B-157163, DEC. 16, 1965

B-157163, DEC. 16, 1965

TO THE SECRETARY OF THE ARMY:

WE HAVE CONSIDERED THE PROTEST OF VAP-AIR, DIVISION OF VAPOR CORPORATION, AGAINST THE MANNER IN WHICH THE ARMY FULFILLED ITS REQUIREMENT FOR 5,915 100-AMPERE SOLID STATE VOLTAGE REGULATORS, ORDNANCE PART NO. 10947439, FEDERAL STOCK NO. 2920-900-7993. PROTESTANT POINTS ALLEGED IRREGULARITIES IN THE BID OF THE LEECE NEVILLE COMPANY SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. AMC 20-113-65-1638 (T), OBJECTS TO THE CONTRACTING OFFICER'S DETERMINATION TO CANCEL THE INVITATION FOR "AMBIGUOUSNESS" AND "RESTRICTIVENESS," AND CRITICIZES THE PROCEDURES UTILIZED IN THE SUBSEQUENT NEGOTIATION OF AN AWARD TO THE LEECE-NEVILLE COMPANY.

THE RECORD SHOWS THAT FOR SEVERAL YEARS THE UNITED STATES ARMY HAS BEEN DISSATISFIED WITH THE PERFORMANCE OF THE 100-AMPERE VOLTAGE REGULATOR, FEDERAL STOCK NUMBER 2920-540-9476 (THE SO-CALLED "CARBON PILE REGULATOR"). THE AFOREMENTIONED COMPANIES UNDERTOOK TO DEVELOP A SOLID STATE REGULATOR. THE VAP-AIR UNIT WAS THE FIRST TO BE APPROVED AND THE COMPANY WAS IN PRODUCTION IN OCTOBER OF 1964. BY ORDNANCE CORPS ENGINEERING ORDER NO. ATAC B1629, ISSUED ON DECEMBER 2, 1964, THE CARBON PILE REGULATOR WAS REPLACED BY THE SOLID STATE REGULATOR AS A STANDARD PART FOR USE IN SEVERAL CLASSIFICATIONS OF TRACKED VEHICLES INCLUDING THE M114 FAMILY. INVITATION NO. AMC-20-113-65-1638 (T), ISSUED ON APRIL 6, 1965, BY THE ARMY TANK-AUTOMOTIVE CENTER, WARREN, MICHIGAN, COVERED THE FIRST PURCHASE BY THE GOVERNMENT OF THE NEW REGULATORS WHICH WERE TO BE SUPPLIED IN ACCORDANCE WITH ORDNANCE DRAWING D10947439, AN ENVELOPE DRAWING (BEARING THE LEGEND THAT THE INFORMATION SET FORTH THEREON HAD BEEN FURNISHED BY VAP-AIR), AND B 10947439, A SCHEDULE OF PERFORMANCE REQUIREMENTS, AS MODIFIED BY ENGINEERING EVALUATION REPORT NO. 10947439, REVISION B DATED MARCH 19, 1965. THE INVITATION, AS AMENDED, CONTAINED THE FOLLOWING SIGNIFICANT PROVISION. PARAGRAPH 2 OF THE EER, REVISION C, RECITED:

"2. MANUFACTURER'S DESIGN OF THIS ITEM IS ACCEPTABLE, AND CHANGES IN METHOD OF FABRICATION AND APPEARANCE ARE PERMISSIBLE PROVIDED PHYSICAL AND FUNCTIONAL INTERCHANGEABILITY IS NOT AFFECTED AND THE REQUIREMENTS AS OUTLINED ON THIS DRAWING (D10947439) ARE MAINTAINED.'

THE ONLY TWO RESPONSIVE BIDS RECEIVED AND OPENED ON MAY 6, 1965, WERE AS FOLLOWS:

CHART

LEECE-NEVILLE VAP-AIR

F.O.B. ORIGIN $ 67.62 $ 67.99

F.O.B. DESTINATION 68.07 68.37

BY TELETYPE DATED MAY 7, ADDRESSED TO THE ARMY TANK-AUTOMOTIVE CENTER, AND SUBSEQUENT CORRESPONDENCE FROM BOTH THE COMPANY AND ITS ATTORNEYS, HOGAN AND HARTSON, VAP-AIR PROTESTED CONSIDERATION OF THE LEECE-NEVILLE BID FOR AWARD ON TWO GROUNDS: (1) THAT THE LEECE NEVILLE UNIT PRICE WAS INDEFINITE AND CONSTITUTED IN EFFECT A BID STRADDLE; AND (2) THAT THE REGULATOR OFFERED BY THAT COMPANY WAS NOT IN ACCORDANCE WITH DRAWING D10947439 AND VIOLATED BOTH THE ENVELOPE DIMENSIONS AND THE MAXIMUM WEIGHT STIPULATED IN THE INVITATION.

