B-165685-/3), JUL. 24, 1969

B-165685-/3): Jul 24, 1969

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A REVIEW OF THE ACTIONS INDICATES THAT THEY WERE THE RESULT OF THE UNSOUND EXERCISE OF DESCRIPTION RATHER THAN RESULT OF BAD FAITH OR IN VIOLATION OF LAW OR REGULATION. CONNER AND CUNEO: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 22. BECAUSE OF A PRESSING NEED WHICH WAS FOUND TO EXIST IN MID 1968. THE INSTANT PROCUREMENT WAS NEGOTIATED PURSUANT TO THE AUTHORITY OF 10 U.S.C. 2304 (A) (2). IT IS REPORTED THAT DURING NEGOTIATIONS THE QUANTITY WAS INCREASED FROM 40. THREE WERE CONSIDERED TO BE OUTSIDE THE COMPETITIVE PRICE RANGE. 000 SETS OF THE ARMOR WAS MADE TO CARBORUNDUM AS THE RESPONSIBLE OFFEROR WHOSE OFFER. WAS FOUND TO BE MOST ADVANTAGEOUS TO THE GOVERNMENT. WAS $16. A 50 PERCENT OPTION CLAUSE REQUESTED BY THE SUPPLY DIVISION DURING NEGOTIATIONS WHICH WAS INCLUDED IN THE CONTRACT AWARDED.

B-165685-/3), JUL. 24, 1969

BID PROTEST - SAMPLE CONFORMITY - UNSOUND CONTRACTING OFFICER DETERMINATION DECISION DENYING PROTEST OF NORTON CO. AGAINST AWARD OF NEGOTIATED CONTRACT FOR FURNISHING ARMOR VESTS TO CARBORUNDUM CO. BY DEFENSE PERSONNEL SUPPORT CENTER ON THE BASIS THAT THE SUCCESSFUL BIDDER'S SAMPLES DID NOT MEET THE SPECIFICATIONS BECAUSE OF FAULTY TESTING PROCEDURES. A REVIEW OF THE ACTIONS INDICATES THAT THEY WERE THE RESULT OF THE UNSOUND EXERCISE OF DESCRIPTION RATHER THAN RESULT OF BAD FAITH OR IN VIOLATION OF LAW OR REGULATION. THEREFORE THE CONTRACT CANNOT BE CONSIDERED VOID AB INITIO. THE OPTION IN THE PRESENT CONTRACT SHOULD NOT BE EXERCISED WITHOUT FIRST DETERMINING FROM BOTH QUALITY AND PRICE THAT SUCH ACTION WOULD BE IN INTEREST OF GOVERNMENT.

TO SELLERS, CONNER AND CUNEO:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 22, 1968, AND SUBSEQUENT CORRESPONDENCE PROTESTING ON BEHALF OF NORTON COMPANY (NORTON) AGAINST THE AWARD OF A CONTRACT TO CARBORUNDUM COMPANY (CARBORUNDUM); AGAINST THE EXERCISE OF ANY OPTIONS; AND AGAINST ISSUANCE OF ANY CHANGE ORDERS RELAXING THE REQUIREMENTS UNDER SOLICITATION NO. DSA-100-69-R-0150, ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER (DPSC), PHILADELPHIA, PENNSYLVANIA.

BECAUSE OF A PRESSING NEED WHICH WAS FOUND TO EXIST IN MID 1968, THE INSTANT PROCUREMENT WAS NEGOTIATED PURSUANT TO THE AUTHORITY OF 10 U.S.C. 2304 (A) (2), AS IMPLEMENTED BY SECTION 3-202 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

THE REQUEST FOR PROPOSALS (RFP), ISSUED ON JULY 26, 1968, CALLED FOR QUOTATIONS BY AUGUST 22, 1968, ON THE MANUFACTURE AND DELIVERY OF 40,000 SETS OF BODY ARMOR GROUND TROOPS VARIABLE TYPE SMALL ARMS FRAGMENTATION PROTECTIVE NYLON FELT VEST, FRONT-BACK PLATES, CERAMIC PLATE TYPE I. IT IS REPORTED THAT DURING NEGOTIATIONS THE QUANTITY WAS INCREASED FROM 40,000 SETS TO 46,000 SETS.

OF THE SIX FIRMS WHICH RESPONDED TO THE SOLICITATION, THREE WERE CONSIDERED TO BE OUTSIDE THE COMPETITIVE PRICE RANGE. ON OCTOBER 2, 1968, AWARD OF A CONTRACT FOR 46,000 SETS OF THE ARMOR WAS MADE TO CARBORUNDUM AS THE RESPONSIBLE OFFEROR WHOSE OFFER, CONFORMING TO THE SOLICITATION, WAS FOUND TO BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. THE TOTAL PRICE OF THE AWARD, INCLUDING GOVERNMENT FURNISHED MATERIAL, WAS $16,109,890. A 50 PERCENT OPTION CLAUSE REQUESTED BY THE SUPPLY DIVISION DURING NEGOTIATIONS WHICH WAS INCLUDED IN THE CONTRACT AWARDED, MAY BE EXERCISED UNTIL NOVEMBER 1969 WITH UNIT PRICES FOR THE OPTION QUANTITY THE SAME AS THE CONTRACT UNIT PRICES.

THE SOLICITATION REQUIRED THAT THE ITEMS BE MANUFACTURED IN ACCORDANCE WITH SPECIFICATION LP/P DES NO. 22-68 DATED JUNE 11, 1968, AND LP/P DES NO. 20-68 DATED MAY 3, 1968, WITH DEVIATIONS. THE PERTINENT PORTIONS OF THE SPECIFICATIONS, AS AMENDED BY THE DEVIATIONS LISTED IN THE SOLICITATION, MAY BE SUMMARIZED AS FOLLOWS:

(1) PARAGRAPH 1.2 PRESCRIBES A MAXIMUM A REAL DENSITY FOR TYPE 1 BODY ARMOR (THE ONLY TYPE COVERED BY THIS PROCUREMENT) OF 6.6 POUNDS PER SQUARE FOOT WITH SPALL COVER ON, AND 6.45 POUNDS PER SQUARE FOOT WITH SPALL COVER OFF.

(2) PARAGRAPH 3.6.4 PROVIDES THAT MAXIMUM A REAL DENSITY PRIOR TO APPLICATION OF THE SPALL COVER, WHEN TESTED IN ACCORDANCE WITH 4.4.2.2, SHALL BE 6.45 POUNDS PER SQUARE FOOT.

(3) PARAGRAPH 4.4.2.2 PROVIDES FOR INTERMEDIATE TESTING FOR A REAL DENSITY, AND REQUIRES TESTING OF THE ARMOR PRIOR TO APPLICATION OF THE SPALL COVER IN ACCORDANCE WITH 4.6.4.

(4) PARAGRAPH 4.6.4 PROVIDES QUALITY ASSURANCE TEST PROCEDURES FOR DETERMINING A REAL DENSITY, TO BE PERFORMED PRIOR TO APPLICATION OF THE SPALL COVER. THE TECHNIQUES SPECIFIED INVOLVE A VOLUME DETERMINATION BY WEIGHING IN AIR AND WATER (YIELDING THE WEIGHT, AND HENCE VOLUME OF WATER DISPLACED), A THICKNESS MEASUREMENT (WHICH, WHEN DIVIDED INTO THE VOLUME YIELDS AREA), AND FINALLY, DIVIDING THE AREA BY THE WEIGHT TO YIELD A REAL DENSITY. THE A REAL DENSITY OF THE COMPOSITE LAMINATE, INCLUDING SPALL COVER, WAS TO BE CALCULATED TO THE NEAREST 0.1 POUNDS PER SQUARE FOOT AS FOLLOWS: A REAL DENSITY (POUNDS PER SQUARE FOOT) EQUALS (5.202 X DENSITY (SPECIFIC GRAVITY) (GM/CC) X THICKNESS (INCHES) ).

PARAGRAPH 3.1 OF LP/P DES NO. 20-68 ENTITLED "BID INFORMATION" AT SUBPARAGRAPH (E) THEREOF, TOGETHER WITH ADDITIONAL SPECIAL PROVISIONS 4 AND 5 ON PAGE 6 OF THE SOLICITATION, REQUIRED OFFERORS TO SUBMIT, FOR PREAWARD EVALUATION AND TESTING, 10 PREAWARD SAMPLES WITH SPALL COVER ON FOR THE PURPOSE OF DETERMINING CONFORMANCE TO THE A REAL DENSITY REQUIREMENTS SET FORTH IN PARAGRAPH 3.6.4, I.E., THE MAXIMUM A REAL DENSITY PRIOR TO APPLICATION OF THE SPALL COVER, AND THE BALLISTIC REQUIREMENTS SET FORTH IN PARAGRAPH 3.6.1. HOWEVER, PARAGRAPH 3.1 (E) FURTHER PROVIDED THAT A REAL DENSITY OF THE SAMPLES WOULD BE DETERMINED AS SPECIFIED IN PARAGRAPH 3.6.4 EXCEPT THAT IT SHOULD BE DETERMINED WITH SPALL COVER ON.

THUS, ACCORDING TO PARAGRAPH 3.1 (E) OF THE SPECIFICATIONS, THE MEASUREMENT OF A REAL DENSITY WITH THE SPALL COVER ON WAS TO BE USED TO DETERMINE THE A REAL DENSITY WITH THE SPALL COVER OFF. THE SPALL COVER, IT IS REPORTED, WEIGHS AN AVERAGE OF .15 POUNDS PER SQUARE FOOT, SO AN A REAL DENSITY OF 6.6 POUNDS PER SQUARE FOOT WITH SPALL COVER ON WAS CONSIDERED ADEQUATE TO MEET THE REQUIREMENT OF 6.45 POUNDS PER SQUARE FOOT WITHOUT SPALL COVER.

