B-178740, MAY 8, 1975

B-178740, MAY 8, 1975

PROTEST AGAINST SOLE-SOURCE PROCUREMENT OF MULTIPURPOSE SIMULATORS IS DENIED SINCE (1) FINDINGS UNDER D&F TO SUPPORT AGENCY'S SOLE-SOURCE PROCUREMENT ARE FINAL UNDER 10 U.S.C. SEC. 2310(B) (1970); (2) DETERMINATION REASONABLY FLOWS FROM THOSE FINDINGS; AND (3) THERE IS RATIONAL BASIS FOR AGENCY'S DETERMINATION OF ITS NEED FOR EQUIPMENT.

WINSLOW ASSOCIATES:

THE QUESTIONS PRESENTED IN THE INSTANT CASE ARE ESSENTIALLY A CONTINUATION OF THE MATTERS DISCUSSED IN MATTER OF WINSLOW ASSOCIATES, 53 COMP. GEN. 478 (1974). THERE THE NAVY HAD ISSUED AN INVITATION FOR BIDS (IFB) FOR 11 EDUCATIONAL COMPUTER CORPORATION (ECC) GENERAL PURPOSE SIMULATORS MODEL EC II OR EQUAL.

AS SET OUT IN OUR EARLIER DECISION:

"THE EC II IS A PROGRAMMABLE SIMULATOR, WHICH DEPENDS ON COMPUTER ACTIVATED SIMULATION. THAT IS, THE INFORMATION AND SIMULATIONS PORTRAYED BY THIS TRAINING DEVICE CAN BE INTERCHANGED THROUGH THE ATTACHMENT TO A MAIN FRAME OF DIFFERENT PROGRAM PANELS AND THE INSERTION INTO THE SIMULATOR OF DIFFERENT COMPUTER PROGRAMS STORED ON MAGNETIC TAPE CASSETTES. EACH OF THESE PANELS CONTAINS THE REQUIRED CIRCUITRY AND OUTWARD PRESENTATION TO PRODUCE THE PARTICULARLY DESIRED SIMULATION WHEN ACTIVATED BY THE INCLUDED MINI-COMPUTER SYSTEM.

"THE SIMULATOR EQUIPMENT MANUFACTURED BY WINSLOW AND ALSO BY OMNIDATA, INCORPORATED, IS 'HARD WIRED' OR NONPROGRAMMABLE AND DOES NOT THEREFORE UTILIZE A COMPUTER INCLUSIVE MAIN FRAME. SPECIFICALLY, ONE SIMULATOR WILL PRODUCE ONLY A SINGLE SITUATION REPRESENTATION WHICH CANNOT BE VARIED WITHOUT COMPLETE REWIRING OF THAT PARTICULAR SIMULATOR. VARIATION IN TOTAL REPRESENTATION IS ACHIEVED BY UTILIZING ANOTHER SIMULATOR - WHEREAS, THE EC II WOULD REQUIRE A CHANGE IN PANEL AND PROGRAM."

THE ISSUE IN 53 COMP. GEN., SUPRA, REVOLVED AROUND A PROTEST SUMMARIZED AS FOLLOWS:

"*** WINSLOW CONTENDS THAT THE EC II IS UNIQUE IN THAT IT IS THE ONLY GENERAL OR MULTIPURPOSE (PROGRAMMABLE) SIMULATOR AVAILABLE AND AS SUCH HAS NO EQUAL. IT SUGGESTS THAT THERE ARE MORE ADVANTAGEOUS AND LESS COSTLY WAYS TO MEET THE USER'S NEEDS FOR TRAINING DEVICES. PRIMARILY IT IS SUGGESTED THAT THE DESIRED END RESULT COULD BE OBTAINED IN A MORE PROFICIENT MANNER THROUGH THE USE OF 67 SINGLE PURPOSE SIMULATORS. THIS WOULD CORRESPOND TO THE 67 PROGRAMS TO BE FURNISHED UNDER THE IFB (FIVE CUSTOM AND 62 COPIES). ALTHOUGH SUCH A PROPOSITION WOULD REQUIRE A SIGNIFICANTLY LARGER NUMBER OF UNITS, IT IS APPARENTLY CONCEDED THAT SUCH A SYSTEM WOULD BE INITIALLY LESS EXPENSIVE THAN THE EC II SYSTEM."

