B-170468, SEP. 8, 1970

B-170468, SEP. 8, 1970

BID PROTEST - CONTRACTS - NEGOTIATED DENIAL OF PROTEST OF THE WHITE ELECTROMAGNETICS, INC. AGAINST THE AWARD OF CONTRACT UNDER QUOTATION FOR THE PROCUREMENT OF ELECTROMAGNETIC RADIATION MEASURING SETS, TO GENERAL DYNAMICS, BY ROME AIR DEVELOPMENT CENTER, PROCUREMENT DIVISION, GRIFFINS AFB, NEW YORK. OFFEROR, WHO CLAIMS THAT PROPOSAL FOR QUOTATIONS CONTAINED DATA WHICH WAS PROPRIETARY TO HIS COMPANY, AND THAT HE POSSESSED TEST EQUIPMENT REQUIRED IN DUPLICATING CERTAIN SPECIFICATIONS OF THE ELECTROMAGNETIC RADIATION MEASURING EQUIPMENT, BUT BASES ON AN INVESTIGATION, IT WAS FOUND THAT MOST OF THE INFORMATION FOR MAKING SUCH PROCUREMENT HAD BEEN RELEASED IN PRIOR PUBLICATIONS AVAILABLE TO INDUSTRY AND GOVERNMENT. THE GOVERNMENT SPECIFICATION CONTAINED NOTHING MORE THAN THE KNOWN STATE-OF-THE-ART AS PRACTICED BY SEVERAL COMPANIES. GENERAL DYNAMICS' PROPOSAL HAS BEEN RATED SUPERIOR ON TECHNICAL GROUNDS AND MORE FAVORABLE ON THE PRICE PROPOSAL, SINCE CLAIMANT'S BID WAS OUTSIDE THE COMPETITIVE RANGE. HOWEVER, SINCE THE RESPONSIBILITY FOR TECHNICAL EVALUATIONS OF BIDS OR PROPOSALS IS A DETERMINATION BY THE CONTRACTING AGENCY CONCERNED, AND NEGOTIATION NOT BEING ARBITRARY NOR UNREASONABLE, ACCEPTANCE OF PROPOSAL IS PROPER, AND THE PROTEST IS DENIED.

TO WHITE ELECTROMAGNETICS, INCORPORATED:

REFERENCE IS MADE TO YOUR PROTEST AGAINST THE POSSIBLE AWARD OF A CONTRACT TO ANOTHER COMPANY UNDER AIR FORCE REQUEST FOR QUOTATIONS NO. F30602-70-Q-0060, ISSUED SEPTEMBER 19, 1969, BY THE ROME AIR DEVELOPMENT CENTER, PROCUREMENT DIVISION, GRIFFISS AIR FORCE BASE, NEW YORK, FOR THE PROCUREMENT OF ELECTROMAGNETIC RADIATION MEASURING SETS.

THE DEPARTMENT OF THE AIR FORCE HAS FURNISHED A DOCUMENTED REPORT ON THE PROTEST. THE RECORD SHOWS THAT TWO PROPOSALS WERE RECEIVED, ONE FROM YOUR COMPANY AND THE OTHER FROM GENERAL DYNAMICS, ELECTRONICS DIVISION, ROCHESTER, NEW YORK. THE PROPOSAL PRICES VARY TO A CONSIDERABLE EXTENT AND THE ROME AIR DEVELOPMENT CENTER CONSIDERS THE PROPOSAL OF GENERAL DYNAMICS TO BE TECHNICALLY SUPERIOR TO THE PROPOSAL OF YOUR COMPANY.

YOUR PROTEST IS BASED PRIMARILY ON THE CONTENTIONS THAT THE REQUEST FOR QUOTATIONS CONTAINS DATA WHICH WAS PROPRIETARY TO YOUR COMPANY AND WHICH WAS DELIVERED TO THE AIR FORCE IN CONFIDENCE; THAT THE AIR FORCE FAILED TO COMPLY WITH ITS OWN CONDITIONS TO LIMIT THE PROPOSALS TO THOSE POSSESSED OF OFF-THE-SHELF EQUIPMENT; AND THAT THE AIR FORCE SHOULD NEGOTIATE WITH YOUR COMPANY BEFORE MAKING ANY AWARD ON THE BASIS OF THE PROPOSAL SUBMITTED BY GENERAL DYNAMICS.

IT IS REPORTED THAT THE GENERAL OUTLINE OF THE TEST CONSOLE WAS BASED ON ADVERTISING MATERIAL OF FOUR CONCERNS, INCLUDING YOUR COMPANY. STATEMENT OF WORK WAS PREPARED USING LANGUAGE THAT WOULD ENCOURAGE USE OF OFF-THE-SHELF COMPONENTS WITH ALLOWANCES FOR DESIGN AND MODIFICATION IF THE OFFEROR DID NOT HAVE A UNIT THAT PERFORMED THE REQUIRED FUNCTION; AND IT WAS NOT INTENDED THAT THE SPECIFICATION WOULD MATCH ANYONE'S EQUIPMENT IN EXACT DETAIL NOR WAS IT EXPECTED THAT OFFERORS WOULD PROPOSE TO MEET THE GOVERNMENT'S SPECIFICATION IN EVERY DETAIL.

