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B-214339, JUL 16, 1984, 84-2 CPD 49

B-214339 Jul 16, 1984
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CONTRACTS - NEGOTIATION - SOLE-SOURCE BASIS - DETERMINATION TO USE - AGENCY DISCRETION DIGEST: WHERE PROTESTER'S DISAGREEMENT WITH THE CONTRACTING AGENCY'S SOLE SOURCE DETERMINATION IS ESSENTIALLY A DISAGREEMENT WITH THE AGENCY'S JUDGMENT CONCERNING ITS TECHNICAL REQUIREMENTS. THE PROTESTER ARGUES THAT ITS PRODUCT WILL MEET THE AGENCY'S MINIMUM NEEDS AT A LOWER PRICE THEN WILL MONSANTO'S AND THAT WE SHOULD DIRECT THE AIR FORCE TO CANCEL THE RFP AND ADVERTISE ON A COMPETITIVE BASIS. THE THREE SYSTEMS WERE: 1. THE IFB WAS CANCELED AND THE AIR FORCE ISSUED THE SOLE-SOURCE RFP TO MONSANTO. THE SPECIFICATIONS THE SPECIFIC FEATURES WHICH THE AIR FORCE EMPHASIZES AS ESSENTIAL TO ITS MINIMUM NEEDS ARE: 1.

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B-214339, JUL 16, 1984, 84-2 CPD 49

CONTRACTS - NEGOTIATION - SOLE-SOURCE BASIS - DETERMINATION TO USE - AGENCY DISCRETION DIGEST: WHERE PROTESTER'S DISAGREEMENT WITH THE CONTRACTING AGENCY'S SOLE SOURCE DETERMINATION IS ESSENTIALLY A DISAGREEMENT WITH THE AGENCY'S JUDGMENT CONCERNING ITS TECHNICAL REQUIREMENTS, THE PROTESTER HAS NOT CARRIED ITS BURDEN OF PROVING THAT THE AGENCY'S SOLE-SOURCE DETERMINATION HAS NO RATIONAL BASIS.

ALL-PRO TURF, INC.

ALL-PRO TURF, INC. PROTESTS THE DEPARTMENT OF THE AIR FORCE'S ISSUANCE OF REQUEST FOR PROPOSALS (RFP) NO. F05611-84-R-0005 AS A SOLE SOURCE PROCUREMENT TO MONSANTO COMPANY. THE RFP CALLS FOR THE FURNISHING AND INSTALLING OF AN INDOOR SYNTHETIC TURF SYSTEM IN THE CADET FIELD HOUSE AT THE AIR FORCE ACADEMY IN COLORADO SPRINGS, COLORADO.

THE RFP SPECIFICATIONS REQUIRE TURF WITH A FACE FIBER OF NYLON, KNITTED FABRIC CONSTRUCTION, AND A HIGH DENSITY UNDERPAD. ALL-PRO PRODUCES A POLYPROPYLENE TURF WITH TUFTED FABRIC CONSTRUCTION AND AN UNDERPAD OF LESSER DENSITY THAN THE REQUIRED SPECIFICATION. THE PROTESTER ARGUES THAT ITS PRODUCT WILL MEET THE AGENCY'S MINIMUM NEEDS AT A LOWER PRICE THEN WILL MONSANTO'S AND THAT WE SHOULD DIRECT THE AIR FORCE TO CANCEL THE RFP AND ADVERTISE ON A COMPETITIVE BASIS.

WE FIND NO LEGAL BASIS TO OBJECT TO THE CONDUCT OF THIS PROCUREMENT.

BACKGROUND

THE AIR FORCE ORIGINALLY ISSUED AN INVITATION FOR BIDS (IFB) FOR THE REQUIREMENT, BUT RECEIVED LETTERS FROM TWO PROSPECTIVE BIDDERS, ALL-PRO AND SUPERTURF, INC., COMPLAINING THAT THE SPECIFICATIONS AS WRITTEN COULD BE MET BY ONLY ONE MANUFACTURER, MONSANTO, THEREBY ELIMINATING COMPETITION. THE CONTRACTING OFFICER THEN POSTPONED THE BID OPENING IN ORDER THAT THE NEEDS OF THE GOVERNMENT MIGHT BE REEVALUATED.

