B-163057, MAY 2, 1968, 47 COMP. GEN. 611

B-163057, MAY 2, 1968, 47 COMP. GEN. 611

BIDS - SUBMISSION - TIME LIMITATION - SUFFICIENCY ALTHOUGH THE COMMERCIAL SPECIFICATIONS INCORPORATED BY REFERENCE IN AN INVITATION FOR AN AIRCRAFT RECORDING SYSTEM ONLY BECAME AVAILABLE FROM THE COMMERCIAL PUBLISHER 7 DAYS BEFORE BID OPENING TIME, THE TWO BIDDERS TO WHOM THE PROCUREMENT WAS LIMITED WERE NOT PREJUDICED, NOTWITHSTANDING THE PERIOD ALLOTTED FOR THE PREPARATION AND SUBMISSION OF BIDS WAS LESS THAN THE 15 BIDDING DAYS PRESCRIBED BY PARAGRAPH 2 202.1 OF THE ARMED SERVICES PROCUREMENT REGULATION FOR THE PROCUREMENT OF STANDARD COMMERCIAL ARTICLES AND SERVICES, AS THE BIDDERS HAD PARTICIPATED IN THE PROCUREMENT EFFORTS OF THE CONTRACTING AGENCY AND AWARE OF THE TECHNICAL REQUIREMENTS AND COMPLEXITIES OF THE RECORDING SYSTEM THEY COULD HAVE PREPARED RESPONSIVE BIDS WITHIN THE TIME ALLOTTED FOR THE PREPARATION AND SUBMISSION OF BIDS. BIDS - COMPETITIVE SYSTEM - COMMERCIAL SPECIFICATIONS AVAILABILITY AN INVITATION THAT REFERENCED THE COMMERCIAL SPECIFICATIONS NEEDED IN THE PREPARATION OF BIDS IS NOT A DEFECTIVE INVITATION THAT PRECLUDES THE FULL AND FREE COMPETITION CONTEMPLATED BY 10 U.S.C. 2305 (B), WHERE THE INVITATION WAS COMPLETED FOR BID PREPARATION AND EVALUATION PURPOSES UPON RECEIPT OF THE SPECIFICATIONS BY BIDDERS RESPONSIBLE FOR OBTAINING THE REFERENCED SPECIFICATIONS.

TO LEWIS, MACDONALD AND VARIAN, MAY 2, 1968:

REFERENCE IS MADE TO YOUR BRIEF SUBMITTED TO OUR OFFICE ON DECEMBER 11,1967, AND SUPPLEMENTAL LETTER OF MARCH 13, 1968, PROTESTING, ON BEHALF OF THE CONRAC CORPORATION, AGAINST THE AWARD OF A CONTRACT TO ANY BIDDER UNDER INVITATION FOR BIDS NO. F33657-68-B-0432, ISSUED BY THE DEPARTMENT OF THE AIR FORCE, AIR FORCE SYSTEMS COMMAND, AERONAUTICAL SYSTEMS DIVISION.

THE INVITATION SOLICITED BIDS FOR THE PURCHASE OF A QUANTITY OF AIRBORNE SIGNAL DATA RECORDING SYSTEMS EACH CONSISTING OF A "RECORDER MECHANISM ASSEMBLY, A MAGAZINE RECORDING SET, AND A RESILIENT MOUNT.' WE ARE INFORMED THAT THE RECORDING SYSTEM IS DESIGNED TO BE INSTALLED ON F-111A AIRCRAFT TO "MEASURE FLIGHT PARAMETERS RELATING TO STRUCTURAL LOADS, CONVERT THESE ANALOG INPUTS TO DIGITAL FORM AND RECORD THEM ON MAGNETIC TAPE FOR LATER ANALYSIS.'

THE BACKGROUND OF THIS PROCUREMENT IS CONTAINED IN THE CONTRACTING OFFICER'S STATEMENT FURNISHED TO OUR OFFICE AND IS QUOTED BELOW:

IN 1955 A REQUIREMENT FOR A MULTICHANNEL FLIGHT LOADS RECORDER WAS ESTABLISHED. DURING THE FOLLOWING SEVEN YEAR PERIOD VARIOUS STUDY CONTRACTS WERE PLACED, BUT NONE OF THE SOURCES WERE SUCCESSFUL IN BUILDING MORE THAN A THREE-CHANNEL RECORDER.

