B-172901, B-173039, B-173087, OCT 14, 1971

B-172901, B-173039, B-173087, OCT 14, 1971

BID PROTEST - SOLE SOURCE PROCUREMENTS - COMPETITION AVAILABLE - DRAWING CHANGES DECISION CONCERNING PROTESTS AGAINST AWARD OF CONTRACTS TO ANY OTHER OFFERORS UNDER THREE SEPARATE RFPS, -3104, -3074, -3131, ISSUED BY THE OGDEN AIR MATERIEL AREA, HILL AFB, FOR COMPONENTS OF THE BRAKING SYSTEMS OF THE KC-135T AND F-104 AIRCRAFT. THE SOLE-SOURCE SYNOPSIS IN THE COMMERCE BUSINESS DAILY, THE SPECIFIC USE OF THE BENDIX PART NUMBER WITHOUT ANY "OR EQUAL" STIPULATION, AND THE INITIAL SOLE-SOURCE ISSUANCE OF RFPS -3074 AND -3131 DID NOT RESTRICT THE PROCUREMENTS TO PROTESTANT. WHILE THE SYNOPSIS WAS EXPRESSLY DELINIATED FOR SUBCONTRACTING OPPORTUNITIES ONLY, IT PLACED NO CONSTRAINTS UPON THE PROCUREMENT ACTIVITY AGAINST OPENING THE PROCUREMENT TO COMPETITION, AND ABSENT SUFFICIENT REASONS, COMPETITION IN ALL ASPECTS OF PROCUREMENT IS THE DESIRED GOAL (50 COMP. GEN. , B 169712, SEPT. 16, 1970). FURTHER, 10 U.S.C. 2304(G), AS IMPLEMENTED BY ASPR 3-102(C) REQUIRES COMPETITION TO THE MAXIMUM EXTENT PRACTICABLE. THEREFORE, THE PROTESTS WITH RESPECT TO RFPS -3074 AND -3131 ARE DENIED. HOWEVER, AN AMENDMENT TO RFP -3104 WHICH CHANGED THE REQUIREMENT FROM TEFLON COATED TO HARD ANODIZED PISTONS CONSTITUTED AN IMPROPER DRAWING CHANGE AND THE APPARENT FAILURE TO COMMUNICATE SUCH CHANGE TO BENDIX RESULTED IN UNEQUAL COMPETITION. THEREFORE, THE SECRETARY OF THE AIR FORCE IS BEING ADVISED THAT NEGOTIATIONS UNDER RFP -3104 SHOULD BE REOPENED TO ALLOW PROTESTANT AND OTHERS SIMILARLY SITUATED TO REVISE THEIR PROPOSALS.

TO THE BENDIX CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF JULY 18, 1971, AND PRIOR CORRESPONDENCE, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER OFFEROR UNDER REQUESTS FOR PROPOSALS (RFP) NOS. F42600-71-R-3104, -3074, -3131, ISSUED BY THE OGDEN AIR MATERIEL AREA, HILL AIR FORCE BASE, UTAH.

SINCE NO AWARD HAS BEEN MADE AND A NEGOTIATED PROCUREMENT IS INVOLVED, OUR OFFICE IS RESTRICTED IN ITS RECITATION OF THE FACTS PURSUANT TO PARAGRAPH 3-507.2(A) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

THE THREE COMPONENTS INVOLVED ARE ALL ASSEMBLIES OF THE BRAKING SYSTEMS OF THE KC-135T AND F-104 AIRCRAFT. ALL PARTS NUMBERS REFERENCED ARE THE DEPARTMENT OF DEFENSE (DOD) USAF FEDERAL SUPPLY CATALOG, MASTER CROSS REFERENCE LIST (JANUARY 1, 1971), WHICH LISTS THE BENDIX CORPORATION, ENERGY CONTROLS DIVISION (BENDIX), AS THE MANUFACTURER. IN EACH INSTANCE, THE DETERMINATION AND FINDINGS (D&F) CITED AS AN AUTHORITY TO NEGOTIATE THE PROCUREMENT 10 U.S.C. 2304(A)(10), IMPLEMENTED BY EITHER SUBPARAGRAPH 3-210.2(XV) OR (II) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). ASPR 3-210.2(II) PROVIDES FOR NEGOTIATION WHEN COMPETITION IS PRECLUDED BECAUSE OF THE EXISTENCE OF PATENT RIGHTS, COPYRIGHTS, SECRET PROCESSES, CONTROL OF BASIC RAW MATERIAL, OR SIMILAR CIRCUMSTANCES. ASPR 3-210.2(XV) PROVIDES FOR NEGOTIATION WHERE THE PROCUREMENT IS FOR REPLACEMENT PARTS AND ADEQUATE SPECIFICATIONS ARE NOT AVAILABLE. ALL THREE PROCUREMENTS WERE SYNOPSIZED IN THE COMMERCE BUSINESS DAILY (CBD) AS SOLE SOURCE TO BENDIX, BEARING REFERENCE TO NOTE 5 WHICH PROVIDED:

"THE PROPOSED PROCUREMENT HAS BEEN SYNOPSIZED SOLELY FOR THE PURPOSE OF REFLECTING SUB-CONTRACTING OPPORTUNITIES WHICH MAY OR MAY NOT BE AVAILABLE. THE FIRMS LISTED IN THE COMMERCE BUSINESS DAILY ARE THE ONLY FIRMS KNOWN TO THE PROCURING ACTIVITY WHICH HAVE THE FACILITIES, DATA, AND TECHNICAL KNOWLEDGE NECESSARY TO MEET THE PROCUREMENT REQUIREMENTS. FOR THOSE REASONS, SOLICITATION HAS BEEN LIMITED TO THOSE KNOWN FIRMS.

