B-153941, AUG. 27, 1964

B-153941, AUG. 27, 1964

TO VICE ADMIRAL JOSEPH M. LYLE, DIRECTOR, DEFENSE SUPPLY AGENCY:

FURTHER REFERENCE IS MADE TO THE PROTEST DATED JUNE 26, 1964, FROM THE LAW FIRM, SELLERS, CONNER AND CUNEO, WASHINGTON, D.C., IN BEHALF OF EAGLE CRUSHER COMPANY, INC., GALION, OHIO, AGAINST THE USE OF THE COMPANY'S DATA AND DRAWINGS FOR COMPETITIVE PROCUREMENT PURPOSES AND THE AWARD OF A CONTRACT TO ANY FIRM OTHER THAN EAGLE UNDER INVITATION FOR BIDS (IFB) NO. DSA 7-64-2194 DATED MARCH 10, 1964.

THE IFB WAS ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO, FOR FURNISHING ITEMS OF JAW CRUSHER REPLACEMENTS FOR ROCK CRUSHER AND SCREENING PLANTS MANUFACTURED AND DELIVERED TO THE GOVERNMENT WITH SPECIFIED DATA AND DRAWINGS PURSUANT TO PRIOR CONTRACTS WITH EAGLE CRUSHER COMPANY, INC. YOUR PREDECESSOR WAS ADVISED IN OUR DECISION OF AUGUST 22, 1963, B-150369, THAT THE DATA AND DRAWINGS, INCLUDING THOSE APPLICABLE TO THE JAW CRUSHER, COVERED BY THE IFB WERE DELIVERED BY EAGLE IN CONFIDENCE AND UNDER CONTRACT PROVISIONS STIPULATING CERTAIN SPECIFIED PURPOSES WHICH PRECLUDED THE USE THEREOF FOR COMPETITIVE PROCUREMENT BY THE GOVERNMENT. THE EAGLE PROTEST ASSERTS THAT THE DRAWING USED IN IFB NO. DAS 7-64-2194 IS A COPY OF EAGLE DRAWING NO. 1119A, WHICH WE HAD RULED IN OUR DECISION OF AUGUST 22, 1963, COULD NOT BE USED FOR COMPETITIVE PROCUREMENT PURPOSES. EAGLE NOW CONTENDS THAT "NEITHER SHOULD A COPY OF EAGLE DRAWING NO. 1119A, CONTAINING THE SAME INFORMATION, BE USED TO CIRCUMVENT A GAO RULING PROHIBITING SUCH PRACTICES.' AS STATED IN THE PROTEST, IFB NO. DSA 7-64-2194 CALLS FOR THE FURNISHING OF: ,JAW CRUSHER, MOVABLE, MADE IN ACCORDANCE WITH DCSC DRAWING NO. DCSC-3820 0008.'

IN HIS REPORT OF MAY 18, 1964, TRANSMITTED WITH LETTER OF JUNE 1, 1964, FROM YOUR ASSISTANT COUNSEL, THE COMMANDING GENERAL OF THE CENTER STATES THAT UPON RECEIPT OF TWO LETTERS OF PROTEST DATED MARCH 30, 1964, THE CENTER INFORMED EAGLE THAT THE DCSC DRAWING HAD BEEN PREPARED BY ENGINEERS AT THE CENTER AND, THEREFORE, REFUSED TO CANCEL THE INVITATION. THE COMMANDING OFFICER STATES FURTHER:

"5. INVESTIGATION OF THIS MATTER DISCLOSES THE FOLLOWING FACTS:

"A. ON 16 JULY 1962 (PRIOR TO EAGLE'S FIRST PROTEST), C. H. KATREEB, ACTING CHIEF, PRODUCTION ENGINEERING DIVISION, THIS CENTER, DETERMINED THAT DCSC DRAWINGS WOULD BE PREPARED FOR CRUSHER JAWS FOR SUBSEQUENT PROCUREMENTS (INCL G).

