B-155037, FEB. 17, 1965

B-155037, FEB. 17, 1965

TO CHAPMAN, FRIEDMAN, SHEA, CLUBB AND DUFF:

WE REFER TO YOUR RECENT CORRESPONDENCE PROTESTING, ON BEHALF OF AMERICAN SNOWBLAST CORPORATION, AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. AMC/T/-11-184-65-15/C), AS AMENDED.

THE ABOVE INVITATION, ISSUED BY THE UNITED STATES ARMY ENGINEER PROCUREMENT OFFICE, CHICAGO, ILLINOIS, ON JULY 31, 1964, INVITED BIDS ON A SPECIFIED QUANTITY OF SNOW PLOWS AND RELATED ITEMS IN ACCORDANCE WITH ESTABLISHED MILITARY SPECIFICATIONS. THE EQUIPMENT BEING PROCURED IS INTENDED SOLELY FOR USE BY THE UNITED STATES AIR FORCE. MILITARY SPECIFICATION MIL-T-26850F (USAF) DATED SEPTEMBER 18, 1961, REFERRED TO IN THE SUBJECT INVITATION IS SUBSTANTIALLY SIMILAR TO THAT SPECIFICATION REFERRED TO IN PRIOR INVITATIONS.

AS THIS OFFICE HAS BEEN CONCERNED WITH THE PROCUREMENT OF SNOW PLOWS AND THE USE OF THIS SPECIFICATION IN SEVERAL EARLIER CASES WE BELIEVE THAT COMMENT ON OUR EARLIER DECISIONS INVOLVING THIS SAME MATTER IS NECESSARY.

IN OUR DECISION B-138859, AUGUST 18, 1959, WE HELD THAT A SPECIFICATION WHICH RESTRICTS COMPETITION TO A PARTICULAR CONCERN'S REGULARLY PRODUCED VEHICLE OR MAJOR COMPONENT THEREOF MAY, UNDER CERTAIN CIRCUMSTANCES, BE UNDULY RESTRICTIVE OF COMPETITION AND IN VIOLATION OF 10 U.S.C. 2305/A), EVEN THOUGH OTHER MANUFACTURERS MAY BE AUTHORIZED TO DUPLICATE SUCH ITEM OR ITEMS. ON OCTOBER 6, 1959, THE AIR FORCE REQUESTED RECONSIDERATION OF THIS DECISION CONTENDING THAT IT PLACED AN UNDULY HARSH BURDEN UPON THE VARIOUS PROCURING ACTIVITIES AND THAT NO AGENCY HAS THE RESOURCES OR TIME TO EXAMINE AND TEST ALL MANUFACTURERS' ITEMS. IN SUPPORT THEREOF OUR ATTENTION WAS INVITED TO A CASE REPORTED AT 33 COMP. GEN. 595, WHEREIN, QUOTING FROM THE SYLLABUS, WE SAID:

"SPECIFICATIONS, ACCOMPANYING AN INVITATION FOR BIDS TO FURNISH POSTAGE STAMP DISPENSING MACHINES, WHICH ARE DRAFTED TO ELIMINATE KNOWN UNDESIRABLE FEATURES OF SUCH MACHINES; WHICH DO NOT OVERSTATE THE NEEDS OF THE GOVERNMENT ARE NOT UNDULY RESTRICTIVE, EVEN THOUGH THE SPECIFICATIONS ARE BASED TO A LARGE EXTENT UPON A MACHINE THAT HAS BEEN PREVIOUSLY MANUFACTURED BY ONLY ONE COMPANY, BUT WHICH THROUGH EXPERIENCE AND TESTS HAS BEEN SHOWN TO POSSESS THE CHARACTERISTICS MEETING THE NEEDS OF THE GOVERNMENT.'

