B-155457, FEB. 10, 1965

TO STEWART AVIONICS, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED OCTOBER 23 AND YOUR LETTER DATED OCTOBER 29, 1964, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT UNDER DEPARTMENT OF THE NAVY REQUEST FOR QUOTATIONS NO. 383/901040/65Q TO ANY FIRM OTHER THAN YOUR CORPORATION.

THE CITED REQUEST FOR QUOTATIONS WAS ISSUED ON JULY 9, 1964, BY THE PHILADELPHIA NAVAL AVIATION SUPPLY OFFICE SOLICITING QUOTATIONS FOR FURNISHING STATED QUANTITIES OF SEVEN DIFFERENT ITEMS COVERING CERTAIN PART-NUMBERED ARTICLES OF THE HENRY SPEN AND COMPANY, INC. SINCE THE ARTICLES WERE TO BE USED AS REPLENISHMENT SPARE PARTS FOR EQUIPMENT DESIGNED AND MANUFACTURED BY THE HENRY SPEN AND COMPANY, INC., AND SINCE IT HAS NO DISTRIBUTORS, BIDS WERE SOLICITED ONLY FROM THIS CORPORATION. MOREOVER, THE REQUEST FOR QUOTATIONS IS SUPPORTED BY A SOLE-SOURCE PROCUREMENT CERTIFICATION FOR EACH OF THE SEVEN ITEMS INVOLVED. ADDITION TO THE QUOTATIONS RECEIVED BY THE NAVAL AVIATION SUPPLY OFFICE FROM THE HENRY SPEN AND COMPANY, INC., WHICH APPEAR TO TOTAL $57,177.01 FOR ALL ITEMS, YOU ALSO SUBMITTED A BID ON SIX OF THE SEVEN ITEMS REQUIRED. YOU ADVISE THAT YOUR AGGREGATE BID FOR ALL QUANTITIES COVERED BY ITEMS NOS. 1 THROUGH 6 WAS $27,541.93 WHICH EXCLUDED ITEM NO. 4 ON WHICH YOU DID NOT BID. THE UNSOLICITED QUOTATIONS SUBMITTED BY YOU WERE CONSIDERED BY THE GOVERNMENT CONTRACTING OFFICER, BUT BASED ON THE TECHNICAL ADVICE RECEIVED FROM THE AVIATION SUPPLY OFFICE THE CONTRACTING OFFICER DETERMINED THAT IT WAS NOT POSSIBLE TO MAKE A TIMELY JUDGMENT AS TO WHETHER THE ALTERNATE MATERIAL WHICH YOU PROPOSED TO FURNISH WAS EQUAL TO AND INTERCHANGEABLE WITH, THE MATERIAL SPECIFIED IN THE REQUEST FOR QUOTATIONS. THE RECORD INDICATES THAT CONTRACT NO. N383-89559A WAS ENTERED INTO ON OCTOBER 23, 1964, BY THE CONTRACTING OFFICER WITH HENRY SPEN AND COMPANY, INC., AND THAT A PROTEST OF THIS AWARD WAS RECEIVED FROM YOU BY THE AVIATION SUPPLY OFFICE ON THE SAME DAY.

YOUR BASIC CONTENTIONS APPEAR TO BE THAT YOUR BID WAS APPROXIMATELY $30,000 LOWER THAN THAT OF HENRY SPEN AND COMPANY, INC., AND THAT THE NAVAL ISSUING INSTALLATION WAS IN POSSESSION OF TECHNICAL DATA OR OTHER INFORMATION IN ONE FORM OR ANOTHER FROM WHICH IT COULD HAVE BEEN ASCERTAINED THAT THE PRODUCTS YOU INTENDED TO FURNISH WERE EQUAL TO, AND INTERCHANGEABLE WITH, THOSE SPECIFIED IN THE REQUEST FOR QUOTATIONS.