CONTRACT AF33/657/-9574 WAS AWARDED TO THE WHITTAKER CORPORATION ON 26 JULY 1962 FOR DEVELOPMENT OF AN AIRBORNE RECORDING SYSTEM. CONTRACTS WERE ALSO AWARDED TO FOUR OTHER CONTRACTORS AFTER AN INDUSTRY-WIDE SOLICITATION INVOLVING 45 SOURCES. AFTER A 2-1/2-YEAR EFFORT, WHITTAKER WAS THE ONLY ONE OF THESE SOURCES THAT WAS SUCCESSFUL IN DEVELOPING A RECORDING SYSTEM DEEMED CAPABLE OF MEETING THE AIR FORCE SPECIFICATION REQUIREMENTS. DUE TO LACK OF A FUNDED PROGRAM, PROCUREMENT OF THE (RECORDING SYSTEM) WAS NOT ACCOMPLISHED EVEN THOUGH WHITTAKER WAS TECHNICALLY QUALIFIED TO RECEIVE A PRODUCTION CONTRACT. IN A LETTER OF 23 DECEMBER 1965, THE F-111 (PROJECT OFFICER) EXPRESSED AN INTENSE DESIRE TO PROCEED WITH PROCUREMENT OF THE WHITTAKER RECORDER AND ASSURED THAT RAPID ACTION WOULD BE TAKEN IN THIS REGARD UPON APPROVAL OF A FUNDED PROGRAM. THIS LETTER FURTHER CONTEMPLATED MEASUREMENT OF 24 DATA PARAMETERS AS ENVISIONED BY THE PROTESTED IFB AND NOTED THAT "MEETINGS HAVE BEEN HELD WITH (THE AIRCRAFT MANUFACTURER) AND THE RECORDER MANUFACTURER (WHITTAKER) TO RESOLVE ALL DETAILS.'

IN ANTICIPATION OF AVAILABILITY OF FUNDS, A SOLE-SOURCE PROCUREMENT FOR F -111 AND C-141 REQUIREMENTS WAS IN THE EARLY STAGES OF NEGOTIATION WITH WHITTAKER IN EARLY 1967 WHEN THE CONRAC CORPORATION SUBMITTED AN UNSOLICITED PROPOSAL. RECOGNIZING THE ADVANTAGES OF A COMPETITIVE SITUATION, (THE PROCUREMENT ACTIVITY) ASSISTED CONRAC IN OBTAINING A FLIGHT TEST FOR THEIR PROTOTYPE RECORDER. AS A RESULT OF THIS EVALUATION, CONRAC'S RECORDER WAS DETERMINED TO BE TECHNICALLY ACCEPTABLE BY THE AIR FORCE, AND THE SOLE-SOURCE RFP TO WHITTAKER WAS CANCELLED.

IN AUGUST 1967 THE GENERAL DYNAMICS CORPORATION (GD/FW) CONDUCTED TECHNICAL DISCUSSIONS WITH WHITTAKER AND CONRAC, DURING WHICH TIME BOTH SOURCES HAD ACCESS TO ALL GD/FW DOCUMENTS RELATING TO INTERFACE REQUIREMENTS FOR PURPOSES OF TECHNICAL AND PRICE COMPETITION. GD/FW EVALUATED THE PROPOSALS FROM BOTH SOURCES FOR 12 RECORDING SYSTEMS IN SUPPORT OF PROJECT HARVEST REAPER, AND FOUND BOTH CONTRACTORS TO BE TECHNICALLY ACCEPTABLE. GD/FW LATER AWARDED A CONTRACT TO CONRAC AFTER A PRICE COMPETITION IN WHICH CONRAC WAS THE LOW BIDDER.

IN VIEW OF A STATED REQUIRED INITIAL DELIVERY DATE OF OCTOBER 1968, AND AN 11-MONTH PRODUCTION LEAD TIME, THE PROCUREMENT OFFICIALS WERE PERMITTED TO UTILIZE A 15-DAY PERIOD FOR THE SUBMISSION OF BIDS. ACCORDINGLY, THE INVITATION, ISSUED NOVEMBER 3, 1967, SPECIFIED A BID OPENING DATE OF NOVEMBER 17, 1967.