"ANY FIRM NOT LISTED IN THIS PUBLISHED NOTICE MAY OBTAIN A BID SET FOR DIRECT BIDDING ONLY BY FURNISHING A WRITTEN STATEMENT BY A CORPORATE OFFICIAL OF THE COMPANY, CERTIFYING THAT THE COMPANY POSSESSES THE LATEST DATA, AND THE FACILITIES, EQUIPMENT AND TECHNICAL KNOW-HOW TO PERFORM AS A PRIME CONTRACTOR ON THE PROCUREMENT CONCERNED.

"REQUESTS FOR BID SETS FOR THIS PROCUREMENT WILL NOT BE HONORED WITHOUT THE PRESCRIBED CERTIFICATE FROM CORPORATE LEVEL."

ALL PROPOSALS WERE SOLICITED FOR INCREMENTAL QUANTITIES WITH AN OPTION TO INCREASE THE AMOUNT NOT TO EXCEED 200 PERCENT OF THE FIRST INCREMENT (INCREMENT A).

RFP -3104, SYNOPSIZED IN THE CBD ON MARCH 25, 1971, WAS ISSUED MARCH 29, 1971, REQUESTING PROPOSALS FOR FEDERAL STOCK NUMBER (FSN) "16306898902LE, PISTON ASSEMBLY, BRA, P/N 2600973." THE D&F PROVIDED:

"FINDINGS

"1. THE OGDEN AIR MATERIEL AREA PROPOSES TO PROCURE BY NEGOTIATION CERTAIN PARTS OR COMPONENTS AS REPLACEMENT PARTS IN SUPPORT OF THE KC 135 AIRCRAFT. THE APPLICABLE EQUIPMENT WAS SPECIALLY DESIGNED AND MANUFACTURED BY THE BENDIX CORP., AND ALSO MANUFACTURED BY ONE OR MORE FIRMS. ***

"2. PROCUREMENT BY NEGOTIATION OF THE PARTS OR COMPONENTS REQUIRED AS REPLACEMENT PARTS IN SUPPORT OF THE EQUIPMENT DESCRIBED ABOVE IS NECESSARY BECAUSE FULLY ADEQUATE DATA AND QUALITY ASSURANCE PROCEDURES ARE NOT AVAILABLE AND CANNOT REASONABLY BE MADE AVAILABLE. ONLY THE ABOVE NAMED DESIGNERS) AND MANUFACTURERS) OF THE EQUIPMENT IS/ARE CAPABLE OF FURNISHING PARTS OR COMPONENTS WHICH ASSURE THE REQUISITE SAFE, DEPENDABLE AND EFFECTIVE OPERATION OF THE EQUIPMENT.

"3. THE USE OF FORMAL ADVERTISING IS IMPRACTICABLE BECAUSE THE DATA AVAILABLE ARE 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.

"DETERMINATION

"THE PROPOSED CONTRACT IS FOR PROPERTY OR SERVICES FOR WHICH IT IS IMPRACTICABLE TO OBTAIN COMPETITION BY FORMAL ADVERTISING."

INCREMENTAL QUANTITY "A" IS FOR 4,046 UNITS; INCREMENTAL QUANTITIES "B" AND "C" ARE FOR 3,650 UNITS; AND INCREMENTAL QUANTITY "D" IS FOR 792 UNITS.

THE SCHEDULE ITEM BEARS A 4D CODING, AFR 57-6, DOD HIGH DOLLAR SPARE PARTS BREAKOUT PROGRAM, MARCH 1969. THIS CODING IS EXPLAINED AS FOLLOWS:

"ITEMS SCREENED AND DETERMINED FOR THE FIRST TIME TO BE SUITABLE FOR DIRECT PURCHASE FROM THE ACTUAL MANUFACTURER OR VENDOR RATHER THAN THE ORIGINAL PRIME CONTRACTOR FOR THE END ITEMS WHICH THESE PARTS SUPPORT.

"THE DATA NEEDED TO PROCURE THIS ITEM FROM ADDITIONAL SOURCES IS NOT PHYSICALLY AVAILABLE, IT CANNOT BE OBTAINED NOR IS IT POSSIBLE TO DRAFT ADEQUATE SPECIFICATIONS OR ANY OTHER ADEQUATE DESCRIPTION OF THE REQUIRED MATERIAL FOR A SOLICITATION OF BIDS OR PROPOSALS FROM ADDITIONAL SOURCES."