WITH RESPECT TO THE EVALUATION OF THE QUOTATIONS SUBMITTED BY YOU ON ITEMS NOS. 1, 2, 3, 5, 6 AND 7 THE AVIATION SUPPLY OFFICE REPORTS THE FOLLOWING FINDINGS IN ITS MEMORANDUM DATED NOVEMBER 27, 1964:

"2. WITH REGARD TO ITEM 1 OF RFQ 383/901040/65Q, OF 9 JULY 1964, ASO TECHNICAL PERSONNEL DID DETERMINE PRIOR TO THE ISSUANCE OF RFQ 383/261226/63 OF 7 DECEMBER 1962, THAT STEWART AVIONICS, INC. (STEWART) P/N 144131 WAS INTERCHANGEABLE WITH HENRY SPEN AND CO., INC. (SPEN) P/N 144131. THAT TECHNICAL DETERMINATION HAS NOT BEEN CHANGED OR REVOKED, BUT ASO'S RECORDS, THROUGH INADVERTENCE, WERE NEVER UPDATED TO RECORD OR OTHERWISE REFLECT THE DETERMINATION OF INTERCHANGEABILITY. AS A CONSEQUENCE OF THAT INADVERTENCE, ASO TECHNICAL PERSONNEL, WHEN PROCESSING THE REQUISITION COVERED BY RFQ 383/901040/65Q AND UPON ASCERTAINING THAT DESCRIPTIVE DATA WAS NOT PHYSICALLY AVAILABLE TO ASO FOR COMPETITIVE PROCUREMENT OF THE REQUIRED MANIFOLD BAR ASSEMBLY, CERTIFIED THE REQUIRED MANIFOLD BAR ASSEMBLY TO BE SPEN P/N 144131. IT IS NOTED THAT STEWART QUOTED ON FURNISHING STEWART P/N B9040 (NOT STEWART P/N 144131) FOR ITEM 1 OF RFQ 383/901040/65Q. ASO HAS NO DATA COVERING STEWART P/N B9040 AND DOES NOT OTHERWISE KNOW WHETHER IT IS IDENTICAL TO OR INTERCHANGEABLE WITH STEWART P/N 144131. HAD STEWART REMINDED ASO TECHNICAL PERSONNEL OF ITS PRIOR DETERMINATION THAT STEWART P/N 144131 WAS FUNCTIONALLY INTERCHANGEABLE WITH SPEN P/N 144131, ASO TECHNICAL PERSONNEL WOULD, UNDOUBTEDLY, HAVE RECONSIDERED ITS SOLE-SOURCE CERTIFICATION TO SPEN FOR ITEM 1 OF THE RFQ.

"3. WITH REGARD TO ITEM 3 OF RFQ 383/901040/65Q, ON 31 AUGUST 1964 STEWART WAS AWARDED CONTRACT N383-89029A PROVIDING FOR A QUANTITY OF AIR CYLINDER ASSEMBLIES CONFORMING TO THE REQUIREMENTS OF BUWEPS DRAWING NO. 60A80. THIS DRAWING REFERENCES A PERFORMANCE SPECIFICATION IN ESTABLISHING THE REQUIREMENTS OF THE REGULATOR TO BE INCORPORATED AS A COMPONENT OF THE AIR CYLINDER ASSEMBLY. THE DESIGN AND THE DETAILS OF THE REGULATOR ARE NOT SPECIFIED IN, OR CONTROLLED BY, THAT PERFORMANCE SPECIFICATION. SINCE STEWART HAS NOT RECEIVED PREPRODUCTION APPROVAL FROM THE GOVERNMENT UNDER CONTRACT N383-89029A FOR THE REQUIRED AIR CYLINDER ASSEMBLIES (NO PREPRODUCTION SAMPLE HAS YET BEEN FURNISHED), ASO DOES NOT KNOW THE DESIGN OF THE REGULATOR THAT STEWART WILL USE IN THE PERFORMANCE OF ITS CONTRACT AND, THEREFORE, IS NOT IN A POSITION TO MAKE A DETERMINATION THAT STEWART WILL USE AN ADJUSTING SCREW IN ITS REGULATOR OR THAT, IF SUCH A SCREW IS USED, THAT IT WILL BE FUNCTIONALLY INTERCHANGEABLE WITH SPEN P/N 100581 WHEN USED IN A SPEN-MANUFACTURED REGULATOR. IN THIS CONNECTION, ITEM 3 OF THE RFQ 383/901040/65Q COVERS AN ADJUSTING SCREW TO PROVIDE REPLACEMENT SPARES FOR SPEN-MANUFACTURED REGULATORS (SPEN P/N 300287). DESCRIPTIVE DATA IS NOT AVAILABLE TO ASO FOR COMPETITIVE PROCUREMENT OF THE REQUIRED ADJUSTING SCREW.