THE INVITATION INCLUDED A BIDDERS QUALIFICATION CLAUSE WHICH EFFECTIVELY LIMITED COMPETITION TO WHITTAKER AND CONRAC. THE CLAUSE PROVIDED: BIDDERS QUALIFICATION CLAUSE:

BIDDERS, FOR THE MULTI-CHANNEL RECORDING SYSTEM REQUIREMENTS OF THIS IFB, MUST HAVE DESIGNED, DEVELOPED AND PRODUCED A PULSE CODE MODULATED (PCM) DIGITAL TECHNIQUE MAGNETIC TAPE RECORDING HARDWARE SYSTEM WHICH HAS BEEN FLIGHT TESTED BY THE AIR FORCE, HAS RECEIVED AN ASD TECHNICAL EVALUATION AND HAS BEEN DETERMINED TO BE TECHNICALLY CAPABLE OF MEETING THE PERFORMANCE REQUIREMENTS OF THE AIRCRAFT STRUCTURAL INTEGRITY PROGRAM BY THE COGNIZANT ASD ENGINEERING ACTIVITY, SEFSL, PRIOR TO THE ISSUE DATE OF THIS IFB.

IN ADDITION THE INVITATION PROVIDED IN PARAGRAPHS "K" OF THE SCHEDULE AND 4 OF THE SPECIAL PROVISIONS THAT: K. COMPATIBILITY REQUIREMENTS:

1. THE RECORDING SET, SIGNAL DATA A/A24U-6, SHALL BE MADE COMPATIBLE BY THE RECORDING SET CONTRACTOR WITH ALL THE EQUIPMENT (SENSORS ETC.) USED IN CONJUNCTION WITH IT ON THE F-111 AIRCRAFT. THE RECORDING SET CONTRACTOR MUST SUBMIT ONE FULLY TESTED (WITH THE EXCEPTION OF THE LONGEVITY TESTING) PREPRODUCTION UNIT TO THE F-111 AIRFRAME CONTRACTOR TO BE EVALUATED FOR COMPATIBILITY. THE COMPATIBILITY TEST BY THE AIRFRAME CONTRACTOR SHALL BE ACCOMPLISHED IN ACCORDANCE WITH GENERAL DYNAMICS DOCUMENT FGT 5321 INSTRUMENTS FLIGHT LOADS RECORDER SYSTEM INTEGRATION TEST PROCEDURE. THE RECORDING SET CONTRACTOR SHALL SUBMIT AS PART OF THE PREPRODUCTION TEST REPORT, A STATEMENT FROM THE F-111 CONTRACTOR AND AFPR QUALITY CONTROL ESTABLISHING THAT THE ITEM BEING FURNISHED WAS TESTED AND SUCCESSFULLY PASSED THE REQUIRED TESTS. THE COST OF THE COMPATIBILITY AND INTEGRATION TEST PROGRAM IN ACCORDANCE WITH GENERAL DYNAMICS DOCUMENT FGT 5321 INSTRUMENTS--- FLIGHT LOADS RECORDER SYSTEM INTEGRATION TEST PROCEDURE AND CHANGES IN THE EQUIPMENT NECESSARY TO COMPLY WITH THE COMPATIBILITY AND INTEGRATION REQUIREMENTS SHALL BE INCLUDED IN THE PRICE OF THE END ITEMS. 4. AVAILABILITY OF SPECIFICATIONS AND STANDARDS

SPECIFICATIONS AND STANDARDS CITED IN THIS INVITATION FOR BIDS/REQUEST FOR PROPOSALS ARE AVAILABLE AS INDICATED BELOW:

(B) COMMERCIAL SPECIFICATIONS AND STANDARDS. THESE SPECIFICATIONS AND STANDARDS ARE NOT AVAILABLE FROM GOVERNMENT SOURCES. THEY MAY BE OBTAINED FROM THE PUBLISHERS.