RESPONDING TO THE ABOVE WE STATED IN OUR SUBSEQUENT DECISION OF NOVEMBER 17, 1959, B-138859, AS FOLLOWS:

"IN THE CITED CASE (33 COMP. GEN. 595) THE PROCURING AGENCY, THE POST OFFICE DEPARTMENT, HAD NEGOTIATED FOR THE PURCHASE OF A SMALL NUMBER OF A GIVEN TYPE OF MACHINE, APPARENTLY FOR TEST PURPOSES, FROM EACH OF THE TWO KNOWN PRODUCERS. TESTS SHOWED MAJOR DEFICIENCIES IN THE PERFORMANCE OF ONE OF THE MAKES. THE MANUFACTURER OF THAT MAKE ALLEGED THAT SPECIFICATIONS APPLICABLE TO A LATER ADVERTISED PROCUREMENT OF A LARGE NUMBER OF THE MACHINES WERE RESTRICTIVE IN THAT THE FIRM'S MODEL COULD NOT MEET THE SPECIFICATION. WE STATED AT PAGE 597 IN HOLDING THAT THE SPECIFICATIONS WERE NOT UNDULY RESTRICTIVE:

"THE DEPARTMENTAL SPECIFICATIONS APPEAR TO HAVE BEEN WRITTEN WITH A VIEW TOWARD PERMITTING A MAXIMUM AMOUNT OF COMPETITION AMONG CONCERNS EQUIPPED TO SUPPLY THE NEEDS OF THE GOVERNMENT. OF COURSE, THE CHOICE OF CERTAIN FEATURES WAS NECESSARILY LIMITED BY REASON OF THE FACT THAT ONLY TWO KNOWN TYPES OF THESE MACHINES HAD BEEN DEVELOPED. IN SUM, HOWEVER, THE DRAFTING OF THESE SPECIFICATIONS SEEMS TO HAVE BEEN A QUESTION OF ELIMINATING KNOWN UNDESIRABLE FEATURES RATHER THAN FITTING THE SPECIFICATIONS TO THE PRODUCT OF ONE MANUFACTURER.'

"CERTAIN PARALLELS EXIST BETWEEN THE SITUATION INVOLVED IN THE CITED CASE AND THAT NOW UNDER CONSIDERATION. IN EACH INSTANCE THERE WERE A LIMITED NUMBER OF KNOWN PRODUCERS AND THE SPECIFICATIONS AS WRITTEN PRECLUDED CONSIDERATION OF THE STANDARD PRODUCT OF ONE. HOWEVER, WE DEEM IT OF GREATER SIGNIFICANCE THAT IN THE EARLIER CASE THE PRODUCTS OF BOTH KNOWN PRODUCERS WERE TESTED BEFORE THE SPECIFICATIONS WERE WRITTEN AND THOSE SPECIFICATIONS ELIMINATED FROM CONSIDERATION A BID ON THE STANDARD PRODUCT OF ONE OF THE MANUFACTURERS ONLY TO THE EXTENT OF FEATURES FOUND UNDESIRABLE IN THE COURSE OF THE TESTING PROCESS.

"A SITUATION MORE ANALOGOUS TO THAT UNDER CONSIDERATION IS PRESENTED AT 33 COMP. GEN. 524. IN THAT CASE IT WAS ALLEGED THAT THE SPECIFICATIONS WERE RESTRICTIVE BECAUSE THE REQUIREMENT FOR A COMPONENT (WHICH ACCOUNTED FOR APPROXIMATELY TEN PERCENT OF THE COST) DESCRIBED IN THE SPECIFICATIONS, ALTHOUGH NOT MENTIONED BY NAME, COULD BE MET ONLY BY A PATENTED ARTICLE. THE PROCURING AGENCY CONTENDED THAT THE SPECIFICATIONS WERE NOT RESTRICTIVE BECAUSE THE PATENTED COMPONENT REPRESENTED ONLY A PART OF THE ITEM UNDER PROCUREMENT AND BECAUSE THE PATENT HOLDER WAS WILLING TO MAKE THE MANUFACTURED COMPONENT AVAILABLE TO OTHER BIDDERS AT A STATED PRICE. WE STATED AT PAGE 527:

