B-210087, JUN 28, 1983

B-210087, JUN 28, 1983

DIGEST: WHEN THE PROTESTER CHALLENGES AN AGENCY'S SOLICITATION SPECIFICATIONS, AND THE AGENCY HAS MADE A PRIMA FACIE CASE THAT THE SPECIFICATIONS ARE RELATED TO ITS MINIMUM NEEDS, THE PROTESTER HAS NOT MET ITS BURDEN OF SHOWING THAT THE NEEDS DETERMINATION IS CLEARLY UNREASONABLE.

R.E. WHITE & ASSOCIATES, INC.:

R.E. WHITE & ASSOCIATES, INC. (WHITE), PROTESTS THE SPECIFICATIONS UNDER REQUESTS FOR PROPOSALS (RFP) NOS. F34601-82-52710 (AFTER AWARD) AND F34601 -83-21643 (BEFORE AWARD), ISSUED BY THE OKLAHOMA CITY AIR LOGISTICS CENTER FOR TACHOMETER GENERATORS.

WE DENY THE PROTEST. BECAUSE OF THIS AND THE FACT THAT THE PROTEST IS IDENTICAL UNDER BOTH SOLICITATIONS, WE NEED NOT ADDRESS THE AGENCY'S ARGUMENT THAT WHITE'S POSTAWARD PROTEST OF SOLICITATION NO. -52710 WAS UNTIMELY FILED.

BOTH SOLICITATIONS CALLED FOR THE ITEM TO BE IN ACCORDANCE WITH SPECIFICATIONS UNDER WHICH ONLY TRW GLOBE MOTOR DIVISION (TRW) WAS ELIGIBLE FOR WAIVER OF REQUIRED FIRST ARTICLE TESTING. WHITE CONTENDS THAT ITS PROPOSAL TO SUPPLY A GENERAL ELECTRIC (G.E.) GENERATOR ALLEGEDLY INTERCHANGEABLE WITH THAT OF TRW IS PROHIBITED BY THE SOLICITATION. THE PROTESTER CLAIMS THAT THE GOVERNMENT HAS OVERSTATED ITS MINIMUM NEEDS IN REJECTING AS TECHNICALLY DEFICIENT THE G.E. GENERATORS, WHICH WERE BUILT TO EARLIER SUPERSEDED SPECIFICATIONS. FURTHER, WHITE ASSERTS THAT THE AGENCY HAS ADMITTED THE ADEQUACY OF G.E. GENERATORS BY PERMITTING OFFERS OF OVERHAULED SURPLUS GENERATORS ON RFP NO. -52710. (WE NOTE RFP NO. - 21643 PERMITTED OFFERS OF NEW, UNUSED SURPLUS.)

THE AGENCY CARRIES THE INITIAL BURDEN OF MAKING A PRIMA FACIE CASE THAT ITS SOLICITED REQUIREMENTS ARE NOT UNDULY RESTRICTIVE OF COMPETITION AND RELATE TO ITS NEEDS. ONCE THE AGENCY HAS MET THIS BURDEN, THE PROTESTER HAS THE BURDEN TO PROVE THAT THE AGENCY'S DETERMINATION OF ITS NEEDS WAS CLEARLY UNREASONABLE OR THE AGENCY'S OWN ASSESSMENT OF ITS NEEDS WILL BE ACCEPTED. WALTER KIDDE, DIVISION OF KIDDE, INC., B-204734, JUNE 7, 1982, 82-1 CPD 539.

IN THIS CASE, THE AGENCY CONDUCTED A DETAILED TECHNICAL EVALUATION OF WHITE'S PROPOSED PRODUCT. THAT EVALUATION SPECIFIED SEVERAL DESIGN FEATURES NOT CONTAINED IN THE SUPERSEDED SPECIFICATIONS UNDER WHICH THE G.E. PRODUCTS WERE BUILT. THESE FEATURES APPARENTLY IMPACTED ON RELIABILITY, STORAGE LIFE, READOUT ACCURACY, AND THE PREVENTION OF FIRES. THE PROTESTER, WHICH ADMITS THE DESIGN DIFFERENCES, MAY DISAGREE WITH THIS EVALUATION, BUT IT HAS NOT CARRIED ITS BURDEN OF SHOWING CLEARLY THAT THE AGENCY'S DETERMINATION OF ITS NEED FOR THESE FEATURES IS UNREASONABLE. RACK ENGINEERING COMPANY, B-208615, MARCH 10, 1983, 83-1 CPD 242. FURTHERMORE, THE FACT THAT THE AGENCY SOLICITED USED SURPLUS GENERATORS UNDER THE RFP IS IRRELEVANT BECAUSE THE SURPLUS MATERIALS WERE NOT EXEMPTED FROM COMPLIANCE WITH THE SPECIFICATIONS.

PROTEST DENIED.