B-166325, MAY 28, 1969

B-166325: May 28, 1969

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TO LASER SYSTEMS AND ELECTRONICS INC: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 27. THE PURCHASE REQUEST UPON WHICH THE RFQ WAS BASED LISTED THE RAYTHEON COMPANY AS THE ONLY SOURCE AND PROVIDED THAT CONTRACT NO. A CONTRACT IS PROPOSED TO BE NEGOTIATED WITH RAYTHEON BECAUSE FORMAL ADVERTISING IS NOT FEASIBLE AND PRACTICABLE FOR THIS PROCUREMENT SINCE IT IS IMPOSSIBLE TO DESCRIBE IN PRECISE DETAIL OR BY DEFINITE DRAWINGS AND SPECIFICATIONS THE NATURE OF THE WORK TO BE DONE. THE PROCUREMENT IS FOR (I) EXPERIMENTAL AND THEORETICAL INVESTIGATION OF THE OPERATIONAL CHARACTERISTICS OF THE CONFIGURATION OF A ONE-DIMENSION LASER DOPPLER SYSTEM DEVELOPED UNDER CONTRACT NAS8 21293 WITH RAYTHEON.

B-166325, MAY 28, 1969

TO LASER SYSTEMS AND ELECTRONICS INC:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 27, 1969, PROTESTING AGAINST THE PROPOSED AWARD OF A CONTRACT FOR LASER DOPPLER INSTRUMENTATION TO THE RAYTHEON COMPANY UNDER REQUEST FOR QUOTATIONS (RFQ) NO. 1-9-75- 10078 DATED JANUARY 22, 1969, ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, GEORGE C. MARSHALL SPACE FLIGHT CENTER (MSFC), HUNTSVILLE, ALABAMA.

THE PURCHASE REQUEST UPON WHICH THE RFQ WAS BASED LISTED THE RAYTHEON COMPANY AS THE ONLY SOURCE AND PROVIDED THAT CONTRACT NO. NAS8-21293 WITH THAT COMPANY BE AMENDED TO INCLUDE "LASER DOPPLER INSTRUMENTATION.'

PURSUANT TO THE AUTHORITY OF 10 U.S.C. 2304 (A) (11), 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 RAYTHEON BECAUSE FORMAL ADVERTISING IS NOT FEASIBLE AND PRACTICABLE FOR THIS PROCUREMENT SINCE IT IS IMPOSSIBLE TO DESCRIBE IN PRECISE DETAIL OR BY DEFINITE DRAWINGS AND SPECIFICATIONS THE NATURE OF THE WORK TO BE DONE. THE CONTRACTING OFFICER'S D-AND-F DATED JANUARY 21, 1969, SET FORTH THE FOLLOWING FACTS AND CIRCUMSTANCES:

"1. THE PROCUREMENT IS FOR (I) EXPERIMENTAL AND THEORETICAL INVESTIGATION OF THE OPERATIONAL CHARACTERISTICS OF THE CONFIGURATION OF A ONE-DIMENSION LASER DOPPLER SYSTEM DEVELOPED UNDER CONTRACT NAS8 21293 WITH RAYTHEON, (11) DESIGN, FABRICATION, AND INTERFACING OF A ONE-DIMENSIONAL LASER DOPPLER SYSTEM TO A THREE-DIMENSIONAL WIND TUNNEL SYSTEM PREVIOUSLY DEVELOPED BY RAYTHEON UNDER CONTRACT NAS8 20413 AND (III) PROVIDES ASSISTANCE TO GOVERNMENT PERSONNEL IN THE DEFINITION, APPLICATION, AND LIMITATIONS OF LASER DOPPLER INSTRUMENTATION TO WIND TUNNEL MEASUREMENTS.

"2. THE CONTRACTOR WILL BE REQUIRED TO PERFORM EXPERIMENTAL AND THEORETICAL INVESTIGATIONS OF THE BEST METHODS TO BE USED FOR REMOTE MEASUREMENT OF WIND VELOCITIES AND ASSOCIATE TURBULENCE. RESEARCH EFFORT WILL BE REQUIRED IN THE DESIGN AND MOUNTING OF A 1-D SYSTEM INTERFACING WITH AN EXISTING 3-D SYSTEM IN SUCH A MANNER AS TO FUNCTION SIMULTANEOUSLY AND PRECISELY IN ORDER TO OBTAIN HIGHLY ACCURATE MEASUREMENTS OF AIR AND GAS FLOW.

"3. FORMAL ADVERTISING IS NOT FEASIBLE AND PRACTICABLE FOR THIS PROCUREMENT BECAUSE IT IS IMPOSSIBLE TO DESCRIBE IN PRECISE DETAIL OR BY DEFINITE DRAWINGS AND SPECIFICATIONS THE NATURE OF THE WORK TO BE DONE; ONLY THE ULTIMATE OBJECTIVES AND THE GENERAL SCOPE OF THE WORK CAN BE OUTLINED.'