"4. WITH REGARD TO ITEM 5 OF RFQ 383/901040/65Q, STEWART DID SUPPLY THE GOVERNMENT WITH A QUANTITY OF LOW PRESSURE ADAPTERS (A COMPONENT OF AN OXYGEN TRAILER) UNDER CONTRACT N383-78023A. THE ADAPTERS FURNISHED BY STEWART INCORPORATED A FRANGIBLE DISC, STEWART P/N A9038; HOWEVER, THAT DISC IS DIMENSIONALLY DIFFERENT FROM AND NOT INTERCHANGEABLE WITH, SPEN P/N 144-102491, THE FRANGIBLE DISC REQUIRED BY ITEM 5 OF RFQ 383/901040/65Q. SPEN P/N 144-102491 IS SATISFACTORY FOR USE ON SPEN- MANUFACTURED HIGH AND LOW PRESSURE ADAPTERS, AS WELL AS FOR USE ON STEWART -MANUFACTURED LOW PRESSURE ADAPTERS (STEWART DOES NOT SUPPLY THE NAVY WITH A HIGH PRESSURE ADAPTER), BUT STEWART P/N A9038 CREATES A SAFETY HAZARD IF USED ON EITHER SPEN-MANUFACTURED HIGH OR LOW PRESSURE ADAPTERS. APART FROM THE CONTROLLING SAFETY FACTOR, IT IS NOTED THAT THE SPEN-MANUFACTURED FRANGIBLE DISC IS LESS COSTLY THAN THE STEWART-MANUFACTURED FRANGIBLE DISC. (SEE EXHIBIT E.) ASO DOES NOT HAVE DESCRIPTIVE DATA FOR COMPETITIVE PROCUREMENT OF THE FRANGIBLE DISC.

"5. WITH REGARD TO ITEM 6 OF RFQ 383/901040/65Q, FEDERAL STOCK NUMBER RM1740-573-6078-S030 IDENTIFIES A HOSE ASSEMBLY DESCRIBED, IN PART, BY BUWEPS DRAWING NO. 55A47A10. HOWEVER, THIS DRAWING IS NOT AVAILABLE TO ASO FROM THE NAVAL AIR TECHNICAL SERVICES FACILITY, PHILADELPHIA, A., THE OFFICIAL NAVY REPOSITORY FOR DRAWINGS. MOREOVER, ASO WAS AWARE THROUGH PREVIOUS PROCUREMENTS THAT THIS DRAWING IS INADEQUATE FOR COMPETITIVE PROCUREMENT PURPOSES BECAUSE IT LACKS THE TECHNICAL SPECIFICATIONS DESCRIBING THE MATERIALS REQUIRED IN THE MANUFACTURE OF THE HOSE ASSEMBLY.

"6. WITH REGARD TO ITEMS 2 AND 7 OF RFQ 383/901040/65Q, ASO HAS NO DATA COVERING THE SPEN PART NUMBERS SPECIFIED BY THOSE ITEMS, HAS NO EXPERIENCE RELATIVE TO THE PARTS QUOTED ON BY STEWART AND WAS NOT, EVEN HAD STEWART FURNISHED ASO WITH COMPLETE DATA DESCRIBING THE PARTS HE QUOTED ON, IN A POSITION TO EVALUATE STEWART'S QUOTE FOR ITEMS 2 AND 7 OF THE RFQ.'

