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SWITZER: THIS WILL ACKNOWLEDGE RECEIPT OF YOUR LETTER DATED APRIL 12. IT IS NOTED THAT AFTER HAVING COMMENTED AT SOME LENGTH WITH RESPECT TO THE APPARENT WASTEFULNESS IN ATTEMPTING TO PROCURE FLAW DETECTION MATERIAL ON AN ADVERTISED BASIS. WE OBSERVE THAT YOU HAVE MADE SUBSTANTIALLY THE SAME SUGGESTION TO THE SECRETARY OF DEFENSE IN THE ABOVE-MENTIONED REPORT OF NOVEMBER 4. WE RECOGNIZED THAT THE ESTABLISHMENT OF SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE DEPARTMENT OR AGENCY ON WHOSE BEHALF THE PROCUREMENT IS MADE. THE QUESTION WHETHER EQUIPMENT OR MATERIAL FURNISHED BY A CONTRACTOR IS SUFFICIENT TO COMPLY WITH THE PHYSICAL REQUIREMENTS OF SPECIFICATIONS IS A MATTER FOR ADMINISTRATIVE DETERMINATION.

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B-140127, JUL. 3, 1962

TO MR. R. C. SWITZER:

THIS WILL ACKNOWLEDGE RECEIPT OF YOUR LETTER DATED APRIL 12, 1962, TRANSMITTING A COPY OF YOUR ,PRIVATE REPORT TO THE SECRETARY OF DEFENSE ON THE SERIOUSNESS OF THE SITUATION IN THE PROCUREMENT OF FLUORESCENT FLAW DETECTING MATERIALS," TOGETHER WITH A REVIEW OF WHAT YOU DESCRIBE AS A CRITICAL POLICY PROBLEM IN THE PROCUREMENT OF FLUORESCENT PENETRANT INSPECTION MATERIALS BY MILITARY AGENCIES. IT IS NOTED THAT AFTER HAVING COMMENTED AT SOME LENGTH WITH RESPECT TO THE APPARENT WASTEFULNESS IN ATTEMPTING TO PROCURE FLAW DETECTION MATERIAL ON AN ADVERTISED BASIS, YOU RECOMMEND THAT THE MILITARY AGENCIES BE PERMITTED TO PROCURE WHAT YOU CONSIDER THE SUPERIOR FULLY-CONTROLLED QUALITY PRODUCTS OF THE MAGNAFLUX CORPORATION ON A SOLE SOURCE BASIS FOR A PERIOD OF ONE YEAR, WHICH SUGGESTION YOU STATE WOULD, IN EFFECT, BE CONTRARY TO THE RECOMMENDATION CONTAINED IN OUR LETTER OF JANUARY 4, 1960, ADDRESSED TO THE SECRETARY OF THE AIR FORCE. WE OBSERVE THAT YOU HAVE MADE SUBSTANTIALLY THE SAME SUGGESTION TO THE SECRETARY OF DEFENSE IN THE ABOVE-MENTIONED REPORT OF NOVEMBER 4, 1960.

IN OUR LETTER OF JANUARY 4, 1960, TO THE SECRETARY, WHICH ENCOMPASSED A LENGTHY REVIEW OF THE MATTERS THEN COMPLAINED OF THE MET L-CHEK CO., WE RECOGNIZED THAT THE ESTABLISHMENT OF SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE DEPARTMENT OR AGENCY ON WHOSE BEHALF THE PROCUREMENT IS MADE, AND THE QUESTION WHETHER EQUIPMENT OR MATERIAL FURNISHED BY A CONTRACTOR IS SUFFICIENT TO COMPLY WITH THE PHYSICAL REQUIREMENTS OF SPECIFICATIONS IS A MATTER FOR ADMINISTRATIVE DETERMINATION. HOWEVER, IN VIEW OF THE APPARENT DIFFICULTY EXPERIENCED WITH THIS PARTICULAR SPECIFICATION, WE SUGGESTED THAT ADMINISTRATIVE ACTION BE EXPEDITED TO DEVELOP SPECIFICATIONS WHICH WOULD PERMIT FULL AND FREE COMPETITION, AND AT THE SAME TIME MEET VALID AIR FORCE REQUIREMENTS.

