESTS AS COMPONENTS OF THE OTHER CONFIGURATIONS.

"6. AS TO THE ADDITIONAL PREPRODUCTION TESTS REQUIRED BY PARAGRAPH 4.1.2. AND 4.1.2.2 OF EXHIBIT ASNLS 61-13A, THE SAME CONSTRUCTION OF A "SYSTEM" APPROACH APPEARS APPLICABLE, I.E. INASMUCH AS THE C-141 CONFIGURATION IS A NEW SYSTEM BY VIRTUE OF INCLUDING NEW ITEMS 10 THRU 14 INCLUSIVE, IT IS NECESSARY TO SUBJECT THESE NEW ITEMS TO THE TESTS REQUIRED FOR FAA CERTIFICATION AND TO THE LOCKHEED SYSTEM COMPATIBILITY TESTS WHEN OPERATING IN COMBINATION WITH THE OTHER NINE COMPONENTS REQUIRED TO COMPRISE A COMPLETE C-141 SYSTEM, BUT IT IS NOT REASONABLE TO CONSTRUE THESE PROVISIONS AS REQUIRING DUPLICATE QUALIFICATION AS "FIRST ARTICLES" OF THE NINE COMPONENTS THAT HAVE ALREADY BEEN TESTED AND APPROVED UNDER A PRIOR PROCUREMENT FOR A DIFFERENT CONFIGURATION THAN THE C-141.

"7. SPECIFICALLY WITH RESPECT TO THE REQUIREMENTS FOR FAA TSO COMPLIANCE CERTIFICATION, REFERENCE IS MADE TO THE PROVISIONS OF 14 CFR 514.2 (C) WHICH REQUIRES A MANUFACTURER TO SUBMIT NECESSARY DOCUMENTATION WITH HIS APPLICATION FOR TSO AUTHORIZATION. HOWEVER, IT IS NOTEWORTHY THAT THIS PROVISION PERMITS THE MANUFACTURER TO MAKE REFERENCE TO DATA ALREADY ON FILE WITH THE FAA (SEE APPENDIX A AND ACCOMPANYING FOOTNOTE IMMEDIATELY FOLLOWING 14 CFR 514.10). RESUBMITTAL OF THIS PRIOR DATE IS NOT MANDATORY UNDER THE FAA REGULATIONS. IT IS THEREFORE DIFFICULT TO INTERPRET THE STATEMENT OF THE "NOTE" ON PAGE 1 OF EXHIBIT A OF THE RFP (WHICH STATES IN PERTINENT PART THAT THE "SYSTEM" BASIS IS REQUIRED BY THE RULES AND REGULATIONS IMPOSED BY THE FAA) ON ANY BASIS OTHER THAN THAT OUTLINED IN PARAGRAPH 5 ABOVE.

"8. FURTHER, WITH REGARD TO THE LOCKHEED SYSTEM COMPATIBILITY TESTS REQUIRED BY PARAGRAPH 4.1.2.2 OF EXHIBIT ASNL S 61-13A, THE FOREGOING INTERPRETATION OF THE "SYSTEM" APPROACH IS SUPPORTED BY THE ACTUAL PROCEDURES BEING FOLLOWED BY LOCKHEED IN PERFORMING THESE TESTS IN ACCORDANCE WITH LOCKHEED DOCUMENT ER-6817 (INCORPORATED BY REFERENCE BY PARAGRAPH 4.1.2.2 OF EXHIBIT ASNLS 61-13A). WE UNDERSTAND THAT IN SUBJECTING THE NEW COMPONENTS OF THE C-141 CONFIGURATION (ITEMS 10 THRU 14) TO THESE SYSTEM COMPATIBILITY TESTS, LOCKHEED MUST NECESSARILY INTERCONNECT THESE FIVE NEW COMPONENTS WITH THE REMAINING NINE COMPONENTS TO COMPRISE AN ENTIRE SYSTEM, BUT THAT IN ACTUAL PRACTICE THIS IS DONE WITHOUT PARTICULAR REGARD TO THE SOURCE OF THESE OTHER NINE COMPONENTS. FOR EXAMPLE THESE NINE COMPONENTS MAY BE DRAWN DIRECTLY FROM LOCKHEED STORES AFTER HAVING BEEN DELIVERED AND ACCEPTED AS A SPARE COMPONENT OR AS PART OF A SYSTEM CONFIGURATION OTHER THAN THE C-141. IT DOES NOT APPEAR IN THIS SITUATION EITHER THAT THE "NOTE" REGARDING THE "SYSTEM" APPROACH SHOULD BE CONSTRUED TO REQUIRE A RETEST OF ITEMS 1 THRU 9, PER SE.

"9. NEVERTHELESS, WE RECOGNIZE THAT IT MAY BE POSSIBLE TO CONSTRUE THE PROVISIONS OF THE RFP TO RESULT IN A REVERSE CONCLUSION, I.E. THAT THE RFP REQUIRES A COMPLETE REQUALIFICATION OF ALL 14 ITEMS FURNISHED BY BE LOCK SIMPLY BECAUSE ITEMS 10 THRU 14 INCLUSIVE HAVE NOT HERETOFORE BEEN APPROVED. AS WE HAVE PREVIOUSLY STATED, THE RFP IS AMBIGUOUS ON THIS POINT AND THIS "ALL OR NOTHING" CONSTRUCTION CAN ONLY BE REACHED AS A RESULT OF THE AMBIGUOUS MANNER IN WHICH THESE REQUIREMENTS WERE INCLUDED IN THE RFP. THIS AMBIGUITY WAS NOT CLARIFIED BY THE STATEMENT OF THE CONTRACTING OFFICER'S JANUARY 26, 1965 LETTER THAT "THE FIRST ARTICLES REQUIRED OF BID A OFFERORS ARE ON A SYSTEM BASIS.' FURTHER CLARIFICATION IS REQUIRED.