THE FIRST ALLEGATION ARISES FROM THE FOLLOWING LANGUAGE SET FORTH IN A LETTER WHICH ACCOMPANIED THE LEECE-NEVILLE BID:

"THE PRICES QUOTED ARE IN ACCORDANCE WITH ENGINEERING EVALUATION REPORT, REVISION C, DATED 15 APRIL 1965. THE PRICES QUOTED ARE FURTHER IN ACCORDANCE WITH THE TERMS AND CONDITIONS REFERENCED IN THE INVITATION FOR BID AND ITS AMENDMENT NO. 2 DATED 23 APRIL 1965 AND IN ACCORDANCE WITH THE PATENT INDEMNITY STATEMENT CONTAINED IN PARAGRAPH 2 OF PAGE 3A. (WHICH RENDERED THE PATENT INDEMNITY CLAUSE INAPPLICABLE TO THE PROCUREMENT). SHOULD ALSO BE RECOGNIZED THAT THIS CONTRACTOR IS IN A POSITION TO QUOTE THE SUBJECT ITEM IN ACCORDANCE WITH PARAGRAPH 28 (THE PATENT INDEMNITY CLAUSE) OF GENERAL PROVISIONS-SUPPLY CONTRACT.

"THE BIDDER HAS AN APPLICABLE PATENT LICENSE AGREEMENT REQUIRING A ROYALTY OF $1.88 EACH ON THE BID PRICE OF THE ITEM IN QUESTION.'

THE OBVIOUS QUESTION RAISED BY THE ABOVE-QUOTED LANGUAGE IS WHETHER OR NOT THE LEECE-NEVILLE PRICES INCLUDED THE ROYALTY. THE CONTRACTING OFFICER CONCLUDED, AFTER VERIFYING THE MATTER WITH THE COMPANY, THAT THE ROYALTY WAS MEANT TO BE INCLUDED IN THE QUOTED PRICES. WE DO NOT REGARD THE BID, WHEN CONSTRUED WITH THE ACCOMPANYING LETTER, AS FREE FROM AMBIGUITY. A BIDDER MAY NOT, CONSISTENT WITH THE PRINCIPLES OF FAIRNESS UNDERLYING THE COMPETITIVE BIDDING SYSTEM, BE PERMITTED TO EXPLAIN HIS PRICE AFTER BID OPENING AND THUS UNILATERALLY TO CONTROL HIS ELIGIBILITY FOR AWARD. B-146218, DATED SEPTEMBER 5, 1961; B 156145, DATED MARCH 8, 1965; B-153977, DATED JUNE 24, 1964. WE HAVE GRAVE DOUBT THAT AN AWARD TO LEECE-NEVILLE ON ITS BID SUBMITTED WOULD HAVE ENTITLED THE GOVERNMENT TO DELIVERY AT THE PRICES QUOTED, ROYALTY PAID, IF LEECE-NEVILLE HAD CONTENDED, PRIOR TO AWARD, THAT THE QUOTED PRICES DID NOT INCLUDE THE ROYALTY.

WITH RESPECT TO THE SECOND VAP-AIR ALLEGATION, IT IS CLEAR FROM THE RECORD THAT LEECE-NEVILLE WAS BIDDING ON ITS OWN ITEM AS DISCLOSED BY DRAWING D10947960. LEECE-NEVILLE, IN ITS COVER LETTER, STATED THAT ITS TYPE R0015027RB REGULATOR "HAS BEEN APPROVED AND IS IN THE ORDNANCE SYSTEM KNOWN AS ORDNANCE PART NUMBER 10947960.' AS TO THIS DRAWING MR. H. L. SWITZER, THE GOVERNMENT'S PROJECT ENGINEER WHO INITIATED THE TECHNICAL REQUIREMENTS UNDERLYING THE INVITATION, HAS STATED THAT THE DRAWING WAS NEVER RELEASED. TO QUOTE MR. SWITZER:

"IT WAS A NUMBER ONLY, ASSIGNED TO A FOOD MACHINERY (CORPORATION) DRAWING OF A LEECE-NEVILLE VERSION OF REGULATOR 10947439. THE NUMBER WAS ASSIGNED, AT THE REQUEST OF FOOD MACHINERY, TO AID IN IDENTIFYING THE COMPONENT IN DISCUSSIONS AND CORRESPONDENCE.'

