B-161117, APR. 4, 1967

B-161117, APR. 4, 1967

TO MR. E. J. SIFF, GENERAL MANAGER:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 21, 1967, PROTESTING AGAINST THE REJECTION OF YOUR UNSOLICITED PROPOSAL SUBMITTED TO THE NAVY AVIATION SUPPLY OFFICE (ASO) UNDER REQUEST FOR PROPOSALS (RFP) N00383-67-518049P ISSUED ON AUGUST 11, 1966, FOR 3-AXIS RATE SENSORS, PART NO. 15844-5A OR 300385.

YOU STATE THAT THE REJECTION OF YOUR COMPANY'S PROPOSAL WAS ARBITRARY AND NOT IN THE BEST INTERESTS OF THE GOVERNMENT BECAUSE YOUR COMPANY WAS DENIED REPEATED REQUESTS FOR MEETINGS WITH ASO TO FURNISH INFORMATION REGARDING YOUR PRODUCT, AND BECAUSE PURCHASE OF THE END ITEM FROM YOUR COMPANY ON THE LAST TWO PROCUREMENTS WOULD HAVE SAVED THE GOVERNMENT ABOUT $100,000. YOU ALSO ADVISE THAT ENVIRONMENTAL TESTING OF YOUR COMPANY'S PRODUCT IN LIEU OF THE REQUIRED FLIGHT TESTING WOULD HAVE BEEN SUFFICIENT SINCE THE FORMER IS MORE SEVERE.

HOWEVER, ASO HAS ADVISED THAT REPRESENTATIVES OF YOUR COMPANY HAD DISCUSSIONS WITH THAT ACTIVITY AND THAT AS A RESULT OF SUCH CONVERSATIONS IT WAS REVEALED BY YOUR COMPANY THAT ALTHOUGH IT WAS QUOTING WITHOUT EXCEPTION TO THE REQUIREMENTS OF THE UNITED STATES TIME CORPORATION PART NUMBER DESIGNATED IN THE RFP, IT ACTUALLY WAS RELYING UPON SPECIFICATIONS FOR BENDIX CORPORATION PART NUMBER 15844 3A, WHEREAS PARTNUMBER 15844-5A WAS THE BENDIX NUMBER DESIGNATED IN THE RFP. IN THIS CONNECTION, IT IS OBSERVED THAT THE RFP SOLICITED OFFERS FOR 3-AXIS RATE SENSORS FOR USE ON TA4E AIRCRAFT AND THAT THE PART NUMBERS DESIGNATED IN THE RFP WERE UNITED STATES TIME CORPORATION AND BENDIX CORPORATION PART NUMBERS. ASO HAS STATED THAT THE PROCUREMENT WAS INTENDED TO BE LIMITED TO EITHER OF THESE TWO SOURCES BECAUSE THE ARTICLE IS A REPLACEMENT PART FOR EQUIPMENT SPECIALLY DESIGNED BY BENDIX AND ONLY BENDIX AND ITS VENDOR, UNITED STATES TIME, HAVE PREVIOUSLY BEEN APPROVED AS SOURCES BY DOUGLAS AIRCRAFT CORPORATION, THE PRIME BUILDER OF THE AIRCRAFT. ASO ALSO ADVISED THAT DATA IS NOT AVAILABLE TO ASSURE THAT THE COMPONENT IF MANUFACTURED BY AN UNAPPROVED SOURCE WOULD PERFORM THE SAME AS THE COMPONENT IT WOULD REPLACE.

ASO HAS STATED THAT ALTHOUGH CERTAIN FACETS OF ENVIRONMENTAL TESTING ARE MORE SEVERE THAN FLIGHT TESTING, THE TESTS ARE NOT DUPLICATIVE AND ONE CANNOT BE SUBSTITUTED FOR THE OTHER. IN THIS REGARD, IT IS INDICATED THAT WHEREAS ENVIRONMENTAL TESTING WOULD TEST THE SENSOR ALONE, THE FLIGHT TESTING WOULD TEST THE SENSOR AS AN INTEGRAL AND FUNCTIONING COMPONENT OF THE AUTOMATIC GUIDANCE SYSTEM IN ACTUAL OPERATION. IN THIS CONNECTION, IT IS STATED THAT THE SENSOR IS ONE OF 18 COMPONENTS OF AN AUTOMATIC FLIGHT CONTROL SYSTEM PROVIDING ASSISTANCE AND RELIEF TO A PILOT THROUGH ITS AUTOMATIC GUIDANCE FUNCTIONS AND THAT ITS PROPER OPERATION IS IMPORTANT BECAUSE OF THE PROBABILITY OF LOSS OF LIFE AND AIRCRAFT IF IT FAILS IN FLIGHT. IT IS STATED FURTHER THAT THE INTEGRITY AND COMPATIBILITY OF THE SENSOR TO THE SYSTEM CAN ONLY BE ASSURED THROUGH FLIGHT TESTING. IT IS POINTED OUT THAT THE FLIGHT TEST IS A REQUIREMENT OF MILITARY SPECIFICATION MIL-C-18244A (WEP) COVERING THE GUIDANCE SYSTEM OF WHICH THE SENSOR IS A PART AND OF DOUGLAS AIRCRAFT SPECIFICATION 7668045-517 CITED IN THE RFP.