"THE QUESTION PRESENTED, HOWEVER, IS NOT WHETHER THE DETERMINATION AS TO THE FUNCTIONAL REQUIREMENTS OF THE STOOL IS OBJECTIONABLE BUT WHETHER THE SUBJECT SPECIFICATIONS ARE UNDULY RESTRICTIVE OF COMPETITION. DEPARTMENT'S DETERMINATION THAT A PARTICULAR PATENTED MECHANISM COMPLIES WITH ALL ITS REQUIREMENTS DOES NOT JUSTIFY WRITING SPECIFICATIONS WHICH GO BEYOND ITS NECESSARY FUNCTIONAL REQUIREMENTS. ALTHOUGH THE PATENTED DEVICE HERE IN QUESTION MAY BE THE ONLY DEVICE NOW KNOWN TO YOUR DEPARTMENT WHICH WOULD COMPLY WITH ITS NEEDS, THE EXCLUSION OF ANY OTHER SUITABLE DEVICE THAT POSSIBLY MIGHT EXIST, NECESSARILY IS RESTRICTIVE OF COMPETITION. THIS OFFICE HAS CONSISTENTLY HELD THAT INVITATIONS TO BID SHOULD NOT BE DRAWN AROUND OR NAME PARTICULAR MAKES OR BRANDS UNLESS AN OPPORTUNITY IS ALSO AFFORDED OTHER BIDDERS TO OFFER SUBSTITUTE "OR EQUAL" ITEMS AND THAT FAILURE TO DO THIS CANNOT BE JUSTIFIED ON THE BASIS THAT NO OTHER SATISFACTORY ITEM EXISTS SINCE THE ONLY WAY IT CAN BE DEFINITELY DETERMINED THAT SUCH IS THE CASE WHERE AN ADVERTISED PROCUREMENT IS INVOLVED IS BY ADVERTISING APPROPRIATE SPECIFICATIONS.'

"WE ARE NOT UNAWARE OF THE OBVIOUS DISTINCTION BETWEEN THE TWO SITUATIONS --- THAT IN THE CURRENT MATTER LICENSE-FREE USE OF ANY PATENT APPLICABLE TO THE COMPONENT HAS SPECIFICALLY BEEN GRANTED. NOR DO WE INTEND TO IGNORE THE STATEMENT APPEARING AT 33 COMP. GEN. 595, 596, AS OLLOWS:

"IN THE DECISION OF APRIL 23, 1954, 33 COMP. GEN. 524, TO WHICH YOU REFER, IT WAS HELD THAT AN INVITATION FOR BIDS FOR THE PURCHASE OF PLATFORM STOOLS ISSUED BY YOUR DEPARTMENT WAS LEGALLY DEFECTIVE. HOWEVER, THAT CONCLUSION WAS RENDERED SOLELY ON THE GROUND THAT THE SPECIFICATIONS WERE DRAWN SO AS TO REQUIRE THE USE OF A PATENTED ADJUSTING DEVICE FOR THE STOOL WITHOUT AFFORDING BIDDERS AN OPPORTUNITY TO OFFER SUBSTITUTE "OR EQUAL" ITEMS. THAT IS NOT THE SITUATION HERE.'

"WHILE MUCH EMPHASIS IS PLACED ON THE FACT THAT THE COMPONENT IN QUESTION IS PATENTED, WE BELIEVE THE SAME CONCLUSION IS REQUIRED WHERE THE SPECIFICATIONS PERMIT THE USE OF ONLY ONE PARTICULAR UNIT, WHETHER OR NOT IT IS PROTECTED BY PATENT, WITHOUT REGARD TO WHETHER OR NOT SUCH LIMITATION ACCURATELY EXPRESSES ON THE BROADEST BASIS THE ACTUAL REQUIREMENTS OF THE GOVERNMENT, PARTICULARLY WHERE A COMPETITIVE ADVANTAGE MAY THEREBY BE OBTAINED BY ONE OR SOME OF THE PROSPECTIVE CONTRACTORS.