THE CIVIL ENGINEERS AND THE ATHLETIC DEPARTMENT OF THE AIR FORCE ACADEMY REVIEWED THE SPECIFICATIONS AND EVALUATED THE PRODUCTS AVAILABLE FROM THE THREE KNOWN SOURCES OF SYNTHETIC TURF SYSTEMS. THE THREE SYSTEMS WERE:

1. ALL-PRO TURF, POLYLOOM 10, POLYPROPYLENE;

2. MONSANTO ASTROTURF, NYLON 6-6, AND

3. SUPERTURF '84, POLYPROPYLENE THE AIR FORCE FOUND THAT ONLY MONSANTO'S ASTROTURF OFFERS ALL OF THE FEATURES CONSIDERED ESSENTIAL, WHICH INCLUDE HIGH FIRE SAFETY STANDARDS, HIGH BREAKING STRENGTH AND TOUGHNESS STANDARDS, AND HIGH DENSITY UNDERPAD STANDARD. ACCORDINGLY, THE IFB WAS CANCELED AND THE AIR FORCE ISSUED THE SOLE-SOURCE RFP TO MONSANTO.

THE SPECIFICATIONS

THE SPECIFIC FEATURES WHICH THE AIR FORCE EMPHASIZES AS ESSENTIAL TO ITS MINIMUM NEEDS ARE:

1. FACE FIBER OF NYLON WITH FLAMMABILITY MEASURED BY A CRITICAL RADIANT FLUX VALUE IN EXCESS OF 0.2 WATTS PER SQUARE CENTIMETER;

2. KNITTED FABRIC CONSTRUCTION WITH A GRAB TEAR STRENGTH OF AT LEAST 350 POUNDS, AND A TUFT BIND VALUE OF 25 POUNDS; AND

3. UNDERPAD DENSITY OF 7 POUNDS PER CUBIC FOOT.

THE PROTESTER ARGUES THAT THE AIR FORCE'S REQUIREMENTS WERE WRITTEN TO MATCH MONSANTO SPECIFICATIONS, AND CONTENDS THAT THE AGENCY ACTED UNREASONABLY BY NOT INCLUDING AN "EQUAL" CLAUSE IN THE SPECIFICATION TO PERMIT COMPETITION. ALL-PRO CONTENDS THAT ITS PERFORMANCE RECORD UNDER PREVIOUS CONTRACTS CONTRADICTS THE AIR FORCES'S CLAIM THAT ONLY THE STATED SPECIFICATIONS WILL MEET THE AIR FORCE'S MINIMUM NEEDS; ALL-PRO STATES THAT ITS PRODUCT IS USED AT THE INDOOR PRACTICE FACILITY AT THE UNIVERSITY OF MICHIGAN AND AT THE UNIVERSITY OF ARKANSAS. ALL-PRO ALSO POINTS OUT THAT THE ARMY AT WEST POINT HAS WRITTEN "BRAND NAME OR EQUAL" SPECIFICATIONS TO ALLOW COMPETITIVE BIDDING FOR ARTIFICIAL TURF INSTALLATION.

THE AIR FORCE REBUTS ALL-PRO'S ARGUMENT CONCERNING THE FIRM'S OTHER INSTALLATIONS BY POINTING OUT THAT THE CADET FIELD HOUSE IS AN INDOOR COMPLEX WITH UNIQUE FEATURES. THE AGENCY NOTES THAT, IN CONTRAST, THE WEST POINT FACILITY IS OUTDOORS. THE AIR FORCE ALSO STATES THAT THE UNIVERSITY OF MICHIGAN'S INDOOR PRACTICE FACILITY IS NOT COMPARABLE TO THE CADET FIELD HOUSE. THE AIR FORCE REPORTS THAT THE CADET FIELD HOUSE COMPLEX IS JOINED TO THE CADET GYMNASIUM VIA AN UNDERGROUND TUNNEL AND INCLUDES ARENAS; A DORMITORY; LOCKER, SHOWER AND RESTROOM FACILITIES; TRAINING AND WEIGHT ROOM; STORAGE AREAS, AND OFFICES. BECAUSE OF THE NATURE OF THE INDOOR FACILITY, THE AIR FORCE CONTENDS THAT THE HIGHEST FIRE SAFETY AND MATERIAL STANDARDS ARE NECESSARY.