IT APPEARS THAT THE INVITATION WAS ISSUED PRIOR TO THE PREPARATION OF SPECIFICATION FGT 5321, REFERENCED IN PARAGRAPH "K" OF THE SCHEDULE. NOVEMBER 9, 1967, THE TWO QUALIFIED MANUFACTURERS WERE INFORMALLY ADVISED THAT SPECIFICATION FGT 5321 WOULD BE AVAILABLE ON NOVEMBER 14, 1967, FROM THE COMMERCIAL PUBLISHER, THE GENERAL DYNAMICS CORPORATION, FORT WORTH. SINCE THE SPECIFICATION WAS NOT AVAILABLE UNTIL NOVEMBER 15, 1967, THE INVITATION WAS FORMALLY AMENDED ON THAT DATE TO PROVIDE FOR THE BID OPENING ON NOVEMBER 22, 1967.

TWO BIDS WERE OPENED AT THE SPECIFIED TIME AND IS APPEARED THAT WHITTAKER'S TOTAL BID PRICE OF $1,879,381 WAS LOW COMPARED TO CONRAC'S BID OF $3,383,583. BY TELEGRAM DATED DECEMBER 7, 1967, YOU PROTESTED TO OUR OFFICE AGAINST THE AWARD OF A CONTRACT TO ANY FIRM UNDER THE INVITATION. HOWEVER, ON THE SAME DATE, BEFORE YOUR PROTEST WAS TRANSMITTED TO THE COGNIZANT PROCUREMENT OFFICIALS, THE CONTRACT WAS AWARDED TO WHITTAKER AT ITS BID PRICE.

YOU CONTEND IN YOUR BRIEF THAT NO VALID AWARD COULD BE MADE UNDER THE INVITATION BECAUSE THE PROCUREMENT ITEM WAS INADEQUATELY DEFINED, THEREBY PRECLUDING ANY OPPORTUNITY FOR FREE AND FULL COMPETITION AS ENVISIONED BY 10 U.S.C. 2305 (B). IN THIS REGARD, YOU STATE AS FOLLOWS:

PERFORMANCE WAS TO BE IN ACCORDANCE WITH MIL-R-38435A. THE GRAVAMEN OF THE PROTEST IS THAT THE SPECIFICATIONS DID NOT DESCRIBE THE INTERFACE OR COMPATIBILITY REQUIREMENT OF THE PRODUCT, WHICH IN A FLIGHT RECORDER IS ONE OF THE MOST SIGNIFICANT AND MATERIAL REQUIREMENTS OF PERFORMANCE. 3.11 OF MIL-R-38435A PROVIDED FOR "SENSING UNITS" WHICH HAD TO BE COMPATIBLE WITH THE RECORDING SET.

3.5 OF AMENDMENT NO. 1 TO MIL-R-38435A PROVIDED, THE RECORDING SET SHALL BE DESIGNED TO MEASURE AND RECORD UP TO 24 INPUT PARAMETERS ... ALL SUPPLEMENTARY RECORDER EQUIPMENT (EXCLUDING SENSORS) SUCH AS SUB MULTIPLEXERS, FILTERS, SIGNAL CONDITIONERS, TRANSIENT AND OVERVOLTAGE PROTECTION CIRCUITRY NECESSARY TO ACHIEVE THE 24 CHANNEL CAPABILITY MUST BE INCLUDED IN A SINGLE UNIT.

NO PART OF THE BID SET DESCRIBED WHAT MEASURING DEVICES ON THE AIRCRAFT THE SENSING UNITS WERE TO MATE WITH. NO SPECIFICATION SET FORTH WHAT THE 24 INPUT PARAMETERS TO BE MEASURED WERE. THIS OMITTED INFORMATION WAS MOST IMPORTANT TO BIDDING AND TO PERFORMING THE JOB.

FGT 5321, REFERRED TO IN PARAGRAPH K, WAS A PROPRIETARY SPECIFICATION OF THE GENERAL DYNAMICS CORPORATION AND WAS NOT INCLUDED IN THE BID SET AND, IN FACT, WAS NOT EVEN COMPLETE AS OF THE TIME OF ISSUANCE OF THE IFB ON 3 NOVEMBER 1967.

