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B-146516, JAN. 10, 1962

B-146516 Jan 10, 1962
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ESQUIRE: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 22. YOUR CONTENTION IS. THAT SINCE THE EQUIPMENT PREVIOUSLY FURNISHED BY YOUR CLIENT FOR OTHER INSTALLATIONS WAS SATISFACTORY THERE IS NO LEGAL JUSTIFICATION FOR THE USING AGENCY TO RESTRICT THE PROCUREMENT OF SUCH EQUIPMENT TO A PARTICULAR MANUFACTURER. WE ARE ADVISED THAT THE PROJECT INVOLVED COMMANDS THE HIGHEST DEGREE OF PRIORITY BECAUSE OF ITS EXTREMELY CRITICAL POSITION IN THE NATIONAL DEFENSE PROGRAM. THE ORIGINAL PROPELLANT LOADING CONTROL SYSTEM WAS DESIGNED FOR A PREVIOUS PROJECT UNDER A SEPARATE CONTRACT WITH A PRIVATE FIRM WHICH SPECIFIED THE USE OF INSTRUMENTS AND VALVES MANUFACTURED BY MINNEAPOLIS HONEYWELL REGULATOR COMPANY.

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B-146516, JAN. 10, 1962

TO ALBERT J. FELDMAN, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 22, 1961, ENCLOSING A COPY OF LETTER OF THE SAME DATE ADDRESSED TO THE OFFICE OF THE SECRETARY, DEPARTMENT OF THE AIR FORCE, PROTESTING ON BEHALF OF YOUR CLIENT, THE COMPUDYNE CORPORATION, AGAINST THE USE OF RESTRICTIVE SPECIFICATIONS NO. 36856/61, UNDER CONTRACT NO. NBY 36856, CONCERNING CERTAIN INSTRUMENTS TO BE PROCURED AND INSTALLED IN LAUNCH COMPLEX NO. 2, POINT ARGUELLO, CALIFORNIA. YOUR CONTENTION IS, IN SUBSTANCE, THAT SINCE THE EQUIPMENT PREVIOUSLY FURNISHED BY YOUR CLIENT FOR OTHER INSTALLATIONS WAS SATISFACTORY THERE IS NO LEGAL JUSTIFICATION FOR THE USING AGENCY TO RESTRICT THE PROCUREMENT OF SUCH EQUIPMENT TO A PARTICULAR MANUFACTURER.

WE ARE ADVISED THAT THE PROJECT INVOLVED COMMANDS THE HIGHEST DEGREE OF PRIORITY BECAUSE OF ITS EXTREMELY CRITICAL POSITION IN THE NATIONAL DEFENSE PROGRAM. FOR THAT REASON THE MAXIMUM ATTAINABLE RELIABILITY IN ALL OF THE SUPPORT SYSTEMS, INCLUDING THE PROPELLANT LOADING SYSTEM, MUST BE ASSURED IN THE FACILITIES IN ORDER THAT THE SCHEDULED LAUNCHINGS MAY BE SUCCESSFULLY COMPLETED WITHOUT DELAY. THE ORIGINAL PROPELLANT LOADING CONTROL SYSTEM WAS DESIGNED FOR A PREVIOUS PROJECT UNDER A SEPARATE CONTRACT WITH A PRIVATE FIRM WHICH SPECIFIED THE USE OF INSTRUMENTS AND VALVES MANUFACTURED BY MINNEAPOLIS HONEYWELL REGULATOR COMPANY. THE SUCCESSFUL FUNCTION OF THAT EQUIPMENT HAS BEEN PROVEN BY EARLIER TESTS AND OPERATIONS.