IN A MEMORANDUM DATED MARCH 14, 1969, TO THE PURCHASING OFFICE, THE DIRECTOR, AERO-ASTRODYNAMICS LABORATORY, MSFC, EXPANDED FURTHER UPON THE NECESSITY FOR A SOLE-SOURCE PROCUREMENT FROM RAYTHEON, AS FOLLOWS:

"APPROXIMATELY $10,000 (OF THE $40,000 TOTAL) OF THE PROPOSED WORK WITH RAYTHEON IS CONCERNED WITH THE DESIGN AND FABRICATION OF A ONE DIMENSIONAL LASER DOPPLER SYSTEM FOR APPLICATION TO WIND TUNNEL AND JET TYPE FLOWS. THIS SYSTEM WILL BE USED IN CONJUNCTION WITH A THREE DIMENSIONAL WIND TUNNEL SYSTEM PREVIOUSLY DEVELOPED BY RAYTHEONON CONTRACT NAS8-20413. CONCEIVABLY, A COMPETITOR COULD BUILD THIS SYSTEM; HOWEVER, INTERFACING PROBLEMS COULD ARISE WHICH WOULD PREVENT PRECISE AND SIMILAR MEASUREMENTS SIMULTANEOUSLY WITH BOTH THE ONE DIMENSIONAL AND THREE-DIMENSIONAL SYSTEMS IN OPERATION. CONTINUITY OF THE OVERALL PROGRAM MIGHT VERY WELL BE IN JEOPARDY.

"ALSO, THERE WILL BE ABOUT 35 PERCENT, OR $15,000, OF THE PROPOSED WORK APPLIED TO APPLICATIONS OF THESE THREE-DIMENSIONAL AND ONE DIMENSIONAL LASER DOPPLER SYSTEMS TO CERTAIN WIND TUNNEL EXPERIMENTS AT MSFC. THE UNDERSTANDING THAT THIS CONTRACTOR HAS OF THE PRESENT INSTRUMENTATION SHOULD BE USED IN THE DESIGN OF PARTICULAR EXPERIMENTS AND IN THE ANALYSIS OF THE DATA. RAYTHEON POSSESSES THESE UNIQUE CAPABILITIES. OVERALL, THIS COMPANY HAS ALREADY EXPENDED $247,000 UNDER CONTRACT NAS8-20413 IN DEVELOPING LASER DOPPLER SYSTEMS WITH APPLICATION TO TURBULENT VELOCITY TESTS HERE AT MSFC AND AT THE ARNOLD ENGINEERING DEVELOPMENT CENTER AND TO THE MEASUREMENT OF ATMOSPHERIC WIND VELOCITY. FEASIBILITY STUDIES WERE ALSO PERFORMED IN THE FIELD OF CLEAR AIR TURBULENCE UTILIZING THIS TECHNIQUE.

"THE OTHER $15,000 WILL GO TO EXPEND EFFORTS TO OBTAIN MORE AND BETTER REFINED ATMOSPHERIC WIND VELOCITY MEASUREMENTS UTILIZING A COMPLETELY DIFFERENT LASER DOPPLER SYSTEM, WHICH HAS BEEN BUILT BY RAYTHEON ON CONTRACT NAS8-21293. THIS WAS THE FIRST OPTICAL MEASUREMENT OF ATMOSPHERIC WIND VELOCITY UTILIZING LASER DOPPLER TECHNIQUES. THIS ADDITIONAL EFFORT WILL GO TO DEFINE THE LIMITATIONS OF THIS ATMOSPHERIC WIND VELOCITY SYSTEM.

"THEREFORE, BECAUSE OF THE ABOVE REASONS, IT IS INCONCEIVABLE AND IMPRACTICAL FROM A TECHNICAL POINT OF VIEW, TO SOLICIT PROPOSALS COMPETITIVELY FOR THE PROCUREMENT OF THE ONE-DIMENSIONAL LASER DOPPLER INSTRUMENT. IT IS RECOMMENDED TO LIMIT THE SOLICITATION OF THIS COMPLETE SCOPE OF WORK TO RAYTHEON ONLY.'

