B-174517, MAY 24, 1972

B-174517: May 24, 1972

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ASPR 9-202.3(D)(1) PROVIDES THAT DRAWINGS SUBMITTED TO THE GOVERNMENT WITHOUT RESTRICTIVE MARKINGS ARE DEEMED TO CONFER UNLIMITED RIGHTS TO THE DRAWINGS IN THE GOVERNMENT. UNLESS A CLAIM REGARDING THEIR PROPRIETARY NATURE IS INITIATED WITHIN SIX MONTHS OF DELIVERY. SINCE THESE DRAWINGS WERE NOT SO MARKED AND THE SIX MONTH PERIOD HAS ELAPSED. PROTESTANT'S FIRST ALLEGATION IS WITHOUT MERIT. THE ESTABLISHMENT OF PROCUEURES TO QUALIFY A SOURCE TO MANUFACTURE A PART TO ANOTHER MANUFACTURER'S SPECIFICATIONS IS DISCRETIONARY AND WITHIN THE AMBIT OF THE EXPERTISE OF THE COGNIZANT TECHNICAL ACTIVITY. SINCE THESE COMPONENTS ARE REQUIRED TO BE PHYSICALLY AND FUNCTIONALLY INTERCHANGEABLE. INASMUCH AS CONTRACT DSA400-71-D-0235 WAS AWARDED AS A RESULT OF REQUEST FOR PROPOSALS (RFP) DSA400-70-D-8075.

B-174517, MAY 24, 1972

CONTRACTS - PROPRIETARY RIGHTS TO DRAWINGS - QUALIFICATION OF SUBSTITUTE PARTS DENIAL OF PROTEST BY FERMONT DIVISION, DYNAMICS CORPORATION OF AMERICA, AGAINST THE APPROVAL OF THE HOL-GAR DIVISION, WHITTAKER POWER SYSTEMS CORPORATION, AS AN ADDITIONAL SOURCE FOR COMPONENTS OF THE STANDARDIZED FAMILY OF MB-TEEN GENERATORS UNDER A CONTRACT AWARDED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VA. ASPR 9-202.3(D)(1) PROVIDES THAT DRAWINGS SUBMITTED TO THE GOVERNMENT WITHOUT RESTRICTIVE MARKINGS ARE DEEMED TO CONFER UNLIMITED RIGHTS TO THE DRAWINGS IN THE GOVERNMENT, UNLESS A CLAIM REGARDING THEIR PROPRIETARY NATURE IS INITIATED WITHIN SIX MONTHS OF DELIVERY. SINCE THESE DRAWINGS WERE NOT SO MARKED AND THE SIX MONTH PERIOD HAS ELAPSED, PROTESTANT'S FIRST ALLEGATION IS WITHOUT MERIT. THE ESTABLISHMENT OF PROCUEURES TO QUALIFY A SOURCE TO MANUFACTURE A PART TO ANOTHER MANUFACTURER'S SPECIFICATIONS IS DISCRETIONARY AND WITHIN THE AMBIT OF THE EXPERTISE OF THE COGNIZANT TECHNICAL ACTIVITY. FURTHER, SINCE THESE COMPONENTS ARE REQUIRED TO BE PHYSICALLY AND FUNCTIONALLY INTERCHANGEABLE, APPROVAL OF AN ALTERNATE SOURCE OF SUPPLY FOR THESE PARTS DOES NOT CONFLICT WITH THE STANDARDIZATION OBJECTIVES.

TO DYNAMICS CORPORATION OF AMERICA:

WE REFER TO YOUR LETTER DATED MARCH 8, 1972, AND PRIOR CORRESPONDENCE, PROTESTING THE APPROVAL OF THE HOL-GAR DIVISION, WHITTAKER POWER SYSTEMS CORPORATION (HOL-GAR), AS AN ADDITIONAL SOURCE FOR COMPONENTS OF THE STANDARDIZED FAMILY OF MB-TEEN GENERATORS UNDER CONTRACT DSA400-71-D-0235, AWARDED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA.

