B-171647, APR 2, 1971

B-171647: Apr 2, 1971

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IS A MATTER OF DISCRETION WHICH THE COMP. WILL NOT UPSET. TO LING ELECTRONICS: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 5. THE PROCUREMENT WAS ORIGINALLY ADVERTISED UNDER AN INVITATION FOR BIDS WHICH REQUIRED THAT THE CONSOLE BE ALL SOLID STATE CONSTRUCTION. THE REQUIREMENT WAS CHANGED TO READ "THE EQUALIZER/ANALYZER SHALL BE ALL SOLID STATE CONSTRUCTION.". YOUR MANUFACTURER'S REPRESENTATIVE AGAIN COMPLAINED THAT THE REQUIREMENT WAS STILL RESTRICTIVE BECAUSE. AGAC WAS THE ONLY COMPANY PRODUCING A SOLID STATE UNIT. NWL PERSONNEL DETERMINED THAT SOLID STATE UNITS WERE. THE REQUIREMENT FOR A SOLID STATE UNIT WAS THEREFORE REAPPRAISED WITHIN THE CONTEXT OF THE CONTEMPLATED CONDITIONS UNDER WHICH THE EQUALIZER/ANALYZER WAS ANTICIPATED TO PERFORM AND NWL ENGINEERS CONCLUDED THAT THE ATTRIBUTES PECULIAR TO A SOLID STATE UNIT RENDERED SUCH A UNIT AN INDISPENSABLE REQUIREMENT IN THE LIGHT OF THEIR MINIMUM NEEDS.

B-171647, APR 2, 1971

BID PROTEST - SOLE SOURCE PROCUREMENT DENIAL OF PROTEST OF LING ELECTRONICS AGAINST THE AWARD OF A CONTRACT FOR 80-CHANNEL AUTOMATIC EQUALIZER/ANALYZERS ISSUED BY U.S. NAVAL WEAPONS LABORATORY, DAHLGREN, VA., ON A SOLE-SOURCE BASIS TO AGAC DERRITRON, INC. THE DETERMINATION BY NAVY ENGINEERS THAT THE ATTRIBUTES PECULIAR TO A SOLID STATE UNIT RENDERED SUCH A UNIT INDISPENSIBLE AND THUS LIMITED THE NUMBER OF SUPPLIERS TO ONE REQUIRING A SOLE-SOURCE PROCUREMENT, IS A MATTER OF DISCRETION WHICH THE COMP. GEN. WILL NOT UPSET.

TO LING ELECTRONICS:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 5, 1971, PROTESTING THE PROPOSED AWARD, ON A SOLE SOURCE BASIS, OF A CONTRACT TO AGAC DERRITRON, INC., FOR ONE OF THAT FIRM'S 80-CHANNEL AUTOMATIC EQUALIZER/ANALYZERS, MODEL RA-803, BY THE U.S. NAVAL WEAPONS LABORATORY (NWL), DAHLGREN, VIRGINIA.

THE PROCUREMENT WAS ORIGINALLY ADVERTISED UNDER AN INVITATION FOR BIDS WHICH REQUIRED THAT THE CONSOLE BE ALL SOLID STATE CONSTRUCTION. AS A RESULT OF YOUR MANUFACTURER'S REPRESENTATIVE'S CONTENTION THAT THIS RENDERED THE SPECIFICATIONS UNDULY RESTRICTIVE, THE REQUIREMENT WAS CHANGED TO READ "THE EQUALIZER/ANALYZER SHALL BE ALL SOLID STATE CONSTRUCTION." YOUR MANUFACTURER'S REPRESENTATIVE AGAIN COMPLAINED THAT THE REQUIREMENT WAS STILL RESTRICTIVE BECAUSE, OF THE THREE KNOWN MANUFACTURERS OF EQUALIZER/ANALYZER SYSTEMS OF THIS TYPE, AGAC WAS THE ONLY COMPANY PRODUCING A SOLID STATE UNIT. IN RESPONSE TO THIS COMPLAINT, NWL PERSONNEL DETERMINED THAT SOLID STATE UNITS WERE, IN FACT, RESTRICTED TO THE AGAC EQUIPMENT.