"SEE ALSO IN THIS CONNECTION 32 COMP. GEN. 384, 387, IN WHICH WE STATED:

"THE GOVERNMENT ADVERTISING STATUTES CONSISTENTLY HAVE BEEN HELD TO REQUIRE THAT EVERY EFFORT SHOULD BE MADE BY THE PROCUREMENT AGENCIES OF THE GOVERNMENT TO STATE ADVERTISED SPECIFICATIONS IN TERMS THAT WILL PERMIT THE BROADEST FIELD OF COMPETITION WITHIN THE MINIMUM NEEDS REQUIRED, NOT THE MAXIMUM DESIRED. SEE W. A. SCOTT V. UNITED STATES, 44 C.CLS. 524; UNITED STATES V. BROOKRIDGE FARM, 111 FED.2D 461; 15 COMP. GEN. 949; 16 ID. 225. THEREFORE, UNLESS IT CAN BE ESTABLISHED CONCLUSIVELY THAT THERE ARE NO OTHER MANUFACTURERS WHO CAN OR POSSIBLY COULD FURNISH A POWER SWEEPER MEETING THE MINIMUM NEEDS OF YOUR DEPARTMENT THE INSTANT PROCUREMENT SHOULD BE READVERTISED UNDER REVISED SPECIFICATIONS WHICH WOULD PERMIT OTHER BIDDERS SUFFICIENT LATITUDE TO MEET THE SPECIFIED REQUIREMENTS.'

"WE ARE OF THE OPINION THAT THE CRITERION YOU PROPOSE--- THE AVAILABILITY OF THE PARTICULAR COMPONENT TO THE INDUSTRY IN GENERAL--- IS INCONSISTENT WITH THE FOREGOING AND CANNOT BE ADOPTED.

"THE LANGUAGE QUOTED FROM THE DECISION OF AUGUST 18, 1959, IS NOT INTENDED TO SUGGEST A REQUIREMENT THAT THE PROCURING AGENCY SCOUR THE NATION TO INSURE AGAINST THE POSSIBILITY THAT THERE EXISTS AN ALTERNATE EQUAL ARTICLE OR COMPONENT WHICH MAY BE EXCLUDED BY THE SPECIFICATION. NOR IS IT INTENDED TO IMPOSE UPON THE AGENCY THE BURDEN OF ACQUIRING ON ITS OWN INITIATIVE THE NECESSARY DATA, ETC., TO DETERMINE WHETHER SUCH POSSIBLE ALTERNATIVE EXISTS.'

BY LETTER DATED FEBRUARY 10, 1960, AMERICAN SNOWBLAST PROTESTED THE USE OF THIS SPECIFICATION CONTENDING THAT ITS USE VIOLATED EARLIER DECISIONS OF OUR OFFICE. THIS LETTER RESULTED IN OUR ISSUING A THIRD DECISION DATED MAY 19, 1960, B-138859. IN DENYING THIS PROTEST WE STATED:

"THE DEVELOPMENT OF SPECIFICATIONS TO MEET THE NEEDS OF THE GOVERNMENT IS OBVIOUSLY A FUNCTION PRIMARILY OF THE ADMINISTRATIVE AGENCY CONCERNED. COMP. GEN. 554. HOWEVER, WE HAVE CONSISTENTLY TAKEN THE POSITION THAT ADVERTISED SPECIFICATIONS SHOULD BE STATED IN SUCH TERMS AS TO PERMIT THE BROADEST FIELD OF COMPETITION CONSISTENT WITH THE NEEDS OF THE AGENCY. COMP. GEN. 384. IT MUST BE RECOGNIZED THAT IN THE ORDINARY SITUATION THE PROCUREMENT OF SUPPLIES AND EQUIPMENT IS MERELY A TOOL FOR THE ACCOMPLISHMENT OF THE DUTIES AND RESPONSIBILITIES WITH WHICH THE AGENCIES OF THE GOVERNMENT ARE CHARGED. WHILE CONSISTENT WITH THE PRINCIPLES STATED ABOVE AN AGENCY SHOULD, IN OUR VIEW, BE ALERT TO NEW DEVELOPMENTS AND NEW PRODUCTS WHICH WILL PERMIT THE CARRYING OUT OF THEIR FUNCTIONS MORE EFFICIENTLY OR ECONOMICALLY, THE PRIMARY OBJECTIVE OF ITS SPECIFICATIONS MUST BE TO MEET ITS ACTUAL NEEDS RATHER THAN TO INCREASE COMPETITION FOR THE FILLING OF THEM. 36 COMP. GEN. 610. THE DEPARTMENT OF THE AIR FORCE, WHICH IS PRIMARILY CONCERNED WITH ITS TACTICAL AND STRATEGIC MISSIONS, IS, AS A PRACTICAL PROPOSITION, LIMITED AS TO FUNDS AND TIME FOR THE TESTING OF NEW PRODUCTS WHICH MAY CONTRIBUTE TO A GREATER OR LESSER DEGREE TO THE ACHIEVEMENT OF ITS MISSIONS, AND WE MUST ACCEPT ITS DETERMINATIONS AS TO THE TYPES OF EQUIPMENT BEST SUITED TO ITS NEEDS IN THE ABSENCE OF CLEAR INDICATION THAT SUCH DETERMINATIONS ARE ARBITRARY OR CAPRICIOUS.

