B-181199, MAR 7, 1975, 54 COMP GEN 715

B-181199: Mar 7, 1975

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CONTRACTS - PROTESTS - ABEYANCE PENDING COURT ACTION - CONSIDERATION NONETHELESS BY GENERAL ACCOUNTING OFFICE WHERE ISSUES INVOLVED IN REQUEST FOR RECONSIDERATION ARE BEFORE COURT OF COMPETENT JURISDICTION. DECISION ON RECONSIDERATION GENERALLY WILL NOT BE ISSUED. COURT WAS FULLY AWARE OF BOTH PENDENCY OF RECONSIDERATION AND COMMITMENT TO ISSUE DECISION BEFORE EXPIRATION OF TRO. DECISION ON RECONSIDERATION IS ISSUED. OFF-THE-SHELF" ITEM AT DATE SET FOR DELIVERY IS AFFIRMED. CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF LOW BIDDER'S RESPONSIBILITY BASED ON ERRONEOUS INTERPRETATION OF SPECIFICATION IN FACE OF STRONGLY NEGATIVE PREAWARD SURVEY WAS NOT REASONABLE EXERCISE OF PROCUREMENT DISCRETION.

B-181199, MAR 7, 1975, 54 COMP GEN 715

CONTRACTS - PROTESTS - ABEYANCE PENDING COURT ACTION - CONSIDERATION NONETHELESS BY GENERAL ACCOUNTING OFFICE WHERE ISSUES INVOLVED IN REQUEST FOR RECONSIDERATION ARE BEFORE COURT OF COMPETENT JURISDICTION, DECISION ON RECONSIDERATION GENERALLY WILL NOT BE ISSUED. HOWEVER, SINCE PARTIES CONSENTED TO ISSUANCE OF TEMPORARY RESTRAINING ORDER (TRO), AFTER RECEIVING ASSURANCE THAT DECISION ON RECONSIDERATION WOULD BE ISSUED EXPEDITIOUSLY WITHIN PERIOD OF CONTEMPLATED RESTRAINING ORDER, AND COURT WAS FULLY AWARE OF BOTH PENDENCY OF RECONSIDERATION AND COMMITMENT TO ISSUE DECISION BEFORE EXPIRATION OF TRO, DECISION ON RECONSIDERATION IS ISSUED. CONTRACTS - SPECIFICATIONS - CONFORMABILITY OF EQUIPMENT, ETC., OFFERED - COMMERCIAL MODEL REQUIREMENT - "OFF THE SHELF" ITEMS BASED ON DETAILED REVIEW OF ARGUMENTS PROPOUNDED, INVITATION FOR BIDS (IFB) AND REFERENCED PURCHASE DESCRIPTION, PRIOR DECISION THAT IFB REQUIRED SUCCESSFUL BIDDER TO PROVIDE "COMMERCIAL, OFF-THE-SHELF" ITEM AT DATE SET FOR DELIVERY IS AFFIRMED. CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF LOW BIDDER'S RESPONSIBILITY BASED ON ERRONEOUS INTERPRETATION OF SPECIFICATION IN FACE OF STRONGLY NEGATIVE PREAWARD SURVEY WAS NOT REASONABLE EXERCISE OF PROCUREMENT DISCRETION. CONTRACTS - TERMINATION - CONVENIENCE OF GOVERNMENT - "BEST INTEREST OF THE GOVERNMENT" BASIS PRIOR DECISION CONCLUDING THAT TERMINATION FOR CONVENIENCE IS IN BEST INTEREST OF GOVERNMENT IS AFFIRMED, TAKING INTO CONSIDERATION (A) EXTENT OF CONTRACT PERFORMANCE; (B) ESTIMATED COST OF TERMINATION FOR CONVENIENCE (BOTH AT PRESENT AND AT DATE OF PRIOR DECISION): AND (C) WHETHER BENEFITS TO COMPETITIVE PROCUREMENT SYSTEM REQUIRE CORRECTIVE ACTION; AND BECAUSE IT IS NOT CLEAR THAT ALL BIDDERS WOULD OFFER SAME ITEMS ON RESOLICITATION AND THEREBY RENDER REPROCUREMENT ACADEMIC EXERCISE. HOWEVER, SECOND PART OF ORIGINAL RECOMMENDATION, I.E., AWARD TO NEXT LOW BIDDER, IS MODIFIED BECAUSE AGENCY STATES THAT REQUIREMENTS AS INTERPRETED EXCEED ITS MINIMUM NEEDS. GENERAL ACCOUNTING OFFICE - CONTRACTS - RECOMMENDATION FOR CORRECTIVE ACTION RECOMMENDATION FOR CONVENIENCE TERMINATION WHICH IS CONTAINED IN AFFIRMATION OF PRIOR DECISION PRESUPPOSES THAT CONTRACTOR IS SATISFACTORILY PERFORMING CONTRACT IN ACCORDANCE WITH ITS TERMS. RECOMMENDATION SHOULD NOT TAKE PRECEDENCE OVER ANY POSSIBLE TERMINATION FOR DEFAULT ACTION SHOULD SUCH ACTION BE APPROPRIATE AND NECESSARY.

IN THE MATTER OF DATA TEST CORPORATION, MARCH 7, 1975:

THIS MATTER INVOLVES A REQUEST FOR RECONSIDERATION OF OUR DECISION OF DECEMBER 20, 1974, IN THE MATTER OF DATA TEST CORPORATION (54 COMP. GEN. 499), MADE BY THE DEPARTMENT OF TRANSPORTATION (FEDERAL AVIATION ADMINISTRATION) AND THE SYSTRON-DONNER CORPORATION.

AT THE OUTSET, IT IS IMPORTANT TO NOTE THE CHRONOLOGY OF EVENTS RELATING TO THE DATA TEST PROTEST AND THIS SUBSEQUENT REQUEST FOR RECONSIDERATION.

FRIDAY, JUNE 28, 1974 PROTEST FILED AT GAO

(9:33 A.M.).

FRIDAY, JUNE 28, 1974 FAA MADE AWARD TO SYSTRON

(1:05 P.M.).