THE REQUIREMENT FOR A SOLID STATE UNIT WAS THEREFORE REAPPRAISED WITHIN THE CONTEXT OF THE CONTEMPLATED CONDITIONS UNDER WHICH THE EQUALIZER/ANALYZER WAS ANTICIPATED TO PERFORM AND NWL ENGINEERS CONCLUDED THAT THE ATTRIBUTES PECULIAR TO A SOLID STATE UNIT RENDERED SUCH A UNIT AN INDISPENSABLE REQUIREMENT IN THE LIGHT OF THEIR MINIMUM NEEDS. ACCORDINGLY, THE IFB WAS CANCELLED, AND A DETERMINATION AND FINDINGS WAS ISSUED ON DECEMBER 3, 1970, AS JUSTIFICATION FOR AUTHORIZATION TO NEGOTIATE ON A SOLE SOURCE BASIS PURSUANT TO 10 U.S.C. 2304(A)(10) AND THE IMPLEMENTING ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-210.2(I). THE DETERMINATION THAT THE PROPOSED CONTRACT WAS ONE FOR PROPERTY OR SERVICES FOR WHICH IT IS IMPRACTICABLE TO OBTAIN COMPETITION WAS REVIEWED BY HIGHER AUTHORITY PURSUANT TO ASPR 3-102(C), AND NONCOMPETITIVE NEGOTIATION WAS AUTHORIZED ON THE BASIS THAT AGAC DERRITRON, INC., WAS THE ONLY KNOWN MANUFACTURER OF THE REQUIRED SOLID STATE ITEM.

APPROVAL WAS REQUESTED AND RECEIVED FOR THE USE OF ORAL SOLICITATION IN ACCORDANCE WITH ASPR 3-501(D)(II) DUE TO A STATE OF URGENCY GENERATED BY THE NECESSITY TO MEET A VERY STRINGENT TEST SCHEDULE ASSOCIATED WITH AN APOLLO MOON SHOT, AND TO OBVIATE AN INEVITABLE DELAY IN THE DELIVERY OF THE MATERIAL THAT WOULD ENSUE FROM UTILIZATION OF A WRITTEN SOLICITATION. CONTRACT N00178-71-C-0127 WAS EXECUTED WITH AGAC ON JANUARY 28, 1971, FOR WHAT WAS CONSIDERED A FAIR AND REASONABLE PRICE OF $49,750.00, AFTER THIS OFFICE HAD BEEN INFORMED OF THE PROPOSED ACTION IN ACCORDANCE WITH ASPR 2- 407.8(B)(2).

IN YOUR LETTER OF JANUARY 5, 1971, IT IS CONTENDED THAT:

(1) THE AGAC UNIT IS NOT ALL SOLID STATE BECAUSE IT INCORPORATES CHASSIS SUCH AS AN OSCILLOSCOPE;

(2) LING'S UNIT COMBINES SOLID STATE CIRCUITRY WHERE ADVANTAGEOUS TOGETHER WITH ELECTRON TUBES FOR BEST RELIABILITY AND LOWEST MAINTENANCE COSTS; AND

(3) AT LEAST TWO OTHER VENDORS ARE CAPABLE OF SUPPLYING THIS TYPE OF EQUIPMENT ON A COMPETITIVE BASIS.

CONCERNING YOUR ASSERTION THAT THE AGAC UNIT IS NOT ALL SOLID STATE IN THAT IT INCORPORATES AN OSCILLOSCOPE, NAVY REPORTS THAT THE TERMINOLOGY "ALL SOLID STATE" WAS USED TO DENOTE TRANSISTORIZED AND INTEGRATED CIRCUITRY. IT IS FURTHER REPORTED THAT THE TERM IS UNDERSTOOD IN THE ELECTRONICS EQUIPMENT FIELD AS NOT INCLUDING OSCILLOSCOPES AND SIMILAR PARTS OF AN ITEM WHICH MAY BE REFERRED TO AND ACCEPTED BY THE INDUSTRY AS BEING OF ALL SOLID STATE CONSTRUCTION. AN EXAMPLE OF SUCH USAGE OF THE TERM IS SET OUT IN THE CASE OF TELEVISION SETS - THE PICTURE TUBES OF WHICH ARE STATED TO CORRESPOND TO THE OSCILLOSCOPE IN THE AGAC UNIT - WHERE CERTAIN SETS ARE CONSIDERED AS BEING OF ALL SOLID STATE CONSTRUCTION. IN ANY EVENT, AND IRRESPECTIVE OF WHETHER THE AGAC UNIT IS CORRECTLY CLASSIFIED AS HAVING ALL SOLID STATE CONSTRUCTION, NWL'S NEED FOR AN EQUALIZER/ANALYZER WITH FULLY TRANSISTORIZED CIRCUITRY, AS MANUFACTURED ONLY BY AGAC, IS EXPLAINED AS FOLLOWS:

"THE NAVAL WEAPONS LABORATORY HAS A NEED FOR A CAPABILITY OF PERFORMING A BROAD RANGE OF RANDOM VIBRATION TESTS ASSOCIATED WITH THE RESEARCH AND DEVELOPMENT OF NAVAL ORDNANCE AND THE ACCEPTANCE TESTING OF NAVAL ORDNANCE TO MIL-SPEC REQUIREMENTS. THE SYSTEM REQUIRED WILL BE USED TO PROVIDE THIS DIVERSIFIED CAPABILITY PRIMARILY AT TWO FIELD TEST SITES LOCATED APPROXIMATELY 10 MILES APART BY ROAD. THE EQUIPMENT WILL NOT BE HOUSED IN A LABORATORY ENVIRONMENT. IT WILL BE TEMPORARILY HOUSED IN ONE OF TWO TRAILERS LOCATED AT THE TEST SITES AND WILL BE SUBJECTED TO A WIDE RANGE OF TEMPERATURE, HUMIDITY, DUST AND SHOCK CONDITIONS. IN ADDITION TO THE SHOCK EXPOSURE FROM REPEATED HANDLING AND TRANSPORTATION, IT WILL BE SUBJECTED TO THE UNUSUAL ENVIRONMENT OF REPEATED GUN BLAST EFFECTS FROM LARGE CALIBER GUN FIRE SUCH AS THAT FROM A 5-INCH GUN. IT IS IMPERATIVE THAT WE PROCURE THE MOST RUGGED CONSTRUCTION AVAILABLE ON THE MARKET.

"IT IS A KNOWN FACT THAT TRANSISTOR CIRCUITRY IS MORE RUGGED IN A SHOCK ENVIRONMENT, SUCH AS THIS WILL EXPERIENCE, THAN CIRCUITRY WHICH EMPLOYS TUBES. ALSO, HEAT IS ALWAYS A DETERIORATING AS WELL AS AN OPERATIONALLY ADVERSE FACTOR IN ELECTRIC OR ELECTRONIC EQUIPMENT. IN ADDITION TO THE IMPROVEMENT IN RUGGEDNESS AND DECREASE IN MAINTENANCE TRUE IN GENERAL OF TRANSISTORS OVER TUBES, THE LOWER POWER CONSUMPTION ALLOWS THE USE OF SMALLER POWER COMPONENTS, AND HENCE THERE IS LESS HEAT DISSIPATION THROUGHOUT THE WHOLE SYSTEM. AN IMPROVEMENT IN PERFORMANCE STABILITY AND SYSTEM LIFE IS ACCORDINGLY EXPECTED.

"USE OF TRANSISTORIZED CONSTRUCTION AND INTEGRATED CIRCUIT COMPONENTS ALSO PERMITS A REDUCTION IN WEIGHT, SINCE THE LARGE POWER SUPPLIES, AMPLIFIERS, AND OTHER CIRCUIT COMPONENTS WHICH ADD WEIGHT ARE REPLACED.

"IN ORDER TO MEET TEST SCHEDULE REQUIREMENTS OF 'ONE-HALF DAY DOWN TIME MAXIMUM', IT IS REQUIRED THAT THE EQUIPMENT NOT EXCEED 675 POUNDS TO OPTIMIZE PORTABILITY AND EASE OF TRANSFERRING THE EQUIPMENT BETWEEN THE TWO PRIMARY CONTROL CENTERS UNDER NORMAL SAFETY PROCEDURES. ONLY ONE KNOWN MANUFACTURER PRODUCES A SYSTEM WHICH MEETS THIS REQUIREMENT THROUGH THE USE OF ALL SOLID STATE CONSTRUCTION. THE UNIT REQUESTED WEIGHS APPROXIMATELY 670 POUNDS. THE UNITS PRODUCED BY THE ONLY TWO KNOWN COMPETITORS WEIGH APPROXIMATELY 850 AND 2200 POUNDS.