AFTER AN ANALYSIS OF THE AGENCY'S JUSTIFICATION OF ITS NEED FOR GENERAL PURPOSE SIMULATORS, OUR OFFICE RECOMMENDED THAT:

"*** THE AGENCY'S NEEDS BE RESTUDIED TO ASCERTAIN WHETHER THE MULTIPURPOSE EQUIPMENT IS THE ONLY TYPE THAT WILL BE ADEQUATE FOR THE GOVERNMENT'S NEEDS. IF THE PRESENT DETERMINATION IS REAFFIRMED, WE SUGGEST THAT THE QUESTION OF COMPETITION FOR MULTIPURPOSE EQUIPMENT BE INVESTIGATED, SINCE IT WOULD BE MORE APPROPRIATE TO NEGOTIATE FOR THE EQUIPMENT IF ECC IS THE SOLE SOURCE OF SUPPLY."

IN VIEW OF THIS RECOMMENDATION, THE MARINE CORPS (THE USING ACTIVITY), AFTER A REEXAMINATION OF THE SITUATION, FORWARDED A REPORT TO THE NAVY (THE PROCURING ACTIVITY (HEREINAFTER AGENCY)) ESSENTIALLY REAFFIRMING AND FURTHER SUBSTANTIATING ITS EARLIER STATED NEED FOR THE EC II. THE AGENCY THEREFORE PRESENTLY INTENDS TO PROCURE THESE ITEMS ON A SOLE-SOURCE BASIS IN ACCORDANCE WITH 10 U.S.C. SEC. 2304(A)(10) (1970) AND HAS ISSUED A REQUEST FOR PROPOSALS (RFP) CALLING FOR 14 EC II'S AND 96 RELATED PROGRAMS. IN THAT CONNECTION, A DETERMINATION AND FINDINGS (D&F) HAS BEEN ISSUED AS FOLLOWS:

"UPON THE BASIS OF THE FOLLOWING FINDINGS AND DETERMINATION THE PROPOSED CONTRACT DESCRIBED BELOW MAY BE NEGOTIATED WITHOUT FORMAL ADVERTISING PURSUANT TO THE AUTHORITY OF 10 U.S.C. 2304(A)(10), AS IMPLEMENTED BY PARAGRAPH 3-210.2(I) OF THE ARMED SERVICES PROCUREMENT REGULATION.

"FINDINGS

"1. THE NAVAL TRAINING EQUIPMENT CENTER PROPOSES TO PROCURE BY NEGOTIATIONS FOURTEEN (14) EACH GENERAL PURPOSE SIMULATORS, MODEL ECII, WITH APPROPRIATE SOFTWARE AND SUPPORT HARDWARE. THE GENERAL PURPOSE SIMULATOR, DEVICE 11H67A, WILL BE USED TO TRAIN MARINE CORPS STUDENTS HOW TO MAINTAIN AND REPAIR VARIOUS TYPE MOTOR VEHICLES. DEVICES WILL BE PROVIDED TO THE MARINE CORPS SCHOOLS AT CAMP LEJEUNE, SOUTH CAROLINA AND CAMP PENDLETON, CALIFORNIA.

"2. PROCUREMENT BY NEGOTIATION OF THE ABOVE DESCRIBED DEVICES) IS NECESSARY BECAUSE THE GENERAL PURPOSE SIMULATOR, ECII, IS THE ONLY SIMULATOR OF A GENERAL PURPOSE NATURE BEING MANUFACTURED AND THE MARINE CORPS HAS DETERMINED THAT BASED ON CONCEPT OF EMPLOYMENT, SPACE LIMITATIONS, ELECTRICAL POWER REQUIREMENTS, INSTRUCTOR REQUIREMENTS AND OBSOLESCENCE, GENERAL PURPOSE SIMULATORS ARE REQUIRED TO MEET TRAINING OBJECTIVES.

"3. USE OF FORMAL ADVERTISING FOR PROCUREMENT OF THE ABOVE DEVICES IS IMPRACTICABLE BECAUSE EDUCATIONAL COMPUTER CORPORATION, THE DESIGNER, DEVELOPER AND MANUFACTURER OF SAID DEVICE IS THE ONLY KNOWN COMPANY WHICH MANUFACTURES A GENERAL PURPOSE SIMULATOR.

"DETERMINATION

"THE PROPOSED CONTRACT IS FOR PROPERTY AND SERVICES FOR WHICH IT IS IMPRACTICABLE TO OBTAIN COMPETITION BY FORMAL ADVERTISING."