RFPS WERE SENT TO BENDIX AND ONE OR MORE PROSPECTIVE CONTRACTORS. SINCE THE OTHER CONTRACTORS) SOLICITED HAD NOT SUCCESSFULLY QUALIFIED FIRST ARTICLES OF THE REFERENCED PART UNDER OTHER CONTRACTS, AT THE TIME RFP - 3104 WAS ISSUED, NO CONTRACTORS OTHER THAN BENDIX WERE NAMED IN THE CBD. FURTHER, FOR THE SAME REASON, A DD FORM 633, CONTRACTOR PRICING PROPOSAL, USUALLY EMPLOYED ONLY IN SOLE-SOURCE PROCUREMENTS, WAS SENT TO BENDIX TO SAVE ADMINISTRATIVE COSTS IN THE EVENT THAT THE OTHER CONTRACTORS) FAILED TO QUALIFY ITS PART.

PROPOSALS WERE RECEIVED FROM BENDIX AND THE OTHER CONTRACTORS) BY THE CLOSING DATE OF APRIL 27, 1971. IT IS REPORTED THAT SOME TIME BETWEEN ISSUANCE OF RFP -3104 AND THE CLOSING DATE, THE COGNIZANT PROCUREMENT OFFICIALS RECEIVED OUR DECISION B-170276, MARCH 25, 1971, WHEREIN WE HELD AS FOLLOWS:

"THE CIRCUMSTANCES OF THIS PROCUREMENT *** REQUIRED THE EXTENSION OF EQUAL NEGOTIATION OPPORTUNITY TO BOTH BFG AND NASCO WHEN THE CHARACTER OF THE PROCUREMENT CHANGED FROM SOLE SOURCE TO COMPETITIVE. IN VIEW OF THIS, AND IN CONSONANCE WITH PARAGRAPH 3-805.1(B) AND (E) OF THE ARMED SERVICES PROCUREMENT REGULATION, WE BELIEVE THAT THE RFP SHOULD HAVE BEEN AMENDED TO INDICATE THE ACCEPTABILITY OF AN 'OR EQUAL' ITEM OR TO INCLUDE SOME TECHNICAL DESCRIPTION OF THE ITEM, WITH NOTICE THEREOF TO BOTH OFFERORS AND ADVICE THAT BEST AND FINAL OFFERS WOULD BE CONSIDERED UP TO A FIXED CLOSING DATE. *** "

ON THE BASIS OF THIS DECISION, RFP -3104 WAS AMENDED ON APRIL 29, 1971, TO ADVISE OFFERORS) OF THE COMPETITIVE NATURE OF THE PROCUREMENT AND REQUESTED BEST AND FINAL OFFERS BY MAY 7, 1971. BENDIX AND THE OTHER OFFERORS) RESPONDED BY THE NEW CLOSING DATE.

RFP -3074 WAS SYNOPSIZED IN THE CBD ON MARCH 11, 1971, AND WAS ISSUED MARCH 12, 1971, SOLICITING PROPOSALS FOR FSN "16306737009, CARRIER ASSEMBLY, BRAKE, P/N 148711." UNDER THIS RFP, INCREMENTAL QUANTITY "A" IS 178 UNITS AND INCREMENTAL QUANTITIES "B", "C" AND "D" ARE 118 UNITS. THE D&F PROVIDED:

"FINDINGS

"1. THE OGDEN AIR MATERIEL AREA PROPOSES TO PROCURE BY NEGOTIATION CERTAIN PARTS OR COMPONENTS AS REPLACEMENT PARTS IN SUPPORT OF THE F 104 AIRCRAFT. THE APPLICABLE EQUIPMENT WAS SPECIALLY DESIGNED AND MANUFACTURED BY BENDIX CORPORATION. ***

"2. THIS PROCUREMENT IS FOR SPARE PARTS SPECIALLY DESIGNED BY THE MANUFACTURER WHERE GOVERNMENT RIGHTS TO UTILIZE DATA ARE LIMITED BECAUSE OF THE EXISTENCE OF PATENT RIGHTS, COPYRIGHTS, SECRET PROCESSES AND/OR PROPRIETARY DATA DEVELOPED AT CONTRACTOR'S EXPENSE.

"3. USE OF FORMAL ADVERTISING IS IMPRACTICABLE BECAUSE RIGHTS TO USE DATA FOR PROCUREMENT OF THIS ITEM FROM ADDITIONAL SOURCES ARE LEGALLY UNAVAILABLE AND CANNOT BE ACQUIRED BY PURCHASE.

"DETERMINATION

"THE PROPOSED CONTRACT IS FOR PROPERTY OR SERVICES FOR WHICH IT IS IMPRACTICABLE TO OBTAIN COMPETITION BY FORMAL ADVERTISING."

THIS PROCUREMENT BEARS A 3P CODING (AFR 57-6, SUPRA), WHICH IS EXPLAINED AS FOLLOWS:

"ITEMS SCREENED AND FOUND TO BE PROCURED DIRECTLY FROM THE ACTUAL MANUFACTURER OR VENDOR, INCLUDING A PRIME CONTRACTOR WHO IS THE ACTUAL MANUFACTURER. ***

"RIGHTS TO USE DATA FOR PROCUREMENT OF THIS ITEM FROM ADDITIONAL SOURCES ARE LEGALLY UNAVAILABLE AND CANNOT BE ACQUIRED BY PURCHASE."

