B-167365, NOV. 14, 1969

B-167365: Nov 14, 1969

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FINDING OF NONRESPONSIVENESS IN FIRST STEP BY CONTRACTING OFFICER WAS PROPER SINCE BIDDER'S REVISED TECHNICAL PROPOSAL VARIED SUBSTANTIALLY FROM ADVERTISED REQUIREMENTS FOR EQUIPMENT CONFORMING TO ADOPTION FOR PARTICULAR AIRCRAFT. WAS PERMISSIBLE AS OTHER GOVERNMENT CONTRACT CONTAINED "UNLIMITED RIGHTS" CLAUSE OF ASPR 9-203 (B). ALSO ALLEGED AMBIGUITY BETWEEN DRAWING AND SPECIFICATION SHOULD NOT DISTURB AWARD SINCE NO REAL CONFLICT EXISTED BECAUSE OF DRAWING'S LIMITED PURPOSE AND OTHER BIDDERS WERE NOT MISLED. TO NATIONAL WATER LIFT COMPANY: REFERENCE IS MADE TO YOUR LETTER DATED JULY 16. WAS PREPARED IN ACCORDANCE WITH THE TWO-STEP FORMAL ADVERTISING PROCEDURES OF SECTION 2. WHICH WERE DESIGNED TO EXPAND THE USE AND OBTAIN THE BENEFITS OF FORMAL ADVERTISING WHERE INADEQUATE SPECIFICATIONS PRECLUDE THE USE OF CONVENTIONAL FORMAL ADVERTISING.

B-167365, NOV. 14, 1969

BIDS--TWO-STEP PROCUREMENT--TECHNICAL PROPOSALS--DEFICIENCIES--FIRST STEP REGARDING EXCLUSION OF BIDDER FROM SECOND STEP OF INVITATION FOR VOICE WARNING AIRCRAFT SYSTEMS SIGNAL ADAPTERS, TOGETHER WITH TEST SETS AND TECHNICAL DATA, FINDING OF NONRESPONSIVENESS IN FIRST STEP BY CONTRACTING OFFICER WAS PROPER SINCE BIDDER'S REVISED TECHNICAL PROPOSAL VARIED SUBSTANTIALLY FROM ADVERTISED REQUIREMENTS FOR EQUIPMENT CONFORMING TO ADOPTION FOR PARTICULAR AIRCRAFT, FOR TESTING AND IN OTHER MATTER; FURTHERMORE, USE OF BIDDER'S UNRESTRICTED DATA OBTAINED FROM ANOTHER CONTRACTOR UNDER ANOTHER CONTRACT, ALTHOUGH HEREIN BIDDER'S SAME DATA CONTAINED PROPRIETARY LEGEND, WAS PERMISSIBLE AS OTHER GOVERNMENT CONTRACT CONTAINED "UNLIMITED RIGHTS" CLAUSE OF ASPR 9-203 (B). ALSO ALLEGED AMBIGUITY BETWEEN DRAWING AND SPECIFICATION SHOULD NOT DISTURB AWARD SINCE NO REAL CONFLICT EXISTED BECAUSE OF DRAWING'S LIMITED PURPOSE AND OTHER BIDDERS WERE NOT MISLED.

TO NATIONAL WATER LIFT COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 16, 1969, AND TO PRIOR AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE EXCLUSION OF YOUR COMPANY AS A BIDDER UNDER THE SECOND STEP OF INVITATION FOR BIDS NO. DAAB07-69 B-0356, ISSUED BY THE PROCUREMENT DIVISION, PRODUCTION AND PROCUREMENT DIRECTORATE, UNITED STATES ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY, FOR THE PROCUREMENT OF SIGNAL ADAPTERS TO BE USED WITH VOICE WARNING SYSTEMS IN SPECIFIED TYPES OF MILITARY AIRCRAFT, TOGETHER WITH TEST SETS AND SUPPORTING TECHNICAL DATA.

THE INVITATION, AS ORIGINALLY ISSUED ON MARCH 12, 1969, WAS PREPARED IN ACCORDANCE WITH THE TWO-STEP FORMAL ADVERTISING PROCEDURES OF SECTION 2, PART 5, OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), WHICH WERE DESIGNED TO EXPAND THE USE AND OBTAIN THE BENEFITS OF FORMAL ADVERTISING WHERE INADEQUATE SPECIFICATIONS PRECLUDE THE USE OF CONVENTIONAL FORMAL ADVERTISING. TECHNICAL PROPOSALS WERE REQUESTED WITH THE ADVICE THAT THEIR CONSIDERATION WOULD CONSTITUTE THE FIRST STEP OF THE TWO-STEP INVITATION FOR BIDS, THAT THE TECHNICAL PROPOSALS SHOULD NOT INCLUDE PRICES OR PRICING INFORMATION, THAT THE SECOND STEP OF THE INVITATION FOR BIDS WOULD CONSIST OF A FORMALLY ADVERTISED PROCUREMENT PURSUANT TO WHICH BID PRICES WOULD BE SUBMITTED AND THAT COMPETITION IN THE SECOND STEP WOULD BE CONFINED STRICTLY TO THE BIDDERS SUBMITTING ACCEPTABLE TECHNICAL PROPOSALS UNDER STEP ONE, EITHER INITIALLY OR AS THE RESULT OF DISCUSSIONS.

