B-160791, SEP. 28, 1967

B-160791: Sep 28, 1967

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PROSPECTIVE BIDDER WHO TOOK NO AFFIRMATIVE ACTION TO HAVE EQUIPMENT QUALIFIED TO THE MILITARY SPECIFICATION AFTER UNITS SUBMITTED COULD NOT BE IDENTIFIED AS UNITS COVERED BY TEST DATA MAY NOT BE REGARDED AS HAVING BEEN BLOCKED IN ITS ATTEMPT TO QUALIFY PRODUCT. RECORD INDICATES THAT REVISIONS WERE PROMPTED WHEN INDICATORS WERE BEING FLIGHT TESTED AND WHILE IT MIGHT HAVE BEEN TO GOVT.'S ADVANTAGE TO HAVE FLIGHT TESTS PERFORMED EARLIER NOTHING INDICATES THAT NEGOTIATED PROCUREMENT WAS OTHER THAN IN BAD FAITH. COUNSELLORS AT LAW: REFERENCE IS MADE TO YOUR PROTEST BY LETTER DATED JANUARY 27. THE SOLICITATION WAS DISTRIBUTED TO SEVEN PROSPECTIVE CONTRACTORS AND PUBLICIZED IN THE COMMERCE BUSINESS DAILY DATED AUGUST 19.

B-160791, SEP. 28, 1967

BIDS - QUALIFIED PRODUCTS DECISION CONCERNING PROTEST OF ASTRONAUTICS CORP. OF AMERICA AGAINST AWARD OF QUALIFIED PRODUCT - - ATTITUDE INDICATOR FOR CH-47 HELICOPTER- - PURSUANT TO NEGOTIATED AWARD BY ARMY AVIATION MATERIAL COMMAND. PROSPECTIVE BIDDER WHO TOOK NO AFFIRMATIVE ACTION TO HAVE EQUIPMENT QUALIFIED TO THE MILITARY SPECIFICATION AFTER UNITS SUBMITTED COULD NOT BE IDENTIFIED AS UNITS COVERED BY TEST DATA MAY NOT BE REGARDED AS HAVING BEEN BLOCKED IN ITS ATTEMPT TO QUALIFY PRODUCT. WITH RESPECT TO ALLEGATION CONCERNING REVISION OF MILITARY SPECIFICATION AFTER NEGOTIATED AWARD WITH ONLY QUALIFIED PRODUCT MANUFACTURER, RECORD INDICATES THAT REVISIONS WERE PROMPTED WHEN INDICATORS WERE BEING FLIGHT TESTED AND WHILE IT MIGHT HAVE BEEN TO GOVT.'S ADVANTAGE TO HAVE FLIGHT TESTS PERFORMED EARLIER NOTHING INDICATES THAT NEGOTIATED PROCUREMENT WAS OTHER THAN IN BAD FAITH.

TO PAIGE AND PAIGE, COUNSELLORS AT LAW:

REFERENCE IS MADE TO YOUR PROTEST BY LETTER DATED JANUARY 27, 1967, AS SUPPLEMENTED BY SUBSEQUENT CORRESPONDENCE, ON BEHALF OF ASTRONAUTICS CORPORTION OF AMERICA (ASTRONAUTICS), AGAINST THE AWARD ON JANUARY 24, 1967, OF A CONTRACT FOR THE FURNISHING OF A QUALIFIED PRODUCT, ARU 12/A ATTITUDE INDICATOR FOR THE CH-47 HELICOPTER, TO ANOTHER OFFEROR PURSUANT TO NEGOTIATED SOLICITATION NO. DAAE11-67-R-0042 (F), ISSUED AUGUST 19, 1966, BY HEADQUARTERS, UNITED STATES ARMY AVIATION MATERIEL COMMAND (AVCOM), ST. LOUIS, MISSOURI.

ON AUGUST 8, 1966, ELEVEN DAYS PRIOR TO THE ISSUANCE OF THE SOLICITATION, THE CONTRACTING OFFICER STATED IN A DETERMINATION AND FINDINGS (D AND F), PROPOSING TO NEGOTIATE THE PROCUREMENT UNDER 10 U.S.C. 2304 (A) (10) AND ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-210.2 (I) ON THE BASIS THAT FORMAL ADVERTISING WOULD NOT BE FEASIBLE AND PRACTICABLE, THAT ASPR 1- 1107.1 (A), RELATING TO THE PURCHASE OF QUALIFIED END PRODUCTS, REQUIRES THAT THE PROCUREMENT ITEM BE A QUALIFIED PRODUCT AND THERE BEING ONLY ONE SOURCE ON THE QUALIFIED PRODUCTS LIST (QPL) FOR THE APPLICABLE MILITARY SPECIFICATION, ADEQUATE COMPETITION COULD NOT BE OBTAINED THROUGH ADVERTISING. HOWEVER, THE D AND F INCLUDED A FURTHER STATEMENT THAT SHOULD AN ADDITIONAL SOURCE BE ESTABLISHED FOR THE ITEM, NEGOTIATIONS WOULD BE TERMINATED, AND THE PROCUREMENT WOULD BE FORMALLY ADVERTISED.

