B-222914, AUG 27, 1986, 86-2 CPD 232

B-222914, AUG 27, 1986, 86-2 CPD 232

BIDS - INVITATION FOR BIDS - SPECIFICATIONS - MINIMUM NEEDS REQUIREMENT - ADMINISTRATIVE DETERMINATION - REASONABLENESS DIGEST: THE NUMBER OF POSSIBLE SOURCES FOR AN ITEM OR SERVICE DOES NOT DETERMINE WHETHER THE SPECIFICATION FOR THAT ITEM OR SERVICE UNDULY RESTRICTS COMPETITION. WHERE A PARTICULAR SPECIFICATION IS REASONABLY RELATED TO THE PROCURING AGENCY'S MINIMUM NEEDS, THE SPECIFICATION IS NOT UNDULY RESTRICTIVE.

DOSS AERONAUTICAL SERVICES, INC.:

DOSS AERONAUTICAL SERVICES, INC. (DASI), PROTESTS THAT THE SPECIFICATIONS IN INVITATION FOR BIDS (IFB) NO. DABT01-86-B-3002, ISSUED BY THE DEPARTMENT OF THE ARMY, FORT RUCKER, ALABAMA, ARE UNDULY RESTRICTIVE. THE SPECIFICATIONS REQUIRE THE SUCCESSFUL BIDDER TO PROVIDE PILOT TRAINING FOR U-21 AIRCRAFT THAT INCLUDES THE USE OF A VISUAL SIMULATOR OF U-21 FLIGHT. DASI ALLEGES THAT ONLY ONE FIRM-- FLIGHT SAFETY INTERNATIONAL-- CURRENTLY HAS AN OPERATIONAL SIMULATOR FOR U-21 FLIGHT, AND COMPLAINS THAT THE IFB'S DELIVERY SCHEDULE PROVIDES INSUFFICIENT TIME FOR ANY OTHER FIRM TO DEVELOP SUCH A SIMULATOR.

WE DENY THE PROTEST IN PART AND DISMISS IT IN PART.

ON MAY 23, 1985, FLIGHT SAFETY INTERNATIONAL (FSI) SUBMITTED TO THE ARMY AT FORT RUCKER, ALABAMA, AN UNSOLICITED PROPOSAL TO PROVIDE U-21 PILOT TRAINING. UNDER THE PROPOSAL, FSI WAS TO SUPPLY TRAINING AIRCRAFT, ALL BRIEFING AND CLASSROOM FACILITIES, THE TRAINING ITSELF, AND A U-21 COMPARABLE MOTION BASE VISUAL (FLIGHT) SIMULATOR WHICH IT CLAIMED WAS THE ONLY ONE IN EXISTENCE IN THE INDUSTRY. THE ARMY PERFORMED TECHNICAL EVALUATIONS OF FSI'S PROPOSAL AND INITIALLY EXPRESSED INTEREST IN ACCEPTING IT. HOWEVER, THE CONTRACTING OFFICER DETERMINED THAT A SOLE- SOURCE AWARD WOULD BE INAPPROPRIATE BECAUSE OTHER FIRMS COULD PRODUCE AND OPERATE SUCH A FLIGHT SIMULATOR.

THE ARMY THEREFORE DEVELOPED PERFORMANCE SPECIFICATIONS FOR A COMPETITIVE PROCUREMENT, AND ISSUED THE IFB ON APRIL 9, 1986. THE IFB PROVIDES THAT THE PERIOD OF PERFORMANCE SHALL BE FROM DECEMBER 1, 1986, THROUGH SEPTEMBER 30, 1987, AND ALSO INCLUDES FOUR ADDITIONAL 1-YEAR OPTIONS. BID OPENING OCCURRED ON MAY 19, AND ONLY FSI SUBMITTED A BID.