"B. THREE ENGINEERS EMPLOYED BY THIS CENTER EXAMINED A MOVABLE CRUSHER JAW AT THIS CENTER; MADE MEASUREMENTS, NOTES AND SKETCHES OF THE JAW AND GAVE THE NOTES AND SKETCHES TO A CENTER DRAFTSMAN TO PREPARE A DRAWING (INCL H, I AND J). DCSC DRAWING 3820-0008 WAS PREPARED BY A DCSC DRAFTSMAN FROM NOTES AND SKETCHES GIVEN TO HIM BY DCSC ENGINEERS AND COMPARED WITH A DRAWING MADE BY EAGLE CRUSHER COMPANY, INC. (INCL K).

"C. DCSC DRAWING 3820-0008 HAS BEEN REVISED TWICE SINCE ITS CREATION BY A DCSC ENGINEER IN ORDER TO PARTICULARIZE AND CLARIFY ITS REQUIREMENTS (INCL L AND M).

"6. IN VIEW OF THE FOREGOING IT IS CLEAR THAT THE DCSC DRAWING IS NOT A COPY OF EAGLE CRUSHER COMPANY, INC. DRAWING 1119A (INCL N) AND THEREFORE IT IS RECOMMENDED THAT THE PROTEST BE DENIED. BIDS IN RESPONSE TO THIS INVITATION WILL EXPIRE ON 31 JULY 1964.'

THE ASSISTANT COUNSEL OF YOUR AGENCY RECOMMENDS IN HIS LETTER OF JUNE 1, 1964, THAT EAGLE'S PROTEST BE DENIED ON THE BASIS THAT ALTHOUGH THE TWO DRAWINGS WERE COMPARED, THE EVIDENCE INDICATES THAT ALL THE MATERIAL DATA SHOWN ON THE DCSC DRAWING WERE OBTAINED FROM EXAMINATION OF THE ACTUAL PART INVOLVED AND WERE NOT COPIED FROM THE EAGLE CRUSHER DRAWING. SUPPORT OF THIS RECOMMENDATION, HE MAKES THE FOLLOWING STATEMENT:

"SINCE THE DRAWING PREPARED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER AND THE EAGLE CRUSHER DRAWING ARE OF THE SAME PART, THEY WOULD NECESSARILY BE SIMILAR IN MOST MATERIAL RESPECTS. THERE ARE SOME DIFFERENCES. THE MATERIAL IS MORE PRECISELY DEFINED IN THE DCSC DRAWING. THE DCSC DRAWING ALSO CONTAINS INFORMATION ON HEAT TREATMENT AND GIVES TOLERANCES ON FRACTIONS, DECIMALS AND ANGLES NOT SHOWN ON THE EAGLE CRUSHER DRAWING AND THERE IS A CHANGE IN ONE DIMENSION. THE ONLY INDICATION THAT THERE MAY HAVE BEEN SOME COPYING IS THE STATEMENT "17 PITCHES AT 1.948 EQUALS 33 1- 8" WHICH APPEARED ON THE DCSC DRAWING AS IT EXISTED ON 10 MARCH 1964 AND WHICH ALSO APPEARED ON THE EAGLE CRUSHER DRAWING. THE DIMENSION OF EACH PITCH, HOWEVER, IS SIMPLY A MATHEMATICAL COMPUTATION DERIVED BY DIVIDING THE OVER-ALL DIMENSION OF 33 1-8 BY THE NUMBER OF PITCHES. IT HAS SINCE BEEN CHANGED TO SHOW ONLY THE OVER-ALL DIMENSION OF 33 1-8 WITH THE FOLLOWING NOTE: "17 CORRUGATIONS OR PITCHES EQUALLY SPACED.'"

IN OTHER WORDS, THE POSITION OF YOUR AGENCY IS THAT THE DCSC DRAWING WAS MADE FROM "REVERSE ENGINEERING" STUDIES BY GOVERNMENT PERSONNEL.

