B-144700, FEB. 16, 1961

B-144700, FEB. 16, 1961

TO VIEWLEX, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 28, 1960, WITH ENCLOSURES, PROTESTING THE CONTEMPLATED AWARD OF A CONTRACT TO CHICAGO AERIAL INDUSTRIES UNDER INVITATION FOR BIDS NO. IFB 33-600-61-147 ISSUED BY THE WRIGHT-PATTERSON AIR FORCE BASE, OHIO, ON NOVEMBER 25, 1960.

THE INVITATION INVITED BIDS FOR THE PRODUCTION AND FURNISHING OF SPECIFIED QUANTITIES OF AN AERIAL RECONNAISSANCE STILL PICTURE CAMERA, TYPE KA-46 (LATER SHOWN AS KA-30) AND RELATED CAMERA EQUIPMENT, DRAWINGS AND DATA IN ACCORDANCE WITH SPECIFICATION XPH-157 DATED NOVEMBER 10, 1960. BIDS WERE REQUESTED IN THREE INCREMENTS RANGING FROM 76 TO 100 UNITS, 101 TO 125 UNITS AND 126 TO 150 UNITS, WITH THE GOVERNMENT RESERVING THE RIGHT TO MAKE AWARD FOR ANY QUANTITY WITHIN THE INCREMENT LIMITATIONS.

FOUR BIDS WERE RECEIVED AND OPENED ON DECEMBER 15, 1960. IT HAS BEEN ESTABLISHED THAT A CONTRACT FOR 120 UNITS WILL BE AWARDED. EVALUATION OF BIDS ON THIS QUANTITY SHOWS THAT CHICAGO AERIAL INDUSTRIES, LATER REFERRED TO HEREIN AS CAI, SUBMITTED THE LOWEST BID IN THE AMOUNT OF $1,198,775 AND YOU SUBMITTED THE SECOND LOW BID IN THE AMOUNT OF $1,241,238.68. IT HAS BEEN PROPOSED TO AWARD THE CONTRACT TO CAI.

IT IS YOUR PRINCIPAL CONTENTION THAT SPECIFICATION XPH-157 IS RESTRICTIVE OF COMPETITION AND THAT THE LENS CONE DESCRIBED THEREIN IS CURRENTLY PRODUCED ONLY BY PACIFIC OPTICAL CORPORATION WHICH IS A WHOLLY OWNED SUBSIDIARY OF CAI. ALSO, YOU CONTEND THAT THERE ARE NO OTHER MANUFACTURERS CAPABLE OF PRODUCING THIS LENS CONE IN SUFFICIENT TIME TO MEET THE REQUIRED DELIVERY SCHEDULE AND THAT PACIFIC OPTICAL CORPORATION HAS REFUSED TO QUOTE YOU A PRICE FOR ITS LENS CONE. ENCLOSED WITH YOUR LETTER OF DECEMBER 28, 1960, ARE COPIES OF YOUR LETTERS OF DECEMBER 19 AND 28, 1960, TO THE CONTRACTING OFFICE IN WHICH YOU OUTLINE THE REASONS FOR YOUR PROTEST. THE CONTRACTING OFFICE HAS CONSIDERED YOUR CONTENTIONS AND HAS OFFERED DETAILED COMMENTS ON THE VARIOUS ALLEGATIONS.

IN REGARD TO PARAGRAPH 3 OF YOUR LETTER OF DECEMBER 19, 1960, WHEREIN YOU STATE THAT THE INVITATION DID NOT ALLOW YOU SUFFICIENT TIME TO PREPARE A BID, THE CONTRACTING OFFICE REPORTS THAT YOU DID NOT CONTACT THE CONTRACTING OFFICER ON ANY MATTER RELATING TO THE INVITATION UNTIL AFTER THE OPENING OF BIDS OR ON DECEMBER 16, 1960. IT IS ADDED THAT YOU WERE AWARE OF THE FACT THAT IF YOU NEEDED ADDITIONAL TIME OR INFORMATION YOU COULD HAVE MADE A REQUEST THEREFOR TO THE CONTRACTING OFFICE PRIOR TO THE DATE OF BID OPENING. YOU MADE SUCH REQUESTS IN CONNECTION WITH THE AWARD OF CONTRACT NO. AF 33/600/-42279 AND AFTER CONSIDERATION OF YOUR REQUESTS THE INVITATION WAS AMENDED.