ON AUGUST 29, 1968, NORTON SUBMITTED THE SAMPLES REQUIRED BY THE SOLICITATION TO WATERTOWN ARSENAL (AMMRC), THE TESTING LABORATORY CHOSEN BY THE PROCURING ACTIVITY FOR PREAWARD TESTING, AND FROM THE OFFICIAL RECORD BEFORE US IT APPEARS THAT NORTON MET THE SPECIFICATIONS REQUIREMENTS BOTH AS TO A REAL DENSITY AND TO BALLISTICS. ON THE SAME DATE NORTON ADVISED DPSC THAT BEFORE THEY DELIVERED THE REQUIRED SAMPLES AN ANALYSIS OF A REAL DENSITIES WAS CONDUCTED BY THEM SO AS TO INSURE THAT THEIR SAMPLES WOULD BE WITHIN THE REQUIRED LIMITS. AT THE SAME TIME NORTON INFORMED DPSC THAT AN INCONSISTENCY EXISTED BETWEEN THE A REAL DENSITY BEFORE AND AFTER SPALL SHIELD APPLICATION WHEN MEASURED BY THE WATER VOLUME DISPLACEMENT METHOD. NORTON REPORTED THAT SPALL SHIELD AND CEMENT, WITH A GIVEN A REAL DENSITY, WHEN APPLIED TO THE FRONT PLATE DOES NOT PRODUCE AN APPROPRIATE A REAL DENSITY INCREASE WHEN MEASURED IN ACCORDANCE WITH THE SPECIFICATIONS. NORTON EXPLAINED THAT THIS PHENOMENON WAS BELIEVED TO BE CAUSED BY THE ENTRAPMENT OF MINUTE AIR PARTICLES WITHIN THE SPALL SHIELD AND ADHESIVE, AND THAT THE APPROPRIATE WEIGHT GAIN IS EITHER MASKED OR COMPLETELY ELIMINATED, WITH THE RESULT THAT THE MEASURED A REAL DENSITIES ARE DECEPTIVELY LOW.

ON AUGUST 28, 1968, FIVE OF CARBORUNDUM'S 10 SAMPLES, I.E., NOS. 1, 3, 5, 7 AND 9 WERE TESTED FOR A REAL DENSITY AND FAILED WITH AN AVERAGE DENSITY OF 6.704 POUNDS PER SQUARE FOOT. THE DAY BEFORE (AUGUST 27, 1968) SHIELD NOS. 2, 4 AND 10 WERE TESTED BALLISTICALLY. THIS TEST WAS TERMINATED BECAUSE THE HIGHEST PARTIAL PENETRATION WAS ACHIEVED AT LESS THAN THE REQUIRED FEET PER SECOND. ALL OF THE 10 CARBORUNDUM SAMPLES WERE TAKEN BACK TO THE COMPANY. ON SEPTEMBER 2, 1968, IT IS REPORTED THAT CARBORUNDUM'S SECOND SET OF 10 SAMPLES WERE SUBMITTED. ON THAT DATE SHIELD NOS. 1, 5 AND 8 WERE TESTED BALLISTICALLY AND PASSED. ON SEPTEMBER 3, 1968, THE RECORDS INDICATE THAT ALL 10 CARBORUNDUM SAMPLES WERE TESTED FOR A REAL DENSITY AND FAILED WITH AN AVERAGE DENSITY OF 6.947 POUNDS PER SQUARE FOOT. IN THIS REGARD, IT HAS NOT BEEN EXPLAINED HOW SHIELD NOS. 1, 5 AND 8, WHICH WERE TESTED FOR BALLISTICS REQUIREMENTS ON SEPTEMBER 2, 1968, COULD THEN BE TESTED THE NEXT DAY FOR A REAL DENSITY.

ON SEPTEMBER 4, 1968, CARBORUNDUM'S SHIELDS NOS. 2, 3, 4, 6, 7, 9 AND 10, TOGETHER WITH NORTON'S SAMPLE NO. 15, WERE TAKEN TO NATICK FOR THE STATED PURPOSE: "THE AMMRE REPRESENTATIVES WERE TO MAKE A COMPARISON BETWEEN RESULTS ON THESE TESTS AND TESTS THEY HAD CONDUCTED EARLIER AT WATERTOWN ON THE SAME PIECES OF ARMOR.' THE NORTON SAMPLES PASSED THE A REAL DENSITY TEST, BUT CARBORUNDUM'S SEVEN SAMPLES (2ND SUBMITTED) FAILED WITH AN AVERAGE DENSITY OF 6.95 POUNDS PER SQUARE FOOT. IN AN UNDATED REPORT FROM NATICK TO AMMRC IT IS STATED: "ON SEPTEMBER 9, 1968, TWO REPRESENTATIVES FROM THE CARBORUNDUM COMPANY, NIAGARA FALLS, NEW YORK, VISITED THE PLASTICS DIVISION, NLABS. THE PURPOSE OF THEIR VISIT WAS TO OBTAIN A REAL DENSITIES ON SAMPLES OF BODY ARMOR MADE BY THEIR COMPANY. WITH THEM THEY BROUGHT SEVEN SAMPLES TO BE CHECKED. THESE SEVEN SAMPLES WERE TESTED FOR A REAL DENSITY A FEW DAYS BEFORE AND IT WAS FOUND THAT THE A REAL DENSITIES WERE TOO HIGH AND DID NOT FALL WITHIN THE REQUIREMENTS OF THE SPECIFICATION. IT WAS DECIDED AT THAT PREVIOUS MEETING THAT THE POSSIBILITY OF AN EXTRA AMOUNT OF PAINT HAD BEEN APPLIED TO THE BACKING OF THE ARMOR, LEADING TO A GREATER THICKNESS AND MORE WEIGHT ON THE ARMOR. SINCE THE SPECIFICATION DOES NOT STATE WHETHER THE THICKNESS READINGS SHOULD BE TAKEN BEFORE OR AFTER THE PAINT HAS BEEN APPLIED, THE SAMPLES WERE BROUGHT BACK TO CARBORUNDUM COMPANY AND AS MUCH PAINT AS POSSIBLE REMOVED FROM THE BACKING. THESE SAMPLES WERE THEN READY TO BE CHECKED AGAIN FOR A NEW A REAL DENSITY. * * *"

THE CHART FURNISHING THE RESULT OF THESE TESTS REVEALS THAT WITHOUT USING THE WATER TEMPERATURE CORRECTION ).9975) IN THE FORMULA, AND USING THE AVERAGE OF FIVE THICKNESS READINGS, THE AVERAGE A REAL DENSITY FOR THE SEVEN SAMPLES WAS 6.626 POUNDS PER SQUARE FOOT.

IT WAS FOUND THAT THE DENSITIES COULD VARY DEPENDING ON WHICH THICKNESS MEASUREMENT THE INSPECTOR DECIDED TO USE. NATICK THEREFORE REQUESTED AMMRC TO PERMIT IT TO TAKE AN AVERAGE OF FIVE READINGS ON THE CORNERS AND AN AVERAGE OF FIVE MORE BE TAKEN FROM TOP TO MIDDLE AND BOTTOM TO MIDDLE, FOR A TOTAL OF 30 READINGS. NATICK ALSO REQUESTED THAT THE WATER TEMPERATURE CORRECTION BE INSERTED INTO THE FORMULA. IT WAS FELT BY NATICK THAT THESE CHANGES "WOULD PREVENT THE POSSIBLE CHANCE OF ACCUSATIONS THAT A BIASED FINDING IN THE A REAL DENSITIES WAS GIVEN.' AFTER AMMRC AGREED TO THOSE CHANGES THE SEVEN SAMPLES WERE AGAIN TESTED AT NATICK AND AN AVERAGE A REAL DENSITY OF 6.608 WAS OBTAINED. AS A RESULT OF THE EXPERIENCE GAINED FROM THESE TWO TESTS IT WAS RECOMMENDED BY NATICK THAT THE THICKNESS AVERAGE BE USED BECAUSE "THIS TYPE OF INSPECTION IS GREATLY NEEDED ESPECIALLY IN CASES WHERE THE BIDDERS ITEM IS ON THE BORDERLINE OF ACCEPTABILITY OR NONACCEPTABILITY. IT IS FURTHER RECOMMENDED THAT THE SPECIFICATION BE CHANGED AND THAT ALL THICKNESS READINGS BE TAKEN EITHER BEFORE OR AFTER THE PAINT HAS BEEN APPLIED TO THE BACKUP. UNDER THE PRESENT SET OF CONDITIONS, THE READINGS CAN BE TAKEN EITHER WAY RESULTING IN TOTALLY DIFFERENT A REAL DENSITIES.'

ON OCTOBER 1, 1968, NORTON ADVISED DPSC BY TELEGRAM OF THE APPARENT INVALIDITY OF ANY CONTRACT AWARD TO CARBORUNDUM DUE TO THE A REAL DENSITY MEASUREMENT DISCREPANCY. ON OCTOBER 2, 1968, DPSC REPLIED THAT THE REQUIREMENT FOR MEASURING A REAL DENSITY WITH SPALL COVER ON "OBVIATES THE NECESSITY FOR TESTING BID SAMPLES WITHOUT SPALL COVER.' BETWEEN OCTOBER 3 AND OCTOBER 16, 1968, NUMEROUS EXCHANGES, BOTH ORAL AND WRITTEN, TOOK PLACE BETWEEN NORTON AND DPSC. ON OCTOBER 17, 1968, DPSC SENT NORTON A TELEGRAM STATING INTER ALIA:

"THE FUNCTION OF A PRE-AWARD SAMPLE IS TO ASSIST THE CONTRACTING OFFICER TO DETERMINE A MANUFACTURER'S ABILITY TO PRODUCE. A PRE-AWARD SAMPLE DOES NOT AFFECT THE RESPONSIVENESS OF A BID BUT RATHER GOES TO THE RESPONSIBILITY OF AN OFFEROR. MORE IMPORTANTLY, SUCH A PRE-AWARD SAMPLE CANNOT BE CONSIDERED AS MODIFYING THE OBLIGATION OF AN OFFEROR TO FURNISH ARTICLES STRICTLY COMPLYING WITH THE SPECIFICATIONS, IRRESPECTIVE OF ANY DEFICIENCIES IN THE PRE-AWARD SAMPLE. CONSEQUENTLY, GOVERNMENT ACCEPTANCE TESTING ON PRODUCTION LOTS WILL BE PERFORMED ON CERAMIC PLATES WITHOUT SPALL COVER UNDER A MAXIMUM A REAL DENSITY SPECIFICATION REQUIREMENT OF 6.45 POUNDS PER SQUARE FOOT.'