A CONFERENCE WITH FIRMS INTERESTED IN SUBMITTING TECHNICAL PROPOSALS WAS HELD ON MARCH 21, 1969, AND SEVEN FIRMS SUBMITTED TECHNICAL PROPOSALS AS OF APRIL 14, 1969, THE APPARENT LIMITING DATE FOR THE SUBMISSION OF SUCH PROPOSALS. ALL SEVEN OF THE PROPOSALS SUBMITTED WERE FOUND TO BE DEFICIENT IN CERTAIN RESPECTS. AFTER TELEPHONIC DISCUSSIONS ON APRIL 28 AND 29, 1969, AND ADDITIONAL TELEPHONIC CONVERSATIONS WITH REPRESENTATIVES OF YOUR COMPANY ON MAY 1, 1969, THE SEVEN FIRMS SUBMITTED REVISED TECHNICAL PROPOSALS. ON JUNE 6, 1969, THE CONTRACTING OFFICER WAS ADVISED BY GOVERNMENT TECHNICAL EVALUATORS THAT CONSIDERATION OF THE SEVEN REVISED PROPOSALS HAD RESULTED IN A DETERMINATION THAT FIVE PROPOSALS WERE ACCEPTABLE AND TWO PROPOSALS, INCLUDING THE PROPOSAL SUBMITTED BY YOUR COMPANY, WERE UNACCEPTABLE. ON THE SAME DATE A FORMAL INVITATION FOR BIDS WAS ISSUED TO THE FIVE FIRMS WHOSE TECHNICAL PROPOSALS WERE CONSIDERED TO BE ACCEPTABLE, AND NOTICES WERE FURNISHED TO YOUR COMPANY, AND THE OTHER COMPANY WHOSE REVISED TECHNICAL PROPOSAL WAS FOUND TO BE UNACCEPTABLE, THAT THEIR PROPOSALS HAD BEEN DETERMINED TO BE UNACCEPTABLE AND THAT ANY FURTHER REVISIONS THERETO WOULD NOT BE CONSIDERED.

THE FIRMS WHOSE REVISED TECHNICAL PROPOSALS WERE DETERMINED TO BE ACCEPTABLE SUBMITTED BIDS QUOTING THE PRICES AT WHICH THEY WOULD PERFORM IN ACCORDANCE WITH THE INVITATION FOR BIDS AND THEIR TECHNICAL PROPOSALS. BIDS WERE OPENED, AS SCHEDULED, ON JUNE 18, 1969, AND AN AWARD WAS MADE ON JULY 25, 1969, TO THE RADIO CORPORATION OF AMERICA AS THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER. ALTHOUGH YOU HAD SUBMITTED A PROTEST TO THE DEPARTMENT OF THE ARMY AND WE HAD REQUESTED AN ADMINISTRATIVE REPORT ON THE PROTEST FOLLOWING THE RECEIPT OF COPIES OF YOUR TELEGRAMS DATED JUNE 17 AND 23, 1969, PROTESTING THE DETERMINATION THAT YOUR TECHNICAL PROPOSAL WAS NOT ACCEPTABLE, THE CONTRACTING OFFICER'S RECOMMENDATION THAT THE AWARD BE MADE WITHOUT FURTHER DELAY WAS APPROVED BY HEADQUARTERS, UNITED STATES ARMY MATERIEL COMMAND.

IT WAS REQUESTED IN YOUR TELEGRAM OF JUNE 17, 1969, THAT AWARD ACTION UNDER THE SECOND STEP OF THE INVITATION FOR BIDS BE WITHHELD PENDING THE RESOLUTION OF YOUR PROTEST OR A DETERMINATION TO ACCEPT THE NATIONAL WATER LIFT COMPANY AS A QUALIFIED BIDDER. YOU ALSO REQUESTED THAT THE TELEGRAM BE ACCEPTED AS A REAFFIRMATION OF YOUR INTENT AND AGREEMENT TO COMPLY WITH ALL OF THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS. YOU INDICATED IN YOUR TELEGRAM OF JUNE 23, 1969, THAT A DETAILED STATEMENT OF PROTEST WOULD BE FILED. IN A THIRD TELEGRAM DATED JULY 21, 1969, IT WAS ASSERTED THAT YOUR PROPRIETARY DRAWINGS, DATA AND OTHER INFORMATION DISCLOSED TO THE GOVERNMENT IN CONFIDENCE WERE USED IMPROPERLY AND THAT SUCH USE CREATED AMBIGUITY WITH RESPECT TO THE REQUIREMENTS OF THE GOVERNMENT'S SPECIFICATIONS. HOWEVER, A DETAILED STATEMENT OF PROTEST WAS NOT FILED WITH THE DEPARTMENT OF THE ARMY BEFORE THE MAKING OF THE AWARD TO THE RADIO CORPORATION OF AMERICA.

IN A LETTER DATED JULY 25, 1969, TO OUR OFFICE, IT WAS CONTENDED THAT THE GOVERNMENT WAS RESPONSIBLE FOR ANY ALLEGED DEFICIENCIES IN YOUR REVISED TECHNICAL PROPOSAL IN THAT COGNIZANT GOVERNMENT PERSONNEL HAD ADVISED YOU TO SUBMIT SUPPLEMENTAL TEST PLANS AND PROCEDURES WITH THE ASSURANCE THAT THIS WOULD BE SUFFICIENT. IT WAS ALSO STATED THAT IT SHOULD HAVE BEEN OBVIOUS THAT THE TEST PROCEDURES PROPOSED FOR EQUIPMENTS TO BE USED ON ROTARY-WINGED AIRCRAFT WOULD NOT BE USED WITHOUT SUITABLE THOUGH MINOR MODIFICATIONS TO COVER THE REQUIREMENTS FOR FIXED-WING AIRCRAFT. ADDITIONAL CONTENTIONS WERE MADE THAT, BECAUSE OF WHAT TRANSPIRED BETWEEN YOUR COMPANY AND THE GOVERNMENT, YOUR SUBMITTED CH-54 SAMPLE TEST PROCEDURES WERE ADEQUATE TO COMPLY WITH THE INVITATION FOR BIDS IN THAT THEY DEMONSTRATED HOW YOU COULD PERFORM AND WERE REFERENCED AND SOLICITED FOR THAT PURPOSE; AND THAT THE TEST PROCEDURES WERE SUBMITTED UNDER CIRCUMSTANCES SUCH THAT THEY SHOULD NOT HAVE BEEN REFERENCED AS LIMITING THE SPECIFIC SPECIFICATIONS OTHERWISE APPLICABLE TO THE INVITATION FOR BIDS.

