B-169007, JUL. 27, 1970

B-169007, JUL. 27, 1970

BID PROTEST -- TECHNICAL EVALUATION DECISION TO R. E. WHITE & ASSOCIATES, INC., DENYING PROTEST AGAINST REJECTION OF PROPOSALS FOR SWITCHES BY DEFENSE ELECTRONICS SUPPLY AGENCY ON BASIS THAT ITEM WAS UNACCEPTABLE AND DID NOT MEET SPECIFICATIONS. WHERE THERE IS CONFLICT OF TECHNICAL OPINIONS BETWEEN OFFEROR AND PROCURING AGENCY AS TO CONFORMABILITY OF EQUIPMENT RELIANCE MUST BE PLACED ON ENGINEERING EXPERTISE OF AGENCY IN THE ABSENCE OF EVIDENCE THAT THE CONTRACTING OFFICER'S TECHNICAL, FACTUAL DETERMINATION IS ARBITRARY, CAPRICIOUS, OR NOT BASED ON SUBSTANTIAL EVIDENCE. BID PROTEST -- TECHNICAL EVALUATION DECISION TO DEFENSE SUPPLY AGENCY IN CONSIDERATION OF PROTEST IT WAS NOTED THAT THE REQUEST FOR QUOTATIONS DID NOT CONTAIN INFORMATION AS TO EVALUATION AND AWARD WHEN FIRST ARTICLE APPROVED IS INVOLVED. SUCH DEFICIENCY GENERATED THE PROTEST, THEREFORE, IN FUTURE NEGOTIATED PROCUREMENTS COMPLIANCE WITH ASPR 3-501(B) IS SUGGESTED.

TO R. E. WHITE & ASSOCIATES, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 4, 1970, YOUR LETTERS DATED APRIL 14 AND 17, 1970, AND A COPY OF YOUR LETTER OF FEBRUARY 5, 1970, TO THE DEFENSE ELECTRONICS SUPPLY CENTER (DESC), DAYTON, OHIO, PROTESTING, BEFORE AWARD, THE REJECTION OF YOUR PROPOSALS UNDER A REQUEST FOR QUOTATIONS (RFQ) ISSUED BY DESC ON NOVEMBER 18, 1969, PURSUANT TO PURCHASE REQUEST NOS. M5152050, M5022970, M5103040 AND D2906210, INITIATED BY THE UNITED STATES AIR FORCE. IN ADDITION, WE ACKNOWLEDGE YOUR LETTER OF MARCH 9, 1970, WITHDRAWING THE AMENDED PORTION OF YOUR PROTEST PREVIOUSLY FILED ON FEBRUARY 27, 1970, CONCERNING DEFENSE SUPPLY AGENCY SOLICITATION NO. DSA900-70-B-2220.

THE SUBJECT PROCUREMENT, NEGOTIATED UNDER THE PUBLIC EXIGENCY PROVISIONS OF 10 U.S.C. 2304(A)(2), AS IMPLEMENTED BY PARAGRAPH 3 202.2(VI) OF ARMED SERVICES PROCUREMENT REGULATION (ASPR), SOLICITED 231 EACH, 4 CIRCUIT, 2 POLE-DOUBLE-THROW, RESILIENT SWITCHES, FSN 5930 587-4075, TO BE IN ACCORDANCE WITH (IAW) AIR FORCE SOURCE CONTROL DRAWING NO. 69C37537. THE ONLY APPROVED SOURCE FOR THE REQUIRED SWITCH AS NAMED ON THE DRAWING IS SINGER CO. (SINGER), CONTROL SWITCH DIVISION (FORMERLY CONTROLS COMPANY OF AMERICA), FOLCROFT, PENNSYLVANIA, WHOSE APPROVED PART NUMBER IS H12-1002. THE SWITCH IS USED IN THE MAIN LANDING GEAR "DOWN-LOCK" OF THE F/TF102 WEAPONS SYSTEM TO CONTROL CIRCUITS TO THE ENGINE START AND IGNITION SYSTEM AND TO THE ENGINE GROUND COOLING SYSTEM.