"10. AS A FURTHER ILLUSTRATION OF THE AMBIGUITY OF THE FIRST ARTICLE REQUIREMENT OF THIS RFP NOTE ALSO THAT PARAGRAPH 79 OF THE RFP PROHIBITS DELIVERY OF "ANY OF THE REMAINING ARTICLES CALLED FOR HEREUNDER" PENDING APPROVAL OF THE FIRST ARTICLES. ALTHOUGH THE "REMAINING ARTICLES CALLED FOR HEREUNDER" OBVIOUSLY INCLUDE ITEMS 15 THRU 19 AS WELL AS THE BALANCE OF ITEMS 1 THRU 14, THE RFP DOES NOT REQUIRE FIRST ARTICLE APPROVAL FOR ITEMS 15 THRU 19. THERE SEEMS TO BE NO NEED TO HOLD UP DELIVERY OF ANY ITEMS EXCEPT THOSE NEW COMPONENTS REQUIRING FIRST ARTICLE APPROVAL, AND EXAMINATION OF THE DELIVERY SCHEDULE DISCLOSES THAT IN FACT DELIVERY OF ITEMS 15 THRU 19 MAY BE REQUIRED BEFORE FIRST ARTICLE APPROVAL IS GRANTED, I.E. THE RFP CAN BE CONSTRUED AS INCONSISTENT IN THAT DELIVERY OF ITEMS 15 THRU 19 IS REQUIRED (WITHIN 180 DAYS) BEFORE IT IS EVEN PERMITTED (FOLLOWING FIRST ARTICLE APPROVAL WHICH CAN TAKE AS LONG AS 210 DAYS). HERE, ALSO, CLARIFICATION IS REQUIRED.

"11. AS TO THE DIFFERENT DELIVERY SCHEDULES TO BE IMPOSED ON BID A AND BID B OFFERORS, RESPECTIVELY, THERE IS NO OBJECTION TO THE DIFFERENTIAL IN DELIVERY SCHEDULES FOR ITEMS 10 THRU 14 INCLUSIVE INASMUCH AS THESE DO REQUIRE APPROVAL AS FIRST ARTICLES. THIS IS CONSISTENT WITH 41 COMP. GEN. 788. HOWEVER, IT SEEMS UNJUSTIFIABLE TO CONSIDER THAT ITEMS 1 THRU 9 INCLUSIVE MUST NOT BE DELIVERED PENDING APPROVAL OF FIRST ARTICLES FOR ITEMS 10 THRU 14. ITEMS 1 THRU 9 ARE COMPONENTS COMMON TO SYSTEM CONFIGURATIONS OTHER THAN THE C-141 AND THE ACCEPTABILITY OF THESE NINE COMPONENTS, AS SUCH, WOULD SEEM NOT TO TURN ON THE OUTCOME OF FIRST ARTICLE APPROVAL FOR ITEMS 10 THRU 14 WHICH ARE PECULIAR TO THE C-141 CONFIGURATION. ON THE CONTRARY, THE ACCEPTABILITY OF ITEMS 1 THRU 9 WOULD APPEAR RATHER TO BE BASED ON THE RESULTS OF TESTS MADE ON THESE COMPONENTS WHEN PREVIOUSLY FURNISHED. UNDER THE CIRCUMSTANCES WHERE BOTH OFFERORS ARE EQUALLY QUALIFIED TO FURNISH THESE COMPONENTS, A DIFFERENCE IN THE DELIVERY SCHEDULE THAT AFFORDS ONE OFFEROR 60 DAYS LONGER THAN THE OTHER TO DELIVER THE SAME COMPONENTS IS INEQUITABLE. "12. EVEN IF IT BE POSSIBLE TO ARGUE THAT THIS RFP CONTEMPLATES THAT THE C-141 SYSTEM MUST BE FURNISHED AS A COMPLETE SYSTEM AND THAT THEREFORE THE DELIVERY OF ITEMS 1 THRU 9,-- ALTHOUGH NOT REQUIRING FIRST ARTICLE APPROVAL PER SE,--- NEVERTHELESS MUST AWAIT FIRST ARTICLE APPROVAL FOR, AND DELIVERY OF, ITEMS 10 THRU 14 IN ORDER TO EFFECT DELIVERY OF COMPLETE SYSTEMS, TWO POINTS SHOULD BE CONSIDERED. FIRST, THE DELIVERY SCHEDULES DO NOT SET FORTH A SCHEDULE FOR MONTHLY DELIVERY OF QUANTITIES OF THE VARIOUS COMPONENTS EQUIVALENT TO ANY PARTICULAR NUMBER OF SYSTEMS. IT THEREFORE SEEMS IMPROBABLE THAT DELIVERY BY COMPLETE SYSTEMS IN ACTUALLY INTENDED. SECOND, IT SHOULD BE NOTED THAT THE RFP ALSO CALLS FOR VARYING QUANTITIES OF THE SEPARATE COMPONENTS IN EXCESS OF THE AMOUNTS REQUIRED FOR 69 COMPLETE SYSTEMS. THESE ADDITIONAL QUANTITIES CANNOT BE CONSIDERED AS PART OF A COMPLETE SYSTEM UNDER THIS RFP AND THEREFORE LOGICALLY CANNOT BE SUBJECT TO ANY "SYSTEM" TESTS REQUIRED BY THE RFP. ACCORDINGLY, EVEN IF DELIVERY BY COMPLETE SYSTEMS IS DESIRED, IT IS DIFFICULT TO RECONCILE THE UNIFORM 60 DAY DIFFERENTIAL BETWEEN THE DELIVERY SCHEDULES FOR BID A AND BID B WITH THE FACT THAT ALL BUT ONE OF ITEMS 1 THRU 14 INCLUDE QUANTITIES OVER AND ABOVE THE QUANTITIES REQUIRED FOR COMPLETE C-141 SYSTEMS. UNDER THIS ASSUMPTION, THE 60 DAY DELIVERY DIFFERENTIAL COULD REASONABLY ONLY APPLY TO THE 69 SYSTEMS-WORTH OF THE VARIOUS COMPONENTS. THE DELIVERY REQUIREMENTS FOR THE REMAINING QUANTITIES SHOULD BE THE SAME FOR BOTH OFFERORS.