THE DEPARTMENT OF THE ARMY SUBMITTED THREE REPORTS RELATING TO YOUR PROTEST AND IT APPEARS THAT COPIES OF CERTAIN OF THE MATERIAL SUBMITTED WITH THE ORIGINAL AND THE FIRST SUPPLEMENTAL REPORT WERE FURNISHED TO YOU. THE SECOND SUPPLEMENTAL REPORT WAS SUBMITTED BY LETTER DATED OCTOBER 10, 1969, AND IT CONCERNS THE CONTENTION MADE IN YOUR LETTER DATED JULY 31, 1969, THAT A DETAILED ANALYSIS OF YOUR DRAWING NO. 7526 0, REV. B, DISCLOSES AN AMBIGUITY IN OR CONFLICT WITH THE GOVERNMENT'S SPECIFICATION REGARDING RESET AND OVERRIDE REQUIREMENTS AS THEY RELATE TO THE UNIVERSAL COMPUTER; AND THE STATEMENT MADE IN THE LETTER THAT THE AREAS ALLEGED TO BE NONRESPONSIVE IN YOUR TECHNICAL PROPOSAL "ARE FOUND IN THE QUESTIONS AND NWL'S RESPONSE THERETO NUMBERED 2, 7 AND 15 OF NWL'S SUPPLEMENTAL PROPOSAL * * *.'

THE THREE DEPARTMENTAL REPORTS WERE ACCOMPANIED BY SEPARATE REPORTS OF THE CONTRACTING OFFICER.

THE FINDINGS IN THE CONTRACTING OFFICER'S FIRST REPORT INCLUDE A STATEMENT TO THE EFFECT THAT YOUR REVISED TECHNICAL PROPOSAL VARIED SUBSTANTIALLY FROM THE ADVERTISED REQUIREMENT THAT VIBRATION TESTING BE ACCOMPLISHED IN ACCORDANCE WITH SPECIFICATION MIL-E-5400, CURVE IV, WHICH IS REFERRED TO AS A MORE STRINGENT REQUIREMENT THAN COMPLIANCE WITH MIL-E- 5400, CURVE III, WHICH APPLIES TO ROTARY-WING AIRCRAFT ONLY AND WHICH WAS OFFERED BY YOUR COMPANY. HIS FINDINGS ALSO INCLUDE STATEMENTS INDICATING THAT YOUR REVISED TECHNICAL PROPOSAL VARIED MATERIALLY FROM THE ADVERTISED REQUIREMENT THAT ELECTRO-MAGNETIC INTERFERENCE TESTING BE ACCOMPLISHED IN ACCORDANCE WITH SPECIFICATIONS OR STANDARDS MIL-STD-461 AND MIL-STD-462, NOT MIL-I-6181, AS OFFERED IN YOUR PROPOSAL; THAT YOUR PROPOSED QUALITY ASSURANCE PROCEDURES SIMILAR TO MIL-R-8100 DO NOT SATISFY THE REQUIREMENTS OF SPECIFICATION ELCP 1017-0001A (SECTION 4); THAT THE INVITATION FOR BIDS REQUIRED TEST PROCEDURES TO BE IN ACCORDANCE WITH MIL-STD-105, NOT TS-7526 -2, AS OFFERED IN YOUR PROPOSAL; AND THAT, ALTHOUGH THE INVITATION FOR BIDS REQUIRED GROUP C TESTING, ONE OF THE GOVERNMENT'S MOST CRITICAL ACCEPTANCE TESTS, THE GROUP C TESTING WAS NOT REFERRED TO IN YOUR PROPOSAL.

THE CONTRACTING OFFICER CONSIDERED THAT YOUR STATED INTENTION TO COMPLY WITH ALL OF THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS DOES NOT MAKE YOUR REVISED PROPOSAL RESPONSIVE AND THAT, SINCE FIVE ACCEPTABLE TECHNICAL PROPOSALS HAD BEEN RECEIVED, THUS ASSURING ADEQUATE PRICE COMPETITION, IT WAS NOT NECESSARY TO REQUEST FURTHER INFORMATION FROM THE TWO OFFERORS WHOSE REVISED TECHNICAL PROPOSALS WERE FOUND TO BE UNACCEPTABLE BEFORE PROCEEDING WITH A SOLICITATION FOR BID PRICES UNDER THE SECOND STEP OF THE INVITATION FOR BIDS.