INITIAL PROCUREMENT ACTION RESULTED FROM RECEIPT BY THE DESC CONTRACTING OFFICER OF AIR FORCE PURCHASE REQUEST NO. M5152050, ON AUGUST 26, 1969, FOR 30 EACH SWITCHES UNDER THE ABOVE-MENTIONED FSN PART NUMBER, IDENTIFIED BY GENERAL DYNAMICS CORP., CONVAIR SPECIFICATION 8-06983-1, SW #672-1, GENERAL DYNAMICS PART NUMBER 8 06982. HOWEVER, GENERAL DYNAMICS CORP., WHEN SOLICITED, RESPONDED "NO BID," AND REPORTED THAT THE PART WAS OBSOLETE AND HAD NOT BEEN SUPPLIED FOR APPROXIMATELY 10 YEARS. IN VIEW OF THIS INFORMATION, PURCHASE REQUEST M5152050 WAS RETURNED ON OCTOBER 10, 1969, TO DESC DIRECTORATE OF TECHNICAL OPERATIONS FOR VALIDATION OF THE REQUIREMENT. THIS ACTIVITY RETURNED THE PURCHASE REQUEST TO THE CONTRACTING OFFICER ON OCTOBER 24, 1969, AND RECOMMENDED PROCUREMENT OF CONTROL COMPANY OF AMERICA PART NUMBER H12-21. HOWEVER, ON OCTOBER 30, 1969, THE DESC DIRECTORATE OF TECHNICAL OPERATIONS ADVISED THE CONTRACTING OFFICER THAT A NEW AIR FORCE LOGISTICS COMMAND (AFLC) ENGINEERING PROCURMENT DATA PACKAGE FORM (FORM) HAD BEEN RECEIVED CITING THE SINGER COMPANY, CONTROL SWITCH DIVISION, PART NUMBER H12-1002. SUBSEQUENTLY, THREE ADDITIONAL PURCHASE REQUESTS (M5103040, M5022970 AND D2906210) WERE RECEIVED BY DESC FOR THE PROCUREMENT OF 198 EACH ADDITIONAL SWITCHES, RESULTING IN A TOTAL REQUIREMENT OF 231 UNITS, 150 OF WHICH WERE CLASSIFIED AS "URGENT."

ON NOVEMBER 7, 1969, YOUR FIRM WAS CONTACTED TO DETERMINE IF ANY SURPLUS STOCK OF THE CONTROLS COMPANY OF AMERICA PART NO. H12-21 WAS AVAILABLE. AN EMPLOYEE OF YOUR FIRM ADVISED THE CONTRACTING OFFICER THAT INVENTORY CARDS INDICATED THAT 207 EACH OF PART NO. H12-21 WERE ON HAND. BOTH AFLC AND SINGER WERE REQUESTED TO ADVISE WHETHER USE OR REWORK OF EXISTING H12- 21 STOCK WAS FEASIBLE. AFLC ADVISED THE CONTRACTING OFFICER THAT ONLY THE SWITCH SET FORTH IN THE DRAWING WAS ACCEPTABLE BECAUSE ATTEMPTS AT REWORK BY REPOTTING OF H12-21 SWITCHES AND CONNECTORS HAD PROVEN TO BE UNSATISFACTORY. IN ADDITION, A SINGER ENGINEER STATED THAT REWORK BY REPOTTING WOULD NOT BE FEASIBLE. ON NOVEMBER 18, 1969, YOUR FIRM WAS ADVISED THAT INFORMATION RECEIVED FROM THE AIR FORCE INDICATED THAT THE POTTING COMPOUND IN THE H12-21 SWITCH WAS NOT ACCEPTABLE, AND ON NOVEMBER 25, 1969, YOUR FIRM WAS FORWARDED A COPY OF THE RFQ. THE RFQ REQUIRED THAT ALL OFFERED SWITCHES BE "IAW AIR FORCE DWG 69C37537" WHICH REFERENCED THE APPROVED SOURCE AS THE SINGER COMPANY, PART NO. H12-1002 AND MIL-S- 8805. YOUR FIRM'S PROPOSAL, RECEIVED ON DECEMBER 10, 1969, INCLUDED AN ACCOMPANYING LETTER WHICH WAS INCORPORATED AS PART OF YOUR PROPOSAL BY REFERENCE. THIS LETTER OFFERED TWO PROPOSALS AS FOLLOWS:

"A. 75-299 PCS. SWITCH, SENSITIVE

FSN 5930-587-4075 IAW MANUFACTURER'S (CONTROL SWITCH DIVISION - CONTROLS CORP. OF AMERICA) P/N H12-21, EXCEPT POTTING COMPOUND IAW WITH SPECIFICATION MIL-S-8516 AS SPECIFIED AND IAW CONVAIR (GENERAL DYNAMICS) SPECIFICATION 8-06982. DELIVERY: COMPLETE WITHIN 90 DAYS ARO. QUALITY ASSURANCE WILL BE PROVIDED BY SUBJECTING ALL UNITS TO TESTS TO THE SATISFACTION OF COGNIZANT GOVERNMENT QAR.

