B-154679, OCT. 2, 1964

B-154679, OCT. 2, 1964

TO MID-SOUTH AIRCRAFT:

WE REFER TO YOUR LETTERS DATED JULY 7, JULY 8 AND SEPTEMBER 3, 1964, REGARDING YOUR PROTEST TO THE AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS NO. 09-603-64-2928 TO CURTISS-WRIGHT CORPORATION.

THIS RFP WAS ISSUED BY WARNER ROBINS AIR MATERIEL AREA, WARNER ROBINS AIR FORCE BASE, GEORGIA, FOR THE FOLLOWING QUANTITIES OF LOW SPEED PLANET GEARS, CURTISS-WRIGHT P/N 109211:

CHART

QUANTITY "ITEM SUPPLIES OR SERVICES (NUMBER OF UNIT

NO. CLASS: 1610 UNITS)

1 1610 095 5627 GEAR, LOW SPEED PLANET

CURTISS-WRIGHT P/N 109211

1.1 INITIAL AWARD-INCREMENT "A" 722 EA

1.1.1 OPTION-INCREMENT "A" 722 EA

1.2 INCREMENT "B" 361 EA

1.3 INCREMENT "C" 173 EA"

THE RFP PROVIDED THAT PRICES WERE TO BE ON A STRAIGHT FIXED-PRICE BASIS. YOU ALLEGE THAT THE AWARD TO CURTISS-WRIGHT CORPORATION UNDER THIS RFP WAS IMPROPER AND IN THIS CONNECTION YOU ADVISE THAT YOUR QUOTATION FOR P/N 109211 IS SUBSTANTIALLY LESS THAN THE QUOTATION OF CURTISS-WRIGHT FOR THIS PART. YOU ALSO ALLEGE THAT YOUR PROPOSAL WAS NOT GIVEN DUE CONSIDERATION BY THE DEPARTMENT OF THE AIR FORCE.

THE CONTRACTING OFFICER'S REPORT STATES THAT CURTISS-WRIGHT WAS SOLICITED FOR THE PROCUREMENT OF THESE ITEMS FOR THE FOLLOWING REASONS:

"DURING NEGOTIATION OF CONTRACT AF09/603/37949 COVERING PRODUCTION BUY OF PROPELLERS WITH CURTISS-WRIGHT CORPORATION, AN "A" LIST AND A "B" LIST WERE COMPILED JOINTLY BY CURTISS ENGINEERS AND WRAMA ENGINEERS. THIS "A" AND "B" LIST CONSISTS OF SPARE PARTS APPLICABLE TO THE C-124 AND C-133 AIRCRAFT PROPELLERS, AND WAS NEGOTIATED INTO CONTRACT AF09/603/37949. THE "A" LIST CONSISTS OF NON-CRITICAL ITEMS WHILE THE "B" LIST CONSISTS OF CRITICAL ITEMS. THE ITEMS WERE SCREENED THOROUGHLY BY WRAMA ENGINEERS AND CURTISS ENGINEERS AND DETERMINATIONS MADE FOR CRITICAL AND NON-CRITICAL ITEMS. IT WAS DETERMINED BY THE AIR FORCE THAT FOR REASONS OF CRITICAL APPLICATION AND RELIABILITY THE "B" LISTED ITEMS WOULD BE PURCHASED FROM CURTISS-WRIGHT CORPORATION. THE "A" LISTED ITEMS WOULD BE COMPETED. CURTISS AGREED TO FURNISH THE DATA FOR BOTH LISTS (DID NOT RELINQUISH PROPRIETARY RIGHTS) I.E., THE "B" LIST DATA FOR GOVERNMENT USE AND THE "A" LIST DATA FOR COMPETITIVE PROCUREMENT PURPOSES. (1439 ITEMS "A" LIST--- 553 ITEMS "B" LIST, REFERENCE ATTACHMENT NO. 1). PRIOR TO THE NEGOTIATIONS THE AIR FORCE DID NOT HAVE DATA FOR ANY OF THE ITEMS AND COULD NOT SECURE COMPETITION BECAUSE OF PROPRIETARY RIGHTS. THE METHOD USED IN COMPILING THESE LISTS IS SIMILAR TO THE "POOR MAN'S APPROACH FOR PROCUREMENT OF SPARE PARTS AS OUTLINED IN AFLCO 57-6. THESE LISTS WERE JOINTLY REVIEWED AND REVISED IN AUGUST 1963. THE CONTEMPLATED PROCUREMENT CONSISTS OF ONE ITEM ON THE "B" LIST. AS THE PRIME DESIGNER AND MANUFACTURER OF THE PROPELLER ASSEMBLIES, CURTISS-WRIGHT HAS THE ONLY AVAILABLE TRAINED PERSONNEL AND TECHNICAL ABILITY TO PRODUCE THE REQUIRED PARTS WITHOUT DELAY OR UNDUE COST TO THE GOVERNMENT.'