MONDAY, JULY 1, 1974 GAO ORALLY NOTIFIED DOT OF PROTEST

JULY 2, 1974 GAO NOTIFIED DOT OF PROTEST IN WRITING

AUGUST 9, 1974 GAO FOLLOWED UP AS TO DATE REPORT MAY BE EXPECTED

AUGUST 26, 1974 GAO FOLLOWED UP AS TO DATE REPORT MAY BE EXPECTED

SEPTEMBER 9, 1974 GAO FOLLOWED UP AS TO DATE REPORT MAY BE EXPECTED

SEPTEMBER 18, 1974 GAO FOLLOWED UP AS TO DATE REPORT MAY BE EXPECTED

OCTOBER 2, 1974 GAO RECEIVED FAA REPORT

OCTOBER 3, 1974 SYSTRON AND DATA TEST OBTAINED REPORT FOR REVIEW

AND COMMENT

OCTOBER 15, 1974 DATA TEST REQUESTED ADDITIONAL MATERIAL FROM FAA

NOVEMBER 8, 1974 FAA RELEASED MATERIAL

NOVEMBER 12, 1974 PROTEST CONFERENCE HELD AT GAO WITH ALL

INTERESTED PARTIES

DECEMBER 20, 1974 GAO DECISION ISSUED

DECEMBER 27, 1974 DATA TEST PROTESTED SECOND LOW BIDDER'S

RESPONSIBILITY

JANUARY 2, 1975 SYSTRON FILED REQUEST FOR RECONSIDERATION

CONDITIONED ON FAA ACTION ON DECISION

JANUARY 31, 1975 FAA REQUESTED RECONSIDERATION OF DECISION

FEBRUARY 18, 1975 CONFERENCE ON RECONSIDERATION HELD AT GAO

ATTENDED BY ALL INTERESTED PARTIES

ON FEBRUARY 27, 1975, DATA TEST INSTITUTED CIVIL ACTION NO. 75-0264 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA (DATA TEST CORPORATION V. THE HONORABLE JOHN W. BANNUM, THE HONORABLE ALEXANDER P. BUTTERFIELD). THE COMPLAINT REQUESTED THE FOLLOWING RELIEF:

(A) THAT DEFENDANTS BE ENJOINED FROM ACCEPTING DELIVERY OF ANY PRINTED CIRCUIT BOARD TESTERS FROM SYSTRON-DONNER CORPORATION UNDER CONTRACT WA5M- 4-7215;

(B) THAT DEFENDANTS BE ENJOINED FROM MAKING ANY PAYMENTS TO SYSTRON DONNER CORPORATION UNDER CONTRACT WA5M-4-7215;

(C) THAT DEFENDANTS BE ENJOINED FROM EXTENDING THE TIME FOR DELIVERY OR MODIFYING PRICE TERMS OF THE EXISTING CONTRACT WA5-M-4-7215;

(D) THAT DEFENDANTS BE REQUIRED TO FIND SYSTRON-DONNER IN BREACH OF ITS CONTRACTUAL OBLIGATIONS TO THE FAA;

(E) THAT DEFENDANTS BE PRELIMINARILY AND PERMANENTLY ENJOINED AS STATED IN PARAGRAPHS (A), (B), (C) AND (D) ABOVE;

(F) THAT THIS COURT ENTER A DECLARATORY JUDGMENT ESTABLISHING THAT PLAINTIFF IS THE NEXT LOW RESPONSIVE AND RESPONSIBLE BIDDER FOR PRINTED CIRCUIT BOARD TESTERS UNDER CONTRACT WA5M-4-7215; AND

(G) THAT THIS COURT GRANT SUCH OTHER RELIEF AS IT DEEMS NECESSARY AND APPROPRIATE.

FROM AN EXAMINATION OF THE COMPLAINT AND SUPPORTING PAPERS, IT APPEARS THAT MANY OF THE ISSUES INVOLVED IN THE PROTEST, AS WELL AS THE REQUEST FOR RECONSIDERATION, ARE NOW BEFORE THE DISTRICT COURT.

IT IS THE PRACTICE OF OUR OFFICE NOT TO RENDER A DECISION ON THE MERITS OF A PROTEST WHERE THE ISSUES INVOLVED ARE LIKELY TO BE DISPOSED OF IN LITIGATION BEFORE A COURT OF COMPETENT JURISDICTION. 4 C.F.R. SEC. 20.11 (1974). SEE MATTER OF NARTRON CORP. ET AL., 53 COMP. GEN. 730 (1974). SIMILARLY, WE HAVE DECLINED TO RENDER A DECISION ON A PENDING REQUEST FOR RECONSIDERATION WHERE THE ISSUES INVOLVED THEREIN COME BEFORE A COURT AFTER OUR OFFICE HAS ALREADY RENDERED A DECISION ON THE PROTEST. SEE MATTER OF CINCINNATI ELECTRONICS CORPORATION ET AL., B-175633, JANUARY 25, 1974.

HOWEVER, AN EXCEPTION TO THIS GENERAL POLICY IS THAT OUR OFFICE WILL RENDER A DECISION ON THE MERITS IN CIRCUMSTANCES WHERE THE COURT EXPRESSES AN INTEREST IN RECEIVING OUR DECISION. SEE, FOR EXAMPLE, 52 COMP. GEN. 706 (1973), AND MATTER OF DESCOMP, INC., 53 COMP. GEN. 522 (1974).

IN THE INSTANT CASE, WE UNDERSTAND THAT ON FEBRUARY 28, 1975, DATA TEST'S MOTION FOR A TEMPORARY RESTRAINING ORDER WAS HEARD BY THE DISTRICT COURT. AFTER DISCUSSING THE SITUATION WITH OUR OFFICE AND RECEIVING OUR ASSURANCE THAT EVERY EFFORT WOULD BE MADE TO EXPEDITE OUR DECISION ON THE REQUEST FOR RECONSIDERATION WITHIN THE PERIOD OF THE CONTEMPLATED RESTRAINING ORDER, THE PARTIES, UPON FULL PRESENTATION OF THESE CIRCUMSTANCES TO THE COURT, AGREED TO THE ISSUANCE OF THE RESTRAINING ORDER. THE DISTRICT COURT ASSENTED AND ISSUED THE RESTRAINING ORDER EFFECTIVE UNTIL 10 A.M., MARCH 10, 1975.

IN VIEW OF THE FACT THAT ALL PARTIES, INCLUDING THE COURT, WERE FULLY AWARE OF BOTH THE PENDENCY OF THE RECONSIDERATION AT GAO AND THE FACT THAT OUR OFFICE WOULD MAKE EVERY ATTEMPT TO ISSUE ITS DECISION ON OR BEFORE MARCH 10, 1975, WE ARE PROCEEDING WITH OUR DECISION ON THE RECONSIDERATION.

THE FACTS OF THE CASE, AS STATED IN OUR DECEMBER 20, 1974, DECISION, ARE AS FOLLOWS:

INVITATION FOR BIDS (IFB) WA5M-4-7215 WAS ISSUED ON APRIL 4, 1974, BY THE FEDERAL AVIATION ADMINISTRATION (FAA), SEEKING BIDS ON 20 AUTOMATIC PRINTED CIRCUIT BOARD TESTERS WITH PERIPHERAL EQUIPMENT, SPARE PARTS AND RELATED MATERIAL. THE TESTERS IN QUESTION (ITEM 1 OF THE IFB) WERE REQUIRED TO BE FURNISHED "*** IN ACCORDANCE WITH PURCHASE DESCRIPTION FAA- P-2576 ***." THE IFB STATED THAT THE AWARD WOULD BE MADE ON THE BASIS OF THE LOWEST AGGREGATE BID FOR ALL ITEMS WITH THE EXCEPTION OF ITEMS 7 AND 10. ITEM 7 WAS AN OPTIONAL ITEM REGARDING TEST PROGRAMMING WHILE ITEM 10 PERTAINED TO THE CONTRACTOR'S TRAINING OF FAA PERSONNEL AND THE PRICE FOR WHICH IS WAS TO BE NEGOTIATED WITHIN 30 DAYS OF AWARD.