* * * THREE DAYS BEFORE BID OPENING CONRAC OBTAINED A COPY OF FGT 5321 BY VISITING GENERAL DYNAMICS AT FORT WORTH AND RECEIVED THE DOCUMENT BY HAND. FGT 5321 (THE INTEGRATION TEST PLAN) DID NOT, HOWEVER, DEFINE "THE PARAMETERS TO BE RECORDED.' RATHER, IT REFERRED TO OTHER GENERAL DYNAMICS SPECIFICATIONS NOT MADE A PART OF THE BID SET FOR THAT INFORMATION, IN THE FOLLOWING LANGUAGE: II. BACKGROUND

THE ASDRS ZF00040A IS THE PRIME EQUIPMENT TO BE INSTALLED IN CERTAIN F- 111A AIRCRAFT ESA PER ECP 1333. THE PARAMETERS TO BE RECORDED ARE GIVEN IN ZF00040A TABLE I AND FURTHER DEFINED BY INTERFACE SPECS 6JC01 THRU 6JC28. OF THE 24 PARAMETERS, 9 ARE NEW AND 15 ARE EXISTING. THE NEW EQUIPMENT INCLUDES THE TRIAXIAL LINEAR ACCELEROMETER CF00039-1 (3 PARAMETERS) THE SINK RATE RADAR CE000199-1 THREE PRESSURE TRANSDUCERS C4258, AND TWO SPOILER POSITION TRANSDUCERS CF00038-1. THE ASDRS CONVERTS THE 24 ANALOG INPUTS TO DIGITAL SIGNALS, SAMPLES AT SELECTED RATES, COMPARES NEW AND OLD SAMPLES, AND RECORDS NEW SAMPLES THAT ARE DIFFERENT.

CONRAC WAS ACTUALLY ENGAGED IN THE PERFORMANCE OF A SUBCONTRACT FOR GENERAL DYNAMICS AND THEREFORE THE SPECIFICATIONS REFERRED TO IN THE QUOTED PARAGRAPH OF FGT 5321 DID EXIST IN THE CONRAC FILES. CONRAC, THEREFORE, WAS FULLY INFORMED, IN FACT, AS TO THE DETAILS OF INTERFACE AND COMPATIBILITY, AND WAS ABLE TO PLACE AN INFORMED BID OF APPROXIMATELY $3,400,000.

HOWEVER, THE COMPETITOR, WHITTAKER, NEITHER RECEIVED FGT 5321 IN TIME, NOR DID THEY RECEIVE ANY OF THE SUBSPECIFICATIONS WHICH DEFINED "THE PARAMETERS TO BE RECORDED.' THE FGT 5321 COULD NOT HAVE BEEN RECEIVED BY THEM EXCEPT PERHAPS ON THE DAY OF BID OPENING.

WHITTAKER'S BID OF APPROXIMATELY $1,800,000 WAS OBVIOUSLY UNINFORMED AS TO THE EXTENT OR VALUE OF THE WORK OF MAKING THE PRODUCT COMPATIBLE WITH THE SENSING DEVICES ON THE AIRCRAFT.

SPECIFICATIONS ZF00040A (TABLE 1) AND 6JC01-6JC28 DESCRIBE THE SENSORS IN DETAIL. THEY DESCRIBE CHARACTERISTICS WITH WHICH THE SIGNAL CONDITIONERS OF THE FLIGHT RECORDER ARE TO BE COMPATIBLE, SUCH AS IMPEDANCE, GROUNDING AND ISOLAITON PROCEDURES, TYPE OF WIRE AND WIRING DIAGRAM, SOURCE OF EXCITATION OF THE SENSOR AND, MOST IMPORTANT, THE VENDOR AND PART NUMBER. THIS INFORMATION IS VITAL TO BIDDING AND BUILDING THE SIGNAL CONDITIONER TO RECEIVE AND TRANSLATE THE OUTPUT OF THE SENSOR. IN ADDITION, ZF00040A (REFERRED TO IN FGT 5321) SPECIFIES A HIGHLY SPECIALIZED AND DIFFICULT FILTER USED TO FILTER OUT UNDESIRED INFORMATION FROM THE INPUTS TO THE FLIGHT RECORDER. WITHOUT THE ZF00040A, NO NOTICE OF THAT REQUIREMENT EXISTS IN THE BID SET.