(1) FACE FIBER

THE AIR FORCE WANTS A NYLON FACE FIBER PRIMARILY BECAUSE THE MELTING POINT OF NYLON IS HIGHER THAN THAT OF POLYPROPYLENE. IN MAKING THE NYLON DETERMINATION, THE AGENCY CONSIDERED A FLAMMABILITY TEST CONDUCTED BY THE FIRE DEPARTMENT OF THE CITY OF IRVING, TEXAS. THE TEST WAS CONDUCTED ON 2 X 3 INCH SAMPLES OF ASTROTURF AND SUPERTURF AND THEIR UNDERPADS. APPROXIMATELY 1/2 AN EYEDROPPER OF GASOLINE WAS PLACED ON EACH SAMPLE. TWO MATCHES WERE THEN SIMULTANEOUSLY LIT, PLACED ON EACH SAMPLE, AND A CLOCK WAS STARTED. THE RESULT OF THE TEST WAS THAT THE ASTROTURF SAMPLE BURNED FOR 1 MINUTE AND 20 SECONDS LEAVING THE SAMPLE SLIGHTLY SCORED, WHILE THE SUPERTURF SAMPLE BURNED FOR 14 MINUTES UNTIL THE SAMPLE WAS TOTALLY CONSUMED AND MOLTEN POLYPROPYLENE REMAINED. THE AGENCY STATES THAT IT CONDUCTED ITS OWN FIRE TESTS ON ASTROTURF, SUPERTURF AND ALL-PRO TURF SAMPLES AND OBTAINED THE SAME RESULTS WITH THE NYLON AND POLYPROPYLENE AS DID THE IRVING, TEXAS FIRE DEPARTMENT.

THE AIR FORCE CONTENDS THAT THESE TESTS REVEAL THAT THE NYLON PRODUCT IS THE LESS FLAMMABLE OF THE TWO SURFACES AND THAT THE POLYPROPYLENE IS SO COMBUSTIBLE AS TO BE A HAZARD TO PROPERTY AND PERSONAL SAFETY. SINCE THE SYNTHETIC TURF IS TO BE PLACED IN A MULTI PURPOSE INDOOR FACILITY, WHICH HOUSES NUMEROUS PUBLIC FUNCTIONS, THE AGENCY CONTENDS THAT THE HIGHEST FIRE SAFETY STANDARDS MUST BE REQUIRED IN ORDER TO MEET THE GOVERNMENT'S MINIMUM NEEDS.

WHILE ALL-PRO ADMITS THAT A NYLON FACE FIBER DOES OFFER A HIGHER MELTING POINT THAN A POLYPROPYLENE FACE FIBER, ALL-PRO ARGUES THAT THE IRVING, TEXAS FIRE TEST IS NEITHER A RECOGNIZED NOR APPROPRIATE TESTING METHOD FOR THESE PRODUCTS. THE PROTESTER FURTHER ARGUES THAT SINCE ALL PRO'S TURF WAS NOT TESTED, THE IRVING TEST CANNOT BE CONSIDERED A REASONABLE BASIS FOR THE FLAMMABILITY SPECIFICATION IN ANY EVENT.