ON MARCH 20, 1964, YOU ADVISED THE WARNER ROBINS AIR MATERIEL AREA THAT YOU HAD AVAILABLE FOR IMMEDIATE DELIVERY 900 LOW-SPEED PLANET GEARS, CURTISS-WRIGHT P/N 109211. THIS LETTER ALSO STATED THAT THESE GEARS WERE FORMERLY GOVERNMENT OWNED AND WERE SERVICEABLE SURPLUS ITEMS. ON MARCH 26, 1964, THE ACTING CHIEF, BEARING-PROPELLER BRANCH, AIR VEHICLE AND COMPONENT DIVISION, REQUESTED A DETERMINATION WHETHER THE GEARS YOU PROPOSED TO FURNISH WERE IN A SERVICEABLE CONDITION. THE ABOVE LETTER WAS ANSWERED ON APRIL 27, 1964, BY THE PROJECTION ENGINEERING BRANCH (ACFT AND MSLS), OPERATIONS SUPPORT DIVISION, AS FOLLOWS:

"A MIP PROJECT HAS BEEN ESTABLISHED FOR INVESTIGATION OF EXCESSIVE FAILURE OF THESE GEARS. INSPECTION REVEALS THAT SEVERAL CONFIGURATIONS OF THESE GEARS ARE NOW IN USE, WHICH DO NOT INCORPORATE THE LATEST ENGINEERING IMPROVEMENTS. SOME FAILURES HAVE BEEN ATTRIBUTED TO OLDER DESIGN GEARS COMBINED WITH EXTENDED USE. PRESENT OVERHAUL AND INSPECTION PROCEDURES REQUIRE REPLACEMENT OF ALL FOUR GEARS, P/N 109211 OF A SET, WHEN ONE IS CRACKED OR BROKEN DUE TO THE PROBABILITY OF OVERSTRESS IMPOSED ON THE REMAINING THREE GEARS IN THE SET. THERE IS NO MEANS OF DETERMINING THE EXTENT OF GEAR OVERSTRESS AND THE SURPLUS GEARS MAY BE OF THE REJECTED GEARS OF OLDER CONFIGURATION AND/OR OVERSTRESSED IN OPERATION.

"MR. REEVES WAS CONTACTED BY TELEPHONE 24 APR 64 REGARDING CONDITION AND REVISION NUMBER OF GEARS IN HIS POSSESSION. HE ADVISED THAT HE HAD SOME USED AND SOME NEW GEARS, AND CHECKED ONE GEAR AT RANDOM WHICH WAS MANUFACTURED TO DRAWING REVISION LETTER D.

"THE ONLY GEARS WHICH MAY BE CONSIDERED ACCEPTABLE ARE THOSE WHICH CAN BE CERTIFIED NEW AND MANUFACTURED TO DRAWING REVISION LETTER "Y" OR LATER.'

ON APRIL 14, 1964, YOU SUBMITTED YOUR PROPOSAL FOR THE PLANET GEARS TO THE WARNER ROBINS AIR MATERIEL AREA.