IN YOUR BRIEFS FILED ON BEHALF OF YOUR CLIENT, AND IN CONFERENCES HELD WITH THE STAFF OF THIS OFFICE, MANY ARGUMENTS, HYPOTHESES AND TEST DATA HAVE BEEN PRESENTED IN SUPPORT OF THE PROTEST. HOWEVER, WE THINK YOUR OWN ANALYSIS OF THE "NATURE OF THE PROBLEM" PRESENTED IN YOUR BRIEF OF DECEMBER 31, 1968, BEST EXPLAINS AND PRESENTS MOST CLEARLY THE POINTS TO BE RESOLVED IN THE DISPOSITION OF THIS MATTER. THERE IT IS STATED:

"NORTON IS CONVINCED THAT ALTHOUGH THE CONTRACTOR'S PRE-AWARD SAMPLES MAY HAVE BEEN CONSIDERED TO MEET THE SPECIFICATION REQUIREMENTS FOR MAXIMUM A REAL DENSITY WITH SPALL COVER OFF, BASED ON TESTING WITH SPALL COVER ON, THE SAMPLES COULD NOT HAVE MET THE SPECIFICATION REQUIREMENTS IF THE TEST HAD BEEN PERFORMED WITH SPALL COVER OFF--- AT LEAST NOT IF THE SAMPLES MET THE BALLISTIC PERFORMANCE REQUIREMENTS. THUS, IT APPEARS THAT THE CONTRACT WAS AWARDED TO A CONTRACTOR WHO WAS OFFERING ITEMS NOT CONFORMING TO THE SPECIFICATIONS. FURTHERMORE, IF NORTON HAD BEEN ABLE TO PROPOSE ON THE BASIS OF THE LESSER SPECIFICATIONS WHICH THE CONTRACTOR'S SAMPLES MET, NORTON WOULD DEFINITELY HAVE BEEN ABLE TO OFFER A LOWER PRICE THAN THE CONTRACTOR AND THEREFORE WOULD HAVE OBTAINED THE CONTRACT.

"IN BRIEF, THESE CIRCUMSTANCES CREATE THE FOLLOWING THREE-FOLD PROBLEM:

"/1) THERE WAS NO TRUE MEETING OF THE MINDS BETWEEN THE GOVERNMENT AND THE CONTRACTOR AS TO WHAT ITEMS ARE TO BE FURNISHED UNDER THE CONTRACT. IN ADDITION, THE CONTRACTING OFFICER WAS WITHOUT AUTHORITY TO AWARD THE CONTRACT TO AN OFFEROR WHO WAS OFFERING NONCONFORMING ITEMS. TO MAKE SUCH AN AWARD WAS A DENIAL OF STATUTORY AND REGULATORY REQUIREMENTS FOR COMPETITION, AND DENIED NORTON AND THE OTHER UNSUCCESSFUL OFFERORS THEIR RIGHT TO COMPETE ON AN EQUAL BASIS. FOR THESE REASONS, THE CONTRACT IS VOID, AND MUST BE CANCELLED AND RECOMPETED.

"/2) IF THE CONTRACT IS NOT CANCELLED, THEN IT IS QUITE PROBABLE THAT A DISPUTE WILL ARISE BETWEEN THE CONTRACTOR AND THE GOVERNMENT. THE CONTRACTOR WILL UNDOUBTEDLY INTERPRET THE CONTRACT AS MERELY REQUIRING DELIVERY OF ITEMS CONFORMING TO THE PRE-AWARD SAMPLES. THE GOVERNMENT WILL INSIST THAT HE COMPLY WITH THE SPECIFICATIONS, AND THE CONTRACTOR WILL THEN PROBABLY SUBMIT A CONSTRUCTIVE CHANGE CLAIM TO COVER ITS INCREASED COSTS OF DOING SO. THE GOVERNMENT SHOULD NOT TAKE ANY ACTION TO -BAIL OUT- THE CONTRACTOR OR TO RELIEVE HIM IN ANY WAY FROM MEETING HIS FULL CONTRACTUAL OBLIGATIONS; AND THE GOVERNMENT SHOULD ALSO TAKE ALL STEPS NECESSARY TO PROTECT ITS OWN INTERESTS IN THE EVENT THE CONTRACTOR DOES NOT MEET HIS OBLIGATIONS. "/3) IT MAY WELL BE THAT A REQUIREMENT WILL ARISE FOR ADDITIONAL QUANTITIES OF THE ARMOR. IF THE CURRENT CONTRACT IS NOT CANCELLED FOR INVALIDITY, THEN THE NATURAL METHOD OF PROCURING ADDITIONAL QUANTITIES WOULD BE EXERCISE OF THE OPTION UNDER THE CURRENT CONTRACT. HOWEVER, IN VIEW OF THE IRREGULARITIES SURROUNDING AWARD, AND IN VIEW OF THE DISPUTES WHICH WILL UNDOUBTEDLY ARISE IN PERFORMANCE, THE GOVERNMENT SHOULD NOT EXERCISE THE OPTION.'

THE INITIAL REPORT OF THE CONTRACTING OFFICER DATED DECEMBER 19, 1968, IN RESPONSE TO YOUR LETTER OF NOVEMBER 22, 1968, FURNISHED THE FOLLOWING INFORMATION AND COMMENTS:

"* * * NORTON WAS INFORMED IN THIS CENTER'S TELEGRAM OF 2 OCTOBER 1968 THAT THE PREAWARD SAMPLES SUBMITTED BY CARBORUNDUM, AS WELL AS THOSE SUBMITTED BY NORTON, WERE TESTED WITH SPALL COVER AND WERE FOUND TO BE WITHIN THE MAXIMUM A REAL DENSITY REQUIREMENT OF 6.6 LBS. PER SQ. FT. (AS A MATTER OF FACT, THE PREAWARD SAMPLES SUBMITTED BY ALL OFFERORS WERE TESTED WITH SPALL COVER). NORTON WAS ALSO INFORMED THAT DURING PRODUCTION THE A REAL DENSITY TEST WOULD BE PERFORMED ON CERAMIC PLATES WITHOUT SPALL COVER. THE REASON FOR TESTING THE PREAWARD SAMPLES WITH SPALL COVER WAS THAT CERTAIN CHARACTERISTICS OTHER THAN A REAL DENSITY (FOR EXAMPLE, BALLISTIC REQUIREMENT) COULD ONLY BE TESTED ON BODY ARMOR WITH SPALL COVER.

"BY TELEGRAM DATED 3 OCTOBER 1968 * * *, NORTON AGREED THAT THE -BID SAMPLES WERE TO BE EVALUATED WITH SPALL COVER ON. HOWEVER, NORTON MAINTAINED THAT THIS SAME PARAGRAPH (PRESUMABLY PARA. 3.1 (E) OF LP/P DES 20-68) STATES THIS WAS TO DETERMINE THAT SAMPLES CONFORM TO THE REQUIREMENTS OF PARA. 3.6.4. THE KEY WORD IN THE FOREGOING SENTENCES IS - CONFORM.- AS DISCUSSED ABOVE, IN ORDER TO DETERMINE CONFORMANCE WITH THE A REAL DENSITY REQUIREMENT OF PARA. 3.6.4, PARA. 3.1 (E) FURTHER STATES THAT THE SAMPLES SHALL BE TESTED WITH SPALL COVER. THE INEVITABLE CONCLUSION IS THAT CONFORMANCE TO THE MAXIMUM A REAL DENSITY REQUIREMENT OF 6.45 LBS. PER SQ. FT. PRIOR TO APPLICATION OF THE SPALL COVER CONTAINED IN PARA. 3.6.4 IS SHOWN WHEN THE SAMPLES TESTED MET THE REQUIREMENT OF 6.6 LBS. PER SQ. FT. WHEN TESTED WITH SPALL COVER AS SET FORTH IN PARA. 1.2. * * *.

"THE CONTRACTING OFFICER HAS NO VERIFICATION OF NORTON'S CLAIM CONCERNING INVALIDITY OF A REAL DENSITY MEASUREMENT. HOWEVER, FOR THE REASONS STATED IN THIS CENTER'S TELEGRAM OF 17 OCTOBER 1968 * * *, WHICH WAS IN REPLY TO NORTON'S TELEGRAM OF 3 OCTOBER 1968, EVEN, ASSUMING ARGUENDO, THERE IS NO CORRELATION BETWEEN TESTING WITH AND WITHOUT SPALL COVER, THE VALIDITY OF CARBORUNDUM'S CONTRACT IS NOT AFFECTED THEREBY. * * * THE FOREGOING TELEGRAM WAS INTENDED TO CONVEY TO NORTON THE SIGNIFICANCE OF A PREAWARD SAMPLE AS DISTINGUISHED FROM A BID SAMPLE. (SEE ASPR 2-202.4). IT WAS NOT INTENDED TO IMPLY THAT THERE WERE ANY DEFICIENCES IN TESTING THE PREAWARD SAMPLE; RATHER THAT SUCH PREAWARD TEST DID NOT, IN ANY EVENT, CHANGE THE SUCCESSFUL OFFEROR'S OBLIGATION UNDER THE CONTRACT TO MEET A MAXIMUM A REAL DENSITY REQUIREMENT OF 6.45 LBS. PER SQ. FT. WHEN PERFORMING GOVERNMENT ACCEPTANCE TESTING OF BODY ARMOR PLATES WITHOUT SPALL COVER.