THE CONTRACTING OFFICER'S SECOND REPORT SETS FORTH THAT YOUR DRAWING NO. 7526-0 CONTAINED A PROPRIETARY LEGEND AND THAT IT WAS USED IN PREPARING GOVERNMENT DRAWING NO. ES-D-202670. THE GOVERNMENT'S DRAWING IS REFERRED TO AT PAGE 1 OF THE SCHEDULE OF THE INVITATION FOR BIDS AT ITEM 0003 (A) (2) WHICH REQUIRES THE SIGNAL ADAPTER UNIT FOR USE IN CH 54 (CRANE) AIRCRAFT TO BE ELECTRICALLY AND MECHANICALLY INTERCHANGEABLE WITH DRAWING NO. ES-D-202670, AND STATES THAT NO ADDITIONAL WIRES OR CABLES OTHER THAN THOSE ALREADY INSTALLED IN THE CH-54 AIRCRAFT SHALL BE USED.

THE CONTRACTING OFFICER STATED THAT YOUR DRAWING NO. 7526-0 IS AVAILABLE WITHOUT RESTRICTION FOR GOVERNMENT USE FROM SIKORSKY AIRCRAFT COMPANY DRAWINGS AND SPECIFICATIONS BASED ON A GOVERNMENT CONTRACT WITH THE SIKORSKY AIRCRAFT COMPANY WHICH CALLS FOR UNLIMITED RIGHTS SUBMISSION OF PHYSICAL AND ELECTRICAL INSTALLATION DATA PERTAINING TO THE AVIONICS EQUIPMENT IN THE CH-54 HELICOPTERS. THE CONTRACTING OFFICER FURTHER STATED THAT THE GOVERNMENT HAD IN ITS POSSESSION AN UPDATED NWL DRAWING NO. 7526-0, FURNISHED UNDER A SIKORSKY CONTRACT, AND WHICH HAD THE PROPRIETARY LEGEND REMOVED "BY AUTHORIZATION OF NATIONAL WATER LIFT TWX DATED 7 OCTOBER 1968; " THAT THE INFORMATION ON THE DRAWING IS REQUIRED TO ASSURE INTERCHANGEABILITY OF SIGNAL ADAPTERS USED IN THE CH-54 AIRCRAFT; AND THAT "THIS INFORMATION IS OF THE -FORM, FIT AND FUNCTION- TYPE WHICH IS NOT CONSIDERED SUSCEPTIBLE OF BEING PROPRIETARY.'

THE CONTRACTING OFFICER'S SECOND REPORT ALSO SETS FORTH THAT YOU WERE REQUESTED TO SUBMIT SUPPLEMENTAL DATA, AND THAT YOU WERE CLEARLY ADVISED IN TELEPHONE CALLS OF APRIL 28 AND 29, AND MAY 1, 1969, OF THE DEFICIENCIES IN YOUR PROPOSAL AND OF WHAT WAS REQUIRED. HE DOES NOT AGREE THAT THE GOVERNMENT PERSONNEL ASSURED YOUR COMPANY THAT SOMETHING LESS THAN REQUIRED IN THE INVITATION FOR BIDS WOULD BE ACCEPTABLE. HE ALSO STATES THAT YOUR REFERENCES TO TEST PROCEDURES PREVIOUSLY PREPARED FOR YOUR SIKORSKY SUBCONTRACT DID NOT SATISFY THE REQUIREMENTS FOR A TECHNICAL PROPOSAL UNDER THE FIRST STEP OF THE TWO-STEP INVITATION FOR BIDS PROCEDURE; AND THAT "NATIONAL WATER LIFT'S RESPONSE IDENTIFIED AS ITEM NO. 13 OF SUPPLEMENT A TO THEIR PROPOSAL WITH THE WORD -CONCUR- IS MEANINGLESS AND WAS DEEMED NON-RESPONSIVE UNDER THE TERMS OF THE IFB, SPECIFICALLY IN THE LIGHT OF THE DEFICIENCIES POSED BY THE CHAIRMAN OF THE EVALUATION TEAM IN THE 28 AND 29 APRIL 1969 TELEPHONE CALLS.'

IN REGARD TO THE CONTENTION OF AMBIGUITY IN OR CONFLICT BETWEEN THE "SPECIFICATION" ELCP-1017-0001A AND THE GOVERNMENT'S DRAWING NO. ES-D 202670, THE CONTRACTING OFFICER'S THIRD REPORT STATES IN PART THAT THE DRAWING SHOWS AN OVERRIDE/RESET CAPABILITY WHICH WOULD HAVE BEEN INCLUDED IN THE DESIRED SIGNAL ADAPTER IF IT WAS REQUIRED BY THE "SPECIFICATION," BUT THAT THE SPECIFICATION DOES NOT REQUIRE THE SIGNAL ADAPTER TO CONTAIN AN OVERRIDE/RESET CAPABILITY AND IT REQUIRES ONLY "A DEOVER-RIDE CAPABILITY.' THE REPORT ALSO STATES THAT THIS WAS YOUR UNDERSTANDING OF THE DRAWING AND SPECIFICATION, AND THAT NO AMBIGUITY OR CONFLICT EXISTS BETWEEN THE DRAWING AND THE SPECIFICATION.