THE SOLICITATION WAS DISTRIBUTED TO SEVEN PROSPECTIVE CONTRACTORS AND PUBLICIZED IN THE COMMERCE BUSINESS DAILY DATED AUGUST 19, 1966. ADDITION, A COPY WAS FURNISHED TO ASTRONAUTICS PURSUANT TO A REQUEST IN ASTRONAUTICS' LETTER DATED AUGUST 22.

THE PURCHASE DESCRIPTION IN THE SOLICITATION READS AS FOLLOWS:

QUANTITY "ITEM SUPPLIES OR (NUMBER OF UNIT

NO. SERVICES UNITS) UNIT PRICE AMOUNT ----------------------------------- ----------------------------- --------- 1 FSN: 6610-965-9840 264 EA *$ *$

INDICATOR, ATTITUDE - IN (1)

ACCORDANCE WITH MILITARY

SPECIFICATION MIL-I-27680A

WITH AMENDMENT 1, DATED

19 NOVEMBER 1962 AND TYPE

ACRU12A. (2) (3)

APPL: CH-47 AIRCRAFT

CMC: 2147A

NOTE: ALL ITEMS OFFERED MUST

BE A QUALIFIED PRODUCT,

QUALIFIED UNDER THE PROVISIONS

OF ARTICLE 11, PAGE 7 OF THIS

REQUEST FOR PROPOSAL. 1AA SAME AS ITEM 1 (3) (2) 102 EA *$

(ESTIMATED AS REQUIRED) (1) 1AB SAME AS ITEM 1 (2) (3) 934 EA *$

(ESTIMATED AS REQUIRED) (1)

OFFEROR PROPOSES TO FURNISH MFR'S P/N ----------------------

NAME ---------------------- NOTES: (1) *PRICES ARE TO BE INSERTED BY OFFERORS HEREIN. A FAILURE TO INSERT A PRICE FOR ANY ITEM WILL BE DEEMED TO MEAN THAT THE OFFEROR IS NOT QUOTING ON THAT ITEM. (2) ITEMS OFFERED MUST CONFORM TO ALL LATEST SPECIFICATION/S) AND/OR DRAWING/S) IN EFFECT AS OF THE DATE OF ISSUE OF THIS REQUEST FOR PROPOSAL OR ANY AMENDMENT WHICH IS ISSUED IN RESPECT THERETO. (3) ITEM 1AB IS FOR THE GOVERNMENT'S REQUIREMENTS WHICH ARE NOT TO BE FURNISHED BY THE GOVERNMENT TO ANOTHER CONTRACTOR AS GOVERNMENT FURNISHED PROPERTY (GFP). ITEM 1 AND 1AA ARE FOR THE GOVERNMENT'S REQUIREMENTS WHICH WILL BE FURNISHED TO ANOTHER CONTRACTOR AS GFP. (SEE ARTICLE 39).'

ARTICLE 11 OF THE SOLICITATION, THE LANGUAGE OF WHICH IS IN ACCORD WITH ASPR 1-1107.2, READS AS FOLLOWS: "ARTICLE 11 - QUALIFIED END PRODUCTS (DEC. 1965)

"AWARDS FOR ANY END ITEMS WHICH ARE REQUIRED TO BE QUALIFIED PRODUCTS WILL BE MADE ONLY WHEN SUCH ITEMS HAVE BEEN TESTED AND HAVE QUALIFIED FOR INCLUSION IN A QUALIFIED PRODUCTS LIST IDENTIFIED BELOW (WHETHER OR NOT ACTUALLY INCLUDED IN THE LIST) BEFORE THE TIME SET FOR OPENING OF BIDS, OR THE TIME OF AWARD IN THE CASE OF NEGOTIATED CONTRACTS. OFFERORS SHOULD CONTACT THE OFFICE DESIGNATED BELOW TO ARRANGE TO HAVE THE PRODUCTS WHICH THEY INTEND TO OFFER TESTED FOR QUALIFICATION.