THE CONTENTS OF THE D&F ARE ACCORDED FINALITY TO THE EXTENT INDICATED IN 10 U.S.C. SEC. 2310 (1970). SECTION 2310(A) STATES THAT:

"(A) DETERMINATIONS AND DECISIONS REQUIRED TO BE MADE UNDER THIS CHAPTER BY THE HEAD OF AN AGENCY MAY BE MADE FOR AN INDIVIDUAL PURCHASE OR CONTRACT OR FOR A CLASS OF PURCHASES OR CONTRACTS. SUCH A DETERMINATION OR DECISION IS FINAL."

PER 10 U.S.C. SEC. 2311 (1970) THE HEAD OF AN AGENCY IS REQUIRED TO MAKE DETERMINATIONS ONLY WITH RESPECT TO CLAUSES (11)-(16) OF 10 U.S.C. SEC. 2304(A). HE MAY, HOWEVER, DELEGATE HIS AUTHORITY TO MAKE DETERMINATIONS WITH REGARD TO CLAUSES (1)-(10), (17) AND IN PART (11). IN THAT REGARD, 10 U.S.C. SEC. 2310(B) (1970) READS IN PERTINENT PART:

"(B) EACH DETERMINATION OR DECISION UNDER CLAUSES (11)-(16) OF SECTION 2304(A), *** AND A DECISION TO NEGOTIATE CONTRACTS UNDER CLAUSES (2), (7), (8), (10), (12), OR FOR PROPERTY OR SUPPLIES UNDER CLAUSE (11) OF SECTION 2304(A), SHALL BE BASED ON A WRITTEN FINDING BY THE PERSON MAKING THE DETERMINATION OR DECISION, WHICH FINDING SHALL SET OUT FACTS AND CIRCUMSTANCES THAT *** CLEARLY AND CONVINCINGLY ESTABLISH WITH RESPECT TO THE USE OF CLAUSES (2), (7), (8), (10), (12) AND FOR PROPERTY OR SUPPLIES UNDER CLAUSE (11) OF SECTION 2304(A), THAT FORMAL ADVERTISING WOULD NOT HAVE BEEN FEASIBLE AND PRACTICABLE. SUCH A FINDING IS FINAL ***."

THEREFORE, FINDINGS MADE UNDER CLAUSES (2), (7), (8), (10) AND (11) (16) ARE ENTITLED TO FINALITY. ACCORDINGLY, THE FINDINGS IN THE INSTANT CASE MADE IN CONNECTION WITH CLAUSE (10) ARE FINAL. 52 COMP. GEN. 57 (1972). HOWEVER, OUR OFFICE IS NOT PRECLUDED BY THE STATUTE FROM QUESTIONING WHETHER THE DETERMINATION BASED ON THE FINDINGS IS PROPER. 52 COMP. GEN., SUPRA. WE CONCLUDE THAT THE DETERMINATION IN THIS CASE DOES REASONABLY FLOW FROM THE FINDINGS. MOREOVER, WE BELIEVE FOR THE REASONS SET OUT BELOW THAT THERE IS A RATIONAL BASIS FOR THE AGENCY'S DETERMINATION OF ITS NEEDS.

AS CAN BE SEEN IN 53 COMP. GEN., SUPRA, THE GENERAL QUESTION OF OBSOLESCENCE IS THE MOST CRITICAL AREA OF CHOICE BETWEEN MULTIPURPOSE AND SINGLE PURPOSE EQUIPMENT.

THE AGENCY POINTS OUT THAT THERE ARE ESSENTIALLY THREE ASPECTS TO OBSOLESCENCE, I.E., THE MINOR CHANGES IN THE SYSTEM BEING SIMULATED, MAJOR CHANGES IN THE SYSTEM AND FLEXIBILITY TO ACCEPT ADDITIONAL TRAINING ALTERNATIVES AND PRACTICAL EXERCISES.

(A) MINOR CHANGES

THE AGENCY INDICATES THAT WHEN MINOR CHANGES OCCUR IN THE SYSTEM BEING SIMULATED (E.G., AUTO ELECTRICAL SYSTEM), THE METHOD FOR UPDATING THE SINGLE PURPOSE SIMULATOR DIFFERS GREATLY FROM THE METHOD FOR UPDATING THE EC II. FIRST, BOTH TYPES OF EQUIPMENT REQUIRE A CUMULATION OF NEW DATA, E.G., ALL THE EFFECTS OF THE CHANGED MEASUREMENTS IN THE AUTO ELECTRICAL SYSTEM THAT HAVE OCCURRED DUE TO THE CHANGES MADE TO THAT SYSTEM.

