B-170297, MAY 26, 1971

B-170297: May 26, 1971

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ALTHOUGH THE REQUEST WAS ORIGINALLY ON A SOLE-SOURCE BASIS. THERE WAS NO PREJUDICE TO PROTESTANT. THIS SHOULD HAVE PUT PROTESTANT ON NOTICE THAT THE CONTRACT WOULD BECOME COMPETITIVE. ITS BID WAS SUBSTANTIALLY REDUCED INDICATES THAT PROTESTANT HAD ACTUAL KNOWLEDGE OF THE COMPETITIVE NATURE OF THE PROCUREMENT. WHICH THROUGH ERROR WERE NOT SUBSEQUENTLY CHANGED. BECAUSE THOSE CLAUSES WERE RENDERED INOPERATIVE BY THE AMENDMENT PROVIDING FOR COMPETITION. TO THE BENDIX CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 6. THE RFP WAS ISSUED MAY 6. THE GENERATORS WERE BEING PROCURED AS REPLACEMENT PARTS. THE BENDIX CORPORATION WAS LISTED AS THE SOLE SOURCE OF THE ITEM. AMENDMENT NO. 1 WAS ISSUED INCREASING THE QUANTITY TO 726 UNITS.

B-170297, MAY 26, 1971

BID PROTEST - SOLE SOURCE V COMPETITIVE PROCUREMENT DECISION DENYING PROTEST AGAINST THE AWARD OF A CONTRACT TO MINOWITZ MANUFACTURING COMPANY, LOW BIDDER, UNDER AN RFP ISSUED BY THE ARMY TANK AUTOMOTIVE COMMAND FOR CERTAIN GENERATORS. ALTHOUGH THE REQUEST WAS ORIGINALLY ON A SOLE-SOURCE BASIS, WHEN CHANGED TO ONE OF COMPETITION BY AMENDMENT, THERE WAS NO PREJUDICE TO PROTESTANT. THE ORIGINAL REQUEST, CLAUSE B-4, INDICATED OTHER OFFERS WOULD BE CONSIDERED, AND THIS SHOULD HAVE PUT PROTESTANT ON NOTICE THAT THE CONTRACT WOULD BECOME COMPETITIVE. FURTHER, THE FACT THAT PRIOR TO BID OPENING, ITS BID WAS SUBSTANTIALLY REDUCED INDICATES THAT PROTESTANT HAD ACTUAL KNOWLEDGE OF THE COMPETITIVE NATURE OF THE PROCUREMENT. CLAUSES IN THE ORIGINAL REQUEST THAT INDICATED PROTESTANT WOULD BE THE SOLE-SOURCE SUPPLIER, WHICH THROUGH ERROR WERE NOT SUBSEQUENTLY CHANGED, DOES NOT INVALIDATE THE AWARD, BECAUSE THOSE CLAUSES WERE RENDERED INOPERATIVE BY THE AMENDMENT PROVIDING FOR COMPETITION.

TO THE BENDIX CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 6, 1970, AND PRIOR CORRESPONDENCE, PROTESTING THE AWARD OF CONTRACT NO. DAAE07-71-C-1056, UNDER REQUEST FOR PROPOSALS (RFP) DAAE07-70-R-1041, TO MINOWITZ MANUFACTURING COMPANY, BY THE UNITED STATES ARMY TANK-AUTOMOTIVE COMMAND (USATACOM).

