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Pickett v. Williams, C.A. No. L&T 74757-69_--
Pope, United States v., 251 F. Supp. 234..
Posey, Dennis C., United States v., USDC
Dist. of Nev., Docket No. LV-1199..
Potter v., Emerald Maintenance, Inc., USDC
8o. Dist. Tex., Civil Action No. 70-L-36.-599, 655
Potter. Emerald Maintenance, Inc. USDC
So. Dist. Tex., Civil Action No. 70-L-38....
Pressed Steel Car Co. v. Standard Steel Car
Co. 60 A. 4..

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Vai v. Bank of America, 364 P. 2d 247.................. Virginia Electric and Power Co. v. Commonwealth, 194 8.E. 775..

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591 Warne, United States v., 190 F. Supp. 645..... Warren Bros. Roads Co. v. United States, 173 Ct. Cl. 714..

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Washington ex rel. Stimson Lumber Co. v.
Kuykendall, 275 U.S. 207.......
Weinberg v. Weinberg, 432 P. 2d 709..
Wheelabrator Corp., The, v. John H. Chafee,
Sec. of Navy, and Margaret S. Anderson,
Contracting Officer, U.S. Navy Purchasing
Office, Civil Action No.
Wiley, John & Sons v. Livingston, 376 U.S. 543.
414, 685 Williams v. United States, 145 Ct. Cl. 513.... 158, 510

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Contracts-Negotiation-Cutoff Date-Same for All Proposers

The failure to establish a common cutoff date for the negotiation of a cost-plusaward-fee contract for the final hardware design and development of the Applications Technology Satellites (ATS) project with the two offerors who had been awarded parallel contracts for the preliminary analysis and feasibility studies of the ATS, and the premature distribution for evaluation of the first final proposal received resulted in defective selective procedures prejudicial to the contractor denied the opportunity to compete on an equal time basis and possibly overcome its price disadvantage, a situation compounded by the premature distribution of the proposal for cost evaluation. Therefore, the proposed award to the offeror advantaged by the longer negotiation period should be reconsidered. Contracts Negotiation-Competition-Discussion With All Offerors Requirement

The fact that under 10 U.S.C. 2304(g) written or oral discussion should be conducted with all responsible offerors whose proposals are within a competitive range that encompasses both price and technical considerations does not permit the use of any procedure that would disclose information during the negotiation period to the unfair competitive advantage of any proposer.

To the Administrator, National Aeronautics and Space Administration, July 2, 1970:

We refer to your letter of April 9, 1970, requesting that we conduct a review of the events leading to the selection of the General Electric Company (GE) rather than Fairchild Hiller Corporation (Fairchild) to build two (F&G) Applications Technology Satellites (ATS). You ask us to "establish whether there were any improprieties and whether or not established procedures were properly followed in this selection.” In addition to your letter of April 9, we have also received a protest from Fairchild Hiller against the proposed award to GE.

Applications Technology Satellites (F&G) is a National Aeronautics and Space Administration (NASA) program for design, development, production, launch, and support of two synchronous communications satellites now scheduled to be launched in early 1973 and 1975, respectively. Each satellite will have a minimum useful life of 2 years and will act as a precisely oriented test bed for the performance of numerous communication experiments. A principal feature of the spacecraft is a 30-foot diameter parabolic antenna that is deployed after the spacecraft is placed in orbit. The antenna is to be capable of providing a good quality TV signal to a small, inexpensive ground receiver. In addition to communications tests, the spacecraft will perform other experiments of scientific and technological significance.

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The ATS (F&G) program has been conducted by NASA under the management procedures now outlined in NHB 7121.2 dated August 1968 entitled "Phased Project Planning Guidelines" which are used for the procurement of major research and development projects.

The program started with a phase A competition which in May 1966 resulted in the award of three parallel contracts for preliminary analysis and feasibility studies for ATS (F&G). The three contractors selected were Fairchild, GE, and Lockheed. During phase A the three contractors developed design parameters and other information. NASA also conducted an in-house study (by a Goddard Space Flight Center team) on all the problem areas related to the ATS (F&G) program. At the conclusion of phase A the Goddard team assessed the various studies and arrived at a "Preferred Approach for ATS F&G” dated November 20, 1967, which was distributed to the phase A contractors.

Phase B/C solicitation dated February 8, 1968, was distributed to the three contractors with copies of the final reports issued by each of the three contractors on phase A. Bidders were instructed that combined phase B and C would include system design and would be accomplished under two contracts, and that phase D involving final hardware design and development would be performed by a single contractor, "anticipated to be one of the contractors selected for this procurement [phase B/C]; however, NASA reserves the right to bring new contractors into the project at any time it is considered to be in the Government's best interest." The solicitation further stated that the phase D work statement would be "developed largely upon this Phase B and C effort, therefore, pertinent technical data developed in Phase B and C will be made available to the Phase B and C incumbent contractors for consideration in preparation of their final Phase D proposals." Finally the solicitation stated as follows:

The data developed under the proposed contracts will be the property of the Government, except where proprietary rights are agreed to in advance, and may be released to other contractors for follow-on effort, and may also be published for general distribution.

In September 1968, phase B/C contracts were awarded to both GE and Fairchild (Lockheed did not receive a phase B/C contract). Phase B/C called for, among other items, the delivery of phase D proposals. Each phase B/C contract consisted of two parts. Part I was a firmfixed price contract consisting of the study effort, while part II was on a cost-plus-fixed-fee basis and was to cover the holding period between phases B/C and D.

Phase D proposals were submitted by Fairchild and GE in September 1969, as scheduled. Price proposals were based on estimated costs since a cost-plus-award-fee contract was anticipated. October

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