MOST, IF NOT ALL, OF THE INFORMATION WHICH YOU CLAIM TO BE PROPRIETARY TO YOUR COMPANY HAS BEEN RELEASED IN BOOKS, PAPERS AND SALES BROCHURES READILY AVAILABLE IN INDUSTRY OR GOVERNMENT; AND THE INFORMATION CONTAINED IN TWO UNSOLICITED PROPOSALS OF YOUR COMPANY, ADMITTEDLY GIVEN IN CONFIDENCE, INCLUDES NO DESCRIPTIONS OF HOW THE EQUIPMENT IS TO BE MANUFACTURED, NO DETAILED DESCRIPTIONS OF CIRCUITS AND A VERY LIMITED DESCRIPTION OF HOW THE CONSOLE OPERATES. COGNIZANT AIR FORCE PERSONNEL DENY THAT ANY REQUEST WAS MADE FOR THE SUBMISSION OF INFORMATION CONTAINED IN A WORK PAPER PRESENTED ON AUGUST 6, 1968. USE OF THE WORK PAPER WAS MINIMAL AND IT IS CONSIDERED BY THE DEPARTMENT OF THE AIR FORCE THAT THE KIND OF INFORMATION CONTAINED THEREIN--PERFORMANCE PARAMETERS--IS NOT OF A TYPE LIKELY TO BE VIEWED AS PROPRIETARY IN ANY EVENT BECAUSE THE PROJECT ENGINEER EASILY COULD HAVE DEVELOPED SIMILAR PARAMETERS ON HIS OWN AND MERELY CHOSE YOUR FIGURES BECAUSE THEY WERE READILY AVAILABLE.

THE DEPARTMENT OF THE AIR FORCE HAS GONE INTO A CONSIDERABLE AMOUNT OF DETAIL IN CONNECTION WITH YOUR PROTEST TO IDENTIFY THE SOURCES FROM WHICH DATA USED TO CONSTRUCT THE AIR FORCE SPECIFICATION WAS OBTAINED, TO IDENTIFY THE COMPANIES KNOWLEDGEABLE IN THE SUBJECT AREA, AND TO REFUTE SPECIFICALLY CERTAIN OF YOUR CONTENTIONS BY EXPLAINING THE TECHNOLOGY AND KNOWLEDGEABILITY OF OTHER COMPANIES IN REGARD TO ELECTROMAGNETIC RADIATION MEASURING EQUIPMENT. BASED UPON ITS INVESTIGATION, THE DEPARTMENT CONCLUDED THAT THE GOVERNMENT'S SPECIFICATION CONTAINS NOTHING MORE THAN THE KNOWN STATE-OF-THE-ART AS PRACTICED BY SEVERAL COMPANIES. IN THAT CONNECTION, GENERAL DYNAMICS, WHOSE PROPOSAL IS CONSIDERED BY THE DEPARTMENT TO BE TECHNICALLY SUPERIOR TO THE PROPOSAL OF YOUR COMPANY, IS REPORTED AS HAVING BEEN ACTIVE SINCE 1960 IN THE DEVELOPMENT OF EQUIPMENT OF THE TYPE HERE INVOLVED.

THE DEPARTMENT OF THE AIR FORCE HAS REFERRED TO THE FACT THAT, ALTHOUGH YOU WERE AWARE OF THE CONTENTS OF THE REQUEST FOR QUOTATIONS, YOU DID NOT CLAIM THAT PROPRIETARY DATA HAD BEEN USED IMPROPERLY UNTIL YOU BECAME CONVINCED THAT YOU WOULD NOT RECEIVE A CONTRACT AWARD UNDER ORDINARY CIRCUMSTANCES. IN REGARD TO THE FACTUAL DISPUTE ON THE QUESTION WHETHER YOUR PROPRIETARY DATA WAS USED IMPROPERLY, IT HAS BEEN OUR POSITION THAT WE MUST ACCORD A SIGNIFICANT DEGREE OF FINALITY TO DECISION MADE BY THE CONTRACTING AGENCIES OF THE GOVERNMENT IN SUCH MATTERS; AND THAT NO SUBSTANTIAL BASIS EXISTS FOR RECOGNITION OF A CLAIM OF IMPROPER USE OF PROPRIETARY DATA WHERE, AS HERE, THE PARTY CLAIMANT APPARENTLY HAS FAILED TO TAKE REASONABLE ACTION TO PREVENT OR SUPPRESS ITS UNAUTHORIZED USE. SEE 46 COMP. GEN. 885 (1967).