THEREFORE, RFP -3074 WAS SENT ONLY TO BENDIX FOR RESPONSE BY APRIL 13, 1971. THE ONLY OTHER QUALIFIED SOURCE LISTED BY THE AIR FORCE WAS A DEFUNCT CORPORATION. THEREAFTER, ONE OR MORE OFFERORS CERTIFIED AS TO THEIR POSSESSION OF COMPLETE DATA AND TOOLING APPLICABLE TO P/N 148711, ACQUIRED FROM THE DEFUNCT CORPORATION, AND SUBMITTED EVIDENCE OF QUALIFICATION GRANTED BY THE AEROSPACE VEHICLE ALIGHTING SYSTEMS BRANCH, SERVICE ENGINEERING DIVISION, THE COGNIZANT TECHNICAL ACTIVITY. THE OTHER OFFERORS) ACCORDINGLY REQUESTED A COPY OF RFP 3074.

WE HAVE BEEN INFORMED THAT IT IS THE PRACTICE OF THE AIR FORCE TO OBTAIN INDIVIDUAL CLEARANCE FROM THE COGNIZANT TECHNICAL ACTIVITY FOR EACH MANUFACTURER OF QUALIFIED ITEMS. THE CONTRACTING OFFICER REPORTS THAT UPON RECEIPT OF NOTIFICATION OF THE OFFERORS)' QUALIFICATION TO MANUFACTURE THIS PART, RFP -3074 WAS AMENDED ON APRIL 27, 1971, TO PERMIT THE OTHER OFFERORS) TO PARTICIPATE. THIS AMENDMENT EXTENDED THE CLOSING DATE TO MAY 3, 1971, INCREASED THE QUANTITY OF INCREMENT "A" FROM 178 UNITS TO 217 UNITS, AND ADVISED OF THE COMPETITIVE NATURE OF THE PROCUREMENT. ON MAY 13, 1971, A TWX CHANGING THE REQUIRED DELIVERY SCHEDULE, EXTENDING THE CLOSING TIME TO MAY 25, 1971, AND REQUESTING BEST AND FINAL OFFERS, WAS TRANSMITTED TO BENDIX AND THE OTHER PROSPECTIVE CONTRACTORS). OFFERS WERE RECEIVED FROM BENDIX AND THE OTHER SOLICITED SOURCES) BY THE CLOSING DATE.

RFP -3131 WAS SYNOPSIZED IN THE CBD ON MARCH 25, 1971, AND WAS ISSUED MARCH 30, 1971, WITH A CLOSING DATE OF APRIL 28, 1971, REQUESTING PROPOSALS FOR FSN "16305067761, PISTON AND INSULATION, P/N 149688, APPL: F -104 ACFT." THE D&F WAS IDENTICAL TO THAT OF RFP -3074. INCREMENT "A" IS FOR 549 UNITS, INCREMENTS "B", "C" AND "D" ARE 141 EACH. SINCE THIS PROCUREMENT ALSO CARRIES A 3P CODING, A BENDIX WAS THE SOLE RECIPIENT OF THE RFP, THE ONLY OTHER LISTED FIRM BEING A DEFUNCT CORPORATION. LETTER DATED MARCH 29, 1971, ONE OR MORE OFFERORS SUBMITTED THE CERTIFICATION APPLICABLE TO P/N 149688 REQUIRED BY NOTE 5 OF THE CBD, AND REQUESTED A COPY OF THE RFP. NOTIFICATION OF THE QUALIFICATION OF OTHER SOURCES) WAS RECEIVED MAY 6, 1971, STATING THAT THE OTHER SOURCES) SHOULD HAVE BEEN SOLICITED FOR THE PROCUREMENT. THEREFORE, BY TWX DATED MAY 17, 1971, BENDIX AND THE OTHER OFFERORS) WERE REQUESTED TO SUBMIT THEIR BEST AND FINAL OFFERS BY MAY 28, 1971. OFFERORS RESPONDED TIMELY.

IT IS YOUR CONTENTION THAT THE SOLE-SOURCE SYNOPSIS IN THE CBD, THE SPECIFIC USE OF YOUR PART NUMBER WITHOUT ANY "OR EQUAL" STIPULATION, AND THE INITIAL SOLE-SOURCE ISSUANCE OF RFP -3074 AND -3131 RESTRICTED THE PROCUREMENTS TO BENDIX.