AS TO YOUR CONTENTION IN PARAGRAPH 5 OF YOUR LETTER THAT THE LENS NEEDED FOR THE CAMERAS TO BE FURNISHED COULD ONLY BE OBTAINED FROM THE PACIFIC OPTICAL CORPORATION, A DIVISION OF CAI, THE USING ACTIVITY REPORTS THAT THE LENS INVOLVED CAN BE PROCURED FROM TWO OR MORE KNOWN SOURCES. THE RECORD SHOWS THAT THESE SOURCES ARE BAUSCH AND LOMB, INC., AND CURTIS LABS, INC., ALTHOUGH THE INFORMATION FURNISHED BY THESE CONCERNS TO THE BUREAU OF NAVAL WEAPONS SHOWS THAT THEY COULD NOT MEET THE DELIVERY REQUIREMENTS OF THE INVITATION. IT IS THE OPINION OF THE CONTRACTING OFFICE THAT YOUR LETTER TO THE PACIFIC OPTICAL CORPORATION REGARDING THE USE OF INVOLVED LENS WAS INADEQUATE FOR A DEFINITE REPLY. DESPITE YOUR STATEMENT THAT IT WAS IMPOSSIBLE TO GET ANY SATISFACTORY REPLY FROM THE ALLEGED SOLE SOURCE YOU AND TWO OTHER BIDDERS SUBMITTED RESPONSIVE BIDS. THE FACT THAT PACIFIC OPTICAL MAY HAVE REFUSED TO FURNISH YOU A QUOTATION THE LENSES WHEN THERE IS ANOTHER SOURCE OR SOURCES DOES NOT INDICATE THAT THE INVITATION WAS ARBITRARY OR THAT THERE WAS A MONOPLY FAVORING CAI. FURTHERMORE, SINCE THE SPECIFICATIONS SET FORTH THE MINIMUM NEEDS OF THE GOVERNMENT WE CANNOT CONCLUDE THAT THE SPECIFICATIONS WERE RESTRICTIVE MERELY BECAUSE PACIFIC OPTICAL'S MERCHANDISING POLICY PRECLUDED YOU FROM OBTAINING THE LENSES FROM THEM. AS TO YOUR STATEMENT THAT YOU WERE NOT ALLOWED TO SEE AN F8U-1P AIRCRAFT IN CONNECTION WITH WHICH THE CAMERA EQUIPMENT WAS TO BE USED, THE CONTRACTING OFFICE STATES THAT ALL INFORMATION NECESSARY TO FABRICATE THE INSTALLATION KITS REQUIRED BY ITEM 3 OF THE INVITATION, AND THE TEST CONTROL UNITS REQUIRED BY ITEM 9, IS CONTAINED IN SPECIFICATION XPH-157 DATED NOVEMBER 10, 1960, AND AMENDMENT NO. 1 THERETO DATED NOVEMBER 14, 1960. THEREFORE YOU WERE NOT DENIED ANY INFORMATION ESSENTIAL TO PREPARING A RESPONSIVE BID.

AS TO THE CONTENTIONS IN YOUR LETTER OF DECEMBER 28, 1960, AND NOT CONSIDERED HEREINABOVE IN CONNECTION WITH YOUR LETTER OF DECEMBER 19, 1960, THE QUESTION OF THE CONVERSATION BETWEEN A REPRESENTATIVE OF AEROFLEX AND THE CONTRACTING OFFICE WAS DISCUSSED IN THE REPORT OF THAT OFFICE AND IT IS STATED THAT THE DISCUSSION WAS PRIMARILY CONCERNED WITH OTHER CONTRACTS AEROFLEX HAD WITH THE GOVERNMENT. AS TO YOUR STATEMENT THAT THE SPECIFICATIONS IN THE INVITATION WERE OF THE XPH TYPE AND THAT THE GOVERNMENT HAD OTHER SPECIFICATIONS THAT COULD HAVE BEEN USED, THE CONTRACTING OFFICE REPORTS THAT---

"THE U.S. NAVY, AS REQUIRING ACTIVITY, STATES THAT THE REQUIREMENT CONTAINED IN XPH-157 AND AMENDMENT NO. 1 REPRESENT THE MINIMUM ACCEPTABLE WHEREAS MIL-C-22181 (AER) AND AMENDMENT NO. 1 DOES NOT REPRESENT A SATISFACTORY END PRODUCT IN SO FAR AS PERFORMANCE IS CONCERNED.