DASI CONTENDS THAT IT WOULD NEED APPROXIMATELY 12 MONTHS AFTER THE PLACEMENT OF AN ORDER TO DELIVER A U-21 SIMULATOR, AND SUGGESTS THAT THERE IS NO REAL URGENCY TO THE PROCUREMENT. DASI ALLEGES THAT THE ARMY SPECIFICALLY INCLUDED THE DECEMBER 1 COMMENCEMENT DATE SO THAT ONLY FSI WOULD BE ABLE TO COMPLY WITH THE SPECIFICATIONS. THE ARMY RESPONDS THAT IT NEEDS THE TRAINING SERVICES AS SOON AS POSSIBLE, AND EXPLAINS THAT THE SIMULATOR PERMITS PRACTICING EMERGENCY PROCEDURES THAT CANNOT BE PRACTICED SAFELY IN THE AIRCRAFT. THE ARMY FURTHER STATES THAT OTHER FIRMS HAVE THE CAPACITY TO PROVIDE A FLIGHT SIMULATOR BY DECEMBER 1.

THE CONTRACTING AGENCY HAS PRIMARY RESPONSIBILITY FOR DETERMINING ITS NEEDS AND THE BEST METHOD OF ACCOMMODATING THOSE NEEDS. WE HAVE RECOGNIZED THAT GOVERNMENT PROCUREMENT OFFICIALS-- SINCE THEY ARE THE ONES MOST FAMILIAR WITH THE CONDITIONS UNDER WHICH SUPPLIES, EQUIPMENT, OR SERVICES HAVE BEEN USED IN THE PAST AND HOW THEY ARE TO BE USED IN THE FUTURE-- ARE GENERALLY IN THE BEST POSITION TO KNOW THE GOVERNMENT'S ACTUAL NEEDS. CONSEQUENTLY, WE WILL NOT QUESTION AN AGENCY'S DETERMINATION OF ITS ACTUAL MINIMUM NEEDS UNLESS THERE IS A CLEAR SHOWING THAT THE DETERMINATION HAS NO REASONABLE BASIS. RAY SERV. CO., 64 COMP.GEN. 528 (1985), 85-1 CPD PARA. 582.

WHEN A PROTESTER CHALLENGES A SPECIFICATION AS BEING UNDULY RESTRICTIVE OF COMPETITION, THE BURDEN INITIALLY IS ON THE PROCURING AGENCY TO ESTABLISH PRIMA FACIE SUPPORT FOR ITS CONTENTION THAT THE RESTRICTIONS IT IMPOSES ARE NECESSARY TO MEET ITS MINIMUM NEEDS. BUT ONCE THE AGENCY ESTABLISHES THIS PRIMA FACIE SUPPORT, THE BURDEN IS THEN ON THE PROTESTER TO SHOW THAT THE REQUIREMENTS COMPLAINED OF ARE CLEARLY UNREASONABLE. RAY SERV. CO., SUPRA.

THE ARMY'S ASSERTION THAT THE REQUIRED FLIGHT SIMULATOR IS NEEDED TO PERMIT PRACTICING EMERGENCY PROCEDURES THAT CANNOT BE PRACTICED IN THE AIRCRAFT RELATES TO HUMAN SAFETY AND PROVIDES PRIMA FACIE SUPPORT FOR THE EARLIEST PRACTICABLE DELIVERY SCHEDULE. WE HAVE RECOGNIZED THAT AN AGENCY MAY DEFINE ITS NEEDS TO ALLOW FOR THE HIGHEST POSSIBLE EFFECTIVENESS IN FLIGHT TRAINING OR OTHER ITEMS CRITICAL TO HUMAN SAFETY. AM. AIRLINES TRAINING CORP., B-217421, SEPT. 20, 1985, 85-2 CPD PARA. 365.

