B-156757, DEC. 27, 1965

B-156757, DEC. 27, 1965

TO THE ACTECH CORPORATION, 5619 TULIP STREET:

REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF MAY 12, 1965, WITH ENCLOSURES, AND YOUR LETTER OF MAY 13, 1965, PROTESTING AGAINST CERTAIN PROCUREMENT PRACTICES UNDER INVITATION FOR BIDS NO. 383-989 65, ISSUED BY THE UNITED STATES AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA.

THE SUBJECT INVITATION, ISSUED ON APRIL 8, 1965, WITH AN OPENING DATE OF MAY 3, 1965, SOLICITED BIDS FOR THE FURNISHING OF COMPENSATING ADAPTERS TO BE USED ON THE MA-1 COMPASS SYSTEM FOR INSTALLATION IN PRODUCTION AIRCRAFT. THE ADAPTER REQUIRED UNDER THIS PROCUREMENT IS NOT A COMPONENT OF THE MA-1 SYSTEM, BUT RATHER IT IS ONE OF FOUR SIMILAR ADAPTERS USED AS AN ACCESSORY TO THE SYSTEM. ONLY ONE ADAPTER IS USED WITH THE SYSTEM, AND THE ONE SELECTED OF THE FOUR AVAILABLE IS DETERMINED BY THE AIRCRAFT MODEL IN WHICH THE SYSTEM IS TO BE INSTALLED.

IT IS REPORTED THAT 54 BID SETS WERE FURNISHED TO PROSPECTIVE SUPPLIERS DURING THE SOLICITATION PERIOD. AMENDMENT NO. 1, DATED APRIL 26, 1965, WAS ISSUED TO INCREASE THE STEPLADDER QUANTITIES, TO DELETE THE SPECIFICATION REQUIREMENTS FOR INTERCHANGEABILITY OF REORDERED UNITS, AND TO DELETE THE REQUIREMENT FOR FURNISHING TO THE SUCCESSFUL BIDDER THREE ITEMS OF GOVERNMENT-FURNISHED PROPERTY (GFP) LISTED IN THE INVITATION. ALSO, AMENDMENT NO. II, DATED APRIL 28, 1965, CORRECTED AN ERROR IN THE LOWEST STEPLADDER QUANTITY AND PROVIDED FOR AN EXTENSION OF THE OPENING DATE TO MAY 12, 1965. FOUR BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE OVERALL HIGH BIDDER ON EACH OF THE QUANTITIES WAS YOUR FIRM, ACTECH. MOREOVER, YOUR FIRM CONDITIONED ITS BID ON THE AVAILABILITY OF THE GFP WHICH HAD BEEN DELETED BY AMENDMENT NO. I TO THE INVITATION.

IN YOUR PROTEST TO OUR OFFICE, YOU HAVE ALLEGED THAT THE PROCURING AGENCY'S ACTION UNDER AMENDMENT NO. I, IN DELETING THREE ITEMS OF GOVERNMENT-FURNISHED PROPERTY, NAMELY A MODEL OF THE ADAPTER, AN OVERHAUL HANDBOOK, AND AN ILLUSTRATED PARTS BREAKDOWN, WAS PREJUDICIAL TO THE OTHER BIDDERS BY GIVING THE GENERAL ELECTRIC COMPANY A FAVORED POSITION IN THE PROCUREMENT. YOU ALSO IMPLY THAT THE PURPOSE OF NOT FURNISHING TECHNICAL PUBLICATIONS TO INTERESTED BIDDERS WOULD RESULT IN GENERAL ELECTRIC COMPANY BECOMING THE SOLE SOURCE SUPPLIER IN THIS SITUATION.

IN RESPECT TO THE FOREGOING, THE PROCURING AGENCY HAS POINTED OUT THAT AMENDMENT NO. I, TO WHICH YOU OBJECTED, ALSO CHANGED THE SPECIFICATION TO DELETE THE REQUIREMENT FOR COMPLETE INTERCHANGEABILITY WITH ADAPTERS PRESENTLY IN THE SYSTEM, THUS ELIMINATING THE NEED FOR THE PREVIOUSLY MENTIONED ITEMS OF GOVERNMENT-FURNISHED PROPERTY. THIS DELETION WAS BASED ON AN ADMINISTRATIVE DETERMINATION THAT THE PERFORMANCE SPECIFICATION FOR THE MA EQUALS 1 COMPENSATING ADAPTER, MIL-A-22424 (WEP) AS AMENDED, AND DRAWING MS28107-2 (REVISION C), ARE ADEQUATE TO INSURE THAT THE PRESENT FIT, FORM AND FUNCTION INTERCHANGEABILITY REQUIREMENTS WILL BE SATISFIED. IN MAKING THIS CHANGE, IT WAS THE PROCURING AGENCY'S INTENTION TO RELAX THE SPECIFICATION, THEREBY INCREASING COMPETITIVE INTEREST IN THE PROCUREMENT.