"THE OFFEROR SHALL INSERT THE ITEM NAME AND THE TEST NUMBER (IF KNOWN) OF EACH QUALIFIED PRODUCT IN THE BLANK SPACE BELOW. ITEM NAME - ------------ ------------- TEST NO. --------------------------- -------- --------------

"OFFERORS OFFERING PRODUCTS WHICH HAVE BEEN TESTED AND QUALIFIED, BUT WHICH ARE NOT YET LISTED, ARE REQUESTED TO SUBMIT EVIDENCE OF SUCH QUALIFICATION WITH THEIR BIDS OR PROPOSALS, SO THAT THEY MAY BE GIVEN CONSIDERATION. IF THIS IS A FORMALLY ADVERTISED PROCUREMENT, ANY BID WHICH DOES NOT IDENTIFY THE QUALIFIED PRODUCT BEING OFFERED, EITHER ABOVE OR ELSEWHERE IN THE BID, WILL BE REJECTED. QUALIFIED PRODUCTS LIST:

QPL 27680-1 DATED 8 APRIL 1964 ------------------------- ---------------- -------------------------------- FOR INFORMATION ONTACT: AERONAUTICAL SYSTEM DIVISION ATTN: ASNPFC WRIGHT-PATTERSON AIR FORCE BASE, OHIO"

BY SEPTEMBER 29, 1966, THE FINAL DATE FIXED BY THE SOLICITATION AS AMENDED FOR SUBMISSION OF PROPOSALS, THREE OFFERS HAD BEEN RECEIVED AS FOLLOWS:

OFFEROR ITEM UNIT PRICE

ASTRONAUTICS 1, 1AA AND 1AB $ 677.00

LEAR-SIEGLER, INC.

(LEAR-SIEGLER) 1 $1,344.00

1AA 1,437.00

1AB 1,188.00

CONSOLIDATED AIRBORNE 1, 1AA AND 1AB $1,400.00

SYSTEMS, INC.

(CONSOLIDATED)

IN A LETTER OF AUGUST 24 TO AVCOM AND IN A LETTER OF AUGUST 25 TO THE AERONAUTICAL SYSTEMS DIVISION OF THE AIR FORCE, WRIGHT-PATTERSON AIR FORCE BASE, DAYTON, OHIO, CONCERNING QUALIFICATION, ASTRONAUTICS INDICATED ITS INTENT TO FURNISH UNDER THE SOLICITATION ITS REMOTE ATTITUDE INDICATOR IND -A5-UH-1 WITH MODIFICATIONS TO CONFORM TO MILITARY SPECIFICATION MIL-I- 27680A. IN THIS CONNECTION, ASTRONAUTICS STATED THAT THE SPECIFICATION FOR THE IND-A5-UH-1 WAS A DIRECT COPY OF THE MILITARY SPECIFICATION AND THEREFORE SOUGHT APPROVAL OF QUALIFICATION FROM THE AIR FORCE ON THE BASIS OF APPROVAL OF PREPRODUCTION TESTS OF THE IND-A5-UH-1. IN THE LETTERS AND IN ITS PROPOSAL, ASTRONAUTICS IDENTIFIED THE ITEM OFFERED AS ATTITUDE INDICATOR ARU-12/A, MANUFACTURER'S PART NUMBER 105090, AND THE IND-A5 UH-1 AS ITS PART NUMBER 102550.

THE RECORD SHOWS THAT ON OR ABOUT AUGUST 30, 1966, A MR. JOHN SIMPKINS, THE ASTRONAUTICS DAYTON REPRESENTATIVE, DELIVERED TO THE DIRECTORATE OF AIRFRAME SUBSYSTEMS ENGINEERING AT WRIGHT-PATTERSON AIR FORCE BASE THREE CRATED INDICATORS AND CERTAIN DATA WHICH, MR. SIMPKINS INDICATED, REFLECTED THE RESULTS OF TESTS ON SUCH UNITS. HOWEVER, UPON UNCRATING OF THE INDICATORS IN THE PRESENCE OF MR. SIMPKINS ABOUT TWO WEEKS AFTER THEIR RECEIPT BY THE AIR FORCE, IT WAS DISCOVERED THAT THE INDICATORS WERE NOT THE UNITS ON WHICH THE TEST DATA HAD BEEN SUBMITTED. ACCORDINGLY, NO ATTEMPT WAS MADE TO EVALUATE THE INDICATORS, AND MR. SIMPKINS WAS REQUESTED TO FURNISH THE TESTED UNITS AND TO REMOVE THE SUBMITTED UNITS. THE RECORD FURTHER INDICATES THAT BETWEEN SUCH TIME AND OCTOBER 13, WHEN THE AIR FORCE ADVISED ASTRONAUTICS BY LETTER THAT THE ARMY SHOULD BE CONTACTED REGARDING QUALIFICATION APPROVAL DUE TO THE TRANSFER OF ENGINEERING RESPONSIBILITY FOR THE ARU-12/A TO ARMY, ASTRONAUTICS DID NOT COMMUNICATE WITH THE DIRECTORATE OF AIRFRAME SUB-SYSTEMS ENGINEERING. HOWEVER, AFTER THE AIR FORCE LETTER TO ASTRONAUTICS HAD BEEN PREPARED ON OCTOBER 13, MR. SIMPKINS STOPPED AT THE DIRECTORATE TO PICK UP THE THREE INDICATORS AND STATED THAT ASTRONAUTICS HAD ASSUMED THAT THE AIR FORCE INTENDED TO CANCEL MIL-I-27680A FOR THE ARU-12/A INDICATOR AND TO ABOLISH THE QPL AND THAT ASTRONAUTICS BELIEVED THE ARMY WOULD BE REQUIRED TO PROCURE AN INDICATOR TO THE ARMY SPECIFICATION.

