B-162093, NOV. 13, 1967

B-162093: Nov 13, 1967

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WITH RESPECT TO CONTENTION THAT CONTRACT WAS IMPROPERLY NEGOTIATED. A DECISION TO NEGOTIATE A CONTRACT IS FINAL AND GAO MAY NOT SUBSTITUTE ITS DETERMINATION FOR THAT OF THE ADMINISTRATIVE OFFICE. SINCE AN AMENDMENT TO A NEGOTIATED SOLICITATION WHICH IS ALLEGED TO REVEAL PROTESTANT'S PROPRIETARY DATA WAS ISSUED 15 DAYS BEFORE AWARD AND PROTESTANT DID NOT RAISE QUESTION OF DISCLOSURE UNTIL AFTER AWARD. THERE IS NO BASIS TO QUESTION ADMINISTRATIVE ACTION. TO FAIRCHILD HILLER CORPORATION: REFERENCE IS MADE TO YOUR LETTERS OF JULY 20. THE RFP WAS ISSUED AND REQUESTED PROPOSALS FOR FURNISHING 13 ITEMS. ITEM 1 OF WHICH WAS DESCRIBED AS "AIRBORNE DATA ANNOTATION SYSTEM AN/AYA-5) ( IN ACCORDANCE WITH ELECTRONICS COMMAND (ECOM) TECHNICAL REQUIREMENT SCL-8122.

B-162093, NOV. 13, 1967

BIDS - NEGOTIATION - PROPRIETARY DATA DECISION TO FAIRCHILD HILLER CORPORATION DENYING PROTEST AGAINST AWARD OF NEGOTIATED CONTRACT TO BOWMER INSTRUMENT CORPORATION FOR FURNISHING AIRBORNE DATA ANNOTATION SYSTEM TO ARMY ELECTRONICS COMMAND. WITH RESPECT TO CONTENTION THAT CONTRACT WAS IMPROPERLY NEGOTIATED, UNDER 10 U.S.C. 2310 AS AMENDED BY PUBLIC LAW 87-653, A DECISION TO NEGOTIATE A CONTRACT IS FINAL AND GAO MAY NOT SUBSTITUTE ITS DETERMINATION FOR THAT OF THE ADMINISTRATIVE OFFICE. SINCE AN AMENDMENT TO A NEGOTIATED SOLICITATION WHICH IS ALLEGED TO REVEAL PROTESTANT'S PROPRIETARY DATA WAS ISSUED 15 DAYS BEFORE AWARD AND PROTESTANT DID NOT RAISE QUESTION OF DISCLOSURE UNTIL AFTER AWARD, THERE IS NO BASIS TO QUESTION ADMINISTRATIVE ACTION.

TO FAIRCHILD HILLER CORPORATION:

REFERENCE IS MADE TO YOUR LETTERS OF JULY 20, SEPTEMBER 11 AND OCTOBER 24, 1967, PROTESTING AGAINST THE AWARD OF A CONTRACT TO BOWMAR INSTRUMENT CORPORATION BY THE UNITED STATES ARMY ELECTRONICS COMMAND UNDER REQUEST FOR PROPOSALS (RFP) NO. DAABO7-67-R-0212, ISSUED ON NOVEMBER 2, 1966.