IN RESPONSE TO THE IFB, FOUR BIDS WERE RECEIVED. THE PERTINENT PORTION OF THE ABSTRACT OF BIDS WAS AS FOLLOWS:

TOTAL PRICE EXCLUDING

ITEMS 7 AND 10

SYSTRON-DONNER CORPORATION $435,785

ATEC, INC. 476,585

DATA TEST CORPORATION 789,317

*** PURCHASE DESCRIPTION FAA-P-2576 *** IN OUTLINING ITS SCOPE STATES THAT:

"THIS PURCHASE DESCRIPTION COVERS THE SALIENT CHARACTERISTICS OF A COMMERCIAL, OFF THE SHELF, DIGITAL, NONCOMPUTER OPERATED, PRINTED CIRCUIT BOARD (PCB) TESTER. ***"

THE ESSENTIAL ISSUE CONSIDERED IN OUR DECISION WAS WHETHER THE INVITATION FOR BIDS (IFB) REQUIRED BIDDERS TO PROVIDE A "COMMERCIAL, OFF-THE-SHELF" ITEM AND, IF SO, WHETHER SYSTRON WAS ABLE TO MEET THIS REQUIREMENT.

AFTER A DETAILED EXAMINATION OF THE RECORD, AS SUPPLEMENTED BY THE INTERESTED PARTIES, OUR OFFICE CONCLUDED THAT THE IFB DID, IN FACT, REQUIRE THE SUCCESSFUL BIDDER TO DELIVER A COMMERCIAL, OFF-THE-SHELF ITEM AND THAT IN THE FACE OF A STRONGLY NEGATIVE PREAWARD SURVEY, WE DID NOT BELIEVE THAT SYSTRON HAD THE ABILITY TO SATISFY THE IFB REQUIREMENT.

WE CONCLUDED THAT THE AWARD TO SYSTRON WAS IMPROPER AND RECOMMENDED THAT THE SYSTRON CONTRACT BE TERMINATED FOR THE CONVENIENCE OF THE GOVERNMENT, WITH AWARD MADE TO THE NEXT LOW RESPONSIVE, RESPONSIBLE BIDDER WILLING TO ACCEPT THE AWARD AT ITS BID PRICE.

THE MAIN ISSUE PRESENTED TO US IN THE RECONSIDERATION HAS TO DO WITH OUR INTERPRETATION OF THE "COMMERCIAL, OFF-THE-SHELF" REQUIREMENT.

IN REACHING OUR EARLIER CONCLUSION, WE RELIED HEAVILY ON A PREAWARD MEMORANDUM FROM THE CHIEF OF THE FAA RADAR AND NAVAIDS SECTION, WHICH WAS SENT TO ALL PROSPECTIVE BIDDERS. THE MEMORANDUM CONTAINED THE FOLLOWING RELEVANT INFORMATION:

1. QUESTION: IS THE SPECIFICATION DEFINITIVE ENOUGH TO PERMIT THE CONSTRUCTION OF PRINTED CIRCUIT BOARDS?

ANSWER: FAA-P-2576 WAS NOT WRITTEN AS A SPECIFICATION. IT IS A PURCHASE DESCRIPTION FOR THE TYPE OF TESTER THE FAA HAS DETERMINED BY EVALUATION THAT WILL SATISFY THE AGENCY'S NEEDS. IT DESCRIBES AN OFF THE-SHELF ITEM AND WAS NOT INTENDED TO BE A SPECIFICATION THAT A CONTRACTOR COULD MANUFACTURE AND DESIGN A PRINTED CIRCUIT BOARD TESTER FROM.

IN ARGUING AGAINST OUR INTERPRETATION OF THE IFB REQUIREMENTS, BOTH THE CONTRACTOR (SYSTRON) AND FAA MAKE REFERENCE TO THE FOLLOWING SECTIONS OF THE PURCHASE DESCRIPTION WHICH, THEY STATE, LEAD TO AN OPPOSITE VIEW OF WHAT THE IFB REQUIRED.

SECTION 3.6

SECTION 3.6 INITIALLY PROVIDED:

3.6 RELIABILITY. - THE PCB TESTER SHALL HAVE A CALCULATED MEAN UP TIME (MUT) OF 1,000 HOURS. ALL BIDDERS SHALL PROVIDE COMPLETE STATISTICAL DATA AND PREDICTIONS SHOWING THE CALCULATIONS OF MUT, INCLUDING PARTS BREAKDOWN, BY TYPE AND QUANTITY, FAILURE RATES USED AND CALCULATION OF SUBSYSTEM RELIABILITY WITH THEIR PROPOSAL.

SYSTRON ARGUES THAT THIS PROVISION WOULD HAVE CLEARLY REQUIRED THAT A BIDDER HAVE A COMPLETED TESTER, ON THE SHELF, PRIOR TO AWARD. HOWEVER, THE FAA AMENDED THE PROVISION ON APRIL 30, 1974, BEFORE BID OPENING, TO READ AS FOLLOWS:

3.6 RELIABILITY. - THE PCB TESTER SHALL HAVE A CALCULATED MEAN UP TIME (MUT) OF 1000 HOURS. THE CONTRACTOR SHALL PROVIDE COMPLETE STATISTICAL DATA AND PREDICTION SHOWING THE CALCULATIONS OF MUT, INCLUDING PART BREAKDOWN, BY TYPE AND QUANTITY, FAILURE RATES USED AND CALCULATION OF SUBSYSTEM RELIABILITY OF THE TESTER. MIL STD 781 PLAN IV A SHALL BE USED TO DEMONSTRATE THE MUT.

SYSTRON POINTS OUT THAT IF THE IFB CONTAINED, AS OUR OFFICE DETERMINED, A REQUIREMENT FOR ITEMS WHICH WERE OFF THE SHELF AT THE TIME OF AWARD, IT WOULD NOT HAVE BEEN NECESSARY FOR THE FAA TO HAVE AMENDED THE ORIGINAL VERSION OF SECTION 3.6.

THE SYSTRON ARGUMENT FAILS IN SEVERAL RESPECTS. FIRST, THE ORIGINAL LANGUAGE WOULD HAVE REQUIRED ALL BIDDERS, WHETHER SUCCESSFUL OR NOT, TO GO TO SEEMINGLY CONSIDERABLE EXPENSE IN PREPARING DATA. TO AVOID SUCH A RESULT, THE PROVISION WAS AMENDED, AND PROPERLY SO, TO MAKE DATA SUBMISSION A CONTRACT REQUIREMENT. SECOND, OUR DECISION DID NOT HOLD THAT A BIDDER WAS REQUIRED TO HAVE A "COMMERCIAL, OFF-THE-SHELF" ITEM AT THE TIME OF AWARD. RATHER, WE HELD THAT A BIDDER, FOR RESPONSIBILITY DETERMINATION PURPOSES, MUST DEMONSTRATE, BEFORE AWARD, THE CAPACITY OR ABILITY TO DELIVER AT THE DATE SPECIFIED FOR DELIVERY THE END PRODUCT CALLED FOR BY THE SPECIFICATIONS. THEREFORE, A BIDDER NEED NOT HAVE A "COMMERCIAL, OFF-THE-SHELF" ITEM AS OF THE DATE OF AWARD, BUT HE MUST HAVE THE CAPACITY OR ABILITY TO PROVIDE SUCH AN ITEM ON THE DATE SET FOR DELIVERY. SEE B-176896, JANUARY 19, 1973, WHICH INVOLVED A "MANUFACTURER'S STANDARD COMMERCIAL PRODUCT" AND IS THUS ANALOGOUS TO THE INSTANT CASE.