FURTHER, ALTHOUGH YOU STATE THAT THE GOVERNMENT COULD HAVE SAVED ABOUT $100,000 IF THE LAST TWO CONTRACTS FOR THE SENSORS HAD BEEN PLACED WITH YOUR COMPANY, IT APPEARS THAT THE TOTAL DIFFERENCE BETWEEN YOUR COMPANY'S PROPOSAL AND THE NEXT LOW PROPOSAL SUBMITTED BY UNITED STATES TIME, THE SUCCESSFUL OFFEROR, FOR THE 44 UNITS FOR WHICH THE CONTRACT WAS AWARDED TO IT ON FEBRUARY 9, 1967, WAS $1,936 ($76,956 VERSUS $75,020). FURTHER, ASO HAS ADVISED THAT YOUR COMPANY DID NOT SUBMIT A QUOTATION FOR THE PREVIOUS TWO CONTRACTS SO THAT ANY POTENTIAL SAVINGS CANNOT BE EVALUATED WITH ANY CERTAINTY. IN ANY EVENT, IN THE ABSENCE OF TESTING WHICH ASO HAS INDICATED IS NECESSARY TO LOOK TO THE SAFETY OF LIFE AND AIRCRAFT, THE SAVING THAT YOU SAY WOULD HAVE BEEN ACHIEVED IS NOT MEANINGFUL. MOREOVER, THERE IS NO POINT IN PURCHASING EQUIPMENT FROM THE LOWEST OFFERORS WHEN THE EQUIPMENT DOES NOT MEET THE GOVERNMENT'S REQUIREMENTS.

ADDITIONALLY, THE CONTRACTING OFFICER MADE A DETERMINATION AS FOLLOWS TO RESTRICT THE CONTRACT FOR THE SENSORS TO EITHER BENDIX OR UNITED STATES TIME:

"DETERMINATION AND FINDINGS

"JUSTIFICATION FOR NEGOTIATION OF INDIVIDUAL CONTRACT FOR SUPPLIES OR SERVICES FOR WHICH IT IS IMPRACTICABLE TO SECURE COMPETITION.

"REQN. NO. 383/518049/67

"TO BE NEGOTIATED WITH BENDIX CORP., ECLIPSE-PIONEER

DIVISION

U.S. TIME CORPORATION

"STATEMENT

"UPON THE BASIS OF THE FACTS RECITED BELOW, THE PROPOSED CONTRACT MAY BE NEGOTIATED WITHOUT FORMAL ADVERTISING PURSUANT TO THE AUTHORITY OF 10 U.S.C. 2304 (A) (10) AS IMPLEMENTED BY PARAGRAPH 3-210.2/XV) OF THE ARMED SERVICES PROCUREMENT REGULATION.

"FINDINGS

"1. THE PROPOSED CONTRACT PROVIDES FOR THE FURNISHING OF SENSOR, 3 AXIS RATE, BEING PROCURED AS INSTALLATIONS IN SUPPORT OF THE VARIOUS AIRCRAFT.

"2. THE SENSORS ARE TO BE FURNISHED IN ACCORDANCE WITH THE ABOVE MANUFACTURER'S PART NUMBERS. AVAILABLE DATA ARE INADEQUATE FOR MANUFACTURE BY OTHER THAN THE ABOVE MENTIONED COMPANIES.

"3. IT IS IMPRACTICABLE TO FORMALLY ADVERTISE THIS REQUIREMENT AS THE AFOREMENTIONED COMPANIES ARE THE ONLY KNOWN SOURCES POSSESSING MANUFACTURING DATA AND WHO ARE SUFFICIENTLY FAMILIAR WITH THE DESIGN AND ENGINEERING DETAILS TO PRODUCE AN ACCEPTABLE ITEM.

"DETERMINATION

"THE USE OF A NEGOTIATED CONTRACT, WITHOUT FORMAL ADVERTISING, IS JUSTIFIED BECAUSE IT IS IMPRACTICABLE TO SECURE COMPETITION FOR THE SUPPLIES TO BE OBTAINED THEREUNDER, THESE BEING OBTAINABLE FROM THE ABOVE NAMED CONTRACTORS, WHICH ARE THE ONLY SOURCES OF SUPPLY.'

ASPR 3-210.2/XV) CITED IN THE DETERMINATION AND FINDINGS PROVIDES FOR NEGOTIATION---

"WHEN THE CONTEMPLATED PROCUREMENT IS FOR PARTS OR COMPONENTS BEING PROCURED AS REPLACEMENT PARTS IN SUPPORT OF EQUIPMENT SPECIALLY DESIGNED BY THE MANUFACTURER, WHERE DATA AVAILABLE IS NOT ADEQUATE TO ASSURE THAT THE PART OR COMPONENT WILL PERFORM THE SAME FUNCTION IN THE EQUIPMENT AS THE PART OR COMPONENT IT IS TO REPLACE; "

SINCE THE AWARD TO UNITED STATES TIME IS SUPPORTED BY FINDINGS IN ACCORD WITH THE PERTINENT LAW AND REGULATIONS, AND SINCE 10 U.S.C. 2310 (B) SPECIFICALLY PROVIDES THAT THE FINDINGS SUPPORTING DETERMINATIONS TO NEGOTIATE UNDER 10 U.S.C. 2304 (A) (10) SHALL BE FINAL, WE MUST CONCLUDE THAT THE PROCUREMENT IS NOT SUBJECT TO QUESTION BY OUR OFFICE, AND YOUR PROTEST IS THEREFORE DENIED.