WITH REGARD TO THE EC II, THE AGENCY STATES THAT ONCE THIS DATA IS COMPILED A NEW CASSETTE COMPUTER TAPE IS PREPARED AND NEW SLIDES, IF NECESSARY, ARE INSERTED INTO THE EC II'S RANDOM ACCESS PROJECTOR AND THE MODIFICATION IS COMPLETE.

REGARDING THE SINGLE PURPOSE SIMULATOR, IT IS STATED:

"*** THE VOLTAGE AND RESISTIVE NETWORKS IN AND THE WIRING LAYOUT OF THE SIMULATOR MUST BE REDESIGNED; THE SIMULATOR MUST BE REWIRED; THE BACKLIT TRANSPARENCIES MUST BE REPLACED; AND, THE MAINTENANCE MANUALS MUST BE UPDATED. ***"

(B) MAJOR CHANGES

THIS SECOND ASPECT OF OBSOLESCENCE INVOLVES WHOLESALE ELIMINATION OF THE SYSTEMS) BEING SIMULATED, E.G., THE REPLACEMENT OF DIESEL ENGINES BY GASOLINE ENGINES; AND THE REPLACEMENT OF TACTICAL 1/4-TON TRUCKS BY COMMERCIAL PANEL TRUCKS. ALL PARTIES AGREE THAT WHEN MAJOR CHANGES OF THIS TYPE OCCUR, ALL SIMULATION PROGRAMS AND PANELS ARE NO LONGER USABLE AND THAT NEW PROGRAMS AND PANELS MUST BE DEVELOPED.

WITH REGARD TO THE EC II, THIS MEANS THAT THE PANELS AND THE COMPUTER PROGRAMS FOR THE SYSTEM BEING REPLACED ARE NO LONGER OF USE. HOWEVER, THE MAINFRAME INTO WHICH ALL PANELS AND CASSETTES ARE PLACED WOULD, OF COURSE, REMAIN USABLE, MERELY AWAITING THE INSERTION OF NEW PANELS AND COMPUTER PROGRAMS.

AS TO SINGLE PURPOSE SIMULATORS, WHEN MAJOR CHANGES OCCUR IN THE SYSTEM BEING DEPICTED, A COMPLETELY NEW SIMULATOR MUST BE BUILT.

THE AGENCY CONTENDS THAT THE NONOBSOLESCENCE OF THE MAINFRAME OF THE GENERAL PURPOSE SIMULATOR (THE EC II) OFFERS THE ADVANTAGES OF COST SAVINGS WHEN FUTURE SIMULATORS ARE PURCHASED BECAUSE MAINTENANCE PERSONNEL HAVE BECOME FAMILIAR WITH ITS ELECTRONICS.

FURTHER, WITH NEWLY DESIGNED SINGLE PURPOSE SIMULATORS, MAINTENANCE PEOPLE MUST UNDERGO A NEW LEARNING PERIOD.

FURTHER, THE AGENCY ATTEMPTS TO SHOW THAT, IF FIVE NEW SIMULATION PROGRAMS WOULD HAVE TO BE DEVELOPED WITH NINE COPIES OF EACH FOR THE MOTOR TRANSPORT SCHOOL AFTER THE PURCHASE OF THE INITIAL EQUIPMENT, THE AGENCY COULD SAVE $162,000 BY INITIALLY PROCURING THE EC II INSTEAD OF THE SINGLE PURPOSE SIMULATOR.

WE HAVE EXAMINED THE AGENCY'S CALCULATION, AND WHILE WE DISAGREE WITH THE AGENCY AS TO THE QUANTUM OF THE COST DIFFERENTIAL, WE DO FEEL THAT THE EC II DOES SHOW A LONG-TERM COST ADVANTAGE WHICH IS NOT INSIGNIFICANT.

MOREOVER, OUR REVIEW INDICATES THAT THE GENERAL PURPOSE SIMULATOR POSSESSES THE CAPABILITY, SHOULD THE AGENCY CHOOSE TO UTILIZE IT, TO BE UPDATED SO AS TO ACCOMMODATE NEW TEACHING CONCEPTS WHICH ARE PRESENTLY BEING DEVELOPED.

ACCORDINGLY, WE CONCLUDE THAT THERE IS A RATIONAL BASIS FOR THE DETERMINATION THAT ONLY MULTIPURPOSE EQUIPMENT WILL MEET THE AGENCY'S NEEDS. IT THEREFORE RENDERS ACADEMIC THE QUESTION OF WHETHER THE AGENCY HAS OTHERWISE JUSTIFIED THE DETERMINATION.

IN THE CIRCUMSTANCES, WINSLOW'S PROTEST IS DENIED.