"XPH IS THE NAVY SYSTEM OF PREPARING PROCUREMENT DOCUMENTS WITHOUT FORMALLY OBTAINING A MIL SPECIFICATION NUMBER ACCOMPANIED BY DELAYS IN OBTAINING THE NUMBER AND THE COST OF PRINTING A MIL SPECIFICATION. THE USE OF AN XPH NUMBER ALSO INDICATES THAT THE DOCUMENT IS IN A STATE OF IMPROVEMENT.

"XPH-157 IS NOTHING MORE THAN A REWRITE OF MIL-C-22181 WITH CHANGES ONLY IN THE RESOLUTION REQUIREMENTS, AND THE ADDITION OF A FOCAL PLANE SHUTTER WHICH HAS BEEN DELETED BY AMENDMENT NO. 1, FOR THIS PROCUREMENT. THE XPH DOCUMENT WAS USED AS A MORE COMPLETE AND LESS COMPLICATED DOCUMENT THAN WOULD HAVE BEEN OBTAINED BY PILING REVISION UPON REVISION TO MIL-C-22181 (AER).'

WITH REGARD TO YOUR STATEMENT THAT THE ONLY PURPOSE IN USING A SPECIAL SPECIFICATION IN THIS CASE WAS TO ELIMINATE COMPETITION, THE CONTRACTING OFFICE REPORTS THAT---

"PARAGRAPH 3.11 OF SPECIFICATION XPH-157 IS ESSENTIALLY THE SAME AS PARAGRAPH 3.10 OF MIL-C-22181 (AER). THE PRIOR PROCUREMENT OF CAMERAS REFERRED TO BY VIEWLEX WAS WITH THREE INCH LENS CONES NOT SIX INCH LENS CONES AS IN THE PRESENT PROCUREMENT. SOME OF THE COMPONENTS OF THE PRESENT CAMERA PROCUREMENT ARE IDENTICAL TO THOSE PROCURED UNDER THE PREVIOUS CONTRACT, REFERRED TO BY VIEWLEX. THE LAST PROCUREMENT OF THESE CAMERAS FOR THE NAVY WAS NOT MADE UNDER MIL-C-22181 (AER) BUT WAS MADE USING CHICAGO AERIAL INDUSTRY SPECIFICATIONS. THE XPH SPECIFICATIONS WERE USED ON THIS PROCUREMENT INSTEAD OF THE CHICAGO AERIAL INDUSTRY SPECIFICATIONS FOR THE EXPRESS PURPOSE OF MAKING IT POSSIBLE FOR OTHERS TO BID UPON THIS PROCUREMENT.'

WHILE YOU INDICATE THAT THE DELETION OF THE FIRST TWO INCREMENT QUANTITIES BY AMENDMENT PRIOR TO THE BID OPENING DATE WAS IMPROPER YOU HAVE FAILED TO SHOW WHY YOU REGARD IT AS BEING IMPROPER AND INSOFAR AS IT APPEARS FROM THE RECORD THE GOVERNMENT KNEW AT THE TIME THAT AT LEAST QUANTITIES OF 76 OR MORE WOULD BE AWARDED. AS TO THE PROVISION IN THE INVITATION THAT WHERE A BIDDER OFFERS EARLIER DELIVERY THAN THAT REQUIRED BY THE SCHEDULE, AWARD MIGHT BE MADE IN ACCORDANCE WITH BIDDER'S OFFER OR IN ACCORDANCE WITH REQUIRED DELIVERY SCHEDULE, THERE APPEARS NO OBJECTION TO SUCH A PROVISION IN THE INVITATION SO LONG AS BIDS OFFERING DELIVERY WITHIN THE APPLICABLE DELIVERY PERIOD SPECIFIED ARE EVALUATED EQUALLY AS REGARDS THE TIME OF DELIVERY. WITH REGARD TO YOUR PROTEST THAT THE INCLUSION OF PUBLICATIONS CONTRACT REQUIREMENTS SERIAL NO. 267-61, IN THE INVITATION TENDED TO ELIMINATE COMPETITION, IT IS REPORTED THAT SIGNAL CORPS PUBLICATIONS AND FORMAT TO WHICH YOU REFER AND WHICH YOU STATE COULD EASILY BE FURNISHED BY YOU ARE NOT ACCEPTABLE TO THE DEPARTMENT OF THE NAVY.