PRIOR TO ISSUING THE RFP, THE CONTRACTING OFFICER MADE A DETERMINATION AND FINDING THAT THE PROCUREMENT SHOULD BE NEGOTIATED PURSUANT TO THE AUTHORITY CONTAINED IN 10 U.S.C. 2304 (A) (2) AND ASPR 3-202. ON NOVEMBER 2, 1966, THE RFP WAS ISSUED AND REQUESTED PROPOSALS FOR FURNISHING 13 ITEMS, ITEM 1 OF WHICH WAS DESCRIBED AS "AIRBORNE DATA ANNOTATION SYSTEM AN/AYA-5) ( IN ACCORDANCE WITH ELECTRONICS COMMAND (ECOM) TECHNICAL REQUIREMENT SCL-8122, DATED 13 JULY 1966, ENTITLED -AIRBORNE DATA ANNOTATION SYSTEM. - " THE PROPOSALS WERE REQUIRED TO BE SUBMITTED BY NOVEMBER 18, 1966. AMENDMENT NO. 1 TO THE SOLICITATION WAS ISSUED ON NOVEMBER 9, 1966, AND EXTENDED THE DATE FOR RECEIPT OF PROPOSALS FROM NOVEMBER 18 TO NOVEMBER 30, 1966. AMENDMENT NO. 2 DATED NOVEMBER 22, 1966, CONTAINED AN AMENDMENT TO THE ECOM TECHNICAL REQUIREMENT. AMENDMENT NO. 3 DATED NOVEMBER 23, 1966, FURTHER AMENDED THE ECOM TECHNICAL REQUIREMENTS. AMENDMENT NO. 4 DATED DECEMBER 2, 1966, INCREASED THE QUANTITY OF ITEM 1 FROM 40 TO 50 EACH AND REQUESTED NEW COST BREAKDOWNS AND EXTENDED THE CLOSING DATE TO DECEMBER 9, 1966. AMENDMENT NO. 5 WAS ISSUED ON JUNE 15, 1967. THIS AMENDMENT ADDED TO THE BASIC ECOM TECHNICAL REQUIREMENT AMENDMENT NO. 1 AND EXTENDED THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS FROM DECEMBER 9, 1966, TO THE CLOSE OF BUSINESS ON JUNE 23, 1967. OFFERORS WERE ADVISED THAT THE DATE OF JUNE 23, 1967, WAS ALSO THE CLOSING DATE FOR NEGOTIATIONS. THE LAST AMENDMENT, AMENDMENT NO. 6, WAS DATED JUNE 21, 1967, AND AMENDED THE ECOM TECHNICAL REQUIREMENT. ON JUNE 30, 1967, A LETTER CONTRACT NO. DAAB67 C-0707 WAS AWARDED TO BOWMAR IN THE AMOUNT OF $960,000 FOR THE PROCUREMENT OF 50 ANNOTATION SYSTEMS AND ANCILLARY ITEMS SINCE BOWMAR WAS THE LOW RESPONSIVE, RESPONSIBLE OFFEROR.

IT IS REPORTED BY THE CONTRACTING OFFICER THAT EIGHT FIRMS SUBMITTED PROPOSALS ON TIME AND THAT SOME OF THESE FIRMS ALSO SUBMITTED LATE REVISIONS WHICH WERE NOT CONSIDERED INASMUCH AS THEY DID NOT CONTAIN ANY SIGNIFICANT OR SCIENTIFIC BREAKTHROUGHS. THE PROPOSALS WERE FORWARDED TO THE CS AND TA LABORATORY FOR TECHNICAL EVALUATION ON DECEMBER 12, 1966, AND THE TECHNICAL EVALUATION WAS RETURNED TO THE CONTRACTING OFFICER ON APRIL 20, 1967. IT IS FURTHER REPORTED THAT DURING THE PERIOD MARCH 13 TO 17, 1967, FIVE OF THE FIRMS CLARIFIED THEIR PROPOSALS AND AFTER CLARIFICATION ONLY YOUR COMPANY AND GENERAL PRECISION CORPORATION WERE CONSIDERED AS HAVING SUBMITTED TECHNICALLY ACCEPTABLE PROPOSALS. ON MAY 11, 1967, THE OTHER SIX COMPANIES WERE ADVISED THAT THEIR PROPOSALS WERE UNACCEPTABLE. ON MAY 12, 1967, BOWMAR PROTESTED THE REJECTION OF ITS PROPOSAL AND IN LETTER DATED MAY 15, 1967, CONTENDED THAT THE TECHNICAL EVALUATION OF ITS PROPOSAL WAS NOT IMPARTIAL AND WAS NOT BASED SPECIFICALLY ON RESPONSES AS REQUESTED BY THE RFP. AFTER MEETINGS WITH BOWMAR, THE INDEPENDENT EVALUATION BOARD CONVENED TO EVALUATE BOWMAR'S PROPOSAL AND ON JUNE 5, 1967, THAT BOARD ADVISED THE CONTRACTING OFFICER THAT THE GOVERNMENT SPECIFICATION WAS UNCLEAR, CONTAINED DEFICIENCIES, AND COULD BE MISINTERPRETED. ALSO, THE BOARD ADVISED THAT NONE OF THE PROPOSALS COULD BE ACCEPTED SINCE ALL CONTAINED DEFICIENCIES WHICH HAD TO BE CORRECTED PRIOR TO AWARD. BASED ON THIS ADVICE, AMENDMENT NO. 5 TO THE RFP WAS ISSUED ON JUNE 15, 1967, AND, IN ADDITION TO AMENDING THE SOLICITATION, EACH OF SIX OFFERORS WAS ADVISED BY TELEGRAM OF THE DEFICIENCIES IN ITS TECHNICAL PROPOSAL AND THE OFFERORS WERE REQUESTED TO SUBMIT REVISED PROPOSALS. TWO OFFERORS WERE NOT CONTACTED BECAUSE THEY DID NOT OFFER TO MEET THE DELIVERY SCHEDULE WHICH WAS NOT CHANGED BY THE AMENDMENT.

