B-171663, MAY 20, 1971

B-171663, MAY 20, 1971

PUBLIC EXIGENCY - AMENDED DETERMINATION AND FINDINGS IN VIEW OF NAVAIR'S AMENDED DETERMINATION AND FINDINGS CITING THE PUBLIC EXIGENCY NEGOTIATION AUTHORITY OF 10 U.S.C. 2304(A)(2) THE COMP. GEN. WILL IMPOSE NO LEGAL OBJECTION TO THE AWARD OF A CONTRACT TO RAYTHEON COMPANY FOR TWO UHF COHERENT RADAR SYSTEMS UTILIZING THE TRAVELLING WAVE TUBE APPROACH. UPON RECONSIDERATION OF 50 COMP. GEN. --- (B-171663, APRIL 19, 1971) WHEREIN IT WAS RECOMMENDED THAT THE NAVY HOLD FURTHER NEGOTIATIONS WITH ALL OFFERORS IN A COMPETITIVE RANGE, INCLUDING SYLVANIA AND GENERAL DYNAMICS, DUE TO THE URGENCY OF OBTAINING A COHERENT RADAR SYSTEM AND IN LIGHT OF AMENDED DETERMINATIONS AND FINDINGS THAT ONLY RAYTHEON PRESENTLY OFFERS THE DESIRED CHARACTERISTICS, A CONTRACT MAY BE AWARDED TO RAYTHEON.

TO MR. SECRETARY:

ON APRIL 26, 1971, REPRESENTATIVES OF THE NAVAL AIR SYSTEMS COMMAND (NAVAIR) MET WITH REPRESENTATIVES OF OUR OFFICE TO REQUEST RECONSIDERATION OF OUR DECISION 50 COMP. GEN. --- (B-171663, APRIL 19, 1971), WHEREIN WE RECOMMENDED THAT FURTHER NEGOTIATIONS BE CONDUCTED WITH ALL OFFERORS WITHIN A COMPETITIVE RANGE IN CONNECTION WITH THE PROCUREMENT OF TWO UHF COHERENT RADAR SYSTEMS UNDER NAVAIR'S REQUEST FOR QUOTATIONS N00019-70-Q- 0195. THE CIRCUMSTANCES LEADING TO OUR RECOMMENDATION FOR FURTHER NEGOTIATIONS ARE FULLY STATED IN THE DECISION OF APRIL 19, 1971, AND WILL NOT BE REPEATED HERE.

IN ACCORDANCE WITH OUR REQUEST, THE ACTING COUNSEL, NAVAIR, BY LETTER DATED APRIL 29, 1971, WITH ENCLOSURE, STATED THE BASIS FOR THE REQUEST. COPIES OF THIS LETTER WERE MADE AVAILABLE TO THE INTERESTED PARTIES FOR COMMENT, AND REPLIES WERE RECEIVED BY LETTERS DATED MAY 5 AND MAY 6, 1971, RESPECTIVELY, FROM GENERAL DYNAMICS AND SYLVANIA ELECTRONICS PRODUCTS, INC., THROUGH ITS COUNSEL, SELLERS, CONNER & CUNEO.

IT IS NAVAIR'S POSITION THAT FURTHER NEGOTIATIONS WITH ALL PARTIES WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT. IT IS SAID THAT NAVAIR IS NOW DEFINITELY PREDISPOSED TO THE RAYTHEON COMPANY'S TRAVELLING WAVE TUBE (TWT) APPROACH, THEREBY RENDERING THE APPROACHES OFFERED BY SYLVANIA AND GENERAL DYNAMICS TECHNICALLY UNACCEPTABLE. THE ACTING COUNSEL'S LETTER FURTHER SUGGESTS THAT IT WOULD BE FUTILE TO CONSIDER REVISED TECHNICAL AND PRICE PROPOSALS BASED ON A TWT APPROACH FROM SYLVANIA AND GENERAL DYNAMICS BECAUSE, IN NAVAIR'S JUDGMENT, ONLY RAYTHEON HAS THE ABILITY TO PERFORM ON THE BASIS OF A TWT SYSTEM; THAT IS, THE RISKS INVOLVED IN AN AWARD OF A CONTRACT TO RAYTHEON ARE FAR LESS WHEN PROBABLE PERFORMANCE AND COST ARE CONSIDERED THAN AN AWARD TO EITHER SYLVANIA OR GENERAL DYNAMICS. IN THIS REGARD, A MEMORANDUM FROM THE CHAIRMAN OF THE SOURCE SELECTION ADVISORY COUNCIL DATED APRIL 29, 1971, STATES THAT:

"3. FEASIBILITY OF PERMITTING ALL OFFERORS TO REVISE THEIR TECHNICAL AND COST PROPOSALS. RAYTHEON, AS THE DEVELOPER OF THE TWT, IS IN POSSESSION OF THE HIGH DEGREE OF WORKING KNOWLEDGE OF THAT TUBE WHICH IS NECESSARY TO TRANSLATE ITS EXISTENCE INTO PRACTICAL APPLICATION. IN OUR JUDGEMENT, SYLVANIA AND GENERAL DYNAMICS COULD NOT BEGIN TO APPROACH RAYTHEON'S COMPETENCE IN THIS AREA, WHICH IS BASED UPON SOME SEVEN TO EIGHT YEARS OF EXPERIENCE. WE ARE CONVINCED THAT NO OTHER FIRM COULD PERFORM THIS TASK WITH THE DEGREE OF CONFIDENCE IN ULTIMATE SUCCESS, BOTH TECHNICALLY AND COST-WISE, AND AS QUICKLY AS RAYTHEON PRESENTLY CAN. THIS SYSTEM SHOULD BE AS RELIABLE AS THE STATE OF THE ART PERMITS IN ORDER TO MINIMIZE DOWN- TIME. IN OUR JUDGEMENT, THIS CAN BEST BE DONE BY RAYTHEON BECAUSE OF ITS EXPERIENCE.

"4. NEED. THE SYSTEM SHOULD BE DEVELOPED, FABRICATED, AND INSTALLED AS QUICKLY AS POSSIBLE IN ORDER TO MINIMIZE COST, BOTH TANGIBLE AND INTANGIBLE, RESULTING FROM INTERFERENCE WITH THE RECIPIENT SHIPS' OPERATIONAL SCHEDULES. ITS URGENCY IS CONTINUING IN NATURE." MOREOVER, IT IS URGED THAT NAVAIR'S JUDGMENT MUST BE VIEWED IN LIGHT OF THE URGENCY OF OBTAINING THE COHERENT RADAR SYSTEM (CRS).

IN REPLY, BOTH SYLVANIA AND GENERAL DYNAMICS MAINTAINS THAT GENERAL ELECTRIC, NOT RAYTHEON, IS IN THE BEST POSITION TO SATISFY CRS REQUIREMENTS BY VIRTUE OF ITS EXPERIENCE IN THE DESIGN AND DEVELOPMENT OF THE PERIMETER ACQUISITION RADAR (PAR) FOR WHICH RAYTHEON DEVELOPED THE TWT NOW PROPOSED FOR THE CRS SYSTEM. EACH URGES THAT WITH GENERAL ELECTRIC AS ITS SUBCONTRACTOR IT CAN DELIVER THE CRS SYSTEM SOONER THAN REQUIRED, EVEN ACCOUNTING FOR ANY DELAY NECESSITATED BY RESOLICITATION. SPECIFICALLY, GENERAL DYNAMICS STATES IN ITS LETTER OF MAY 5, 1971, THAT IT IS POSSIBLE TO SHORTEN DELIVERY BY TWO OR MORE MONTHS.