HOWEVER, IN THE CONSTRUCTION OF CERTAIN SIMILAR PROJECTS, INCLUDING LAUNCH COMPLEX NO. 1 AT POINT ARGUELLO, OTHER MANUFACTURERS' PRODUCTS WERE PROCURED ON A COMPETITIVE BASIS. INSTRUMENTS FABRICATED BY TAYLOR INSTRUMENT COMPANY AND SUPPLIED BY THE COMPUDYNE CORPORATION WERE INSTALLED IN LAUNCH COMPLEX NO. 1. THE RECORD DISCLOSES THAT THEY FAILED TO COMPLY WITH THE SPECIFICATIONS AND LACKED THE NECESSARY CAPABILITIES TO SATISFACTORILY PERFORM THEIR DESIGNED FUNCTIONS. NUMEROUS INSTANCES WERE FOUND BY BOTH THE MAINTENANCE CONTRACTOR AND THE CONTRACT SYSTEM TEST CONTRACTOR OF OPERATING DEFICIENCIES OF TAYLOR EQUIPMENT, WITH THE RESULT THAT EXCESSIVE COSTS WERE INCURRED IN ATTEMPTING TO BALANCE THE SYSTEM, AND VALIDATION OF THE INSTALLATION WAS SUBSTANTIALLY DELAYED. IN VIEW THEREOF, AND SINCE MINNEAPOLIS HONEYWELL INSTRUMENTS HAVE BEEN FOUND TO BE RELIABLE AND COMPATIBLE IN OTHER LIKE INSTALLATIONS, ALSO HAVING REGARD FOR THE LIMITED TIME WITHIN WHICH THE ENTIRE PROJECT WAS TO BE COMPLETED, THE HOLD ORDER CONCERNING THE PARTICULAR VALVES AND INSTRUMENTS SPECIFIED AND TO BE PROCURED WAS RESCINDED.

IT HAS BEEN CONSISTENTLY HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT THE UNITED STATES IS NOT REQUIRED TO PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE OR HAS BEEN PREVIOUSLY ACQUIRED WHEN, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY THE ACTUAL NEEDS OF THE USING FACILITY WOULD NOT BE SERVED THEREBY. ACCORDINGLY, A REJECTION OF TAYLOR INSTRUMENTS FOR USE ON THE INSTANT PROJECT, BASED UPON THE REPORTED DEFICIENCIES PREVIOUSLY EXPERIENCED, WOULD APPEAR TO HAVE BEEN JUSTIFIED. HOWEVER, WE AGREE WITH YOUR CONTENTION THAT SPECIFICATIONS LIMITING PURCHASE TO A NAMED-BRAND PRODUCT OF ONE MANUFACTURER, TO THE EXCLUSION OF ALL OTHER PRODUCERS IN THE INDUSTRY, IS UNDESIRABLE. IN THAT CONNECTION IT IS REPORTED THAT THE ACTION TAKEN IN THIS CASE WILL NOT ESTABLISH A RULE IN THE CONSTRUCTION OF OTHER FACILITIES NOR PRECLUDE ANY COMPANY'S PRODUCT WHICH CAN QUALIFY FROM BEING PROCURED FOR THOSE FACILITIES. IT IS FURTHER REPORTED THAT THE PARTICULAR REQUIREMENT AT EACH FACILITY AND THE CAPABILITY OF EACH COMPANY TO MEET THOSE REQUIREMENTS WILL BE DETERMINED IN EACH CASE.

WE HAVE FOUND NO EVIDENCE OF BAD FAITH OR PERSONAL PREJUDICE IN THE ADMINISTRATIVE DETERMINATION TO AUTHORIZE THE SELECTION OF THOSE SPECIFIC INSTRUMENTS OF PROVEN CAPABILITY. IN VIEW THEREOF, AND AFTER CONSIDERATION OF ALL OF THE OTHER ASPECTS IN THE CASE, WE CONCLUDE THAT IT WOULD NOT BE IN THE BEST INTERESTS OF THE UNITED STATES TO INTERFERE WITH THE ADMINISTRATIVE ACTION TAKEN.

YOUR CLIENT, THE COMPUDYNE CORPORATION IS BEING FURNISHED A COPY OF THIS DECISION.

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