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February 3, 1971

Melvin R. LAIRD et al., Defendants

William B. Jones, District Judge.

The opinion of the court was delivered by: JONES

This is an action to declare null and void and to set aside a contract which plaintiff alleges was unlawfully awarded to Texas Instruments, Incorporated by the United States Air Force. A preliminary injunction is sought to restrain defendants from any further performance of the contract. Plaintiff further seeks a mandatory injunction requiring Laird and Seamans to award to it the contract upon invitation for bids No. F33657-70-B-0166.

 In addition to its motion for a preliminary injunction, plaintiff has filed a motion for a summary judgment. All three defendants have filed cross motions for summary judgments in their favor against plaintiff. Each defendant also filed an alternative motion to dismiss the complaint.

 The three defendants in connection with their motions for summary judgments have filed a joint statement of material facts as to which they assert there is no genuine issue. The plaintiff has not filed a "statement of genuine issues" or any statement asserting that defendants' statement of facts are in good faith controverted. Thus the Court may assume that the facts as claimed by the defendants are admitted to exist without controversy. Rule 9(h), Local Rules, United States District Court for the District of Columbia.

 Plaintiff in support of its motion for summary judgment also filed a statement of facts as to which, it asserts, there is no genuine issue. Defendants did not controvert plaintiff's statement. Both statements are for the most part substantially the same. *fn1"

 A. Defendants' joint statement of material facts as to which there is no genuine issue asserts:

 "1. The case here concerns the Air Force award of a contract for the manufacture of an advanced instrument landing system. An instrument landing system (ILS) is an electronic system installed at airports to guide aircraft along a predetermined path to a landing approach. Such systems are designed to make safer the approach of the aircraft to the airport (Govt. Exh. 1). *fn2"

 "2. For more than 15 years, the Air Force has had in use an ILS system that is termed 'Performance Category I and is capable of guiding an aircraft to a decision height of 200 feet, at which point the landing is aborted if the pilot cannot see the runway (Govt. Exh. 1).

 "3. Early in 1969, the Air Force decided to purchase a quantity of ILS in Performance Category II, which would guide the aircraft to a decision height of 100 feet (Govt. aff. of Carle, p. 1). This decision was made because the Category I systems in use were 15 to 20 years old, were difficult and expensive to maintain, did not possess the reliability or stability desired to be achieved, and were inadequate for use with the C-5A and C-141 aircraft as well as the larger commercial aircraft. The Air Force decided these factors justified its replacement of the Category I systems with Category II systems (Govt. aff. of Werdung, p. 1).

 "4. The Air Force, in cooperation with the FAA [Federal Aviation Administration] then sought to determine what procurement method and requirements would be suitable to obtain the maximum competition among bidders capable of manufacturing a system which satisfied the government's severe accuracy and reliability requirements (Govt. aff. of Gobien, pp. 1-2, Carle, pp. 1-2, and Butts, pp. 1-2). Certain factors were given prime consideration. First, it was recognized that in prior ILS procurements substantial delays had occurred in delivery of systems because production difficulties had developed even though an acceptable paper design had been produced. This was due to the complexity of mating the various units into a total system which could actually perform. The government representatives concluded that in order to avoid such delays, it would require that a proposed bidder demonstrate an operating Category I system as a prerequisite for bidding. Second, because the contract would require a dual frequency localizer system which was an additional sophistication not commonly used, it was agreed that demonstration of such an operable system should also be required as a prerequisite to bidding. The government representatives agreed that because of the severe accuracy and reliability demands on these systems, and the importance thereof, that it was essential to determine that the proposed bidder had the personnel and technical ability to effectuate the manufacture of the total system. They further agreed that, as shown by past experience, the only way to determine a proposed bidder's ability to do so was to observe an operating Category I system with a dual frequency localizer system (Govt. aff. of Butts, p. 2, Gobien, pp. 2-3, Carle, p. 2).

 "5. After making these determinations, the Air Force decided to procure the required systems under a two-step formal advertisement with a special bidder qualification clause to be included in the first step (Govt. aff. Carle, p. 2).

 "6. Air Force procurements are conducted under the Armed Services Procurement Regulation (ASPR) Parts 1-30, either by formal advertising or by negotiations. The Department of Defense policy is to utilize formal advertising whenever possible in order to insure maximum competition. Two-step formal advertising is a valid form of procurement often used in procuring highly technical or complex items. It is specifically recognized in the Armed Services Procurement Regulations (ASPR 2-501) as follows:

2-501 General. Two-step formal advertising is a method of procurement designed to expand the use and obtain the benefits of formal advertising where inadequate specifications preclude the use of conventional formal advertising. It is especially useful in procurements requiring technical proposals, especially those for complex items. It is conducted in two steps:
(i) Step one consists of the request for, and submission, evaluation, and, if necessary, discussion of a technical proposal, without pricing, to determine the acceptability of the supplies or services offered. As used in this context, the word 'technical' has a broad connotation and includes engineering approach, special manufacturing processes, and special testing techniques. When it is necessary in order to clarify basic technical requirements, manufacturing plan, or facilities to be utilized may be clarified in this step. Conformity to the technical requirements is resolved in this step, but capacity and credit, as defined in 1-705.4, are not.
(ii) Step two is a formally advertised procurement confined to those who submitted acceptable technical proposals in step one. Bids submitted in step two are evaluated and the awards made in accordance with Parts 3 and 4 of this Section.
Two-step formal advertising requires that the contracting officer work closely with technical personnel and that he utilize their specialized knowledge in determining the criteria to be used in evaluating technical proposals, and in making such evaluation. An objective of this method is to permit the development of a sufficiently descriptive and not unduly restrictive statement of the Government's requirement, including an adequate technical data package, so the subsequent procurements may be made by conventional formal advertising.

 "7. The special bidder qualification clause was inserted in the step one procedure so as to limit bidders to those who could demonstrate in step one an operable Category I system with a dual frequency localizer station (Govt. aff. of Carle, p. 2). (This limitation was expressly approved by the Comptroller General in rejecting a protest by a different proposed bidder in this procurement. Pl. Exh. 5).

3. This procurement will be accomplished in two distinct steps: (1) solicitation, submission and evaluation of detailed technical proposals WITHOUT PRICING to determine acceptability of the products offered, and (2) issuance of a formal invitation for Bids ONLY to those firms having acceptable technical proposals. Bidders who cannot comply with the attached Bidders Qualification Clause should not submit a Technical Proposal.
Technical proposals will be accepted only from those contractors who have manufactured and can demonstrate at an operating airfield a Solid State Conventional Instrument Landing System. The system must be comprised of at least the following components: A two-frequency (capture effect), dual equipment VHF localizer station; a single-frequency dual equipment UHF glideslope station; and a VHF Marker beacon station. The system must have successfully passed a flight check for Category I signal quality conducted by the FAA or other International Civil Aviation Organization recognized flight checking agency. Inspection of such a system by the Government will be conducted by Government engineers and ...

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