YOU WILL OBSERVE, HOWEVER, THAT WE ALSO STATED THAT AFTER HAVING REVIEWED ALL THE FACTS AND CIRCUMSTANCES IN THAT CASE, AND ASSUMING THAT THE CONTRACTING OFFICER WAS JUSTIFIED IN RELYING UPON THE ADVICE HE HAD RECEIVED CONCERNING THE NONQUALIFICATION OF THE OTHER PRODUCTS, IT WAS OUR OPINION THAT THE PROCUREMENT SHOULD HAVE BEEN WITHDRAWN FROM FORMAL ADVERTISING AND EFFECTED BY NEGOTIATION WITH MAGNAFLUX. WE ALSO RECOGNIZED THAT THERE MIGHT BE DIFFICULTIES IN DEVELOPING SATISFACTORY TESTS TO MEASURE THE PERFORMANCE OF PENETRATING MATERIALS; BUT, ON THE OTHER HAND, WE EXPRESSED THE BELIEF THAT COMPETING MANUFACTURERS SHOULD BE GIVEN VALID REASONS WHY THEIR PRODUCTS FAIL TO MEET GOVERNMENT REQUIREMENTS.

OUR LETTER TO THE SECRETARY DID NOT SPECIFICALLY REQUEST A REPORT CONCERNING THE ADMINISTRATIVE ACTION WHICH WOULD BE TAKEN FOLLOWING THE RECEIPT OF OUR LETTER, AND TO DATE NONE HAS BEEN RECEIVED. WE REALIZED THAT DUE TO THE TECHNICALITIES INVOLVED, AS EVIDENCED BY PAST EXPERIMENTATION AND THE NUMEROUS CONFERENCES HELD AMONG GOVERNMENT AND INDUSTRY EXPERTS, IT WAS PROBABLE THAT MANY TECHNICAL STUDIES MIGHT BE REQUIRED PRIOR TO THE FORMALIZATION OF A FINAL AND ACCEPTABLE SPECIFICATION IF SUCH A SPECIFICATION IS IN FACT FEASIBLE.

THE FACT THAT OUR SUGGESTIONS HAVE BEEN THE SUBJECT OF APPROPRIATE CONSIDERATION BY THE DEPARTMENT IS EVIDENCED BY A CURSORY FOLLOW-UP BY OUR OFFICE ON FEBRUARY 16, 1961, AT WHICH TIME WE WERE INFORMED THAT (1) AS OF THAT DATE THE PROCUREMENT OF VISIBLE FLUORESCENT PENETRANTS WAS CONTINUING TO BE MADE UNDER MIL-I-25135 (ASG) "B" REVISION AND THE APPLICABLE QPL; (2) FINAL APPROVAL OF THE "C" REVISION BY THE AERONAUTICAL STANDARDS GROUP WAS BEING DELAYED BY REASON OF THE REQUIREMENTS OF THE SURGEON GENERAL RELATING TO THE TOXICITY TEST REQUIREMENT INCLUDED IN THE SPECIFICATION, AND (3) UNTIL SUCH TIME AS THE AERONAUTICAL STANDARDS GROUP COULD OBTAIN AN APPROVAL OF THE SURGEON GENERAL ON THE TOXICITY PART OF THE SPECIFICATION, ALL PROCUREMENTS WOULD CONTINUE TO BE MADE UNDER THE "B" REVISION AND THE APPLICABLE QPL.

WE MUST CONCLUDE, THEREFORE, THAT SINCE EVIDENCE AVAILABLE TO US INDICATES THAT THE MATTER IS UNDER CONTINUED STUDY BY BOTH THE GOVERNMENT AND INDUSTRY EXPERTS, THE SUGGESTION CONTAINED IN YOUR LETTER IS ONE PROPERLY FOR SUBMISSION TO THE DEPARTMENTS AND AGENCIES CONCERNED WHO NO DOUBT ARE GIVING THE SUBJECT CONSIDERATION IN THE LIGHT OF THE RECOMMENDATIONS CONTAINED IN OUR LETTER OF JANUARY 4, 1960.

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