an instrument landing system meeting certain advanced specifications.
"3. Some of the reasons for the Air Force's decision to issue the bidder eligibility clause were (1) the short delivery schedule which the Air Force was requiring for this procurement; (2) the general background of delay which the Government had experienced in the delivery of instrument landing systems under other contracts; (3) the difficulties which the Government had experienced in obtaining instrument landing systems of adequate reliability and stability; and that experience had proved that only by testing an existing system could the workability of the system be proved.
"4. Plaintiff has satisfied the aforesaid eligibility requirement by manufacturing the required system and demonstrating this system to the Air Force's satisfaction.
"5. Thompson C.S.F. of France has satisfied the aforesaid eligibility requirement by manufacturing such a system and demonstrating it to the Air Force's satisfaction.
"6. Defendant Texas Instruments has not satisfied the eligibility requirement because it has never manufactured any kind of instrument landing system.
"7. Defendant Texas Instruments and Thompson C.S.F. have entered into a licensing agreement and a team arrangement. Under this licensing agreement Thompson C.S.F. will supply its drawings, diagrams, expert assistance, etc., and defendant Texas Instruments will do virtually all of the manufacturing of the systems in the United States.
"8. By January 2, 1970, both plaintiff and the Texas Instruments -- Thompson C.S.F. team submitted technical proposals on this procurement and both were declared eligible bidders by the defendant Air Force. In June 1970 both plaintiff and defendant Texas Instruments submitted bids in the second step of this two-step procurement.
"9. On June 26, 1970, the bids were opened and it was announced that defendant Texas Instruments had submitted the lower bid and was subsequently awarded the contract on September 4, 1970.
"10. Two other bidders, Air Borne Instruments Lab, a division of CutlerHammer, Inc., and Scanwell Laboratories, Inc., were disqualified as bidders by the Air Force even though they were manufacturers of Instrument Landing Systems, because their systems did not contain a dual-frequency localizer which was one of the Air Force's requirements in the aforesaid eligibility clause. Scanwell Laboratories' System in addition was not solid state as was also required by the eligibility clause. Both of these companies have supplied the Government under other contracts with instrument landing systems.
"11. Plaintiff filed a formal written protest with the Comptroller General of the United States, demanding that no consideration be given the bid submitted by defendant Texas Instruments stating as one ground that defendant Texas Instruments was not an eligible bidder since it had never manufactured an instrument landing system as was required in the aforesaid eligibility clause. This protest was denied by the Comptroller General on September 3, 1970. Plaintiff's request for a reconsideration of this decision is still pending before the Comptroller General."
C. From the foregoing undisputed statements of material facts, the following clearly appear. Plaintiff was a technically qualified bidder. It had manufactured and was able to demonstrate at an operating air field a solid state conventional instrument landing system composed of at least the components described in the letter request for technical proposals circulated by the Air Force. Thompson C.S.F. (T-CSF) was another technically qualified bidder. Like plaintiff it had manufactured and was able to demonstrate at an operating air field a landing system. Indeed T-CSF had at the time of the letter request from the Air Force already manufactured and had in operation the category of landing system that the Air Force desired -- a system of a higher category than that theretofore manufactured by plaintiff. But defendant Texas Instruments (TI) had not manufactured a solid state conventional instrument landing system as described in the letter request for technical proposals or, for that matter, a landing system of any description.
Since TI had not manufactured a landing system as described in the Government's letter request for technical proposals, plaintiff contends the contract awarded in September 1970 to TI as prime contractor is invalid as violative of the Armed Services Procurement Regulations, which have the force of law. Paul v. United States, 371 U.S. 245, 255, 83 S. Ct. 426, 9 L. Ed. 2d 292 (1963). Plaintiff having failed to obtain the contract has standing to sue. Scanwell Laboratories, Inc. v. Shaffer, 137 U.S. App. D.C. 371, 424 F.2d 859 (1970), Blackhawk Heating and Plumbing Co. v. Driver, D.C. Cir., 140 U.S. App. D.C. 31, 433 F.2d 1137 (1970).
Plaintiff asserts that TI failed to meet the basic technical qualification clause of the Government's letter request for technical proposals. As has been noted, that clause limited receipt of proposals from "contractors who have manufactured and can demonstrate at an operating air field" the described instrument landing system.
And the contract arrangements between TI and T-CSF do not bring TI within the eligibility clause according to plaintiff.
The question before the court is a narrow one, that is whether the contract arrangements between T-CSF (an admittedly qualified manufacturer of instrument landing systems) and TI makes the latter qualified to be awarded, as the principal contractor, the September 1970 contract in issue here.
That contract was awarded after a two-step formal advertising procedure was followed by the Air Force. Such a procedure is authorized by the Armed Services Procurement Regulations. 32 CFR §§ 2-501-2-503.2. "It is especially useful in procurements requiring technical proposals, especially those for complex items." 32 CFR § 2.501.
Under date of October 9, 1969 the Air Force issued its letter request for technical proposal in initiating the first step of the two-step procedure.
Responding to that request TI and T-CSF filed a joint proposal, which stated in part:
We are pleased to forward this, Texas Instruments, Incorporated and Thompson-CSF, joint proposal * * * for a Solid-State Instrument Landing System * * *.
Texas Instruments is prime bidder with total managerial responsibility for this program. The unified team arrangement with Thompson-CSF provides an associate contractor with extensive ILS experience. * * * Thompson-CSF will be technically responsible to Texas Instruments for upgrading the commercial equipment to meet the requirements of Reference (A) [letter request for technical proposal].