THE CONTRACTING OFFICER IN HIS MEMORANDUM OF MARCH 20, 1969, SUMMARIZED THE NECESSITY FOR THE SELECTION OF RAYTHEON AS THE SOLE SOURCE FOR THIS PROCUREMENT AS FOLLOWS:

"IN ADDITION TO THE INFORMATION FURNISHED IN THE ADDENDUM PERTAINING TO INTERFACE PROBLEMS, FURTHER DISCUSSION WITH COGNIZANT TECHNICAL PERSONNEL REVEALED THAT THE MAJOR AREAS OF INTERFACE IN ORDER OF IMPORTANCE INVOLVE MECHANICAL, OPTICAL, AND ELECTRICAL COMPATABILITY WITH THE EXISTING THREE- DIMENSIONAL SYSTEM. FOR EXAMPLE, THE EXISTING THREE-DIMENSIONAL SYSTEM IS CAPABLE OF MANEUVERING WITHIN A 1/1000 OF AN INCH TOLERANCE. THE COUPLING OF THE PROPOSED ONE DIMENSIONAL SYSTEM TO THE EXISTING SYSTEM WILL REQUIRE THE SAME TOLERANCE CAPABILITY OF THE COMBINED SYSTEM. DEFINITIVE DATA AND DRAWINGS ADEQUATE TO EXPLAIN INTERFACE REQUIREMENTS FOR PURPOSES OF COMPETITIVE PROCUREMENT DO NOT PRESENTLY EXIST, NOR COULD THEY BE DEVELOPED IN TIME TO AVOID SCHEDULE SLIPPAGES WHICH WOULD IMPACT PLANNED EXPERIMENTS AT MSFC AND COMMITMENTS TO OTHER PROGRAMS. THE PROPOSED SCOPE OF WORK WILL REQUIRE RAYTHEON TO FURNISH ONE OR MORE INTERFACE SCHEMES FOR THE PARTICULAR MEASUREMENTS AND EXPERIMENTS BEING CONSIDERED AT MSFC BASED UPON THEIR UNIQUE AND SPECIALIZED KNOWLEDGE OF THEIR EQUIPMENT CHARACTERISTICS AND CAPABILITIES.'

THE RFQ, ISSUED ONLY TO THE RAYTHEON COMPANY, REQUESTED QUOTATIONS ON A COST-PLUS-A-FIXED-FEE BASIS TO FURNISH LASER DOPPLER INSTRUMENTATION. THE SCOPE OF WORK SET OUT THEREIN CONTEMPLATES THE EXTENSION AND EXPANSION OF WORK ALREADY BEING PERFORMED BY RAYTHEON FOR MSFC UNDER CONTRACT NO. NAS8- 21293, DATED DECEMBER 5, 1967, WHICH REQUIRES, IN BRIEF, THE DEVELOPMENT OF A LASER DOPPLER HETRODYNE TECHNIQUE FOR THE MEASUREMENT OF ATMOSPHERIC WIND VELOCITY AND TURBULENCE AS RELATED TO THE SATURN VEHICLE ENVIRONMENT, AND THE FABRICATION OF A ONE-DIMENSIONAL LASER DOPPLER SYSTEM FOR WIND VELOCITY EXPERIMENTS. RAYTHEON'S PROPOSAL COVERING THE ADDITIONAL WORK WAS RECEIVED AT MSFC ON FEBRUARY 12, 1969. HOWEVER, AWARD BY MSFC TORAYTHEON IS BEING WITHHELD PENDING COMPLETION OF NEGOTIATIONS WITH THAT COMPANY AND OUR DECISION ON YOUR PROTEST.

AS A RESULT OF THE PUBLICATION IN THE COMMERCE BUSINESS DAILY, JANUARY 27, 1969, OF A SYNOPSIS OF THE PROCUREMENT, YOU PROTESTED TO THE PROCURING ACTIVITY THE SOLE-SOURCE NEGOTIATION WITH RAYTHEON STATING THAT YOUR COMPANY IS IN A POSITION TO SUPPLY THE REQUIRED LASER DOPPLER INSTRUMENT. THE SYNOPSIS OF THE PROCUREMENT AS PUBLISHED IN THE COMMERCE BUSINESS DAILY READS, IN PERTINENT PART, AS FOLLOWS:

"A -- DESIGN, DEVELOPMENT, FABRICATION, AND DELIVERY OF A LASER DOPPLER INSTRUMENT FOR WIND VELOCITY MEASUREMENT -- ONE JOB -- DELIVERIES TO HUNTSVILLE, ALABAMA -- 1-9-75-10078Q -- RFQ WILL BE ISSUED ON OR ABOUT JANUARY 23, 1969 ONLY TO RAYTHEON COMPANY, 528 BOSTON POST ROAD, BOSTON, MASSACHUSETTS 01776 -- SMALL BUSINESSES OR OTHERS INTERESTED IN SUB- CONTRACTING OPPORTUNITIES SHOULD MAKE DIRECT CONTACT WITH RAYTHEON.'