THE ABSENCE OF THE COMPATIBILITY REQUIREMENTS AND THE DETAILS OF THE SENSORS WITH WHICH THE FLIGHT RECORDER HAD TO MATE PREVENTED BIDS ON AN EQUAL COMPETITIVE BASIS. AS SUCH, THERE WAS NO FULL AND FAIR COMPETITION. CONRAC, WITH ACTUAL NOTICE OF THE OBJECTIVES OF COMPATIBILITY (BASED UPON ITS PHYSICAL POSSESSION OF FGT 5321 3 DAYS PRIOR TO BID OPENING AND THE SUB-SPECIFICATIONS IN ITS FILES ON THE PRIOR PROCUREMENT), WAS AT A COMPETITIVE DISADVANTAGE. WHITTAKER, WITH NO NOTICE OF THE COMPATIBILITY REQUIREMENTS, COULD ONLY GUESS AT THE VALUE OF THE WORK OR THE OBLIGATIONS TO BE PERFORMED. BASED UPON THE CITATIONS WHICH FOLLOW CONRAC URGES THAT THE AWARD OF A CONTRACT IN SUCH CIRCUMSTANCES VIOLATES THE STATUTES, OBJECTIVES AND REGULATIONS CONCERNING ADVERTISED PROCUREMENT AND EXPOSES THE GOVERNMENT TO A CLAIM BY WHITTAKER FOR ADDITIONAL COMPENSATION WHEN THE COMPATIBILITY REQUIREMENTS ARE DEFINED TO THEM.

IT IS SUBMITTED THAT THE IFB VIOLATES THE ARMED SERVICES PROCUREMENT ACT AND IN PARTICULAR 10 U.S.C. 2305 (B), WHICH STATES:

"/B) THE SPECIFICATIONS IN INVITATIONS FOR BIDS MUST CONTAIN THE NECESSARY LANGUAGE AND ATTACHMENTS, AND MUST BE SUFFICIENTLY DESCRIPTIVE IN LANGUAGE AND ATTACHMENTS, TO PERMIT FULL AND FREE COMPETITION. IF THE SPECIFICATIONS IN AN INVITATION FOR BIDS DO NOT CARRY THE NECESSARY DESCRIPTIVE LANGUAGE AND ATTACHMENTS, OR IF THOSE ATTACHMENTS ARE NOT ACCESSIBLE TO ALL COMPETENT AND RELIABLE BIDDERS, THE INVITATION IS INVALID AND NO AWARD MAY BE MADE.' IN ADDITION, YOU CONTEND THAT THE SHORT PERIOD BETWEEN THE TIME WHEN INVITATION WAS COMPLETE (THE AVAILABILITY TO BIDDERS OF SPECIFICATION FGT 5321) AND THE OPENING OF BIDS WAS "INSUFFICIENT TIME FOR A PROPER EVALUATION OF RESPONSIBILITIES OF PERFORMANCE.' IN SUPPORT OF YOUR POSITION, YOU CITE OUR DECISION 45 COMP. GEN. 651, WHEREIN WE DIRECTED CANCELLATION OF AN INVITATION ON THE GROUND THAT THE ISSUANCE OF AN AMENDMENT 2 DAYS BEFORE BID OPENING DID NOT PROVIDE SUFFICIENT TIME WITHIN THE CONTEMPLATION OF SECTION 1-2.207 (D) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) WHICH PROVIDES THAT NO AWARD SHALL BE MADE UNLESS BIDDERS HAVE BEEN GIVEN SUFFICIENT TIME TO CONSIDER THE CONTENTS OF AN AMENDMENT IN SUBMITTING THEIR BIDS. YOU OBSERVE IN THIS REGARD THAT THE CORRESPONDING REGULATION APPLICABLE TO MILITARY PROCUREMENT IS CONTAINED IN PARAGRAPH 2-208 (C) OF THE ARMED SERVICES PROCUREMENT REGULATION. ASPR 2-202.1 PROVIDES THAT, EXCEPT UNDER UNSPECIFIED SPECIAL CIRCUMSTANCES, AS "A GENERAL RULE, BIDDING TIME SHALL NOT BE LESS THAN 15 CALENDAR DAYS WHEN PROCURING STANDARD COMMERCIAL ARTICLES AND SERVICES AND NOT LESS THAN 30 CALENDAR DAYS WHEN PROCURING OTHER THAN STANDARD COMMERCIAL ARTICLES OR SERVICES.'