DASI DOES NOT DISPUTE THAT TRAINING WITH A VISUAL SIMULATOR ENHANCES SAFETY AND, THUS, HAS NOT MET ITS BURDEN OF SHOWING THAT THE IFB'S REQUIREMENT FOR THE SIMULATOR AT AN EARLY DATE IS UNREASONABLE. RATHER, THE CRUX OF THE PROTESTER'S ARGUMENT IS THAT THE SPECIFICATIONS SHOULD BE HELD UNDULY RESTRICTIVE BECAUSE ONLY FSI CAN MEET THEM. THE NUMBER OF POSSIBLE SOURCES FOR AN ITEM OR SERVICE, HOWEVER, DOES NOT DETERMINE THE RESTRICTIVENESS OF SPECIFICATIONS. MID-ATLANTIC SERV. & SUPPLY CORP., B-218416, JULY 25, 1985, 85-2 CPD PARA. 86. EVEN THOUGH FSI SUBMITTED THE ONLY BID, THE RECORD INDICATES THAT ARMY TRAINING PERSONNEL ADVISED THE CONTRACTING OFFICER THAT GENERIC FLIGHT SIMULATORS WAS COMMERCIALLY AVAILABLE. THE ARMY ANTICIPATED COMPETITION AND EVEN POSTPONED THE CONTRACT COMMENCEMENT DATE FROM OCTOBER 1-- AS INITIALLY PLANNED AND ANNOUNCED IN THE COMMERCE BUSINESS DAILY-- TO DECEMBER 1 TO PROMOTE COMPETITION.

DASI ALSO ARGUES THAT SIMILARITIES BETWEEN THE IFB'S SPECIFICATIONS AND FSI'S PREVIOUSLY SUBMITTED UNSOLICITED PROPOSAL INDICATE THAT THE ARMY FAVORED FSI. WE WILL NOT INFER IMPROPER MOTIVES FROM SPECIFICATIONS' SIMILARITIES TO A COMPETITOR'S PRODUCT WHERE THE RECORD LACKS ANY DIRECT EVIDENCE THAT THE AGENCY ACTUALLY FAVORED A PARTICULAR SOURCE, AND SUCH SIMILARITIES ARE NOT IMPROPER IN THEMSELVES UNLESS THEY RESTRICT COMPETITION AND ARE NOT REASONABLY RELATED TO THE AGENCY'S MINIMUM NEEDS. SEE DSP TECHNOLOGY, INC., B-220593, JAN. 28, 1986, 86-1 CPD PARA. 96. THE RECORD CONTAINS NO EVIDENCE THAT THE ARMY INTENDED TO UNFAIRLY FAVOR FSI. FURTHER, THE PROTESTER DOES NOT ALLEGE THAT THE SIMILARITIES, OTHER THAN THE REQUIREMENT FOR A VISUAL FLIGHT SIMULATOR, RESTRICTED IT FROM COMPETING.

DASI'S ARGUMENT THAT THE SOLICITATION CONTAINS REQUIREMENTS THAT WOULD UNFAIRLY PLACE THE CONTRACTOR AT A DISADVANTAGE AND SUBJECT IT TO SUBSTANTIAL FINANCIAL LOSS NEED NOT BE CONSIDERED SINCE IT IS CLEAR THAT DASI CANNOT PROVIDE THE REQUIRED SIMULATOR. TOOLING TECHNOLOGY, INC., B-215079, AUG. 6, 1984, 84-2 CPD PARA. 155.

THE PROTEST IS DENIED.

WE NOTE THAT SEVERAL POTENTIAL COMPETITORS EXPRESSING INTEREST IN THE PROTEST SATED THEY COULD COMPETE WITH FSI ONLY IF AFFORDED 1 1/2 YEARS TO PRODUCE A SIMULATOR. GIVEN THIS FACT, WE ARE RECOMMENDING THAT THE ARMY CONSIDER ISSUING A COMPETITIVE SOLICITATION FOR FUTURE YEARS' REQUIREMENTS, INCLUDING SPECIFICATIONS PERMITTING A SUFFICIENT LEAD-TIME TO OBTAIN FULL AND OPEN COMPETITION. SEE 10 U.S.C. SEC. 2305(A)(1) (SUPP. III 1985). IN THIS REGARD, WE ALSO POINT OUT THAT THE OPTIONS SHOULD BE EXERCISED ONLY IF THEY ARE THE MOST ADVANTAGEOUS METHOD OF FULFILLING THE AGENCY'S NEEDS, PRICE AND OTHER FACTORS CONSIDERED. SEE FEDERAL ACQUISITION REGULATION, 48 C.F.R. SEC. 17.207 (1985).