"AS INDICATED ABOVE, WE HAVE BEEN ADVISED THAT THE EQUIPMENT PURCHASED FROM YOUR PREDECESSOR WILL BE OR IS BEING TESTED BY THE RCAF. IT IS OUR UNDERSTANDING THAT COOPERATION BETWEEN THE RCAF AND THE USAF IN OPERATIONS OF THIS TYPE IS NOT UNUSUAL. SHOULD THE TEST RESULTS INDICATE, AS YOU CONTEND, THAT YOUR PRODUCT CAN MEET THE AIR FORCE REQUIREMENTS AS WELL OR BETTER THAN EQUIPMENT CONFORMING TO THE PRESENT SPECIFICATIONS, WE WILL EXPECT THE AIR FORCE TO AMEND THE SPECIFICATIONS ACCORDINGLY AS PROMPTLY AS PRACTICABLE WITHOUT INTERFERENCE WITH THE REGULAR PROCUREMENT CYCLE. SEE B-138859, NOVEMBER 17, 1959.'

SOMETIME DURING JUNE OF 1961 RCAF ISSUED A REPORT WHEREIN IT WAS CONCLUDED THAT THE TAYLOR (PREDECESSOR OF AMERICAN SNOWBLAST) SNOWBLAST ROTARY R2200 WAS NOT ACCEPTABLE FOR MILITARY SNOW REMOVAL DUTIES. THIS MACHINE, HOWEVER, IS ALLEGEDLY DIFFERENT FROM THE MACHINE CURRENTLY BEING PRODUCED.

THE PRESENT CONTROVERSY AROSE WHEN ON AUGUST 25, 1964, AMERICAN SNOWBLAST PROTESTED THE PROPOSED AWARD OF A CONTRACT UNDER IFB NO. AMC/T/-11-184-65- 15/C) FOR THE FOLLOWING REASONS:

"1. THE INVITATION IS BASED ON SPECIFICATIONS THAT ARE SO RESTRICTIVE AS TO RULE OUT ANY POSSIBILITY OF COMPETITIVE BIDDING;

"2. THE INVITATION IS LEGALLY DEFECTIVE IN THAT IT CLEARLY CONTRAVENES THE COMPTROLLER GENERAL'S DECISIONS OF AUGUST 18 AND NOVEMBER 17, 1959 (NO. B 138859);

"3. THE INVITATION TOTALLY EXCLUDES THE AMERICAN SNOWBLAST CORPORATION, EVEN THOUGH THAT COMPANY IS TODAY THE FOREMOST SUPPLIER OF THE TYPE OF EQUIPMENT IN QUESTION (AIRPORT ROTARY SNOW REMOVAL MACHINES) TO THE CIVILIAN SECTOR OF THE MARKET;

"4. THE INVITATION IS BASED ON U.S. AIR FORCE SPECIFICATIONS WHICH ARE AT LEAST SIX YEARS OLD, AND WHICH HAVE NOT BEEN MATERIALLY CHANGED IN THE INTERVENING PERIOD. YET DURING THAT PERIOD THE MACHINE ON WHICH THE SUBJECT SPECIFICATIONS ARE BASED WAS BY-PASSED, BOTH IN TERMS OF EFFICIENCY AND OF ECONOMY. BY INSISTING ON OBSOLESCENCE AND REFUSING TO TAKE EVEN THE POSSIBILITY OF INDUSTRIAL PROGRESS INTO ACCOUNT, THE AIR FORCE IS, IN EFFECT, WASTING GOVERNMENT FUNDS.'