WITH A SUPPLEMENTAL LETTER DATED JULY 17, 1964, YOUR ASSISTANT COUNSEL TRANSMITTED INFORMATION RELATING TO A REQUEST FOR PROPOSALS ISSUED BY THE COLUMBUS DEFENSE CONSTRUCTION SUPPLY CENTER, APRIL 7, 1964, AS AMENDED APRIL 23, 1964, COVERING "JAW CRUSHER, STATIONARY, EAGLE CRUSHER P/N 1120A" WITHOUT REFERENCE TO ANY DRAWINGS. IT IS SHOWN THAT AN OFFER WAS RECEIVED FROM EAGLE AND ALSO FROM A CANADIAN FIRM. THE LATTER, UPON BEING REQUESTED TO FURNISH SUPPORTING TECHNICAL DATA, SUBMITTED A DRAWING. ATTACHED TO THIS LETTER IS A MEMO DATED JULY 10, 1964, FROM THE CENTER'S COUNSEL, IN PART AS FOLLOWS:

"5. THE FOLLOWING ITEMS OF INFORMATION OF THE CANADIAN DRAWING ARE PARTICULARLY NOTEWORTHY:

"A. THE DATE OF THE DRAWING IS 14 MARCH 1962 AND EAGLE'S FIRST PROTEST WAS AGAINST AN INVITATION FOR BIDS ISSUED 26 SEPTEMBER 1962 SO THAT THIS DRAWING COULD NOT HAVE BEEN COPIED FROM EAGLE'S DRAWING ISSUED WITH THE IFB IN THE FIRST EAGLE PROTEST.

"B. THE DATA BLOCK OF THE DRAWING REFERS "WORN SAMPLES" . THIS SEEMS TO INDICATE THAT THE DRAWING WAS PREPARED FROM A SAMPLE OF THE ITEM IN THE SAME MANNER AS DCSC DRAWING 3820-0008 WAS PREPARED WHICH IS THE SUBJECT OF THE PROTEST PENDING BEFORE THE COMPTROLLER GENERAL.

"C. IN SECTION AA OF EAGLE'S DRAWING THE FOLLOWING APPEARS:

" "17 PITCHES AT 1.948 EQUAL 33 1-8"

"IN SECTION "B" "B" OF THE CANADIAN DRAWING THE FOLLOWING APPEARS:

" "17 EQUAL SPACES AT 1.948 EQUAL 33 1-8" "SINCE THE FIGURES USED IN BOTH DRAWINGS ARE IDENTICAL WITH THE FIGURES USED IN DCSC DRAWING 3820-0008 IT SEEMS CLEAR THAT THE FIGURES ARE NOTHING MORE THAN ARITHMETICAL CALCULATIONS FROM THE DIMENSIONS OF THE JAW ITSELF AND DO NOT SUPPORT AN INFERENCE THAT THE DCSC DRAFTSMAN COPIED THE FIGURES FROM THE EAGLE DRAWING.

D. THE MATERIAL SPECIFIED IN THE CANADIAN DRAWING IS SIMPLY "MANG. ST"1" AND THE EABLE DRAWING SPECIFIES "12 1/2 PERCENT MANG. STEEL.' SINCE THE PROPER STEEL FOR ROCK CRUSHER JAWS IS TEXTBOOK INFORMATION (SEE ASTM, ASM ETC.) IT IS VERY LIKELY THAT THE PREPARER OF EACH DRAWING FELT THAT A SIMPLE REFERENCE TO MANGANESE STEEL WAS AN ADEQUATE DESCRIPTION OF THE PROPER MATERIAL.

"6. IT IS THE OPINION OF THE UNDERSIGNED THAT THE ABOVE CITED FACTS HAVE PROBATIVE VALUE IN SUPPORT OF THE GOVERNMENT'S POSITION IN THE EAGLE APPEAL NOW UNDER CONSIDERATION BY THE COMPTROLLER GENERAL. IT IS RECOMMENDED THAT SAID FACTS BE PRESENTED TO THE COMPTROLLER GENERAL.'