THE RECORD ALSO INDICATES THAT INDEPENDENTLY OF THE PROCUREMENT IN QUESTION, THE ARMY, IN LINE WITH A PROGRAM FIRST CONSIDERED IN APRIL 1965 TO ASCERTAIN WHETHER THE IND-A5-UH-1 INDICATOR USED IN THE UH-1 HELICOPTER COULD BE USED IN LIEU OF THE MORE EXPENSIVE ARU-12/A INDICATOR FOR THE HEAVIER CH-47 HELICOPTER AND WITH A VIEW TO REVISING THE CH-47 MODEL SPECIFICATION TO USE EITHER THE UH-1 (IND-A5) OR THE ARU-12/A, PER MIL-I- 27680, SHOULD COMPATIBILITY OF THE UH-1 (IND-A5) WITH THE ENVIRONMENTAL CHARACTERISTICS OF THE CH-47 BE ESTABLISHED, COMMENCED TESTING ON AUGUST 3, 1966, OF IND-A5-UH-1 INDICATORS MANUFACTURED BY ASTRONAUTICS, BY CONSOLIDATED, AND BY LEAR-SEIGLER IN CH-47 AIRCRAFT. THE TESTED UNITS WERE TAKEN FROM ARMY STOCK, AND AT LEAST ONE UNIT OF EACH MANUFACTURER FAILED IN THE TESTING, WHICH WAS PERFORMED AT FORT RUCKER, ALABAMA. ADDITION TO INFORMATION CONCERNING THE TESTS WHICH WAS INCLUDED IN AN AVCOM LETTER OF FEBRUARY 10, 1967, TO ASTRONAUTICS, OF WHICH YOU ARE AWARE, THE RECORD SHOWS THAT YOU WERE ADVISED BY THE CONTRACTING OFFICER IN A LETTER DATED MARCH 16, 1967, THAT THE FLIGHT TEST RESULTS ON THE ASTRONAUTICS IND A5-UH-1 INDICATORS WERE NEGATIVE AND ALL OF SUCH TESTS HAD BEEN DISCONTINUED; THAT THE TESTING NECESSITATED A CHANGE IN THE HELICOPTER WIRING BECAUSE OF THE HIGHER VOLTAGE USED BY THE STANDARD CH-47 INDICATOR; THAT THE STANDARD INDICATOR WAS APPROXIMATELY 1/3 TO 1/2 AS BRIGHT AS THE ASTRONAUTICS INDICATOR (I.E., THE ASTRONAUTICS INDICATOR WAS TOO BRIGHT FOR NIGHT FLYING); AND THAT THE WARNING FLAG ON ONE OF THE ASTRONAUTICS' INDICATORS HAD FAILED FOR REASONS NOT KNOWN. YOU WERE ALSO ADVISED THAT THE QUALIFICATION PROBLEM HAD NOT COME TO LIGHT UNTIL THE FLIGHT TESTS WERE CONDUCTED AT FORT RUCKER, ONLY ONE PRODUCER HAVING QUALIFIED UNDER THE MILITARY SPECIFICATION SINCE ITS PUBLICATION IN 1961.

THE RECORD FURTHER SHOWS THAT ASTRONAUTICS WAS AWARE, PRIOR TO THE AWARD TO LEAR-SIEGLER, OF THE INDEPENDENT TESTING OF ITS IND-A5-UH-1 INDICATORS IN THE CH-47 AIRCRAFT, AS EVIDENCED BY INQUIRIES RECEIVED BY AVCOM FROM ASTRONAUTICS REPRESENTATIVES IN OCTOBER 1966 AND AT VARIOUS SUBSEQUENT TIMES UP TO AND BEYOND JANUARY 24, 1967, THE DATE A LIMITED AWARD WAS MADE PURSUANT TO 10 U.S.C. 2304 (A) (2) AND ASPR 3 202 ON THE BASIS OF PUBLIC EXIGENCY. THE ADVICE WHICH WAS FURNISHED TO ASTRONAUTICS WAS TO THE EFFECT THAT THE ARMY WAS ASSUMING ENGINEERING RESPONSIBILITIES FOR QUALIFICATION OF PRODUCTS TO THE QPL AND ALL QUESTIONS CONCERNING QUALIFICATION SHOULD BE DIRECTED TO AVCOM AIRCRAFT ENGINEERING; THAT THE PURPOSE OF THE TESTS WAS SOLELY TO DETERMINE WHETHER THE UH-1 ITEM WAS SUITABLE FOR USE ON THE CH-47; THAT THE MATTER OF QUALIFICATION TO THE MILITARY SPECIFICATIONS FOR THE PURPOSE OF THE NEGOTIATED PROCUREMENT WAS SEPARATE FROM THE ARMY CONDUCTED FLIGHT TESTS; THAT AS OF JANUARY 23, 1967, THE FLIGHT TESTS HAD NOT YET SHOWN THAT THE UH-1 INDICATORS WERE SATISFACTORY FOR THE CH-47 AIRCRAFT; AND THAT THE AWARD OF JANUARY 24 COVERED ONLY THE MINIMUM AND URGENT REQUIREMENTS OF THE GOVERNMENT, WITH THE HOPE THAT FUTURE PROCUREMENTS OF THE CH-47 INDICATORS COULD BE MADE ON A COMPETITIVE BASIS.

