B-162077, SEP. 15, 1967

B-162077: Sep 15, 1967

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ADMINISTRATIVE DETERMINATION TO OBTAIN COMPUTER UNDER NEGOTIATED SOLE SOURCE PROCUREMENT ON BASIS OF NEED FOR INTERCHANGEABILITY TO USE EQUIPMENT WITH FOUR OTHER UNITS IN CURRENT USE IS A REASONABLE ONE WITHIN THE SCOPE OF DISCRETION WHICH NECESSARILY RESTS WITH THE AGENCY AND THEREFORE. ACTION WILL NOT BE DISTURBED. AGENTS HAVE DUTY TO PROCURE ONLY WHAT IS REQUIRED TO MEET NEEDS IN ANY PARTICULAR INSTANCE. TO SYSTRON-DONNER CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 14. THE RECORD FURNISHED BY THE CONTRACTING AGENCY SHOWS THAT A SOLE SOURCE PROCUREMENT WAS INTENDED TO BE EFFECTED WITH ELECTRONICS ASSOCIATES. IT IS REPORTED THAT NAVY PROCURING OFFICIALS HAD EXPLAINED TO YOUR REPRESENTATIVES BY TELEPHONE THE REASONS FOR THE SOLE SOURCE PROCUREMENT.

B-162077, SEP. 15, 1967

BIDS - NEGOTIATION - SOLE SOURCE DECISION TO SYSTRON-DONNER CORPORATION CONCERNING PROTEST TO THE RESTRICTIVE CHARACTER OF A NEGOTIATED SOLE-SOURCE PROCUREMENT BY NAVY PURCHASING OFFICE, LOS ANGELES WITH ELECTRONICS ASSOCIATES, INC. FOR AN ANALOG COMPUTER. ADMINISTRATIVE DETERMINATION TO OBTAIN COMPUTER UNDER NEGOTIATED SOLE SOURCE PROCUREMENT ON BASIS OF NEED FOR INTERCHANGEABILITY TO USE EQUIPMENT WITH FOUR OTHER UNITS IN CURRENT USE IS A REASONABLE ONE WITHIN THE SCOPE OF DISCRETION WHICH NECESSARILY RESTS WITH THE AGENCY AND THEREFORE, ACTION WILL NOT BE DISTURBED. ALTHOUGH SUCH A PROCUREMENT MAY NOT GIVE GOVT. ADVANTAGE OF MOST ADVANCED DEVELOPMENT AVAILABLE IN FIELD, GOVT. AGENTS HAVE DUTY TO PROCURE ONLY WHAT IS REQUIRED TO MEET NEEDS IN ANY PARTICULAR INSTANCE.

TO SYSTRON-DONNER CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 14, 1967, AND ENCLOSURES, PROTESTING THE RESTRICTIVE CHARACTER OF LETTER REQUEST FOR PROPOSAL N00123-67-R-3205, ISSUED BY THE NAVY PURCHASING OFFICE, LOS ANGELES, CALIFORNIA.

THE RECORD FURNISHED BY THE CONTRACTING AGENCY SHOWS THAT A SOLE SOURCE PROCUREMENT WAS INTENDED TO BE EFFECTED WITH ELECTRONICS ASSOCIATES, INC., FOR ITS TR-48 ANALOG COMPUTER. IN A LETTER DATED JUNE 15, 1967, YOUR CORPORATION LODGED A PROTEST CONCERNING THIS MATTER WITH THE PROCURING ACTIVITY AND REQUESTED THAT A COPY OF THE REQUEST FOR PROPOSALS BE FURNISHED TO YOU TO INSURE A COMPETITIVE PROCUREMENT. IT IS REPORTED THAT NAVY PROCURING OFFICIALS HAD EXPLAINED TO YOUR REPRESENTATIVES BY TELEPHONE THE REASONS FOR THE SOLE SOURCE PROCUREMENT, AND ALSO HAD FORMALLY ADVISED YOU OF THE NECESSITY FOR A SOLE SOURCE PROCUREMENT, BUT NEVERTHELESS BY LETTER OF JUNE 26, 1967, YOU WERE INVITED TO SUBMIT A TECHNICAL PROPOSAL CONFORMING TO THE LISTED REQUIREMENTS.