IT IS REPORTED THAT AT A MEETING HELD ON FEBRUARY 4, 1969, REPRESENTATIVES OF THE PURCHASING OFFICE EXPLAINED TO MR. WADKOWSKI, YOUR LOCAL REPRESENTATIVE, AND MR. LEE MCDANIEL, YOUR MARKETING MANAGER, THE SCOPE OF THE WORK COVERED BY THE RFQ AND THE RATIONALE SUPPORTING THE JUSTIFICATION FOR THE NONCOMPETITIVE PROCUREMENT. IT WAS POINTED OUT TO YOUR REPRESENTATIVES THAT THE DESIGN AND FABRICATION OF THE ADDITIONAL LASER DOPPLER SYSTEM IN ITSELF WAS ONLY A SMALL PORTION OF THE TOTAL EFFORT REQUIRED BY THE RFQ. HOWEVER, YOU MAINTAIN THAT "THIS PROCUREMENT IS INDEED FOR A SINGLE PIECE OF GEAR, THE OUTPUT OF WHICH IS TO GIVE POINT VELOCITY IN A GAS FLOW, AN APPLICATION TO WHICH WE HAVE PUT MANY OF OUR LASER ANEMOMETER INSTRUMENTS.' AS POINTED OUT ABOVE, THE SCOPE OF THE WORK COVERED BY THE RFQ REQUIRES NOT ONLY THE DESIGN AND FABRICATION OF THE ADDITIONAL ONE-DIMENSIONAL LASER DOPPLER SYSTEM BUT, ALSO, THE INTERFACING OF SUCH EQUIPMENT WITH AN EXISTING THREE-DIMENSIONAL LASER DOPPLER SYSTEM DEVELOPED BY RAYTHEON UNDER CONTRACT NO. NAS8-20413. THE CONTRACTING OFFICER STATES THAT THE RAYTHEON THREE-DIMENSIONAL SYSTEM IS THE ONLY ONE OF ITS KIND KNOWN TO BE IN EXISTENCE. IN VIEW OF THE JUSTIFICATIONS AND EXPLANATIONS FURNISHED BY MSFC, WE FIND NO BASIS TO QUESTION THE CONTRACTING OFFICER'S DETERMINATION THAT RAYTHEON IS THE ONLY FIRM PRESENTLY QUALIFIED TO PERFORM THE WORK DESCRIBED IN THE RFQ. ALTHOUGH THE PROCUREMENT REGULATIONS EMPHASIZE THE NECESSITY FOR OBTAINING MAXIMUM COMPETITION, THE PRIMARY OBJECTIVE OF THE RFQ IS TO REFLECT THE GOVERNMENT'S NEEDS. NECESSARILY, THE PROCUREMENT AGENCY HAS THE PRIMARY RESPONSIBILITY FOR DRAFTING SPECIFICATINGS WHICH REFLECT THOSE NEEDS, AND WHERE THE LEGITIMATE NEEDS OF THE GOVERNMENT CAN BE SATISFIED FROM ONLY A SINGLE SOURCE, WE DO NOT THINK THE LAW REQUIRES THAT THOSE NEEDS BE COMPROMISED TO OBTAIN COMPETITION. B 161700, SEPTEMBER 5, 1967.

UNDER 10 U.S.C. 2310 (B), THE D-AND-F UNDER 10 U.S.C. 2304 (A) (11) IS MADE FINAL, AND IS THEREFORE NOT SUBJECT TO QUESTION BY OUR OFFICE. WHILE THE RESEARCH AND DEVELOPMENT EXCEPTION IN 10 U.S.C. 2304 (A) (11) DOES NOT, IN AND OF ITSELF, AUTHORIZE SOLE-SOURCE PROCUREMENT, THE VALID USE OF THAT EXCEPTION RESERVES A CONSIDERABLE AMOUNT OF DISCRETION IN THE CONTRACTING OFFICER, AND OUR OFFICE WILL NOT QUESTION A CONTRACTING OFFICER'S DECISION TO MAKE A SOLE-SOURCE AWARD UNLESS IT IS CLEAR FROM THE WRITTEN RECORD THAT HE HAS ABUSED THE DISCRETION VESTED IN HIM. SEE 44 COMP. GEN. 590; B-158134, MARCH 3, 1966; B-161224, AUGUST 9, 1967; AND B- 163099, APRIL 19, 1968.

OUR OFFICE HAS HELD THAT A DETERMINATION OF THE GOVERNMENT'S NEEDS IS THE RESPONSIBILITY OF THE AGENCY INVOLVED. 40 COMP. GEN. 35, 38; 17 ID. 554. MOREOVER, WHERE THE AUTHORITY TO NEGOTIATE 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 SPECILIZED NATURE AND THE DETERMINATION MUST BE BASED ON EXPERT TECHNICAL OPINION. 46 COMP. GEN. 606, 609.

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