IN THIS LIGHT, THE AMENDMENT OF SECTION 3.6 CAN BE VIEWED AS AN ATTEMPT TO LIBERALIZE THE IFB'S PROVISION SO AS TO ALLOW TECHNICALLY COMPETENT FIRMS NOT POSSESSING A "COMMERCIAL, OFF-THE-SHELF" ITEM AT THE TIME OF BIDDING THE OPPORTUNITY TO FURNISH ONE BY THE TIME SET FOR DELIVERY. (FN1)

SECTION 3.4

SYSTRON STATES THAT SECTION 3.4 OF THE PURCHASE DESCRIPTION ALSO SUPPORTS THE VIEW THAT A "COMMERCIAL, OFF-THE-SHELF" ITEM WAS NOT REQUIRED BY THE IFB. THAT SECTION PROVIDES:

3.4 EQUIPMENT AND SERVICES TO BE FURNISHED BY THE CONTRACTOR. - EACH PCB TESTER SHALL BE COMPLETE IN ACCORDANCE WITH ALL CONTRACT REQUIREMENTS, AND SHALL INCLUDE THE ITEMS LISTED BELOW, OR EQUIVALENT. ANY FEATURE OR ITEM NECESSARY FOR PROPER OPERATION IN ACCORDANCE WITH THE REQUIREMENTS OF THIS PURCHASE DESCRIPTION SHALL BE INCORPORATED EVEN THOUGH THAT FEATURE OR ITEM MAY NOT BE SPECIFICALLY DESCRIBED HEREIN. INSTRUCTION BOOKS AND OTHER DOCUMENTATION SHALL BE SUPPLIED IN ACCORDANCE WITH THE TERMS OF THIS PURCHASE DESCRIPTION AND OF THE CONTRACT.

3.4.1 DELIVERABLE ITEMS. - PCB TESTER, CONSISTING OF:

1. BASIC COMPONENTS: PARA. NO.

(A) OPERATORS CONTROL BOARD 3.4.2.1

(B) TROUBLE SHOOTING PROBE 3.4.2.2

(C) TESTER ELECTRONICS 3.4.2.3

(D) TEST MOUNT & ADAPTER/INTERCONNECTION 3.4.2.4

(E) I/O MODULES 3.4.2.5

(F) POWER SUPPLIES3.4.2.6

(G) OPERATORS DESK 3.4.2.7

(H) PROGRAMS: OPERATING, TEST & MAINTENANCE 3.4.2.8

(I) DOCUMENTATION 3.4.2.9

2. OPTIONAL COMPONENTS:

(A) LEVEL TRANSLATOR BOARDS 3.5.1

(B) ADDITIONAL POWER SUPPLIES 3.5.2

(C) PERFORMANCE CHECK MODULE 3.5.3

(D) TEST DEVELOPMENT FIXTURE 3.5.4

(E) LEVEL SET PROBE 3.5.5

(F) DIGITAL PRINTER 3.5.6

SYSTRON ARGUES THAT THIS SECTION PERMITS THE SUPPLY OF A COMPLETE TESTER AND/OR COMPONENTS WHICH MAY OR MAY NOT HAVE BEEN AVAILABLE OFF THE SHELF. MOREOVER, IT CONTENDS THAT WHEN READ WITH THE "COMMERCIAL, OFF-THE-SHELF" PROVISION OF THE PURCHASE DESCRIPTION NOTED ABOVE, IT BECOMES CLEAR THAT THE COMPONENTS LISTED IN THE PURCHASE DESCRIPTION ARE IDENTICAL TO ITEMS ALREADY INCORPORATED INTO A COMMERCIAL OFF-THE SHELF ITEM, WHILE SUBSTITUTION OF A FUNCTIONAL EQUIVALENT FOR ANY COMPONENT IS PERMITTED. FURTHER, AS NOTED BY SYSTRON, ANY FEATURE NOT SET OUT IN SECTION 3.4 BUT WHICH IS NECESSARY FOR PROPER OPERATION MUST BE INCORPORATED INTO THE ITEM TO BE DELIVERED. SYSTRON MAINTAINS THAT IF ONLY AN "OFF-THE-SHELF" ITEM WAS REQUIRED, THE SPECIFICATIONS WOULD NOT HAVE (1) PERMITTED SUBSTITUTION OF A LISTED ITEM, OR (2) REQUIRED THE USE OF ANY FEATURE NECESSARY FOR PROPER OPERATION.

THE PURCHASE DESCRIPTION, AND SECTION 3.4 IN PARTICULAR, SETS FORTH A GENERAL STATEMENT REGARDING TESTER CONFIGURATION AND A MORE DETAILED STATEMENT OF PERFORMANCE REQUIREMENTS. AS WE CONSTRUE SECTION 3.4, IT ALLOWS THE SUCCESSFUL BIDDER TO DELIVER AN ITEM INCORPORATING THE CONTRACTOR'S CONFIGURATION, BUT IT DOES NOT ALLOW THE CONTRACTOR TO PROVIDE A TESTER WHICH HAS DIFFERENT PERFORMANCE CAPABILITIES FROM THOSE SET FORTH IN THE PURCHASE DESCRIPTION.

IN SHORT, WE DO NOT FEEL THAT THE PURCHASE DESCRIPTION WAS LIMITED TO A PARTICULAR COMMERCIAL TESTER EITHER AS IT EXISTED AT AUGUST 13, 1973, THE DATE OF THE PURCHASE DESCRIPTION, OR THE ISSUANCE DATE OF THE IFB. THE PURCHASE DESCRIPTION DESCRIBES A TESTER WHICH CONTAINS CERTAIN BROADLY DEFINED TYPES OF COMPONENTS WHICH NEED NOT BE ARRANGED IN ANY PARTICULAR CONFIGURATION BUT WHICH WOULD FUNCTION WITHIN CERTAIN PARAMETERS. THIS DOES NOT, HOWEVER, MEAN THAT THE TESTER DOES NOT HAVE TO BE OFF THE SHELF.

SECTION 3.1

SECTION 3.1 STATES IN PERTINENT PART THAT: "THE TESTER SHALL CONSIST OF COMMERCIALLY AVAILABLE AND RELIABLE ELEMENTS AND COMPONENTS." BOTH THE FAA AND SYSTRON ARGUE THAT THIS LANGUAGE REINFORCES THEIR POSITION THAT THERE WAS NO REQUIREMENT THAT THE TESTER BE AVAILABLE OFF THE SHELF EITHER PRIOR TO OR AT THE DATE OF AWARD. RATHER, IT IS CONCLUDED THAT THERE WAS MERELY A REQUIREMENT THAT THE TESTER BE BUILT WITH PARTS WHICH WERE COMMERCIALLY AVAILABLE.