IN ANSWER TO THE ABOVE THE PROCURING ACTIVITY AND THE AIR FORCE REPORT THAT THE CURRENT SPECIFICATIONS REPRESENT NO MORE THAN THE GOVERNMENT'S MINIMUM NEEDS AND THAT, TO DATE, NO MANUFACTURER HAS SUPPLIED ANY DEFINITE DATA WHICH WOULD INDICATE THAT ITS PRODUCT IS EQUAL OR SUPERIOR TO THAT NEEDED. IN THEIR REPORT DATED JANUARY 15, 1965, THE AIR FORCE HAS OFFERED THE FOLLOWING REASONS AND COMMENTS FOR NOT EMBARKING UPON AN AFFIRMATIVE TESTING PROGRAM PRIOR TO 1964:

"WHEN THE AIR FORCE INSTITUTED ITS DEVELOPMENT AND TESTING PROGRAM IN THE EARLY 1950-S, THERE WAS NO COMMERCIALLY-DEVELOPED SNOW REMOVAL EQUIPMENT ADEQUATE TO FULFILL OUR NEEDS. AS A RESULT OF THIS PROGRAM, WHICH INCLUDED THE PURCHASE AND TESTING OF A VARIETY OF MODELS, THE AIR FORCE DECIDED ON A FAMILY OF SNOW REMOVAL EQUIPMENT (BASIC TRUCK WITH UNIVERSAL HITCH, BANK ROTARY, HIGH SPEED ROTARY, ROLLOVER BLADE, COMBINATION SNOWPLOW BLADE AND AN UNDERBODY BLADE) THAT MET ITS MINIMUM ACCEPTABLE NEEDS FOR RUNWAY OPERATION AND, BY MAY, 1960, HAD PROCURED A PORTION OF ITS REQUIREMENTS.

"SINCE THE "FAMILY" OF SNOW REMOVAL EQUIPMENT WAS DEEMED ADEQUATE TO MEET AIR FORCE NEEDS, WE CONCLUDED IN EARLY 1960 THAT IT WAS NO LONGER FEASIBLE FOR THE AIR FORCE TO CONTINUE AN EXTENSIVE PROGRAM OF PURCHASING AND TESTING VARIOUS MAKES OF MACHINERY. THIS DECISION WAS BASED IN PART ON THE FACT THAT, BY 1960, PRIVATE INDUSTRY WAS SPENDING ITS OWN FUNDS ON THE DEVELOPMENT OF SNOW REMOVAL EQUIPMENT FOR COMMERCIAL AIRPORT USE. IT WAS FELT THAT THE RESULTS OF COMMERCIAL AND/OR OTHER GOVERNMENT AGENCY TESTING OF COMMERCIALLY DEVELOPED EQUIPMENT WOULD PROVIDE THE AIR FORCE WITH A SUFFICIENT BASIS TO EVALUATE THE ADEQUACY OF THE DIFFERENT MANUFACTURERS' PRODUCTS FOR AIR FORCE USE. ACCORDINGLY, AT THE TIME OF OUR LETTER TO AMERICAN SNOWBLAST CORPORATION ON MAY 26, 1960, WE DID NOT CONSIDER THE CONTINUED EXPENDITURE OF AIR FORCE FUNDS AND MANPOWER FOR TESTING ADDITIONAL EQUIPMENT TO BE ADVISABLE.