IT IS ASSERTED IN THE EAGLE PROTEST THAT, ALTHOUGH THE EXACT PROCEDURE USED IN REPRODUCING EAGLE DRAWING NO. 3820-0008 IS NOT INDICATED BY THE CENTER, NEVERTHELESS, ON JULY 16, 1962, C. H. KATREEB, ACTING CHIEF, PRODUCTION ENGINEERING DIVISION, IN A COMMUNICATION TO THE CONTRACT PLANNING BRANCH "POINTED OUT, THAT MOVABLE JAW DRAWING NO. 1119A CONTAINED SUFFICIENT DATA AND DIMENSIONS FOR FORMAL PROCUREMENT ADVERTISING, AND FURTHER FURNISHED INFORMATION AS TO MATERIAL CONTENT," AND THAT THE RECORD SHOWS EAGLE DRAWING NO. 1119A ALSO CONTAINED OTHER PERTINENT DATA. EAGLE POINTS OUT THAT EAGLE'S DRAWING NO. 1119A IS DATED JULY 7, 1960, THAT THE DCSC DRAWING NO. 3820-0008 SHOWS THAT IT WAS DESIGNED BY E. H. LEMON ON JULY 11, 1962, WHICH WAS FIVE DAYS BEFORE MR. KATREEB MADE THE DECISION TO HAVE A DCSC DRAWING PREPARED FOR SUBSEQUENT PROCUREMENT; THAT, IN FACT, THE DCSC DRAWING WAS DRAWN BY M. S. WILSON ON MARCH 22, 1963; THAT THE DRAWING WAS APPROVED ON FEBRUARY 24, 1964, AND THE DESIGN ON FEBRUARY 25, 1964. EAGLE CONTENDS THAT SINCE THE DESIGN FOR DRAWING NO. DCSC 3820-0008 WAS MADE ON JULY 11, 1962, THE COMMANDING OFFICER'S STATEMENT THAT THREE ENGINEERS WERE EMPLOYED TO EXAMINE A MOVABLE CRUSHER JAW AND MADE MEASUREMENTS, NOTES AND SKETCHES OF THE JAW, AND FROM SUCH MATERIAL DRAFTSMAN PREPARED THE DRAWING IS NOT ACCURATE; THAT THE MOST SIGNIFICANT STATEMENT MADE IN THE COMMANDING OFFICER'S LETTER OF MAY 18, 1964, IS THAT IN PARAGRAPH 5.B., QUOTED ABOVE, TO THE EFFECT "THAT THE DRAFTSMAN OF DRAWING NO. DCSC 3820-0008 COMPARED IT WITH EAGLE DRAWING NO. 1119A.' EAGLE URGES THAT A LAYMAN'S EXAMINATION OF THE DRAWINGS "CLEARLY SHOWS THAT DRAWING NO. DCSC 3820 0008 IS NOTHING MORE THAN A REPRODUCTION OF EAGLE DRAWING NO. 1119A; " THAT ALL DIMENSIONS AND VIEWS ON THE DCSC DRAWING ARE EXACTLY THE SAME AS THOSE ON THE EAGLE DRAWING; THAT RATHER THAN USING REVERSE ENGINEERING, IT IS EVIDENT THAT THE DCSC DRAWING IS AN EXACT DUPLICATE OF THE DETAIL SET FORTH ON THE EAGLE DRAWING; THAT "EVERY DIMENSION HAS BEEN EXACTLY COPIED ON THE DCSC DRAWING, EVEN TO THE EXTENT OF AN ENGINEERING LICENSE, AS EXEMPLIFIED BY 17 PITCHES X 1.948" PER PITCH.' EAGLE POINTS OUT THAT IF 17 PITCHES ARE MULTIPLIED BY 1.948" PER PITCH THE ACCUMULATED TOTAL IS 33.116"; THAT IT WOULD BE "IMPOSSIBLE IN REVERSE ENGINEERING FROM AN EXISTING PART IN THE SHOP TO ARRIVE AT IDENTICAL SPACING PER INCH, AS INDICATION GIVEN, TOTALING 33 1-8, AS SHOWN ON BOTH PRINTS; " THAT IN FACT THIS STATEMENT ORIGINALLY SET FORTH ON THE EAGLE DRAWING IS MATHEMATICALLY INACCURATE, WHICH ANY ENGINEER DOING AN ORIGINAL JOB WOULD HAVE KNOWN AND THAT THE LETTER OF JUNE 26, 1964, HOWEVER, SHOWS THAT THE GROSS ARITHMETICAL ERROR ON THE EAGLE DRAWING IS COPIED EXACTLY ON THE GOVERNMENT DRAWING. OTHER INSTANCES ARE POINTED OUT BY EAGLE INDICATING THAT THE DCSC DRAWING IS IN FACT A REPRODUCTION OF THE MATERIAL PART OF THE EAGLE DRAWING.