FIRST, AS WE HAVE STATED ABOVE, THERE WAS NO REQUIREMENT THAT THE TESTER TO BE FURNISHED BE A "COMMERCIAL, OFF-THE-SHELF" ITEM AS OF THE DATE OF AWARD BUT RATHER ONLY THAT IT BE SO AS OF THE DATE SET IN THE IFB FOR DELIVERY. SECOND, AS NOTED BY COUNSEL FOR DATA TEST, WHETHER A TESTER IS MADE FROM COMMERCIALLY AVAILABLE COMPONENTS OR SPECIALLY MANUFACTURED COMPONENTS IS A QUESTION EXCLUSIVE OF WHETHER THE END ITEM ITSELF IS OFF THE SHELF. THE IMPLICATION OF THIS SECTION IS THAT COMPONENTS SHOULD BE OF A KIND WHICH HAVE ALREADY MET THE TEST OF THE MARKETPLACE, THUS ASSURING THE GOVERNMENT OF THEIR RELIABILITY AND ALSO PROVIDING THE GOVERNMENT SOME ASSURANCE OF FUTURE REPLACEMENT AVAILABILITY.

SECTION 3.1 ALSO STATES THAT:

A COMPLETE TESTER IS REQUIRED WHICH INCLUDES THE CABINET AND WORKING SURFACES, THE ELECTRONIC AND ELECTRICAL EQUIPMENT NEEDED FOR OPERATION, THE ADAPTERS, CABLES AND CONNECTORS TO FIT THE (PRINTED CIRCUIT BOARDS) PCBS TO BE LISTED AND THE INPUT/OUTPOUT (I/O MODULES USED WITH THE TESTER ***. IN ADDITION TO THE EQUIPMENT *** DESCRIBED ABOVE THE CONTRACTOR SHALL DEVELOP AND PROVIDE THE PROGRAMS AND PROGRAM DOCUMENTATION NECESSARY TO TEST VARIOUS TYPES OF PCBS.

SYSTRON STATES THE REQUIREMENT FOR A DEVELOPMENTAL EFFORT IS INCONSISTENT WITH OUR OFFICE'S INTERPRETATION OF THE IFB. WE DO NOT AGREE. THE LANGUAGE OF SECTION 3.1, AS WE CONSTRUE IT, DOES ALLOW FOR A DEVELOPMENT OF SOFTWARE BUT DOES NOT CALL FOR A DEVELOPMENT EFFORT RELATED TO THE TESTER ITSELF. IN THIS REGARD, SECTION 3.4.2.8.6 OF THE PURCHASE DESCRIPTION PROVIDES:

3.4.2.8.6 TEST PROGRAMMING. - THE CONTRACTOR SHALL DEVELOP TEST PROGRAMS AND DIAGNOSTICS FOR TESTING THE TYPES OF PCBS LISTED IN THE CONTRACT. INFORMATION NEEDED TO PERFORM THE FAILURE ANALYSIS AND TEST PROGRAMMING, SUCH AS OPERATIONAL CIRCUIT CARD SCHEMATIC AND LOGIC DIAGRAMS, WILL BE PROVIDED TO THE CONTRACTOR BY THE FAA.

MORE IMPORTANTLY, WE NOTE THAT ITEM 5 OF THE IFB CALLS FOR AN OPTION PRICE ON THE TEST PROGRAMMING AS FOLLOWS:

THE TEST PROGRAMMING SHALL BE IN ACCORDANCE WITH PARAGRAPHS 3.4.2.8.6 AND 3.4.2.8.6.1 OF PURCHASE DESCRIPTION FAA-P-2576. THE CONTRACTOR, UNDER THIS ITEM, SHALL PROVIDE INDIVIDUAL PREPUNCHED TEST PROGRAM CARDS COMPLETE WITH IDENTIFICATION AND DOCUMENTATION DATA, AS LISTED IN PARAGRAPHS 3.4.2.8.6 AND 3.4.2.8.6.1 FOR EACH OF THE IBM PRINTED CIRCUIT BOARDS: ***

THE "COMMERCIAL, OFF-THE-SHELF" REQUIREMENT FOR THE TESTER ITSELF (ITEM 1 OF THE IFB) WAS NOT ELIMINATED BY THE OPTION FOR CONTRACTOR DEVELOPMENT OF PROGRAMMING (ITEM 5 OF THE IFB). THEREFORE, IT WAS NOT INCONSISTENT FOR THE IFB TO REQUIRE A "COMMERCIAL, OFF-THE-SHELF" TESTER WHILE ONLY GIVING THE GOVERNMENT THE OPTION OF BUYING THESE TEST PROGRAMS WHICH, BY THE TERMS OF SECTION 3.4.2.8.6, WERE TO BE DEVELOPED AT SOME UNSPECIFIED TIME SUBSEQUENT TO AWARD.

IT IS ALSO CONTENDED THAT THE DELIVERY SCHEDULE STATED IN THE IFB WAS EXTREMELY LONG FOR THE PURCHASE OF AN OFF-THE-SHELF ITEM. IN THIS REGARD, THE DELIVERY SCHEDULE PROVIDED FOR DELIVERY OF THE FIRST TESTER WITHIN 120 CALENDAR DAYS OF AWARD (OR BY OCTOBER 26, 1974) WITH THE REMAINING UNITS TO BE DELIVERED AT A RATE OF TWO EVERY 30 CALENDAR DAYS THEREAFTER.

IN THE ABSENCE OF ANY INDICATION IN THE RECORD AS TO THE CONSIDERATIONS INVOLVED IN FIXING A 120-DAY DELIVERY SCHEDULE, WE FAIL TO SEE HOW ANY PARTY CAN ATTACH ANY SIGNIFICANCE ONE WAY OR THE OTHER TO THE LENGTH OF THE DELIVERY SCHEDULE.

SYSTRON ARGUES THAT THE ISSUANCE OF THE IFB TO 68 POTENTIAL BIDDERS IS CONSISTENT WITH AN UNDERSTANDING THAT NUMEROUS BIDDERS WERE EXPECTED TO BE ABLE TO FURNISH THE CONTRACT ITEM. WE GET THE IMPLICATION FROM SYSTRON'S ARGUMENT THAT IN VIEW OF OUR INTERPRETATION OF THE SPECIFICATIONS, IT BELIEVES THAT ONLY ONE FIRM, DATA TEST, COULD HAVE MET THE SPECIFICATIONS. THUS, SYSTRON APPARENTLY FEELS THAT IF FAA SOUGHT A "COMMERCIAL, OFF-THE-SHELF" ITEM, IT WOULD HAVE NEGOTIATED A SOLE-SOURCE CONTRACT WITH DATA TEST. WE REITERATE THAT A "COMMERCIAL, OFF-THE-SHELF" ITEM WAS NOT REQUIRED UNTIL THE DATE SET FOR DELIVERY AND, IN THIS REGARD, WE HAVE YET TO BE SHOWN THAT ONLY DATA TEST COULD SUPPLY THE ITEM BY THE REQUIRED TIME. THEREFORE, THE USE OF FORMAL ADVERTISING WAS NOT IMPROPER AND WE SEE NO MERIT TO SYSTRON'S ARGUMENT.