"BY 1963, IT HAD BECOME CLEAR THAT THE RESULTS OF COMMERCIAL AND OTHER GOVERNMENT AGENCY TESTING DID NOT PROVIDE A SUFFICIENT BASIS UPON WHICH WE MIGHT EVALUATE A PRODUCT'S USEFULNESS TO THE AIR FORCE. IN GENERAL, THE COMMERCIAL AND OTHER GOVERNMENT AGENCY TESTING WAS BEING CONDUCTED IN THE LIGHT OF A BROAD CRITERION THAT A RUNWAY MUST BE CLEARED "AS SOON AS POSSIBLE.' THE AIR FORCE, ON THE OTHER HAND, HAS THE SPECIFIC REQUIREMENT THAT ITS SNOW REMOVAL EQUIPMENT MUST ,REMOVE FOUR INCHES OF SNOW FROM A 10,000 BY 300 FOOT RUNWAY IN 30 MINUTES.' TO REMEDY THIS PROBLEM, WE DECIDED TO INITIATE A NEW TESTING PROGRAM IN ORDER THAT OUR EQUIPMENT MIGHT REFLECT INDUSTRIAL ADVANCES MADE AFTER 1959. UNDER THIS PROGRAM, THE AIR FORCE WILL TEST EQUIPMENT LOANED TO IT BY INTERESTED CONTRACTORS. IN OUR LETTER OF NOVEMBER 30, 1964 TO YOUR OFFICE, WE STATED THAT THERE WERE NECESSARY STEPS STILL TO BE TAKEN AT THAT TIME (1963) IN ARRANGING THIS PROGRAM BEFORE A FORMAL ANNOUNCEMENT COULD BE ISSUED TO INDUSTRY. AMERICAN SNOWBLAST CORPORATION, AS WELL AS OTHER FIRMS, HOWEVER, WAS WELL AWARE OF THE PROGRAM.

"ON DECEMBER 2, 1964, THE AIR FORCE AWARDED A CONTRACT TO THE ROYAL CANADIAN AIR FORCE (RCAF) TO CONDUCT THIS TESTING AND METHODS EVALUATION PROGRAM. SOME TWO WEEKS LATER (DECEMBER 18, 1964), OUR ENGINEER AT WRIGHT -PATTERSON AIR FORCE BASE TELEPHONED MR. TAYLOR OF AMERICAN SNOWBLAST, INFORMED HIM THAT THE CONTRACT HAD BEEN FINALIZED, AND GAVE HIM THE GENERAL PARAMETERS OF THE TEST PROGRAM. THAT AFTERNOON BOTH MR. TAYLOR AND MR. LAMPL (ALSO OF AMERICAN SNOWBLAST) CALLED TO ASK FURTHER QUESTIONS CONCERNING THE PROGRAM AND TO REQUEST COPIES OF OUR POLICY ON THE LOAN OF EQUIPMENT FOR AIR FORCE TESTING. SUCH WAS FURNISHED ALONG WITH A WRITTEN BRIEF OF THE TEST PROGRAMS. LATER IN DECEMBER, REPRESENTATIVES OF AMERICAN SNOWBLAST INFORMED OUR CONTRACTING OFFICER THAT THE COMPANY MAY MAKE EQUIPMENT AVAILABLE FOR TESTING DURING THIS WINTER SEASON. TIME AND SNOW CONDITIONS PERMITTING, THE AIR FORCE HAS AGREED TO ACCEPT SUCH EQUIPMENT AND HAVE THE RCAF CONDUCT THE TESTS.

"IN CONCLUSION, THE FAMILY OF SNOW REMOVAL EQUIPMENT PRESENTLY BEING PROCURED BY THE AIR FORCE ADEQUATELY FULFILLS OUR REQUIREMENTS,AND, TO DATE, REMAINS THE ONLY EQUIPMENT WITH SUCH DEMONSTRATED CAPABILITY. THE FACT THAT NO OTHER EQUIPMENT HAS QUALIFIED FOR AIR FORCE USE MAY BE DUE, IN PART, TO OUR DECISION TO RELY ON COMMERCIAL AND OTHER AGENCY TESTING, WHICH HAS PROVED INSUFFICIENT FOR OUR PURPOSES. TO REMEDY THIS SITUATION AND TO DETERMINE IF ADVANCES IN THE INDUSTRIAL ART SINCE OUR LAST TESTING PROGRAM HAVE, IN FACT, PRODUCED A LINE OF SNOW REMOVAL EQUIPMENT SUPERIOR FOR AIR FORCE PURPOSES TO THAT PRESENTLY BEING PROCURED, WE INITIATED A NEW TESTING PROGRAM IN 1963. AMERICAN SNOWBLAST WILL CERTAINLY HAVE AN OPPORTUNITY TO QUALIFY ITS MACHINE UNDER THAT PROGRAM.' THE UNSUPPORTED ALLEGATION IN YOUR CORRESPONDENCE OF FEBRUARY 1, 1965, THAT A CRITERION OF REMOVING "FOUR INCHES OF SNOW FROM A 10,000 BY 300 FOOT RUNWAY IN 30 MINUTES" IS AN ARTIFICIAL REQUIREMENT, IS SHARPLY DISPUTED BY AIR FORCE OFFICIALS.