"B. 75-299 PCS. SWITCH, SENSITIVE

FSN 5930-587-4075 IAW MANUFACTURER'S (CONTROL SWITCH DIVISION - CONTROLS CORP. OF AMERICA) P/N H12-1002 AND IAW AIR FORCE DRAWING 69C37537-1. H12- 1002 IS SAME AS H12-21 EXCEPT FOR DIFFERENCE IN WIRE POTTING COMPOUND (EXTERNAL TO SWITCH). H12-21 UNITS WILL BE REPOTTED AND RE-IDENTIFIED BY QUALIFIED SUB-CONTRACTOR UNDER THE SURVEILLANCE OF COGNIZANT GOVERNMENT QAR."

IN VIEW OF DESC'S CONCLUSION THAT YOU OFFERED ALTERNATE SWITCHES, YOUR PROPOSALS WERE FORWARDED TO THE DESC DIRECTORATE OF ENGINEERING STANDARDIZATION FOR EVALUATION. AFTER RECEIPT OF PERTINENT AND CONFIRMING INFORMATION FROM THE AIR FORCE, THAT ACTIVITY REJECTED BOTH PROPOSALS AND REAFFIRMED THE REQUIREMENT AND THE NECESSITY FOR THE ACQUISITION OF THE SWITCH IDENTIFIED ON THE DRAWING. THE DIRECTORATE ADVISED THAT ALL VENDORS OTHER THAN THE APPROVED SOURCE SPECIFIED ON THE DRAWING WERE REQUIRED TO PERFORM FIRST ARTICLE TESTING IN ACCORDANCE WITH THE DRAWING'S PROVISIONS. SUBSEQUENTLY, BY DESC LETTER OF JANUARY 22, 1970, YOUR FIRM WAS ADVISED OF THE PROPOSAL REJECTIONS. HOWEVER, YOU WERE GIVEN AN OPPORTUNITY TO SUBMIT A REVISED PROPOSAL, NOT LATER THAN FEBRUARY 5, 1970, OFFERING A SWITCH "IAW AIR FORCE DRAWING 69C37537," AND OFFERING FIRST ARTICLE OR QUALIFICATION TESTING IN ACCORDANCE WITH THE DRAWING AND THE MILITARY SPECIFICATION CITED THEREIN. THE RECORD INDICATES THAT YOU FAILED TO SUBMIT A REVISION IN ACCORDANCE WITH THE JANUARY 22 LETTER.

DESC'S JANUARY 22, 1970, LETTER TO YOUR FIRM DECLARED YOUR "A" PROPOSAL TO BE UNACCEPTABLE DUE TO THE FACT THAT IT OFFERED ALTERNATE SURPLUS SWITCHES WITH AN UNACCEPTABLE POTTING COMPOUND (MIL-S-8516), AND WAS IN ACCORDANCE WITH A SUPERSEDED DESIGN CONTROL DRAWING (GENERAL DYNAMICS 8- 06982), WHICH, IN TURN, IS BASED ON AN OBSOLETE MILITARY SPECIFICATION FOR SWITCHES (MIL-S-6743). PROPOSAL "B" WAS REJECTED BECAUSE YOU OFFERED TO REPOT AND REIDENTIFY THE SAME SWITCHES OFFERED IN PROPOSAL "A" WITHOUT OFFERING EVIDENCE THAT THE REQUIREMENTS OF THE DRAWING AND MIL-S-8805 WOULD BE MET.

