B-165173, DEC. 27, 1968

B-165173, DEC. 27, 1968

TO LEWIS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 28, 1968, WITH ENCLOSURES, IN WHICH YOU PROTESTED THE AWARD OF A CONTRACT TO BENDIX CORPORATION UNDER REQUEST FOR PROPOSALS (RFP) NO. FA 1698-68-R-0217, ISSUED BY KELLY AIR FORCE BASE, TEXAS, FOR THREE SONIC ENERGY CLEANING SYSTEMS, BENDIX PART NO. SEC 1825 R.A. BY YOUR SUPPLEMENTAL LETTER OF OCTOBER 3, 1968, YOU PRESENTED FURTHER COMPLAINTS AGAINST A PROPOSED SOLE-SOURCE AWARD TO BENDIX CORPORATION UNDER REQUEST FOR QUOTATIONS NO. F41608-69-Q-A237, FOR VAPOR SONIC DEGREASERS. SONIC ENERGY CLEANING SYSTEMS AND VAPOR SONIC DEGREASERS ARE SIMILAR ITEMS IN THAT BOTH MAY BE USED FOR THE CLEANING OF TELETYPEWRITERS AND ARE CALLED COLLECTIVELY SONIC ENERGY CLEANERS.

THE SUBJECT RFP, RATHER THAN AN INVITATION FOR BIDS, WAS ISSUED ON MAY 17, 1968, BECAUSE THE PROCURING AGENCY CONSIDERED IT IMPRACTICAL TO DRAFT ADEQUATE SPECIFICATIONS FOR THE SONIC ENERGY CLEANERS. THE BENDIX PART NUMBER WAS USED BECAUSE THERE WAS NO KNOWN SUBSTITUTE ITEM IN THE AIR FORCE INVENTORY. THE PROPOSED PURCHASE WAS SYNOPSIZED IN THE "COMMERCE BUSINESS DAILY" ONLY FOR THE PURPOSE OF GIVING INFORMATION TO POTENTIAL SUBCONTRACTORS OF THE PENDING AWARD TO BENDIX. HOWEVER, SEVERAL FIRMS REQUESTED AND WERE SUPPLIED THE SUBJECT RFP.

BY CLOSING DATE OF MAY 27, 1968, TWO PROPOSALS PERTINENT TO THIS PROTEST WERE RECEIVED, AS FOLLOWS:

LEWIS CORPORATION $5,485.00 EACH

BENDIX $7,960.00 EACH

THE AIR FORCE STATES THAT MODEL L/C 2518 OF THE SONIC ENERGY CLEANERS SUBMITTED BY THE LEWIS CORPORATION IS TECHNICALLY ACCEPTABLE PROVIDED THAT IT CAN MEET THE FEDERAL COMMUNICATIONS COMMISSION'S (FCC) APPROVAL. THE SONIC ENERGY CLEANERS CAN EMIT RADIO FREQUENCY ENERGY THAT WILL INTERFERE WITH ESTABLISHED TV AND RADIO COMMUNICATIONS; THEREFORE, SUCH EQUIPMENT MUST BE APPROVED BY FCC. FCC'S OCE BULLETIN NO. 5, DATED DECEMBER 1967, CONTAINING THE APPROVED SONIC ENERGY CLEANERS, LISTED THE BENDIX MODEL. HOWEVER, THE BULLETIN ONLY LISTED LEWIS MODEL F, DESIGNATED AS FCC TYPE APPROVAL NO. U-250, AND NOT MODEL L/C 2518, WHICH LEWIS PROPOSED TO FURNISH IN RESPONSE TO THE SUBJECT RFP. TO OBTAIN APPROVAL, IT IS REPORTED THAT THE DESCRIPTIVE DATA AND THE COMPLETE PROTOTYPE MODEL MUST BE SENT TO WASHINGTON, D.C., FOR TESTING BY THE FCC.

BEFORE A DECISION WAS REACHED BY THE PURCHASING AGENCY, THE URGENCY OF THE PROCUREMENT ROSE ON AUGUST 15, 1968, FROM THE ISSUE PRIORITY DESIGNATOR OF 13 TO 2. CONSEQUENTLY THE CONTRACTING OFFICER CONCLUDED THAT HE COULD NOT WAIT FOR LEWIS TO OBTAIN THE NECESSARY FCC APPROVAL AND AWARDED THE CONTRACT TO BENDIX. BENDIX SHIPPED THE SONIC ENERGY CLEANERS WITHIN LESS THAN TWO WEEKS.