(2) FABRIC CONSTRUCTION

THE AIR FORCE WANTS THE ARTIFICIAL TURF SYSTEM TO HAVE A KNITTED FABRIC CONSTRUCTION BECAUSE THE AGENCY DETERMINED THAT KNITTED FABRICS OFFER GREATER BREAKING STRENGTH AND TOUGHNESS THAN TUFTED FABRICS. THE BASES FOR THIS DETERMINATION WERE A STATEMENT TO THAT EFFECT BY THE GEORGIA INSTITUTE OF TECHNOLOGY, AND THE AIR FORCE'S EXPERIENCE WITH ITS PRESENT NYLON KNITTED SURFACE ARTIFICIAL TURF SYSTEM, WHICH HAS REQUIRED MINIMUM MAINTENANCE AND HAS NOT HAD PROBLEMS WITH CUTS, TEARS, OR INDIVIDUAL FIBER PULLOUTS. THE AGENCY STATES THAT HIGH BREAKING STRENGTH AND TOUGHNESS IS NECESSARY BECAUSE THE FACILITY IS USED FOR MULTI-PURPOSE ACTIVITIES, AND HEAVY VEHICLES ARE DRIVEN AN PARKED ON THE SYNTHETIC SURFACE.

ALL-PRO DENIES THAT KNITTED FABRIC CONSTRUCTION IS SUPERIOR TO TUFTED CONSTRUCTION, AND ARGUES THAT THE AIR FORCE SPECIFICATION FOR FABRIC STRENGTH IS NOT BASED ON THE APPROPRIATE TESTS. THE PROTESTER CONTENDS THAT FABRIC STRENGTH SHOULD NOT BE MEASURED ONLY BY THE GRAB TEAR STRENGTH AND THE TUFT BIND VALUE, AS IN THE SPECIFICATION, SINCE ARTIFICIAL TURF IS NOT DESTROYED BY PULLING OUT TUFTS OF FIBER. RATHER, THE PROTESTER CONTENDS THAT THE TURF IS DESTROYED BY WEAR OVER A LONG PERIOD OF TIME, AND THAT AN ABRASION-RESISTANCE TEST FOR TEXTILE FABRICS THEREFORE SHOULD HAVE BEEN CONDUCTED.

(3) UNDERPAD

THE AIR FORCE WANTS THE HIGHEST DENSITY UNDERPAD AVAILABLE TO ALLEVIATE CREEPING OR STRETCHING OF THE ARTIFICIAL TURF UNDER HEAVY LOADS. THE AGENCY BELIEVES SUCH A HIGH DENSITY WILL ALLOW THE UNDERPAD TO RETURN TO ITS ORIGINAL THICKNESS AFTER DEPRESSION AND REMOVAL OF THE FORCE, AND PROVIDE HIGHER RESISTANCE TO BREAKAGE, DIMENSIONAL CHANGE, AND LONGER LIFE BECAUSE OF A GREATER AMOUNT OF MATERIAL. THE AGENCY STATES THAT A HIGHER DENSITY UNDERPAD IS IMPERATIVE BECAUSE OF THE UNUSUAL MANNER IN WHICH THE AREA IS UTILIZED, WHICH INCLUDES STATIC AND ROLLING LOADS FROM HEAVY VEHICLES.

THE PROTESTER ARGUES THAT THE DENSITY OF AN UNDERPAD IS IRRELEVANT WHEN COMPARING DIFFERENT MATERIALS, AS IN THIS CASE. ACCORDING TO THE PROTESTER, IT TAKES TWICE THE DENSITY OF THE ASTRO-TURF POLYVINYL CHLORIDE PAD TO PRODUCE THE SAME RESULTS AS THE ALL-PRO POLYETHYLENE PAD. ADDITIONALLY, THE PROTESTER STATES THAT HEAVY EQUIPMENT SUCH AS TELEVISION VANS HAVE OPERATED ON ALL-PRO TURF WITHOUT ANY ADVERSE EFFECTS.

DISCUSSION

BECAUSE OF THE REQUIREMENT FOR MAXIMUM PRACTICAL COMPETITION IN THE CONDUCT OF GOVERNMENT PROCUREMENTS, AN AGENCY'S DECISION TO PROCURE ON A SOLE-SOURCE BASIS IS SUBJECT TO CLOSE SCRUTINY BY OUR OFFICE. INTERNATIONAL HARVESTER COMPANY, 61 COMP.GEN. 388 (1982), 82-1 CPD PARA. 459. WHERE, HOWEVER, A CONTRACTING AGENCY PROVIDES A RATIONAL JUSTIFICATION FOR ITS VIEW THAT ONLY ONE SOURCE OF SUPPLY CAN MEET ITS REQUIREMENTS, THE BURDEN IS ON THE PROTESTER TO PRESENT EVIDENCE THAT SHOWS THAT A SOLE-SOURCE PROCUREMENT IN FACT IS UNWARRANTED. EMI MEDICAL INC.; PICKER CORPORATION, B-195487, FEB. 6, 1980, 80-1 CPD PARA. 96.