"13. IN SUMMARY, WE FIND NO REASON TO CHANGE OUR CONCLUSIONS PREVIOUSLY STATED, NAMELY THAT THE FIRST ARTICLE REQUIREMENTS OF THE RFP ARE AMBIGUOUS AND THAT THE PROPOSED DELIVERY SCHEDULES ARE DISCRIMINATORY.'

IN RECOMMENDING DENIAL OF YOUR FIRM'S PROTEST, THE AIR FORCE HAS SUBMITTED THE FOLLOWING EXPLANATIONS BY THE AERONAUTICAL SYSTEMS DIVISION TO THE CONTENTIONS PRESENTED IN YOUR LETTER OF MARCH 16:

"1. CONTRACT AF33/657/-14250, RESULTING FROM SUBJECT RFP, WAS AWARDED TO THE BE LOCK INSTRUMENT CORPORATION ON 15 MAR 65. THE PROTESTANT HAS AGAIN DISCUSSED THE BASIC POINTS OF HIS ORIGINAL PROTEST IN THE ATTACHED LETTER DATED 16 MAR 65.

"2. PARAGRAPHS 5 AND 6 OF THE PROTESTANT'S LETTER ATTEMPT TO ESTABLISH A NEW SYSTEM TEST CONCEPT BY INFERRING THAT SINCE IT WAS ACCEPTABLE TO THE GOVERNMENT TO EXCLUDE ITEMS 1 THROUGH 9 FROM THE ENVIRONMENTAL TESTING, IT IS LOGICAL THAT THIS SAME CRITERIA HOLDS TRUE FOR THE FAA TESTING AND THE COMPATIBILITY TESTING. HOWEVER, AS STATED EARLIER, THE FIRST ARTICLE APPROVAL CLAUSE SETS UP A CRITERIA (I.E. ALL ITEMS, 1 THROUGH 14, SHALL BE TESTED AS FIRST ARTICLES) AND THEN TAKES AN EXCEPTION TO THIS CRITERIA BY EXEMPTING ITEMS 1 THROUGH 9 FROM THE ENVIRONMENTAL REQUIREMENT. THE ENVIRONMENTAL TESTING OF ITEMS 10 THROUGH 14 CAN BE PERFORMED BY SIMULATION OF THE INPUTS AND OUTPUTS OF ITEMS 1 THROUGH 9, OR, BY USING THESE NINE (9) BOXES OUTSIDE THE TEST CHAMBER.

"3. IN PARAGRAPH 7 THE PROTESTANT MAKES REFERENCE TO THAT SECTION OF THE CODE OF FEDERAL REGULATIONS DEALING WITH THE FEDERAL AVIATION AGENCY TSO CERTIFICATION REQUIREMENTS. THE PROTESTANT'S ARGUMENT IS THAT SINCE SOME BE LOCK DATA IS ON FILE WITH THE FAA, THAT COMPANY DOES NOT HAVE TO GET A NEW APPROVAL FOR ALL FOURTEEN (14) COMPONENTS. IT IS KNOWN THAT BE LOCK, AT ITS OWN EXPENSE, HAD OBTAINED A CERTIFICATION OF THE C-130 AIRCRAFT AND KC-135 AIRCRAFT CONFIGURATIONS OF THE RADAR SET ON 24 NOV 64 (WHILE THE RFP WAS OUT TO BOTH BIDDERS). THE RFP WAS ISSUED ON 6 NOV 64, BE LOCK FURNISHED THE TEST DATA TO THE FAA ON 18 NOV 64 AND THE FAA CERTIFICATION WAS GRANTED BY FAA LETTER DATED 24 NOV 64. ALL OF THIS OCCURRED WHILE THE RFP WAS "OUT" AND THE DETAILS OF THESE EVENTS WERE NOT KNOWN UNTIL THE FCR WAS BEING CONDUCTED IN JANUARY 1965. HOWEVER, IT WAS HELD THAT THIS CERTIFICATION DOES NOT EXEMPT BE LOCK FROM ANOTHER CERTIFICATION ON THE FULL FOURTEEN (14) BOX SYSTEM. THE BASIS FOR THIS POSITION IS THE DIRECTION GIVEN BY THE FAA IN THEIR LETTER TO THE AIR FORCE DATED 18 FEB 64 WHICH WAS QUOTED IN THE ASK LETTER DATED 19 FEB 65 TO HQ USAF/HQ AFSC. BE LOCK APPROACHED THE BUYING OFFICE WHILE PREPARING THEIR BID CONCERNING THE POSSIBILITY OF ONLY OBTAINING FAA TSO CERTIFICATION FOR THE FIVE (5) NEW COMPONENTS. THEY WERE TOLD BY ASWVB LETTER DATED 1 DEC 64, A COPY OF WHICH WAS FORWARDED TO HQ USAF/HQ AFSC ON 5 FEB 65, THAT THE FINAL APPROVAL LETTER (CERTIFICATION APPROVAL) ". . . MUST CALL OUT ALL FOURTEEN (14) OF THE COMPONENTS USED IN THE C-141A TYPE SYSTEM AND SPECIFY THAT THE "SYSTEM" HAS BEEN CERTIFIED.' THIS 1 DEC 64 LETTER WENT ON TO SAY THAT THE DETAILS OF THE TESTING SHOULD BE WORKED OUT WITH THE FAA. SINCE THE GOVERNMENT REQUIRES THAT THE CERTIFICATION BE ON A SYSTEM BASIS LISTING ALL FOURTEEN (14) ITEMS, IT WAS NOT CONSIDERED THAT THE FAA WOULD CERTIFY THEM AS A SYSTEM IF THEY HAD NOT BEEN TESTED AS A SYSTEM.

