B-148288, AUG. 14, 1962

B-148288, AUG. 14, 1962

TO ROBBINS AVIATION, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 3, 1962, QUESTIONING CERTAIN PORTIONS OF OUR DECISION OF JUNE 1, 1962, WHICH DISALLOWED YOUR PROTEST AGAINST THE ACTION OF THE DEPARTMENT OF THE AIR FORCE IN AWARDING A CONTRACT FOR DESICCANT FILTERS TO PERMANENT FILTER CORPORATION.

DECISIONS OF THIS OFFICE ARE SUBJECT TO REVIEW ONLY WHERE NEW EVIDENCE IS SUBMITTED OR MISTAKE OF LAW IS ALLEGED, AND YOUR REQUEST FOR RECONSIDERATION MUST THEREFORE BE CONSIDERED ON THAT BASIS.

WITH RESPECT TO THAT PORTION OF THE DECISION WHICH DISCUSSED THE FAILURE OF THE CONTRACTING AGENCY TO AMEND THE REQUEST FOR PROPOSALS TO SPECIFY THAT OFFICERS TO SUPPLY "PART NO. RAF-SPTI3X OR EQUAL" WOULD BE ACCEPTABLE, WE EXPRESSED THE OPINION THAT A PROPER BASIS FOR PROTEST MIGHT EXIST WHERE A SOLICITATION OF BIDS OR PROPOSALS IS LIMITED TO A NAMED BRAND OR BRANDS, AND IT CAN BE DEMONSTRATED THAT SUCH LIMITATION RESULTED IN THE FAILURE OF COMPETENT MANUFACTURERS TO OFFER OTHER ITEMS, OR FAILURE OF THE CONTRACTING AGENCY TO CONSIDER OFFERS ON OTHER ITEMS. HOWEVER, WE CONCLUDED THERE WAS NO EVIDENCE THAT YOUR COMPANY WOULD HAVE OFFERED ANY ITEM OTHER THAN YOUR PART NO. RAF-SPTI3X IF THE REQUEST FOR PROPOSALS HAD BEEN AMENDED TO SOLICIT PROPOSALS ON AN "OR EQUAL" BASIS, AND THAT, IN THE ABSENCE OF SUCH EVIDENCE, WE WERE UNABLE TO CONCLUDE THAT THE FAILURE TO SO AMEND THE REQUEST FOR PROPOSALS OPERATED TO PLACE YOUR COMPANY AT A COMPETITIVE DISADVANTAGE OR SO RESTRICTED COMPETITION AS TO RESULT IN ANY ASCERTAINABLE INJURY TO THE GOVERNMENT.

YOU QUESTION THIS CONCLUSION AS AN ARBITRARY DETERMINATION THAT YOUR COMPANY, IN AN HONEST EFFORT TO RETAIN THIS PARTICULAR PIECE OF BUSINESS, WOULD HAVE FAILED TO MEET THE "LOWER" SPECIFICATIONS OF THE GOVERNMENT BY PRODUCING A FILTER CARTRIDGE COMPARABLE TO THE ONE PRODUCED BY PERMANENT AND AT A MUCH LOWER FIGURE THAN THAT QUOTED BY YOUR COMPETITORS, AND YOU CONTEND THAT IT IS NOT ONLY POSSIBLE, BUT PROBABLE, THAT YOUR COMPANY COULD AND WOULD HAVE MET THE GOVERNMENT'S STANDARDS AT A CONSIDERABLY LOWER COST IF IT HAD KNOWN IT WAS PERMITTED TO BID ON AN "OR EQUAL" BASIS.

WE ARE UNABLE TO AGREE WITH YOUR POSITION IN THIS MATTER, AND OUR DISAGREEMENT APPARENTLY ARISES OUT OF OUR UNDERSTANDING THAT THERE WAS NO LOWERING OF THE GOVERNMENT'S STANDARDS WHEN OFFERS WERE SOLICITED FROM OTHER MANUFACTURERS ON AN "OR EQUAL" BASIS. UNDER SUCH CIRCUMSTANCES THE SOLICITATION OF AN OFFER FROM YOUR COMPANY ON AN "OR EQUAL" BASIS WOULD NOT HAVE PERMITTED YOUR COMPANY TO FURNISH AN ITEM INFERIOR TO OR DEVIATING IN ANY MATERIAL RESPECT FROM, YOUR PART NO. RAF-SPTI3X. THE ASSERTION THAT YOUR COMPANY COULD HAVE LOWERED ITS PRODUCTION COSTS AND THEREBY SUBMITTED A LOWER OFFER, IF IT HAD BEEN PERMITTED TO FURNISH A FILTER MEETING LOWER STANDARDS THAN YOUR PART NO. RAF-SPT13X, THEREFORE WOULD NOT APPEAR TO BE PERTINENT TO THE QUESTION PRESENTED. IN ANY EVENT, THE BURDEN OF PROOF IN THIS AREA MUST BE PLACED UPON YOUR COMPANY. SUCH BURDEN IS NOT MET BY YOUR UNSUPPORTED STATEMENT THAT YOUR COMPANY COULD AND WOULD HAVE MANUFACTURED TO LOWER STANDARDS AND THUS LOWERED PRODUCTION COSTS IF YOU HAD BID ON AN "OR EQUAL" BASIS. WE MUST THEREFORE CONCLUDE THAT YOUR LETTER OF JULY 3, 1962, FAILS TO PRESENT ANY NEW EVIDENCE, OR TO ESTABLISH A MISTAKE OF LAW, IN RELATION TO THIS PORTION OF OUR DECISION OF JUNE 1.