"ONE OF THE TRAILERS IN WHICH THIS EQUIPMENT WILL BE USED IS EXTREMELY LIMITED IN AIR CONDITIONING CAPACITY AND CIRCULATION (HAS NO CENTRAL SYSTEM) AND WILL NOT BE CAPABLE OF DISSIPATING THE HEAT PRODUCED BY UNITS EMPLOYING TUBE TYPE CIRCUITRY. THE CLOSEST COMPETITOR IN WATTAGE TO THE SYSTEM REQUESTED REQUIRES ABOUT 7 TIMES THE POWER (HEAT) INPUT OR APPROXIMATELY 1000 WATTS AS COMPARED TO 150 WATTS. ONE THOUSAND WATTS DIFFERENCE IN POWER (HEAT) INPUT WILL REQUIRE ABOUT 4000 BTU OF AIR CONDITIONING WHICH IS NOT AVAILABLE.

"IT IS REQUIRED THAT THE EQUIPMENT BE DESIGNED SUCH THAT IT CAN BE PHYSICALLY MOVED THROUGH A 29" X 77" ENTRANCE INTO THE TRAILER IN AN UP RIGHT POSITION AND BE ROLLED INTO POSITION WITHOUT THE AID OF HANDLING EQUIPMENT. THE EQUIPMENT MUST BE DESIGNED SO THE SYSTEM CAN BE LOCATED IN A SPACE WITH DIMENSIONS OF 25" DEEP X 48" WIDE X 75" HIGH AND ALSO PROVIDE FOR NORMAL OPERATION FROM A STANDING POSITION WITH ALL COMPONENTS AT PROPER OPERATING HEIGHT. OF THE SYSTEMS PRODUCED BY THE THREE KNOWN MANUFACTURERS, ONLY THE SYSTEM REQUESTED MEETS THESE REQUIREMENTS.

"ALL THE FOREGOING ARE FACTORS NECESSARY TO MEET OUR REQUIREMENTS FOR A SYSTEM WHICH IS STATE-OF-THE-ART, STABLE IN PERFORMANCE, LOW IN MAINTENANCE, RUGGED AGAINST SHOCKS AND HANDLING, COMPACT, AND AS LIGHT AS POSSIBLE FOR MOVEMENT FROM ONE TRAILER TO ANOTHER."

WE BELIEVE THE ABOVE EXPLANATION ADEQUATELY DEMONSTRATES NWL'S NEED FOR TRANSISTORIZED CONSTRUCTION IN THE ITEM, AND SINCE TUBES ARE USED IN THE CIRCUITRY OF THE EQUALIZER/ANALYZER SYSTEMS MANUFACTURED BY YOU AND THE OTHER COMPETITOR, IT IS APPARENT THAT THOSE SYSTEMS DO NOT MEET NWL'S ESSENTIAL NEEDS.

AS A GENERAL RULE, THIS OFFICE HAS ADHERED TO THE POSITION THAT DETERMINATIONS OF THE NEEDS OF THE GOVERNMENT AND THE METHODS OF ACCOMMODATING SUCH NEEDS ARE PRIMARILY THE RESPONSIBILITY OF THE PROCURING AGENCY, AND IN THE ABSENCE OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR SUCH DETERMINATIONS WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE AGENCY. THIS RULE IS PARTICULARLY PERTINENT WHERE THE PROCUREMENT IS FOR EQUIPMENT OF A SCIENTIFIC NATURE AND THE DETERMINATIONS MUST BE BASED ON EXPERT TECHNICAL OPINION. 46 COMP. GEN. 606, 609 (1967).

AS TO THE INSTANT PROCUREMENT, WE FIND NO ADEQUATE BASIS FOR HOLDING THAT THE PURCHASE OF THE AGAC UNIT WAS NOT PREDICATED UPON A BONA FIDE DETERMINATION BY NWL PERSONNEL OF THEIR MINIMUM NEEDS UNDER EXISTING CONDITIONS. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.