BY LETTER DATED SEPTEMBER 29, 1969, YOU SUBMITTED A BRIEF, WITH ATTACHMENTS MARKED AS ENCLOSURES NOS. 1, 2 AND 3, IN SUPPORT OF YOUR PROTEST. THE THREE ATTACHMENTS RELATE TO SIKORSKY AIRCRAFT COMPANY'S PURCHASE ORDER NO. SA646538 FOR SIGNAL ADAPTERS, PART NO. 752600, TO BE FURNISHED BY YOUR COMPANY. ENCLOSURE NO. 1 CONTAINS ADVICE THAT FINAL DRAWINGS FOR THE SIGNAL ADAPTER UNIT HAD NOT BEEN FORMALLY RELEASED DUE TO REDESIGN EFFORT OCCASIONED BY THE "HOOK RELEASE" PROBLEM RECENTLY ENCOUNTERED. ENCLOSURE NO. 2 CONSISTS OF A COPY OF ANY AGREEMENT DATED JANUARY 24, 1969, BETWEEN THE UNITED AIRCRAFT CORPORATION, SIKORSKY AIRCRAFT DIVISION, AND YOUR COMPANY, REGARDING THE MATTER OF PROPRIETARY INFORMATION, AND ENCLOSURE NO. 3, IN TWO PARTS, CONSISTS OF TELEGRAMS DATED OCTOBER 3, 1968, AND DECEMBER 16, 1968, AUTHORIZING THE SIKORSKY AIRCRAFT COMPANY TO REMOVE RESTRICTIVE LEGENDS CONTAINED ON THREE COPIES OF DRAWING NO. 7526-0, AND ON TWO COPIES OF A REVISED DRAWING NO. 7526-0, SUBMITTED WITH LETTERS DATED OCTOBER 1, 1968, AND DECEMBER 12, 1968, FROM YOUR COMPANY TO THE SIKORSKY AIRCRAFT COMPANY.

BY LETTER DATED OCTOBER 6, 1969, YOU SUBMITTED A COPY OF A LETTER DATED OCTOBER 1, 1969, FROM MR. JOHN P. PHILLIPS, A SALES REPRESENTATIVE OF YOUR COMPANY, SETTING FORTH HIS RECOLLECTIONS RELATIVE TO THE RIGHTS-IN- TECHNICAL-DATA NEGOTIATIONS AND SUBSEQUENT DATA SUBMISSIONS BETWEEN YOUR COMPANY AND THE SIKORSKY AIRCRAFT COMPANY CONCERNING THE SIGNAL ADAPTER, PART NO. 752600. MR. PHILLIPS INDICATED THAT IT WAS THE POLICY OF THE SIKORSKY AIRCRAFT COMPANY TO REQUIRE ALL DATA SUBMITTED TO IT TO BE FREE OF ANY PROPRIETARY NOTICES AND RESTRICTIVE LEGENDS, OR IT WOULD NOT BE ACCEPTED, BUT THAT "NWL WAS ASSURED BY SIKORSKY'S LEGAL DEPARTMENT THAT, ALTHOUGH THEY COULD NOT AGREE IN WRITING TO NWL'S DATA DISCLOSURE PROVISIONS, IN PRACTICE PROPRIETARY DATA WAS NOT DISCLOSED OUTSIDE OF THE SIKORSKY ORGANIZATION.' IT IS CONTENDED IN SECTION 1 OF YOUR BRIEF THAT YOUR DRAWING NO. 7526-0 CONTAINS PROPRIETARY INFORMATION, THAT YOU PROTECTED YOUR PROPRIETARY RIGHTS BY PROPER LEGAL METHODS AND THAT THE GOVERNMENT WAS NOT ENTITLED TO USE THE DRAWING TO SOLICIT COMPETITION UNDER INVITATION FOR BIDS NO. DAAB07-69-B-0356. IT IS ALSO CONTENDED THAT YOU DID NOT LOSE YOUR RIGHTS TO PROPRIETARY DATA BY CONSENTING TO THE STRIKING OF THE RESTRICTIVE CORPORATE LEGEND FROM THE DRAWING, AND THAT YOUR COMPANY IS NOT GUILTY OF LACHES IN ASSERTING OR PROTECTING ITS PROPRIETARY RIGHTS. WITH RESPECT TO YOUR AGREEMENT OF JANUARY 24, 1969, WITH THE SIKORSKY AIRCRAFT COMPANY, IT IS STATED IN PARAGRAPH 4, SECTION 1, THAT THIS IS A MATTER FOR SETTLEMENT BETWEEN THE TWO COMPANIES BUT THAT IT IS YOUR POSITION THAT THE GOVERNMENT'S USE OF THE DRAWING CONTAINING A RESTRICTIVE LEGEND REGARDING ITS USE CONSTITUTED A VIOLATION OF YOUR PROPRIETARY RIGHTS.

IN SECTION 2 OF THE BRIEF, IT IS ARGUED THAT THE INVITATION FOR BIDS IS AMBIGUOUS AND UNCERTAIN, THAT THE CONFLICT AND AMBIGUITY IN THE SPECIFICATIONS MADE IT IMPOSSIBLE FOR BIDDERS TO SUBMIT BIDS ON AN EQUAL BASIS AND THAT THIS PREJUDICED YOUR COMPANY AND OTHER UNSUCCESSFUL BIDDERS IN VIOLATION OF THE ADVERTISING STATUTES. IN SECTION 3 OF THE BRIEF IT IS CONTENDED THAT THE COMBINATION OF YOUR WRITTEN TECHNICAL PROPOSAL AND ORAL DISCUSSIONS MADE YOUR PROPOSAL RESPONSIVE UNDER STEP ONE OF THE INVITATION FOR BIDS, THAT THE GOVERNMENT PERSONNEL KNEW THE INTENT OF YOUR PROPOSAL ON THE ILLUSTRATIVE SPECIFICATIONS WHICH LATER WERE CITED AS THE CAUSE FOR DETERMINING THAT YOUR REVISED TECHNICAL PROPOSAL WAS NOT ACCEPTABLE, AND THAT THE GOVERNMENT DID NOT MAKE A REASONABLE EFFORT TO OBTAIN CLARIFICATION THAT WOULD HAVE ELIMINATED ANY QUESTION ABOUT THE RESPONSIVENESS OF THE PROPOSAL. IT IS ALSO CONTENDED THAT YOU WERE NOT "CLEARLY ADVISED" OF DEFICIENCIES IN THE PROPOSAL, THAT YOU NEVER ALLEGED THAT THE GOVERNMENT REPRESENTATIVE SPECIFICALLY STATED OR ASSURED YOU THAT THE GOVERNMENT WOULD ACCEPT SOMETHING LESS THAN REQUIRED BY THE INVITATION FOR BIDS, AND THAT YOU WERE NOT NON RESPONSIVE IN STATING "CONCUR" IN RESPONSE TO ITEM NO. 13 OF SUPPLEMENT A TO YOUR PROPOSAL.