THE DRAWING CONTAINED THE FOLLOWING PROVISION:

"APPROVED SOURCE

SINGER, CONTROLS CO. OF AMERICA

CONTROL SWITCH DIVISION (CODE 81640) FOLCROFT, PA PART NO. H12-1002

"ONLY THE ITEM DESCRIBED ON THIS DRAWING WHEN PROCURED FROM THE VENDOR LISTED HEREON IS APPROVED BY HQ AFLC (SGMES) FOR USE ON THE F 102 MAIN LANDING GEAR. AN ALTERNATE ITEM SHALL NOT BE USED WITHOUT PRIOR TESTING PER NOTE 4 AND APPROVAL BY HQ AFLC (SGMES) WRIGHT PATTERSON AFB OHIO."

NOTE 4 READS, IN PART, AS FOLLOWS:

"NOTES:

"4. SWITCH SHALL MEET ALL OF THE QUALIFICATION TEST REQUIREMENTS OF MIL- S-8805 *** ."

YOU INITIALLY CONTEND THAT THE RFQ CONTAINS NO REQUIREMENT FOR ANY OFFEROR TO SUBMIT EVIDENCE THAT THE TENDERED SWITCHES WILL MEET THE STANDARDS OF THE DRAWING AND APPLICABLE MILITARY SPECIFICATION. IN THIS REGARD, YOU ACKNOWLEDGE THAT THE DRAWING PROVISIONS REQUIRED PRIOR TESTING OF ANY OFFERED ALTERNATE ITEM IN ACCORDANCE WITH THE APPROPRIATE MILITARY SPECIFICATION, BUT ALLEGE THAT "THIS FIRM DID NOT OFFER AN ALTERNATE ITEM." HOWEVER, DESC REPORTS THAT THE SWITCHES OFFERED BY YOUR COMPANY WERE, IN FACT, "ALTERNATES" WITHIN THE FRAMEWORK OF THE SPECIFICATIONS FOR THE FOLLOWING REASONS:

" *** PROPOSAL 'A' OFFERED AN ALTERNATE ITEM BY ANY REASONABLE DEFINITION OF THE TERM, SINCE THE PROPOSED SWITCHES WERE POTTED IN ACCORDANCE WITH MIL-S-8516 RATHER THAN MIL-I-16923 AS REQUIRED BY AIR FORCE DRAWING 69C37537, AND SINCE THEY WERE MANUFACTURED TO A SUPERSEDED GENERAL DYNAMICS SPECIFICATION. IT IS TRUE THAT WHITE'S PROPOSAL 'B' STATED THAT WHITE WOULD FURNISH SWITCHES 'IAW AIR FORCE DRAWING 69C37537-1'; HOWEVER, IT WAS CLEAR FROM PROPOSAL 'B' THAT WHITE INTENDED TO MODIFY (REPOT) H12- 21 SWITCHES AND THAT WHITE DID NOT INTEND TO PERFORM QUALIFICATION TESTS ON THE MODIFIED SWITCHES AS REQUIRED BY NOTE 4 ON AIR FORCE DRAWING 69C37537. WHITE'S PROPOSAL 'B' STATED THAT 'QUALITY ASSURANCE WILL BE PROVIDED BY SUBJECTING ALL UNITS TO TESTS TO THE SATISFACTION OF COGNIZANT GOVERNMENT QAR,' WHICH IS NOT AN AGREEMENT TO COMPLY WITH NOTE 4 OF THE DRAWING. UNDER SUCH CIRCUMSTANCES, THE GOVERNMENT WAS JUSTIFIED IN TREATING PROPOSAL 'B' AS OFFERING AN 'ALTERNATE' ITEM. IF THERE HAD BEEN ANY DOUBT WHETHER WHITE INTENDED UNDER PROPOSAL 'B' TO CONDUCT TESTS TO DEMONSTRATE THAT THE REWORKED (REPOTTED) SWITCHES WOULD MEET ALL REQUIREMENTS OF AIR FORCE DRAWING 69C37537, SUCH DOUBT WAS REMOVED BY WHITE'S REFUSAL TO QUOTE ON FIRST ARTICLE (QUALIFICATION) TESTING WHEN REQUESTED TO DO SO BY DESC LETTER DATED 22 JAN 1970."

AS TO THE DEPOTTING-REPOTTING PROPOSAL "B" OF YOUR OFFER, THE USING ACTIVITY STATES THAT, EXCEPT FOR TEMPORARY EMERGENCY CIRCUMSTANCES, THIS PROCEDURE IS UNACCEPTABLE.

