B-162381, MAR. 4, 1968

B-162381: Mar 4, 1968

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SUCH DETERMINATION IS WITHIN THE PROVINCE OF THE PROCURING AGENCY AND WILL BE UPHELD BY THE COMP. YOUR PROTEST IS BASED ESSENTIALLY UPON THE ALLEGATION THAT NO SUBSTANTIAL JUSTIFICATION EXISTS FOR PROCURING A COMPUTER FROM EAI ON A SOLE SOURCE BASIS SINCE IT IS YOUR BELIEF THAT SYSTRON-DONNER ALSO PRODUCES A STANDARD MODEL WHICH SATISFIES THE FUNCTIONAL REQUIREMENT OF THE RFP. A CONTRACT IS PROPOSED TO BE NEGOTIATED WITH EAI BECAUSE OF IMPRACTICABILITY OF OBTAINING COMPETITION FOR THE GOVERNMENT'S REQUIREMENTS. THE PROPOSED CONTRACT WILL PROVIDE FOR A PACE TR-20 AMPLIFIER ANALOG COMPUTER TO BE USED AS A TRAINING DEVICE FOR THE ENGINEERING DEPARTMENT OF THE UNITED STATES NAVAL ACADEMY. THE ITEM TO BE PROCURED UNDER THE PROPOSED CONTRACT IS PROPRIETARY TO ELECTRONIC ASSOCIATES.

B-162381, MAR. 4, 1968

BIDS - NEGOTIATION - SOLE SOURCE DECISION DENYING PROTEST OF SYSTRON-DONNER CORP. AGAINST AWARD OF NEGOTIATED CONTRACT TO ELECTRONIC ASSOCIATES, INC. (EAI) FOR COMPUTER FOR NAVAL ACADEMY. IN ABSENCE OF ANY ERROR IN THE TECHNICAL DETERMINATION OF THE PROCURING AGENCY THAT THE PROCUREMENT OF A COMPUTER OTHER THAN THE ONE PROCURED ON A SOLE-SOURCE BASIS WOULD IMPAIR INSTRUCTIONAL PROCESSES AT THE NUCLEAR ENGINEERING LABORATORY AND REQUIRE ADDITIONAL TIME, SUCH DETERMINATION IS WITHIN THE PROVINCE OF THE PROCURING AGENCY AND WILL BE UPHELD BY THE COMP. GEN. 46 COMP. GEN. 606.

TO BURLINGAME ASSOCIATES, LTD.:

WE REFER TO THE PROTEST FILED WITH THIS OFFICE ON BEHALF OF SYSTRON DONNER CORPORATION AGAINST THE PROPOSED AWARD OF A CONTRACT FOR A TR 20, PACE ANALOG COMPUTER TO ELECTRONIC ASSOCIATES, INC. (EAI), UNDER REQUEST FOR PROPOSALS (RFP) NO. N00161-68-R-0030 ISSUED BY THE UNITED STATES NAVAL ACADEMY.

YOUR PROTEST IS BASED ESSENTIALLY UPON THE ALLEGATION THAT NO SUBSTANTIAL JUSTIFICATION EXISTS FOR PROCURING A COMPUTER FROM EAI ON A SOLE SOURCE BASIS SINCE IT IS YOUR BELIEF THAT SYSTRON-DONNER ALSO PRODUCES A STANDARD MODEL WHICH SATISFIES THE FUNCTIONAL REQUIREMENT OF THE RFP. YOU ALSO QUESTION THE ACADEMY'S WILLINGNESS TO ADEQUATELY INVESTIGATE THE EQUIPMENT AVAILABLE FROM SYSTRON-DONNER.