INASMUCH AS CONTRACT DSA400-71-D-0235 WAS AWARDED AS A RESULT OF REQUEST FOR PROPOSALS (RFP) DSA400-70-D-8075, WHICH WAS THE SUBJECT OF OUR DECISION B-170544(4), MAY 10, 1971, WE WILL NOT RESTATE THE CIRCUMSTANCES PRELIMINARY TO AWARD OF THE CONTRACT.

ON JANUARY 26, 1971, THE CONTRACTS RESULTING FROM THIS RFP WERE AWARDED. CONTRACT DSA400-71-D-0234 WAS AWARDED TO THE FERMONT DIVISION, DYNAMICS CORPORATION OF AMERICA (FERMONT) FOR THE MB-17 AND 15 GENERATORS, 60 KILOWATTS (KW) AND 150 KW, RESPECTIVELY. CONTRACT DSA400-71-D-0235 WAS AWARDED TO HOL-GAR FOR THE MB-19, -18 AND -16 GENERATORS, 15 KW, 10 KW AND 100 KW, RESPECTIVELY.

INITIALLY, THE CONTRACT SPECIFIED CERTAIN COMPONENTS WHICH WERE FERMONT'S SOLE-SOURCE ITEMS. ON APRIL 20, 1971, HOL-GAR SUBMITTED DRAWING CHANGE REQUEST/NOTICES (DCRN) TO THE SACRAMENTO AIR MATERIEL AREA (SMAMA) APPLICABLE TO THE PREVIOUSLY SOLE-SOURCE FERMONT COMPONENTS. AT THE REQUEST OF SMAMA, THE REQUIRING ACTIVITY AND THE ACTIVITY CHARGED WITH ENGINEERING COGNIZANCE OVER THE GENERATORS, THE DCRN WERE WITHDRAWN AND RESUBMITTED ON JULY 1, 1971. ON SEPTEMBER 28, 1971, SMAMA APPROVED THE DCRN AND BOTH CONTRACTS WERE AMENDED ON OCTOBER 18, 1971, TO INCORPORATE THE CHANGES AT NO COST TO THE GOVERNMENT.

FERMONT ADVANCES THREE ARGUMENTS IN SUPPORT OF ITS PROTEST: (1) THE DRAWINGS APPLICABLE TO THE COMPONENTS ARE PROPRIETARY TO FERMONT; (2) THE HOL-GAR COMPONENTS WERE APPROVED PRIOR TO TESTING AND THEREFORE THE AIR FORCE DOES NOT HAVE ASSURANCES THAT THE COMPONENTS WILL BE PHYSICALLY AND FUNCTIONALLY INTERCHANGEABLE WITH THE TOTAL MB-TEEN FAMILY; AND (3) THE APPROVAL OF AN ADDITIONAL SOURCE FOR THE PARTS IS INCONSISTENT WITH THE OBJECTIVES OF THE STANDARDIZATION PROGRAM.

REGARDING YOUR FIRST ALLEGATION, WE HAVE BEEN ADVISED BY THE AIR FORCE THAT DRAWINGS 69D38160, 69D38179, 69C38183, 69C38175 AND 69C38199, ALL SUBJECTS OF THE DCRN, WERE OBTAINED BY THE AIR FORCE UNDER CONTRACT F04- 606-68D0575 WITHOUT RESTRICTIVE LEGEND. LIKEWISE, DRAWINGS 26727-C52-1021 AND 26727-C52-1082 WERE ALSO SUBMITTED WITHOUT RESTRICTION BY FERMONT UNDER AIR FORCE CONTRACT AF04-606-7880.

IN THIS REGARD, ARMED SERVICES PROCUREMENT REGULATION (ASPR) 9 202.3(D)(1) PROVIDES THAT DRAWINGS SUBMITTED TO THE GOVERNMENT WITHOUT RESTRICTIVE MARKINGS IN CONNECTION WITH A CONTRACT ARE DEEMED TO CONFER UNLIMITED RIGHTS TO THE DRAWINGS IN THE GOVERNMENT, UNLESS A CLAIM REGARDING THEIR PROPRIETARY NATURE IS INITIATED WITHIN 6 MONTHS OF THEIR DELIVERY. SINCE IT IS REPORTED THAT THE DRAWINGS WERE NOT RESTRICTIVELY MARKED WHEN SUBMITTED AND THE 6-MONTH PERIOD HAS ELAPSED WITHOUT ANY ASSERTION BY FERMONT AS TO THEIR PROPRIETARY NATURE, THE GOVERNMENT IS DEEMED TO HAVE ACQUIRED UNLIMITED RIGHTS TO THE DRAWINGS.