ON MAY 1, 1964, AN INFORMAL MEETING WAS HELD BETWEEN YOUR REPRESENTATIVES AND PERSONNEL OF WARNER ROBINS AIR MATERIAL AREA TO DISCUSS YOUR PROPOSAL. A MEMORANDUM OF THIS MEETING INDICATES THAT YOUR REPRESENTATIVES STATED THAT THE GEARS WHICH YOU PROPOSED TO FURNISH WERE OF THE "D" CONFIGURATION TYPE AND FORMERLY GOVERNMENT OWNED. YOUR REPRESENTATIVES WERE ADVISED THAT ENGINEERING CHANGES HAD BEEN MADE IN THE GEARS FROM THE "D" CONFIGURATION TO THE "Y" OR "Z" CONFIGURATIONS AND THAT THE DRAWINGS FOR THESE GEARS WERE FURNISHED BY CURTISS-WRIGHT WITH LIMITED RIGHTS FOR USE BY THE GOVERNMENT. ON MAY 7, 1964, YOU DIRECTED A LETTER TO THE WARNER ROBINS AIR MATERIEL AREA ADVISING AS FOLLOWS:

"WE BELIEVE OUR GEARS WILL MEET YOUR SPECIFICATIONS AS REQUESTED IN YOUR RFP-09-603-64-2928, BUT IF THERE ARE REVISIONS TO BE COMPLIED WITH, WE WILL REVISE OUR GEARS IN ANY ONE OF SEVERAL PROPELLER COMPANIES THAT DOES WORK FOR THE GOVERNMENT AND HAS QUALITY CONTROL INSPECTIONS.'

ON MAY 14, 1964, THE AIR FORCE ADVISED YOU THAT BECAUSE OF THE CRITICAL NATURE OF THE ITEM AND CURRENT ENGINEERING DIFFICULTIES, A STUDY WAS BEING CONDUCTED IN CONNECTION WITH YOUR PROPOSAL IN RESPONSE TO THIS RFP AND THAT YOU WOULD BE ADVISED OF THE CONCLUSIONS. THE STUDY OF YOUR PROPOSAL CONSISTED OF A REPORT BY THE CHIEF, SERVICE ENGINEERING DIVISION DATED MAY 20, 1964; A REPORT DATED MAY 22, 1964, FROM THE PRODUCTION AND ENGINEERING BRANCH (ACFT AND MSLS), OPERATIONS SUPPORT DIVISION; AN INFORMAL CONFERENCE OF AIR FORCE ENGINEERS ON MAY 22, 1964 AND A REPORT DATED MAY 26, 1964, FROM THE PRODUCTION AND ENGINEERING BRANCH, OPERATIONS SUPPORT DIVISION, DIRECTORATE OF PROCUREMENT AND PRODUCTION. PURSUANT TO THIS STUDY AND DISCUSSION OF YOUR PROPOSAL, IT WAS CONCLUDED BY THE AIR FORCE THAT THE SPARE PARTS WHICH YOU PROPOSED TO FURNISH WERE UNACCEPTABLE. ARE ADVISED THAT THERE HAD BEEN A NUMBER OF FAILURES OF THE PROPELLER GEARS AND THAT A PROJECT TO DETERMINE THE CAUSE OF THE FAILURES WAS PRESENTLY BEING DEVELOPED UNDER A CONTRACT WITH CURTISS-WRIGHT CORPORATION. IN VIEW OF ENGINEERING DESIGN CHANGES IN THE GEARS SUCH AS CHANGE REVISION "Y" WHICH CHANGED THE UPPER AND LOWER LIMIT OF THE OUTSIDE SHAFT DIAMETER AND CHANGE REVISION "Z" WHICH CHANGED THE LIMITS OF THE INSIDE GEAR DIAMETER, IT WAS DETERMINED BY THE AIR FORCE ENGINEERS THAT EXISTING GEARS COULD NOT BE MODIFIED TO SATISFY PRESENT AIR FORCE REQUIREMENTS. ALSO, IT WAS DETERMINED THAT NO INFORMATION REGARDING THE CONFIGURATION CHANGES COULD BE RELEASED TO YOU SINCE CURTISS-WRIGHT HAD PROPRIETARY RIGHTS IN THIS GEAR.