ON APRIL 21, 1967, THERE WAS SENT TO ASTRONAUTICS AND TO ALL OTHER KNOWN INTERESTED SUPPLIERS REVISED SPECIFICATION MIL-I-27680B/AV), ENTITLED INDICATOR, ATTITUDE, ARU-12/A REMOTE, DATED MARCH 1967, TOGETHER WITH A COPY OF SD-6, PROVISIONS GOVERNING QUALIFICATION, DATED MARCH 1, 1967, AND A LETTER ADVISING THAT A QPL WAS TO BE ESTABLISHED FOR SUCH INDICATORS AND THAT COMPANIES HAVING A PRODUCT MEETING THE SPCIFICATION REQUIREMENT SHOULD CONTACT AVCOM TO ARRANGE FOR QUALIFICATION TESTING. AS A RESULT OF COMMENTS THEREAFTER SUBMITTED BY ASTRONAUTICS AND BY OTHER MANUFACTURERS REGARDING THE SEVERITY OF THE VIBRATION REQUIREMENTS AND UPON APPROVAL OF GOVERNMENT TECHNICAL PERSONNEL, ON JULY 7 THERE WAS CIRCULATED TO ALL KNOWN INTERESTED MANUFACTURERS AMENDMENT NO. 1 TO MIL-I-27680B/AV) RELAXING THE VIBRATION REQUIREMENTS. THE CURRENT STATUS OF THE MATTER IS THAT AVCOM INTENDS TO PROCURE THE ARU-12/A INDICATOR IN NOVEMBER 1967 THROUGH FORMAL ADVERTISING UNDER AN INVITATION FOR BIDS ISSUED IN JULY 1967, THUS ALLOWING A PERIOD OF APPROXIMATELY FOUR MONTHS FOR PROSPECTIVE CONTRACTORS TO QUALIFY THEIR PRODUCTS. HOWEVER, WHILE THERE APPEARS TO BE NO NEED FOR AN INTERIM PURCHASE, SHOULD AN EMERGENCY ARISE PRIOR TO QUALIFICATION OF ANY ITEM OTHER THAN THE LEAR SIEGLER ARU-12/A INDICATOR, IT IS AVCOM'S INTENT TO PURCHASE THE ABSOLUTE MINIMUM REQUIREMENT FROM LEAR-SIEGLER.

YOU CONTEND THAT ASTRONAUTICS WAS BLOCKED BY THE ARMY FROM QUALIFYING ITS PRODUCT AND THEREFORE EXCLUDED FROM COMPETING FOR THE PROCUREMENT. STATE THAT ALTHOUGH ASTRONAUTICS WAS IN CONSTANT COMMUNICATION WITH THE ARMY AFTER RECEIPT OF NOTICE THAT THE ARMY WAS RESPONSIBLE FOR QUALIFICATION APPROVAL, AT NO TIME BETWEEN THE DATE THE SOLICITATION WAS ISSUED AND THE DATE OF AWARD TO LEAR-SIEGLER DID THE ARMY MAKE ANY PROVISIONS FOR QUALIFICATION TESTING OF ASTRONAUTICS' PRODUCT. IN THIS CONNECTION, THE DEPARTMENT OF THE ARMY, WHOSE REPORT WE MUST ACCEPT AS CORRECT ABSENT EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF ITS CORRECTNESS, STATES THAT ASTRONAUTICS CONTACTED THE AVCOM ENGINEER ONLY ONCE (AROUND OCTOBER 17, 1966) PRIOR TO THE DATE OF AWARD; THAT THE CONVERSATION AT THAT TIME AND OTHER CONVERSATIONS WITH AVCOM PERSONNEL RELATED TO THE FLIGHT TESTS BEING PERFORMED INDEPENDENTLY BY THE ARMY AT FORT RUCKER, ALABAMA; AND THAT THE ONLY WRITTEN COMMUNICATION FROM ASTRONAUTICS AFTER OCTOBER 13, 1966, WAS A LETTER FURNISHING TO AVCOM DRAWINGS RELATING TO THE IND-A5-UH-1 INDICATOR AND REQUESTING TO BE KEPT INFORMED OF DEVELOPMENTS IN THE FLIGHT EVALUATIONS AT FORT RUCKER. THERE IS NO EVIDENCE THAT OTHER THAN THE THREE UNITS WHICH WERE SUBMITTED TO THE AIR FORCE WITH THE UNRELATED TEST DATA IN AUGUST 1966 THAT ANY OTHER UNITS WERE SUBMITTED BY ASTRONAUTICS TO THE GOVERNMENT OR THAT ANY WRITTEN APPLICATION WAS FILED WITH AVCOM FOR QUALIFICATION. SUCH FACTORS, IN OUR OPINION, SUPPORT THE VIEW OF THE CONTRACTING OFFICER, WHOSE REPORTS HAVE BEEN MADE AVAILABLE TO YOU, THAT THERE APPARENTLY WAS A MISUNDERSTANDING ON THE PART OF ASTRONAUTICS (OR LACK OF COMMUNICATION BETWEEN ASTRONAUTICS AND THE GOVERNMENT) WITH THE RESULT THAT THE GOVERNMENT ASSUMED ASTRONAUTICS HAD ELECTED TO RELY ON THE EXPECTED SUCCESS OF THE TESTS AT FORT RUCKER AS EVIDENCE THAT ITS IND-A5-UH-1 INDICATOR WOULD MEET THE GOVERNMENT'S REQUIREMENTS AND THEREBY WARRANT PROCUREMENT OF THE INDICATORS FROM ASTRONAUTICS RATHER THAN TAKE ACTION TO SUBMIT ADDITIONAL UNITS TO AVCOM AFTER THE AIR FORCE DECLINED TO EVALUATE THE UNTESTED UNITS SUBMITTED IN AUGUST 1966. IN THE CIRCUMSTANCES, WE SEE NO EVIDENCE OF BAD FAITH ON THE PART OF THE ARMY AND WE THEREFORE ARE UNABLE TO CONCUR WITH YOUR VIEW THAT THE ARMY BLOCKED ASTRONAUTICS FROM QUALIFYING AN INDICATOR TO THE MILITARY SPECIFICATIONS.