WITH RESPECT TO YOUR SECOND ARGUMENT, WE STATED IN OUR DECISION B 172901, OCTOBER 14, 1971:

"THE ESTABLISHMENT OF PROCEDURES TO QUALIFY A SOURCE TO MANUFACTURE A PART TO ANOTHER MANUFACTURER'S SPECIFICATION IS DISCRETIONARY AND WITHIN THE AMBIT OF THE EXPERTISE OF THE COGNIZANT TECHNICAL ACTIVITY. THUS, THE ACTIVITY ASSIGNED RESPONSIBILITY OVER A GIVEN PART, *** MAY DETERMINE THOSE CRITERIA NECESSARY TO INSURE THE SAFETY, DEPENDABILITY AND INTERCHANGEABILITY OF THE PART ON AN AD HOC BASIS. *** "

SINCE SMAMA IS THE COGNIZANT TECHNICAL ACTIVITY IT MUST EXERCISE THE DISCRETION AFFORDED IT BY REASON OF ITS TECHNICAL EXPERTISE TO ESTABLISH THE AMOUNT OF TESTING, IF ANY, TO QUALIFY A GIVEN SOURCE. IT SHOULD BE EMPHASIZED THAT THE APPROVAL OF HOL-GAR AS AN ADDITIONAL SOURCE FOR THE COMPONENT PERTAINS TO THE CAPABILITY OF THE MANUFACTURER TO PRODUCE THE PART, NOT TO THE APPROVAL OF A HOL-GAR PART PER SE.

IN THIS VEIN, THE GOVERNMENT IS PROVIDED WITH ASSURANCES OF THE FUNCTIONAL AND PHYSICAL INTERCHANGEABILITY OF THE COMPONENT BY FIRST ARTICLE TESTING. IN THE REPORT DATED JANUARY 14, 1972, FROM THE CHIEF, OPERATIONS BRANCH, IT IS STATED THAT THE LISTING OF HOL-GAR AS AN ADDITIONAL SOURCE FOR DRAWINGS 69D38160, 69D38179, 69C38183 AND 69C38175 IS SUBJECT TO HOL-GAR'S DEMONSTRATING THAT THE COMPONENTS WILL MET MIL-G- 26727 AND THE SPECIFIC REQUIREMENTS DELINEATED ON THE DCRN.

REGARDING DRAWINGS 69C38199, 26727-C52-1021 AND 26727-C52-1082, THESE DRAWINGS WERE CHANGED FROM SOURCE CONTROL TO SPECIFICATION CONTROL. MIL- STD-100, MARCH 1965, DEFINES BOTH TYPES OF DRAWINGS IN SECTIONS 2 101.6.2.1 AND 2-101.6.2.2, RESPECTIVELY:

"A SOURCE CONTROL DRAWING DEPICTS AN EXISTING COMMERCIAL ITEM WHICH EXCLUSIVELY PROVIDES THE PERFORMANCE, INSTALLATION, AND INTERCHANGEABILITY CHARACTERISTICS REQUIRED FOR A SPECIFIC CRITICAL APPLICATION. *** THE DRAWING SHALL INCLUDE THE FOLLOWING NOTE: 'ONLY THE ITEM DESCRIBED ON THIS DRAWING WHEN PROCURED FROM THE VENDERS) LISTED HEREON IS APPROVED *** FOR USE IN THE APPLICATIONS) SPECIFIED HEREON. *** '

"A SPECIFICATION CONTROL DRAWING DEPICTS AN EXISTING COMMERCIAL ITEM FOR WHICH ALL OF THE ENGINEERING AND TEST REQUIREMENTS SPECIFIED CAN BE MET IN COMMERCIAL CHANNELS. *** "

MOREOVER, THE REPORT INDICATES THAT HOL-GAR HAS BEEN FURNISHED A COMPLETE ENGINEERING DATA PACKAGE, AS WELL AS THE USE OF A BAILED GENERATOR TO CHECK ASSEMBLY CONFIGURATION.