SYSTRON ALSO ARGUES THAT THE FOURTH QUESTION IN THE MEMORANDUM FROM THE CHIEF OF RADAR & NAVAIDS SECTION TO PROSPECTIVE BIDDERS INDICATES THAT ITEM 3(E) OF THE IFB SCHEDULE CALLS FOR A NONSTANDARD PERFORMANCE CAPABILITY AND, HENCE, NONSTANDARD EQUIPMENT.

ITEM 3 OF THE IFB REQUIRES THE SUCCESSFUL BIDDER TO PROVIDE 20 EXTERNAL POWER LEVEL TRANSLATOR KITS, IN ACCORDANCE WITH PARAGRAPH 3.5 OF THE PURCHASE DESCRIPTION, CONSISTING IN PART OF:

E. THREE EACH OUTPUT LEVEL TRANSLATOR BOARD CAPABLE OF TRANSLATING THE TEST "PCB" OUTPUT LEVELS TO TTL LEVELS WITH TRIM-POT ADJUSTMENT CAPABILITY FROM PLUS ( ) 22 VDC TO MINUS (-) 22 VDC AS FOLLOWS:

(1) ONE BOARD COMPATIBLE TO IBM DISCRETE (SMS) LOGIC.

(2) ONE BOARD COMPATIBLE TO IBM SOLID LOGIC TECHNIQUE (SLT) LOGIC, AND

(3) ONE BOARD COMPATIBLE TO FAA SYSTEM MAINTENANCE MONITOR CONSOLE (SMMC) TTL LOGIC.

SECTION 3.5 OF THE PURCHASE DESCRIPTION DEALS WITH OPTIONAL ACCESSORIES. IN PARTICULAR, SECTION 3.5.1 STATES WITH REGARD TO LOGIC TRANSLATOR BOARDS:

3.5.1 LEVEL TRANSLATOR BOARDS. - WHERE LOGIC TO BE TESTED REQUIRES INPUT OR OUTPUT OR BOTH SIGNAL LEVELS AND VOLTAGES OTHER THAN THOSE NORMALLY SUPPLIED WITH THE TESTER, PRE-WIRED TEST CARDS SHALL BE PROVIDED BY THE CONTRACTOR FOR INSERTING INTO THE TESTER TO ACCOMPLISH THE TESTING. FOR EXAMPLE THE IBM SLT LOGIC CARDS REQUIRE AN INTERFACE THAT IS NOT COMPATIBLE WITH THE STANDARD DTL/TTL LOGIC AND THEREFORE REQUIRES DIFFERENT TEST CARDS TO BE INSERTED INTO THE TESTER BEFORE TESTING THE SLT LOGIC.

THE IFB REQUIRES THAT IN ADDITION TO THE TESTER TO BE PROVIDED IN ITEM 1 WHICH MIGHT HAVE THE CAPABILITY TO ALREADY INTERFACE WITH AT LEAST ONE OF THE REQUIRED PCB LOGICS, THE SUCCESSFUL BIDDER WILL ALSO PROVIDE ADDITIONAL INTERFACES UNDER ITEM 3. THIS WOULD ALLOW THE TESTER TO ACCOMMODATE PCB'S OF THE LOGIC TYPE FOR WHICH THE CONTRACTOR'S TESTER WOULD NORMALLY HAVE THE CAPABILITY AND ALSO WOULD ACCOMMODATE PCB'S OF LESS NORMAL LOGIC TYPE. THE REQUIREMENT FOR THESE ADDITIONAL LEVEL TRANSLATOR BOARDS TO HANDLE LESS THAN NORMAL LOGIC TYPES IS APART FROM THE REQUIREMENT TO DELIVER THE TESTER ITSELF AND DOES NOT INDICATE THAT THE TESTER "COULD NOT HAVE BEEN WHOLLY OFF THE SHELF." ITEM 3(E) OF THE IFB AND THE QUESTION AND ANSWER, NOTED ABOVE, INDICATE THAT ADDITIONAL INTERFACES WOULD BE REQUIRED TO ALLOW THE TESTER SPECIFIED IN ITEM 1 TO TEST A CERTAIN NUMBER OF ABNORMAL LOGIC TYPES AS WELL AS THE NORMAL LOGIC ALREADY WITHIN THE CAPABILITY OF THE PARTICULAR TESTER SUPPLIED.

SYSTRON ALSO POINTS OUT THAT OTHER BIDDERS SHARED ITS VIEW THAT THE IFB DID NOT REQUIRE DELIVERY OF A "COMMERCIAL, OFF-THE-SHELF" ITEM. SPECIFICALLY, SYSTRON INDICATES THAT ITS VIEW IS SHARED BY THE FLUKE TRENDAR CORPORATION, A FIRM WHICH LODGED A BEFORE-BID-OPENING PROTEST ON THIS IFB WITH OUR OFFICE AND THEN WITHDREW THE PROTEST PRIOR TO AWARD. THE FLUKE PROTEST DID INVOLVE THE ALLEGED RESTRICTIVENESS OF THE SPECIFICATIONS WITH RESPECT TO THE "COMMERCIAL, OFF-THE-SHELF" REQUIREMENT. FLUKE, IN EFFECT, VIEWED THE IFB REQUIREMENTS AS WE DID IN OUR DECISION. WHEN ASKED BY OUR OFFICE AT A CONFERENCE HELD ON FEBRUARY 18, 1975, WHY THE PROTEST WAS WITHDRAWN, FLUKE INDICATED THAT THE ONLY REASON IT WITHDREW ITS PROTEST WAS THAT IT NOTED AFTER BID OPENING THAT FOUR BIDS HAD BEEN RECEIVED; THEREFORE, IT FELT ASSURED THAT THERE WAS ADEQUATE COMPETITION.

SYSTRON, LASTLY, IMPLIES THAT IT WAS IMPROPER FOR OUR OFFICE TO MAKE AN EXCEPTION TO THE RULES WHICH WE CITED IN MATTER OF CENTRAL METAL PRODUCTS INCORPORATED, 54 COMP. GEN. 66 (1974). THERE WE HELD THAT INVOLVING A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF THIS OFFICE HAS DISCONTINUED ITS PRIOR PRACTICE OF REVIEWING BID PROTESTS RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD.

HOWEVER, SINCE THAT DECISION, WE HAVE CONSIDERED RESPONSIBILITY MATTERS WHEREIN SPECIFIC CRITERIA ARE PRESCRIBED IN THE IFB AS A STANDARD OF RESPONSIBILITY. SEE MATTER OF YARDNEY ELECTRIC CORPORATION, 54 COMP. GEN. 509 (1974).

IN SUM, WE ARE NOT PERSUADED THAT OUR PREVIOUS INTERPRETATION OF WHAT WAS REQUIRED BY ITEM 1 AND THE PURCHASE DESCRIPTION WAS ERRONEOUS. WE FEEL, AS WE DID ON DECEMBER 20, 1974, THAT THE IFB REQUIRED A "COMMERCIAL, OFF- THE-SHELF" ITEM.