YOU ALLEGE THAT THE CONTRACT AWARDED TO BOWMAR IS INVALID AND THAT THE PROCUREMENT SHOULD REVERT TO THE STATUS OF MAY 23, 1967, WHEN NEGOTIATIONS WERE CLOSED, AND THAT AWARD BE MADE TO THE COMPANY WHICH AT THAT TIME HAD PROPOSED THE BEST OFFER TO THE GOVERNMENT. IN SUPPORT OF YOUR REQUEST YOU CONTEND THAT THE AUTHORITY USED TO NEGOTIATE, 10 U.S.C. 2304 (A) (2), PUBLIC EXIGENCY, WAS ABUSED BECAUSE 8 MONTHS ELAPSED FROM THE TIME THE SOLICITATION WAS COMMENCED UNTIL A CONTRACT WAS AWARDED AND SUCH A PERIOD IS NOT IN CONSONANCE WITH THE USE OF PUBLIC EXIGENCY AS A NEGOTIATION AUTHORITY. ALSO, YOU STATE IN YOUR LETTER OF SEPTEMBER 11 THAT THE CONTRACTING OFFICER IN HIS DETERMINATION AND FINDINGS LIMITED THE NEGOTIATION OF A CONTRACT TO A 30-DAY PERIOD. THEREFORE, YOU CONTEND THAT NEGOTIATION THEREAFTER WAS ILLEGAL. YOU CITE IN SUPPORT OF YOUR ALLEGATIONS OUR DECISION PUBLISHED IN 39 COMP. GEN. 101.

YOU ALSO CONTEND THAT THE GOVERNMENT IN ITS AMENDMENT NO. 5 TO THE SOLICITATION INCLUDED PROPRIETARY INFORMATION RECEIVED FROM YOUR COMPANY. SPECIFICALLY, YOU ALLEGE THAT THREE OF THE PARAGRAPHS (6, 8 AND 9) OF THE SPECIFICATION AMENDMENT NO. 1, DATED JUNE 13, 1967, INCLUDED IN THE RFP BY AMENDMENT NO. 5 DISCLOSE YOUR DESIGN APPROACH. YOU ALSO CONTEND THAT SPECIFICATION AMENDMENT NO. 1 WAS UNESSENTIAL AND PERMITTED AN UNACCEPTABLE BIDDER, BOWMAR, TO RECEIVE A SECOND CHANCE TO CORRECT ITS PROPOSAL.