THE RFP WAS ISSUED MAY 6, 1970, FOR A QUANTITY OF 626 "GENERATOR ASSEMBLY, MFGR'S P/N 30E00-13A (BENDIX CORP)" WITH A GOVERNMENT OPTION TO PURCHASE ADDITIONAL QUANTITIES NOT TO EXCEED 50 PERCENT OF THE ORIGINAL PROCUREMENT. THE GENERATORS WERE BEING PROCURED AS REPLACEMENT PARTS. THE TIME OF ISSUANCE OF THE RFP, THE BENDIX CORPORATION WAS LISTED AS THE SOLE SOURCE OF THE ITEM. THE DETERMINATION AND FINDINGS CITED 10 U.S.C. 2304(A)(2), AS IMPLEMENTED BY PARAGRAPH 3-202.2(VI) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), AS AUTHORITY TO NEGOTIATE THIS PROCUREMENT. THE PROCUREMENT BORE AN "06" PRIORITY RATING UNDER THE UNIFORM MATERIEL MOVEMENT AND ISSUE PRIORITY SYSTEM (UMMIPS). ON MAY 22, 1970, AMENDMENT NO. 1 WAS ISSUED INCREASING THE QUANTITY TO 726 UNITS; ADDING A FIRST ARTICLE CONTRACTOR APPROVAL TESTING CLAUSE; AND CHANGING THE ARTICLE DESCRIPTION TO REFERENCE MILITARY DRAWING 8724633, DATED DECEMBER 19, 1955, IN LIEU OF THE BENDIX PART NUMBER WHICH REMAINED LISTED "FOR INFORMATION PURPOSES ONLY." ON MAY 28, 1970, AMENDMENT NO. 2 WAS ISSUED INCREASING THE QUANTITY TO 1,098 UNITS AND EXTENDING THE DATE OF SUBMISSION OF THE FIRST ARTICLE APPROVAL TEST FROM 30 TO 120 DAYS AFTER THE DATE OF THE CONTRACT. THE FOLLOWING PROVISIONS WERE CONTAINED IN RFP SECTION "B," DESCRIPTION OR SPECIFICATIONS:

"B-3 THIS PROCUREMENT IS RESTRICTED (ASPR 1-313) TO THE ITEM DESCRIPTION SET FORTH IN THE SCHEDULE WHICH SPECIFIES A MANUFACTURER'S PART NUMBER. SINCE COMPLETE GOVERNMENT DATA OF THE ITEM IS NOT AVAILABLE, IT IS UNDERSTOOD AND AGREED THAT REFERENCES TO SPECIFICATIONS AND DRAWINGS HEREIN SHALL BE DEEMED TO INCLUDE ALL CHANGES OR REVISIONS THERETO WHICH THE CONTRACTOR HAS MADE EFFECTIVE AS OF THE DATE OF DELIVERY OF ANY OF THE ITEMS PROVIDED FOR IN ANY RESULTING CONTRACT; PROVIDED, THAT NO SUCH CHANGE OR REVISION WHICH AFFECTS THE INTERCHANGEABILITY (ABILITY TO BE INTERCHANGED WITH PREVIOUS PARTS OR MATING PARTS WHEN ASSEMBLED) OF THE ITEM, SHALL BE EFFECTED WITHOUT THE APPROVAL OF THE CONTRACTING OFFICER. THE CONTRACTOR AGREES THAT HE WILL FURNISH TO THE CONTRACTING OFFICER OR GOVERNMENT INSPECTOR, FOR THE PURPOSE OF MAKING INSPECTION UNDER ANY RESULTING CONTRACT, COPIES OF THE APPLICABLE SPECIFICATIONS AND DRAWINGS INDICATING ALL CHANGES OR REVISIONS.

"B-4 SOURCES NOT CURRENTLY QUALIFIED AS THE ITEM MANUFACTURER, OR A SUPPLIER TO THE MANUFACTURERS, OF THE SPECIFIC ITEM SET FORTH IN THE SCHEDULE, MAY OFFER THEIR ITEM FOR EVALUATION AND APPROVAL. OFFERORS DESIRING TO OBTAIN APPROVAL SHALL CONTACT THE CONTRACTING OFFICER (IN WRITING) TO OBTAIN INFORMATION AS TO THE NATURE AND EXTENT OF TESTS THAT WILL BE REQUIRED FOR GOVERNMENT EVALUATION AND APPROVAL. THE GOVERNMENT WILL CONSIDER SUCH OFFERS FOR EITHER (I) THIS PROCUREMENT OR (II) FUTURE PROCUREMENTS, CONSISTENT WITH THE GOVERNMENT'S REQUIREMENTS AND URGENCY OF DELIVERY.

"B-5 NOTICE TO OFFEROR

THE OFFEROR SHALL SPECIFICALLY IDENTIFY THE DRAWINGS AND/OR SPECIFICATIONS TO WHICH EACH ITEM SHALL BE MANUFACTURED, AS FOLLOWS:

ITEM NO.

MFG'S PART NO.

DRAWING AND/OR SPECIFICATIONS:

DATE: REV. NO."

BOTH BENDIX AND MINOWITZ SUBMITTED PRICE PROPOSALS BEFORE THE JUNE 5 CLOSING DATE AS FOLLOWS:

UNIT PRICE TOTAL

BENDIX $753.33 $827,156.34

MINOWITZ 648.00 711,504.00 THE BENDIX PROPOSAL WAS PREDICATED ON FIRST ARTICLE TESTING WAIVER. AS A RESULT OF MINOWITZ'S LOW OFFER, A PREAWARD SURVEY WAS CONDUCTED. THE SURVEY REPORT RECOMMENDED AWARD TO MINOWITZ.