THE REQUIREMENTS AT ISSUE ARE BASED ON SAFETY AND OPERATIONAL NEEDS AS IDENTIFIED BY THE CIVIL ENGINEERS AND THE ATHLETIC DEPARTMENT OF THE AIR FORCE ACADEMY. THE REQUIREMENTS ARE DEEMED ESSENTIAL TO THE SAFE AND EFFICIENT OPERATION OF THE ARTIFICIAL TURF SYSTEM. THE CRUX OF ALL PRO'S PROTEST IS, IN OUR VIEW, THAT IT HAS GREATER TECHNICAL EXPERTISE AND A BETTER KNOWLEDGE OF THE FEATURES REQUIRED FOR THE ARTIFICIAL TURF SYSTEM THAN DOES THE AGENCY. IT IS WELL-SETTLED, HOWEVER, THAT THE DETERMINATION OF AN AGENCY'S MINIMUM NEEDS IS LARGELY A MATTER OF DISCRETION ON THE PART OF THE AGENCY'S CONTRACTING OFFICIALS. A PROCURING AGENCY'S TECHNICAL CONCLUSIONS CONCERNING ITS ACTUAL NEEDS ARE ENTITLED TO GREAT WEIGHT AND WILL BE ACCEPTED BY OUR OFFICE UNLESS THERE IS A CLEAR SHOWING THAT THE CONCLUSIONS ARE ARBITRARY, RACK ENGINEERING COMPANY, B-208615, MARCH 10, 1983, 83-1 CPD PARA. 242; IT IS NOT NORMALLY OUR FUNCTION TO CONDUCT AN INDEPENDENT ANALYSIS OF A CONTRACTING AGENCY'S MINIMUM NEEDS.

WE THUS ARE FACED WITH A TECHNICAL DISPUTE. ALL-PRO HAS NOT SHOWN THAT THE AIR FORCE'S TECHNICAL CONCLUSIONS ARE ARBITRARY OR UNREASONABLE, BUT ONLY THAT IT BELIEVES THEY ARE WRONG. MERE DISAGREEMENT WITH THE TECHNICAL JUDGMENTS SUPPORTING AN AGENCY'S GROUNDS FOR A SOLE-SOURCE PROCUREMENT, HOWEVER, DOES NOT CARRY A PROTESTER'S BURDEN TO PROVE THAT THERE IS NO RATIONAL BASIS FOR THE SOLE-SOURCE DETERMINATION. EMI MEDICAL INC.; PICKER CORPORATION, SUPRA.

WITH RESPECT TO ALL-PRO'S CONTENTION THAT, NOTWITHSTANDING THE AIR FORCE'S CONCLUSIONS, ALL-PRO'S PRODUCT HAS BEEN RECOGNIZED IN OTHER PROCUREMENTS AS BEING EQUAL TO MONSANTO'S PRODUCT, THE FACT IS THAT THE AIR FORCE HAS PARTICULAR MINIMUM NEEDS TO BE MET, SO THAT THE WAY OTHER AGENCIES MET THEIR OWN PARTICULAR NEEDS DOES NOT ESTABLISH THAT THE AIR FORCE IS ACTING UNREASONABLY. SEE RACK ENGINEERING COMPANY, SUPRA.

FINALLY, THE MONETARY SAVING ALL-PRO CONTENDS IS AVAILABLE IF IT IS PERMITTED TO COMPETE IS IRRELEVANT, SINCE THE FIRM HAS NOT SHOWN THAT IT CAN MEET THE GOVERNMENT'S MINIMUM NEEDS.

THE PROTEST IS DENIED.

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