PURSUANT TO THE AUTHORITY OF 10 U.S.C. 2304 (A) (10), AND BASED UPON THE CONTRACTING OFFICER'S ,DETERMINATION AND FINDINGS" (D-AND-F) MADE PURSUANT TO 10 U.S.C. 2310, A CONTRACT IS PROPOSED TO BE NEGOTIATED WITH EAI BECAUSE OF IMPRACTICABILITY OF OBTAINING COMPETITION FOR THE GOVERNMENT'S REQUIREMENTS. THE CONTRACTING OFFICER'S D-AND-F IN THIS CASE SETS FORTH THE FOLLOWING FACTS AND CIRCUMSTANCES: "FINDINGS "1. THE PROPOSED CONTRACT WILL PROVIDE FOR A PACE TR-20 AMPLIFIER ANALOG COMPUTER TO BE USED AS A TRAINING DEVICE FOR THE ENGINEERING DEPARTMENT OF THE UNITED STATES NAVAL ACADEMY, ANNAPOLIS, MARYLAND. "2. THE ITEM TO BE PROCURED UNDER THE PROPOSED CONTRACT IS PROPRIETARY TO ELECTRONIC ASSOCIATES, INCORPORATED, WEST LONG BRANCH, NEW JERSEY. THIS INSTRUMENT WILL BE USED FOR TRAINING OF MIDSHIPMEN AND MUST BE IDENTICAL IN ALL RESPECTS OF OPERATION AND DESIGN TO THE PACE TR-20 ANALOG COMPUTER WHICH IS ALREADY ON BOARD. FAILURE OF THE EQUIPMENT PURCHASED TO BE IDENTICAL WITH THAT WHICH IS PRESENTLY INSTALLED WOULD SERIOUSLY IMPAIR INSTRUCTIONAL AND LEARNING PROCESSES AND WOULD REQUIRE ADDITIONAL TIME OF THE STUDENT AND THE PROFESSOR TO INSURE OPTIMUM BENEFITS DERIVED FROM CLASSROOM TIME ALLOTTED. "3. THE USE OF FORMAL ADVERTISING IS IMPRACTICABLE BECAUSE ONLY THE ITEM MANUFACTURED BY ELECTRONICS ASSOCIATES, INCORPORATED, WEST LONG BRANCH, NEW JERSEY POSSESSES A COMBINATION OF ALL THE CRITICAL MANDATORY FEATURES AND CAPABILITIES FOR THE INTENDED APPLICATION.'

IN A SUPPLEMENTAL REPORT TO THIS OFFICE THE SUPERINTENDENT, U.S. NAVAL ACADEMY, EXPANDED FURTHER UPON THE ACADEMY'S ESSENTIAL REQUIREMENTS, AS FOLLOWS:

"2. AT PRESENT, THE NUCLEAR ENGINEERING LABORATORY HAS ONE ANALOG COMPUTER, AN EAI TR-20, COMPLETE WITH THE SPECIAL NETWORKS DISCUSSED IN THE ABOVE PARAGRAPH. THE PROPOSED ANALOG COMPUTER IS TO BE USED SIDE-BY- SIDE IN CONJUNCTION WITH THE EXISTING COMPUTER IN THE SAME LABORATORY, AT THE SAME TIME, BY THE SAME GROUP OF STUDENTS. WHILE THE STUDENTS COULD LEARN TO PROGRAM BOTH COMPUTERS AND THE INSTRUCTOR COULD MAKE SEPARATE HANDOUT SHEETS FOR EACH COMPUTER FOR EACH ASSIGNMENT, THE USE OF TWO COMPLETELY DIFFERENT ANALOG COMPUTERS IN THE SAME LABORATORY IS THE LEAST EFFICIENT MODE OF INSTRUCTION WITH REGARD TO UTILIZATION OF INSTRUCTOR AND MIDSHIPMAN TIME. OPTIMUM UTILIZATION OF INSTRUCTOR AND MIDSHIPMAN TIME IS ESSENTIAL TO THE EFFECTIVE OPERATION OF THIS LABORATORY. LESSON SHEETS ARE WRITTEN FOR EACH COMPUTER LESSON. IF TWO TYPES OF COMPUTER WERE USED, LESSON PREPARATION TIME AND DEMONSTRATION TIME WOULD BE DOUBLED. HENCE, INSTRUCTOR TIME WOULD NOT BE MOST EFFICIENTLY UTILIZED. THE MIDSHIPMEN WOULD BE REQUIRED TO UNDERSTAND THE OPERATING CHARACTERISTICS OF TWO DIFFERENT COMPLEX ELECTRONIC COMPUTERS. THIS WOULD REDUCE THEIR TOTAL PRODUCTIVE TIME IN THE ALLOTTED LABORATORY PERIODS. THEREFORE, THE SPECIFIC NEEDS OF THIS ESSENTIAL LABORATORY WOULD BE FRUSTRATED AND THE OVERALL EFFECTIVENESS OF THE NUCLEAR ENGINEERING LABORATORY WOULD BE REDUCED IF THE PROPOSED ANALOG COMPUTER WERE NOT COMPATIBLE WITH THE PROGRAMMING FEATURES OF THE ANALOG COMPUTER ALREADY IN THE LABORATORY.

