B-161161, SEP. 1, 1967

B-161161: Sep 1, 1967

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TO PAIGE AND PAIGE: REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 29. THE PROCUREMENT WAS ASSIGNED PRIORITY DESIGNATOR NO. 2 UNDER THE UNIFORM MATERIEL MOVEMENT AND ISSUE PRIORITY SYSTEM. WAS NEGOTIATED PURSUANT TO A DETERMINATION AND FINDING BY THE CONTRACTING OFFICER. IT IS REPORTED THAT THE INDICATORS WERE AN EMERGENCY REQUIREMENT UNDER THE ACCELERATED STRIKE AIRCRAFT PROGRAM. NEGOTIATIONS WERE CONDUCTED WITH ONLY LEAR SIEGLER FOR THE REASON THAT THE MILITARY SPECIFICATION (MIL-I-27619D) FOR THE ARU-11/A REQUIRES QUALIFICATION TESTING AND NO INDICATOR OTHER THAN THE LEAR SIEGLER PRODUCT HAD BEEN SATISFACTORILY FABRICATED AND TESTED TO MEET THE REQUIREMENTS OF THE MILITARY SPECIFICATION.

B-161161, SEP. 1, 1967

BIDS - NEGOTIATION - SOLE SOURCE DECISION RE PROTEST OF ASTRONATICS CORP. AGAINST SOLE SOURCE PROCUREMENT OF ATTITUDE INDICATORS FROM LEAR SIEGLER, INC. BY WRIGHT PATTERSON AIR FORCE BASE. SUPPLIER OF ATTITUDE INDICATORS WHO PROTESTS NEGOTIATED SOLE SOURCE CONTRACT UNDER PUBLIC EXIGENCY AUTHORITY IN 10 U.S.C. 2304 (A) (2) ALTHOUGH RECORD SUPPORTS DETERMINATION THAT PROTESTANT'S EQUIPMENT DOES NOT MEET SPECIFICATIONS AND HAS NOT BEEN TESTED OR QUALIFIED HAS NOT PRESENTED ANY BASIS FOR DISTURBING AWARD.

TO PAIGE AND PAIGE:

REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 29, 1967, AND SUBSEQUENT COMMUNICATIONS, PROTESTING ON BEHALF OF ASTRONAUTICS CORPORATION OF AMERICA THE SOLE-SOURCE PROCUREMENT OF A QUANTITY OF ARU-11/A ATTITUDE INDICATORS BY WRIGHT-PATTERSON AIR FORCE BASE, OHIO, FROM LEAR SIEGLER, INC., UNDER RFP F33657-67-R-0895 WITHOUT AFFORDING ASTRONAUTICS CORPORATION AN OPPORTUNITY TO BID THEREON.

THE PROCUREMENT WAS ASSIGNED PRIORITY DESIGNATOR NO. 2 UNDER THE UNIFORM MATERIEL MOVEMENT AND ISSUE PRIORITY SYSTEM, AND WAS NEGOTIATED PURSUANT TO A DETERMINATION AND FINDING BY THE CONTRACTING OFFICER, UNDER 10 U.S.C. 2304 (A) (2), THAT THE PUBLIC EXIGENCY WOULD NOT PERMIT THE DELAY INCIDENT TO FORMAL ADVERTISING. IT IS REPORTED THAT THE INDICATORS WERE AN EMERGENCY REQUIREMENT UNDER THE ACCELERATED STRIKE AIRCRAFT PROGRAM, AND THAT FAILURE TO OBTAIN THE ITEM ON AN EMERGENCY BASIS COUD& RESULT IN FAILURE TO SUPPORT THE OPERATIONAL MISSION OF AIRCRAFT BEING USED IN SOUTHEAST ASIA. NEGOTIATIONS WERE CONDUCTED WITH ONLY LEAR SIEGLER FOR THE REASON THAT THE MILITARY SPECIFICATION (MIL-I-27619D) FOR THE ARU-11/A REQUIRES QUALIFICATION TESTING AND NO INDICATOR OTHER THAN THE LEAR SIEGLER PRODUCT HAD BEEN SATISFACTORILY FABRICATED AND TESTED TO MEET THE REQUIREMENTS OF THE MILITARY SPECIFICATION, AND LISTED ON THE QUALIFIED PRODUCTS LIST.

YOU CONTEND THAT ASTRONAUTICS CORPORATION IS IN PRODUCTION OF EQUIVALENT INDICATORS (ID-1329) FOR THE NAVY WHICH ARE GOING INTO IDENTICAL COMPUTER SYSTEMS AND THAT THE DIFFERENCE BETWEEN THE ARU-11/A INDICATOR AND THE NAVY ID-1329 INDICATOR ARE MINUTE AS EVIDENCED BY THE FACT THAT EACH OF THEM CAN BE USED IN THE SAME SYSTEM.