"4. IN PARAGRAPH 8 OF THE PROTESTANT'S LETTER HE ACKNOWLEDGES THAT ALL FOURTEEN (14) COMPONENTS MUST BE COMPATIBILITY TESTED AS A SYSTEM. HOWEVER, HIS CONTENTION THAT OTHER EQUIPMENTS OF VARIOUS ORIGINS HAVE BEEN USED IN THE PAST TO MAKE UP A SYSTEM IS DOUBTED. NEVERTHELESS, THIS TYPE OF PROCEDURE IS NOT PERMITTED BY THIS RFP AND WOULD NOT BE PERMITTED DUE TO THE DIFFICULTY INVOLVED IN ASSIGNING RESPONSIBILITY FOR A SPECIFIC SYSTEM FAILURE DURING TEST SHOULD COMPONENTS OF DIFFERENT MANUFACTURERS BE USED. THE ARGUMENT IS ADVANCED THAT SINCE THE PROTESTANT MAY HAVE SOME KNOWLEDGE OF A PAST PRACTICE THAT DOES NOT COINCIDE WITH THE RFP DIRECTION, THE RFP IS WRONG. THIS IS AN INCORRECT ASSUMPTION.

"5. IT IS NOT CONSIDERED THAT THE FIRST ARTICLE APPROVAL PROVISION CAN BE CONSTRUED INCORRECTLY AS STATED IN PARAGRAPH 9. VIRTUAL REQUALIFICATION IS REQUIRED WITH THE EXCEPTION OF THE ENVIRONMENTAL TESTING.

"6. IN PARAGRAPH 10 OF THE PROTESTANT'S LETTER HE AGAIN MAINTAINS THAT THE DELIVERY SCHEDULE FOR ITEMS 15.1 THROUGH 19.4 IS INDEFINITE. HOWEVER, THE REFERENCE TO THE ". . . REMAINING ARTICLES CALLED FOR HEREUNDER . . .' IS PART OF THE FIRST ARTICLE APPROVAL CLAUSE WHICH IS ONLY APPLICABLE TO ITEMS 1 THROUGH 14. ALSO, THE FIRST ARTICLE APPLICABILITY PROVISION ON PAGE 1 OF EXHIBIT A ONLY REFERS TO THE FIRST FOURTEEN (14) ITEMS. ADDITION, DELIVERY OF ITEMS 15.1 THROUGH 19.4 IS REQUIRED IN ACCORDANCE WITH EXHIBIT "C" (FIRST ARTICLES NOT REQUIRED) WHICH DOES NOT REFERENCE ANY OF THE FIRST ARTICLE PROVISIONS OF THE RFP. IT IS CONSIDERED THAT NO "CLARIFICATION" IS REQUIRED.

"7. PARAGRAPH 11 OF THE PROTESTANT'S LETTER RESTATES THEIR CLAIM THAT SINCE BE LOCK HAD PREVIOUSLY SUBJECTED ITEMS 1 THROUGH 9 TO THE ENVIRONMENTAL TEST, THESE ITEMS HAVE FIRST ARTICLE APPROVAL FOR THE PURPOSES OF THIS RFP. THE FIRST ARTICLE REQUIREMENTS FOR THE C-141A CONFIGURATION (14 BOX SYSTEM) REQUIRE (I) ENVIRONMENTAL TESTING OF ITEMS 10 THROUGH 14 ON AN ITEM BY ITEM BASIS, (II) FAA TSO APPROVAL AND CERTIFICATION ON A SYSTEM BASIS, AND, (III) TESTING OF A SYSTEM ON THE LOCKHEED SIMULATOR OR TEST AIRCRAFT TO INSURE THAT THE SYSTEM IS COMPATIBLE WITH THE C-141A AIRCRAFT AND ITS OTHER INSTRUMENTATION. FIRST ARTICLE APPROVAL UNDER THIS RFP IS CONTINGENT UPON SUCCESSFUL COMPLETION OF THE LAST TWO (2) TYPES OF TEST ON A SYSTEM BASIS. THE SPERRY CONTENTION THAT BE LOCK SHOULD DELIVER THE NINE (9) BOXES AHEAD OF THE RFP SCHEDULE IS INCORRECT FOR THE FOLLOWING REASON:

"/I) SPERRY IS INCORRECTLY ASSUMING THAT THESE NINE (9) ITEMS ARE IN A "FIRST ARTICLE PPROVED" STATUS. THE IMPOSITION OF THE FAA AND COMPATIBILITY TESTING RESULTS IN A NEW FIRST ARTICLE CRITERIA FOR ALL FOURTEEN (14) ITEMS.