YOU FURTHER CONTEND THAT THE QPL REQUIREMENT WAS IMPROPER AND WAS UNFAIR TO ASTRONAUTICS FOR THE FOLLOWING REASONS: (1) THE SPECIFICATION FOR THE IND-A5-UH-1 INDICATOR, IN YOUR OPINION, IS IDENTICAL TO MIL-I-27680A; (2) IN A REPORT DATED APRIL 1965 TO OUR OFFICE ON ANOTHER INDICATOR PROCUREMENT, OUR REFERENCE B-156620, THE ARMY INDICATED THAT IT HAD ADOPTED THE IND-A5-UH-1 PROCUREMENT PACKAGE FOR THE CH-34 AND CH-47 HELICOPTERS; AND (3) IN A REPORT DATED DECEMBER 1965 TO OUR OFFICE ON STILL ANOTHER INDICATOR PROCUREMENT, OUR REFERENCE B-158002, THE ARMY RECOGNIZED THE CAPABILITY OF ASTRONAUTICS TO PRODUCE THE IND-A5-UH-1. ADDITION, YOU CONTEND THAT THE ARMY'S ACTIONS HAVE BEEN INCONSISTENT TO THE EXTENT IT HAS CONCEDED THAT REVISIONS TO MIL-I-27680A ARE NECESSARY AND HAS ISSUED AN APPROPRIATE REVISION OF THE SPECIFICATION BUT NEVERTHELESS HAS MADE AN AWARD TO LEAR-SIEGLER BASED ON QUALIFICATION TO MIL-I-27680A AND NOTWITHSTANDING FAILURE OF THE LEAR-SEIGLER INDICATORS IN THE FLIGHT TESTS CONDUCTED AT FORT RUCKER.

THE RECORD SHOWS THAT THE LEAR-SIEGLER INDICATOR TESTED AT FORT RUCKER, LIKE THE INDICATORS MANUFACTURED BY ASTRONAUTICS AND BY CONSOLIDATED WHICH WERE SIMILARLY TESTED, WAS THE IND-A5-UH-1 INDICATOR, WHICH WAS PRODUCED FOR USE IN THE UH-1 HELICOPTER, A MUCH LIGHTER WEIGHT AIRCRAFT THAN THE CH -47 HELICOPTER, AND SUCH FACTOR WAS STRESSED IN THE AVCOM LETTER OF FEBRUARY 10, 1967, TO ASTRONAUTICS, WHICH ALSO INDICATED THAT THE LEAR- SIEGLER INDICATOR COVERED BY THE JANUARY 24, 1967, AWARD IS THE (ARU-12/A) ATTITUDE INDICATOR MANUFACTURED BY LEAR-SIEGLER FOR USE IN THE CH-47, THE ONLY ITEM QUALIFIED TO THE MILITARY SPECIFICATION SINCE THE ESTABLISHMENT OF THE QPL IN 1964.

