B-168007 (1), MAY 14, 1970

B-168007 (1), MAY 14, 1970

CONTRACTS--SPECIFICATIONS--ADMINISTRATIVE DETERMINATION CONCLUSIVENESS- MINIMUM NEEDS REQUIREMENT UNDER SOLICITATION FOR SURVIVAL RADIOS, LIMITED IN MAILING TO TWO COMPANIES AND WHICH PROVIDED FOR REAL COST EVALUATION INVOLVING REAL COST IMPACT APPLICABLE TO EQUIPMENT, WHERE ANOTHER COMPANY'S RADIO WAS SUBSTANTIALLY HEAVIER AND HAD CHANNEL INCOMPATABILITY, NO BASIS EXISTS FOR HOLDING REQUIREMENTS WERE NOT BASED UPON BONA FIDE DETERMINATION OF AIR FORCE'S ACTUAL NEEDS UNDER EXISTING CONDITIONS SINCE ESTABLISHMENT OF SPECIFICATIONS REFLECTING GOVERNMENT'S ACTUAL NEEDS IS PRIMARILY ADMINISTRATIVE AGENCY'S RESPONSIBILITY AND ITS PROCUREMENT OFFICIALS' DETERMINATION, ABSENT BAD FAITH, IS NOT SUBJECT TO REVIEW. SEE 34 COMP. GEN. 355.

TO CHROMALLOY AMERICAN CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR PROTEST IN CONNECTION WITH REQUEST FOR PROPOSALS NO. F33657-70-R-0202, ISSUED BY THE AIR FORCE SYSTEMS COMMAND, AERONAUTICAL SYSTEMS DIVISION, WRIGHT-PATTERSON AIR FORCE BASE, OHIO.

THE SUBJECT SOLICITATION WAS ISSUED ON SEPTEMBER 9, 1969, AND MAILING WAS LIMITED TO THE MAGNAVOX COMPANY AND SYLVANIA ELECTRONICS SYSTEMS FOR 3250 AN/URC-64 RADIOS OR AN/PRC-90 SURVIVAL RADIOS. THE SOLICITATION PROVIDED THAT A REAL COST EVALUATION WOULD BE PERFORMED ON THE PROPOSALS SUBMITTED UNDER THE SOLICITATION AND ATTENTION WAS INVITED TO THE LETTER OF TRANSMITTAL WHICH IDENTIFIED THE REAL COST IMPACT DETERMINED APPLICABLE TO THE PARTICULAR EQUIPMENT. THE GOVERNMENT SPECIFICALLY RESERVED THE RIGHT TO MAKE AWARD FOR THE AN/URC 64 RADIO OR THE AN/PRC-90 RADIO. THE SOLICITATION WAS AMENDED TO PROVIDE THAT EACH OFFEROR SHOULD SUBMIT ITS PROPOSAL ONLY ON THE TYPE RADIO SET WHICH IT HAD PREVIOUSLY DELIVERED TO THE GOVERNMENT UNDER A PRIOR GOVERNMENT CONTRACT.

YOUR PROTEST IS ESSENTIALLY PREMISED AGAINST THE DETERMINATION OF THE AIR FORCE IN LIMITING THE COMPETITION TO THE AN/URC-64 AND THE AN/PRC 90 SURVIVAL RADIOS MANUFACTURED BY THE MAGNAVOX COMPANY AND SYLVANIA ELECTRONICS SYSTEMS, RESPECTIVELY. IT IS URGED THAT YOU SHOULD HAVE BEEN PERMITTED TO FURNISH YOUR RT-60 RADIO, A NUMBER OF WHICH ARE STATED TO HAVE BEEN DELIVERED TO THE NAVY AND ARE PERFORMING SATISFACTORILY IN OPERATIONAL USE IN SOUTHEAST ASIA.

THE AIR FORCE IN JUSTIFICATION OF THE LIMITATIONS IMPOSED ON THIS PROCUREMENT, STATES:

"THE AIR FORCE REQUIREMENT FOR SURVIVAL RADIOS HAS UNTIL THE INSTANT PROCUREMENT BEEN CONSISTENTLY IDENTIFIED AS THE FOUR CHANNEL URC-64. HOWEVER, DURING RECENT REQUIREMENT REVIEWS, SOUTHEAST ASIAN REQUIREMENTS HAVE BEEN RESTATED TO INCLUDE TWO CHANNEL CAPABILITY AS REPRESENTED BY THE PRC-90. PARTIAL RATIONALE FOR THE SHIFT IN AIR FORCE REQUIREMENTS IS THAT A REVIEW OF ASSETS ON HAND OR ON ORDER REVEALED THAT THE 17,300 URC-64S WAS ADEQUATE SUPPLY FOR THE EXTREMELY HIGH RISK AREAS OF OPERATION. NEW ASSETS OF EITHER THE URC-64 OR PRC 90 TYPE WERE URGENTLY REQUIRED TO FLUSH THE SYSTEM OF OLD AND UNRELIABLE URC-10S, URC-4S AND URC-11S. THE AIR FORCE, THEREFORE, FOR THE PRESENT PROCUREMENT WAS IN THE POSITION TO PURCHASE EITHER THE NAVY QUALIFIED PRC-90 OR CONTINUE WITH URC-64. CRITERIA FOR SELECTION WAS ESTABLISHED AS OVERALL COST TO THE AIR FORCE AND EARLIEST DELIVERY. EARLIEST DELIVERY TO MEET THE PRIORITIES ESTABLISHED COULD ONLY BE ACHIEVED BY CONTINUED DELIVERY OF ONE OR THE OTHER QUALIFIED UNIT FROM ITS ESTABLISHED SOURCE. IN ORDER TO ESTABLISH OVERALL OR 'REAL COST' TO THE AIR FORCE, PARAMETERS IDENTIFYING INVENTORY IMPLEMENTATION COSTS WERE EVALUATED WITH EQUIPMENT COSTS. THE GOVERNMENT, AS A BUYER, WAS INTERESTED SOLELY IN PROCURING THE RADIO SET THAT (A) MET ITS TECHNICAL REQUIREMENTS, (B) WAS READILY AVAILABLE AS QUALIFIED ITEM AND (C) WAS OVERALL LEAST COSTLY. THE SOLICITATION WAS STRUCTURED SO AS TO PROVIDE THESE RESULTS. IT FURTHER PROVIDED FOR THE OBJECTIVE EVALUATION OF FIRM OFFERS FROM TWO FIRMS IN LIEU OF THE UNILATERAL SELECTION BY THE GOVERNMENT OF ONE OF THE AVAILABLE EQUIPMENTS ON THE BASIS OF ESTIMATE OR MARKETING INFORMATION."

WITH RESPECT TO THE CONTENTION THAT YOU SHOULD HAVE BEEN PERMITTED TO OFFER THE ACR RT-60 RADIO, IT IS REPORTED THAT THE RT-60 RADIOS DELIVERED TO THE NAVY ARE BENDIX URC-10 RADIOS MODIFIED WITH ACR COMPONENTS TO PROVIDE 2 CHANNELS AND REDESIGNATED AS THE RT-60; THAT THE RT-60 RADIO IS SUBSTANTIALLY HEAVIER THAN EITHER THE URC-64 OR THE PRC-90; AND THAT THE RT-60 RADIO IS NOT COMPATIBLE ON THE 2ND CHANNEL (282.8 MC) WITH ANY AEROSPACE GROUND EQUIPMENT IN THE AIR FORCE INVENTORY EXCEPT THE BATTERY TEST SET (TS-2530).

WE HAVE CONSISTENTLY HELD THAT THE ESTABLISHMENT OF SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY. IT HAS ALSO BEEN HELD THAT THE ADVERTISING STATUTES REQUIRE THAT EVERY EFFORT BE MADE TO DRAW SPECIFICATIONS ON SUCH TERMS AS WILL PERMIT THE BROADEST FIELD OF COMPETITION CONSISTENT WITH THE GOVERNMENT'S ACTUAL NEEDS. IT IS WELL ESTABLISHED THAT THE GOVERNMENT DOES NOT VIOLATE EITHER THE LETTER OR THE SPIRIT OF THE COMPETITIVE BIDDING STATUTES MERELY BECAUSE ONLY ONE FIRM CAN SUPPLY ITS NEEDS, PROVIDED THE SPECIFICATIONS ARE REASONABLE AND NECESSARY FOR THE PURPOSE. 34 COMP. GEN. 336 (1955). AS TO THIS PROCUREMENT WE FIND NO BASIS FOR HOLDING THAT THE REQUIREMENTS WERE NOT BASED UPON A BONA FIDE DETERMINATION OF THE ACTUAL NEEDS OF THE AIR FORCE UNDER EXISTING CONDITIONS. THE EXERCISE OF SUCH DETERMINATION IS VESTED IN THE PROCUREMENT OFFICIALS INVOLVED IN EACH CASE AND, IN THE ABSENCE OF BAD FAITH, IS NOT SUBJECT TO REVIEW.

SINCE WE FIND NO EVIDENCE OF BAD FAITH OR ABUSE OF DISCRETION IN THIS PROCUREMENT, YOUR PROTEST IS DENIED.