WE BELIEVE THAT THE FOREGOING FINDINGS CLEARLY ESTABLISH THE FACT THAT THERE WERE CONSIDERED THE UNSOLICITED QUOTATIONS SUBMITTED BY YOU FOR FURNISHING ALTERNATE MATERIAL BUT THAT DUE EITHER TO THE LIMITED INFORMATION THAT WAS AVAILABLE TO THE AVIATION SUPPLY OFFICE TECHNICAL PERSONNEL OR TO THE COMPLETE LACK OF CERTAIN DATA, THAT GOVERNMENT OFFICE WAS UNABLE TO MAKE A TIMELY JUDGMENT THAT THE ALTERNATE MATERIAL QUOTED UPON BY YOU WAS EQUAL TO, AND INTERCHANGEABLE WITH, THE MATERIAL SPECIFIED IN THE SUBJECT REQUEST FOR QUOTATIONS. IN THIS CONNECTION, OUR OFFICE CONSISTENTLY HAS HELD THAT THE DETERMINATION AS TO WHETHER A PARTICULAR PRODUCT OFFERED BY A BIDDER COMPLIES WITH SPECIFICATION REQUIREMENTS--- IN THIS INSTANCE WHETHER THE PRODUCTS UPON WHICH YOU SUBMITTED QUOTATIONS WERE EQUAL TO, OR INTERCHANGEABLE WITH, THE SPECIFIED SPEN PRODUCTS REQUIRED--- IS PRIMARILY A FUNCTION OF THE DEPARTMENT OR AGENCY CHARGED WITH THE ADMINISTRATION OF THE CONTRACT. SUCH A DETERMINATION MUST, OF NECESSITY, BE BASED UPON THE AVAILABILITY OF CERTAIN FACTUAL INFORMATION TO THE DEPARTMENT OR AGENCY CONCERNED PRIOR TO AWARD AND, IN THE ABSENCE OF A SHOWING OF BAD FAITH OR THE LACK OF A REASONABLE FACTUAL BASIS FOR THE DETERMINATION, OUR OFFICE WILL NOT OBJECT TO THE CONCLUSION REACHED. THERE IS NEITHER ANY SHOWING IN THE RECORD BEFORE US OF BAD FAITH OR THE LACK OF SUCH A REASONABLE FACTUAL BASIS FOR THE DETERMINATION MADE BY THE AVIATION SUPPLY OFFICE IN THIS MATTER. IT MIGHT BE ADDED HERE THAT WITH RESPECT TO ITEM NO. 1 ON WHICH THE INADVERTENCE OF THE ADMINISTRATIVE OFFICE OCCURRED IN THE DESCRIPTION OF THE ITEM, THE HENRY SPEN AND COMPANY, INC., HAS ADVISED THAT ITS PERFORMANCE IN CONNECTION WITH THIS ITEM WAS APPROXIMATELY 80 PERCENT COMPLETE AS OF NOVEMBER 20, 1964.

IN SUMMATION THE AVIATION SUPPLY OFFICE ADVISES THAT DATA IS NOT AVAILABLE TO COMPETITIVELY PROCURE ANY OF THE ITEMS COVERED BY THE REQUEST FOR QUOTATIONS NO. 383/901040/65Q. THAT OFFICE ALSO ADVISES THAT IT IS NOT ABLE TO DESCRIBE ITS REQUIREMENTS FOR THE REPLACEMENT SPARE PARTS REQUIRED OTHER THAN BY SPECIFIED SPEN PART NUMBERS EXCEPT, OF COURSE, FOR ITEM NO. 1, WHERE THE STEWART P/N 144131 HAS BEEN DETERMINED TO BE INTERCHANGEABLE WITH SPEN P/N 144131.

ACCORDINGLY, WE FIND NO LEGAL OBJECTION TO THE ACTION TAKEN BY THE DEPARTMENT OF THE NAVY IN AWARDING CONTRACT NO. N383-89559A TO THE HENRY SPEN AND COMPANY, INC., AND, THEREFORE, YOUR PROTEST IS DENIED.