THE RECORD FURTHER SHOWS THAT A REVIEW OF THE QUALIFICATION REQUIREMENT FOR THE ARU-12/A INDICATOR IN SEPTEMBER 1965 DISCLOSED THAT JUSTIFICATION OF THE REQUIREMENT WAS PREMISED ON ASPR 1-1103 (IV) ON THE BASIS THAT THE INTEREST OF THE GOVERNMENT REQUIRES ASSURANCE, PRIOR TO AWARD, THAT THE PRODUCT IS SATISFACTORY FOR ITS INTENDED USE. AT THAT TIME, THE AIR FORCE REVIEWING ACTIVITY EXPRESSED THE OPINION THAT PLACING THE VENDOR ON A PREFERRED LIST (QPL) PROVIDES THE VENDOR WITH INCENTIVE TO MAINTAIN QUALITY AND PROVIDES THE AIR FORCE WITH A MEANS OF ENFORCING MAINTENANCE OF QUALITY THROUGH REMOVAL OF THE VENDOR FROM THE QPL IN THE EVENT OF SUBSTANDARD QUALITY. THE REVIEWING ACTIVITY FURTHER STATED IN VIEW OF THE SPECIFICATION REQUIREMENT OF A 1,500-HOUR LIFE TEST, REQUIRING TWO MONTHS, DELETION OF THE QUALIFICATION WOULD DELAY THE DELIVERY TIME OF EACH SHIPMENT; THAT EACH NEW PROCUREMENT WOULD NECESSITATE A REVIEW OF ENGINEERING TECHNICAL PROPOSALS TO ASSURE THE PROPOSED CONTRACTOR'S UNDERSTANDING OF THE PROGRAM AND CAPABILITY OF PRODUCING AN ACCEPTABLE ITEM; AND THAT ADDITIONAL ENGINEERING EFFORT WOULD BE EXPENDED WITH EACH NEW VENDOR IN REVIEWING TEST DATA, INSPECTING FACILITIES AND MAINTAINING A CONTINUING SURVEILLANCE OF PRODUCTION ITEMS UNTIL ASSURANCE WAS MADE THAT ACCEPTABLE ITEMS WERE BEING DELIVERED.

REGARDING THE CONTINUANCE OF THE QUALIFICATION REQUIREMENT BY THE ARMY, THE RECORD SHOWS THAT IN ADDITION TO THE FACTORS USED AS JUSTIFICATION FOR THE QUALIFICATION IN 1964 AND IN 1965, TWO OTHER FACTORS CAME TO LIGHT IN MARCH 1967 WHICH WARRANT SUCH ACTION; THAT IS, ON MARCH 3 THE ITEM WAS REPORTED TO BE A SAFETY OF FLIGHT ITEM, AND ON MARCH 6 THE ITEM WAS LISTED AS A CRITICAL INTENSIVELY MANAGED AVIATION ESSENTIAL ITEM.

WITH REFERENCE TO THE SIMILARITY OF THE SPECIFICATIONS FOR THE TWO TYPES OF INDICATORS, THE RECORD INDICATES THERE ARE SEVERAL BASIC DIFFERENCES INCLUDING (1) INTERNAL LIGHTING CIRCUITS; (2) THE IND-A5 UH-1 INDICATOR IS SHORTER THAN THE MIL-I-27680A; (3) ELECTRICAL CONNECTORS ARE RELOCATED; AND (4) THE PITCH AND ROLL SETTING KNOBS HAVE DIFFERENT RATES OF MOVEMENT. MOREOVER, AS RECENTLY AS MAY 8, 1967, AN AVCOM ENGINEERING REPORT INDICATED THAT WHILE SUCH DIFFERENCES, THE MOST SIGNIFICANT OF WHICH IS THE REQUIREMENT FOR LIGHTING, ARE CORRECTABLE, THE OVERALL PROBLEM IS THAT NEITHER THE IND-A5-UH-1 SPECIFICATION NOR MIL-I-27680A ADEQUATELY COVERS THE VIBRATION ENVIRONMENT OF THE CH-47 HELICOPTER.

WITH SPECIFIC REFERENCE TO THE TWO PRIOR PROCUREMENTS WHICH YOU CITE, THE ARMY POINTS OUT THAT THE ITEM INVOLVED IN EACH PROCUREMENT WAS THE IND-A5- UH-1 INDICATOR USED IN THE UH-1 HELICOPTER; THAT THE AWARD TO ASTRONAUTICS IN B-158002 WAS BASED ON ASTRONAUTICS' CAPABILITY TO PRODUCE ONLY THE IND- A5-UH-1 FOR USE IN THE UH-1 ONLY; AND THAT THE WORD "ADOPTED" IN THE APRIL 1965 REPORT IN B-156620 DOES NOT SIGNIFY THAT THE ARMY HAD DECIDED TO USE THE IND-A5-UH-1 INDICATOR IN THE CH-47 BUT WAS RATHER A REFLECTION OF THE ARMY'S THINKING CONCERNING THE POSSIBILITY OF USING AN ATTITUDE INDICATOR IN THE CH-47 WHICH WOULD BE LESS EXPENSIVE THAN THE ARU-A/12 INDICATOR THUS FAR USED. IN THIS CONNECTION, THE ARMY STATES THAT THE AIR FORCE AGREED IN DECEMBER 1965 TO A CHANGE IN THE MODEL SPECIFICATION PROVIDED THE INSTRUMENT WOULD BE SUCCESSFULLY FLIGHT TESTED IN THE CH-47 HELICOPTER, BUT THE ONLY APPROVAL FOR USE OF THE IND-A5-UH-1 IN THE CH-47 WAS FOR FLIGHT TEST PURPOSES.