WE DO NOT AGREE WITH YOUR CONTENTION THAT THE CONTRACT WAS IMPROPERLY NEGOTIATED UNDER THE PROVISIONS OF 10 U.S.C. 2304 (A) (2) WHICH AUTHORIZE NEGOTIATION WHEN THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING. THE PURCHASE REQUEST CITED AN ISSUE PRIORITY DESIGNATOR OF 02 AND, IN ACCORDANCE WITH ASPR 3-202.3, THE DETERMINATION AND FINDINGS JUSTIFYING NEGOTIATION NEED CITE ONLY THE DESIGNATOR AS JUSTIFICATION. SEE 45 COMP. GEN. 374. THE ADMINISTRATIVE OFFICE REPORTS THAT THE PRIORITY DESIGNATOR REMAINED CONSTANT FROM THE TIME OF ASSIGNMENT UNTIL AWARD. IN VIEW THEREOF, WE THINK THAT THE CONTRACTING OFFICER'S FAILURE TO FORMALLY EXTEND THE PERIOD WITHIN WHICH THE CONTRACT WOULD BE NEGOTIATED WAS A PROCEDURAL REQUIREMENT WHICH HAD NO BEARING ON THE VALIDITY OF THE CONTRACT. IT IS ALSO REPORTED THAT THE DELAY IN MAKING AN AWARD OF A CONTRACT RESULTED FROM MEETINGS WITH THE OFFERORS AND THE RESOLUTION OF A PROTEST BY ONE OF THE OFFERORS. OUR DECISION OF AUGUST 18, 1959, 39 COMP. GEN. 101, CITED BY YOU IS CLEARLY DISTINGUISHABLE FROM THE PRESENT CASE. THERE THE REQUEST FOR QUOTATION WAS COMPLETE AND DETAILED; AN ADVERTISED PROCUREMENT WAS FEASIBLE; AND THE TIME ALLOWED FOR SUBMISSION OF PROPOSALS COMPARED FAVORABLY WITH THE TIME ALLOWED FOR SUBMISSION OF BIDS UNDER PRIOR ADVERTISED PROCUREMENTS OF THE SAME ITEM. HERE, NOT ONLY WAS THERE A LACK OF DETAILED SPECIFICATIONS TO SUPPORT AN ADVERTISED PROCUREMENT BUT THERE ALSO WAS AN URGENT REQUIREMENT FOR THE ITEM. FURTHERMORE, WHILE IT MAY BE INFERRED FROM THE LANGUAGE OF OUR DECISION THAT OUR OFFICE LEGALLY AND PROPERLY CAN DIRECT CANCELLATION OF A CONTRACT IF WE DETERMINE THAT THE CITED EXCEPTION TO THE FORMAL ADVERTISING REQUIREMENT WAS IMPROPERLY INVOKED, SUCH IS NOT THE CASE. SUBSEQUENT TO OUR CITED DECISION, THE PROVISIONS OF 10 U.S.C. 2310 WERE AMENDED BY PUBLIC LAW 87-653, APPROVED SEPTEMBER 10, 1962, 76 STAT. 529, TO PROVIDE THAT A DECISION TO NEGOTIATE A CONTRACT UNDER 10 U.S.C. 2304 (A) (2) IS FINAL. IN VIEW THEREOF, OUR OFFICE MAY NOT SUBSTITUTE ITS DETERMINATION FOR THAT OF THE ADMINISTRATIVE OFFICE. 45 COMP. GEN. 374.

WE HAVE RECEIVED THE FOLLOWING REPORT REGARDING YOUR CONTENTIONS THAT YOUR PROPRIETARY DESIGN APPROACHES WERE DISCLOSED BY THE GOVERNMENT IN AMENDMENT NO. 5 TO THE RFP:

"A. THE SPECIFIC FAIRCHILD HILLER ALLEGATION IS THAT THREE PARAGRAPHS (6, 8 AND 9) OF THE SPECIFICATION AMENDMENT NO. 1, DATED 13 JUNE 1967, DISCLOSE THEIR DESIGN APPROACH.