"THIS ASSERTION BY NORTON THAT CARBORUNDUM CANNOT PERFORM THE CONTRACT IS NOT BORNE OUT BY THE FACTS. DURING A POST AWARD CONFERENCE CONDUCTED AT CARBORUNDUM'S PLANT ON 17 AND 18 OCTOBER 1968, SIX REPRESENTATIVE SAMPLES OF THE CERAMIC PLATES WERE TAKEN FROM THE PRODUCTION LINE AND WERE TESTED WITHOUT SPALL COVER IN THE PRESENCE OF THE CONTRACTING OFFICER, DPSC TECHNICAL SPECIALIST, REPRESENTATIVES OF DCASD, BUFFALO, AND REPRESENTATIVES FROM U.S. ARMY NATICK LABORATORIES. THE RESULTS SHOW THAT THE BODY ARMOR PLATES TESTED WITHOUT SPALL COVER MET THE MAXIMUM A REAL DENSITY REQUIREMENT OF 6.45 LBS. PER SQ. FT. THREE OF THESE SAME PLATES WERE THEN TESTED BALLISTICALLY AND EXCEEDED THE V50 REQUIREMENT OF THE SPECIFICATION. MOREOVER, ON A PRIOR CONTRACT AWARDED TO CARBORUNDUM, EVEN THOUGH THE MAXIMUM A REAL DENSITY REQUIREMENT WAS 6.6 LBS. PER SQ. FT. PRIOR TO APPLICATION OF SPALL COVER, THE SAMPLES TESTED DURING PRODUCTION SHOWED A CAPABILITY OF MEETING THE PRESENT 6.45 LBS. PER SQ. FT. A REAL DENSITY REQUIREMENT.

AFTER RECEIPT OF YOUR INITIAL BRIEF OF DECEMBER 31, 1968, WE FURNISHED A COPY TO THE AGENCY REQUESTING COMMENTS IN RESPONSE THERETO, TOGETHER WITH CERTAIN QUESTIONS CONCERNING THE ALLEGED INVALIDITY OF THE TESTS PROCEDURES. SPECIFICALLY, WE ASKED,"HAS THERE BEEN ANY ATTEMPT, EITHER BEFORE OR AFTER AWARD, TO VERIFY NORTON'S ALLEGATIONS CONCERNING THE INVALIDITY OF THE TESTS EMPLOYED, AND IF NOT, WHY NOT? " THIS QUESTION WAS NOT ANSWERED IN THE FEBRUARY 6, 1969, SUPPLEMENTAL REPORT OF THE CONTRACTING OFFICER SENT TO OUR OFFICE ON FEBRUARY 12, 1969. RATHER, THE SUPPLEMENTAL REPORT STATED IN PART:

"THE CONTRACTING OFFICER, OF COURSE, REALIZES THAT DURING PRODUCTION, SAMPLES OF THE END ITEM ARE TESTED WITHOUT SPALL COVER FOR A REAL DENSITY AND DIFFERENT SAMPLES MAY BE TESTED WITH SPALL COVER FOR BALLISTIC REQUIREMENT. HOWEVER, DURING PRODUCTION, RANDOM SAMPLES ARE SELECTED FROM THE LOT BY THE GOVERNMENT QUALITY ASSURANCE REPRESENTATIVE PRIOR TO APPLICATION OF SPALL COVER AND TESTED FOR A REAL DENSITY. AFTER THE SAMPLES ARE FOUND SATISFACTORY, THEN THE GOVERNMENT IS ASSURED THAT EACH ITEM IN THE LOT IS ACCEPTABLE FOR THIS CHARACTERISTIC. ONCE THIS HAS BEEN ESTABLISHED, THEN IT DOES NOT MATTER WHICH OTHER SAMPLES ARE TESTED WITH SPALL COVER ON FOR BALLISTIC REQUIREMENT SINCE THE BALLISTIC TESTING WILL BE PERFORMED ON ITEMS THAT HAVE BEEN FOUND SATISFACTORY. MOREOVER, TESTING OF THE ARMOR PLATES FOR A REAL DENSITY WITHOUT SPALL COVER DURING PRODUCTION WOULD ENABLE THE CONTRACTOR TO REWORK THE PLATES IF THE A REAL DENSITY IS FOUND HIGH AND THEREBY AVOID THE COST OF APPLYING AND REMOVING SPALL COVERS FROM ARMOR PLATES WITH HIGH A REAL DENSITY.

"* * * DPSC AS WELL AS AMMRC RECOGNIZES THAT THERE CAN BE A VARIATION IN A REAL DENSITY EITHER ABOVE OR BELOW THE .15 LBS. PER SQ. FT. ALLOWED BY THE SPECIFICATION FOR INCREASE IN A REAL DENSITY WHEN SAMPLES WITH SPALL COVER ARE TESTED. HOWEVER, THIS .15 IS CONSIDERED THE AVERAGE INCREASE BASED ON EXPERIENCE GAINED ON A PREVIOUS GOVERNMENT CONTRACT * * * WITH CARBORUNDUM FOR 2,050 SETS OF SUBJECT ITEM. THIS .15 INCREASE WAS APPLIED AS A CONSTANT WEIGHT FACTOR IN COMPUTING A REAL DENSITY WHEN TESTING ANY SAMPLES WITH SPALL COVERS. THIS CONSTANT WEIGHT FACTOR HAS BEEN APPLIED ON ALL PRIOR DPSC CONTRACTS INCLUDING A CONTRACT AWARDED TO NORTON CO. AMMRC IS PRESENTLY CONDUCTING A STUDY TO REFINE FURTHER THE INCREASE IN A REAL DENSITY WHEN DUE TO SPALL COVER.

"* * * OF COURSE, THE MOST CRUCIAL ISSUE IS WHETHER CARBORUNDUM'S SAMPLES PASS DURING ACTUAL PRODUCTION. THE CONTRACTING OFFICER CAN REPORT THAT CONTRACTOR HAS PRESENTED FOR GOVERNMENT VERIFICATION A TOTAL OF 4,000 UNITS. SAMPLES DRAWN FROM THE UNITS PRESENTED WERE FOUND TO BE IN ACCORDANCE WITH SPECIFICATION REQUIREMENTS, INCLUDING MAXIMUM A REAL DENSITY. THESE 4,000 UNITS HAVE BEEN SHIPPED TO THE GOVERNMENT AND ARE NOW IN THE SUPPLY SYSTEM DESTINED FOR VIETNAM.'

IN RESPONSE TO THE SUPPLEMENTAL REPORT, YOU SUBMITTED ADDITIONAL COMMENTS TO OUR OFFICE ON FEBRUARY 26, 1969, STATING:

"* * * EVEN ASSUMING THE TEST WITH SPALL COVER ON WAS ENTIRELY ACCURATE, THERE IS CONSPICUOUSLY ABSENT FROM THE CONTRACTING OFFICER'S REPORT ANY STATEMENT CONCERNING THE ACTUAL RESULTS OF THE TESTS ON THE CONTRACTOR'S PRE-AWARD SAMPLES. AS WE POINTED OUT IN OUR INITIAL MEMORANDUM, AND AS THE GOVERNMENT AGREES * * *, IT IS ESSENTIAL THAT A SINGLE SAMPLE HAVE MET BOTH THE A REAL DENSITY AND THE BALLISTIC REQUIREMENTS; YET THE GOVERNMENT HAS NOT SHOWN THAT THE CONTRACTOR'S SAMPLES DID SO. THIS CERTAINLY SUGGESTS THAT THE SAMPLES MAY NEVER HAVE DONE SO, EVEN USING THE INACCURATE TEST. TRUE, TO THE GOVERNMENT'S IMMEDIATE NEEDS THE ACTUAL END ITEMS BEING DELIVERED ARE MORE IMPORTANT THAN THE PRE-AWARD SAMPLES. BUT TO NORTON AND TO THE GOVERNMENT'S LONG-TERM INTEREST IN THE INTEGRITY OF THE SYSTEM OF COMPETITION FOR GOVERNMENT CONTRACTS, THE PRE-AWARD SAMPLES ARE FAR MORE IMPORTANT. * * *.

"IN CONNECTION WITH OUR ARGUMENT THAT THE CONTRACT IS VOID, WE ARE NOT ARGUING THAT THE SAMPLES SHOULD NOT HAVE BEEN TESTED WITH SPALL COVER ON, OR THAT THE 6.6 FIGURE SHOULD NOT HAVE BEEN THE CRITERION. WE ARE SIMPLY ARGUING THAT THE GOVERNMENT KNEW OR SHOULD HAVE KNOWN THAT CARBORUNDUM WAS OFFERING NONCONFORMING END ITEMS, BY REASON OF NOTICE FROM NORTON THAT THE TEST WAS INACCURATE, AND PARTICULARLY IF THE CARBORUNDUM SAMPLES DID NOT EVEN MEET THE TESTS AS PRESCRIBED. THE GOVERNMENT CANNOT CLOSE ITS EYES TO THE FACT THAT NONCONFORMING END ITEMS WERE BEING OFFERED, JUST BECAUSE A PARTICULAR TEST WOULD NOT DISCLOSE THE NONCONFORMITY. AND, AS WE HAVE POINTED OUT, IT APPEARS THAT THE PARTICULAR TEST MAY IN FACT HAVE DISCLOSED THE NONCONFORMITY.'

AS A RESULT OF THIS LETTER, AND A CONFERENCE CONDUCTED BETWEEN MEMBERS OF YOUR FIRM AND THE STAFF OF OUR OFFICE, WE REQUESTED TEST DATA AND RESULTING REPORTS ON THE PREAWARD TESTING OF CARBORUNDUM'S ITEMS. LETTER OF MARCH 14, 1969, WE WERE FURNISHED A LETTER DATED MARCH 4, 1969, FROM AMMRC TO NATICK STATING: "1. * * * THE SECOND TORSO SHIELD SET SUBMITTAL FOR THE SUBJECT SOLICITATION WAS BALLISTICALLY EVALUATED AT AMMRC ON 2 SEPTEMBER 1968. THE V50 BALLISTIC LIMIT WHICH WAS OBTAINED ON SAMPLES 1, 5, AND 8, WAS * * * IN EXCESS OF THE SPECIFICATION REQUIREMENT. THE BALLISTIC DATA (FIRING RECORD) IS ATTACHED AS TABLE I.'2. * * * THE REMAINING TORSO SHIELDS IN THE 10 SAMPLE SET WERE TESTED AT NATICK LABORATORIES ON 9 SEPTEMBER 1968 TO DETERMINE A REAL DENSITY. RESULTS OF THESE TESTS ARE SUMMARIZED IN TABLE II WHERE IT IS EVIDENT THAT THE SPECIFICATION REQUIREMENT OF 6.6 LBS. PER SQ. FT. WITH SPALL COVER HAD BEEN MET.'