WE OBSERVE THAT WHILE THE SYNOPSIS IN THE CBD WAS EXPRESSLY DELINEATED FOR SUBCONTRACTING OPPORTUNITIES ONLY, IT PLACED NO CONSTRAINTS UPON THE PROCUREMENT ACTIVITY AGAINST OPENING THE PROCUREMENTS TO COMPETITION. HAVE CONSISTENTLY HELD THAT ABSENT SUFFICIENT DOCUMENTARY REASONS, COMPETITION IN ALL ASPECTS OF PROCUREMENT IS THE DESIRED GOAL AND THAT CONTINUED VIGILANCE SHOULD BE EXERCISED IN AN EFFORT TO MAXIMIZE COMPETITION. 50 COMP. GEN. (B 169172, SEPTEMBER 16, 1970). FURTHER, 10 U.S.C. 2304(G), AS IMPLEMENTED BY ASPR 3-102(C), REQUIRES COMPETITION TO THE MAXIMUM EXTENT PRACTICABLE. AFR 57-6, SECTION 1-300 IS TO THE SAME EFFECT. THEREFORE, WHEN THE AIR FORCE BECAME AWARE OF OTHER QUALIFIED SOURCES), IT WAS INCUMBENT UPON IT TO SOLICIT THOSE FIRMS) TO ATTAIN THE MAXIMUM COMPETITION. THUS, UNDER RFP -3104, OFFERORS) OTHER THAN BENDIX WERE NECESSARILY SOLICITED BECAUSE SUCH OFFERORS) PROVIDED EVIDENCE OF PREVIOUS MANUFACTURING EXPERIENCE.

CONCERNING RFP -3074 AND -3131, THE TECHNICAL QUALIFICATION GRANTED TO THE OFFERORS) INVOLVED BY OOAMA ENGINEERING, COUPLED WITH THE CERTIFICATION REQUIRED BY NOTE 5 OF THE CBD, PROVIDED A BASIS FOR INCLUDING THOSE OFFERORS) IN THE PROCUREMENT. IN YOUR LETTER DATED AUGUST 27, 1971, YOU NOTE THAT ANOTHER COMPETITOR CERTIFIED THAT IT POSSESSED "COMPLETE" DATA APPLICABLE TO P/N 148711, NOT THE "LATEST" DATA CERTIFICATION REQUIRED BY NOTE 5 OF THE CBD. WE HAVE BEEN ADVISED BY THE AIR FORCE THAT NOTE 5 WAS INTENDED TO ASSURE THAT OFFERORS HAD ADEQUATE DATA, AND THAT ACTION WILL BE INITIATED TO EFFECT A CLARIFICATION OF THAT INTENT. IT APPEARS THAT AMENDMENT OF THE SOLICITATION IN THE MANNER ACCOMPLISHED BY THE AIR FORCE WAS THE CORRECT PROCEDURE SINCE THIS PROCUREMENT WAS NEGOTIATED AND THE PROCUREMENT ACTIVITY HAS THE LATITUDE TO AMEND THE RFPS DURING THE COURSE OF NEGOTIATIONS TO ENCOMPASS MATTERS NOT ENVISIONED UNDER THE SOLICITATION AS ISSUED. 47 COMP. GEN. 279, 284 (1967). FURTHER, THE USE OF "OR EQUAL" NOMENCLATURE WAS NOT EMPLOYED BECAUSE IDENTICAL PARTS WERE REQUIRED. YOU NEXT ALLEGE THAT THE PROCEDURES EMPLOYED FOR THE QUALIFICATION OF OTHER SOURCES FOR THE PART NUMBERS ON ALL THREE PROCUREMENTS HERE INVOLVED WERE NOT EQUIVALENT TO THOSE TO WHICH BENDIX WAS ORIGINALLY SUBJECTED. THEREFORE, YOU CONCLUDE THAT BENDIX WAS NOT COMPETING ON AN EQUAL BASIS WITH THE OTHER COMPETITORS.

THE ESTABLISHMENT OF PROCEDURES TO QUALIFY A SOURCE TO MANUFACTURE A PART TO ANOTHER MANUFACTURER'S SPECIFICATION IS DISCRETIONARY AND WITHIN THE AMBIT OF THE EXPERTISE OF THE COGNIZANT TECHNICAL ACTIVITY. THUS, THE ACTIVITY ASSIGNED RESPONSIBILITY OVER A GIVEN PART, IN THIS CASE OOAMA, MAY DETERMINE THOSE CRITERIA NECESSARY TO INSURE THE SAFETY, DEPENDABILITY AND INTERCHANGABILITY OF THE PART ON AN AD HOC BASIS. IT IS ACKNOWLEDGED THAT THE TESTING PROCEDURES TO WHICH BENDIX AND THE OTHER OFFERORS WERE SUBJECTED WERE UNEQUAL. HOWEVER, THIS INEQUALITY IS ATTRIBUTABLE TO THE FACT THAT THE BENDIX TESTS WERE NECESSARY TO PROVE THE DESIGN, COMPOSITION AND FUNCTIONAL CHARACTERISTICS OF THE COMPONENT PARTS OF A NEWLY DESIGNED SYSTEM, WHILE SUBSEQUENT SOURCES ARE COMPELLED TO DEMONSTRATE ONLY THAT THEIR PARTS MEET THE SPECIFICATIONS AND FUNCTIONAL CHARACTERISTICS OF THE ACCEPTED CONFIGURATION PREVIOUSLY PROVEN THROUGH MORE RIGOROUS QUALIFICATION TESTING. IN THESE CASES, OOAMA IS CHARGED WITH THE RESPONSIBILITY OF DETERMINING THE AMOUNT OF TESTING NECESSARY, IF ANY, TO ASSURE SPECIFICATION COMPLIANCE. FURTHER ASSURANCE OF SPECIFICATION COMPLIANCE IS ACHIEVED BY PREAWARD INSPECTION OF PRODUCTION FACILITIES AND BY FIRST ARTICLE ACCEPTANCE TESTING. SINCE OUR OFFICE IS NOT EQUIPPED TO CONSIDER THE TECHNICAL SUFFICIENCY OF SUCH ENGINEERING DETERMINATIONS, AND SINCE SUCH DETERMINATIONS ARE MATTERS PRIMARILY OF ADMINISTRATIVE DISCRETION, WE WILL NOT SUBSTITUTE OUR OPINION FOR THAT OF THE TECHNICAL ACTIVITY ASSIGNED THE DUTY TO OVERSEE PART ACCEPTABILITY.