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

"C. PARAGRAPHS 8 AND 9 OF THE SPECIFICATION AMENDMENT RELATE TO PARAGRAPHS 3.2.1.1 AND 3.2.1.1.1 OF THE ORIGINAL SPECIFICATION WHICH ALLOW THE BIDDER A CHOICE OF INPUTS FROM THE DOPPLER NAVIGATOR BUT REQUIRE THAT THEY SUPPORT THEIR CHOICE WITH A SUITABLE TECHNICAL DESIGN. IN THEIR ORIGINAL BID, FAIRCHILD HILLER CHOSE TO USE SYNCHRO INPUTS AND ADEQUATELY DEFINED THAT CHOICE. BOWMAR CHOSE TO USE SO CALLED DELTA PULSE INPUTS BUT DID NOT DEFINE A DESIGN TO HANDLE THIS INPUT. AT THE MEETINGS OF THE WEEK OF 13 MARCH 1967, BOWMAR WAS ASKED TO EXPLAIN HOW THEY WOULD TREAT THOSE PULSES AND PARTICULARLY HOW THEY WOULD USE THEM TO DERIVE UTM COORDINATE POSITION DATA. BOWMAR'S ANSWER WAS THAT SINCE THE TIME OF THEIR ORIGINAL BID THEY HAD REEXAMINED THE MATTER OF THE DOPPLER NAVIGATOR INPUT AND NOW CHOSE TO USE SYNCHRO DATA INPUTS. THE FACT THAT BOWMAR DID MAKE THIS DISCLOSURE AT THIS TIME IS CLEARLY DOCUMENTED IN BOWMAR'S LETTER TO THE CONTRACTING OFFICER OF 13 MARCH 1967. THIS CHANGE IN DESIGN APPROACH WAS AN INDEPENDENT DECISION OF BOWMAR-S, UNAIDED BY ANY INFORMATION FROM ECOM. THE TECHNICAL EVALUATION OF 17 APRIL 1967 (SEE PARA 1F) ELECTED TO TREAT THIS DISCLOSURE AS NEW INFORMATION ACCEPTABLE ONLY UNDER THE LATE SUBMISSION ARTICLE. THE FACT THAT THE BOWMAR DISCLOSURE WAS SO TREATED IS EVIDENCE THAT ECOM HAD NOT INFLUENCED BOWMAR TOWARD CHANGING THEIR DESIGN IN THIS ASPECT. OTHERWISE, WE WOULD HAVE FOUND THE BOWMAR CHANGE IN DESIGN TO BE ADMISSABLE INFORMATION, MAKING THEIR BID PROPOSAL MORE ACCEPTABLE. ANOTHER POINT OF SIGNIFICANCE IN REFUTING THE FAIRCHILD HILLER ALLEGATION IS THAT THE -PROPRIETARY INFORMATION- THAT WE ARE ACCUSED OF GIVING TO BOWMAR (BUT WHICH WE DID NOT) IS IN OUR OPINION NOT PROPRIETARY INFORMATION. IT IS IN FACT ONLY A DISCOURSE ON WHY FAIRCHILD HILLER SELECTED THE PARTICULAR INPUT FROM THE NAVIGATOR THAT THEY DID. THE ASPECT OF THIS DISCOURSE THAT MIGHT BE PROPRIETARY, IF INDEED ANY IS, IS NOT KNOWN TO THIS LABORATORY. THE DECISION TO ISSUE PARAGRAPHS 8 AND 9 OF THE AMENDMENT WHICH REMOVED THE POSSIBILITY OF THE USE OF OPTIONAL INPUTS FROM THE DOPPLER NAVIGATOR WAS MADE SOLELY TO FORCE ALL BIDDERS IN THE RESOLICITATION TO USE THE ONE INPUT THAT WE HAVE FOUND SINCE PREPARATION OF THE ORIGINAL SPECIFICATION TO BE MOST ACCEPTABLE;, ADDITION TO THE ABOVE REPORT THE CONTRACTING OFFICER CATEGORICALLY DENIES THAT THE GOVERNMENT DISCLOSED YOUR PROPRIETARY DATA. WHILE YOU DISPUTE THIS STATEMENT WE HAVE NO ALTERNATIVE BUT TO ACCEPT THE FACTS AS REPORTED BY THE ARMY. IN FACTUAL DISPUTES, SUCH AS HERE, WHICH ARE TECHNICALLY BEYOND THE COMPETENCE OF OUR OFFICE BECAUSE OF THE ENGINEERING CONCEPTS INVOLVED, WE MUST ACCORD A SIGNIFICANT DEGREE OF FINALITY TO THE ADMINISTRATIVE POSITION. SINCE IT APPEARS THAT AMENDMENT NO. 5, WHICH YOU ALLEGE REVEALED YOUR PROPRIETARY DATA, WAS ISSUED 15 DAYS BEFORE AWARD OF THE CONTRACT AND SINCE YOU RAISED NO QUESTION REGARDING DISCLOSURE OF YOUR PROPRIETARY DATA UNTIL A CONTRACT WAS AWARDED, WE SEE NO PROPER BASIS FOR QUESTIONING THE ADMINISTRATIVE ACTION IN THIS REGARD.

REGARDING YOUR CONTENTION THAT AMENDMENT NO. 1 TO THE ECOM TECHNICAL REQUIREMENT SCL-8122 WAS UNNECESSARY, THE CONTRACTING OFFICER HAS FURNISHED THE FOLLOWING EXPLANATION REGARDING THE AMENDMENT: WHILE SECTION 3.1.1 OF SCL-8122 CITES DESIGN. THE FIRST PARAGRAPH OF WHILE SECTION 3.1.2 CITES DESIGN. THE FIRST PARAGRAPH OF AMENDMENT NO. 1 CORRECTED AN INCONSISTENCY THAT EXISTED BETWEEN PARAGRAPHS 3.1.1.3, 3.1.1.4 AND 3.1.2.4.1 AND .2 AND .3 AND .4. SPECIFICALLY THE REQUIREMENTS OF PARAGRAPHS 3.1.2.4.2 AND 3.1.2.4.4 WERE NOT REFLECTED IN PARAGRAPHS 3.1.1.3 AND 3.1.1.4. PARAGRAPHS 3.1.2.4.1 AND .2 AND .3 AND .4 CONTAINED A COLUMN ENTITLED -BCD.- UNDER BCD DRIFT ANGLE AND GROUND SPEED WERE SPECIFIED AS ITEMS TO BE ENCODED IN THE SENSORS; THESE SENSORS ARE IR, SLAR, KA-50 AND KA-60. AMENDMENT NO. 1 UNDER PARAGRAPH 3.1.1.3 CHANGED THE REQUIREMENTS FOR DRIFT ANGLE AND GROUND SPEED IN ONLY TWO SENSORS TO BE REQUIRED IN ALL THESE SENSORS; IR, SLAR, KA-50 AND KA-60.