THE LEECE-NEVILLE TYPE R0015027RB REGULATOR DESCRIBED ON DRAWING D10947960 DIFFERS FROM THE UNIT DESCRIBED BY D10947439, WHICH WAS A PART OF THE ADVERTISED SPECIFICATIONS, IN THE FOLLOWING RESPECTS:

CHART

D10947960 D10947439

--------- --------- BRACKETRY: NO BRACKETRY DESCRIBED.

PROVIDES FOR CONTRACTOR TO

BEARS LEGEND "END FURNISH ONE PAIR OF

MOUNTING OPTIONAL UNIFORM MOUNTING BRACKETS

(IF APPLICATION FOR USE INTERCHANGEABLY

REQUIRES"). MOUNTING ON ENDS OR SIDES AS

HOLES SHOWN. APPLICATION REQUIRES. OVERALL DIMENSIONS: MAXIMUM LENGTH - 9.97 INCHES9.88 INCHES

MAXIMUM WIDTH - 4.23 INCHES 4.12 INCHES

MAXIMUM HEIGHT - 5.08 INCHES 4.25 INCHES MOUNTING CHARACTERISTICS: LOCATION OF AND DISTANCE SEE "BRACKETRY"

BETWEEN HOLES REQUIRES SIDE

BRACKETS TO DIFFER IN

CONFIGURATION FROM END BRACKETS.

IN VIEW OF THE DIFFERENCES BETWEEN DRAWINGS D10947439 AND D 10947960 WE DO NOT BELIEVE A BID ON THE LATTER COULD BE CONSIDERED RESPONSIVE TO AN INVITATION REQUIRING COMPLIANCE WITH THE FORMER. THE CONTRACTING OFFICER, HOWEVER, FOUND THE TWO DESIGNS TO BE PHYSICALLY AND FUNCTIONALLY INTERCHANGEABLE, AND THE CHIEF, INSTRUMENT-ELECTRICAL LABORATORY, ON MAY 27, 1965, SOME 21 DAYS AFTER BID OPENING, ISSUED ORDNANCE CORPS ENGINEERING ORDER B5213 RELEASING DRAWING D10947960 UNDER THE REDESIGNATION D10947439, REVISION A, THUS SANCTIONING THE LEECE-NEVILLE REGULATOR AS STANDARD EQUIPMENT IN THE SEVERAL CATEGORIES OF VEHICLES LISTED ON THE ORIGINAL ENGINEERING ORDER BUT OMITTING THE M114 FAMILY. MR. SWITZER HAS STATED THAT THE OMISSION OF THE M114 FAMILY WAS AN OVERSIGHT. THERE IS SOME QUESTION, WHICH WE DO NOT HAVE TO RESOLVE, WHETHER A REGULATOR BUILT TO THE MAXIMUM DIMENSIONS PERMITTED BY REVISION A TO D10947439 WILL FIT IN THE SPACE AVAILABLE IN THE EARLIEST MODELS OF THE M114. IN ANY EVENT, IT IS OBVIOUS THAT A CHANGE IN THE PERMISSIBLE SPECIFICATIONS FROM THOSE SHOWN ON D10947439 TO THOSE SHOWN ON REVISION A THEREOF COULD NOT BE MADE APPLICABLE TO THE PREVIOUS INVITATION FOR BIDS AFTER BID OPENING. ANY SUCH AMENDMENT OF THE GOVERNMENT'S REQUIREMENTS WHICH MIGHT HAVE BEEN DEEMED NECESSARY AFTER ISSUANCE OF THE INVITATION TO BID WOULD REQUIRE THE SENDING OF AN ADDENDUM TO ALL BIDDERS BEFORE BID OPENING PURSUANT TO PARAGRAPH 2-208 OF THE ARMED SERVICES PROCUREMENT REGULATION. IF FOR SOME REASON THE ADVERTISED SPECIFICATIONS ARE INADEQUATE FOR COMPETITIVE PROCUREMENT, THE CONTRACTING OFFICER IS VESTED WITH DISCRETION TO REJECT ALL BIDS AND CANCEL THE INVITATION. 10 U.S.C. 2305 (C) AND ASPR 2-404.1 (B). HE MAY THEN INITIATE A NEW PROCUREMENT, BY READVERTISING OR, IF THE STATUTORY PREREQUISITES ARE SATISFIED,ON A NEGOTIATED BASIS.