ON MAY 28, 1964, THE CONTRACTING OFFICER ADVISED YOU OF THE CONCLUSIONS OF THE ENGINEERING STUDY OF YOUR PROPOSAL. YOU WERE SPECIFICALLY ADVISED THAT THE ONLY GEARS ACCEPTABLE WERE GEARS MANUFACTURED TO THE "Z" CONFIGURATION OR LATER AND THAT EXISTING GEARS COULD NOT BE MODIFIED TO THE LATEST CONFIGURATION. ON JUNE 9, 1964, THE AIR FORCE ACCEPTED THE PROPOSAL SUBMITTED BY CURTISS-WRIGHT CORPORATION AND AT THE TIME OF THE AWARD THE GEARS HAD BEEN MODIFIED THROUGH CHANGES "AA.' ON JUNE 16 AND JUNE 19, 1964, YOU RESTATED YOUR POSITION THAT YOUR GEARS WERE ACCEPTABLE. ON JUNE 24, 1964, THE AIR FORCE ADVISED YOU AGAIN THAT OLD GEARS COULD NOT BE MODIFIED TO MEET THE CONFIGURATIONS PROVIDED BY THE LATEST DESIGN CHANGES AND THAT UNDER THIS PROCUREMENT RELIABILITY WAS THE PRIME CONSIDERATION SINCE PERFORMANCE IN THE WEAPONS SYSTEM WAS INVOLVED. BY LETTERS DATED JULY 7 AND JULY 8, 1964, YOU REQUESTED AN INVESTIGATION OF THIS PROCUREMENT BY OUR OFFICE.

THE AIR FORCE, AFTER DUE CONSIDERATION, HAS MADE AN APPARENTLY BONA FIDE DETERMINATION THAT ITS NEEDS CAN ONLY BE MET BY A GEAR WHICH INCLUDES ALL THE ENGINEERING CHANGES THROUGH REVISION "Z" FOR RELIABILITY PURPOSES. THE AIR FORCE HAS FURTHER DETERMINED THAT SURPLUS OR NEW GEARS MANUFACTURED PRIOR TO THE TIME OF THE LATEST CONFIGURATION CHANGES CANNOT BE MODIFIED TO INCLUDE THE ENGINEERING CHANGES TO THE GEARS THROUGH REVISION "Z.' YOU HAVE QUESTIONED THIS ENGINEERING DETERMINATION BY THE AIR FORCE; HOWEVER, YOU HAVE FURNISHED NO EVIDENCE TO SUPPORT A CONCLUSION THAT THIS DETERMINATION IS ERRONEOUS. IT IS WELL ESTABLISHED THAT THE DRAFTING OF PROCUREMENT SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT AND THE FACTUAL EVALUATION OF THE CONFORMABILITY OF THE EQUIPMENT OFFERED ARE PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY. SEE 36 COMP. GEN. 251. THE ACTIONS OF THE AIR FORCE IN THIS REGARD APPEAR TO FALL WELL WITHIN THE SCOPE OF THE DISCRETION AFFORDED UNDER THE SALE. MOREOVER, ASSUMING FOR THE SAKE OF ARGUMENT, THAT YOUR SURPLUS GEARS COULD BE MODIFIED TO COMPLY WITH THE LATEST DESIGN CHANGES AS YOU PROPOSED IN YOUR LETTER OF MAY 7, 1964, WE HAVE BEEN ADVISED THAT THE DATA REGARDING THE REVISIONS IS PROPRIETARY AND, THEREFORE, THE AIR FORCE IS WITHOUT LEGAL AUTHORITY TO MAKE SUCH DATA AVAILABLE TO YOU.

IN VIEW OF THE ABOVE WE FIND NO LEGAL BASIS TO QUESTION THE AWARD TO CURTISS-WRIGHT.