"B. THE SECOND PARAGRAPH OF AMENDMENT NO. 1 CORRECTED AN INCONSISTENCY THAT EXISTED BETWEEN PARAGRAPHS 3.1.1.9 AND 3.1.2.4.3. PARAGRAPH 3.1.2.4.3 CITED BOTH BCD AND ALPHA NUMERIC WHILE 3.1.1.9 ONLY SPECIFIED BCD ORIGINALLY. THE SPECIFICATION AMENDMENT MAKES BOTH PARAGRAPHS AGREE.

"C. THE THIRD PARAGRAPH OF AMENDMENT NO. 1 CORRECTED AN INCONSISTENCY BETWEEN PARAGRAPHS 3.1.1.12 AND 3.1.2.4.4. PARAGRAPH 3.1.2.4.4 CITES A KA -60 REQUIREMENT WHILE 3.1.1.12 ONLY CITED A KA-50 REQUIREMENT. THE AMENDMENT ADDS KA-60 AND MAKES BOTH PARAGRAPHS AGREE.

"D. THE FOURTH PARAGRAPH OF AMENDMENT NO. 1 CORRECTED AN AMBIGUITY ARISING FROM AN ECOM CUSTOM CONNECTED WITH THE LANGUAGE APPEARING IN PARAGRAPH 3.1.2 WHICH READS AS FOLLOWS: -THE EQUIPMENT SHALL BE SOLID STATE DESIGN AND UTILIZE INTERGRATED CIRCUITS.- OUR CUSTOM DID NOT USUALLY RELATE THIS PHRASE TO SERVO DEVICES AND THEREFORE PERMITTED OFFERORS TO INTERPRET THIS LANGUAGE TO MEAN THAT ELECTRO-MECHANICAL SERVO'S WOULD BE ACCEPTABLE. SINCE WE DID NOT INTEND THIS INTERPRETATION, WE HAD TO AMEND THE SPECIFICATION TO MAKE IT CRYSTAL CLEAR THAT SOLID STATE DESIGN IS REQUIRED IN SERVO DEVICES IN ADDITION TO ALL OTHER CIRCUITRY. AS A RESULT OF THIS AMENDMENT, CONDUCTRON, IN THEIR REVISED PROPOSAL, CHANGED THEIR PRESENTATION. PRIOR TO THE AMENDMENT THOUGH, BOWMAR, ON ITS OWN, CHANGED TO SOLID STATE SERVO DESIGN FROM AN ELECTRO-MECHANICAL DESIGN.

"E. THE FIFTH PARAGRAPH OF AMENDMENT NO. 1 CORRECTED AN INCONSISTENCY BETWEEN PARAGRAPH 3.1.2.1.1 AND PARAGRAPHS 3.1.2.4.1 AND .2 AND .3 AND .4. UNDER PARAGRAPH 3.1.2.4.1, COUNTING ITEMS UNDER ALPHA NUMERIC, TOTALS 12, ITEMS UNDER BCD, TOTALS 17. THEREFORE, PARAGRAPH 3.1.2.1.1 ORIGINALLY CITED INCORRECT TOTALS. THE AMENDMENT MAKES BOTH PARAGRAPHS AGREE.

"F. THE SIXTH PARAGRAPH OF AMENDMENT NO. 1 CLARIFIED AN AMBIGUITY TO MAKE IT ABSOLUTELY CLEAR AND IN ACCORDANCE WITH OUR INTENT, THAT THE DESIGN OF THE CATHODE RAY TUBE AND THE OPTICAL PATH BETWEEN THE TUBE AND THE SENSOR FILM WAS THE RESPONSIBILTY OF THE DATA ANNOTATION SYSTEM CONTRACTOR. BOWMAR IN ITS ORIGINAL PROPOSAL LIMITED ITS DESIGN TO THE TUBE AND NOT THE OPTICAL PATH. A REASONABLE INTERPRETATION OF THE SPECIFICATION PRIOR TO THE AMENDMENT PERMITTED THEM TO SO LIMIT THEIR DESIGN RESPONSIBILITY, HENCE THE NEED FOR THE AMENDMENT.