A CONFERENCE WAS HELD IN DETROIT ON JUNE 7, 1965, BETWEEN TWO REPRESENTATIVES OF VAP-AIR AND ATAC TO DISCUSS THE FORMER'S PROTEST. THE RECORD SHOWS NO EVIDENCE OF ANY INTENTION AT THAT TIME TO CANCEL THE INVITATION. HOWEVER, ON JUNE 16, 1965, THE COMMODITY MANAGER CAUSED A PRIORITY DESIGNATOR "06" TO BE ISSUED FOR THE REQUIREMENT. CF. 3- 202.2/VI) ASPR. APPARENTLY AT SOME TIME BETWEEN JUNE 16 AND 28 IT WAS CONCLUDED BY ATAC THAT THE PROCUREMENT WOULD HAVE TO BE NEGOTIATED BECAUSE OF THE URGENCY OF THE REQUIREMENT. THE RECORD DOES NOT DISCLOSE THAT THE BIDDERS WERE SO ADVISED UNTIL THE LATTER DATE. BOTH BIDDERS WERE REQUESTED BY TELEPHONE ON THE AFTERNOON OF JUNE 28 TO COME TO DETROIT THE NEXT DAY FOR NEGOTIATION. THE VAP-AIR REPRESENTATIVE STATES THAT HE WAS ADVISED EARLY IN THE MORNING OF JUNE 29 THAT A NEW COMPETITION FOR THE AWARD WAS TO BE HELD ON A NEGOTIATED BASIS, AND THAT A REVISION D TO THE ENGINEERING EVALUATION REPORT DATED JUNE 29, 1965, HAD BEEN ISSUED, PROVIDING AS THE ONLY TECHNICAL CHANGE THE DESIGNATION OF THE CARBON PILE REGULATOR IN PARAGRAPH 2 AS THE STANDARD OF PHYSICAL AND FUNCTIONAL

INTERCHANGEABILITY. A DOCUMENT ENTITLED "LEGAL ANALYSIS AND OPINION" DATED JULY 22, 1965, WHICH IS INCLUDED IN THE RECORD, CORROBORATES THIS STATEMENT WITH RESPECT TO THERE BEING ONLY ONE TECHNICAL CHANGE IN THE SPECIFICATIONS BETWEEN THE ADVERTISED AND THE NEGOTIATED PROCUREMENTS. THIS ADVICE APPEARS TO HAVE OVERLOOKED THE FACT THAT ON MAY 20, 1965, DRAWING D10947960 WAS REDESIGNATED D10947439, REVISION A, AND ON MAY 27, 1965, ENGINEERING ORDER NO. B5213, RELEASING REVISION A, PERMITTED BIDS ON REVISION A IN PLACE OF THE UNIT DESCRIBED ON D10947439.

ALTHOUGH THERE IS A FACTUAL DISPUTE IN THE RECORD REGARDING THE TIME ALLOWED FOR SUBMISSION OF THE VAP-AIR OFFER, THE COMPANY HAS INSISTED THAT ITS AGENT WAS INFORMED THE PROPOSAL WOULD HAVE TO BE TENDERED TO THE GOVERNMENT BY 10:00 A.M., LATER EXTENDED UNTIL 11:00 A.M. VAP-AIR SAYS ITS OFFER WAS FORMULATED ON THE BASIS OF HURRIED LONG DISTANCE PHONE CALLS TO THE COMPANY'S ATTORNEYS, AND TO ITS PLANT, WAS TYPED OUT ON A GOVERNMENT TYPEWRITER; MR. WARD WENT OUT IN THE HALL TO PEN IN THE PRICES AND THEN SEALED THE PROPOSAL IN A BROWN MANILA ENVELOPE FURNISHED BY GOVERNMENT PERSONNEL. THE ENVELOPE WAS PLACED IN A SAFE AWAITING RECEIPT OF THE LEECE-NEVILLE OFFER THAT AFTERNOON. AT 3:45 P.M. THE SAME DAY BOTH OFFERS WERE OPENED BY THE DEPUTY CHIEF OF SECONDARY ITEMS, PROCUREMENT AND PRODUCTION DIRECTORATE, IN FRONT OF SEVERAL GOVERNMENT PERSONNEL. THE FOLLOWING WERE THE PRICES QUOTED:

CHART

LEECE-NEVILLE VAP-AIR

------------- ------- F.O.B. ORIGIN

$ 61.77 $ 64.06 F.O.B. DESTINATION 62.22 64.44

ON JULY 1, 1965, CONTRACT NO. DA-20-113-AMC-07530 (T) IN THE AMOUNT OF $365,369.55 WAS AWARDED TO THE LEECE-NEVILLE COMPANY ON THE BASIS OF THE PRICE QUOTED F.O.B. ORIGIN.

WE HAVE IN THE RECORD BEFORE US AN UNDATED DETERMINATION TO REJECT ALL BIDS AND CANCEL THE INVITATION ON THE GROUNDS THAT THE ADVERTISED SPECIFICATIONS WERE INADEQUATE FOR COMPETITIVE PROCUREMENT AND HAD THE EFFECT OF RESTRICTING ELIGIBILITY FOR AWARD TO THE PRODUCT OF VAP AIR. WHETHER THERE WAS A SUFFICIENT BASIS FOR SUCH A DETERMINATION IN THE INSTANT CASE, WE DO NOT DECIDE. IT MAY BE NOTED, HOWEVER, THAT THE UNITS BEING FURNISHED BY THE LEECE NEVILLE COMPANY UNDER THE AWARD AS MADE APPARENTLY WILL BE WITHIN THE ENVELOPE DIMENSIONS OF THE UNREVISED D10947439. A CONTRACTING OFFICER'S AUTHORITY TO CANCEL AN INVITATION IN THE BEST INTERESTS OF THE GOVERNMENT IS GENERALLY EXPRESSED IN THE INVITATION AND IS WELL SUPPORTED BY JUDICIAL PRECEDENT (SEE PERKINS V. LUKENS STEEL CO., 310 U.S. 113; O-BRIEN V. CARNEY, ET AL., 6 F.SUPP. 761). IT SEEMS EVIDENT FROM THE RECORD THAT THE CONTRACTING OFFICER BELIEVED THE REGULATORS OF BOTH VAP-AIR AND LEECE-NEVILLE TO BE EQUALLY SATISFACTORY FOR THE PURPOSES OF THE GOVERNMENT. THE CONCLUSION WAS REACHED THAT THE INVITATION WAS DEFECTIVE WITHIN THE MEANING OF OUR DECISION PUBLISHED AT 43 COMP. GEN. 544. AS WE CONSTRUE THE SPECIFICATION, IT MERELY OUTLINED THE GOVERNMENT'S REQUIREMENTS IN THE GENERAL FORM OF AN ENVELOPE DRAWING AND PERFORMANCE REQUIREMENTS AND PROVIDED THAT ANY DESIGN WHICH DID NOT CONFLICT WITH THIS STANDARD OF PHYSICAL AND FUNCTIONAL INTERCHANGEABILITY WITH THE UNIT DESCRIBED ON D10947439 WOULD BE ACCEPTABLE. THE CONTRACTING OFFICER CONCLUDED THAT THE INVITATION WAS UNDULY RESTRICTIVE OF COMPETITION SINCE THE ENVELOPE DRAWING ON D10947439 IS DESCRIPTIVE OF THE VAP-AIR PRODUCT. THE VAP-AIR DRAWING WAS INCORPORATED IN THE INVITATION PRESUMABLY BECAUSE IT WAS THE ONLY EXPRESSION OF THE CONCEPT OF A WORKABLE SOLID STATE VOLTAGE REGULATOR KNOWN TO THE PROJECT ENGINEER AT THAT TIME. IT IS INTERESTING TO OBSERVE THAT THE BRACKETS DESCRIBED BY THE VAP-AIR DRAWING WERE NOT DEVELOPED BY THAT COMPANY BUT, OR SO WE ARE INFORMED, WERE DEVELOPED BY A VEHICLE CONTRACTOR AS THE RESULT OF A STUDY OF THE MOUNTING CHARACTERISTICS OF ALL THE FAMILIES OF VEHICLES IN WHICH THE NEW REGULATOR WAS PROPOSED TO BE INSTALLED. WE ARE GIVEN TO UNDERSTAND THAT THE PRODUCT OF THIS EFFORT WAS A SET OF UNIFORM MOUNTING BRACKETS WHICH COULD BE USED IN ANY SITUATION. THE REGULATORS PROCURED FROM LEECE-NEVILLE ARE SPARE PARTS INTENDED FOR USE IN RETROFITTING VARIOUS VEHICLES DISPERSED THROUGHOUT THE WORLD. THE REGULATOR WILL BE SIDE MOUNTED IN ALL EXCEPT THE M114 TYPE OF VEHICLE, WHICH REQUIRES END MOUNTING. WE NOTICE THAT D10947439, REVISION A, DESCRIBES A REGULATOR WHICH REQUIRES TWO DIFFERENT SETS OF BRACKETS, ONE FOR SIDE MOUNTING AND ONE FOR END MOUNTING. THE RECORD BEFORE US JUSTIFIES THE CONCLUSION THAT THE REGULATOR WILL BE PLACED INTO SUPPLY CHANNELS AND DELIVERED AT RANDOM IN THE FIELD. IT CANNOT BE SAID IN ADVANCE IN WHICH VEHICLE A PARTICULAR UNIT WILL BE MOUNTED. THUS, IT APPEARS THAT EACH LEECE-NEVILLE UNIT WILL HAVE TO BE DELIVERED WITH TWO SETS OF BRACKETS, ONE OF WHICH IS TO BE DISCARDED IN THE END USE. THE ORIGINAL SPECIFICATION, D10947439, PROVIDED FOR DELIVERY WITH EACH UNIT OF ONE SET OF UNIFORM MOUNTING BRACKETS FOR USE INTERCHANGEABLY ON ENDS OR SIDES, AS REQUIRED BY THE APPLICATION, INCLUDED IN THE QUOTED PRICE.

