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INCORPORATED: REFERENCE AGAIN IS MADE TO YOUR LETTERS OF DECEMBER 23. WE WERE ADVISED THAT CONTRACTS NOS. GENERAL ELECTRIC COMPANY WAS THE ONLY COMPANY LISTED AS HAVING QUALIFIED ITS PRODUCT. WE ARE INFORMED THAT TO DATE AVIEN HAS TAKEN NO ACTION TO QUALIFY A PRODUCT UNDER THE MILITARY SPECIFICATION FOR THE TRU-6/A FUEL FLOW TRANSMITTER. ARMED SERVICES PROCUREMENT REGULATION 1-1107.1 (A) PROVIDES THAT WHEN A QUALIFIED PRODUCTS LIST IS USED PROCUREMENTS SHALL BE MADE ONLY FROM COMPANIES HAVING PRODUCTS LISTED. IN SUCH SITUATIONS IT IS OUR WELL ESTABLISHED PRACTICE TO ACCEPT THE ADMINISTRATIVE VERSION OF THE FACTS IN THE ABSENCE OF EVIDENCE TO THE CONTRARY SUFFICIENT TO OVERCOME A PRESUMPTION OF CORRECTNESS OR UNLESS THE FACTS AS ADMINISTRATIVELY REPORTED ARE CLEARLY UNSUPPORTABLE.

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B-164733, MAR. 25, 1969

TO AVIEN, INCORPORATED:

REFERENCE AGAIN IS MADE TO YOUR LETTERS OF DECEMBER 23, 1968, AND PRIOR TELEGRAMS INITIATING PROTESTS WITH THIS OFFICE CONCERNING REQUESTS FOR QUOTATIONS NO. F33657-69-Q-0502 AND CONTRACTS NOS. F33657 69-C-0513 AND F33657-68-C-0191, AND REQUESTING RECONSIDERATION OF OUR DECISION, B- 164733, DATED NOVEMBER 21, 1968.

RESPECTING THE NEW PROTESTS, WE WERE ADVISED THAT CONTRACTS NOS. F33657- 69-C-0513 AND F33657-68-C-0191 AWARDED BY THE AERONAUTICS SYSTEMS DIVISION, WRIGHT-PATTERSON AIR FORCE BASE, TO THE GENERAL ELECTRIC COMPANY, AND THE PROPOSED PROCUREMENT UNDER REQUEST FOR QUOTATIONS NO. F33657-69-Q-0502, ALL INVOLVE QUANTITIES OF THE TRU 6/A FUEL FLOW TRANSMITTER PURCHASED OR TO BE PURCHASED IN ACCORDANCE WITH SPECIFICATION MIL-T-26298C, DATED NOVEMBER 16, 1959, AS AMENDED ON APRIL 18, 1962. THAT SPECIFICATION REQUIRES A QUALIFIED PRODUCT UNDER QPL-26298-3, DATED JUNE 29, 1968.

AT THE TIME OF THESE PROCUREMENTS, GENERAL ELECTRIC COMPANY WAS THE ONLY COMPANY LISTED AS HAVING QUALIFIED ITS PRODUCT. ADDITIONALLY, BY LETTER OF JULY 15, 1968, THE AIR FORCE ATTEMPTED WITHOUT SUCCESS TO INTEREST AVIEN IN FUTURE PROCUREMENTS FOR SYNCHRO TYPE FUEL FLOW TRANSMITTERS AND ADVISED THAT A QUALIFIED PRODUCTS LIST WOULD BE ESTABLISHED UNDER THIS SPECIFICATION. FURTHER, IN THE SAME LETTER, THE AIR FORCE ASSURED THAT TECHNICAL ASSISTANCE WOULD BE AVAILABLE TO ALL PROSPECTIVE SUPPLIERS FOR QUALIFICATION OF SUCH PRODUCTS. NOTWITHSTANDING THIS ADVICE, WE ARE INFORMED THAT TO DATE AVIEN HAS TAKEN NO ACTION TO QUALIFY A PRODUCT UNDER THE MILITARY SPECIFICATION FOR THE TRU-6/A FUEL FLOW TRANSMITTER.