"/II) THE GOVERNMENT HAS NO ASSURANCES THAT THESE TWO SYSTEM FIRST ARTICLE TESTS WILL NOT RESULT IN CHANGES TO THE NINE (9) STANDARD COMPONENTS. IN ADDITION, SOME OF THE NINE (9) COMPONENTS MAY HAVE TO BE CHANGED TO MAKE THEM ELECTRICALLY COMPATIBLE IN THE NEW FOURTEEN (14) BOX SYSTEM CONFIGURATION.

"/III) THE RFP, IN ACCORDANCE WITH STANDARD CONTRACTUAL PRACTICE, REQUIRES THAT THE CONTRACTOR ASSUME ALL RISK FOR ANY PURCHASE OF PARTS OR FABRICATION OF END ITEMS PRIOR TO FIRST ARTICLE APPROVAL. BY THIS MEANS, IF THE CONTRACTOR DOES PROCEED WITH FABRICATION ON THE BASIS OF THE GOVERNMENT-PROVIDED DRAWINGS, MODEL, ETC., PRIOR TO THE TIME THAT THIS DESIGN IS PROVED OUT BY SUCCESSFUL COMPLETION OF THE FIRST ARTICLE TESTING, THE GOVERNMENT WILL NOT BE HELD LIABLE FOR ANY FAILURE OF THE DESIGN TO MEET THE SPECIFICATION REQUIREMENTS. THE GOVERNMENT PROVIDES THE DESIGN DATA ON THE ASSUMPTION THAT IT IS CORRECT AND THAT IF AN ITEM IS BUILT AS DIRECTED, IT WILL PASS ALL OF THE REQUIRED TESTS. FAILURE TO LIMIT THE GOVERNMENT'S RESPONSIBILITY, BY MAKING PARTS PURCHASE AND FABRICATION PRIOR TO FIRST ARTICLE APPROVAL AT THE CONTRACTOR'S OWN RISK, WOULD RESULT IN THE GOVERNMENT BEING LIABLE FOR THE COST OF PARTS WHICH, ALTHOUGH DEPICTED ON THE DRAWINGS OR MODEL, MAY HAVE TO BE DISCARDED BECAUSE FIRST ARTICLE TESTING PROVED THEM TO BE DEFICIENT.

"/IV) IN VIEW OF THE ABOVE POINTS, IT IS SEEN THAT THE GOVERNMENT COULD NOT LIMIT ITS RESPONSIBILITY FOR PARTS PURCHASE AND FABRICATION PRIOR TO FIRST ARTICLE APPROVAL BUT THEN DEMAND DELIVERY OF THE NINE (9) ITEMS CONCURRENT WITH FIRST ARTICLE APPROVAL OF THE SYSTEM. IT SHOULD BE STATED FURTHER THAT THE REQUIREMENT FOR FAA TESTING AND COMPATIBILITY TESTING IN THE FORM SET UP IN THE RFP REFLECTED THE GOVERNMENT'S ACTUAL NEEDS AS REQUIRED BY 34 COMP. GEN. 364, 365. AT NO TIME DURING THE THIRTY (30) DAYS THAT THE TWO (2) OFFERORS WERE PREPARING THEIR QUOTATIONS WAS ANY OBJECTION TO THESE ALLEGED "INEQUITIES" AND "AMBIGUITIES" RAISED BY THE PROTESTING OFFEROR.

"8. CONTRARY TO THE ARGUMENT ADVANCED IN PARAGRAPH 12 OF THE PROTESTANT'S LETTER FIRST ARTICLE APPROVAL IS REQUIRED ON ALL FOURTEEN (14) BOXES. ALSO, THE GOVERNMENT DOES NOT CONTEND THAT DELIVERY MUST BE ON A SYSTEM BASIS. THE RFP DOES REQUIRE THAT ALL FOURTEEN (14) MUST BE TESTED ON A SYSTEM BASIS, HOWEVER, THE PROTESTANT MAINTAINS THAT SINCE THE FAA TEST AND COMPATIBILITY TEST REQUIREMENTS ARE NOT NECESSARILY MANDATORY FOR SPARES AND OTHER AIRCRAFT USES, THE GOVERNMENT HAS NO RIGHT TO REQUIRE THEM ON ANY ITEMS OTHER THAN THE SIXTY-NINE (69) SYSTEMS FOR THE FY-65 C- 141A AIRCRAFT. HOWEVER, AS MENTIONED EARLIER, CHANGES MAY BE REQUIRED AS A RESULT OF THESE TWO (2) TESTING REQUIREMENTS WHICH SHOULD BE INCLUDED IN THE OTHER ITEMS ON THE SAME CONTRACT, AND, FURTHER, THE BUYING OFFICE DOES NOT HAVE THE EFFECTIVE CONTROL OVER THE INCOMING ASSETS TO SEPARATE THE SIXTY NINE (69) EACH OF EACH ITEM COMING IN ON A CONTRACT FROM THE REMAINING QUANTITY.

"9. THE RFP IS CONSIDERED TO BE CLEAR IN THAT THE FIRST FOURTEEN (14) ITEMS MUST BE TESTED AND APPROVED AS A SYSTEM, AND, AS PART OF THIS TESTING REQUIREMENT CERTAIN APPROVALS AND CERTIFICATIONS MUST BE OBTAINED FROM LOCKHEED AND THE FAA. BEYOND THIS IT IS MERE SPECULATION TO ATTEMPT TO ESTABLISH WHAT PROCEDURES AND DATA MUST BE USED BY BE LOCK TO OBTAIN THE NECESSARY TSO CERTIFICATION.'