"B. MEETING EDUCATIONAL REQUIREMENTS

"1. MANY OF THE MIDSHIPMEN HAVE HAD PRIOR FORMAL INSTRUCTION IN THE OPERATION AND PATCHING OF EAI TR-20'S IN THE WEAPONS DEPARTMENT OF THE U.S. NAVAL ACADEMY. UTILIZATION OF SIMILAR EQUIPMENT IN THE NUCLEAR ENGINEERING LABORATORY PROVIDES STANDARDIZATION SINCE IT ALLOWS THE STUDENT TO BECOME PROFICIENT WITH ONE TYPE OF PATCH PANEL. THERE ARE SIGNIFICANT DIFFERENCES BETWEEN SYSTRON-DONNER AND EAI TR-20 PATCH PANELS.

"2. THE NUCLEAR ENGINEERING PROGRAM DOES NOT TEACH THE THEORY AND PRINCIPLES OF ANALOG COMPUTATION; INSTEAD, THE ANALOG COMPUTER IS USED AS A MEANS TO AN END RATHER THAN AN END IN ITSELF. AFTER LEARNING THE OPERATION OF ONE MACHINE THE STUDENT CAN CONCENTRATE ON THE PROBLEMS TO BE SOLVED FOR THE REMAINDER OF HIS LIMITED LABORATORY PERIOD.' IN A SUBSEQUENT LETTER TO THIS OFFICE THE SUPERINTENDENT HAS ESTIMATED THAT AN ADDITIONAL 50 HOURS IN INSTRUCTION PREPARATION TIME DISTRIBUTED OVER TWO SEMESTERS WOULD BE REQUIRED FOR PREPARATION OF LESSON PLANS IF A SECOND COMPUTER OTHER THAN A TR-20 IS PROCURED. IT IS ALSO STATED THAT UTILIZATION OF TWO DIFFERENT EQUIPMENTS WOULD EQUATE TO AN ADDITIONAL CLASS LOAD OF 5.5 HOURS BEING IMPOSED UPON EACH MIDSHIPMAN PARTICIPATING IN TWO SEMESTERS OF THE REACTOR AND KINETIC'S PHYSICS COURSES. IN VIEW THEREOF HE HAS CONCLUDED THAT SUCH ADDITIONAL TIME CANNOT BE ABSORBED WITHIN PRESENT INSTRUCTIONAL TIME CONSTRAINTS.

WITH REGARD TO THE ACADEMY'S AWARENESS OF THE EQUIPMENT AND COMPUTERS WHICH WOULD BE AVAILABLE FROM SYSTRON-DONNER, THE SUPERINTENDENT REPORTS THAT:

"D. PARTICIPATION OF U.S. NAVAL ACADEMY IN COMPUTER EVALUATION

"1. * * * THE ENGINEERING DEPARTMENT OF THE U.S. NAVAL ACADEMY HAS ESTABLISHED AN ANALOG COMPUTER COMMITTEE WHICH IS RESPONSIBLE FOR STUDYING THE INTENDED USE OF A COMPUTER AND RECOMMENDING THE MOST DESIRABLE COMPUTER FOR THE INTENDED PURPOSE. THE CHAIRMAN OF THE COMMITTEE HAS PERSONALLY HAD PROGRAMMING EXPERIENCE WITH FIVE DIFFERENT ANALOG COMPUTERS MANUFACTURED BY FIVE DIFFERENT MAJOR COMPANIES, EAI AND SYSTRON-DONNER INCLUDED. FURTHERMORE, FOUR ANALOG COMPUTER MANUFACTURERS, AT THE REQUEST OF THE U.S. NAVAL ACADEMY, HAVE GIVEN DEMONSTRATIONS AT THE U.S. NAVAL ACADEMY WITHIN THE PAST YEAR -- EAI AND SYSTRON-DONNER INCLUDED -- DURING WHICH MEMBERS OF THE COMMITTEE WERE MADE COGNIZANT OF THE CAPABILITIES OF AVAILABLE EQUIPMENTS AND COMPONENTS.