WHILE YOU CONTEND THAT THE GOVERNMENT CANNOT BE SURE THAT THE HOL-GAR PARTS WILL BE FULLY INTERCHANGEABLE THROUGHOUT THE ENTIRE MB-TEEN FAMILY, IT IS THE POSITION OF THE AIR FORCE THAT HOL-GAR POSSESSES CONTRACTS FOR A SUFFICIENTLY WIDE RANGE OF GENERATORS AS TO ENABLE HOL GAR TO MEET THE FULL RANGE OF GENERATOR PARTS BECAUSE THE COMPONENTS ARE OF A RELATIVELY SIMPLE NATURE TECHNICALLY. FURTHER, WE BELIEVE THE ADMINISTRATIVE DETERMINATION IN THE MATTER IS WITHIN THE JURISDICTION OF THE TECHNICALLY COGNIZANT ACTIVITY. IN ANY EVENT, THE FIRST ARTICLE TESTS ASSURE THE GOVERNMENT OF FULL INTERCHANGEABILITY FOR THE ENTIRE MB-TEEN FAMILY.

IN SUPPORT OF YOUR THIRD CONTENTION, YOU CITE OUR DECISION B 170544(4), JANUARY 22, 1971, WHEREIN IT WAS STATED:

"HOWEVER, PERMITTING OFFERS CALCULATED ON 'EQUAL' PARTS AS DESIRED *** AND CONSEQUENTLY, PERMITTING CONTRACTORS TO FURNISH ITEMS WITH SUCH 'EQUAL' PARTS WITHOUT CONSIDERATION OF THE EFFECT THAT SUCH PROLIFERATION OF PARTS COULD HAVE ON THE GENERATOR PROGRAM IS TOTALLY INCOMPATIBLE WITH THE OBJECTIVES SOUGHT TO BE OBTAINED IN A STANDARDIZATION PROCUREMENT."

YOU ALSO REFER TO THE DEFENSE SUPPLY AGENCY REGULATIONS (DSAR) 4120.7, CHAPTER 4, SECTION 7-5A, WHICH INDICATES GENERALLY THAT CONFIGURATION CHANGES TO THE DOD FAMILY OF MB-TEEN GENERATORS SHOULD BE HELD TO AN ABSOLUTE MINIMUM.

WE NOTE THAT THE QUOTED LANGUAGE IN B-170544(4) IS THAT OF THE CONTRACTING OFFICER IN RESPONSE TO A PROTEST UNDER THIS RFP AGAINST THE CONTINUATION OF FERMONT AS A SOLE SOURCE FOR THE GENERATOR COMPONENTS HERE IN QUESTION. HOWEVER, THE CONSIDERATION IN THAT DECISION CONCERNED THE EFFECT THAT "EQUAL" PARTS WOULD HAVE ON THE STANDARDIZATION PROGRAM, I.E., EQUIVALENT PARTS. IN THIS CASE, WE MUST CONSIDER PARTS THAT ARE PHYSICALLY AND FUNCTIONALLY INTERCHANGEABLE, AS STATED IN THE DCRN.

WITH REGARD TO DSAR 4120.7, WE BELIEVE THE IMPORT OF THIS PROVISION RELATES TO THE MAINTENANCE OF THE INTERCHANGEABILITY OF PARTS NECESSARY TO SUSTAIN THE INTEGRITY OF THE STANDARDIZATION PROGRAM. SINCE COMPONENTS IN THIS INSTANCE ARE REQUIRED TO BE PHYSICALLY AND FUNCTIONALLY INTERCHANGEABLE, WE CONCLUDE THAT APPROVAL OF AN ALTERNATE SOURCE OF SUPPLY FOR THESE PARTS DOES NOT CONFLICT WITH THE STANDARDIZATION OBJECTIVES.

FOR THE FOREGOING REASONS, THE PROTEST IS DENIED.