DESC ADVISED WITH RESPECT TO THIS ASPECT OF THE PROTEST THAT:

"BOTH PROPOSALS BY WHITE WERE CONSIDERED TO BE ALTERNATE PROPOSALS AND WERE FORWARDED TO THE DESC DIRECTORATE OF ENGINEERING STANDARDIZATION FOR EVALUATION. BASED ON INFORMATION RECEIVED FROM THE AIR FORCE, THE DESC DIRECTORATE OF ENGINEERING STANDARDIZATION, BY LETTER DATED 6 JAN 1970, REJECTED BOTH PROPOSALS (I.E., A AND B) FROM WHITE AND REAFFIRMED THAT THE REQUIRED ITEM IS H12-1002 IAW AIR FORCE DRAWING 69C37537 AND ALL VENDORS OTHER THAN THE APPROVED SOURCE SPECIFIED ON THE DRAWING, (SINGER, CONTROL SWITCH DIVISION), MUST PERFORM FIRST ARTICLE TESTING. IT WAS FURTHER POINTED OUT THAT THE H12 21 SWITCH OFFERED BY WHITE UNDER PROPOSAL 'A' CONTAINED AN UNACCEPTABLE POTTING COMPOUND (MIL-S-8516) AND WAS IN ACCORDANCE WITH A SUPERSEDED DESIGN CONTROL DRAWING (GENERAL DYNAMICS 8- 06982) BASED ON OBSOLETE SPECIFICATION MIL-S-6743; AND THAT WHILE UNDER PROPOSAL 'B' WHITE HAD OFFERED TO MODIFY THE H12-21 BY REPOTTING AND REIDENTIFICATION, THERE WAS NO EVIDENCE THAT SUCH SWITCHES WOULD MEET ALL REQUIREMENTS OF AIR FORCE DRAWING 69C37537 AND MIL-S-8805 CITED THEREON. WHILE THE ITEM DESCRIPTION IN WHITE'S PROPOSAL 'B' STATES THAT THE ITEM WOULD BE IAW AIR FORCE DRAWING 69C37537-1, IT IS CONSIDERED CLEAR THAT WHITE DID NOT INTEND TO CONDUCT ANY QUALIFICATION TESTS ON THE MODIFIED (REPOTTED) SWITCHES OR OBTAIN APPROVAL FROM HEADQUARTERS AFLC (SGMES) AS REQUIRED BY AIR FORCE DRAWING 69C37537. WHITE'S PROPOSAL 'B' STATES THAT QUALITY ASSURANCE (WHICH REFERS TO PRODUCTION TESTING RATHER THAN QUALIFICATION TESTING) WILL BE PROVIDED BY SUBJECTING ALL UNITS TO TESTS TO THE SATISFACTION OF THE COGNIZANT GOVERNMENT QAR (QUALITY ASSURANCE REPRESENTATIVE).

"IN AN EFFORT TO ASCERTAIN IF SINGER, CONTROL SWITCH DIVISION, HAD EVER MANUFACTURED ANY SWITCHES UNDER PART NO. H12-21 TO THE LATEST SPECIFICATION, MIL-S-8805, AND, IF SO, WHETHER SUCH SWITCHES COULD HAVE BECOME SURPLUS STOCK, AN INQUIRY WAS MADE BY THE CONTRACTING OFFICER BY TELEPHONE ON 12 JANUARY 1970 TO THE CONTROL SWITCH DIVISION OF SINGER. LETTER DATED 13 JAN 1970, CONTROL SWITCH DIVISION ADVISED THAT THE H12-21 SWITCH HAD NEVER BEEN MANUFACTURED TO THE REQUIREMENTS OF SPECIFICATION MIL-S-8805 AND THE H12-1002 HAS NEVER BEEN MANUFACTURED. THUS, NONE COULD BE IN SURPLUS STOCK. CONTROL SWITCH DIVISION OF SINGER ALSO EMPHASIZED THAT IN ADDITION TO THE DIFFERENT POTTING COMPOUNDS USED IN THE H12-21 AND H12-1002 SWITCHES, AIR FORCE DRAWING 69C37537 SPECIFIES THAT THE INTERNAL SWITCH MECHANISM OF THE H12-1002 MUST BE FLAME RETARDENT DIALL SDG-F/MIL-M -14 MATERIAL WHICH WAS NOT A REQUIREMENT FOR THE H12-21 SWITCH."

