B-163131, SEP. 30, 1968

B-163131, SEP. 30, 1968

TO MR. FRANK MASSA:

REFERENCE IS MADE TO YOUR LETTERS OF JULY 17 AND 22, 1968, REQUESTING RECONSIDERATION OF DECISION B-163131 OF JULY 15, 1968, REGARDING YOUR PROTEST UNDER REQUEST FOR PROPOSALS N00419-68-R-0093 ON THE BASIS THAT INFORMATION REGARDING GOVERNMENT-OWNED TOOLING IN THE POSSESSION OF HONEYWELL INC., WAS NOT FURNISHED DURING THE COURSE OF FINAL NEGOTIATIONS.

THE GOVERNMENT REPRESENTATIVES WHO PARTICIPATED IN THE NEGOTIATIONS WITH YOUR COMPANY HAVE FURNISHED AFFIDAVITS CONCERNING GOVERNMENT-OWNED TOOLING IN HONEYWELL'S POSSESSION. THE AFFIDAVIT OF MR. WILBERT V. DUNNE STATES: "WILBERT V. DUNNE, BEING FIRST DULY SWORN, UPON HIS OATH DEPOSES AND SAYS:"1. THAT HE IS A CONTRACTING OFFICER FOR THE UNITED STATES NAVY AND STATIONED AT NAVAL ORDNANCE STATION, FOREST PARK, ILLINOIS. "2. THAT ON 9 AND 10 APRIL 1968, HE PARTICIPATED IN A NEGOTIATION WITH MASSA DIVISION, DYNAMICS CORPORATION OF AMERICA; THAT THE NEGOTIATION WAS WITH REFERENCE TO MASSA DIVISION'S PROPOSAL IN RESPONSE TO A REQUEST FOR PROPOSAL NUMBER N00419-68-R-0093. THE REQUEST WAS MADE AS TO A PROPOSED PROCUREMENT FOR 1228 CERAMIC TRANSDUCERS SP NO. 696071. "3. THAT AFFIANT ACTED DURING SAID NEGOTIATION AS REPRESENTATIVE OF C. R. HAIZMANN, PROCURING CONTRACTING OFFICER AT SAID STATION. "4. IN ADDITION TO AFFIANT, THE FOLLOWING NAMED PERSONS, BOTH GOVERNMENT REPRESENTATIVES AND REPRESENTATIVES OF THE CONTRACTOR, PARTICIPATED IN THE NEGOTIATION:

"FOR THE GOVERNMENT FOR THE CONTRACTOR

"V. E. MORAVEC, COST/PRICE

ANALYST F. MASSA, PRESIDENT

(NAVAL ORDNANCE STATION, FOREST

PARK, ILLINOIS) E. MASSA, VICE PRESIDENT

"D. W. MCGUIRE, COST/PRICE

ANALYST A. DINAPOLI, ENGINEER

(DEFENSE CONTRACT ADMINISTRATION

SERVICES REGION, BOSTON) J. WALSH, COMPTROLLER "5. DURING THE COURSE OF NEGOTIATION IN THE FORENOON OF 10 APRIL 1968, MR. E. MASSA STATED THAT HE UNDERSTOOD A RENTAL RATE AS SPECIFIED IN THE ARMED SERVICES PROCUREMENT REGULATION WOULD BE APPLIED BY THE GOVERNMENT AS AN EQUALIZATION FACTOR COVERING GOVERNMENT OWNED TOOLING IN THE POSSESSION OF ANY OTHER OFFEROR AND THAT SUCH FACTOR WOULD BE USED BY THE CONTRACTING OFFICER IN EVALUATING PROPOSALS. MR. MASSA WAS INFORMED BY MR. DUNNE AND MR. MORAVEC HIS ASSUMPTION WAS CORRECT AND THAT A 1 3/4 PERCENT RENTAL RATE APPLIED TO THE ACQUISITION COST OF SUCH TOOLING WOULD BE USED BY THE CONTRACTING OFFICER FOR EVALUATION PURPOSES.'

THE AFFIDAVIT OF MR. MORAVEC, THE COST/PRICE ANALYST, STATES IN PERTINENT PART:

"ALSO DISCUSSED WAS THE METHOD USED TO ELIMINATE THE COMPETITIVE ADVANTAGE OBTAINED THRU USE OF GOVERNMENT-OWNED TOOLING INASMUCH AS MASSA INDICATED THEY WERE AWARE THAT SUCH TOOLING WAS AVAILABLE TO ITS COMPETITOR ON A PRIOR CONTRACT FOR TRANSDUCERS. MASSA WAS INFORMED THAT AS REQUIRED BY ASPR, THE COMPETITIVE ADVANTAGE WOULD BE ELIMINATED BY THE APPLICATION OF A RENTAL FACTOR FOR EVALUATION OF 1 3/4 PERCENT PER MONTH TO THE ACQUISITION COST OF THE TOOLING. DURING THIS DISCUSSION, MASSA INDICATED THEY WERE AWARE THAT SUCH TOOLING WOULD APPROXIMATE $300,000.00 TO $400,000.00 IN COST.

"* * * ALSO, DURING THE GENERAL DISCUSSIONS REFERRED TO, ASIDE CONVERSTIONS WERE HELD BETWEEN MOST PARTICIPANTS RELATIVE TO ALL ASPECTS OF THE PROPOSAL IN ADDITION TO THE SPECIAL TOOLING REQUIREMENT.'

THE AFFIDAVIT OF MR. MCGUIRE, A COST/PRICE ANALYST, STATES IN PERTINENT PART:

"DURING THE TIME THAT I WAS PRESENT AT THE NEGOTIATIONS, I RECALL NO DISCUSSION ON GOVERNMENT-OWNED TOOLING BY EITHER GOVERNMENT OR CONTRACTOR PERSONNEL. IT SHOULD BE NOTED THAT FOR SHORT PERIODS OF TIME, I WAS OUT OF THE ROOM WHERE NEGOTIATIONS WERE TAKING PLACE; I WAS LOOKING AT BACKUP DATA FOR OTHER AREAS OF THE PROPOSAL. ALSO AT OTHER TIMES WHEN I WAS IN THE ROOM, I WAS BUSY CALCULATING ACCEPTABLE COST AMOUNTS ON ITEMS WHICH WERE JUST NEGOTIATED; THUS, AT THESE TIMES MY FULL ATTENTION WAS NOT FOCUSED ON THE DISCUSSIONS TAKING PLACE.'

AS INDICATED ABOVE, TWO OF THE GOVERNMENT REPRESENTATIVES HAVE TESTIFIED TO THE CONVERSATION REGARDING THE GOVERNMENT TOOLING. A THIRD HAS NO RECOLLECTION OF THE CONVERSATION, BUT HE HAS TESTIFIED THAT HE WAS NOT ALWAYS LISTENING TO THE DISCUSSIONS BECAUSE HE WAS OTHERWSIE OCCUPIED. WE, THEREFORE, MUST CONCLUDE THAT YOUR CONTENTION THAT INFORMATION REGARDING THE GOVERNMENT TOOLING WAS NOT FURNISHED DURING THE FINAL NEGOTIATIONS HAS BEEN CONTROVERTED BY THE FOREGOING STATEMENTS.