THUS, IT IS THE POSITION OF EAGLE THAT THE CIRCUMSTANCES SURROUNDING THE DELIVERY OF THE EAGLE DRAWING IN QUESTION TO THE GOVERNMENT, INCLUDING THE TIME THEREOF, THE DATA SET FORTH, AND THE ACTIVITIES OF THE GOVERNMENT REPRESENTATIVES IN PREPARING DRAWING NO. DCSC 3820-0008, AND THE SIMILARITY OF THE INFORMATION SET FORTH ON THE TWO DRAWINGS, LEAD TO THE LEGAL INFERENCE THAT THE GOVERNMENT REPRESENTATIVES DID COPY EAGLE'S DRAWING. SEE IN THIS CONNECTION THE CASE OF SMITH V. DRAVO CORP., 203 F.2D 369, WHEREIN THE COURT STATED AT PAGE 377:

"DEFENDANT'S OWN EVIDENCE DISCLOSES THAT IT DID NOT BEGIN TO DESIGN ITS CONTAINER UNTIL AFTER IT HAD ACCESS TO PLAINTIFFS' PLANS. DEFENDANT'S ENGINEERS ADMITTEDLY REFERRED TO PLAINTIFFS' PATENT APPLICATIONS, AS THEY SAID, TO AVOID INFRINGEMENT. IT IS NOT DISPUTED THAT, AT THE URGING OF AGWILINES, DEFENDANT REVISED ITS PROPOSED DESIGN TO INCORPORATE THE FOLDING LEG AND SOCKET PRINCIPLES OF PLAINTIFFS' CONTAINERS. THESE EVIDENTIARY FACTS, TOGETHER WITH THE STRIKING SIMILARITY BETWEEN DEFENDANT'S AND PLAINTIFFS' FINISHED PRODUCT, WERE MORE THAN ENOUGH TO CONVICT DEFENDANT OF THE IMPROPER USE OF THE STRUCTURAL INFORMATION OBTAINED FROM PLAINTIFFS.

"AS A GENERAL RULE THE SIMILARITY STANDING ALONE IS AN ADEQUATE BASIS UPON WHICH TO FIND MISAPPROPRIATION. THUS, IN HOELTKE V. C. M. KEMP MFG. CO., 4 CIR., 80 F.2D 912, 924, THE COURT SAID:

"THE SIMILARITY OF DEFENDANT'S DEVICE TO THAT OF COMPLAINANT IS STRONG PROOF THAT ONE WAS COPIED FROM THE OTHER" .' CF. NASH V. ALASKA AIRLINES (S.D.N.Y. 1950), 94 F.SUPP. 428,WHERE THE COURT IN DRAWING A SIMILAR INFERENCE AT PAGE 430 EXPRESSED THE VIEW THAT THE SUBMISSION OF THE DESIGNS INVOLVED TO THE DEFENDANT AND HIS RETENTION THEREOF UNTIL AFTER THE USE IN ADVERTISING AND OTHER MATTER OF AN ESSENTIALLY SIMILAR DESIGN CREATED AN INFERENCE THAT THE DEFENDANT USED THE PLAINTIFF'S DESIGN.