WITH RESPECT TO P/N 2600973, IT IS REPORTED THAT ANOTHER SOURCE RECEIVED FIRST ARTICLE APPROVAL ON MAY 11, 1971, FROM CHIEF, OPERATIONS AND SUPPORT BRANCH, DIRECTORATE OF MATERIEL MANAGEMENT, UNDER ANOTHER CONTRACT. IT IS NOTED THAT BENDIX WAS NOTIFIED OF THIS AWARD BUT CHOSE NOT TO OBJECT. REPORT DATED JULY 30, 1971, THE CHIEF, AEROSPACE EQUIPMENT BRANCH, SERVICE ENGINEERING DIVISION, STATES THAT THE REQUIREMENTS OF THE DRAWINGS OF THE BENDIX PART WERE COMPARED WITH THE FIRST ARTICLE SUBMITTED BY THE OTHER SOURCE, AND THAT ALL OF THE REQUIREMENTS WERE MET.

YOU SPECIFICALLY POINT OUT THAT P/N 149479, A COMPONENT PART APPLICABLE TO P/N 2600973, AN ASSEMBLY, REQUIRES A TEFLON COATING, WHEREAS ARTICLES OFFERED BY OTHER OFFERORS) WERE HARD ANODIZED. THE AIR FORCE ADVISES THAT THE DIRECTORATE OF MATERIEL MANAGEMENT, BY DRAWING CHANGE NOTICE, TERMED AN ADCN, CONTROL NO. 9-C-489, ON NOVEMBER 6, 1969, DELETED THE REQUIREMENT FOR TEFLON COATING FROM THE APPLICABLE BENDIX DRAWING. IN A SUPPLEMENTAL REPORT THE AIR FORCE STATED:

"IN EFFECT, THE ADCN PERMITS A WAIVER OF THE TEFLON COATING AND ADVISES OFFERORS TO THE TYPE FINISH DESIRED BY THE AF. THIS IS CLEARLY THE GOVERNMENT'S PREROGATIVE. EVENTUALLY, IT MAY BE APPROPRIATE FOR THE AF TO PREPARE ITS OWN DRAWINGS."

HOWEVER, THE AIR FORCE ADVISES THAT WHETHER OR NOT THIS CHANGE NOTICE WAS EVER OFFICIALLY COMMUNICATED TO BENDIX CANNOT BE SUBSTANTIATED AND YOU CONTEND THAT NOT ONLY WAS NO FORMAL NOTICE OF THE ADCN EVER RECEIVED BY BENDIX, BUT THAT BENDIX WAS UNAWARE THAT THE CHANGE HAD BEEN IMPLEMENTED UNTIL IT RECEIVED THE AIR FORCE ADMINISTRATIVE REPORT RELATIVE TO ITS PROTESTS TO OUR OFFICE. IN THE ABSENCE OF SUCH SUBSTANTIATION, IT IS OUR OPINION THAT BENDIX AND THE OTHER OFFERORS) WERE NOT COMPETING ON AN EQUAL BASIS; I.E., BENDIX OFFERED ITS PART PREDICATED UPON ITS DRAWING INCLUDING THE TEFLON COATING WHICH IS ALLEGED TO BE A MORE COSTLY PROCESS, WHILE THE OTHER OFFERORS) PROPOSED A HARD ANODIZED PISTON PREDICATED ON THE ADCN "WAIVER". THE AIR FORCE HAS ADVISED THAT THE CHANGE FROM TEFLON TO HARD ANODIZED COATING OF THE PISTONS HERE INVOLVED WAS MADE ON THE BASIS OF AN ENGINEERING JUDGMENT AFTER USE OF TEFLON COATED PISTONS INDICATED THAT THE PROBLEMS SOUGHT TO BE ALLEVIATED BY THE USE OF TEFLON WERE NOT AS SEVERE AS THE ADDITIONAL PROBLEMS BROUGHT ABOUT BY ITS USE. IT IS WELL SETTLED THAT THE PROCUREMENT ACTIVITY IS CHARGED WITH THE RESPONSIBILITY OF DETERMINING THE MINIMUM NEEDS OF THE GOVERNMENT - IN THIS INSTANCE THE REQUIREMENT FOR A HARD ANODIZED COATING - WITHOUT PERMITTING ITSELF TO BE PLACED IN THE POSITION OF ALLOWING A PROSPECTIVE CONTRACTOR TO DICTATE ITS REQUIREMENTS. HOWEVER, WHILE THE AIR FORCE MAY PROPERLY REQUEST A DRAWING CHANGE WHERE DEEMED NECESSARY, OR, IN THE ABSENCE OF THE DESIGNER'S ACQUIESCENCE, MAY ASSIGN A NEW PART NUMBER TO THE PART WITH THE PROPOSED CHANGE, IT MAY NOT, IN OUR OPINION, UNILATERALLY EFFECTUATE A CHANGE IN A CONTRACTOR'S DRAWINGS WHICH DRAWINGS REPRESENT A PART CARRYING A CONTRACTOR ASSIGNED PART NUMBER AND WHICH HAVE BEEN DEVELOPED AT PRIVATE EXPENSE AND OBTAINED BY THE GOVERNMENT ON A LIMITED-RIGHTS BASIS.