YOU PROTEST THAT AMENDMENT NO. 1 ELIMINATED THE REQUIREMENT IN SPECIFICATION XPH-157 FOR A DESIGN PROPOSAL IN THIS PROCUREMENT. WE HAVE BEEN ADVISED BY THE ADMINISTRATIVE OFFICE THAT DESIGN PROPOSALS ARE NOT REQUIRED BECAUSE THEY ARE NOT AT THE DESIGN STAGE. THE PARAGRAPHS OF THE SPECIFICATION REFERRED TO IN THE LAST PARAGRAPH OF PAGE 3 OF YOUR LETTER DATED DECEMBER 28, 1960, ARE REPORTED TO BE IDENTICAL TO THOSE IN SPECIFICATION MIL-C-22181 (AER), WHICH SPECIFICATION HAS BEEN USED IN THE PRIOR PROCUREMENT OF CAMERAS AND THE CONTRACTING AGENCY STATES THAT THE CONTROL SYSTEMS USED WITH THE CAMERAS INVOLVED ARE COMPATIBLE WITH THE REQUIREMENTS OF THE SPECIFICATIONS. LIKEWISE, SPECIFICATION MIL-C-22181 (AER) CONTAINS THE REQUIREMENT THAT THE GOVERNMENT WILL DETERMINE WHAT IS ACCEPTABLE PICTURE QUALITY AND THERE APPEARS NO OBJECTION TO PERMITTING THE USING AGENCY TO MAKE SUCH DETERMINATION. PARAGRAPH 3.14.1.1 OF SPECIFICATION XPH-157 REQUIRES THE SUCCESSFUL CONTRACTOR TO ANALYZE POWER REQUIREMENTS AND YOU STATE THAT THERE HAVE BEEN PROBLEMS WHICH HAVE NOT BEEN RESOLVED TO DATE. THE CONTRACTING AGENCY STATES THAT THIS PARAGRAPH IS A RECOPY OF PARAGRAPH 3.14.1.1 OF SPECIFICATION MIL C-22181 (AER) AND THAT THE POWER REQUIREMENTS SPECIFIED ARE CORRECT AND REPRESENT THOSE REQUIRED TO ESTABLISH COMPATIBILITY BETWEEN CAMERA AND CONTROL SYSTEM CONCERNED; THAT PREVIOUSLY PROCURED LA-134 CAMERA BODIES FULFILL THIS POWER REQUIREMENT; AND THAT "THERE IS NO PROBLEM OR POWER REQUIREMENTS RELATIVE TO NAVY AIRCRAFT.'

WITH REGARD TO YOUR PROTEST REGARDING THE FAILURE OF THE GOVERNMENT TO FURNISH "SPECIFICATIONS, DRAWINGS AND INSTRUCTIONS" FOR THIS PROCUREMENT, THE CONTRACTING AGENCY REPORTS THAT---

"SPECIFICATIONS IN THE FORM OF XPH DOCUMENTS WERE AVAILABLE. ALTHOUGH IT MIGHT APPEAR TO THE CASUAL OBSERVER THAT LITTLE EFFORT WAS REQUIRED TO ARRIVE AT THE XPH DOCUMENT, EVERY REFERENCED SPECIFICATION AND DOCUMENT WAS CHECKED AS TO CURRENT APPLICABILITY AND WERE VERIFIED FROM PARAGRAPH TO PARAGRAPH THAT THEY WERE COMPLETELY ACCURATE. THIS OCCUPIED THE TIME OF A HIGHLY QUALIFIED SPECIFICATION WRITER FOR A CONSIDERABLE PERIOD OF TIME. IN FACT SO MUCH TIME WAS REQUIRED THAT A MIL SPECIFICATION COULD NOT HAVE BEEN OBTAINED IN SUFFICIENT TIME TO HAVE BEEN USED WITH THIS IFB. IT SHOULD BE NOTED THAT THE XPH DOCUMENT IS PREPARED IN COMPLETE MIL SPECIFICATION FORMAT WITH THE EXCEPTION OF THE HEADING.