TABLE II ATTACHED TO THE REPORT DID INDICATE AN AVERAGE A REAL DENSITY OF THE SEVEN SAMPLES AS BEING 6.60 POUNDS PER SQUARE FOOT, AND SAMPLES 1, 5, AND 8 DID APPEAR FROM TABLE I TO HAVE MET THE BALLISTICS REQUIREMENTS.

SUBSEQUENT TO THE LETTER OF MARCH 14, 1969, ADDITIONAL CONFERENCES WERE HELD WITH YOU, AT WHICH TIME PORTIONS OF THE DATA SUBMITTED IN THE AMMRC REPORT WERE MADE AVAILABLE TO YOUR REPRESENTATIVES. SINCE THERE WAS STILL NO COMMENT FROM THE AGENCY CONCERNING THE ACCURACY OR VALIDITY OF THE TEST PROCEDURES USED ON THE PREAWARD SAMPLES, AND SINCE IT APPEARED THAT AT LEAST TWO SETS OF CARBORUNDUM'S SAMPLES WERE TESTED, WITH NO INDICATION AS TO WHETHER SAMPLES 1, 5 AND 8 WERE TESTED FOR A REAL DENSITY, WE AGAIN REQUESTED DSA ON APRIL 17, 1969, TO FURNISH US THE ANSWERS TO THESE QUESTIONS, TOGETHER WITH ANY TEST DATA, REPORTS, OR COMMUNICATIONS NOT PREVIOUSLY FURNISHED OUR OFFICE.

BY LETTER OF MAY 1, 1969, WE WERE FURNISHED COPIES OF THE TEST REPORTS, TOGETHER WITH THE RESULTING COMMENTS FROM AMMRC TO NATICK CONCERNING WHAT APPEARS TO BE THE COMPLETE REVIEW OF THE TESTS CONDUCTED ON ALL OF THE OFFEROR'S SAMPLES, AS WELL AS CERTAIN OTHER CORRESPONDENCE DISCUSSED INFRA.

IN RESPONSE TO OUR QUESTION AS TO WHETHER CARBORUNDUM'S SAMPLES 1, 5 AND 8, WHICH WERE TESTED BALLISTICALLY, WERE ALSO TESTED FOR A REAL DENSITY, NATICK'S LETTER OF APRIL 24, 1969, TO THE DEFENSE SUPPLY AGENCY (DSA) STATED:

"CARBORUNDUM SAMPLES 1, 5 AND 8 WERE NOT TESTED FOR A REAL DENSITY BY AMMRC OR NLABS PRIOR TO BALLISTIC TESTING.' YET, IN AMMRC'S REPORTS OF NOVEMBER 1968 AND JANUARY 1969 TO NATICK THE TEST RESULTS, AS MENTIONED EARLIER, ON THOSE PRECISE SAMPLES WERE INCLUDED IN THE ACCOMPANYING DOCUMENTS.

CONCERNING THE AGENCY'S KNOWLEDGE, OR LACK THEREOF, OF THE BUOYANCY EFFECT DEMONSTRATED BY NORTON, IN AN UNDATED LETTER FROM THE DEPUTY TECHNICAL DIRECTOR OF AMMRC TO NATICK, IT IS STATED: ,* * * DURING THE FIRST WEEK OF OCTOBER 1968, AMMRC RECEIVED A COPY OF THE NORTON COMPANY LETTER OF 3 SEPTEMBER 1968 WHICH RAISED A QUESTION ON THE VALIDITY OF THE A REAL DENSITY REQUIREMENTS, AND THE METHOD OF COMPUTING A REAL DENSITIES OF SAMPLES WITHOUT SPALL SHIELDS FROM MEASUREMENTS OF A REAL DENSITIES OF SAMPLES WITH SPALL SHIELDS. ON 15 OCTOBER, AFTER REMOVING SPALL SHIELDS FROM THE 2ND CARBORUNDUM COMPANY SAMPLE SUBMISSION, A REAL DENSITY MEASUREMENTS WERE DETERMINED AT AMMRC. (THESE FAILED WITH AN AVERAGE OF 6.75 POUNDS PER SQUARE FOOT.) PREVIOUSLY, A REAL DENSITY MEASUREMENTS ON THESE SAMPLES WITH SPALL SHIELDS ON HAD BEEN MADE INDEPENDENTLY BY BOTH NATICK LABS AND AMMRC. * * * THE AVERAGE A REAL DENSITIES WITH SPALL SHIELDS ON WHICH WERE DETERMINED AT NATICK AND AMMRC AGREE EXACTLY, EVEN THOUGH DATA MEASUREMENT RANGES FOR THE TWO INSTALLATIONS DIFFER. HOWEVER, THE AVERAGE A REAL DENSITY DETERMINED ON THE SAME SAMPLES WITHOUT SPALL SHIELDS IS .20 LBS. PER SQUARE FOOT LOWER THAN THE AVERAGE A REAL DENSITY WITH SPALL SHIELD ON. INDIVIDUAL DIFFERENCES (I.C. SPALL SHIELD WEIGHTS BY SUBTRACTION) RANGE FROM .03 TO .37 POUNDS PER SQUARE FOOT. HENCE THERE IS A LARGE VARIATION IN SPALL SHIELD A REAL DENSITIES WHICH ARE DETERMINED BY SUBTRACTION OF SAMPLE A REAL DENSITIES DETERMINED WITH SPALL SHIELD OFF FROM THOSE DETERMINED WITH SPALL SHIELD ON.'* * * THE VARIATION IN A REAL DENSITY MEASUREMENTS WITH SPALL SHIELDS ON IS NOT SURPRISING. THE A REAL DENSITY COMPUTATION IS BASED ON THREE MEASUREMENTS: 1. WEIGHT OF SAMPLE IN AIR

2. WEIGHT WITH SAMPLE IMMERSED IN WATER

3. SAMPLE THICKNESS OF THESE THREE QUANTITIES, ONLY THE FIRST CAN BE DETERMINED WITH GOOD PRECISION. THE WEIGHT OF THE SAMPLE IMMERSED IN WATER IS A ROUTINE MEASUREMENT BUT WOULD PRODUCE AN INACCURATE VALUE IF AIR WERE TRAPPED BETWEEN THE SPALL SHIELD AND CERAMIC, AND AIR ENTRAPMENT IS POSSIBLE. THICKNESS MEASUREMENTS, HOWEVER, ARE DIFFICULT TO MAKE WITH PRECISION DUE TO THE UNEVEN SURFACES OF THE RESIN-FABRIC SPALL SHIELD AND BACK-UP LAYERS, AND THE USE OF MICROMETERS WITH BALL CONTACTS.'* * * DURING THE PERIOD OF 28 SEPTEMBER 1968, AND 1 NOVEMBER 1968, MANY VERBAL CONVERSATIONS WERE HELD ON THE SUBJECT SOLICITATION BETWEEN TECHNICAL REPRESENTATIVES OF AMMRC AND NATICK LABORATORIES. THESE CONVERSATIONS WERE CONCEREND WITH BOTH ACCEPTANCE TEST RESULTS AND ACCEPTANCE TEST CRITERIA AND REQUIREMENTS. FOLLOWING THESE DISCUSSIONS, A MEETING WAS HELD AT NATICK LABORATORIES ON 28 OCTOBER 1968 TO RECONSIDER ACCEPTANCE TEST PROCEDURES AND REQUIREMENTS. REPORT OF THAT MEETING IS ATTACHED (NOT INCLUDED IN REPORT TO OUR OFFICE) WHICH CONTAINS A DISCUSSION OF THE PROBLEM AND RESULTED IN THE FOLLOWING CONCLUSIONS: A. A REAL DENSITY MEASUREMENTS SHOULD NOT BE USED. B. ACCEPTANCE TEST MEASUREMENTS SHOULD INVOLVE WEIGHT, AREA DIMENSIONS, AND V50 BALLISTIC LIMIT ONLY.'* * * WORK TO REVISE ACCEPTANCE CRITERIA IS IN PROGRESS.'

AN ANALYSIS OF THE TEST DATA REVEALS THAT THE AVERAGE THICKNESS OF THE SEVEN CARBORUNDUM SHIELDS BEFORE PAINT REMOVAL (TEST OF SEPTEMBER 4, 1968) WAS 0.564 INCHES. THE AVERAGE THICKNESS OF THE SAME SEVEN SHIELDS AFTER PAINT REMOVAL (TEST OF SEPTEMBER 9, 1968) WAS 0.541 INCHES; A REDUCTION ON THE AVERAGE OF 0.023 INCHES. THE AVERAGE REDUCTION OF THE A REAL DENSITY FOR THE SEVEN SHIELDS ON THE TEST OF SEPTEMBER 9, 1968, WAS 0.3405 POUNDS PER SQUARE FOOT.