"G. THE SEVENTH PARAGRAPH OF AMENDMENT NO. 1 CORRECTED AN ERROR WHICH IS SELF-EXPLANATORY. MIL-STD-782 IS USED THROUGHOUT THE SPECIFICATION AND THE REFERENCE TO MIL-STD-783 WAS JUST A MISTAKE.

"H. THE EIGHTH AND NINTH PARAGRAPHS OF AMENDMENT NO. 1 ARE DISCUSSED TOGETHER BECAUSE THE CHANGE MADE IN PARAGRAPH 3.2.1.1 ELIMINATED THE NEED FOR PARAGRAPH 3.2.1.1.1. IN THE LATTER PARAGRAPH, OFFERORS WERE AFFORDED AN OPTION OF UTILIZING 1 OF 3 METHODS FOR TAKING OUTPUT FROM THE DOPPLER NAVIGATOR INTO THE DATA ANNOTATION SYSTEM. THE CHANGE CONSISTED OF ELIMINATING THE OPTIONS AND DIRECTING ALL OFFERORS TO UTILIZE ONLY THE METHOD FOUND IN PARAGRAPH 3.2.1.1.1A WHICH WAS INSERTED INTO PARAGRAPH 3.2.1.1. THE CHANGE CAME ABOUT THROUGH OUR CONTINUING ANALYSIS OF THE DATA ANNOTATION SYSTEMS AND THE EQUIPMENTS TO WHICH IT MUST INTERFACE, I.E. NEW NAVIGATION SYSTEMS CONTAINING UTM COORDINATE OUTPUTS. CONCLUDED THAT THE METHOD OF PARAGRAPH 3.2.1.1.1A WAS THE ONLY TECHNICALLY PRACTICABLE METHOD AND THAT WE SHOULD NOT PERMIT BIDDERS TO BID UPON THE METHODS DESCRIBED IN PARAGRAPHS 3.2.1.1.1B AND C. INITIALLY,TWO (2) FIRMS HAD SUBMITTED PROPOSALS UTILIZING METHODS WHICH WE SUBSEQUENTLY DECIDED WERE UNACCEPTABLE AND THESE FIRMS WERE BOWMAR AND NATIONAL. BOWMAR, ON ITS OWN AND PRIOR TO AMENDMENT NO. 1, CHANGED FROM ONE OF THE UNACCEPTABLE METHODS TO THE ONLY ACCEPTABLE ONE BUT NATIONAL CHANGED ONLY AFTER THEY RECEIVED AMENDMENT NO. 1.

"I. THE TENTH PARAGRAPH OF AMENDMENT NO. 1 CORRECTED AN ERROR BY COMPLETING PARAGRAPH 3.2.2.1. OMITTED FROM THIS PARAGRAPH WAS THE REQUIREMENT FOR A COMMAND PULSE FOR DATA ANNOTATION IN THE SENSOR. THIS OMISSION WAS BROUGHT TO OUR ATTENTION DURING THE PRE-PROPOSAL CONFERENCE WHICH TOOK PLACE IN NOVEMBER OF 1966 AND WE IMMEDIATELY CORRECTED THE OMISSION AT THIS CONFERENCE. AMENDMENT NO. 1 CONFIRMED THE ADVICE GIVEN AT THE PRE-PROPOSAL CONFERENCE AND INSERTED THE REQUIREMENT INTO THE SPECIFICATION.

"J. THE ELEVENTH PARAGRAPH OF AMENDMENT NO. 1 CORRECTED AN ERROR WHICH OFFERORS WERE FIRST ALERTED TO IN THE SECOND AMENDMENT TO THE SOLICITATION AND SUBSEQUENTLY, THE SPECIFICATION WAS CORRECTED WITH AMENDMENT NO. 1. THE ORIGINAL REFERENCE TO AN/AKT-18 WAS AN OBVIOUS ERROR. THIS WAS REASON FOR THE CORRECTION. THE ELECTRICAL SIGNAL WHICH PRODUCES THE FIDUCIAL MARK RECEIVES ITS TIMING FROM THE AN/AYA 5.

"K. THE TWELFTH PARAGRAPH OF AMENDMENT NO. 1 CORRECTED AN INCONSISTENCY BETWEEN PARAGRAPHS 3.1.1.6 AND 3.1.2.4.3. PARAGRAPH 3.1.2.4.3; PITCH AND ROLL ARE SPECIFIED AS ITEMS TO BE ENCODED UNDER SLAR. THIS AMENDMENT NO. 1 MAKES PARAGRAPHS 3.1.1.6 AND 3.1.2.4.3 AGREE.