UNDER SECTION 2, ITEM C OF THE LETTER REQUEST THE FOLLOWING REQUIREMENT WAS STATED:

"SECTION 2.0 DESCRIPTION OR SPECIFICATIONS

"CRITICAL FEATURES FOR TR-48 ANALOG COMPUTER (ITEM 1)

"C.AN INTERCHANGEABILITY OF PARTS WITH THE EXISTING EAI TR-48 COMPUTER MUST BE POSSIBLE. THE CRITICAL COMPONENTS THAT ARE EXPECTED TO BE INTERCHANGEABLY USED ARE:

MULTIPLIERS

SINE/CONSINE GENERATORS TYPE 16.314

ELECTRONIC COMPARATOR TYPE 40.610

PATCH PANELS FOR TR-48

DIODE FUNCTION GENERATORS TYPES 16.276, 16.275 AND 16.307.'

YOUR PROTEST IS MADE PRIMARILY ON THE GROUND THAT THE PROCURING ACTIVITY MAY NOT LEGITIMATELY SPECIFY INTERCHANGEABILITY OF PARTS TO BE A MATERIAL REQUIREMENT AND YOU ALLEGE THAT THE MERE FACT THAT SUB ASSEMBLIES OF YOUR SD-80 COMPUTER "ARE NOT INTERCHANGEABLE WITH THOSE OF THE TR-48 IN NO WAY AFFECTS THE ABILITY OF THE SD-80 TO PERFORM THE JOB FOR WHICH IT IS REQUIRED.' IT IS FURTHER ARGUED THAT: "* * * IF REQUIREMENTS OF THIS TYPE WERE ALLOWED ON ALL GOVERNMENT PROCUREMENTS, THERE WOULD BE STAGNATION. THE GOVERNMENT COULD NOT TAKE ADVANTAGE OF THE LATEST SCIENTIFIC DEVELOPMENTS SIMPLY BECAUSE SUB-ASSEMBLIES WERE INCOMPATIBLE WITH EXISTING UNITS.'

IN A REPORT TO THIS OFFICE RELATIVE TO YOUR PROTEST THE PROCURING ACTIVITY CONCLUDES THAT: "* * * THERE IS NO QUESTION ABOUT SYSTRON DONNER EQUIPMENT BEING -EQUAL- BUT IT IS NOT SUITABLE FOR THIS PARTICULAR INTENDED USE WHICH REQUIRES -COMPATIBILITY- AND INTERCHANGEABILITY- WITH EXISTING EQUIPMENT LOCATED AT THE U.S. NAVAL ORDNANCE TEST STATION, CHINA LAKE.'

IT APPEARS THAT FOUR IDENTICAL TR-48 UNITS CURRENTLY ARE IN USE AT THE TEST STATION, TOGETHER WITH THREE DES-30 COMPUTERS, ALL OF WHICH WILL BE USED, WITH THE NEW EQUIPMENT BEING PURCHASED, ON A SINGLE PROJECT CURRENTLY IN PROGRESS. IT IS CONTEMPLATED THAT IN THIS, AS WELL AS OTHER FUTURE USES, THE SHARING OF VARIOUS COMPONENTS OF THE COMPUTERS, BY BORROWING MODULES NOT BEING USED BY ONE MACHINE TO SUPPLEMENT ANOTHER, WILL OFFER SUBSTANTIAL ECONOMIES OR INCREASED BENEFITS WHICH COULD NOT BE ACHIEVED BY ADDITION OF ONE OF YOUR COMPUTERS TO THE COMPONENTS CURRENTLY IN USE. IN ADDITION THE ADMINISTRATIVE AGENCY HAS TAKEN THE POSITION THAT THE REQUIREMENT FOR INTERCHANGEABILITY OFFERS POTENTIAL SAVINGS ON SPARE AND ADDITIONAL PARTS, AND THAT TO MAKE THE SD-80 COMPUTER OFFERED BY YOU FULFILL ALL THE SAME FUNCTIONS WITH THE SAME CONVENIENCE AS WILL BE OBTAINED BY AN ADDITIONAL TR-48, FOR USE IN THE TR-48, TR-20, AND DES-30 COMBINATION WOULD REQUIRE ADDITIONAL EXPENDITURES ESTIMATED AT $12,000.

THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) REQUIRES THAT NEGOTIATED PROCUREMENTS SHALL BE ON A COMPETITIVE BASIS TO THE MAXIMUM PRACTICAL EXTENT AND IT IMPOSES RESPONSIBILITY UPON THE PURCHASING ACTIVITY TO EXAMINE THE REASONS FOR THE PROCUREMENT BEING NON COMPETITIVE AND WHENEVER POSSIBLE TO TAKE STEPS TO FOSTER COMPETITIVE CONDITIONS FOR SUBSEQUENT PROCUREMENTS. ASPR 3-102 (C). HOWEVER, THERE IS ALSO FOR CONSIDERATION IN THIS CASE THE GENERAL RULE THAT THE DETERMINATION OF THE GOVERNMENT'S NEEDS AND THE METHOD OF ACCOMODATING SUCH NEEDS IS PRIMARILY THE RESPONSIBILITY OF THE PROCURING ACTIVITY, AND IN THE ABSENCE OF EVIDENCE OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR THE ACTION TAKEN WE ARE NOT REQUIRED TO OBJECT TO SAME. 40 COMP. GEN. 35, 38. THAT RULE IS PARTICULARLY PERTINENT WHERE THE PROCUREMENT IS FOR EQUIPMENT OF A HIGHLY SPECIALIZED SCIENTIFIC NATURE AND THE DETERMINATIONS MUST BE BASED ON EXPERT TECHNICAL OPINION. B 159540, JANUARY 11, 1967, 46 COMP. GEN. ---. IN ADDITION, WE HAVE HELD THAT THE CIRCUMSTANCES IN WHICH EQUIPMENT WILL BE UTILIZED, INCLUDING CONSIDERATION OF THE INTERCHANGEABILITY OF SPARE PARTS, CAN BE DETERMINATIVE IN A PROPER CASE. 40 COMP. GEN. 458.

IN VIEW OF THE PARTICULAR CIRCUMSTANCES INVOLVED IN THIS CASE, THE POSITION TAKEN BY THE ADMINISTRATIVE AGENCY CONCERNING THE MATERIALITY OF THE REQUIREMENT FOR INTERCHANGEABLE COMPONENTS APPEARS TO BE REASONABLE AND WITHIN THE SCOPE OF DISCRETION WHICH MUST NECESSARILY REST WITH THAT AGENCY. WE THEREFORE CONCLUDE THAT A LEGALLY SUFFICIENT BASIS EXISTS TO SUPPORT THE ACTION PROPOSED TO BE TAKEN BY THE NAVY IN THIS MATTER.

WITH REGARD TO YOUR OBJECTION THAT THE PROPOSED ACTION DOES NOT PERMIT THE GOVERNMENT TO TAKE ADVANTAGE OF THE LATEST SCIENTIFIC DEVELOPMENTS, THERE IS NO QUESTION AS TO THE GOVERNMENT'S RIGHT TO PROCURE ARTICLES INCORPORATING THE MOST ADVANCED DEVELOPMENTS AVAILABLE WHERE THE NEED THEREFOR EXISTS, BUT THE GOVERNMENT ALSO HAS THE RIGHT, AND IT IS GENERALLY THE DUTY OF ITS OFFICERS, TO PROCURE ONLY WHAT IS REQUIRED TO MEET ITS EXISTING NEEDS IN ANY PARTICULAR INSTANCE.