CONCERNING YOUR CLAIM THAT THE INVITATION WAS INVALID, PRESUMABLY BECAUSE OF THE DELETION OF THE GOVERNMENT-FURNISHED PROPERTY, IT SHOULD BE NOTED THAT THE ITEMS OF GOVERNMENT-FURNISHED PROPERTY LISTED IN THE INVITATION AT THE TIME IT WAS ISSUED, BUT LATER DELETED BY AMENDMENT NO. I, WERE TO BE FURNISHED TO THE SUCCESSFUL BIDDER ONLY AFTER CONTRACT AWARD, AND WERE NEVER INTENDED FOR USE IN BID PREPARATION. THEREFORE, THE PROCURING AGENCY'S ACTION IN DELETING THE GOVERNMENT-FURNISHED PROPERTY BY AMENDMENT COULD NOT HAVE AFFECTED ACTECH'S OR ANY OTHER BIDDER'S ABILITY TO SUBMIT A RESPONSIVE, COMPETITIVE BID, AND SUCH ACTION COULD NOT BE CONSIDERED AS RENDERING THE SUBJECT INVITATION DEFECTIVE. IN THIS CONNECTION, IT IS REPORTED THAT A BIDDER OTHER THAN GENERAL ELECTRIC WAS THE LOW RESPONSIVE AND RESPONSIBLE BIDDER UNDER THE SUBJECT INVITATION. MOREOVER, THE INVITATION PROVIDED THAT THE SUCCESSFUL BIDDER WOULD BE FURNISHED WITH A MODEL OF THE MA-1 COMPASS SYSTEM FOR THE PURPOSE OF TESTING THE ADAPTER TO INSURE COMPATIBILITY WITH THE SYSTEM.

IN YOUR LETTER OF PROTEST YOU LIST CERTAIN QUESTIONS DEALING PRIMARILY WITH CERTAIN OF THE PROCURING AGENCY'S PROCEDURES AND DETERMINATIONS UNDER THIS PROCUREMENT. FOR YOUR INFORMATION, WE ARE SUPPLYING THE CONTRACTING OFFICER'S ANSWERS TO YOUR QUESTIONS:

"A. THE PROCUREMENT OF THE MA-1 COMPASS SYSTEM WAS FOR SYSTEM COMPONENTS WHICH REFERENCED GE PART NUMBERS. AS THIS WAS A SOLE SOURCE PROCUREMENT FROM GE, THE DEVELOPER AND ONLY ESTABLISHED PRODUCER OF THE COMPONENTS, THE FURNISHING BY THE GOVERNMENT OF SAMPLE COMPONENTS OBVIOUSLY WAS NOT A REQUIREMENT. HAD IT BEEN NECESSARY, SAMPLE COMPONENTS WOULD HAVE BEEN FURNISHED.

"B. THIS QUESTION IS INTERPRETED AS ASKING WHY (I) ASO CAN PROCURE THE ADAPTER COMPETITIVELY USING ONLY SPECIFICATIONS BUT (II) CANNOT PROCURE THE MA-1 COMPASS SYSTEM COMPETITIVELY USING ONLY SPECIFICATIONS. ASIDE FROM THE FACT THAT IN COMPARISON WITH THE HIGHLY COMPLEX MA-1 COMPASS SYSTEM THE COMPENSATING ADAPTER IS A RELATIVELY SIMPLE EQUIPMENT, ASO IS ABLE TO PROCURE THE ADAPTER COMPETITIVELY BECAUSE IT CAN PROVIDE TO PROSPECTIVE SUPPLIERS A DETAILED SPECIFICATION AND MS DRAWINGS SUFFICIENT IN DESIGN DETAILS TO ENSURE ADAPTER COMPATIBILITY WITH THE MA-1 SYSTEM, AND END ASSEMBLY INTERCHANGEABILITY (FIT, FORM AND FUNCTION ONLY) AS REQUIRED BY THE SPECIFICATION. AS PREVIOUSLY MENTIONED, A SAMPLE MA-1 COMPASS SYSTEM IS ALSO FURNISHED THE SUCCESSFUL BIDDER FOR TESTING PURPOSES.