WE ARE OF THE OPINION THAT THE RECORD BEFORE US DOES NOT SUPPORT THE FIRST BASIS OF YOUR PROTEST THAT THE INVITATION FAILED TO STATE THE COMPATIBILITY REQUIREMENTS AND DETAILS OF THE INTERFACE CONNECTIONS OF THE ADVERTISED ITEM.

THE INVITATION, AT THE TIME OF ISSUANCE WAS, AS YOU STATE, INCOMPLETE; HOWEVER, THE COMPATIBILITY REQUIREMENTS AND CORRESPONDING TECHNICAL DATA WERE CONTAINED IN SPECIFICATION FGT 5321 AND THE SUBSPECIFICATIONS, 6JC01 THROUGH 6JC28, REFERENCED IN SPECIFICATION FGT. ON NOVEMBER 15, 1967, OR 7 DAYS BEFORE BID OPENING, WHEN SPECIFICATION FGT 5321 BECAME AVAILABLE FROM THE COMMERCIAL SOURCE, THE COMPATIBILITY REQUIREMENTS OF THE PROCUREMENT ITEM BECAME KNOWN TO BIDDERS, AND THE INVITATION, FOR ALL INTENTS AND PURPOSES, WAS COMPLETE. IN THIS REGARD, YOUR ATTENTION IS DIRECTED TO PARAGRAPH "H" OF THE SCHEDULE WHICH PROVIDES AS FOLLOWS: H. INCORPORATION OF REFERENCED DOCUMENTS:

ALL SPECIFICATIONS, EXHIBITS, DRAWING, AMENDMENTS AND/OR OTHER DOCUMENTS WHICH ARE REFERENCED IN THIS CONTRACT, BUT ARE NOT ATTACHED HERETO, ARE HEREBY INCORPORATED HEREIN BY REFERENCE.

THE CLEAR LEGAL EFFECT OF PARAGRAPH "H" IS TO PUT THE ONUS OF OBTAINING ALL REFERENCED SPECIFICATIONS UPON THE TWO QUALIFIED BIDDERS. THE SUBSPECIFICATIONS REFERENCED IN SPECIFICATION FGT 5321, HAVING THE SAME FORCE AND EFFECT OF THE SPECIFICATION ITSELF, WERE LIKEWISE TO BE OBTAINED BY THE TWO BIDDERS.

WE HAVE STATED ON NUMEROUS OCCASIONS THAT THE FULL COMPETITION CONTEMPLATED BY THE PUBLIC ADVERTISING STATUTES CANNOT BE ACHIEVED UNLESS INVITATIONS ARE COUCHED IN LANGUAGE SUFFICIENTLY CLEAR TO ENABLE THE PREPARATION AND EVALUATION OF BIDS ON A COMMON BASIS. 36 COMP. GEN. 380; B-162182, NOVEMBER 13, 1962. WE ARE OF THE OPINION THAT THE INVITATION WAS SUFFICIENTLY CLEAR, IN THIS REGARD, BY VIRTUE OF THE FACT THAT NEITHER OF THE TWO BIDDERS HAD ANY DIFFICULTY IN OBTAINING THE REFERENCED COMMERCIALLY DEVELOPED COMPATIBILITY REQUIREMENTS AND CORRESPONDING DATA ONCE THEY BECAME AVAILABLE. MOREOVER, WITH REGARD TO YOUR STATEMENT THAT WHITTAKER WAS NOT ACTUALLY IN POSSESSION OF SPECIFICATION FGT 5321 AND THE REFERENCED SUBSPECIFICATIONS, WE ARE ADVISED THAT THE CONTRACTING OFFICER DETERMINED THAT WHITTAKER RECEIVED THE DOCUMENTS ON NOVEMBER 17, 1967, OR 5 DAYS PRIOR TO BID OPENING.