THE RECORD BEFORE US INDICATES THAT THE CONTRACT BETWEEN THE GOVERNMENT AND THE SIKORSKY AIRCRAFT COMPANY CONTAINED THE BASIC RIGHTS IN TECHNICAL DATA CLAUSE (1965), AS SET FORTH IN ASPR 9-203 (B). IN SECTION (A) (3) OF THAT CLAUSE, THE TERM "UNLIMITED RIGHTS" IS DEFINED AS "RIGHTS TO USE, DUPLICATE OR DISCLOSE TECHNICAL DATA, IN WHOLE OR IN PART, IN ANY MANNER AND FOR ANY PURPOSE WHATSOEVER, AND TO PERMIT OTHERS TO DO SO.' SECTION (B) OF THE CLAUSE PROVIDES IN PART AS FOLLOWS:

"/B) GOVERNMENT RIGHTS.

"/1) THE GOVERNMENT SHALL HAVE UNLIMITED RIGHTS IN:

"/I) TECHNICAL DATA RESULTING DIRECTLY FROM PERFORMANCE OF EXPERIMENTAL, DEVELOPMENTAL OR RESEARCH WORK WHICH WAS SPECIFIED AS AN ELEMENT OF PERFORMANCE IN THIS OR ANY OTHER GOVERNMENT CONTRACT OR SUBCONTRACT;

"/II) TECHNICAL DATA NECESSARY TO ENABLE MANUFACTURE OF END-ITEMS, COMPONENTS AND MODIFICATIONS, OR TO ENABLE THE PERFORMANCE OF PROCESSES, WHEN THE END-ITEMS, COMPONENTS, MODIFICATIONS OR PROCESSES HAVE BEEN, OR ARE BEING, DEVELOPED UNDER THIS OR ANY OTHER GOVERNMENT CONTRACT OR SUBCONTRACT IN WHICH EXPERIMENTAL, DEVELOPMENTAL OR RESEARCH WORK IS, OR WAS SPECIFIED AS AN ELEMENT OF CONTRACT PERFORMANCE, EXCEPT TECHNICAL DATA PERTAINING TO ITEMS, COMPONENTS OR PROCESSES DEVELOPED AT PRIVATE EXPENSE (BUT SEE (2) (II) BELOW);

"/IV) TECHNICAL DATA PERTAINING TO END-ITEMS, COMPONENTS OR PROCESSES WHICH WAS PREPARED FOR THE PURPOSE OF IDENTIFYING SOURCES, SIZE, CONFIGURATION, MATING AND ATTACHMENT CHARACTERISTICS, FUNCTIONAL CHARACTERISTICS AND PERFORMANCE REQUIREMENTS (-FORM, FIT AND FUNCTION- DATA, E.G., SPECIFICATION CONTROL DRAWINGS, CATALOG SHEETS, ENVELOPE DRAWINGS, ETC.);

"/2) THE GOVERNMENT SHALL HAVE LIMITED RIGHTS IN:

"/II) TECHNICAL DATA PERTAINING TO ITEMS, COMPONENTS OR PROCESSES DEVELOPED AT PRIVATE EXPENSE, OTHER THAN SUCH DATA AS MAY BE INCLUDED IN THE DATA REFERRED TO IN (B) (1) (I), (III), (IV), (V), AND (VI); "