"THE KA-30 DRAWINGS HAVE BECOME AVAILABLE SINCE THE RELEASE OF THE IFB. VIEWLEX HAS A COMPLETE SET OF KA-30 DRAWINGS IN THEIR POSSESSION WHICH WERE FURNISHED FOR USE WITH THEIR CURRENT KA-30 CONTRACT, AF 33 (600) 42279. VIEWLEX ALSO HAS A KA-30 CAMERA IN THEIR POSSESSION FOR USE ON THE SAME CONTRACT.'

IN REGARD TO THIS MATTER YOU STATE IN YOUR LETTER OF DECEMBER 19, 1960, THAT THE LENS HERE INVOLVED WAS DEVELOPED UNDER A RESEARCH AND DEVELOPMENT CONTRACT SO THAT THE PLANS AND DETAILS OF MANUFACTURE SHOULD HAVE BEEN MADE AVAILABLE TO BIDDERS. WE HAVE BEEN ADVISED THAT THE BUREAU OF AERONAUTICS, DEPARTMENT OF THE NAVY, PURCHASED A 6-INCH LENS CONE FOR KA- 30 CAMERA INCORPORATING THE TYPE OF LENS HERE INVOLVED FOR A FIXED PRICE UNDER A CONTRACT WHICH DID NOT OBLIGATE THE SELLER, CAI, TO FURNISH THE GOVERNMENT PLANS AND DETAILS OF THE METHOD OF MANUFACTURE.

THE CONTRACTING AGENCY REFUTES YOUR CONTENTION THAT YOU COULD NOT OBTAIN ANY INFORMATION AS TO WHAT WAS "AN APPROPRIATE INSTALLATION KIT," STATING THAT EXHIBIT XPH-157 CONTAINS ADEQUATE INFORMATION ON THE INSTALLATION KIT. IN THIS CONNECTION, THE AGENCY ALSO STATES THAT MODIFICATION OF THE WIRING OF THE AIRCRAFT WAS TO BE ACCOMPLISHED BY THE NAVY AND WAS NOT A PART OF THE INSTALLATION KIT, AND THAT IT IS NOT NECESSARY FOR THE CONTRACTOR TO KNOW THE DETAILS OF THE AIRCRAFT REWIRING TO FABRICATE THE INSTALLATION KIT.

IN THE CONCLUDING SEVERAL PARAGRAPHS OF YOUR LETTER OF DECEMBER 28, 1960, YOU STRESS THE FACT THAT YOU DO NOT REGARD THE SPECIFICATIONS AS BEING PROPER, THAT THERE IS ONLY ONE SOURCE WHERE THE NECESSARY LENSES CAN BE OBTAINED AND THAT THE INFORMATION DEVELOPED UNDER THE RESEARCH AND DEVELOPMENT CONTRACT SHOULD BE MADE AVAILABLE TO ALL. AS INDICATED ABOVE, THE LENSES WERE AVAILABLE FROM A NUMBER OF SOURCES AND SUFFICIENT INFORMATION WAS FURNISHED IN CONNECTION WITH THE INVITATION TO OBTAIN AT LEAST FOUR BIDS. THE FACT THAT ONE BIDDER HAS HIS OWN DIVISION TO MAKE THE REQUIRED LENS APPEARS TO BE A NORMAL COMMERCIAL ADVANTAGE AND DOES NOT MAKE THE INVITATION FOR BIDS ARBITRARY OR NONCOMPETITIVE.

IN VIEW OF THE FOREGOING WE CANNOT FIND ANY PROPER BASIS FOR OBJECTING TO THE PROPOSED ACTION OF THE CONTRACTING AGENCY TO PROCEED WITH THE AWARD OF A CONTRACT UNDER THE INVITATION ISSUED IN THIS CASE.