THE DIFFERENCES BETWEEN THE NAVY ID-1329 SPECIFICATION (MIL-I-23524) AND THE AIR FORCE ARU-11/A SPECIFICATION (MIL-I-27619D) ARE REPORTED BY THE AIR FORCE SYSTEMS ENGINEERING GROUP AS FOLLOWS: ,1. SEFIF COMPARISON OF THE SUBJECT SPECIFICATIONS REVEALED THAT THE FOLLOWING DIFFERENCES EXIST:

MIL-I-23524/WEP) ITEM MIL-I-27619D/USAF)

A. RED ONLY LIGHTS RED AND WHITE

B. 1,000 HOURS LIFE 2,000 HOURS

C. WHITE FLAGS RED

D. BLACK BALL INCLIOMETER WHITE BALL

E. TABLE II CONNECTIONS TABLE II

FROM AMPLIFIER

TO INDICATOR

NOT THE SAME

F. FIG 1 DISPLAY FIG 1

DIFFERENT

G. MIL-E-5272 VIBRATION MIL-STD-810

H. 1 DEGREE HUNTING 1/8 DEGREE

AND JUMPING

I. 12 FEET 10 DEGREES MAGNETIC 12 FEET 5 DEGREES

PROPERTY

J. 200 VPC DIELECTRIC 500 VDC

K. MAGNESIUM FLUORIDE GLASS HEA COATING

COATING

L. NO REQUIREMENT FOGGING REQUIREMENT "2. IN VIEW OF THE MANY DIFFERENCES BETWEEN THE USAF SPECIFICATION MIL-I-27619D AND THE NAVY SPECIFICATION MIL-I-23524/WEP) A QUALIFIED SOURCE TO THE NAVY SPECIFICATION CANNOT BE CONSIDERED A QUALIFIED SOURCE TO THE AIR FORCE SPECIFICATION. IN ORDER TO BE QUALIFIED TO THE AIR FORCE SPECIFICATION, A CERTIFIED TEST REPORT AND TEST SAMPLES MUST BE SUBMITTED TO SEG WHICH DEMONSTRATE COMPLIANCE WITH THE REQUIREMENT OF MIL-I-27619D IN EVERY RESPECT.'

AS TO YOUR CONTENTION THAT THE ASTRONAUTICS CORPORATION INDICATOR (ID- 1329) IS EQUIVALENT TO THE ARU-11/A CALLED FOR BY THE AIR FORCE SPECIFICATIONS, THE CONTRACTING OFFICER REPORTS:

"IT IS POINTED OUT THAT THE AIR FORCE DOES NOT GRANT APPROVALS FOR COMPLEX ELECTRONIC EQUIPMENT ON THE BASIS OF SIMILARITY OR EQUIVALENCY. QUALIFICATION TESTING IS SET UP TO PROVE -DESIGN INTEGRITY-. EACH SUPPLIER EMPLOYS DIFFERENT INTERNAL PROCESSES AND DESIGN TECHNIQUES. THE FACT THAT A SUPPLIER IS QUALIFIED TO A NAVY SPECIFICATION, FOR EXAMPLE, IS NOT REASON TO BE ACCEPTABLE TO THE AIR FORCE SPECIFICATION UNLESS THE 2 SPECIFICATIONS ARE IDENTICAL. IN THE CASE OF THE TYPE ARU-11/A ADI THE DIFFERENCES BETWEEN THE NAVY AND THE AIR FORCE SPECIFICATIONS ARE OF SUCH A DESIGN NATURE THAT THE ITEMS ARE NOT COMPATIBLE AND/OR INTERCHANGEABLE. THEREFORE, ACA MUST REDESIGN AND PERFORM COMPLETE QPL TESTING BEFORE THEY CAN BE CONSIDERED AS AN AIR FORCE SOURCE.'

REGARDING ITS EFFORTS TO GET OTHER FIRMS TO QUALIFY AN ARU-11/A INDICATOR, AIR FORCE REPORTS:

"B. THE MIL SPECIFICATION FOR THE ARU-11/A REQUIRES QUALIFICATION TESTING. INDUSTRY HAS BEEN CONSTANTLY URGED AND ENCOURAGED TO QUALIFY A ARU-11/A ADI. HOWEVER, ONLY LEAR SIEGLER HAS, AT THIS TIME, SATISFACTORILY FABRICATED AND TESTED THE ARU-11/A TO MEET THE REQUIREMENTS OF MIL-I-27619D.