IN VIEW OF THE CIRCUMSTANCES INVOLVED AND THE REASONS ADVANCED BY THE AIR FORCE FOR SPECIFYING THE TWO DELIVERY SCHEDULES WE CANNOT CONCLUDE THAT SUCH ACTION WAS UNJUSTIFIED OR THAT THE TIME DIFFERENTIAL THEREIN IS UNREASONABLE OR PROVIDES AN UNDUE ADVANTAGE TO BE LOCK OVER YOUR FIRM. SEE 41 COMP. GEN. 788, IN WHICH THE PROPRIETY OF SPECIFYING DIFFERENT DELIVERY SCHEDULES TO BE BID ON BY BIDDERS WHO WOULD AND THOSE WHO WOULD NOT HAVE TO MEET PREPRODUCTION TEST REQUIREMENTS WAS RECOGNIZED BY OUR OFFICE EVEN IN FORMALLY ADVERTISED BIDDING PROCEDURE. FURTHER, YOUR PROPOSED REDUCED PRICE INDICATES AN ABSENCE OF ANY MATERIALLY GREATER COST IMPOSITION ON YOUR FIRM BY REASON OF THE SHORTER DELIVERY TIME APPLICABLE TO YOUR QUOTATION.

WITHOUT QUOTING ALL THE PROVISIONS OF THE RFP PERTINENT TO YOUR PROTEST IT IS OUR VIEW THAT THE REQUIREMENT FOR TESTING THE FIRST ARTICLE BE LOCK COMPONENTS ON ITEMS 1.1 THROUGH 14.1 ON A COMPLETE SYSTEM BASIS OF THE 14 COMPONENTS INVOLVED, THEREBY PRECLUDING AUTOMATIC ACCEPTANCE OF THE FIRST 9 COMPONENTS, IS CLEARLY SET FORTH AS FOLLOWS IN THE INTRODUCTORY PROVISION "FIRST ARTICLE APPLICABILITY" TO EXHIBIT A OF THE RFP WHICH LISTS ALL THE ITEMS OF THE PROCUREMENT:

"FIRST ARTICLE APPLICABILITY

"OFFERORS WHO HAVE NOT FURNISHED TO THE AIR FORCE AN ACCEPTED C-141 CONFIGURED SYSTEM, AS REFERENCED IN ITEMS 1.1 THROUGH 14.1 BELOW, WITHIN THE EIGHTEEN (18) MONTHS PRECEDING THE DATE SCHEDULED FOR RETURN OF THIS REQUEST FOR PROPOSAL, SHALL SUBMIT A BID ON BID "A" WHICH INCLUDES COMPLIANCE WITH THE PROVISIONS OF THE CLAUSE HEREOF ENTITLED "FIRST ARTICLE APPROVAL.'

"OFFERORS WHO HAVE FURNISHED TO THE AIR FORCE AN ACCEPTED C-141 CONFIGURED SYSTEM, AS REFERENCED IN ITEMS 1.1 THROUGH 14.1 BELOW, WITHIN THE EIGHTEEN (18) MONTHS PRECEDING THE DATE SCHEDULED FOR RETURN OF THIS REQUEST FOR PROPOSAL, SHALL SUBMIT A BID ON BID "B" WHICH DOES NOT INCLUDE COMPLIANCE WITH THE PROVISIONS OF THE CLAUSE HEREOF ENTITLED "FIRST ARTICLE APPROVAL," (WITH THE EXCEPTION THAT ALL BIDDERS ARE REQUIRED TO SUBMIT ON THE BASIS OF PERFORMING THE DEMONSTRATION RELIABILITY TEST CALLED OUT BY PARAGRAPH 4.1.2.3 OF ASNLS EXHIBIT 61-13A DATED 2 JUL 64). "BIDS SUBMITTED UNDER BID "A" (FIRST ARTICLE APPROVAL REQUIRED) OR UNDER BID "B" (FIRST ARTICLE APPROVAL NOT REQUIRED) ARE EQUALLY ACCEPTABLE TO THE AIR FORCE, AS APPLICABLE, AND AWARD WILL BE MADE THEREON WITH THE BEST INTEREST OF THE GOVERNMENT CONSIDERED.

NOTE: THE REFERENCE TO "C-141 CONFIGURED SYSTEM" ABOVE REFERS TO THE FOURTEEN (14) COMPONENTS SPECIFIED IN ITEMS 1.1 THROUGH 14.1 BELOW AND THE FIRST ARTICLE APPLICABILITY PROVISION ABOVE REQUIRES THAT THE TESTS REQUIRED BY ASNLS EXHIBIT 61-13A, WITH THE EXCLUSIONS MENTIONED IN THE REFERENCED FIRST ARTICLE APPROVAL CLAUSE HEREOF, BE PERFORMED ON A COMPLETE "SYSTEM" BASIS. THIS IS A REQUIREMENT IMPOSED BY THE EXISTING CONTRACT BETWEEN THE U.S. GOVERNMENT AND THE LOCKHEED GEORGIA CO., AND, THE RULES AND REGULATIONS IMPOSED BY THE FEDERAL AVIATION AGENCY (FAA).'

(THE BRACKETED PORTION OF THE SECOND PARAGRAPH WAS DELETED BY TWX MESSAGES OF NOVEMBER 12, 1964, IN RESPONSE TO YOUR INQUIRY OF NOVEMBER 10, 1964.)