AS POINTED OUT IN OUR DECISION B-154317, SEPTEMBER 14, 1964, IN THE ORDINARY SITUATION THE PROCUREMENT OF SUPPLIES OR EQUIPMENT IS MERELY A TOOL FOR THE ACCOMPLISHMENT OF THE DUTIES AND RESPONSIBILITIES WITH WHICH THE AGENCIES OF THE GOVERNMENT ARE CHARGED. WHILE AN AGENCY MUST BE ALERT TO NEW DEVELOPMENTS AND PRODUCTS, THE PRIMARY OBJECTIVE OF ITS SPECIFICATIONS MUST BE TO MEET ITS ACTUAL NEEDS RATHER THAN INCREASE COMPETITION. THE DEPARTMENT OF THE AIR FORCE, WHICH IS PRIMARILY CONCERNED WITH ITS TACTICAL AND STRATEGIC MISSIONS, IS, AS A PRACTICAL MATTER, LIMITED AS TO FUNDS AND TIME FOR TESTING NEW PRODUCTS. UNTIL WE HAVE EVIDENCE THAT A DETERMINATION IN THIS REGARD IS ARBITRARY OR NOT CAPABLE OF OBJECTIVE SUPPORT, WE MUST ACCEPT THE AGENCY'S DETERMINATION AS TO THE TYPE OF EQUIPMENT WHICH IS BEST SUITED FOR ITS NEEDS.

TURNING OUR ATTENTION TO THE PRESENT SITUATION WE FIND THAT THE AIR FORCE HAS BEEN PROCURING SNOW REMOVAL EQUIPMENT UNDER FORMAL ADVERTISING PROCEDURES FOR A NUMBER OF YEARS--- ALBEIT WITHOUT ANY REAL COMPETITION--- DESPITE THE FACT THAT THERE ARE SEVERAL COMPANIES MORE THAN WILLING TO COMPETE. WHILE, WE STILL ADHERE TO THE PROPOSITION THAT THE INTERESTED PARTY HAS THE BURDEN OF ESTABLISHING THAT HIS EQUIPMENT MEETS THE PROCURING AGENCY'S ACTUAL NEEDS, WHERE, AS HERE, THE FACTS SHOW THAT THERE EXIST ONLY A FEW MANUFACTURERS INTERESTED AND CAPABLE OF PRODUCING THIS TYPE OF EQUIPMENT, EVERY EFFORT SHOULD BE MADE TO HELP, IF NOT ENCOURAGE, THOSE MANUFACTURERS TO QUALIFY THEIR EQUIPMENT. ONLY WHEN COMPETITION IS OPEN TO AS MANY FIRMS AS POSSIBLE IS THERE ASSURANCE THAT THE PROCURING ACTIVITY IS OBTAINING THE BEST ITEM AT THE BEST POSSIBLE PRICE.

BY SEPARATE LETTER OF TODAY ADDRESSED TO THE SECRETARY OF THE AIR FORCE WE ARE STRONGLY RECOMMENDING THAT THE AIR FORCE EXPEDITE ITS TESTING PROGRAM AND THAT FAVORABLE CONSIDERATION BE GIVEN TO YOUR SUGGESTION THAT ALL FUTURE PROCUREMENTS BE HELD IN ABEYANCE UNTIL THE RESULTS OF THEIR TESTS ARE KNOWN.

IN VIEW OF THE FACTS AND CIRCUMSTANCES SET FORTH ABOVE, WE ARE UNABLE TO CONCLUDE THAT THE PROPOSED AWARD IS ILLEGAL.