"5. OF THE 12 MATTERS CONCERNED WITH AMENDMENT NO. 1, FOUR WERE ABSOLUTELY NECESSARY AND THESE WERE PARAGRAPHS 4, 6, 8 AND 9. CORRECTING THE AMBIGUITIES AS WE DID IN PARAGRAPHS 4 AND 6 WAS ESSENTIAL FOR THE REASONS GIVEN ABOVE AND THE REMOVAL OF OPTIONS THE OFFERORS MAY SELECT AS EFFECTED IN PARAGRAPHS 8 AND 9 WAS A DECISION WE, THE CUSTOMER, MADE.

"6. THE OTHER MATTERS CONTAINED IN AMENDMENT NO. 1, NAMELY PARAGRAPHS 1, 2, 3, 5, 7, 10, 11 AND 12, WERE MATTERS THAT WERE INSERTED IN THE AMENDMENT BECAUSE THERE WAS AN OPPORTUNITY TO CORRECT INCONSISTENCIES OR MISTAKES, SINCE THE SPECIFICATION WAS BEING AMENDED TO CORRECT THE MATTERS DISCUSSED IN PARAGRAPHS 4, 6, 8 AND 9. IN OTHER WORDS, AS LONG AS WE WERE AMENDING THE SPECIFICATION TO CORRECT AMBIGUITIES AND REMOVE OPTIONS, WE TOOK ADVANTAGE OF THE OPPORTUNITY TO CORRECT OTHER PARAGRAPHS IN THE SPECIFICATION. I THINK WE CAN SUM THIS UP BY SAYING THE CORRECTIONS MADE IN PARAGRAPHS 1, 2, 3, 5, 7, 10, 11 AND 12 RESULT FROM GOOD ENGINEERING ACTICE.'

WHILE IT WAS NOT NECESSARY FOR YOUR PROPOSAL TO BE CHANGED BECAUSE OF THE AMENDMENT, IT IS REPORTED THAT YOUR PROPOSAL WAS UNACCEPTABLE BECAUSE OF THE FOLLOWING TECHNICAL DEFICIENCIES:

"A. THE PROPOSAL INDICATED THAT THE SIGNAL DATA CONVERTER WOULD WEIGH 28 LBS. AND THE CONTROL AND MONITOR PANEL WOULD WEIGH 4 LBS. PARAGRAPH 3.1.2.7, SCL-8122, STATES THAT THE WEIGHT OF THE SIGNAL DATA CONVERTER SHALL NOT EXCEED 22 LBS. AND THE WEIGHT OF THE CONTROL AND MONITOR PANEL SHALL NOT EXCEED 3 LBS.

"B. THE PROPOSAL DID NOT GIVE CONSIDERATION TO CONVERTING THE BCD DATA TO A -6 WIRE CODE- AS REQUIRED BY PARAGRAPH 3.2.3.3E OF SCL-8122.

"C. THE PROPOSAL DID NOT GIVE A DETAILED CONSIDERATION TO THE GATING OF THE ANNOTATION DATA AND MULTIPLEXING IT WITH THE SLAR VIDEO FOR TRANSMISSION TO A GROUND SENSOR TERMINAL AS CALLED FOR IN PARAGRAPH 3.2.3.3D AND PARAGRAPH 3.2.4.2B, SCL-8122. (TECHNICAL EVALUATION DATED 5 JUNE 1967.)

"3. AS A RESULT OF THEIR BEING INFORMED OF THE REASONS WHY THEIR PROPOSAL WAS UNACCEPTABLE, FAIRCHILD ADDRESSED THEMSELVES IN THEIR REVISED PROPOSAL OF 23 JUNE 1967, TO THE DEFICIENCIES. THEIR REVISED PROPOSAL CORRECTED THE DEFICIENCIES NOTED ABOVE AND THEY WERE THEREAFTER CONSIDERED TO HAVE SUBMITTED A TECHNICALLY ACCEPTABLE PROPOSAL.'

IN VIEW OF THE ABOVE REPORT, WE CAN NEITHER AGREE WITH YOUR CONTENTION THAT THE REFERRED-TO AMENDMENT WAS UNNECESSARY, NOR PROPERLY SUBSTITUTE OUR JUDGMENT FOR THE TECHNICAL DETERMINATION THAT YOUR PROPOSAL WAS UNACCEPTABLE.