WHILE YOU RECOGNIZE THAT THE SPECIFICATION DOES NOT PRESCRIBE ANY PARTICULAR THICKNESS FOR THE SHIELDS, YOU CONTEND THAT NORTON'S PRIVATE TEST RESULTS REVEAL THAT APPROXIMATELY 20 COATS OF PAINT WOULD BE REQUIRED TO ADD 0.3 POUNDS PER SQUARE FOOT TO A REAL DENSITY, AND IF CARBORUNDUM REDUCED THE A REAL DENSITY ON THE LAST SEVEN SHIELDS BY 0.3 POUNDS PER SQUARE FOOT, IT MUST HAVE REMOVED MORE THAN PAINT. IN YOUR LETTER OF MAY 25, 1969, YOU SUMMARIZED YOUR POSITION ON THIS POINT IN PERTINENT PART AS FOLLOWS:

"A. THE CARBORUNDUM SAMPLES DID NOT IN FACT CONFORM TO THE SPECIFICATIONS "/1) 6.608 DID NOT MEET SPECIFICATION REQUIREMENTS. THIS FINAL A REAL DENSITY OF THE LAST 7 CARBORUNDUM SAMPLES, WHEN ADJUSTED FOR THE A REAL DENSITY OF THE SPALL COVER (TAKING THE GOVERNMENT'S FIGURE OF .15 FOR THE SPALL COVER), WAS 6.458, OR 6.46. THIS DID NOT CONFORM TO THE SPECIFICATION REQUIREMENT OF 6.45 IN PARAGRAPH 3.6.4. ACCORDING TO PARAGRAPH 3.1 (E), -THESE SAMPLES SHALL BE FOR DETERMINING CONFORMANCE TO THE ... A REAL DENSITY REQUIREMENT IN 3.6.4.- "/3) AS TO THE PAINT - IT IS OBVIOUS TO ANYONE WHO IS AT ALL EXPERT IN ARMOR - AND THIS INCLUDES AMMRC, NATICK, AND CARBORUNDUM - BOTH (A) THAT PAINT COULD NOT POSSIBLY HAVE ADDED AS MUCH AS .3 TO THE A REAL DENSITY OF THE ARMOR, AND (B) THAT PAINT COULD NOT BE REMOVED WITHOUT REMOVING PART OF THE SURFACE UNDERNEATH OR OTHERWISE ALTERING THE SURFACE SO AS TO AFFECT BOTH A REAL DENSITY AND BALLISTICS. THE GOVERNMENT MUST HAVE KNOWN (OR CERTAINLY SHOULD HAVE) THAT 6.9 A REAL DENSITY WITH PAINT COULD NOT BE THE EQUIVALENT OF 6.6 WITHOUT PAINT, AND THAT THE MEASUREMENT OF 6.608 AFTER REMOVAL OF THE PAINT WAS NOT ONLY NECESSARILY INVALID ITSELF BUT ALSO DESTROYED ANY CONCEIVABLE VALIDITY OF THE BALLISTIC TESTING OF SAMPLES 1, 5 AND 8 AS EVIDENCE OF THE BALLISTIC QUALITIES OF THE LAST 7 SAMPLES.'C. UNDER THE EXPRESS WORDING OF THE SOLICITATION, THE SAMPLES WERE REPRESENTATIVE OF THE END ITEMS TO BE DELIVERED UNDER THE CONTRACT. * * *.'D. THEREFORE THERE WAS NO MEETING OF THE MINDS. CARBORUNDUM WAS OFFERING TO DELIVER END ITEMS NOT CONFORMING TO THE SPECIFICATIONS, -ORANGES,- WHILE THE GOVERNMENT WAS ASKING FOR END ITEMS WHICH WOULD CONFORM TO THE SPECIFICATIONS, I.E., -APPLES.- THERE OBJECTIVELY WAS NO MEETING OF THE MINDS ON WHAT AS TO BE DELIVERED, SO THE -CONTRACT- WAS VOID; NO TRUE CONTRACT EVER AROSE.'

THE FOREGOING STATEMENT OF THE FACTS, CONTENTIONS AND ARGUMENTS OF THE INTERESTED PARTIES HAS RAISED SUBSTANTIAL ISSUES CONCERNING VARIOUS TECHNICAL MATTERS, THE EFFECT OF VARIOUS PROVISIONS OF THE RFP, AND THE PROPRIETY OF THE ULTIMATE SELECTION OF CARBORUNDUM AS THE CONTRACTOR. THE FIRST SUCH ISSUE, I.E., "THERE WAS NO MEETING OF THE MINDS" RAISES THE BASIC QUESTION OF WHETHER PREAWARD SAMPLES WERE AUTHORIZED IN THIS INSTANCE AND WHAT IS THE PURPOSE OR USE OF PREAWARD SAMPLES.

IT IS CLEAR THAT THE SOLICITATION REQUIREMENT OF SUBMISSION OF PREAWARD SAMPLES IN NEGOTIATED PROCUREMENTS DOES NOT RESEMBLE THE BID SAMPLE REQUIREMENT ENVISAGED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2- 202.4. THAT SECTION SPECIFICALLY STATES THAT THE TERM "BID SAMPLE" DOES NOT REFER TO SAMPLES SUBMITTED "TO EVIDENCE A MANUFACTURER'S ABILITY TO PRODUCE.' OUR OFFICE HAS ALSO CONSISTENTLY HELD THAT BID SAMPLES ARE NOT TO BE USED TO DETERMINE A BIDDER'S CAPABILITY TO MANUFACTURE AN ITEM MEETING SPECIFICATION REQUIREMENTS. 17 COMP. GEN. 940; 34 ID. 180; 37 ID. 845; 43 ID. 465; B-164732, SEPTEMBER 30, 1968.

THE PRESENT SOLICITATION REQUIREMENT WAS NOT INTENDED TO SHOW THE CHARACTERISTICS OF AN OFFEROR'S PRODUCT AS CONTEMPLATED BY ASPR 2 202.4, BUT RATHER TO SECURE EVIDENCE THAT AN OFFEROR WAS CAPABLE OF MEETING THE SPECIFICATIONS. THE DECISIONS OF OUR OFFICE CITED ABOVE DEALT WITH THE RESPONSIVENESS OF BIDS WHERE SAMPLES OF THE PRODUCT WERE REQUIRED TO BE FURNISHED FOR THE PURPOSE OF DETERMINING EXACTLY THE CHARACTERISTICS OF THE PRODUCT OFFERED. SEE 39 COMP. GEN. 595, 598; 41 COMP. GEN. 366, 368. THAT IS NOT THE CASE HERE WHERE TEST RESULTS WERE REQUESTED FOR THE SOLE PURPOSE OF RESTRICTING AWARD TO THOSE OFFERORS WHOSE PRODUCT HAD PREVIOUSLY PASSED THE PRESCRIBED TESTS.

IN THE INSTANT CASE, UNDER THE PROVISIONS OF PARAGRAPH 3.1 (E) QUOTED ABOVE, IT WAS STATED THAT THE SAMPLES WERE TO BE USED "FOR DETERMINING CONFORMANCE TO THE BALLISTIC REQUIREMENT IN 3.6.1 AND THE A REAL DENSITY REQUIREMENT IN 3.6.4.' WHILE, AS YOU STATE, THIS SAME PARAGRAPH REQUIRED A CERTIFICATE OF COMPLIANCE THAT THE SHIELDS WOULD BE REPRESENTATIVE OF WHAT WOULD BE DELIVERED UNDER THE CONTRACT, IT APPEARS CLEAR TO US THAT THE CONTRACTOR IS NOT RELIEVED FROM THE RESPONSIBILITY OF CONSTRUCTING THE EQUIPMENT ACCORDING TO THE SPECIFICATIONS, BECAUSE PARAGRAPH 3.6.4 OF THE SPECIFICATIONS PROVIDES THAT PRODUCTION ITEMS SHALL HAVE A MAXIMUM A REAL DENSITY OF 6.45 WHEN TESTED WITH SPALL COVER OFF. IT WOULD THEREFORE SEEM TO LOGICALLY FOLLOW THAT THE PREAWARD TESTS WERE FOR THE BENEFIT OF THE GOVERNMENT AND WERE REQUIRED SOLELY FOR THE PURPOSE OF DETERMINING, PRIOR TO AWARD, THAT THE OFFEROR IS ABLE TO DESIGN, CONSTRUCT AND FURNISH PRODUCTION ITEMS MEETING THE NEEDS OF THE GOVERNMENT ACCORDING TO THE REQUIREMENTS OF THE SPECIFICATIONS. CF. 37 COMP. GEN. 143; 37 ID. 640.

THERE IS NO EVIDENCE THAT THE CONTRACTOR TREATED THE SAMPLES AS QUALIFYING THAT WHICH WAS REQUIRED TO BE DELIVERED UNDER THE SPECIFICATIONS OR THAT THE GOVERNMENT AT ANY TIME RELAXED THE SPECIFICATIONS OR SUBSTITUTED THE SAMPLES THEREFOR. CONSEQUENTLY, WE FIND THAT THERE WAS A MEETING OF THE MINDS AS OBJECTIVELY MANIFESTED BY THE INTENTION OF THE PARTIES, AND A RESULTING CONTRACT CAME INTO BEING.

