B-157726, JUN. 13, 1966

B-157726, JUN. 13, 1966

TO CONSOLIDATED ELECTRODYNAMICS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 1, 1966, REQUESTING INFORMATION PERTAINING TO THE PROCEDURE AND JUSTIFICATION USED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), JOHN F. KENNEDY SPACE CENTER, IN MAKING A SOLE-SOURCE AWARD IN CONNECTION WITH EQUIPMENT ORIGINALLY ADVERTISED FOR UNDER INVITATION FOR BIDS NO. CC 31-6, WHICH WAS THE SUBJECT OF OUR DECISION B-157726, DATED JANUARY 28, 1966.

IN OUR DECISION OF JANUARY 28, 1966, TO THE ADMINISTRATOR, NASA, WE UPHELD YOUR PROTEST AGAINST ANY AWARD OF CONTRACT UNDER INVITATION FOR BIDS NO. CC-31-6, IN VIEW OF THE RESTRICTIVE CHARACTER OF THE INVITATION PURCHASE DESCRIPTION. A COPY OF THE DECISION OF JANUARY 28, 1966, WAS SENT TO YOU FOR YOUR INFORMATION.

REGARDING YOUR REQUEST AS TO THE PROCEDURE AND JUSTIFICATION USED BY NASA IN MAKING A SOLE-SOURCE AWARD OF THE EQUIPMENT, THE PROCURING AGENCY REPORTS THAT ON JANUARY 24, 1966, BECAUSE OF THE EXTREME URGENCY OF THE SUBJECT PROCUREMENT, INQUIRY WAS MADE TO OUR OFFICE AS TO THE STATUS OF OUR DECISION ON YOUR INITIAL PROTEST. AT THAT TIME THE OPINION WAS EXPRESSED THAT YOUR PROTEST WOULD BE UPHELD AND THAT THE INVITATION IN QUESTION WAS RESTRICTIVE. BASED ON THE FOREGOING, THE INVITATION WAS CANCELED AND KENNEDY SPACE CENTER PROCEEDED TO NEGOTIATE WITH AMPEX CORPORATION FOR A SOLE-SOURCE AWARD. SUCH NEGOTIATING ACTION WAS IN CONSONANCE WITH THE PENULTIMATE PARAGRAPH OF OUR DECISION OF JANUARY 28, 1966, IN WHICH WE STATED AS FOLLOWS:

"IT APPEARS FROM THE RECORD THAT THE SALIENT CHARACTERISTICS OF THE BRAND NAME EQUIPMENT, INCLUDING DESIGN FEATURES, ARE NECESSARY TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT. IF THAT BE A FACT, WE DIRECT YOUR ATTENTION TO THE ABOVE-QUOTED PORTION OF DECISION B-155826 WHEREIN RESORT TO NEGOTIATION PROCEDURES IS INDICATED.'

AS A PREREQUISITE TO NEGOTIATING THE SUBJECT PROCUREMENT, THE CONTRACTING OFFICER MADE A DETERMINATION AND FINDINGS THAT THE PROCUREMENT IS FOR EQUIPMENT FOR WHICH IT IS IMPRACTICABLE TO SECURE COMPETITION BY FORMAL ADVERTISING AND THAT NEGOTIATION OF A CONTRACT FOR THIS PROCUREMENT IS AUTHORIZED PURSUANT TO 10 U.S.C. 2304 (A) (10), AS CONTEMPLATED BY PARAGRAPH 3.210-2 (I) OF THE NASA PROCUREMENT REGULATION. THE REASONS AND JUSTIFICATION USED BY NASA FOR THE NEGOTIATION OF THIS PROCUREMENT AS DISCUSSED IN THE DETERMINATION AND FINDINGS ARE AS FOLLOWS:

"1. THE NASA/KSC PROPOSES TO ENTER INTO A CONTRACT FOR 18 EACH, HIGH PERFORMANCE, WIDEBAND INSTRUMENTATION TAPE RECORDER SYSTEMS, OF VARIOUS CONFIGURATIONS, WITH VARYING ACCESSORIES/FEATURES, AMPEX CORPORATION MODELS FR1400/600, TOGETHER WITH MANUALS, INSTALLATION AND ACCEPTANCE CHECKOUT SERVICES, AS MORE PARTICULARLY DESCRIBED IN TECHNICAL EXHIBIT K- EF3-65-12. THE TOTAL ESTIMATED COST IS $900,000 FOR WHICH FUNDS ARE BOTH AUTHORIZED AND AVAILABLE.

"2. THE TAPE RECORDER SYSTEMS ARE REQUIRED BY THE TELEMETRIC SYSTEMS DIVISION, INS-3, FOR THE ACQUISITION AND REDUCTION OF TELEMETRY DATA DURING PRE-EVENT, IN FLIGHT AND POST-EVENT LAUNCH OPERATIONS OF THE SATURN 1B, SATURN V AND APOLLO VEHICLES. THE TYPE AND APPLICATION OF DATA WHICH WILL BE PROCESSED ON THESE SYSTEMS ARE VITALLY NECESSARY TO SPACE VEHICLE DEVELOPMENT ENGINEERS OF THE NASA/PRIME AEROSPACE STAGE CONTRACTOR'S TEAMS (NORTH AMERICAN, DOUGLAS, CHRYSLER AND BOEING). WITHOUT THE TIMELY AND QUALITY FLOW OF TELEMETRY DATA, CRUCIAL ENGINEERING DECISIONS HAVING A BEARING ON THE NEED FOR SPACE VEHICLE CONFIGURATION DESIGN CHANGES BEFORE THE NEXT VEHICLE ACCEPTANCE CHECKOUT TEST MUST BE DELAYED WITH THE CONSEQUENCE OF PROBLEMATICAL SLIPPAGES IN THE CRITICAL TIME SCHEDULES OF THE SATURN 1B, II, IVB AND V AND APOLLO SPACE PROGRAMS.

"3. I HEREBY FIND THAT USE OF FORMAL ADVERTISING IS NOT PRACTICABLE AND FEASIBLE FOR THE FOLLOWING REASONS:

"A. THE RECORDERS WITH THE MINIMUM OPERATIONAL AND FUNCTIONAL CAPABILITIES NECESSARY TO EFFECTIVELY AND EFFICIENTLY ACCOMPLISH THE MISSION TASKS ASSIGNED TO THE TELEMETRIC SYSTEMS DIVISION IN SUPPORT OF THE SATURN/APOLLO PROGRAM ARE OBTAINABLE FROM ONLY ONE FIRM, AMPEX CORPORATION, THE SOLE SOURCE OF SUPPLY. THE EXISTENCE OF THIS FACTUAL SITUATION IS AMPLIFIED BY THE FACT THAT INVITATION FOR BIDS CC31-6 FAILED TO MATERIALIZE IN RECEIPT OF COMPETITIVE BIDS.

"B. THE AFOREMENTIONED INVITATION, WHICH WAS ISSUED 27 AUGUST 1965 AND OPENED 21 DECEMBER 1965 WAS THE SUBJECT OF A PROTEST BY CONSOLIDATED ELECTRODYNAMICS CORPORATION WITH THE U.S. COMPTROLLER GENERAL'S OFFICE. THE PROTESTOR ASSERTED THAT CERTAIN ASPECTS OF THE BRAND NAME SPECIFICATIONS WERE INCAPABLE OF COMPLIANCE BECAUSE OF INCLUSION OF RESTRICTIVE PROPRIETARY DESIGN DATA, WHILE THE GOVERNMENT'S CONTENTION WAS THAT THEY WERE INCLUDED AS BEING INDICATIVE OF THE DEGREE OF THE GOVERNMENT'S MINIMUM OPERATIONAL AND FUNCTIONAL CAPABILITIES REQUIRED FOR THE USE AND PURPOSE INTENDED.