WE HAVE NO CONCLUSIVE EVIDENCE TO RESOLVE THE CONFLICTING STATEMENTS OF THE CONTRACTING OFFICER AND THE VAP-AIR REPRESENTATIVE AS TO WHETHER OR NOT VAP-AIR'S PROPOSAL WAS REQUIRED TO BE SUBMITTED BEFORE THAT OF LEECE- NEVILLE. OBVIOUSLY, BOTH SHOULD HAVE BEEN ALLOWED AN EQUAL AMOUNT OF TIME. PARAGRAPHS 3-506 AND 3-805.1 (B), ASPR. A POSSIBLY MORE SERIOUS CRITICISM OF THE PROCEDURE FOLLOWED IS THE QUESTION, UNRESOLVED BY THE RECORD BEFORE US, AS TO WHEN VAP-AIR WAS INFORMED THAT PROPOSALS WERE TO BE MADE ON THE BASIS OF REVISION A TO DRAWING D10947439 INSTEAD OF ON THE UNREVISED DRAWING. LEECE NEVILLE'S BID OF MAY 6, 1965, WAS PREDICATED ON THE REQUIREMENTS SET OUT IN THE DRAWING LATER REDESIGNATED REVISION A; VAP -AIR'S BID ON MAY 6 WAS BASED ON THE LEECE-NEVILLE TO SUBMIT A PROPOSAL ON THE BASIS OF REVISION A ON SHORT NOTICE THAN FOR VAP-AIR TO DO SO. IT IS ALLEGED BY VAP-AIR THAT THE COST OF MANUFACTURING A UNIT TO COMPLY WITH THE UNREVISED DRAWING IS GREATER THAN THE COST OF MANUFACTURING A UNIT COMPLYING WITH REVISION A, AND IF VAP-AIR WAS REQUIRED TO SUBMIT A PROPOSAL UNDER A REQUEST UTILIZING REVISION A ON ONE OR TWO DAYS' NOTICE, AS IT CLAIMS, WE DO NOT BELIEVE THE COMPETITION BETWEEN IT AND LEECE- NEVILLE WAS ON AN EQUAL BASIS.

AS WE HAVE SAID, THE RECORD BEFORE US DOES NOT CONCLUSIVELY ANSWER THESE QUESTIONS. THE AWARD MADE TO LEECE-NEVILLE HAS BEEN RELIED ON BY THAT COMPANY, AND IN VIEW OF THE URGENCY OF THE PROCUREMENT WE BELIEVE THE BEST INTERESTS OF THE GOVERNMENT REQUIRE THAT IT STAND. ACCORDINGLY, WE INTEND TO TAKE NO FURTHER ACTION ON THE VAP-AIR PROTEST.