THIS OBVIOUS CONFLICT OF TECHNICAL OPINIONS CANNOT BE RESOLVED BY OUR OFFICE. TO DO SO WOULD INVOLVE OUR OFFICE AS AN ARBITER OF TECHNICAL DISPUTES AS TO WHICH WE DO NOT HAVE THE NECESSARY EXPERTISE. WE THEREFORE ARE REQUIRED TO RELY UPON THE JUDGMENT OF ENGINEERING PERSONNEL OF THE PROCURING AND/OR REQUESTING ACTIVITY. IN THE ABSENCE OF ARBITRARINESS, CAPRICIOUSNESS, BAD FAITH, OR SUBSTANTIAL EVIDENCE, THE CONTRACTING OFFICER'S TECHNICAL FACTUAL DETERMINATION AS TO THE CONFORMABILITY OF YOUR SWITCHES TO THE AIR FORCE DRAWING MAY NOT BE QUESTIONED BY OUR OFFICE. SEE B-165871, MARCH 13, 1969, AND CASES CITED THEREIN; B-167302, OCTOBER 17, 1969.

ANOTHER CONTENTION IN SUPPORT OF YOUR PROTEST DEALS WITH THE ALLEGED RESTRICTIVE NATURE OF THE SPECIFICATION REQUIREMENTS ESTABLISHED BY AFLC IN "PLACING UNDUE RESTRICTIONS AND LIMITATIONS UPON THE PROCURING AGENCY (DESC) BY STATING (ON THE DRAWING) 'ONLY THE ITEM DESCRIBED ON THE DRAWING WHEN PROCURED BY THE VENDOR LISTED HEREON IS APPROVED BY HQ, AFLC (SGMES), FOR USE ON THE F-102 MAIN LANDING GEAR.'" YOU CONTINUE BY STATING: "THIS STATEMENT IS NOT IN THE BEST INTEREST OF THE GOVERNMENT. IT DISCOURAGES BIDDING AND DISCRIMINATES AGAINST OTHER BIDDERS WHO CAN SUPPLY THE PART REQUESTED. BY DIRECTION, DESC MUST PROCURE THE APPROVED PART NUMBER ON THE PRINT FROM THE 'APPROVED SOURCE.'

"THIS IS AN ARBITRARY AND CAPRICIOUS POLICY, AND APPARENTLY ESTABLISHED BY CERTAIN INDIVIDUALS WITHIN THE AIR FORCE LOGISTICS COMMAND FOR THE PURPOSE OF CONTROLLING THE PROCUREMENT SOURCES OF CERTAIN ITEMS USED BY THE USAF. *** " YOUR FIRM'S APRIL 17, 1970, LETTER TO OUR OFFICE RECOGNIZES, IN PART, THE INCORRECT NATURE OF THIS CONTENTION, AND CLARIFIES THIS ASPECT OF YOUR PROTEST AS FOLLOWS:

"WE SHOULD HAVE AND MEANT TO SAY, 'BY DIRECTION, DESC MUST PROCURE AN APPROVED PART NUMBER FROM AN APPROVED SOURCE.'"

WE DO NOT BELIEVE THAT THE RFQ RESTRICTED THE SUBMISSION OF A RESPONSIVE OFFER TO ONLY THE APPROVED SOURCE TO THE EXCLUSION OF ALL OTHER SOURCES. IN THIS CONNECTION, AFLC, IN ITS PROCUREMENT REQUEST, ADVISED DESC THAT AVAILABLE DATA ON THE REQUIRED SWITCH WOULD SUPPORT "COMPETITIVE PROCUREMENT." THE SOURCE CONTROL DRAWING ENHANCED RATHER THAN RESTRICTED COMPETITION BY PERMITTING THE ACCEPTANCE OF A SWITCH OFFERED BY A NONAPPROVED SOURCE, SO LONG AS FIRST ARTICLE TESTING COULD BE PERFORMED. THE INCLUSION OF THE TESTING REQUIREMENTS IN THE DRAWING WAS IN STRICT COMPLIANCE WITH THE PROCEDURES APPLICABLE TO THE PREPARATION OF SOURCE CONTROL DRAWINGS (MIL-STD-100A) AND IN ACCORDANCE WITH THE DETERMINATION BY THE AIR FORCE THAT IT WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT TO REQUIRE TESTS FOR THE ITEM YOU OFFERED. THEREFORE, THE OPPORTUNITY AFFORDED YOUR COMPANY TO SUBMIT A REVISED PROPOSAL WOULD SEEM TO DISPOSE OF THE "SOLE-SOURCE" CONTENTION OF YOUR PROTEST.