YOUR ARGUMENT THAT THE 7-DAY PERIOD, BETWEEN THE TIME THE TECHNICAL SPECIFICATIONS OF THE INVITATION BECAME AVAILABLE TO THE TWO BIDDERS AND THE TIME BIDS WERE OPENED, WAS INSUFFICIENT FOR BIDDERS TO PROPERLY EVALUATE THE RESPONSIBILITIES OF PERFORMANCE AND PREPARE RESPONSIVE BIDS IS NOT SUPPORTED BY THE REPORTED FACTS AND CIRCUMSTANCES SURROUNDING THE PROTEST.

THE BACKGROUND OF THE PROCUREMENT ITEM, SET FORTH ABOVE, CLEARLY INDICATES THAT, AT THE LEAST, FOR SEVERAL YEARS WHITTAKER AND CONRAC HAVE BEEN IN CLOSE CONTACT WITH THE COMMERCIAL AND MILITARY USERS OF THE ADVERTISED SYSTEM AS CONTRACTORS AND SUBCONTRACTORS. BOTH WHITTAKER AND CONRAC HAVE PREVIOUSLY SUCCESSFULLY FLIGHT TESTED A "RECORDING HARDWARE SYSTEM," AND, AS LATE AS AUGUST 1967, PARTICIPATED IN NEGOTIATIONS WITH THE COMMERCIAL USER OF THE SYSTEM AS PROSPECTIVE SUBCONTRACTORS. WE ARE COGNIZANT OF THE FACT THAT CONRAC WAS SUCCESSFUL IN NEGOTIATING FOR THE SUBCONTRACT, HOWEVER, WE ARE ADVISED THAT AT THAT TIME WHITTAKER HAD FULL ACCESS TO THE GENERAL DYNAMICS, FORT WORTH, DOCUMENTS RELATING TO THE INTERFACE REQUIREMENTS OF THE SYSTEM AND WAS THEREFORE AWARE OF THE DETAILS OF ALL OF THE 24 DATA PARAMETERS. THUS, EVEN THOUGH THE TIME PERIOD ALLOTTED FOR PREPARATION AND SUBMISSION OF BIDS WAS LESS THAN IS NORMALLY ALLOWED BY THE REGULATION IN ASPR 2-202.1, THE FACT THAT THE TWO BIDDERS WERE AWARE OF THE TECHNICAL REQUIREMENTS AND COMPLEXITIES OF THE RECORDING SYSTEM AND THAT THEY HAVE BEEN CLOSELY FOLLOWING AND PARTICIPATING IN THE PROCUREMENT EFFORTS OF THE AIR FORCE LEADS US TO CONCLUDE THAT NEITHER WHITTAKER NOR CONRAC WAS PREJUDICED THEREBY. HENCE, WE DO NOT FEEL THAT THE HOLDING IN 45 COMP. GEN. 651 IS APPLICABLE HERE. THIS VIEW IS SUPPORTED BY THE FACT THAT NEITHER OF THE TWO BIDDERS PROTESTED BEFORE BID OPENING AGAINST THE TIME FOR SUBMISSION OF BIDS.

SINCE SPECIFICATION FGT 5321 WAS AVAILABLE ON NOVEMBER 15, 1967, AND THE SUBSPECIFICATIONS REFERENCED THEREIN WERE KNOWN PRIOR TO THAT TIME BY BOTH BIDDERS, AND COMPETITION FOR THE PROCUREMENT WAS LIMITED TO THE TWO CONCERNS WHICH WERE AWARE OF THE PROCURING AGENCY'S NEEDS WITH RESPECT TO THE SYSTEM BY VIRTUE OF THEIR PARTICIPATION IN DEVELOPMENT OF THE RECORDING SYSTEM, WE ARE UNABLE TO CONCLUDE THAT THE INVITATION WAS LEGALLY INSUFFICIENT TO SUPPORT A VALID AWARD, EITHER FROM A TECHNICAL VIEWPOINT OR WITH REGARD TO THE AMOUNT OF TIME ACCORDED BIDDERS TO PREPARE AND SUBMIT THEIR BIDS. WE HAVE CAREFULLY CONSIDERED YOUR ARGUMENTS BUT WE ARE OF THE OPINION THAT THEY DO NOT REQUIRE US TO QUESTION THE AWARD. CF. 46 COMP. GEN. 349.