BY LETTER OF AUGUST 28, 1968, YOU CONTEND THAT FCC APPROVAL U-250 IS A BLANKET TYPE APPLICABLE TO BOTH YOUR MODEL F AND MODEL L/C 2518. YOU FURTHER CONTEND THAT THE SUBJECT RFP DOES NOT CONTAIN ANY FCC APPROVAL REQUIREMENT; CONSEQUENTLY NO DOCUMENTATION WAS FURNISHED WITH YOUR OFFER FOR THE PURPOSE OF APPROVAL. LASTLY, YOU ALLEGE THAT THERE WAS AMPLE TIME FOR KELLY AIR FORCE BASE TO VERIFY WHETHER OR NOT YOUR MODEL MET FCC APPROVAL.

IN RESPONSE TO YOUR PROTEST, AIR FORCE HEADQUARTERS REPORTED IN PART, AS FOLLOWS: "* * * PROTESTER MAINTAINS THAT THE FCC APPROVAL U 250 IS A BLANKET APPROVAL OF LEWIS -ULTRASONIC GENERATING EQUIPMENT.- INQUIRY TO THE DALLAS OFFICE OF FCC ELICITED INFORMATION TO THE EFFECT THAT A MODEL, ONCE APPROVED, CAN NOT BE MODIFIED IN ANY FORM OR IT LOSES ITS APPROVAL. CONSEQUENTLY, EVEN IF THE LEWIS GENERATOR IN THE MODEL F HAD BEEN APPROVED, IT WOULD NOT CARRY ITS APPROVAL OVER INTO ANOTHER MODEL INTO WHICH THE APPROVED GENERATOR IS INCORPORATED, IF DIFFERENT WIRING IS REQUIRED.

"WE RECOGNIZE THAT THE PROTESTANT NEED NOT HAVE ANTICIPATED THAT FCC APPROVAL WOULD BE A PRIME EVALUATION FACTOR, AND THAT THEREFORE IT SHOULD HAVE BEEN NOTIFIED SUBSEQUENT TO RECEIPT OF ITS PROPOSAL THAT FCC APPROVAL WOULD BE REQUIRED BEFORE AWARD COULD BE MADE. HAD SUCH NOTIFICATION BEEN MADE FOLLOWING RECEIPT OF THE TECHNICAL EVALUATION ON 25 JUNE, PROTESTANT MIGHT POSSIBLY HAVE SUCCEEDED IN SECURING APPROVAL DURING THE SIX-WEEK PERIOD FROM 25 JUNE TO 15 AUGUST WHEN THE PRIORITY WAS ELEVATED TO 02. EVEN ASSUMING THAT APPROVAL COULD NOT HAVE BEEN OBTAINED WITHIN THAT PERIOD, WE BELIEVE THAT THE PROTESTANT SHOULD HAVE BEEN GIVEN AN OPPORTUNITY TO ATTEMPT TO SECURE IT.'

WHILE IT THUS APPEARS THAT THE AIR FORCE RECOGNIZES DEFECTS IN THE PROCUREMENT PROCEDURE, ALL OF THE SONIC ENERGY CLEANERS TO BE PROCURED HAD IN FACT BEEN DELIVERED BY THE TIME YOUR PROTEST WAS RECEIVED, AND HAVE BEEN USED FOR THE PURPOSES FOR WHICH THEY WERE PROCURED, AND PAYMENT HAS BEEN MADE. UNDER THESE CIRCUMSTANCES WE SEE NO ALTERNATIVE BUT TO ALLOW THE CONTRACT TO STAND AS PERFORMED, ACCEPTING THE AIR FORCE ASSURANCE THAT ACTION WILL BE TAKEN TO PREVENT ANY RECURRENCE. IN THIS REGARD, THE AGENCY ADVISES US THAT RFQ F41608-69-Q-A237 ISSUED FOR ULTRASONIC CLEANERS TO BENDIX CORPORATION IS CANCELLED. BY LETTER DATED DECEMBER 3, 1968, THE ACTING DIRECTOR, PROCUREMENT AND PRODUCTION AT KELLY AIR FORCE BASE, TEXAS, STATES THAT "ANY SUBSEQUENT PROCUREMENT PACKAGE IS DRAWN SO AS TO PERMIT MAXIMUM COMPETITION AS WELL AS PREVENT RECURRENCE OF THE DEFICIENCIES NOTED IN RFP 41699-68-R 0217.'

YOU ALSO CALL OUR ATTENTION TO THE CANCELLATION OF INVITATION FOR BIDS NO. F41608-68-B-1018, ISSUED BY THE KELLY AIR FORCE BASE AND THE SUBSEQUENT AWARD OF A CONTRACT FOR 18 SONIC ENERGY CLEANERS TO BENDIX CORPORATION ON A SOLE-SOURCE BASIS. THAT PROCUREMENT WAS THE SUBJECT OF OUR DECISION OF JUNE 25, 1968, A COPY OF WHICH IS ENCLOSED FOR YOUR INFORMATION.