OUR OFFICE HAS CONSISTENTLY HELD THAT THE DETERMINATION OF THE MINIMUM OR ACTUAL NEEDS OF THE GOVERNMENT FOR SUPPLIES AND SERVICES IS PRIMARILY THE RESPONSIBILITY OF THE PROCUREMENT AGENCY AND THE MANNER IN WHICH SUCH NEEDS MAY BE SATISFIED MAY NOT BE DICTATED BY PROSPECTIVE CONTRACTORS. THIS REGARD, THE AIR FORCE HAS ADVISED AS FOLLOWS:

"A. PROPOSAL A (10 DEC 1969, R. E. WHITE LTR) IS NOT ACCEPTABLE. THE ITEMS DO NOT MEET THE AF DRAWING REQUIREMENTS FOR THE SWITCH AND THE POTTING REQUIREMENTS.

"B. PROPOSAL B (10 DEC 1969, R. E. WHITE LTR) IS NOT ACCEPTABLE. REPOTTING OF SWITCHES HAS PREVIOUSLY BEEN FOUND UNACCEPTABLE UNDER PREVIOUS PROPOSALS. REPOTTING OF CONNECTORS ON AIRCRAFT HAS ALSO PROVEN UNSUCCESSFUL. THE POSITION TAKEN BY THE AIR FORCE MATERIALS LABORATORY IN REPOTTING IS NOT ACCEPTABLE TO THE AIR FORCE. IN ADDITION, IT IS QUESTIONABLE IF THE INTERNAL BASIC SWITCHES INCORPORATE THE LATEST MATERIAL REQUIREMENT.

"C. FIRST ARTICLE TESTING IS REQUIRED FOR UNAPPROVED SOURCES BASED UPON THE CRITICAL APPLICATION STATED ON THE AF DRAWING, 'F-102 MAIN LANDING GEAR'. AN ITEM OF KNOWN QUALITY/RELIABILITY MUST BE USED IN THE APPLICATION.

"D. THE SOURCE STATED ON 69C37537 MEETS THE REQUIREMENTS ESTABLISHED BY AFLC/SGME. *** "

THE WAIVER OF FIRST ARTICLE APPROVAL FOR SINGER WAS PREDICATED UPON THE FACT THAT SINGER HAD FURNISHED SIMILAR SWITCHES IN THE PAST TO THE AIR FORCE. IN FACT, WAIVER WAS SPECIFICALLY PROVIDED IN THE CASE OF SINGER BY THE LEGEND ON THE FACE OF THE DRAWING, QUOTED ABOVE. THE FORM WHICH DESC RECEIVED FROM AFLC DEFINITIZING THE SOURCE AND PART REQUIREMENT READS, IN PART, AS FOLLOWS:

"1. WAIVERS: WAIVER OF FIRST ARTICLE TESTING IS AUTHORIZED TO BE GRANTED TO VENDOR LISTED IN SECTION IV TO THE EXTENT SPECIFIED. ALL PREPRODUCTION TESTING IS WAIVED FOR SINGER, CONTROLS OF AMERICA.

"2. VENDORS NOT LISTED IN SECTION IV MUST PERFORM FIRST ARTICLE TESTING IN ACCORDANCE WITH DRAWING NUMBER 69C37537-1 AND MIL-S-8805, AND SUBMIT A TEST REPORT, IN ACCORDANCE WITH MIL-STD-831, TO HQ AFLC, ATTN: SGME FOR EVALUATION AND APPROVAL."

ON THE RECORD BEFORE US, WE CONCLUDE THAT THE INSTANT PROCUREMENT IS NOT SUBJECT TO LEGAL OBJECTION. NEITHER DO WE FIND ANY BASIS TO QUESTION THE DETERMINATION TO REQUIRE FIRST ARTICLE TESTING IN THE CASE OF OFFERORS TENDERING SWITCHES DEVIATING FROM THE STANDARDS SET OUT IN THE AIR FORCE DRAWING.

ACCORDINGLY, YOUR PROTEST IS DENIED.