ON JUNE 18, 1970, THE USATACOM ENGINEERING DIRECTORATE ISSUED A MEMORANDUM REQUIRING ADDITIONAL TESTS FOR THE FIRST ARTICLE. CONSEQUENTLY, BY LETTER OF JUNE 19, 1970, BOTH OFFERORS WERE ADVISED THAT NEGOTIATIONS WERE BEING REOPENED TO REVIEW THEIR PROPOSALS IN VIEW OF THE ADDED TESTS AND INSPECTIONS ACCOMPANYING THE LETTER. INCLUDED IN THE LETTER WAS THE FOLLOWING LANGUAGE:

"PLEASE REVIEW THIS REQUIREMENT FOR ANY POSSIBLE EFFECT WITH REGARD TO YOUR PROPOSAL *** . IT IS REQUESTED THAT YOU NOTIFY MR. L. H. HULL OF THIS OFFICE BY TELEGRAM OR IN WRITING NO LATER THAN 3 P.M., EST, 25 JUNE 1970 WHETHER THIS REQUIREMENT WILL HAVE ANY EFFECT ON YOUR PROPOSAL. ANY REPLY RECEIVED AFTER THE TIME AND DATA SPECIFIED FOR CLOSING OF THE NEGOTIATIONS WILL BE HANDLED IN ACCORDANCE WITH THE LATE PROPOSALS CLAUSE IN THE SOLICITATION." AS A RESULT, BY LETTER OF JUNE 25, 1970, MINOWITZ ACCEPTED THE CHANGE WITHOUT PRICE REVISION. BENDIX, BY LATE TELEGRAM, REDUCED ITS PRICE TO $698.98 EACH, STILL CONTINGENT ON DELETION OF THE FIRST ARTICLE TESTING REQUIREMENT. THEREAFTER, IT WAS DETERMINED THAT AWARD WOULD BE MADE TO MINOWITZ, PRICE AND OTHER FACTORS CONSIDERED.

YOU ALLEGE THAT CLAUSES B-3, B-4 AND B-5 RESTRICTED THE PROCUREMENT SOLELY TO BENDIX. HOWEVER, THE CONTRACTING OFFICE HAS ADVISED THAT ALTHOUGH IT ORIGINALLY CONTEMPLATED SOLE SOURCING THE PROCUREMENT TO BENDIX, THE PROVISIONS EVIDENCING SUCH INTENT WERE INADVERTENTLY RETAINED IN THE RFP AFTER A DETERMINATION WAS MADE TO OBTAIN COMPETITION. THE OFFICE FURTHER ADVISED THAT THE ORIGINAL NONCOMPETITIVE CLAUSES WERE RENDERED INOPERATIVE, IN ANY EVENT, BECAUSE THE RFP WAS AMENDED TO PROCURE THE ITEM IN ACCORDANCE WITH THE MILITARY DRAWING AND TO INCLUDE THE MANUFACTURER'S PART NUMBER FOR INFORMATION PURPOSES ONLY. WE AGREE THAT, BY VIRTUE OF THE RFP AMENDMENT, CLAUSE B 3 WAS RENDERED MEANINGLESS IN VIEW OF THE ADMINISTRATIVE EXPLANATION STATED ABOVE.

FURTHER, CLAUSE B-4 INDICATES AN INTENTION TO CONSIDER COMPETITIVE SOURCES AND WHILE THE CLAUSE MIGHT BE INTERPRETED AS REQUIRING AN ARTICLE OFFERED BY A SOURCE NOT CURRENTLY QUALIFIED AS THE MANUFACTURER TO BE TESTED PRIOR TO AWARD, WE FAIL TO PERCEIVE HOW WAIVING THE REQUIREMENT COULD HAVE HAD ANY BEARING ON THE BENDIX OFFER.

FINALLY, THE FAILURE TO COMPLETE THE BLANK SPACES IN CLAUSE B-5 IS NOT MATERIAL SINCE IT WOULD HAVE BEEN REPETITIVE OF THE INFORMATION IN THE ITEM DESCRIPTION. WHILE THE "MFR'S PART NO." IS NOT SO INDICATED, THIS IS A NEGOTIATED PROCUREMENT AND THE RULES OF FORMALLY ADVERTISED PROCUREMENTS DO NOT APPLY SO THAT THE PART NUMBER COULD BE OBTAINED AFTER THE OPENING OF OFFERS.