THIS OFFICE HAS IN THE PAST APPROVED THE USE OF A QUALIFIED PRODUCTS LIST AS A NECESSARY RESTRICTION ON COMPETITION IN ORDER TO ASSURE THE DELIVERY OF AN ACCEPTABLE PRODUCT. SEE 36 COMP. GEN. 809. ARMED SERVICES PROCUREMENT REGULATION 1-1107.1 (A) PROVIDES THAT WHEN A QUALIFIED PRODUCTS LIST IS USED PROCUREMENTS SHALL BE MADE ONLY FROM COMPANIES HAVING PRODUCTS LISTED. INASMUCH AS AVIEN CHOSE NOT TO SUBMIT ITS PRODUCT FOR QUALIFICATION, THE AIR FORCE PROPERLY DID NOT SOLICIT THAT COMPANY AND THE PROTEST MUST BE DENIED.

IN REQUESTING RECONSIDERATION OF OUR DECISION, B-164733, DATED NOVEMBER 21, 1968, YOU CHALLENGE CERTAIN FACTUAL POSITIONS TAKEN BY THE AIR FORCE WHICH WE ADOPTED. IN SUCH SITUATIONS IT IS OUR WELL ESTABLISHED PRACTICE TO ACCEPT THE ADMINISTRATIVE VERSION OF THE FACTS IN THE ABSENCE OF EVIDENCE TO THE CONTRARY SUFFICIENT TO OVERCOME A PRESUMPTION OF CORRECTNESS OR UNLESS THE FACTS AS ADMINISTRATIVELY REPORTED ARE CLEARLY UNSUPPORTABLE. SEE B-162932, DATED JUNE 14, 1968, AND B-160110, DATED DECEMBER 1, 1966. IN SHORT, THEREFORE, YOUR REQUEST MUST BE DENIED ON THAT BASIS. HOWEVER, WE HAVE THE FOLLOWING SPECIFIC COMMENTS ON THE POINTS RAISED IN YOUR REQUEST FOR RECONSIDERATION.

YOU STATE THAT EITHER THE AIR FORCE DID NOT SOLICIT 47 FIRMS OR THAT IT DID SO AS AN EMPTY GESTURE, KNOWING ONLY AVIEN AND GENERAL ELECTRIC WOULD RESPOND. THIS HAS BEEN CATEGORICALLY DENIED BY THE AIR FORCE. WE ARE ADVISED THAT VARIOUS COMPANIES EXPRESSED INTEREST IN THIS PROCUREMENT PRIOR TO SOLICITATION LEADING THE CONTRACTING OFFICER TO EXPECT A MINIMUM OF SIX PROPOSALS.

THE SECOND POINT RAISED IS THAT AWARD SHOULD HAVE BEEN MADE TO AVIEN ON THE INITIAL PROPOSALS AND THAT THE ONLY PURPOSE FOR THE SECOND ROUND WAS TO ALERT GENERAL ELECTRIC TO THE EXISTENCE OF COMPETITION. UNDER STATUTE, 10 U.S.C. 2304 (G), NEGOTIATIONS AFTER THE RECEIPT OF PROPOSALS ARE REQUIRED WITH CERTAIN EXCEPTIONS NOT HERE APPLICABLE. ALSO, AS WE SET OUT IN OUR DECISION: "HE (THE CONTRACTING OFFICER) EXPLAINS THAT YOUR ALTERNATE PROPOSAL FOR A SPECIAL INDICATOR TO DRIVE ONLY ONE TRANSMITTER WAS NOT PERMITTED UNDER THE SPECIFICATIONS. BUT SINCE THE A-7D IS A SINGLE ENGINE AIRCRAFT HE DECIDED TO PERMIT SUCH AN ALTERNATE PROPOSAL, AND HE UNDERTOOK TO ADVISE GE OF THIS CHANGE ONLY SO THAT ALL PARTIES WOULD BE AWARE OF THE GROUND RULES.' WE CAN PERCEIVE NO OTHER COURSE FOR THE CONTRACTING OFFICER TO HAVE TAKEN IN SUCH CIRCUMSTANCES WHICH WOULD HAVE BEEN CONSISTENT WITH THE WELL SETTLED RULE APPLICABLE TO ALL TYPES OF CONTRACTS THAT THE CONTRACT AWARDED MUST BE THAT OFFERED TO ALL COMPETING PARTIES. SEE 37 COMP. GEN. 251 AND 40 COMP. GEN. 447.