SINCE WE HAVE CONSTRUED THE SOLICITATION AND THE RESULTING CONTRACT TO REQUIRE PERFORMANCE ACCORDING TO THE SPECIFICATIONS RATHER THAN TO THE SAMPLES, WE NEED NOT ADDRESS YOUR ARGUMENT THAT THE CONTRACT IS VOID BECAUSE THE CONTRACTING OFFICER EXCEEDED HIS AUTHORITY BY BUYING ITEMS HE WAS NOT AUTHORIZED TO BUY. ALSO, SINCE WE HAVE CONCLUDED THAT THE CONTRACT IS TO BE CONSTRUED STRICTLY ACCORDING TO THE SPECIFICATIONS, YOUR CONTENTIONS CONCERNING CONTRACT ADMINISTRATION NEED NOT BE FURTHER DISCUSSED, EXCEPT TO STATE THAT WE HAVE LONG RECOGNIZED THE PRIMACY OF THE CONTRACTING AGENCY IN DETERMINING WHETHER AS A MATTER OF FACT THE PERFORMANCE OFFERED BY THE CONTRACTOR COMPLIES WITH CONTRACT SPECIFICATIONS. 17 COMP. GEN. 554; 45 COMP. GEN. 357, 363. WHILE ADMITTEDLY MARGINAL, THE TEST DATA SUBMITTED BY THE AGENCY DOES REVEAL THAT THE SHIELDS TESTED FOR BALLISTICS (NOS. 1, 5 AND 8) ON SEPTEMBER 2, 1968, MET THE REQUIRED LIMIT. ALSO THE SHIELDS TESTED FOR A REAL DENSITY (NOS. 2, 3, 4, 6, 7, 9 AND 10) ON SEPTEMBER 9, 1968, PASSED THE REQUIRED TEST, I.E., 6.6 POUNDS PER SQUARE FOOT. WHILE YOU HAVE PRESENTED STRONG ARGUMENTS, SUPPORTED BY NORTON'S PRIVATE TEST DATA, CONCERNING WHAT EFFECT THE REMOVAL OF PAINT, AND PERHAPS OTHER MATERIAL AS YOU SUGGEST, FROM THE SHIELDS SHOULD HAVE HAD ON THE BALLISTIC REQUIREMENTS, IN AN UNDATED LETTER RECEIVED IN OUR OFFICE ON MAY 26, 1969, AMMRC INDICATED THAT IN THEIR OPINION THE REMOVAL OF PAINT WOULD NOT MAKE A SIGNIFICANT DIFFERENCE IN THE BALLISTIC LIMIT.

WE FEEL IT IS IMPOSSIBLE AT THIS JUNCTURE TO DETERMINE WITH ANY DEGREE OF CERTAINTY EXACTLY WHAT WOULD HAVE OCCURRED HAD SHIELD NOS. 1, 5 AND 8 BEEN SCRAPED OF PAINT PRIOR TO BEING TESTED BALLISTICALLY, OR WHETHER SHIELD NOS. 2, 3, 4, 6, 7, 9 AND 10 WOULD HAVE PASSED THAT TEST. AS TO THE EFFECT THE REMOVAL OF PAINT HAD ON A REAL DENSITY WITH SPALL COVER, WE MUST ACCEPT THE POSITION OF THE PROCURING AGENCY THAT THE REQUIREMENTS OF PARAGRAPH 3.1 (E) HAD BEEN MET, PARTICULARLY IN VIEW OF THE FACT THAT THE REQUIREMENT OF 6.45 POUNDS PER SQUARE FOOT AS SPELLED OUT IN PARAGRAPH 3.6.4 WAS TO BE EMPLOYED IN THE TESTING OF END ITEMS, AND THE CONFORMANCE TO THIS REQUIREMENT WAS DEEMED TO HAVE BEEN MET IF THE SAMPLES TESTED MET THE REQUIREMENT OF 6.6 POUNDS PER SQUARE FOOT WHEN TESTED WITH SPALL COVER AS SET FORTH IN PARAGRAPH 1.2. FURTHER, ALL OFFERORS' PRODUCTS, INCLUDING NORTON-S, WERE TESTED ON THAT BASIS. IN ADDITION, SINCE ONE OF THE PURPOSES OF NEGOTIATIONS IS TO PERMIT OFFERORS TO VARY THEIR PROPOSALS AFTER OPENING, AND SINCE NEITHER NORTON'S NOR REFLECTIVE LAMINATE'S SAMPLES HAD BEEN PAINTED AS REQUIRED BY THE SPECIFICATIONS, THERE WOULD HAVE BEEN NO IMPROPRIETY IN PERMITTING CARBORUNDUM TO SUBMIT AN ENTIRELY NEW SET OF SAMPLES WHICH HAD NOT BEEN PAINTED PRIOR TO TESTING, OR TO HAVE REQUIRED ALL OTHER OFFERORS, I.E., NORTON AND REFLECTIVE LAMINATES, TO HAVE PAINTED THEIR SHIELDS PRIOR TO TESTING. WE MUST THEREFORE CONCLUDE THAT CARBORUNDUM'S SAMPLES, TO THE EXTENT THAT THEY WERE TESTED, PASSED SUCH TESTS. WE BELIEVE, HOWEVER, THAT THE SPIRIT AND INTENT OF THE LAW REQUIRING FAIR AND UNRESTRICTED COMPETITION WOULD NOT BE SERVED WITHOUT OUR FURTHER DISCUSSION OF THE TEST PROCEDURES HERE EMPLOYED. 44 COMP. GEN. 302, 305.

WE FEEL THAT THE CARBORUNDUM SAMPLES WERE NOT TESTED IN FULL CONFORMANCE WITH SPECIFICATION REQUIREMENTS. ALL 10 OF NORTON'S SAMPLES WERE TESTED FOR A REAL DENSITY AND TWO OF THE 10 WERE TESTED BALLISTICALLY. REFLECTIVE LAMINATES' 10 SAMPLES WERE TESTED FOR A REAL DENSITY AND FOUR OF THESE WERE TESTED BALLISTICALLY. AS THE RECORD REFLECTS, ONLY SEVEN OF CARBORUNDUM'S SAMPLES, WITH PAINT REMOVED, WERE EXAMINED ON THE FINAL TEST FOR A REAL DENSITY, AND THE REMAINING THREE, WHICH HAD NOT HAD THE PAINT REMOVED, WERE TESTED FOR BALLISTICS REQUIREMENTS.

THE STATED REASON FOR THE SAMPLE REQUIREMENT WAS TO ASCERTAIN THE SAMPLE'S ABILITY TO PASS BOTH THE A REAL DENSITY AND BALLISTICS TESTS. WHILE THERE IS NO SPECIFIC REQUIREMENT IN THE SPECIFICATIONS THAT THE SAME SAMPLES PASS BOTH TESTS, IT SEEMS TO US TO FOLLOW THAT BECAUSE OF THE ABSOLUTE INTERDEPENDENCE OF A REAL DENSITY AND BALLISTICS, THAT A BALLISTIC TEST RECORD IN ITSELF IS MEANINGLESS UNLESS ACCOMPANIED BY THE A REAL DENSITY RECORD OF THE SPECIFIC SAMPLES NOTED ON THE TEST RECORD. THE CONTRACTING OFFICER RECOGNIZES THIS IN HIS SUPPLEMENTAL REPORT OF FEBRUARY 6, 1969, WHERE HE STATES:

"TESTING OF ONE SET OF PRE-AWARD SAMPLES WITHOUT SPALL COVER FOR A REAL DENSITY, AND ANOTHER SET OF PRE-AWARD SAMPLES WITH SPALL COVER FOR BALLISTIC REQUIREMENT, WAS NOT CONSIDERED DESIRABLE SINCE IT WOULD NOT DEMONSTRATE THAT THE SAMPLE WHICH QUALIFIED BALLISTICALLY WAS WITHIN THE MAXIMUM A REAL DENSITY REQUIREMENT.'

ONE OF THE REASONS GIVEN FOR RANDOM SELECTION OF SAMPLES FOR EACH TEST WAS,"SO THAT THE SOURCE WOULD NOT KNOW WHICH ITEMS WERE TO BE SUBJECTED TO BALLISTIC TESTING AND WHICH ITEMS FOR A REAL DENSITY TESTING.' UPON REFLECTION THIS STATEMENT DOES NOT SEEM TO WITHSTAND A TEST OF REASONABLE INTERPRETATION. IT SEEMS TO US THAT AN OFFEROR, KNOWING THAT HIS SAMPLES MUST PASS BOTH TESTS, WOULD BE PREPARED TO HAVE EACH SAMPLE PASS BOTH TESTS REGARDLESS OF WHETHER HE KNEW THAT ONLY SOME WOULD BE TESTED FOR ONE OF THE REQUIREMENTS AND NOT BOTH.

WE ARE NOT SUGGESTING THAT EACH AND EVERY SAMPLE MUST OF NECCESSITY PASS BOTH TESTS, BUT WE DO SUGGEST THAT AT LEAST SOME OF THE SAMPLES SUBMITTED BE REQUIRED TO PASS BOTH (AS WAS DONE WITH NORTON'S AND REFLECTIVE LAMINATES), OTHERWISE, THE REQUIREMENT OF HAVING SPALL SHIELD ON BECAUSE THEY MUST BE TESTED BALLISTICALLY IS MEANINGLESS, UNLESS ALL OF THEM ARE TO BE SO TESTED. WHILE WE RECOGNIZE THAT TIME WAS ALSO A FACTOR IN DETERMINING HOW THE TESTS WERE TO BE CONDUCTED, IT SEEMS LOGICALLY TO FOLLOW THAT THE DESIRED METHOD OF TESTING WOULD BE TO HAVE ONE SET OF SAMPLES SUBMITTED WITHOUT SPALL SHIELD FOR TESTING FOR A REAL DENSITY LIMITS, AS REQUIRED BY PARAGRAPH 3.6.4, THEN HAVE THE SPALL COVER INSTALLED FOR RE-TESTING FOR A REAL DENSITY ACCORDING TO PARAGRAPH 1.2. WITH THE SPALL COVER ON, THE SHIELDS COULD BE TESTED BALLISTICALLY. WE THINK WEIGHT IS GIVEN TO THIS SUGGESTED APPROACH IN VIEW OF THE NOW ADMITTED BUOYANCY EFFECT (AS NOTED BY NORTON) SPALL COVERS HAVE ON OBTAINING CORRECT A REAL DENSITY MEASUREMENTS. IN THIS REGARD, WE FIND IT DIFFICULT TO UNDERSTAND HOW ON DECEMBER 10, 1968, THE CONTRACTING OFFICER COULD REPORT THAT HE HAD "NO VERIFICATION OF NORTON'S CLAIM CONCERNING INVALIDITY OF A REAL DENSITY MEASUREMENTS," WHEN DPSC WAS NOTIFIED BY NORTON ON AUGUST 19, 1968, OF THE THEN ALLEGED INVALIDITY, AND IT WAS DURING THIS VERY PERIOD THAT AMMRC WAS CONDUCTING THE REQUIRED TESTS. ADDITION, AS STATED EARLIER, THE RECORD REFLECTS THAT DURING THE PERIOD OF SEPTEMBER 28, 1968, AND NOVEMBER 1, 1968, MANY DISCUSSIONS WERE HELD ON THE SUBJECT SOLICITATION BETWEEN TECHNICAL REPRESENTATIVES OF AMMRC AND NATICK, AND ON OCTOBER 28, 1968, A MEETING WAS HELD TO RECONSIDER ACCEPTANCE TEST PROCEDURES AND REQUIREMENTS, WHICH RESULTED IN THE FOLLOWING CONCLUSIONS: "A. A REAL DENSITY MEASUREMENT SHOULD NOT BE USED; B.ACCEPTANCE TEST MEASUREMENTS SHOULD INVOLVE WEIGHT, AREA DIMENSIONS, AND V50 BALLISTIC LIMIT LY.' IT WOULD SEEM TO HAVE BEEN VERY SIMPLE, AND INDEED REQUIRED, FOR THE CONTRACTING OFFICER IN A $16 MILLION REQUIREMENT TO HAVE ASCERTAINED FROM HIS TESTING ACTIVITY THE TEST RESULTS FOUND BY IT ON THE PREAWARD SAMPLES OF EACH OFFEROR, AND TO HAVE OBTAINED VERIFICATION OF NORTON'S CLAIM CONCERNING THE INVALIDITY OF A REAL DENSITY MEASUREMENTS.