IT IS ALSO OUR VIEW THAT THE ABOVE EXPLANATIONS FURNISHED BY AERONAUTICAL SYSTEMS DIVISION TO THE PRINCIPAL CONTENTIONS STATED IN YOUR LETTER OF MARCH 16, 1965, ARE REASONABLE AND PROVIDE AN ADEQUATE RESPONSE TO SUCH POINTS OF YOUR PROTEST.

ON ISSUES SUCH AS THIS PERTAINING TO THE CLARITY OF A SOLICITATION, WE FEEL THAT A PROSPECTIVE CONTRACTOR SHOULD SEEK IMMEDIATE CLARIFICATION OF ANY MATERIAL PROVISION AS TO WHICH HE MAY HAVE ANY DOUBT RELATIVE TO ITS PROPRIETY OR CORRECT INTERPRETATION, AND WE REGARD THE TIMELY ACTIONS, OR LACK THEREOF, TAKEN BY THE PROSPECTIVE CONTRACTORS TO OBTAIN EXPLANATION OR CORRECTION BY THE CONTRACTING AGENCY OF SUCH PROVISIONS AS BEING INDICATIVE OF WHETHER THE PROVISIONS OF THE PROCUREMENT REGARDED AS MATERIAL TO PRICE AND PERFORMANCE ARE CLEAR AND UNDERSTOOD BY THE PARTIES CONCERNED. THE CONTRACTING OFFICER'S LETTER TO YOUR FIRM DATED NOVEMBER 6, 1964, TRANSMITTING THE SUBJECT RFP SPECIFICALLY SOLICITED QUESTIONS BY STATING IN THE FINAL PARAGRAPH "INQUIRIES CONCERNING THIS PROCUREMENT MAY BE DIRECTED TO ASWVB, ATTN: D. G. FREEMAN, WRIGHT-PATTERSON AFB, OHIO, TELEPHONE: AREA CODE 513, 253-7111, EXTENSION 39118.'

WE FIND IT TO BE OF PARTICULAR SIGNIFICANCE THAT YOUR FIRM, WHILE GIVING CAREFUL CONSIDERATION TO THE REQUIREMENTS OF THE RFP PROVISIONS DURING THE AMPLE PERIOD OF ONE MONTH USED IN PREPARING YOUR QUOTATION, MADE NO PROTEST OR REQUEST FOR CLARIFICATION OF THE AMBIGUITIES, INCONSISTENCIES OR DISCRIMINATION NOW ALLEGED,ALTHOUGH CERTAIN CONFLICTING WORDING IN EXHIBIT A NOTED BY YOUR FIRM WAS ELIMINATED BY THE AIR FORCE IN RESPONSE TO YOUR INQUIRY. LIKEWISE, THERE IS NO INDICATION THAT THE PROVISIONS OF WHICH YOU NOW COMPLAIN IN ANY WAY MISLED YOU IN THE PREPARATION OF YOUR QUOTATION, OR THAT THE QUOTATIONS OF BOTH YOUR FIRM AND BE LOCK WERE NOT SUBMITTED IN FULL COMPLIANCE WITH THE APPLICABLE REQUIREMENTS.

WHILE IT IS INCUMBENT UPON A GOVERNMENT AGENCY TO STATE THE MATERIAL REQUIREMENTS OF A PROCUREMENT IN A CLEAR AND UNAMBIGUOUS MANNER, WE RECOGNIZE THAT 100 PERCENT CLARITY AS TO ALL ASPECTS OF EVERY SOLICITATION IS UNLIKELY. IT IS NOT UNREASONABLE TO EXPECT THAT IN ANY EXTENSIVE RETROSPECTIVE EXAMINATION BY AN UNSUCCESSFUL COMPETITOR OF A VOLUMINOUS SOLICITATION SUCH AS THE RFP HERE CONCERNED, WHICH IN TURN INCORPORATES ADDITIONAL LENGTHY DOCUMENTS AND MATERIAL, MINOR INCONSISTENCIES CAN BE FOUND ON WHICH TO SUBMIT A PROTEST. WE FEEL THAT GOOD FAITH AND OBSERVANCE OF THE SPIRIT OF COMPETITIVE SOLICITATION, AS WELL AS SOUND BUSINESS PRACTICE ON THE PART OF COMPETITOR FOR GOVERNMENT CONTRACTS, DICTATE THAT THE APPROPRIATE TIME FOR A DETAILED EXAMINATION OF THE SOLICITATION AND CLARIFICATION OF ANY PROVISION THEREOF CONSIDERED TO BE AMBIGUOUS OR CONFUSING IS PRIOR TO THE TIME SPECIFIED FOR SUBMISSION OF PROPOSALS OR BIDS. SEE THE FINAL PARAGRAPH OF B-151355, JUNE 25, 1963, COPY ATTACHED. THE SUBMISSION OF A PROTEST AFTER SUCH TIME, ON MATTERS WHICH THE COMPETITOR CONSIDERED MATERIAL TO HIS QUOTATION OR BID AND ON WHICH HE COULD REASONABLY BE EXPECTED TO HAVE HAD CLARIFIED DURING THE PERIOD IN WHICH HE WAS COMPUTING HIS PRICE, NECESSARILY RAISES A QUESTION AS TO THE SINCERITY OF THE PROTEST, FREQUENTLY OPERATES AS A HINDERANCE TO THE PROCURING ACTIVITY IN OBTAINING URGENTLY NEEDED ITEMS IN A TIMELY MANNER, INCREASES THE ADMINISTRATIVE COSTS OF THE PROCUREMENT, AND SERIOUSLY DETRACTS FROM THE BENEFITS DERIVED BY THE GOVERNMENT FROM THE COMPETITION.