CONCERNING THAT PORTION OF YOUR LETTER WHICH QUESTIONS OUR FAILURE TO SUSTAIN YOUR ASSERTION THAT AIR FORCE PERSONNEL TURNED OVER DRAWINGS, IN WHICH YOUR COMPANY CLAIMS PROPRIETARY RIGHTS, TO THE OTHER MANUFACTURERS WHO SUBMITTED OFFERS UNDER RFP NO. 09-603-62-2100, WE MUST POINT OUT THAT OUR ONLY CONCLUSION ON THIS MATTER WAS THAT OUR INVESTIGATION OF AIR FORCE RECORDS AND INTERROGATION OF AIR FORCE PROCUREMENT PERSONNEL HAD FAILED TO REVEAL ANY EVIDENCE OF SUCH ACTION. YOUR PRESENT ASSERTION THAT OUR DECISION IMPLIES IT WAS IMPOSSIBLE FOR THE PROCURING AGENCY TO HAVE BEEN GUILTY OF ANY CONCLUSION IS THEREFORE IN ERROR. HOWEVER, THE FACT THAT THE DRAWINGS SUBMITTED BY PERMANENT FILTER AND WELLS INDUSTRIES WERE DATED JULY 18, 1961, AND AUGUST 30, 1961, WHEREAS THE AIR FORCE LIMITED DISTRIBUTION OF RFP NO. 09-603-62-2100 ON SEPTEMBER 29, 1961, TO YOUR COMPANY IN THE BELIEF THAT YOUR COMPANY WAS THE SOLE SOURCE OF SUPPLY FOR FILTERS OF THE TYPE REQUIRED MUST, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, BE RECOGNIZED AS HAVING PROBATIVE VALUE TO SUBSTANTIATE THE RESULTS OF OUR INVESTIGATION. OUR ADVICE THAT PERMANENT FILTER HAD MADE THESE FILTERS FOR ITS OWN USE PRIOR TO DECEMBER 6, 1961, WAS INTENDED ONLY TO CORRECT THE APPARENT MISAPPREHENSION, AS SET OUT IN YOUR LETTER DATED APRIL 2, 1962,TO THE HONORABLE CLAIR ENGLE, THAT PERMANENT FILTER HAD SUBMITTED A BID ON A PRODUCT WHICH IT HAD NO PREVIOUSLY MANUFACTURED.

WE FIND NOTHING IN YOUR LETTER OF JULY 3, 1962, WHICH MAY BE CONSTRUED AS EVIDENCE TO SUBSTANTIATE YOUR ASSERTION THAT AIR FORCE PERSONNEL FURNISHED DATA, PROPRIETARY TO YOUR COMPANY, TO OTHER MANUFACTURERS. CONVERSELY, YOUR RECITAL OF THE TESTIMONY IN YOUR INJUNCTION ACTION AGAINST PERMANENT FILTER WOULD APPEAR TO INDICATE THERE IS SUBSTANTIAL EVIDENCE THAT PERMANENT FILTER OBTAINED NECESSARY MANUFACTURING DATA FROM A FORMER EMPLOYEE OF YOUR OWN COMPANY, RATHER THAN FROM AIR FORCE PERSONNEL, AND THE FACT THAT YOU HAVE JOINED THE EMPLOYEE IN YOUR INJUNCTION ACTION WOULD APPEAR TO BE INDICATIVE OF YOUR BELIEF THAT HE IS, IN FACT, THE SOURCE OF PERMANENT FILTER'S INFORMATION. WHETHER THIS IS, OR IS NOT, THE CASE IS NOT A MATTER FOR CONSIDERATION BY THIS OFFICE, NOR WOULD THE FACT THAT YOUR FORMER EMPLOYEE VIOLATED A DUTY NOT TO REVEAL INFORMATION PROPRIETARY TO YOUR COMPANY, EVEN IF ADMITTED, APPEAR TO PRESENT ANY BASIS FOR ACTION BY THIS OFFICE WITH RESPECT TO THE CONTRACT AWARDED TO PERMANENT BY THE AIR FORCE.

IN VIEW OF THE FOREGOING OUR DECISION OF JUNE 1, 1962, MUST BE AFFIRMED.