FURTHERMORE, FOR THE REASONS HEREINAFTER STATED, WE DO NOT BELIEVE THAT THE INFORMATION AND EVIDENCE SUBMITTED REASONABLY MAY BE REGARDED AS JUSTIFYING THE AGENCY ACTION PROPOSED IN THIS CASE AS IT SEEMS EVIDENT THAT THE RESPONSIBLE PROCUREMENT PERSONNEL HAVE MISCONCEIVED THE RIGHTS OF EAGLE AND THE OBLIGATIONS OF THE GOVERNMENT. WHILE IT MAY BE THAT THE ROCK CRUSHER PLANTS COULD HAVE BEEN PROCURED WITHOUT OBTAINING THE DATA AND THE DRAWINGS PERTAINING THERETO AND THAT CERTAIN DATA AND DESIGN INFORMATION MIGHT HAVE BEEN OBTAINED THEREAFTER BY "REVERSE ENGINEERING" METHODS, NEVERTHELESS, IT SEEMS ABUNDANTLY CLEAR AS POINTED OUT IN OUR DECISION OF AUGUST 22, 1963, THIS IS NOT WHAT WAS DONE. INSTEAD, WHEN THE ROCK CRUSHERS WERE INITIALLY PROCURED, DETAILED DATA AND DRAWINGS WERE ALSO PROCURED UNDER A CONFIDENTIAL RELATIONSHIP AND EXPRESS CONTRACT STIPULATIONS WHEREBY THE GOVERNMENT BECAME DUTY-BOUND AND CONTRACTUALLY OBLIGATED NOT TO USE SUCH DATA AND DRAWINGS FOR COMPETITIVE PROCUREMENT PURPOSES. IN OUR OPINION, THE USE OF SUCH DATA AND DESIGNS FOR THE PROCUREMENT NOW PROPOSED UNDER THE IFB WOULD VIOLATE THIS DUTY AND BREACH THE CONTRACT. MOREOVER, WE BELIEVE SUCH ACTION REASONABLY MAY NOT BE REGARDED AS CONSISTENT WITH RECOGNIZED STANDARDS OF FAIR DEALING. CF. FRANKE V. WILTSCHEK (2 C.A. 1953), 209 F.2D 493, AND THE AUTHORITIES REFERRED TO AND QUOTED WITH APPROVAL AT PAGES 495-496 IN SUPPORT OF THE PRINCIPLE THAT WHERE SECRET INFORMATION IS OBTAINED BY MEANS OF A CONFIDENTIAL RELATIONSHIP, HE WHO SO OBTAINS IT AND USED IT TO HIS OWN ADVANTAGE AT THE EXPENSE OF THE RIGHTFUL OWNER IS ACCOUNTABLE THEREFOR.

AMONG THE BASIC "UNIFORM POLICIES AND PROCEDURES RELATED TO PROCUREMENT" PRESCRIBED IN THE ARMED SERVICE PROCUREMENT REGULATION FOR THE DEPARTMENT OF DEFENSE ARE THE FOLLOWING:

"1-304 SELECTION OF ITEMS INVOLVING PROPRIETARY DATA OR OTHER RESTRICTIVE FACTORS. IN SOME CASES, THE PROCUREMENT OF AN ITEM WOULD INVOLVE PROPRIETARY DATA (SEE 9-201/B/) OR OTHER FACTORS WHICH WOULD RESTRICT SOURCES OF PROCUREMENT OR LIMIT COMPETITION, BUT ALTERNATIVE ITEMS CAN BE PROCURED WHICH WOULD MEET THE MILITARY NEEDS INVOLVED. IN SUCH CASES, CONSIDERATION SHOULD BE GIVEN IN SELECTING THE ITEM TO BE PROCURED, TO THE RELATIVE ADVANTAGES FOR NATIONAL DEFENSE PURPOSES OF THE ITEM WHICH INVOLVED SUCH PROPRIETARY DATA OR OTHER FACTORS AS AGAINST THE DISADVANTAGES OF A RESTRICTED SOURCE OF SUPPLY AND POSSIBLE INCREASED COST TO THE GOVERNMENT BECAUSE OF LACK OF COMPETITION. HOWEVER, WHERE A PARTICULAR ITEM BEST MEETS MILITARY NEEDS, THE CONTRACTING ACTIVITY SHOULD NOT REFRAIN FROM PROCURING THE ITEM SOLELY BECAUSE IT WOULD INVOLVE SUCH RESTRICTIONS OR LIMITATIONS.'

"1-313 PROCUREMENT OF PARTS.

"/A) PARTS FOR MILITARY EQUIPMENT, TO BE USED FOR REPLENISHMENT OF STOCK, REPAIR, OR REPLACEMENT, MUST BE PROCURED SO AS TO ASSURE THE REQUISITE SAFE, DEPENDABLE, AND EFFECTIVE OPERATION OF THE EQUIPMENT. WHERE IT IS FEASIBLE TO DO SO WITHOUT IMPAIRING THIS ASSURANCE, PARTS SHOULD BE PROCURED ON A COMPETITIVE BASIS, AS IN THE KIND OF CASES DESCRIBED IN (B) BELOW. HOWEVER, WHERE THIS ASSURANCE CAN BE HAD ONLY IF THE PARTS ARE PROCURED FROM THE ORIGINAL MANUFACTURER OF THE EQUIPMENT OR HIS SUPPLIER, THE PROCUREMENT SHOULD BE RESTRICTED ACCORDINGLY, AS IN THE KIND OF CASES DESCRIBED IN (C) BELOW.