"C. FOR SEVERAL YEARS, INDUSTRY HAS EXPRESSED AN INTEREST IN THEARU 11/A. FOR EXAMPLE, A MEETING WAS HELD WITH ITT FEDERAL LABORATORIES ON 2 JULY 1964 AT WHICH TIME ITT WAS ADVISED THAT THE SPECIFICATION FOR THE ARU-11/A REQUIRED QUALIFICATION TESTING LEADING TO QPL; THAT SEVERAL COMPANIES WERE ATTEMPTING TO QUALIFY THEIR PRODUCT AND SHOULD THEY BECOME SUCCESSFUL, FUTURE REQUIREMENTS WOULD PROBABLY BE PROCURED COMPETITIVELY ON A QPL BASIS. SINCE THAT TIME, THE AIR FORCE POSITION HAS NOT CHANGED. ADDITION, NEARLY A YEAR AGO REPRESENTATIVES FROM ASD, WHO WERE VISITING THE ASTRONAUTICS CORPORATION FACILITY, DISCUSSED THE ACA INDICATOR. THAT TIME IT WAS POINTED OUT THAT THE NAVY AND AIR FORCE SPECIFICATIONS WERE NOT IDENTICAL AND THAT SEPARATE QUALIFICATION TESTING WOULD BE REQUIRED FOR THE AIR FORCE INDICATORS. ACA WAS ENCOURAGED TO SUBMIT THEIR TEST SAMPLES AND DATA, BUT DID NOT DO SO.'

IT IS WELL ESTABLISHED THAT PROCURING ACTIVITIES OF THE GOVERNMENT HAVE PRIMARY RESPONSIBILITY FOR DETERMINING THE NEED FOR EQUIPMENT TO CONFORM TO PARTICULAR SPECIFICATIONS AND TO DETERMINE WHETHER OFFERED EQUIPMENT MEETS SUCH SPECIFICATIONS, AND IN THE ABSENCE OF A CLEAR SHOWING OF ARBITRARY OR CAPRICIOUS ACTION BY THE PROCUREMENT OFFICIALS THEIR DETERMINATIONS IN SUCH MATTERS ARE CONTROLLING. HERE, AIR FORCE PERSONNEL HAVE DETERMINED, CONTRARY TO YOUR CONTENTION, THAT THE ARU 11/A AND THE ID -1329 INDICATORS ARE NOT COMPATIBLE AND INTERCHANGEABLE. IN VIEW OF THE LISTED DIFFERENCES IN THE SPECIFICATIONS FOR THE TWO ITEMS, WE FIND NO BASIS FOR CONCLUDING THAT SUCH DETERMINATION WAS MADE CAPRICIOUSLY OR ARBITRARILY. FURTHER, THE ARU-11/A IS A QUALIFIED PRODUCTS LIST ITEM AND THE ASTRONAUTICS CORPORATION INDICATOR HAS NOT BEEN TESTED AND QUALIFIED UNDER THE REQUIREMENTS SPECIFIED IN THE PERTINENT SPECIFICATION (MIL-I- 27619D). IN SUCH CONNECTION, PARAGRAPH 1-1107.1 (A) OF THE ARMED SERVICES PROCUREMENT REGULATION CLEARLY PROVIDES THAT WHENEVER QUALIFIED PRODUCTS ARE TO BE PROCURED BY THE GOVERNMENT AS END ITEMS ONLY BIDS OR PROPOSALS OFFERING PRODUCTS WHICH ARE QUALIFIED FOR LISTING ON THE APPLICABLE QUALIFIED PRODUCTS LIST AT THE TIME SET FOR OPENING OF BIDS OR AWARD OF NEGOTIATED CONTRACTS SHALL BE CONSIDERED IN MAKING AWARD.

IN OUR DECISION, 41 COMP. GEN. 93, WE HELD THAT WHERE TIME DOES NOT PERMIT POTENTIAL SUPPLIERS TO OBTAIN QUALIFICATION OF THEIR PRODUCTS AND ONLY ONE MANUFACTURER HAS QUALIFIED ITS PRODUCT, NEGOTIATION OF A CONTRACT WITH SUCH MANUFACTURER IS PROPER. HERE, QUALIFIED INDICATORS WERE URGENTLY NEEDED BY THE AIR FORCE AND HAD BEEN ASSIGNED PRIORITY DESIGNATOR NO. 2 THEREBY PRECLUDING ANY EXTENDED DELAY INCIDENT TO QUALIFICATION PRODUCT LIST TESTING OF ADDITIONAL PRODUCTS. THE RECORD SHOWS THAT ASTRONAUTICS CORPORATION HAD NOT TESTED AND QUALIFIED ITS PRODUCTS UNDER THE APPLICABLE SPECIFICATION, ALTHOUGH IT HAD BEEN AFFORDED AMPLE OPPORTUNITY TO DO SO, AND THE REGULATIONS ARE SPECIFIC AS TO ONLY PRODUCTS APPEARING ON THE LIST BEING CONSIDERED FOR AWARD. IN SUCH CIRCUMSTANCES, WE FIND NO VALID BASIS FOR YOUR PROTEST AND IT IS THEREFORE DENIED.