B-152843, MAR. 11, 1964

B-152843, MAR. 11, 1964

TO J. A. OTTERBEIN, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 5 AND DECEMBER 6, 1963, IN WHICH YOU PROTEST THE ALLEGEDLY RESTRICTIVE PROVISIONS OF SPECIFICATIONS FOR CANOPY RELEASES FOR PARACHUTES TO BE PROCURED UNDER INVITATIONS NOS. 36-600-64-139, 36-600-64-156 AND 36-600-64-214, ISSUED BY THE OLMSTEAD AIR FORCE BASE, PENNSYLVANIA.

YOU STATE THAT THERE ARE ONLY TWO SOURCES OF SUPPLY FOR CANOPY RELEASES, YOUR FIRM AND THE CAPEWELL MANUFACTURING COMPANY; THAT YOU PREVIOUSLY FURNISHED TO MANUFACTURERS OF PARACHUTES THE STANDARD (OLD) CANOPY RELEASE; AND THAT THE REFERRED-TO INVITATIONS NOW REQUIRE THAT THE PARACHUTES BE EQUIPPED WITH A NEW IMPROVED CAPEWELL CANOPY RELEASE. YOU ALLEGE THAT YOU HAVE BEEN UNABLE TO PROCURE THE SPECIFICATIONS FOR THE NEW CAPEWELL CANOPY RELEASE AND THAT THEREFORE YOU ARE UNABLE TO SUBMIT ANY QUOTATIONS ON A CANOPY RELEASE TO PARACHUTE MANUFACTURERS SUBMITTING BIDS IN RESPONSE TO THE REFERRED-TO INVITATIONS. YOU CONTEND THAT THE CANOPY RELEASE HAS NOW BECOME A SOLE-SOURCE ITEM TO BE SUPPLIED ONLY BY THE CAPEWELL MANUFACTURING COMPANY.

YOU ALSO ALLEGE THAT PRIOR TO THE ISSUANCE OF THE REFERRED-TO INVITATIONS, THE DEPARTMENT OF THE AIR FORCE AWARDED A $10,000 DEVELOPMENT CONTRACT TO THE CAPEWELL MANUFACTURING COMPANY WHICH RESULTED IN THE IMPROVED CAPEWELL CANOPY RELEASE NOW BEING SPECIFIED IN CURRENT PARACHUTE PROCUREMENTS AND THE PROPOSED PROCUREMENT OF MODIFICATION KITS FOR EXISTING STOCKS OF PERSONNEL PARACHUTES. YOU CONTEND THAT IF THE DEPARTMENT OF THE AIR FORCE WAS OF THE OPINION THAT IMPROVEMENT IN THE STANDARD CANOPY RELEASE WAS NECESSARY, THE DEPARTMENT SHOULD HAVE ALSO CONTACTED YOUR FIRM AND GIVEN YOU THE SAME OPPORTUNITY AS GRANTED TO THE CAPEWELL MANUFACTURING COMPANY.

IN REGARD TO THE CANOPY RELEASE THE DEPARTMENT OF THE AIR FORCE STATES IN ITS REPORT AS OLLOWS:

"2. THE ORIGINAL CANOPY RELEASE WAS DEVELOPED BY CAPEWELL. SEVERAL YEARS AGO, IN CONJUNCTION WITH A PROCUREMENT OF RELEASES, CAPEWELL FURNISHED THE APPLICABLE DRAWINGS TO THE GOVERNMENT ON A ,NO CHARGE" BASIS. THE CAPEWELL RELEASES WERE REDESIGNATED AS AIR FORCE PART NUMBERS 60-B-4312 AND 60-B-4313 AND WERE FURNISHED THE VARIOUS HARDWARE MANUFACTURERS. THUS, OTTERBEIN BECAME AN ADDITIONAL SOURCE OF SUPPLY TO THE PARACHUTE INDUSTRY FOR THESE RELEASES.

"3. THE NEW IMPROVED CAPEWELL RELEASE PART NUMBER 100680 AND 100681 WAS DEVELOPED SOLELY BY CAPEWELL ON ITS OWN INITIATIVE AND AT ITS OWN COST. THERE WAS NO RESEARCH AND DEVELOPMENT CONTRACT ISSUED BY THE GOVERNMENT TO CAPEWELL FOR THIS MODIFICATION. CAPEWELL SUBMITTED ONE PROTOTYPE OF THE MODIFIED RELEASE TO THE AERONAUTICAL SYSTEMS DIVISION (ASD) ON 7 MAY 1962. THE PROTOTYPE WAS EVALUATED VISUALLY AND SEVERAL AREAS WHERE IMPROVEMENT WAS REQUIRED WERE EXPLAINED TO CAPEWELL REPRESENTATIVES. SIX IMPROVED ITEMS WERE SUBMITTED BY CAPEWELL ON 28 JUNE 1962 FOR FURTHER EVALUATION. THE SIX ITEMS WERE SUBJECTED TO ULTIMATE STRENGTH, ACCELERATION AND EASE OF OPERATION TESTS. THE MODIFIED RELEASE PROVED TO BE EQUAL TO THE STANDARD RELEASE IN STRENGTH AND WAS CONSIDERED EASIER TO OPERATE.