WE DO NOT FEEL, HOWEVER, THAT YOUR ARGUMENT THAT NORTON WAS AT A COMPETITIVE DISADVANTAGE BECAUSE OF ITS KNOWLEDGE OF THE DIFFICULTIES TO BE OVERCOME (WHICH APPARENTLY WAS NOT AVAILABLE TO OTHER OFFERORS) WOULD REFLECT UPON THE PROPRIETY OF THE AWARD TO CARBORUNDUM, SINCE THE PREAWARD SAMPLES WERE TO BE USED ONLY FOR DETERMINING THE BIDDER'S CAPABILITY, AND ALL BIDDERS WERE ON NOTICE THAT THE ACCEPTABILITY OF PRODUCTION ITEMS WOULD BE BASED UPON AN A REAL DENSITY OF 6.45 WITHOUT SPALL COVER. WOULD THEREFORE APPEAR THAT PRODUCTION COSTS AND BID PRICES OF ALL BIDDERS SHOULD HAVE BEEN COMPUTED ON THE LATTER BASIS.

ALTHOUGH NORTON ACKNOWLEDGED IN A LETTER OF SEPTEMBER 23, 1968, TO THE CONTRACTING OFFICER THAT THE GOVERNMENT RESERVED THE RIGHT TO EXERCISE AN OPTION FOR UP TO 50 PERCENT OF THE CONTRACT QUANTITY, AND NORTON SUBMITTED ITS PROPOSAL CONCERNING THE OPTION QUANTITY, YOU URGE THAT THE EXERCISE OF THE OPTION WOULD BE IMPROPER BECAUSE, AMONG OTHER THINGS, ASPR 1-1504 (A) SPECIFICALLY REQUIRES: "/A) WHEN A CONTRACT IS TO CONTAIN AN OPTION CLAUSE, THE SOLICITATION MUST CONTAIN AN APPROPRIATE OPTION PROVISION. THE CONTRACT IS TO BE NEGOTIATED, THE DETERMINATION AND FINDINGS SHALL SET FORTH THE APPROXIMATE QUANTITY TO BE AWARDED AND THE EXTENT OF THE INCREASE TO BE PERMITTED BY THE OPTION.'

IN RESPONSE TO THIS ARGUMENT THE CONTRACTING OFFICER RESPONDED IN PERTINENT PART: "* * * THE CONTRACTING OFFICER CONTENDS THAT ALL REVISIONS, AMENDMENTS, INCLUDING THE INCORPORATION OF AN OPTION CLAUSE WHICH OCCURS DURING NEGOTIATIONS, DO FORM PART OF THE SOLICITATION AND RESULTANT CONTRACT.'

WE WOULD POSSIBLY AGREE WITH SUCH AN EXPLANATION HAD THERE BEEN ADDED THE PHRASE,"PROVIDED ANY SUCH REVISIONS, AMENDMENTS OR OPTIONS MEET THE REQUIREMENT OF ASPR 3-805.1 (E).' THAT SECTION REQUIRES IN PART THAT WHEN A SUBSTANTIAL CHANGE OCCURS IN THE GOVERNMENT'S REQUIREMENTS DURING NEGOTIATIONS, SUCH CHANGE OR MODIFICATION SHALL BE MADE IN WRITING AS AN AMENDMENT TO THE REQUEST FOR QUOTATIONS, AND A COPY FURNISHED EACH PROSPECTIVE CONTRACTOR. IT IS FURTHER PROVIDED THAT SUCH CHANGE MAY BE MADE ORALLY IF: (1) THE CHANGES INVOLVED ARE NOT COMPLEX IN NATURE; (2) ALL PROSPECTIVE CONTRACTORS ARE NOTIFIED SIMULTANEOUSLY (PREFERABLY BY A MEETING WITH THE CONTRACTING OFFICER); AND (3) A RECORD IS MADE OF THE ORAL ADVICE GIVEN, IF SUCH ADVICE IS GIVEN ORALLY.

THE RECORD BEFORE US DOES NOT CLEARLY REVEAL HOW THE REQUEST FOR THE OPTION QUANTITY WAS BROUGHT TO THE ATTENTION OF THE OFFERORS, BUT IT IS CLEAR THAT THE REQUIREMENTS OF ASPR 1-1504 (A) AND ASPR 3-805 (E) WERE NOT MET. WHILE IT MAY BE SPECULATIVE TO SUGGEST THAT PROSPECTIVE OFFERORS WERE PREJUDICED BY THE FAILURE TO INCLUDE THE OPTION IN THE SOLICITATION BY A PROPER AMENDMENT, WE THINK SUCH FAILURE WAS A CLEAR VIOLATION OF ASPR AND CANNOT BE COUNTENANCED BY OUR OFFICE. IN ADDITION, THERE ARE OTHER REASONS WHY THE OPTION SHOULD NOT BE EXERCISED. AS LATE AS MARCH 4, 1969, AMMRC ADVISES THAT IT IS "NOW WORKING WITH NATICK LABORATORIES TO ATTEMPT TO FIND A WAY OF DETERMINING TORSO SHIELD A REAL DENSITIES WITH GREATER PRECISION IN ORDER TO MINIMIZE THIS MEASUREMENT PROBLEM.' CLEARLY THEN WHERE THERE IS AN ADMITTED PROBLEM WITH THE SPECIFICATIONS AND/OR THE TEST PROCEDURES TO BE EMPLOYED, AN EXERCISE OF THE OPTION WITHOUT FULLY REVISING THE ACCEPTANCE CRITERIA WOULD BE PREJUDICIAL TO ANY UNSUCCESSFUL OFFEROR WHO MAY HAVE BEEN MISLED BY SUCH SPECIFICATIONS OR TEST PROCEDURES. SPECIFICATIONS ARE USED, AT LEAST IN THIS SENSE, TO INSURE UNIFORMITY OF OFFERS. ALSO, NORTON CLAIMS, AND IT HAS NOT BEEN REFUTED, THAT DUE TO SIGNIFICANT RECENT ADVANCES IN THE STATE OF THE ART, NORTON, AND PERHAPS OTHERS, CAN NOW PRODUCE ARMOR WITH AN A REAL DESNITY SIGNIFICANTLY BELOW 6.0 WITH SPALL COVER ON AT A PRICE CONSIDERABLY LOWER THAN THE CONTRACT PRICE. IF THIS LATTER CONTENTION IS CORRECT, WE SEE NOTHING IN THE PRESENT RECORD WHICH WOULD JUSTIFY EXERCISE OF THE OPTION WITHOUT THOROUGH RECONSIDERATION OF THE GOVERNMENT'S NEEDS AND THE PRESENT MARKET PRICES.

YOU HAVE SUGGESTED THAT THE CUMULATIVE CIRCUMSTANCES SURROUNDING THE PROCUREMENT BEFORE AND AFTER AWARD WERE SO GROSSLY IMPROPER AS NECESSARILY TO IMPLY BAD FAITH SO AS TO JUSTIFY CANCELLATION OF THE CONTRACT. HOWEVER, IT IS OUR VIEW THAT THE ACTIONS TAKEN BY THE CONTRACTING OFFICER IN THIS CASE ARE THE RESULT OF THE UNSOUND EXERCISE OF DISCRETION, AND WE THEREFORE CANNOT SAY THAT HIS CONCLUSIONS WERE REACHED IN BAD FAITH, OR WERE IN VIOLATION OF LAW OR REGULATION. WE THEREFORE CANNOT CONCLUDE THAT THE SUBJECT CONTRACT AS AWARDED CAN BE CONSIDERED VOID AB INITIO. SEE B- 158186, MARCH 10, 1966.

WE ARE CONCERNED, HOWEVER, WITH THE MANNER IN WHICH THE AGENCIES PROVIDED OUR OFFICE THE TEST DATA AND REPORTS WHICH WERE RELEVANT TO THE PROTEST AND NECESSARY FOR OUR DECISION IN THIS MATTER. WE ARE TODAY ADVISING THE DIRECTOR OF THE DEFENSE SUPPLY AGENCY AND THE SECRETARY OF THE ARMY TO TAKE THE NECESSARY STEPS TO AVOID SUCH OCCURRENCES IN THE FUTURE. ALSO, FOR THE REASONS EARLIER STATED, WE ARE ADVISING THE DIRECTOR OF OUR OPINION THAT EXERCISE OF THE OPTION IN THE CARBORUNDUM CONTRACT, WITHOUT FIRST DETERMINING FROM THE STANDPOINT OF BOTH QUALITY AND PRICE WHETHER SUCH ACTION WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT, WOULD BE CONSIDERED IMPROPER BY OUR OFFICE. FOR ALL THE FOREGOING REASONS, YOUR PROTEST ON BEHALF OF NORTON IS DENIED.