B-152410, FEB. 12, 1964

B-152410, FEB. 12, 1964

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO LETTERS DATED NOVEMBER 5, 1963, AND JANUARY 21, 1964, SIGNED BY THE CHIEF, PROCUREMENT OPERATIONS DIVISION, DIRECTORATE, PROCUREMENT POLICY, DCS/S AND L, FORWARDING REPORTS ON THE PROTEST OF HOWELL INSTRUMENTS, INCORPORATED, AGAINST THE AWARD OF A CONTRACT TO THE GAP INSTRUMENT CORPORATION UNDER INVITATION FOR BIDS 30-635-63-368 ISSUED BY THE ROME AIR MATERIEL AREA, DIRECTORATE OF PROCUREMENT AND PRODUCTION.

HOWELL CONTENDS THAT THE DEPARTMENT OF THE AIR FORCE MISAPPROPRIATED THE CONCEPT OF ITS H204 DIGITAL VOLTMETER ASSEMBLY, DEVELOPED THROUGH THE EXPENDITURE OF CONSIDERABLE TIME AND EXPENSE, BY UTILIZING INFORMATION SUBMITTED BY HOWELL IN CONFIDENCE AND FOR TEST AND EVALUATION PURPOSES ONLY, IN THE PREPARATION OF A SUPPLEMENTAL STATEMENT OF WORK, A COPY OF WHICH WAS FURNISHED TO EACH BIDDER.

THE DEPARTMENT OF THE AIR FORCE HAS CONTENDED BEFORE THIS OFFICE THAT THE SUPPLEMENTAL WORK STATEMENT CONTAINS NO INFORMATION DERIVED FROM ANY HOWELL SUBMISSION TO THE DEPARTMENT, THAT IT IS MUCH MORE COMPREHENSIVE THAN ANY TECHNICAL DATA EVER SUBMITTED BY THE COMPANY, AND THAT THE INFORMATION THEREIN SET FORTH CAME FROM CONVERSATIONS WITH THE USING COMMANDS AND WITH THE RADAR GROUND CONTROL APPROACH SYSTEM MANUFACTURER, THE GILFILLAN COMPANY.

THE REPORTS SUBMITTED TO US BY YOUR DEPARTMENT ON THIS MATTER RAISE DOUBTS AS TO THE ACTUAL ORIGINS OF THE TECHNICAL INFORMATION CONTAINED IN THE SUPPLEMENTAL HAND-OUT. WE BELIEVE IT IS POSSIBLE ROME AIR MATERIEL AREA AT GRIFFISS AIR FORCE BASE IN NEW YORK, THE PROCURING ACTIVITY, MISUNDERSTOOD COMMUNICATIONS FROM THE TESTING INSTALLATIONS, DYESS AND CARSWELL AIR FORCE BASES, TO INDICATE THAT THIS DATA HAD BEEN DEVELOPED IN -HOUSE WHEN ACTUALLY IT HAD BEEN GATHERED, IN LARGE PART, FROM ASSOCIATIONS WITH HOWELL INSTRUMENTS, INCORPORATED. HOWELL CONTENDS THAT THE IDEA OF INCORPORATING A SYSTEM OF TWELVE ADJUSTABLE FIXED ALIGNMENT VOLTAGES, A VERNIER ADJUSTMENT POTENTIOMETER FOR FINE ADJUSTMENTS OF THE ALIGNMENT VOLTAGES (PLUS OR MINUS 1 VOLT, THE RANGE OF ADJUSTMENT, IS DESCRIBED BY HOWELL ENGINEERS AS BEING PECULIARLY CHARACTERISTIC OF THE HOWELL DIGITAL VOLTMETER AS OPPOSED TO OTHER MAKES), AND 10 TURN, RATHER THAN 5 OR 20 TURN, 50,000 OHM POTENTIOMETERS, INTO THE MODIFICATION KITS, ORIGINATED WITH HOWELL ENGINEERS AND WAS THE PRODUCT OF THEIR EXPENSIVE AND LABORIOUS EXPERIMENTATION. AS WE ARE NOT TECHNICALLY COMPETENT TO JUDGE THE MERITS OF THIS ASPECT OF THE HOWELL PROTEST PAGE THREE OF A HOWELL LETTER TO THIS OFFICE IS INCLUDED AS AN ENCLOSURE TO SHED LIGHT UPON THESE CONTENTIONS.

OUR REVIEW OF THE REPORTS SUBMITTED BY THE AIR FORCE IN THE LIGHT OF THE LAW APPLICABLE TO THE SUBJECT LEADS US TO THE CONCLUSION THAT IT WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT TO TERMINATE THE CONTRACT WITH GAP INSTRUMENT CORPORATION. NONETHELESS, IT APPEARS TO US THAT THE PROTEST MAY HAVE MERIT AND THAT THE COMPANY MIGHT HAVE A LITIGABLE CLAIM AGAINST THE GOVERNMENT FOR UNLIQUIDATED DAMAGES FOR BREACH OF AN IMPLIED CONTRACT TO PURCHASE THE H204 DIGITAL VOLTMETER ASSEMBLY IN THE EVENT IT MET THE GOVERNMENT'S NEEDS, OR IN ANY CASE, TO REFRAIN FROM DISCLOSING ANY INFORMATION ACQUIRED IN CONFIDENCE FROM HOWELL. CF. THE PADBLOC COMPANY, INCORPORATED V. UNITED STATES, CT.CL. NO. 523-57, DECIDED APRIL 5, 1963.

IT WOULD BE APPRECIATED IF THE AIR FORCE WOULD CONDUCT FURTHER INVESTIGATION OF THE FACTS RELATING TO THE PROTESTED PROCUREMENT. IN THE EVENT SUCH INVESTIGATION INDICATES POSSIBLE LIABILITY, IT IS SUGGESTED THAT THE DEPARTMENT CONSIDER THE POSSIBILITY OF EXERCISING THE AUTHORITY TO USE APPROPRIATED FUNDS TO ACQUIRE "DESIGNS, PROCESSES, AND MANUFACTURING DATA" CONFERRED UPON THE HEADS OF MILITARY DEPARTMENTS BY THE ACT OF AUGUST 10, 1956, 70A STAT. 137, 10 U.S.C. 2386, TO NEGOTIATE THE PURCHASE OF THE HOWELL TRADE SECRETS IN THE H204 DIGITAL VOLTMETER ASSEMBLY. IF, ON THE OTHER HAND, FURTHER INVESTIGATION SUPPORTS THE POSITION THAT NO FEDERAL LIABILITY EXISTS, IT IS REQUESTED THAT WE BE SO ADVISED.