"4. IN ORDER TO CONDUCT A FULL QUALIFICATION PROGRAM OF THE IMPROVED CAPEWELL RELEASE, CONTRACT AF 33/657/-10480 WAS AWARDED TO CAPEWELL ON 23 JANUARY 1963 FOR 66 PARACHUTE CANOPY RELEASE ASSEMBLIES AND 4 FIELD MODIFICATION KITS IN THE AMOUNT OF $10,006. THESE ITEMS WERE TESTED BY ASD FOR THE PURPOSE OF DETERMINING: (1) A METHOD OF FIELD MODIFICATION, (2) THE STRUCTURAL INTEGRITY OF BOTH FIELD MODIFIED AND CONTRACTOR MANUFACTURED ITEMS, AND (3) THE DEGREE OF SUCCESS ATTAINED IN REDUCING THE TRAINING, DEXTERITY AND FAMILIARITY REQUIRED OPERATING THE STANDARD RELEASE. THE IMPROVED CAPEWELL RELEASE WAS FOUND FULLY QUALIFIED ON 13 SEPTEMBER 1963 AND ADOPTED FOR FUTURE PARACHUTE PROCUREMENTS ON 27 SEPTEMBER 1963.

"5. THE STANDARD (OLD) CANOPY RELEASE IS CONSIDERED INADEQUATE DUE TO THE HIGH FATALITY RATE EXPERIENCED, ESPECIALLY ON OVER-WATER EJECTIONS DUE TO CREW MEMBERS BEING UNABLE TO ACTUATE THE CANOPY RELEASE MECHANISM. THE NEW OR IMPROVED RELEASE IS OPERATIONALLY SUITABLE AND MEETS THE REQUIREMENT FOR AN IMPROVED RELEASE.

"6. THE AIR FORCE HAS DETERMINED THAT THE IMPROVED CAPEWELL RELEASE IS A SAFETY OF FLIGHT ITEM AND IT HAS BEEN SPECIFIED AS A REQUIREMENT IN IFB 36 -600-64-130 FOR 7000 PARACHUTES, IN IFB 36-600-64 156 AND 8456 PARACHUTES AND IFB 36-600-64-214 FOR 1814 PARACHUTES. NO AWARDS HAVE BEEN MADE ON THESE IFB'S PENDING YOUR DECISION ON THIS PROTEST.

"7. IN REGARD TO MODIFICATION KITS FOR EXISTING PARACHUTES, THE AIR FORCE IS CURRENTLY CONSIDERING OBTAINING THE RIGHTS TO THE IMPROVED CAPEWELL RELEASE AND ACCORDINGLY IS IN NO POSITION TO MAKE THEIR DATA OR DRAWINGS AVAILABLE TO OTTERBEIN. AS POINTED OUT BY THE CONTRACTING OFFICER, OTTERBEIN HAS THE SAME OPPORTUNITY AS CAPEWELL TO DESIGN AND DEVELOP AN IMPROVED RELEASE MECHANISM FOR SUBMISSION TO THE AIR FORCE FOR TEST AND APPROVAL.

"8. ACCORDINGLY, IT IS THE POSITION OF THE AIR FORCE THAT UNDER THE CIRCUMSTANCES IT HAS IN CURRENT PROCUREMENTS OF PERSONNEL PARACHUTES SINCE A SAFETY OF FLIGHT ITEM IS INVOLVED AND THE RISK OF LIFE OR LIMB IS NOT A MATTER TO BE COMPROMISED BY SPECIFYING AN OLDER AND INFERIOR TYPE OF RELEASE MECHANISM.'

IT IS, OF COURSE, NOT WITHIN THE PROVINCE OF THIS OFFICE TO DRAFT SPECIFICATIONS FOR THE CONTRACTUAL NEEDS OF ADMINISTRATIVE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT. 17 COMP. GEN. 554. MOREOVER, THE EQUIPMENT REQUIRED BY THE GOVERNMENT IN THIS MATTER IS OF A LIFE-SAVING NATURE AND THE QUESTION AS TO WHAT TYPE OF CANOPY RELEASE IS NEEDED FOR THE PARACHUTES TO MEET THE ACTUAL NEEDS OF THE GOVERNMENT IS FOR DETERMINATION ON THE BASIS OF EXPERT OPINION. WHILE THE LAW REQUIRING ADVERTISING FOR BIDS AND AWARD OF CONTRACTS TO THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER, IN EACH CASE, CONTEMPLATES FREE AND UNRESTRICTIVE COMPETITION, THE FACT THAT A PARTICULAR BIDDER MIGHT BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE NEEDS WILL NOT BE SUFFICIENT TO RENDER THE CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTED. SEE 30 COMP. GEN. 368. FURTHERMORE, IT IS REPORTED THAT WHILE THE MATTER OF A RELEASE MAY, AT THE PRESENT TIME, BE IN A SOLE-SOURCE POSITION, THE PROCUREMENT OF PARACHUTES IS CLEARLY SHOWN TO BE COMPETITIVE BY VIRTUE OF SEVERAL BIDS HAVING BEEN RECEIVED.

ACCORDINGLY, UNDER THE REPORTED FACTS AND CIRCUMSTANCES, THIS OFFICE WOULD NOT BE JUSTIFIED IN HOLDING THAT THAT PART OF THE SPECIFICATIONS PERTAINING TO THE CANOPY RELEASE EXCEEDS THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT AND THAT THE INVITATIONS IN QUESTION ARE LEGALLY DEFECTIVE.