YOU HAVE SUGGESTED THAT THE PROCUREMENT OF THESE REPLACEMENT GENERATORS SHOULD HAVE BEEN CONDUCTED ON A SOLE-SOURCE BASIS IN ACCORDANCE WITH ASPR 1-313. HOWEVER, PARAGRAPH (B) OF THAT SECTION PROVIDES FOR PROCUREMENT BY COMPETITION OF PARTS HAVING A STANDARD DESIGN CONFIGURATION, INCLUDING ITEMS SUCH AS "GENERATORS." FURTHER, PARAGRAPH (C) OF ASPR 1-313 INDICATES THAT WHERE THERE IS AVAILABLE ADEQUATE DATA AND QUALITY ASSURANCE PROCEDURES, COMPETITION WOULD BE APPROPRIATE. MOREOVER, OUR OFFICE HAS STATED THAT ABSENT SUFFICIENT DOCUMENTARY REASONS, COMPETITION IN ALL ASPECTS OF GOVERNMENT PROCUREMENT IS THE DESIRED GOAL AND THAT CONTINUING VIGILANCE SHOULD BE EXERCISED IN AN EFFORT TO MAXIMIZE COMPETITION. B-169172, SEPTEMBER 16, 1970.

YOU ALLEGE THAT DUE TO BENDIX'S FORMER POSITION AS A SOLE-SOURCE SUPPLIER, IT WAS UNAWARE THAT IT WAS IN COMPETITION WITH ANY OTHER OFFERORS AND DID NOT BID COMPETITIVELY. HOWEVER, CLAUSE B-4, SUPRA, INVITING OFFERS FROM OTHER SOURCES, SHOULD HAVE PLACED BENDIX ON NOTICE OF POSSIBLE COMPETITION. WE HAVE ALSO BEEN ADVISED THAT DURING THE PERIOD WHEN NEGOTIATIONS WERE REOPENED, A BENDIX REPRESENTATIVE CONTACTED USATACOM PERSONNEL TO ASCERTAIN WHETHER THE PROCUREMENT WAS THEN COMPETITIVE. IT IS REPORTED THAT ALTHOUGH THE INDIVIDUAL CONTACTED RESPONDED THAT HE HAD NO SUCH KNOWLEDGE, HE MENTIONED THAT OTHER FIRMS HAD DISPLAYED AN INTEREST IN THE PROCUREMENT. FURTHER, IT SEEMS THAT BENDIX COULD VERY WELL HAVE BEEN AWARE OF THE POSSIBILITY OF COMPETITION SINCE AFTER NEGOTIATIONS WERE REOPENED TO PERMIT OFFERORS TO REEVALUATE PROPOSALS IN LIGHT OF ADDED TEST REQUIREMENTS, BENDIX REDUCED ITS ORIGINAL OFFER OF $753.33 A UNIT TO $698.98, A TOTAL REDUCTION OF $59,684.30, ALTHOUGH STILL PREDICATED UPON A WAIVER OF THE FIRST ARTICLE TESTING REQUIREMENT. ALL FACTORS CONSIDERED, IT APPEARS THAT BENDIX HAD KNOWLEDGE OF THE COMPETITIVE NATURE OF THE PROCUREMENT.

YOU HAVE REFERRED TO THE REQUIREMENTS IN 10 U.S.C. 2304(G) PROVIDING THAT "WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE, AND OTHER FACTORS CONSIDERED," AND YOU CONTEND THAT NO NEGOTIATIONS WERE HELD WITH BENDIX EVEN THOUGH ITS PRICE WAS IN A COMPETITIVE RANGE. IN THIS REGARD, YOU CITE B-165088, MARCH 18, 1969, AND B-164242, JUNE 25, 1968, IN WHICH THE PROCUREMENT PROCEDURE WAS CRITICIZED BECAUSE OF THE "ACCEPTANCE OF AN INITIAL PROPOSAL WITHOUT DISCUSSIONS," WHERE THE ITEM TO BE PROCURED WAS PREVIOUSLY SOLE SOURCE AND THE PRIOR COST DATA WAS UNRELIABLE DUE TO THE SOLE-SOURCE NATURE. HOWEVER, THESE CASES ARE DISTINGUISHABLE IN THAT THE AWARD CONSUMMATED IN THIS INSTANCE WAS THE RESULT OF NEGOTIATIONS. THAT CONNECTION, WE VIEW THE LETTER OF JUNE 19, 1970, PROVIDING BENDIX AND MINOWITZ WITH AN OPPORTUNITY TO REVISE THEIR INITIAL PROPOSALS AS A RESULT OF A CHANGE IN REQUIREMENTS, AND THE OFFERORS' RESPONSES THERETO AS MEETING THE REQUIREMENT FOR "DISCUSSIONS" PROVIDED FOR IN 10 U.S.C. 2304(G). BY THIS, WE DO NOT MEAN TO DISCOURAGE MORE EXTENSIVE NEGOTIATIONS OF PRICE IN SIMILAR SITUATIONS NOR TO INFER THAT THEY WOULD BE INAPPROPRIATE.