WE BELIEVE THAT AMENDMENT OF RFP -3104 TO CLEARLY DELINEATE THE MINIMUM NEEDS OF THE GOVERNMENT WITH RESPECT TO THE CHANGE FROM TEFLON COATED TO HARD ANODIZED PISTONS IS THE PROPER METHOD TO AFFORD EQUAL COMPETITION IN THIS INSTANCE. WHILE THE AIR FORCE CONTENDS THAT THE ADCN CHANGE NOTICE ACTED AS A "WAIVER" OF THE TEFLON REQUIREMENT, IT IS OUR OPINION, AS INDICATED ABOVE, THAT SUCH AN ACTION CONSTITUTED AN IMPROPER DRAWING CHANGE AND THAT THE APPARENT FAILURE TO COMMUNICATE SUCH CHANGE TO BENDIX RESULTED IN UNEQUAL COMPETITION. IN THIS REGARD, IT IS OUR UNDERSTANDING THAT P/N 153373 (APPLICABLE TO THE B-52 BRAKE ASSEMBLY, P/N 149575) FULFILLS THE GOVERNMENT MINIMUM REQUIREMENTS FOR THE PISTON HERE INVOLVED IN THAT ITS DESIGN AND MANUFACTURE ARE IDENTICAL TO P/N 149479, EXCEPT THAT THE COATING IS HARD ANODIZED INSTEAD OF TEFLON, THEREBY OBVIATING THE NEED FOR THE ADCN CHANGE NOTICE. ACCORDINGLY, THE SECRETARY OF THE AIR FORCE IS BEING ADVISED BY LETTER OF TODAY, COPY ENCLOSED, THAT NEGOTIATIONS UNDER RFP -3104 SHOULD BE REOPENED IN ORDER TO ALLOW BENDIX AND ANY OTHER SIMILARLY SITUATED OFFERORS TO REVISE THEIR PROPOSALS TO THE HARD ANODIZED REQUIREMENT.

WITH RESPECT TO THE QUALIFICATION OF OTHER PROSPECTIVE CONTRACTORS) FOR P/N 148711, IT IS REPORTED IN THE LETTER OF AUGUST 3, 1971:

"ONE OR MORE OTHER OFFERORS SUBMITTED PROOF TO OOAMA ENGINEERING, THAT THEY HAD FURNISHED THE CARRIER ASSY, P/N 148711, UNDER CONTRACT TO A FOREIGN GOVERNMENT, FOR USE IN THEIR F-104 BRAKES. FURTHER VERIFICATION FROM THE FOREIGN GOVERNMENT WAS RECEIVED BY OOAMA ENGINEERS THAT THEY HAD EXPERIENCED NO MALFUNCTIONING OF THE PART. BASED UPON THIS INFORMATION, COUPLED WITH THE EVIDENCE THAT THE COMPANY WAS IN POSSESSION OF ADEQUATE AND SUFFICIENT DATA AND TOOLING, AN ENGINEERING APPROVAL WAS GRANTED AND AN AWARD WAS MADE UNDER ANOTHER CONTRACT."

AS INDICATED ABOVE, A DETERMINATION OF THIS SORT IS ONE OF ADMINISTRATIVE DISCRETION NOT ORDINARILY SUBJECT TO QUESTION BY OUR OFFICE.

CONCERNING P/N 149688, THE OTHER OFFERORS)' QUALIFICATION WAS RECEIVED FROM THE DIRECTORATE OF MATERIEL MANAGEMENT AND MATERIEL REQUIREMENTS ON MAY 6, 1971: "ONE OR MORE OTHER OFFERORS SHOULD HAVE BEEN INCLUDED ON PR AS IT IS IN J023 RECORD AS LAST CONTRACT WAS AWARDED TO THEM *** ." THIS WAS CONFIRMATION OF APPROVAL GRANTED TO THE OTHER OFFERORS) ON NOVEMBER 9, 1970. IT IS SIGNIFICANT TO NOTE THAT THE LAST CONTRACT FOR THIS PART WAS AWARDED TO A CONTRACTOR OTHER THAN BENDIX WHO IS ALSO AN OFFEROR UNDER RFP -3131, AND THAT SUCH CONTRACT WAS SATISFACTORILY COMPLETED. IT IS FURTHER POINTED OUT IN THE ADMINISTRATIVE REPORT THAT THIS ITEM HAS PREVIOUSLY BEEN PROCURED FROM OTHER FIRMS WITHOUT OBJECTION BY BENDIX.