IN REGARD TO YOUR SECOND CONTENTION, IT IS REPORTED BY THE DEPARTMENT OF THE AIR FORCE THAT YOU HAVE REFERRED, IN PARTICULAR, TO SECTION 3.0 IN THE "RESEARCH AND TECHNOLOGY WORK STATEMENT." THAT SECTION REQUIRES THE MAXIMUM USE OF OFF-THE-SHELF RELIABLE AND EASILY MAINTAINABLE EQUIPMENT. IT STATES THAT ALREADY DESIGNED AND PROVEN TEST CONSOLES THAT CLOSELY APPROXIMATE THE PERFORMANCE SPECIFIED IN THE GOVERNMENT'S SPECIFICATION ARE REQUIRED; AND THAT MODIFICATION SHALL BE MADE TO EXISTING UNITS AS REQUIRED TO MEET THE SURVIVAL AND TRANSPORTABILITY AND PERFORMANCE REQUIREMENTS OF THE SPECIFICATION.

YOU CONTEND THAT ONLY YOUR COMPANY IS IN POSSESSION OF TEST EQUIPMENT WHICH CLOSELY APPROXIMATES THE PERFORMANCE CALLED FOR. THE DEPARTMENT OF THE AIR FORCE CONSIDERS, HOWEVER, AND WE AGREE, THAT THE LANGUAGE OF THE CITED SECTION 3.0 DOES NOT INDICATE AN INTENTION ON THE PART OF THE AIR FORCE TO LIMIT ITSELF TO ANY FIXED DESIGN OFF-THE-SHELF COMPONENTS. ANY SUCH LIMITATION WOULD HAVE BEEN INCONSISTENT WITH THAT PART OF THE GOVERNMENT'S REQUEST FOR QUOTATIONS WHICH INVITED OFFERORS TO SUBMIT PROPOSALS THAT MAY DEVIATE FROM SPECIFIC COMPONENT REQUIREMENTS FOR THE PURPOSE OF UTILIZING STANDARD OR OFF-THE-SHELF COMPONENTS.

WITH RESPECT TO YOUR THIRD CONTENTION, SECTION 2304(G) OF TITLE 10, U.S.C. APPLICABLE TO THE MILITARY DEPARTMENTS, PROVIDES IN PART THAT, IN ALL NEGOTIATED PROCUREMENTS IN EXCESS OF $2,500, IN WHICH RATES OR PRICES ARE NOT FIXED BY LAW OR REGULATIONS AND IN WHICH TIME OF DELIVERY WILL PERMIT, PROPOSALS SHALL BE SOLICITED FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES CONSISTENT WITH THE NATURE AND REQUIREMENTS OF THE SUPPLIES OR SERVICES TO BE PROCURED, AND WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH "ALL RESPONSIBLE OFFERERS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE, AND OTHER FACTORS CONSIDERED."

SINCE THE PROPOSAL OF GENERAL DYNAMICS WAS RATED SUPERIOR TO YOUR PROPOSAL ON TECHNICAL GROUNDS AND THERE IS A CONSIDERABLE DIFFERENCE IN FAVOR OF GENERAL DYNAMICS BETWEEN THE PROPOSAL PRICES USING EITHER YOUR OPTION A PRICE OR YOUR OPTION B PRICE, YOUR PROPOSAL WAS DETERMINED TO BE OUTSIDE THE COMPETITIVE RANGE, AND IT DOES NOT APPEAR IN THE CIRCUMSTANCES THAT THE DECISION OF THE DEPARTMENT OF THE AIR FORCE NOT TO NEGOTIATE WITH YOUR COMPANY WAS ARBITRARY OR UNREASONABLE. IT HAS BEEN REPORTED THAT THE PROPOSAL OF GENERAL DYNAMICS WAS RATED TECHNICALLY SUPERIOR TO THE PROPOSAL OF YOUR COMPANY BECAUSE GENERAL DYNAMICS PROPOSED SOME SOLID STATE RELIABLE UNITS IN AREAS WHERE YOUR COMPANY WAS STILL USING MECHANICAL RELAYS. THE PROPOSAL PRICE OF GENERAL DYNAMICS MAY NOT BE DISCLOSED AT THIS TIME.

FOR THE REASONS STATED ABOVE IN REGARD TO YOUR REPORTED CONTENTIONS, AND IN VIEW OF THE GENERAL RULE THAT THE RESPONSIBILITY FOR TECHNICAL EVALUATIONS OF BIDS OR PROPOSALS RESTS PRIMARILY WITH THE GOVERNMENT CONTRACTING AGENCIES CONCERNED, IT DOES NOT APPEAR THAT WE WOULD BE WARRANTED TO TAKING EXCEPTION TO THE PROPOSED NEGOTIATION OF A CONTRACT WITH GENERAL DYNAMICS PURSUANT TO REQUEST FOR QUOTATIONS NO. F30602-70 Q- 0060.

ACCORDINGLY, YOUR PROTEST RELATIVE TO THE MATTER IS HEREBY DENIED.