DISCUSSIONS HAVING BEEN OPENED, THEY MUST BE BROUGHT TO A CLOSE AT SOME TIME BEFORE AWARD IS MADE. THE METHOD OF TERMINATION HAS BEEN ESTABLISHED BY ASPR 3-805.1(B), WHICH, IN PERTINENT PART, STATES:

" *** WHENEVER NEGOTIATIONS ARE CONDUCTED WITH SEVERAL OFFERORS, WHILE SUCH NEGOTIATIONS MAY BE CONDUCTED SUCCESSIVELY, ALL OFFERORS SELECTED TO PARTICIPATE IN SUCH NEGOTIATIONS (SEE (A) ABOVE) SHALL BE OFFERED AN EQUITABLE OPPORTUNITY TO SUBMIT SUCH PRICE, TECHNICAL, OR OTHER REVISIONS IN THEIR PROPOSALS AS MAY RESULT FROM THE NEGOTIATIONS. ALL SUCH OFFERORS SHALL BE INFORMED OF THE SPECIFIED DATE (AND TIME IF DESIRED) OF THE CLOSING OF NEGOTIATIONS AND THAT ANY REVISIONS TO THEIR PROPOSALS MUST BE SUBMITTED BY THAT DATE. ALL SUCH OFFERORS SHALL BE INFORMED THAT ANY REVISION RECEIVED AFTER SUCH DATE SHALL BE TREATED AS A LATE PROPOSAL IN ACCORDANCE WITH THE 'LATE PROPOSALS' PROVISIONS OF THE REQUEST FOR PROPOSALS. (IN THE EXCEPTIONAL CIRCUMSTANCES WHERE THE SECRETARY CONCERNED AUTHORIZES CONSIDERATION OF SUCH A LATE PROPOSAL, RESOLICITATION SHALL BE LIMITED TO THE SELECTED OFFERORS WITH WHOM NEGOTIATIONS HAVE BEEN CONDUCTED.) IN ADDITION, ALL SUCH OFFERORS SHALL ALSO BE INFORMED THAT AFTER THE SPECIFIED DATE FOR THE CLOSING OF NEGOTIATION NO INFORMATION OTHER THAN NOTICE OF UNACCEPTABILITY OF PROPOSAL, IF APPLICABLE (SEE 3- 508), WILL BE FURNISHED TO ANY OFFEROR UNTIL AWARD HAS BEEN MADE." IT IS OUR BELIEF THAT THE JUNE 19 LETTER SHOULD BE VIEWED AS ISSUED IN CONTEMPLATION OF ASPR 3-805.1(B). THE LETTER DID NOT CONFORM TO THE LAST SENTENCE OF THE ABOVE QUOTE INFORMING THE OFFERORS THAT NO INFORMATION WOULD BE AVAILABLE AFTER THE SPECIFIED DATE, EXCEPT NOTICE OF UNACCEPTABILITY OF THE PROPOSAL. ALTHOUGH THE LETTER IS AN ATTEMPT TO CLOSE NEGOTIATIONS ON JUNE 25, 1970, THE DATE FIXED FOR RECEIPT OF PROPOSALS, IT WAS NOT CONFORMING WITH ASPR AND WAS INEFFECTIVE TO ACCOMPLISH THE AGENCY'S PURPOSE IN ISSUING THE LETTER. WHILE WE CONSIDER THAT NEGOTIATIONS WERE NEVER FORMALLY CLOSED, OFFERORS WERE LED TO BELIEVE THAT JUNE 25 WAS THE CUTOFF DATE AND, THUS, THAT DATE CAN BE VIEWED AS AN INFORMAL CLOSE OF NEGOTIATIONS. B-165837, MARCH 28, 1969; B-167654, JANUARY 19, 1970.