"WITH REGARD TO (II), THE REASONS WHY THE MA-1 COMPASS SYSTEM CANNOT BE PROCURED COMPETITIVELY HAVE PREVIOUSLY BEEN STATED IN CONSIDERABLE DETAIL IN ASO'S STATEMENT OF FACTS SUBMITTED IN CONNECTION WITH THE H. O. BOEHME PROTEST UNDER RFQ 383/518069/64Q (REFERENCE COMP. GEN. DECISION B-152866 OF 7 FEBRUARY 1964) AND MORE RECENTLY THE ACTECH PROTEST UNDER RFQ PR19-65 -5011WEPS/89Q WHICH IS PRESENTLY BEING CONSIDERED BY GAO. BRIEFLY RESTATED, THE GE MA-1 COMPASS SYSTEM CANNOT BE PROCURED COMPETITIVELY FOR THE FOLLOWING REASONS:

"/1) THE AVAILABLE PERFORMANCE TYPE SPECIFICATION AND MS DRAWINGS ARE NOT IN SUFFICIENT DETAIL TO ENABLE ANY FIRM OTHER THAN GE TO PRODUCE A FACSIMILE SYSTEM INCORPORATING ASSEMBLY, SUB-ASSEMBLY AND REPLACEABLE PARTS INTERCHANGEABILITY AS REQUIRED BY THE SPECIFICATION FOR REORDERED EQUIPMENT;

"/2) EVEN IF ANOTHER FIRM SUBMITTED DATA INTENDED TO SHOW THAT ITS UNIT WOULD BE IDENTICAL IN ALL RESPECTS TO THE GE UNIT, THE GOVERNMENT WOULD BE UNABLE TO EVALUATE THIS CLAIM SINCE IT DOES NOT HAVE CORRESPONDING DATA DESCRIBING THE GE SYSTEM (INCLUDING PARTS AND COMPONENTS) AGAINST WHICH TO EVALUATE NEW DATA;

"/3) THE GOVERNMENT HAS NO WAY TO TEST A DIFFERENT UNIT TO DETERMINE ITS INTERCHANGEABILITY WITH THE GE UNITS PRESENTLY INSTALLED OR TO BE INSTALLED IN AIRCRAFT MODELS CONFIGURED TO ACCEPT ONLY THE GE UNIT; FURTHER, EVEN IF THE GOVERNMENT WERE IN THE POSITION TO CONDUCT A PERFORMANCE TEST ON A PREPRODUCTION SAMPLE OF A NEW UNIT, THIS TEST ALONE WOULD NOT ASSURE THAT UNITS INSTALLED IN AIRCRAFT WOULD OPERATE SATISFACTORILY; TO DETERMINE THE LATTER CAPABILITY WOULD REQUIRE EXTREMELY EXPENSIVE AND TIME-CONSUMING EVALUATION TESTS, INCLUDING FLIGHT TESTS, RELIABILITY TESTS, AND ENVIRONMENTAL TESTS.

"C. THE TECHNICAL PUBLICATIONS DELETED BY AMENDMENT I RELATED TO THE COMPENSATING ADAPTER ONLY, AND NOT TO THE MA-1 SYSTEM. SINCE ONLY END ASSEMBLY INTERCHANGEABILITY IS NOW REQUIRED OF THE ADAPTER, THE PUBLICATIONS AS WELL AS A SAMPLE ADAPTER ARE NOT NEEDED BY MANUFACTURERS. CALIBRATION, CHECKING, AND TESTING OF THE GOVERNMENT FURNISHED MA-1 COMPASS SYSTEM CAN BE ACCOMPLISHED BY UTILIZING THE MA 1 COMPASS SYSTEM SPECIFICATION, MIL-C-17858.

"D. AS STATED IN PARAGRAPH 4 ABOVE, THE SPECIFICATION CHANGE INCLUDED IN AMENDMENT I WHICH DELETED THE REQUIREMENT FOR COMPLETE INTERCHANGEABILITY WITH EXISTING UNITS ELIMINATED THE NEED FOR FURNISHING A SAMPLE OF THE ADAPTER AND RELATED TECHNICAL PUBLICATIONS.'

UNDER THE CIRCUMSTANCES WE DO NOT FIND THAT THE SPECIFICATIONS WERE RESTRICTIVE OR THAT THE PROCUREMENT WAS NOT CONDUCTED IN ACCORDANCE WITH THE COMPETITIVE BIDDING STATUTES. WE, THEREFORE, SEE NO LEGAL BASIS FOR OBJECTION TO THE ADMINISTRATIVE ACTION IN THIS MATTER, AND YOUR PROTEST IS DENIED.