THE AGENCY ARGUES THAT EVEN IF THIS IS THE CASE, OUR DETERMINATION THAT THERE WAS NO REASONABLE BASIS UPON WHICH SYSTRON COULD HAVE BEEN FOUND RESPONSIBLE IS ERRONEOUS. IT STATES THAT:

IT IS CLEAR FROM READING THE PRE-AWARD SURVEY THAT SYSTRON-DONNER HAD PRODUCED A MORE SOPHISTICATED VERSION OF THE NEEDED EQUIPMENT AND POSSESSED THEREFORE THE NECESSARY TECHNOLOGY AVAILABLE TO PRODUCE A PRINTED CIRCUIT BOARD TESTER IN ACCORDANCE WITH OUR STATED REQUIREMENT, ALTHOUGH NO SUCH ITEM WAS "IN STOCK."

AS STATED IN OUR DECISION, THE PREAWARD SURVEY GAVE NO POSITIVE INDICATION THAT SYSTRON COULD PROVIDE A "COMMERCIAL, OFF-THE-SHELF" ITEM WITHIN 120 DAYS OF AWARD; NOR DOES IT INDICATE THAT SYSTRON HAD MADE ANY PREPARATIONS TO INCLUDE THIS ITEM IN ITS COMMERCIAL LINE. THE PREAWARD SURVEY DOES, HOWEVER, INDICATE SUBSTANTIAL DOUBT AS TO THE SYSTRON ENGINEERING DEPARTMENT'S KNOWLEDGE OF THE TASK REQUIRED OF IT. THE PREAWARD SURVEY TEAM CONCLUDED BY REPORTING THAT:

BASED ON THE FACTS GATHERED DURING THIS SURVEY, IT IS CONCLUDED THAT SYSTRON-DONNER COMPUTER SYSTEMS DIVISION DOES NOT HAVE THE NECESSARY RECORD OF PERFORMANCE OR ABILITY TO COMPLY WITH THE PROPOSED CONTRACT DELIVERY SCHEDULE REQUIREMENTS.

NEVERTHELESS, FAA ARGUES THAT THE CONTRACTING OFFICER'S DETERMINATION TO FIND SYSTRON RESPONSIBLE WAS REASONABLE EVEN IN THE FACE OF THIS STRONGLY NEGATIVE PREAWARD SURVEY. THE BASIS OF THIS POSITION LIES IN THE FACT THAT:

SINCE THE CONTRACTING OFFICER DID NOT AGREE WITH THE "PRE-AWARD" SURVEY TEAM'S INTERPRETATION OF THE SOLICITATION REQUIREMENTS (NOTE: THE PREAWARD SURVEY TEAM FELT THAT A "COMMERCIAL, OFF-THE-SHELF" ITEM WAS REQUIRED), HE HELD THAT SYSTRON-DONNER WAS RESPONSIBLE BECAUSE IT WOULD BE ABLE TO MEET THE IFB REQUIREMENTS, AS HE INTERPRETED THEM.

AS NOTED ABOVE, THE CONTRACTING OFFICER'S INTERPRETATION OF THE IFB REQUIREMENTS WAS ERRONEOUS AND THUS HIS AFFIRMATIVE DETERMINATION OF SYSTRON'S RESPONSIBILITY IN THE FACE OF THIS STRONGLY NEGATIVE PREAWARD SURVEY WAS NOT A REASONABLE EXERCISE OF PROCUREMENT DISCRETION.

GAO RECOMMENDATION

OUR DECISION OF DECEMBER 20, 1974, RECOMMENDED THAT THE AGENCY (1) TERMINATE SYSTRON'S CONTRACT FOR CONVENIENCE, AND (2) MAKE AWARD TO THE NEXT LOW RESPONSIVE AND RESPONSIBLE BIDDER WILLING TO PERFORM AT ITS BID PRICE. TO DATE OUR RECOMMENDATION HAS NOT BEEN ACTED UPON. IN ITS JANUARY 31, 1975, LETTER FAA STATES THAT:

IN VIEW OF OUR BELIEFS IN THIS MATTER WE HAVE TAKEN NO ACTION TO TERMINATE THE SYSTRON-DONNER CONTRACT, BUT ARE GIVING THE MATTER FURTHER CONSIDERATION WHILE AWAITING YOUR RULING ON THIS MOTION.

SYSTRON STATES THAT IF OUR OFFICE UPHOLDS ITS PREVIOUS VIEW THEN THE SPECIFICATIONS ARE AN OVERSTATEMENT OF THE GOVERNMENT'S MINIMUM NEEDS, SINCE FAA DID NOT INTEND OR ACTUALLY SEEK AN OFF-THE-SHELF ITEM. INDEED, THE AGENCY ON JANUARY 31, 1975, FOR THE FIRST TIME, STATED THAT THE REQUIREMENT FOR A "COMMERCIAL, OFF-THE-SHELF" ITEM, WHICH OUR OFFICE HAS FOUND WAS CLEARLY SET OUT IN THE IFB, WAS AND IS IN EXCESS OF THE AGENCY'S MINIMUM NEEDS. COUNSEL FOR SYSTRON, BY ANALOGIZING THE PRESENT SITUATION TO ONE EXISTING BEFORE AWARD, CONTENDS THAT THE AGENCY SHOULD, AS IN THE USUAL CASE, TERMINATE AND REPROCURE ITS ACTUAL NEEDS. SEE FEDERAL PROCUREMENT REGULATIONS (FPR) SEC. 1-2.404.1(B) (1964 ED.). BASED ON THESE NEW FACTS, WE AGREE AND TO THIS EXTENT THE SECOND PORTION OF OUR RECOMMENDATION RELATING TO AN AWARD TO THE NEXT LOW RESPONSIVE, RESPONSIBLE BIDDER IS RESCINDED.

HOWEVER, COUNSEL ALSO STATES THAT:

ALTHOUGH THE AGENCY NORMALLY SHOULD RESOLICIT FOR ITS ACTUAL NEEDS IN A SOLICITATION DESIGNED TO ACHIEVE EFFECTIVE COMPETITION, HERE THE AGENCY ALREADY HAS ACHIEVED EFFECTIVE COMPETITION FOR ITS NEEDS. IT HAS THREE BIDS BASED ON ITS INTERPRETATION OF THE SPECIFICATIONS. CLEARLY, IT IS NOT IN THE GOVERNMENT'S BEST INTERESTS TO RESOLICIT WITH A MORE DEFINITE DESCRIPTION OF ITS NEEDS WHEN THAT SOLICITATION WOULD ONLY ASK FOR THE SAME ITEMS WHICH ALREADY HAVE BEEN BID. IN THESE CIRCUMSTANCES, THE TERMINATION OF THE LOW-BIDDER'S CONTRACT AND A RESOLICITATION WOULD BE A WASTEFUL AND FRUITLESS FORMALITY AND A COSTLY ONE. THE INTERESTS OF THE GOVERNMENT WOULD BE BEST SERVED UNDER ALL THE CIRCUMSTANCES BY RETAINING THE STATUS QUO - FAA WOULD RECEIVE THE EQUIPMENT IT WANTS AND NEEDS AT A LOW COMPETITIVE PRICE.