"/B) PARTS THAT ARE FULLY IDENTIFIED AND CAN BE OBTAINED FROM A NUMBER OF KNOWN SOURCES, AND PARTS FOR WHICH FULLY ADEQUATE MANUFACTURING DRAWINGS AND ANY OTHER NEEDED DATA ARE AVAILABLE (OR CAN BE MADE AVAILABLE IN KEEPING WITH THE POLICIES IN SECTION IX, PART 2) ARE TO BE PROCURED ON A COMPETITIVE BASIS. IN GENERAL, SUCH PARTS ARE OF A STANDARD DESIGN CONFIGURATION. THEY INCLUDE INDIVIDUAL ITEMS THAT ARE SUSCEPTIBLE OF SEPARATE PROCUREMENT, SUCH AS RESISTORS, TRANSFORMERS, GENERATORS, SPARK PLUGS, ELECTRON TUBES, OR OTHER PARTS HAVING COMMERCIAL EQUIVALENTS.

"/C) PARTS NOT WITHIN THE SCOPE OF (B) ABOVE GENERALLY SHOULD BE PROCURED (EITHER DIRECTLY OR INDIRECTLY) ONLY FROM SOURCES THAT HAVE SATISFACTORILY MANUFACTURED OR FURNISHED SUCH PARTS IN THE PAST, UNLESS FULLY ADEQUATE DATA (INCLUDING ANY NECESSARY PROPRIETARY DATA), TEST RESULTS, AND QUALITY ASSURANCE PROCEDURES, ARE AVAILABLE (OR CAN REASONABLY BE MADE AVAILABLE IN KEEPING WITH THE POLICIES IN SECTION IX, PART 2) TO ASSURE THE REQUISITE RELIABILITY AND INTERCHANGEABILITY OF THE PARTS, AND PROCUREMENT ON A COMPETITIVE BASIS WOULD BE CONSISTENT WITH THE ASSURANCE DESCRIBED IN (A) ABOVE. IN ASSESSING THIS ASSURANCE, THE NATURE AND FUNCTION OF THE EQUIPMENT FOR WHICH THE PART IS NEEDED SHOULD BE CONSIDERED. ILLUSTRATE, ACCEPTABLE TOLERANCES FOR A COMMERCIAL TELEVISION PART MAY BE FAR LESS STRINGENT THAN THOSE FOR A COMPARABLE MILITARY RADER PART, PERMITTING COMPETITIVE PROCUREMENT OF THE FORMER BUT NOT OF THE LATTER. THE EXACTING PERFORMANCE REQUIREMENTS OF SPECIALLY DESIGNED MILITARY EQUIPMENT GENERALLY DEMAND THAT PARTS BE CLOSELY CONTROLLED AND HAVE PROVEN CAPABILITIES OF PRECISE INTEGRATION WITH THE SYSTEM IN WHICH THEY OPERATE, TO A DEGREE THAT PRECLUDES THE USE OF EVEN APPARENTLY IDENTICAL PARTS FROM NEW SOURCES, SINCE THE FUNCTIONING OF THE WHOLE MAY DEPEND ON LATENT CHARACTERISTICS OF EACH PART WHICH ARE NOT DEFINITELY KNOWN.'

IT SEEMS QUITE CLEAR THAT, UNDER THE FACTS AND CIRCUMSTANCES OF THIS CASE SET OUT IN OUR PRIOR DECISION OF AUGUST 22, 1963, THE PROCUREMENT OF THE PARTS HERE IN QUESTION COMES WITHIN THE PURVIEW OF THE REGULATIONS QUOTED ABOVE.

FROM A CAREFUL CONSIDERATION OF THE ENTIRE MATTER, WE ARE OF THE VIEW THAT IFB NO. DSA 7-64-2194 SHOULD BE WITHDRAWN AND THAT FUTURE PROCUREMENT OF THE PARTS REQUIREMENTS FOR THE ROCK CRUSHER AND SCREENING PLANTS OBTAINED FROM EAGLE SHOULD CONFORM WITH THE BASIC PRINCIPLES AND POLICIES REFERRED TO ABOVE AND IN OUR DECISION OF AUGUST 22, 1963, WHICH IS AFFIRMED.