IT IS CONTENDED FURTHER THAT SINCE THE PROCUREMENT WAS NEGOTIATED PURSUANT TO 10 U.S.C. 2304(A)(2), "THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING," THE INCREASE BY AMENDMENT IN THE TIME FOR PERFORMANCE FROM 150 TO 270 DAYS WAS INIMICAL TO THE STATUTORY AUTHORITY. FURTHER, YOU POINT OUT THAT ASPR 3-202.2 STATES THAT IN ORDER FOR THE AUTHORITY OF 10 U.S.C. 2304(A)(2) TO BE USED "THE NEED MUST BE COMPELLING AND OF UNUSUAL URGENCY, AS WHEN THE GOVERNMENT WOULD BE SERIOUSLY INJURED, FINANCIALLY OR OTHERWISE, IF THE SUPPLIES OR SERVICES WERE NOT FURNISHED BY A CERTAIN DATE, AND WHEN THEY COULD NOT BE PROCURED BY THAT DATE BY MEANS OF FORMAL ADVERTISING." HOWEVER, ASPR 3-202.2 LISTS AS AN EXAMPLE OF THE CIRCUMSTANCES UNDER WHICH THE AUTHORITY OF 10 U.S.C. 2304(A)(2) MAY BE INVOKED:

"(VI) PURCHASE REQUEST CITING AN ISSUE PRIORITY DESIGNATOR 1 THROUGH 6, INCLUSIVE, UNDER THE UNIFORM MATERIEL MOVEMENT AND ISSUE PRIORITY SYSTEM (UMMIPS) *** ."

IT SHOULD BE NOTED HERE THAT THE CONTRACTING OFFICER'S DETERMINATION AND FINDINGS CITED ASPR 3-202.2(VI) AS THE IMPLEMENTING REGULATION FOR NEGOTIATION AUTHORITY, IN THAT THE UMMIPS CITED PRIORITY DESIGNATOR "06" FOR THE PROCUREMENT. FROM THE FOREGOING, IT APPEARS THAT THE AUTHORITY TO NEGOTIATE THIS PROCUREMENT WAS IN ACCORDANCE WITH THE APPLICABLE STATUTES AND REGULATIONS AND CONDUCTED IN ACCORDANCE THEREWITH. FURTHER, THE DETERMINATION TO NEGOTIATE UNDER 10 U.S.C. 2304(A)(2) IS MADE FINAL BY 10 U.S.C. 2310(B). YOUR LAST CONTENTION RELATES TO AN ALLEGED MISUSE BY THE GOVERNMENT OF BENDIX PROPRIETARY DRAWINGS. WE ARE INFORMED, HOWEVER, THAT:

" *** MILITARY DRAWING NO. 8724633 DATED 19 DECEMBER 1955, *** IS AN ENVELOPE TYPE OR OUTLINE DRAWINGS PROVIDING FORM, FIT AND FUNCTIONAL CHARACTERISTICS. THIS IS THE ONLY DRAWING MADE AVAILABLE TO THE PROCUREMENT OFFICE FOR USE IN THE INVOLVED SOLICITATION AND FURNISHED TO POTENTIAL OFFERORS AT TIME OF ISSUANCE OF THE RFP. THERE IS NO MANUFACTURING INFORMATION ON THIS DRAWING OR OTHER DATA THAT WOULD BE CONSIDERED PROPRIETARY TO BENDIX. TOGETHER WITH THE TEST REQUIREMENTS THIS INFORMATION IS CONSIDERED ADEQUATE FOR A COMPETENT MANUFACTURER TO BUILD AN ACCEPTABLE GENERATOR. IT SHOULD BE NOTED THAT MINOWITZ HAS SUCCESSFULLY REVERSE ENGINEERED OTHER SIMILAR GENERATORS. IT IS THE OPINION OF ENGINEERING PERSONNEL THAT REVERSE ENGINEERING COULD BE ACCOMPLISHED ON THIS GENERATOR WITHOUT UNDUE DIFFICULTY. IN ANY EVENT USATACOM HAS NOT SUPPLIED MINOWITZ WITH ANY DRAWINGS CONTAINING PROPRIETARY DATA OF BENDIX."

NOTHING SUBMITTED BY BENDIX OVERCOMES THE AGENCY'S REPRESENTATION IN THIS REGARD.

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.