AS HAS BEEN REPORTED BY THE CONTRACTING OFFICER, YOUR DRAWING NO. 7526-0 APPEARS TO CONTAIN INFORMATION WHICH IS OF THE "FORM, FIT AND FUNCTION TYPE.' IT ALSO APPEARS THAT THE CONTRACTING OFFICER CORRECTLY CONCLUDED THAT THE DRAWING WAS NOT REQUIRED TO BE REGARDED AS BEING SUSCEPTIBLE OF BEING PROPRIETARY UNDER THE RIGHTS IN TECHNICAL DATA CLAUSE OF THE GOVERNMENT'S CONTRACT WITH THE SIKORSKY AIRCRAFT COMPANY. FURTHERMORE, IN VIEW OF SECTION (G) OF THE RIGHTS IN TECHNICAL DATA CLAUSE, ENTITLED "ACQUISITION OF DATA FROM SUBCONTRACTORS," PROVIDING THAT, WHENEVER ANY TECHNICAL DATA IS TO BE OBTAINED FROM A SUBCONTRACTOR, THE CONTRACTOR SHALL USE THE SAME CLAUSE IN THE SUBCONTRACT, WITHOUT ALTERATION, IT IS APPARENT THAT THE GOVERNMENT WAS WARRANTED IN ASSUMING THAT IT COULD USE YOUR DRAWING NO. 7526-0 IN PREPARING THE SPECIFICATIONS FOR INVITATION FOR BIDS NO. DAAB07-69-B-0356 WITHOUT VIOLATING ANY PROPRIETARY RIGHTS, NOTWITHSTANDING THE FACT THAT THE DRAWING CONTAINED A NATIONAL WATER LIFT COMPANY PROPRIETARY LEGEND. IN ANY EVENT, IT LATER DEVELOPED THAT YOU HAD AUTHORIZED THE SIKORSKY AIRCRAFT COMPANY TO REMOVE THE PROPRIETARY LEGEND BEFORE THE SPECIFICATIONS FOR THE INVITATION FOR BIDS WERE PREPARED. THE CIRCUMSTANCES WE FIND NO REASONABLE BASIS FOR CHARGING THE GOVERNMENT WITH LIABILITY BECAUSE IT USED THE DRAWING FOR COMPETITIVE BIDDING SOLICITATION PURPOSES, OR FOR REQUIRING THAT THE CONTRACT WITH THE RADIO CORPORATION OF AMERICA BE CANCELED SOLELY BY REASON OF SUCH USE OF THE DRAWING. WITH RESPECT TO THE CONTENTION MADE IN PARAGRAPH 3, SECTION 1 OF YOUR BRIEF, IT IS NOT CONSIDERED NECESSARY FOR THE GOVERNMENT TO RELY UPON HAVING RECEIVED A CORRECTED DRAWING NO. 7526-0 WITHOUT ANY RESTRICTIVE LEGEND THEREON FROM THE SIKORSKY AIRCRAFT COMPANY.

IN REGARD TO THE CONTENTIONS MADE IN SECTION 2 OF YOUR BRIEF, THE CONTRACTING OFFICER RECOGNIZES THAT THE GOVERNMENT'S DRAWING NO. ES-D 202670 SHOWS AN OVERRIDE/RESET FUNCTION OR CAPABILITY AND THAT THE "SPECIFICATION" ELCP-1017-0001A REQUIRES ONLY A "DEOVERRIDE CAPABILITY.' HOWEVER, THE REFERENCED ITEM NO. 0003 OF THE SCHEDULE OF THE INVITATION FOR BIDS REQUIRED THAT THE SIGNAL ADAPTER BE IN ACCORDANCE WITH DEVELOPMENT DESCRIPTION NO. ELCP-1017-0001A DATED SEPTEMBER 18, 1968, AND AMENDMENT NO. 1 DATED DECEMBER 18, 1968, AND DRAWING NO. ES-D-202670 WAS REFERRED TO ONLY IN CONNECTION WITH ONE OF THE INTERCHANGEABILITY REQUIREMENTS MADE APPLICABLE TO ITEM NO. 0003 WHICH WERE STATED TO BE AS FOLLOWS:

"A. THE SIGNAL ADAPTER ABOVE ITEM 0003 SHALL BE CAPABLE OF REPLACING THOSE UNITS DESIGNED AND PROCURED FOR CURRENT CH-54 AIRCRAFT PRODUCTION.

"/1) FORM FACTOR - THE EQUIPMENT SHALL BE INCLOSED IN A CASE HAVING DIMENSIONS NOT TO EXCEED 7.03 INCHES WIDE, 7.02 INCHES LONG BY 5.06 INCHES HIGH.

"/2) ELECTRICAL AND MECHANICAL INTERCHANGEABILITY - THE SIGNAL ADAPTER UNIT SHALL BE ELECTRICALLY AND MECHANICALLY INTERCHANGEABLE WITH DRAWING NO. ES-D-202670. NO ADDITIONAL WIRES OR CABLES OTHER THAN THOSE ALREADY INSTALLED IN THE CH-54 AIRCRAFT SHALL BE USED.

"/3) MECHANICAL INTERFACE - ALL UNITS SHOULD BE MECHANICALLY INTERCHANGEABLE WITHOUT THE USE OF ADAPTER PLATES.

"B. THE UNITS SHALL BE DESIGNED AS THAT IT CAN BE HARD MOUNTED IN THE CH- 54 AIRCRAFT.'

IT APPEARS THAT DRAWING NO. ES-D-202670 WAS INTENDED TO SERVE THE LIMITED PURPOSE OF ASSURING THAT THE NEWLY DEVELOPED SIGNAL ADAPTERS COULD BE INSTALLED IN CH-54 AIRCRAFT UNDER CURRENT PRODUCTION WITHOUT NECESSITATING THE USE OF ADDITIONAL WIRES OR CABLES, AND THAT THERE EXISTS NO REAL CONFLICT BETWEEN THE DRAWING AND "SPECIFICATION" ELCP 1017-0001A SO FAR AS CONCERNS THE ACCOMPLISHMENT OF SUCH LIMITED PURPOSE. YOU STATED IN YOUR SUPPLEMENTAL PROPOSAL THAT YOU WERE CURRENTLY PRODUCING SIGNAL ADAPTERS FOR THE SIKORSKY AIRCRAFT COMPANY "WHICH ARE IDENTICAL TO THOSE PROPOSED HEREIN FOR THE CH-54, EXCEPT FOR THE DELETION OF THE RESET AND OVERRIDE FUNCTION WHICH ARE REPLACED BY THE DEOVERRIDE CIRCUITY.' APPARENTLY, SUCH A REPLACEMENT WOULD NOT SERIOUSLY AFFECT THE REQUIRED ELEMENTS OF ELECTRICAL AND MECHANICAL INTERCHANGEABILITY REGARDING THE TWO TYPES OF SIGNAL ADAPTERS AND THERE ALSO APPEARS TO BE NO PROPER BASIS FOR ASSUMING THAT THE DETAILS OF DRAWING NO. ES-D-202670 MISLED ANY OF THE OTHER FIRMS WHICH SUBMITTED TECHNICAL PROPOSALS INTO A BELIEF THAT THE NEWLY DEVELOPED SIGNAL ADAPTERS WERE REQUIRED TO HAVE "RESET" AND "OVERRIDE" FUNCTIONS OR CAPABILITIES, IN ADDITION TO PROVIDING A DEOVERRIDE CAPABILITY, AS REQUIRED IN ,SPECIFICATION" ELCP-1017-0001A. WE THEREFORE CONCLUDE THAT THE ALLEGATION OF AMBIGUITY IN OR CONFLICT BETWEEN THE DRAWING AND THE SPECIFICATION WOULD NOT WARRANT QUESTIONING THE VALIDITY OF THE AWARD TO THE RADIO CORPORATION OF AMERICA.