THIRDLY, YOU CONCLUDE THAT THE SPECIFICATIONS WERE REVISED TO REQUIRE THE SECOND HARMONIC DESIGN FOR THE A-7D AIRCRAFT, IN YOUR OPINION AN OBSOLESCENT DESIGN, TO PERMIT AWARD TO GENERAL ELECTRIC. FURTHER, YOU QUESTION THE ACTION TAKEN IN RESOLVING THE AMBIGUITY IN AMENDMENT NO. 1 ADVERSELY TO YOUR COMPANY AND THE BASIS FOR SUSTAINING A DECISION TO PROCURE A "GOOD" RATHER THAN ,OUTSTANDING" TYPE FUEL FLOW METER. ALL OF THESE POINTS RELATE TO THE DETERMINATION OF THE GOVERNMENT'S NEEDS. THIS OFFICE HAS STEADFASTLY HELD THAT IT IS THE PRIMARY RESPONSIBILITY OF THE PROCURING ACTIVITY TO DETERMINE THOSE NEEDS AND IN TURN TO DRAFT THE SPECIFICATIONS TO REFLECT THE MINIMUM REQUIREMENTS CONSISTENT WITH THE MAXIMUM COMPETITION POSSIBLE. SEE 40 COMP. GEN. 294. WE DO NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE PROCURING ACTIVITY SIMPLY BECAUSE A DIFFERENCE OF OPINION EXISTS AS TO WHAT CONSTITUTES THE NEEDS OF THE GOVERNMENT. THEREFORE THE REVISION OF THE SPECIFICATIONS AND CLARIFICATION OF THE AMENDMENT TO MORE CLEARLY APPRISE ALL OFFERORS OF THE GOVERNMENT'S NEEDS IS NOT OBJECTIONABLE MERELY BECAUSE THOSE NEEDS ARE STATED IN A MANNER NOT ENTIRELY CONSISTENT WITH AN OFFEROR'S PROPOSED PRODUCT. WHILE YOUR TYPE OF FUEL FLOW MAY HAVE BEEN SUPERIOR TO GENERAL ELECTRIC-S, THAT SUPERIORITY DOES NOT JUSTIFY AWARD FOR MORE THAN THE MINIMUM REQUIRED NEEDS. SEE 37 COMP. GEN. 550.

FINALLY, YOU HAVE REITERATED YOUR CONTENTIONS THAT GENERAL ELECTRIC IS "BUYING IN" AND REDUCED ITS PRICE BELOW $100,000 TO AVOID SUBMISSION OF COST AND PRICING DATA AS REQUIRED BY 10 U.S.C. 2306 (F). WE THINK THESE TWO POINTS ARE INHERENTLY INCONSISTENT. IF, IN FACT, THERE IS COMPETITION WHICH MIGHT INDUCE A "BUY IN" , COST AND PRICING DATA ARE NOT REQUIRED UNDER THE STATUTE OR REGULATIONS. NO COST AND PRICING DATA WERE REQUIRED BECAUSE THE CONTRACT WAS FOR LESS THAN $100,000. THE REDUCTION IN THE GENERAL ELECTRIC PRICE IS READILY ATTRIBUTABLE TO THE ELIMINATION OF A $30,000 CHARGE FOR DATA AND A $25,000 CHARGE FOR TESTING INCLUDED IN THE INITIAL PROPOSAL.

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