THE REPORTED FACTS EVIDENCE THE EXISTENCE OF FACTORS SUFFICIENT TO JUSTIFY THE USE OF THE QUALIFICATION REQUIREMENT FOR THE ARU-12/A ATTITUDE INDICATOR UNDER THE PROVISIONS OF ASPR 1-1103 AND INDICATE THAT ASIDE FROM THE DIFFERENCES BETWEEN THE SPECIFICATION FOR THE IND A5-UH-1 ATTITUDE INDICATOR AND MIL-I-27680A, AS NOTED ABOVE, THE ARMY, EVEN AFTER EXTENSIVE FLIGHT TESTING OF THE IND-A5-UH-1 IN THECH-47 HELICOPTER, WAS UNABLE TO STATE AT THE TIME OF THE LIMITED AWARD TO LEAR-SIEGLER DUE TO URGENCY THAT THE IND-A5-UH-1 ATTITUDE INDICATOR OF ANY ONE OF THE THREE MANUFACTURERS INVOLVED, WHO WERE ALSO THE ONLY OFFERORS UNDER THE NEGOTIATED SOLICITATION, COULD BE USED WITH SAFETY IN THE CH-47 HELICOPTER. SUCH CIRCUMSTANCES, IN OUR OPINION, JUSTIFIED THE QUALIFICATION REQUIREMENT AND THE REFUSAL OF AVCOM TO PERMIT ASTRONAUTICS TO QUALIFY WITHOUT SUCCESSFUL TESTING IN THE CH-47 MERELY BY SUBMISSION OF PREPRODUCTION TEST DATA RELATING TO THE IND-A5-UH-1 AS MANUFACTURED FOR USE IN THE LIGHTER WEIGHT UH-1 HELICOPTER. 36 COMP. GEN. 809, 816, 817. ACCORDINGLY, WE ARE UNABLE TO CONCUR WITH YOUR VIEW THAT THE QUALIFICATION REQUIREMENT IN THE NEGOTIATED SOLICITATION WAS IMPROPER OR THAT ASTRONAUTICS, WHO APPARENTLY TOOK NO AFFIRMATIVE ACTION TO HAVE AN INDICATOR QUALIFIED TO THE MILITARY SPECIFICATION AFTER THE UNITS SUBMITTED IN AUGUST 1966 TO THE AIR FORCE COULD NOT BE IDENTIFIED AS THE UNITS COVERED BY THE ACCOMPANYING TEST DATA, WAS TREATED UNFAIRLY.

WITH RESPECT TO THE SIGNIFICANCE OF THE REVISION OF THE MILITARY SPECIFICATION AFTER THE AWARD TO LEAR-SIEGLER, IT IS TO BE NOTED THAT SUCH REVISIONS WERE PROMPTED BY PROBLEMS OF WHICH THE ARMY FIRST BECAME AWARE UPON FLIGHT TESTING OF THE IND-A5-UH-1 INDICATORS OF THE THREE OFFERORS TO DETERMINE THEIR COMPATIBILITY WITH THE ENVIRONMENTAL CHARACTERISTICS OF THE CH-47. THE LEAR-SIEGLER INDICATOR TO BE FURNISHED UNDER THE JANUARY 24 AWARD IS THE ARU-A/12 ATTITUDE INDICATOR QUALIFIED TO MIL-I-27680A IN 1964 AND USED SATISFACTORILY IN THE CH-47 THEREAFTER. WHILE IT MIGHT HAVE BEEN TO THE GOVERNMENT'S ADVANTAGE HAD THE IND-A5-UH-1 FLIGHT TESTS BEEN PERFORMED EARLIER AND WITH SUCCESS, THUS PERMITTING ISSUANCE OF A RELAXED SPECIFICATION FOR THE ARU-A/12 AND THE USE OF FORMAL ADVERTISING, AS IS NOW CONTEMPLATED BY THE ARMY IN KEEPING WITH 10 U.S.C. 2305, WE FAIL TO FIND ANY INDICATION THAT THE ARMY ACTED OTHER THAN IN GOOD FAITH IN MAKING THE LIMITED AWARD TO LEAR-SIEGLER ON THE BASIS OF URGENCY. WE THEREFORE SEE NO LEGAL BASIS TO QUESTION THE AWARD TO LEAR-SIEGLER.