IN THIS PARTICULAR MATTER, THE AERONAUTICAL SYSTEMS DIVISION, AFTER REVIEW OF YOUR PROTEST TO THIS OFFICE OF JANUARY 26, 1965, CONCLUDED ITS REPORT WITH THE FOLLOWING OPINION AND OBSERVATION:

"IN CONCLUSION, IT IS THE OPINION OF THE CONTRACTING OFFICER, BASED ON THE FINDINGS OF THE STAFF JUDGE ADVOCATE AND REFERENCE TO THE APPROPRIATE REGULATIONS GOVERNING AIR FORCE PROCUREMENT, THAT THE SPERRY GYROSCOPE COMPANY PROTEST IS WITHOUT MERIT AND SHOULD BE DENIED. THE NATURE OF THE HIGHLY COMPETITIVE ATMOSPHERE SURROUNDING THE PROCUREMENT OF THIS RADAR SET, EVIDENCED BY THE FACT THAT THE LAST THREE (3) PROCUREMENTS HAVE BEEN PROTESTED TO THE COMPTROLLER GENERAL BY THE FIRM WHICH WAS NOT THE SUCCESSFUL LOW OFFEROR, HAS RESULTED IN A MARKED REDUCTION IN THE PRICES PAID FOR THE EQUIPMENT BUT HAS MADE THE REQUIREMENT FOR TIMELY CONTRACT PLACEMENT EXCEEDINGLY DIFFICULT TO MEET BY THE BUYING ACTIVITY. THE TWO (2) PREVIOUS PROTESTS OF THE BE LOCK INSTRUMENT CORPORATION WERE DENIED BY COMPTROLLER GENERAL DECISION B-154653 DATED 27 NOV 64. IT WAS REQUIRED THAT THIS CURRENT PROCUREMENT BE PLACED BY 30 JAN 65 IN ORDER TO AVOID A SHORTAGE TO THE C-141 AIRCRAFT PRODUCTION SCHEDULE IN NOVEMBER 1965. FAILURE TO PLACE THIS CONTRACT BY 28 FEB 65 WILL RESULT IN A SHORTAGE OF MINUS TWENTY ONE (-21) TO THE C-141SCHEDULE. FURTHER, THE 14 JAN 65 PROTEST TO THE CONTRACTING OFFICER WAS DENIED WITHOUT REFERRAL TO HQUSAF PURSUANT TO AFPI 2-407.9 (B) (2) (A) AS IT WAS CONSIDERED THAT THE PROTEST WAS WITHOUT ANY REASONABLE DEGREE OF FOUNDATION, AND, THAT IT WAS MADE SOLELY TO OBSTRUCT AND HINDER THE CONTRACTING OFFICER IN HIS EFFORTS TO PLACE THIS PROCUREMENT IN A TIMELY MANNER. THE BUYING OFFICE IS CURRENTLY PROCESSING THE NECESSARY INTERNAL ADMINISTRATIVE DOCUMENTS UP TO THE POINT OF CONTRACT AWARD. IT IS ANTICIPATED THAT PERMISSION WILL LATER BE REQUESTED OF HQ USAF TO AWARD THIS CONTRACT PRIOR TO THE DECISION BY THE COMPTROLLER GENERAL OF THE UNITED STATES.'

IN ITS REPORT ON YOUR SAME LETTER, HEADQUARTERS, AIR FORCE SYSTEMS COMMAND, COMMENTED:

"IN THE OPINION OF THIS HEADQUARTERS, BASED ON REASONS DEVELOPED BELOW, THESE ALLEGATIONS ARE WITHOUT ANY SERIOUS MERIT. IN FACT, THE TIMING OF THIS PROTEST RELATIVE TO OTHER EVENTS IN THIS PROCUREMENT EFFORT RAISES THE SUSPICION THAT THE REAL PURPOSE OF THIS PROTEST IS TO DELAY AWARD UNTIL DELIVERY REQUIREMENTS FORCE SOLE SOURCE PURCHASE FROM SPERRY.'

HEADQUARTERS UNITED STATES AIR FORCE, AFTER REVIEW OF YOUR LETTERS OF JANUARY 26 AND FEBRUARY 9 AND YOUR TELEGRAM OF MARCH 11, 1965, EXPRESSED THE FOLLOWING SIMILAR VIEW:

"THIS HEADQUARTERS HAS REVIEWED SPERRY'S LETTERS AND TELEGRAMS TOGETHER WITH THE RESPONSES THERETO BY THE AERONAUTICAL SYSTEMS DIVISION AND THE AIR FORCE LOGISTICS COMMAND AND WE ARE OF THE OPINION THAT SPERRY'S REPETITIOUS ALLEGATIONS THAT RFP 5013 IS AMBIGUOUS OR DISCRIMINATORY ARE ENTIRELY WITHOUT ANY MERIT OR FOUNDATION.'

AFTER CAREFUL CONSIDERATION OF THE CONTENTIONS RAISED IN YOUR VARIOUS COMMUNICATIONS COMPRISING YOUR PROTEST, IT IS OUR VIEW THAT THE RFP IS NOT MATERIALLY DEFECTIVE OR AMBIGUOUS SO AS TO RENDER ILLEGAL THE CONTRACT ENTERED INTO IN GOOD FAITH WITH BE LOCK INSTRUMENT CORPORATION. IN THE CIRCUMSTANCES SET FORTH ABOVE WE FIND NO PROPER GROUND FOR OBJECTION TO THE ACTION OF THE CONTRACTING AGENCY IN THIS MATTER.