AS COUNSEL NOTES, WHETHER OUR OFFICE WOULD RECOMMEND THAT AN AGENCY TAKE CORRECTIVE ACTION ON A GIVEN CONTRACT DEPENDS ON WHETHER THE CORRECTIVE ACTION RECOMMENDED WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT. THE RULES REGARDING PREAWARD CANCELLATION OF AN IFB (FPR SEC. 1-2.404.1), CITED BY SYSTRON, DO NOT PER SE APPLY TO DECISIONS TO RECOMMEND FOR THE TERMINATION OF A CONTRACT FOR THE CONVENIENCE OF THE GOVERNMENT.

WE WOULD AGREE, HOWEVER, THAT WHERE TERMINATION AND RESOLICITATION WOULD BE A MERELY PREFUNCTORY EXERCISE AND THE PRESENT CONTRACTOR IS PROVIDING THE GOVERNMENT'S ACTUAL MINIMUM NEEDS FOR WHICH THERE HAS BEEN ADEQUATE COMPETITION INITIALLY, IT WOULD BE DIFFICULT TO FIND THAT A TERMINATION PROCEDURE WOULD BE IN THE GOVERNMENT'S BEST INTEREST. MATTER OF MOBILEASE, 54 COMP. GEN. 242 (1974); SEE, GENERALLY, MATTER OF SPICKARD ENTERPRISES, INC., COTTRELL ENGINEERING CORP., 54 COMP. GEN. 145 (1974); MATTER OF GAF CORPORATION, MINNESOTA MINING & MANUFACTURING COMPANY, 53 COMP. GEN. 586 (1974); 52 ID. 285 (1972). THIS IS SO EVEN THOUGH NOT EVERY POTENTIAL BIDDER PARTICIPATED IN THE ORIGINAL PROCUREMENT. SEE 52 COMP. GEN., SUPRA, AT 285.

HOWEVER, WE DO NOT AGREE THAT A RESOLICITATION OF THIS PROCUREMENT WOULD BE A MERE ACADEMIC EXERCISE. UNLIKE THE SITUATION SET OUT IN MATTER OF GAF ET AL., SUPRA, AND 52 COMP. GEN., SUPRA, IT IS NOT CLEAR TO US THAT ALL BIDDERS INVOLVED IN THIS PROCUREMENT WOULD AGAIN OFFER THE SAME ITEMS WHICH THEY OFFERED ORIGINALLY. INDEED, SINCE (1) FAA STATES THAT IT DOES NOT NEED A "COMMERCIAL, OFF-THE-SHELF" TESTER, AND (2) THE PURCHASE DESCRIPTION WAS WRITTEN WITH A VIEW TOWARD THE CONFIGURATION AND PERFORMANCE ASPECTS OF THE DATA TEST 4700, A "COMMERCIAL, OFF-THE-SHELF" ITEM WHICH DATA TEST ASSERTS IT INTENDED TO PROVIDE THE GOVERNMENT, IT SEEMS UNLIKELY TO US THAT DATA TEST WOULD, ON A RESOLICITATION, AGAIN OFFER ITS MODEL 4700 SINCE THAT MODEL APPARENTLY EXCEEDS THE GOVERNMENT'S MINIMUM NEEDS. IT IS NOT UNREASONABLE TO ASSUME THAT DATA TEST WOULD BID A NONCOMMERCIAL ITEM ON ANY RESOLICITATION. THUS, WE DO NOT FEEL THAT RESOLICITATION WOULD BE MEANINGLESS.

MOREOVER, IN VIEW OF THE ORIGINAL PROTEST FROM FLUKE TRENDAR AGAINST THE ALLEGED RESTRICTIVENESS OF THE SPECIFICATIONS WITH RESPECT TO THE COMMERCIAL, OFF-THE-SHELF REQUIREMENT, WE FEEL THAT IT IS ALSO REASONABLE TO EXPECT THAT FLUKE AS WELL AS OTHER SIMILARLY SITUATED FIRMS WOULD PARTICIPATE IN A RESOLICITATION.

HOWEVER, THE QUESTION REMAINS WHETHER OUR OFFICE SHOULD FOREGO ITS RECOMMENDATION TO TERMINATE THE SYSTRON CONTRACT FOR THE CONVENIENCE OF THE GOVERNMENT. IN REEXAMINING OUR RECOMMENDATION, WE HAVE CONSIDERED A NUMBER OF FACTORS, AMONG THEM: THE EXTENT OF CONTRACT PERFORMANCE; THE ESTIMATED COSTS OF TERMINATION (INCLUDING THE AMOUNT OF MONEY COMMITTED TOWARD CONTRACT FULFILLMENT, BOTH TO DATE AND AS OF THE DATE OF OUR DECISION); AND WHETHER THE BENEFITS TO THE COMPETITIVE PROCUREMENT SYSTEM REQUIRE CORRECTIVE ACTION. AFTER AN ANALYSIS OF THESE FACTORS, WE REMAIN OF THE OPINION THAT TERMINATION OF SYSTRON'S CONTRACT FOR THE CONVENIENCE OF THE GOVERNMENT WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT. THEREFORE, WE AFFIRM OUR PREVIOUS RECOMMENDATION.

IT SHOULD BE NOTED, HOWEVER, THAT THIS RECOMMENDATION FOR A CONVENIENCE TERMINATION PRESUPPOSES THAT THE CONTRACTOR IS SATISFACTORILY PERFORMING THE CONTRACT IN ACCORDANCE WITH ITS TERMS AND CONDITIONS. OUR RECOMMENDATION SHOULD NOT TAKE PRECEDENCE OVER ANY POSSIBLE TERMINATION FOR DEFAULT ACTION SHOULD SUCH ACTION BE APPROPRIATE AND NECESSARY. (IN THIS REGARD, WE AGAIN NOTE THAT THE DELIVERY SCHEDULE REQUIRED DELIVERY OF THE INITIAL UNIT TO HAVE BEEN MADE ON OCTOBER 26, 1974, WITH THE REMAINING UNITS TO BE DELIVERED AT A RATE OF TWO EVERY 30 DAYS THEREAFTER. FAA HAS INFORMED US THAT TO DATE NO UNITS HAVE BEEN DELIVERED BUT THAT SYSTRON HAS ADVISED THAT SIX PRODUCTION UNITS WILL BE DELIVERED IN MAY AND THAT DELIVERY OF THE REMAINING 14 UNITS WILL BE COMPLETED BY SEPTEMBER 1975.)

SINCE THIS DECISION BOTH AFFIRMS AND MODIFIES OUR EARLIER RECOMMENDATION FOR CORRECTIVE ACTION, A COPY IS BEING TRANSMITTED TO EACH OF THE COMMITTEES REFERENCED IN SECTION 232 OF THE LEGISLATIVE REORGANIZATION ACT OF 1970, 31 U.S.C. 1172.

FN1 SEE DISCUSSION ON PP. 10 AND 11, INFRA.