"C. THE U.S. COMPTROLLER GENERAL'S DECISION ALLUDES TO THE PROTESTOR'S ASSERTIONS THAT THE PURCHASE DESCRIPTION INCLUDED CERTAIN RESTRICTIVE DESIGN FEATURES PECULIAR TO THE BRAND NAME PRODUCT NAMED IN THE INVITATION, AND THEREFORE, CONSIDERS THE INVITATION DEFICIENT AND INVALID FOR PURPOSES OF AN AWARD THEREUNDER.

"D. THE SUBSTITUTION OF ANY OTHER MAKE RECORDERS, NOT MEETING THE MINIMUM OPERATIONAL AND FUNCTIONAL CAPABILITIES, AS REPRESENTED BY THE AMPEX MODEL FR 1400/600 DESCRIPTIVE SPECIFICATIONS IN CANCELLED IFB 31 6 WOULD DENY THE TECHNICAL USER THE CAPABILITIES REQUIRED FOR THE SUCCESSFUL ACCOMPLISHMENT OF ITS ASSIGNED MISSION TASKS AND RESPONSIBILITY, FOR WHICH THE RECORDERS ARE REQUIRED.

"E. THE IMPACT OF THE DELAY (SOME 4 MONTHS) FROM RECEIPT AND RESOLUTION OF THE PROTEST HAS MATERIALLY CAUSED A CONDITION OF "COMPELLING URGENCY" FOR THE RECORDERS. IMMEDIATE AWARD AND DELIVERY BY THE SHORTEST POSSIBLE TIME IS GRAVELY IMPERATIVE TO MINIMIZE FINANCIAL AND OPERATIONAL ADVERSITIES ALREADY ENCOUNTERED BY THE TELEMETRIC SYSTEM DIVISION. BECAUSE OF THEIR PRIMARY ASSIGNMENT TO THE SATURN 1B LAUNCH SERIES, ESPECIALLY THE 202 LAUNCH SCHEDULED FOR THE SECOND QUARTER OF THIS YEAR, IT IS ABSOLUTELY ESSENTIAL THAT ALL RECORDERS BE ON HAND TO ENABLE THE TECHNICAL ORGANIZATION TO CARRY OUT ITS MISSION TASKS AND COMMITMENTS TO OTHER NASA TECHNICAL ORGANIZATIONS.'

A COPY OF THE FINDINGS QUOTED ABOVE WAS FURNISHED TO MR. WILLIAM HUEY OF YOUR CORPORATION AT HIS REQUEST BY OUR OFFICE.

UNDER THE PROVISIONS OF 10 U.S.C. 2304 (A) (10) PURCHASES AND CONTRACTS MAY BE NEGOTIATED IF IT IS IMPRACTICABLE TO OBTAIN COMPETITION. IMPLEMENTING THAT AUTHORITY, NASA PROCUREMENT REGULATION 3.210-2 (I) AUTHORIZES NEGOTIATION "WHEN SUPPLIES OR SERVICES CAN BE OBTAINED FROM ONLY ONE PERSON OR FIRM ("SOLE SOURCE OF SUPPLY").' UNDER SUCH REGULATION THE REQUIRED DETERMINATION AND FINDINGS WAS MADE TO SUPPORT THE NEGOTIATING AUTHORITY AND SUCH FINDING IS BY LAW MADE FINAL. SEE SECTION 2310 (B), TITLE 10, U.S.C. AS AMENDED BY PUBLIC LAW 87-653, APPROVED SEPTEMBER 10, 1962.

WE TRUST THAT THE FOREGOING INFORMATION EXPLAINS THE PROCEDURE AND JUSTIFICATION USED BY THE PROCURING AGENCY IN MAKING THE NEGOTIATED AWARD TO AMPEX IN THIS PROCUREMENT.