YOU NEXT QUESTION THE EXTENT OF THE USE OF THE AIR FORCE OF LIMITED RIGHTS DRAWINGS DEVELOPED AT PRIVATE EXPENSE ON FILE WITH THE GOVERNMENT. YOU ALLEGE THAT THE GOVERNMENT'S USE OF THE DATA EXCEEDED THE PERMISSIBLE PARAMETERS OF ASPR 9-203(B) IN RELIANCE UPON OUR DECISION 49 COMP. GEN. 471 (1970) AND YOU MAINTAIN THAT OUR DECISION IS IN ERROR AND SHOULD BE REVERSED. THAT DECISION CONCERNED THE USE OF LIMITED RIGHTS DATA WITHIN THE AIR FORCE AND WE SPECIFICALLY CONFIRMED THEREIN THE GOVERNMENT'S RIGHT UNDER THE LIMITED DATA RIGHTS CLAUSE THEN IN EFFECT UNDER ASPR 9-203(B), TO USE DATA ACQUIRED WITH LIMITED RIGHTS FOR THE PURPOSES OF COMPARISON FOR QUALIFICATION OF ADDITIONAL SOURCES WITH RESPECT TO PREVIOUSLY SOLE- SOURCE ITEMS. WE FURTHER HELD THAT THE ASPR REVISION 4, AUGUST 29, 1969, WAS MERELY A CLARIFICATION OF THE EXISTING RIGHT OF THE GOVERNMENT TO USE LIMITED RIGHTS DATA FOR PROPER INTERNAL PURPOSES NOT INVOLVING DISCLOSURES TO SOURCES OUTSIDE OF THE GOVERNMENT. WE BELIEVE THE INTERPRETATION AND APPLICATION OF THAT DECISION EMPLOYED BY THE GOVERNMENT HAS BEEN IN ACCORD WITH THE INTENT OF THE DECISION.

IN THIS CONNECTION, THE CONTRACTING OFFICER STATES IN HIS LETTER DATED AUGUST 3, 1971, TO US:

" *** WE HAVE USED AVAILABLE BENDIX DATA FOR 'CHECK AND TEST' PURPOSES WITH REGARDS TO (A) COMPARING COPIES OF DRAWINGS SUBMITTED BY COMPETITORS TO PROVE THEIR POSSESSION OF SUCH DRAWINGS, AND (B) IN THE ACCOMPLISHMENT OF THE ACCEPTANCE OF FIRST ARTICLES, AS MAY BE REQUIRED BY A CONTRACT."

WITH RESPECT TO YOUR CONTENTION THAT AN INFORMAL AGREEMENT WAS REACHED BETWEEN OUR OFFICE AND REPRESENTATIVES OF AN INDUSTRY TRADE ASSOCIATION TO THE EFFECT THAT OUR DECISION WOULD NO LONGER BE FOLLOWED, WE ARE UNAWARE OF ANY SUCH AGREEMENT, AND AFFIRM OUR PRIOR DECISION AS BEING A PROPER INTERPRETATION OF THE ASPR SECTIONS THERE INVOLVED. FROM THE RECORD BEFORE US, THEREFORE, WE ARE UNABLE TO CONCLUDE THAT ANY BENDIX RIGHTS OR PROPRIETARY DATA HAVE BEEN VIOLATED.

FINALLY, YOU ALLEGE THAT BENDIX PARTS MANUFACTURED BY OTHER SOURCES CARRY THE BENDIX PART NUMBER PERMANENTLY ETCHED UPON IT, BUT THE MANUFACTURER'S CODE IS IMPRESSED IN SUCH A MANNER AS TO QUICKLY DISSIPATE UNDER OPERATING CONDITIONS, THEREBY SUBJECTING BENDIX TO POSSIBLE LIABILITY IN THE EVENT OF PART MALFUNCTION. WE HAVE BEEN ADVISED BY THE AIR FORCE THAT FUTURE PART IDENTIFICATION SHALL BE ON THE BASIS THAT IF THE AIR FORCE DOES NOT SUPPLY A DATA PACKAGE, THE PART WILL BE REVIEWED FOR INTERCHANGEABILITY AND IDENTIFIED WITH THE MANUFACTURER'S PART NUMBER. IF THE AIR FORCE DOES SUPPLY THE DATA, HOWEVER, PARTS WILL BE IDENTIFIED WITH THE ORIGINAL DESIGNER'S PART NUMBER AND THE MANUFACTURER'S CODE, WHICH SHALL BE PERMANENTLY IMPRESSED WHENEVER POSSIBLE.

IN VIEW OF THE FOREGOING, EXCEPT FOR THE REOPENING OF NEGOTIATIONS UNDER RFP -3104 DISCUSSED ABOVE, THE PROTEST IS DENIED.