"2. BASED UPON THE INTENDED USE OF THE COMPUTER, THE ANALOG COMPUTER COMMITTEE UNANIMOUSLY RECOMMENDED THAT THE NUCLEAR ENGINEERING LABORATORY OBTAIN AN ADDITIONAL EAI TR-20. * * *"

YOUR LETTER DATED OCTOBER 18, 1967, TAKES A CONTRARY POSITION TO THAT STATED IN THE D-AND-F. YOU STATE THAT SYSTRON-DONNER'S LONG EXPERIENCE WITH MANY HIGH SCHOOLS POSSESSING VARIOUS TYPES OF ANALOG COMPUTERS CONFIRMS THAT ADDITIONAL TIME IS NOT REQUIRED FOR LESSON PREPARATION AND DEMONSTRATION. YOU ALSO ALLEGE THAT STUDENTS AND INSTRUCTORS HAVE NOT DEMONSTRATED A REQUIREMENT FOR ADDITIONAL RETRAINING NOR HAS CLASSROOM CONFUSION RESULTED FROM THE USE OF DIFFERENT COMPUTERS. WHILE YOUR LETTER OF JANUARY 10, 1968, ALSO POINTS OUT THAT ALL GOOD TEXT BOOKS ON ANALOG COMPUTER PROGRAMMING ARE WRITTEN WITHOUT REGARD TO ANY PARTICULAR ANALOG COMPUTER, THIS WOULD NOT APPEAR TO MAKE IMPROPER THE NAVY'S DESIRE TO BASE ITS TRAINING PROGRAM UPON THE USE OF ONLY ONE, SINCE WE ARE TOLD THAT THE NUCLEAR ENGINEERING PROGRAM AT THE ACADEMY DOES NOT PROVIDE FORMAL INSTRUCTION IN THE THEORY AND PRINCIPLES OF ANALOG COMPUTATION.

THIS OFFICE HAS HELD THAT A DETERMINATION OF THE GOVERNMENT'S NEEDS IS THE RESPONSIBILITY OF THE AGENCY INVOLVED. 40 COMP. GEN. 35, 38. MOREOVER, WHERE THE AUTHORITY TO NEGOTIATE A CONTRACT APPLIES AND IS USED, THE CONTRACTING AGENCY IS PERMITTED A BROAD RANGE OF DISCRETION AND LEGALLY MAY TAKE INTO CONSIDERATION ALL FACTORS AFFECTING THE NEEDS AND INTERESTS OF THE GOVERNMENT. THESE RULES ARE PARTICULARLY PERTINENT WHERE THE PROCUREMENT IS FOR EQUIPMENT OF A HIGHLY SPECIALIZED NATURE AND THE DETERMINATION MUST BE BASED ON EXPERT TECHNICAL OPINION. 46 COMP. GEN. 606, 609.

AS A MATTER OF POLICY OUR OFFICE WILL ACCEPT THE JUDGMENT OF THE TECHNICAL PERSONNEL OF THE AGENCY INVOLVED WHERE THERE IS A DIFFERENCE OF EXPERT TECHNICAL OPINION, UNLESS SUCH JUDGMENT IS SHOWN TO BE CLEARLY AND UNMISTAKABLY IN ERROR. WE ARE UNABLE TO SEE ANY SUCH ERROR IN THE TECHNICAL DETERMINATIONS UNDERLYING THE SUPERINTENDENT'S CONCLUSION THAT THE PURCHASE OF A DIFFERENT COMPUTER WOULD IMPAIR INSTRUCTIONAL AND LEARNING PROCESSES OF THE NUCLEAR ENGINEERING LABORATORY AND REQUIRE ADDITIONAL TIME WHICH COULD NOT BE ABSORBED WITHIN THE PRESENT INSTRUCTIONAL TIME CONSTRAINTS. FURTHERMORE, IN VIEW OF THE CONTRACTING OFFICER'S DISCRETION IN NEGOTIATED PROCUREMENTS, WE BELIEVE IT IS WITHIN THE PROPER EXERCISE OF SUCH DISCRETION TO CONSIDER THE ACADEMY'S ESSENTIAL REQUIREMENT IN THE OPERATION OF THIS PARTICULAR LABORATORY.

WE THEREFORE FIND NO LEGAL BASIS UPON WHICH WE MAY OBJECT TO AWARD OF THIS CONTRACT, AND YOUR PROTEST IS DENIED.