WITH RESPECT TO THE CONTENTIONS MADE IN SECTION 3 OF YOUR BRIEF, IT DOES NOT APPEAR THAT THE EXCLUSION OF YOUR COMPANY IN THE SECOND STEP OF THE TWO-STEP FORMALLY ADVERTISED PROCUREMENT WAS ARBITRARY IN ANY RESPECT; IT APPEARS INSTEAD TO HAVE BEEN BASED UPON AN HONEST BELIEF THAT YOUR REVISED TECHNICAL PROPOSAL WAS NOT SUFFICIENTLY RESPONSIVE TO ALLOW IT TO BE REGARDED AS ACCEPTABLE. IN THAT CONNECTION, IT HAS BEEN THE POSITION OF OUR OFFICE THAT THE RESPONSIBILITY FOR TECHNICAL EVALUATIONS OF BIDS OR PROPOSALS RESTS WITH THE CONTRACTING AGENCIES OF THE GOVERNMENT AND THAT THEIR DETERMINATIONS MUST GOVERN IN THE ABSENCE OF A CLEAR SHOWING OF IMPROPRIETY OR GROSS ERROR. THE RECORD IN THIS CASE CONTAINS NOTHING TO INDICATE IMPROPRIETY OR GROSS ERROR IN THE CONTRACTING OFFICER'S DETERMINATION THAT YOUR REVISED TECHNICAL PROPOSAL DOES NOT CONFORM WITH CERTAIN OF THE ESSENTIAL REQUIREMENTS OF THE REQUEST FOR PROPOSALS WHICH INITIATED THE TWO-STEP FORMALLY ADVERTISED PROCUREMENT, AND WE AGREE WITH THE CONTRACTING OFFICER THAT ANY BLANKET OFFER TO COMPLY WITH ALL OF THE SPECIFICATION REQUIREMENTS DOES NOT CURE THE DEFICIENCIES NOTED, PARTICULARLY WITH RESPECT TO THOSE AREAS IN WHICH YOU PROPOSED TO PERFORM IN ACCORDANCE WITH MILITARY OR OTHER TYPES OF SPECIFICATIONS WHICH WERE DIFFERENT FROM THE SPECIFICATIONS LISTED IN THE INVITATION FOR BIDS. ALSO AGREE THAT THE RESPONSE OF "CONCUR," REGARDING THE "QUESTION 13" MATTER REFERRED TO IN YOUR SUPPLEMENTAL TECHNICAL PROPOSAL, WHICH CONCERNED THE EXISTENCE OF SPECIFIC REQUIREMENTS FOR ENVIRONMENTAL SERVICE CONDITIONS TESTING, IN NO WAY DISCLOSED HOW YOU INTENDED TO MEET THE PARTICULAR SPECIFICATION REQUIREMENTS. ALTHOUGH YOU CONTEND THAT THIS RESPONSE INDICATED THAT YOU WERE CONCURRING WITH ORAL ADVICE AS TO THE GOVERNMENT'S INTERPRETATION OF THE SPECIFICATIONS, WE DO NOT BELIEVE THAT THE RESPONSE IN YOUR SUPPLEMENTAL PROPOSAL WAS ADEQUATE IN REGARD TO THE PARTICULAR MATTER.

IT IS POSSIBLE THAT FURTHER DISCUSSIONS WITH YOUR COMPANY AFTER JUNE 6, 1969, WOULD HAVE RESULTED IN THE SUBMISSION OF A COMPLETELY ACCEPTABLE TECHNICAL PROPOSAL, ALTHOUGH YOU APPARENTLY HAD DECIDED TO SUBMIT A PROPOSAL KNOWN TO CONTAIN EXCEPTIONS TO OR DEVIATIONS FROM SOME OF THE ADVERTISED SPECIFICATIONS. HOWEVER, WE CANNOT AGREE WITH YOUR CONTENTION THAT YOU WERE NOT GIVEN SUFFICIENT INFORMATION TO SHOW WHEREIN YOUR ORIGINAL PROPOSAL WAS CONSIDERED TO BE DEFICIENT. THE TERMS OF THE INVITATION ARE CLEAR IN REGARD TO THE POSSIBILITY THAT NO DISCUSSIONS WITH OFFERORS OF TECHNICAL PROPOSALS WOULD TAKE PLACE IF SUFFICIENT ACCEPTABLE TECHNICAL PROPOSALS HAD BEEN RECEIVED SO AS TO ASSURE THAT ADEQUATE PRICE COMPETITION WOULD BE OBTAINED IN THE SECOND STEP.

ACCORDINGLY, THE PROTEST MADE TO OUR OFFICE IN THE MATTER IS HEREBY DENIED.