SINCE, AS COUNSEL FOR SYLVANIA CORRECTLY OBSERVES, NAVAIR'S POSITION IS, IN EFFECT, A SOLE-SOURCE DETERMINATION, CONDITIONED WE MIGHT ADD BY THE URGENCY OF OBTAINING THE CRS SYSTEM, WE INFORMALLY REQUESTED THAT NAVAIR REASSESS ITS POSITION IN LIGHT OF THE REPRESENTATIONS MADE BY SYLVANIA AND GENERAL DYNAMICS. BY LETTER DATED MAY 14, 1971, WE WERE FURNISHED A COPY OF AN AMENDED DETERMINATION & FINDINGS (D&F), EXECUTED ON MAY 14, 1971, BY THE ASSISTANT COMMANDER FOR CONTRACTS, NAVAIR, IN HIS CAPACITY AS CONTRACTING OFFICER, WHICH CITES THE PUBLIC EXIGENCY NEGOTIATION AUTHORITY OF 10 U.S.C. 2304 (A) (2) IN PREFERENCE TO THE AUTHORITY OF 10 U.S.C. 2304 (A) (10) TO NEGOTIATE WHEN IT IS IMPRACTICABLE TO OBTAIN COMPETITION. THE D & F PROVIDES IN PERTINENT PART, AS FOLLOWS:

"2. (U) THIS PROCUREMENT WAS INITIATED PURSUANT TO THE AUTHORITY OF SECRETARIAL D&F NO. 0695-70 IN APRIL 1970. THE CIRCUMSTANCES SURROUNDING THIS PROCUREMENT HAVE SO RADICALLY CHANGED SINCE THAT TIME THAT THE SAID D&F NO LONGER ACCURATELY REFLECTS AND DEPICTS THE MOST COGENT REASONS FOR NEGOTIATING THE PROPOSED CONTRACT, AS MEASURED BY THE CRITERIA SET FORTH IN 10 U.S.C. 2304(A).

"4. (U) THE TECHNICAL APPROACH WHICH WAS PROPOSED BY THE RAYTHEON COMPANY, KNOWN AS THE TRAVELING WAVE TUBE (TWT) APPROACH, UTILIZES TRANSMITTER TECHNIQUES AND COMPONENTS, INCLUDING TRANSMITTER TUBES OF THE TRAVELING WAVE VARIETY, WHICH HAVE BEEN PREVIOUSLY DEVELOPED AND PRODUCED. IN ADDITION, THE PARTICULAR TRANSMITTER TUBE PROPOSED BY THE RAYTHEON COMPANY, IN COMBINATION WITH ITS PROPOSED TRANSMITTER, OFFERS UNIQUE ADVANTAGES TO THE PROPOSED COHERENT RADAR SYSTEM, SUCH AS LOWER RISK, HIGHER MTBF AND LONGER SERVICE LIFE THAN OTHER PROPOSED TECHNICAL APPROACHES.

"5. (U) THERE IS AT PRESENT ONLY ONE OTHER TRANSMITTER WHICH HAS BEEN DESIGNED TO INCORPORATE THE PARTICULAR TWT TUBE OFFERED BY RAYTHEON. THAT TRANSMITTER IS KNOWN AS THE PAR-TWT TRANSMITTER AND IT IS MANUFACTURED BY THE GENERAL ELECTRIC COMPANY. THE COGNIZANT NAVAL AIR SYSTEMS COMMAND (NAVAIR) TECHNICAL PERSONNEL HAVE CONSIDERED THE PAR TWT TRANSMITTER, AND HAVE MET WITH REPRESENTATIVES OF THE GENERAL ELECTRIC COMPANY TO DISCUSS ITS USE. THEY HAVE CONCLUDED THAT THE PAR TWT TRANSMITTER AS PRESENTLY CONFIGURED CANNOT BE PHYSICALLY ACCOMODATED WITHIN THE SPACE AVAILABLE IN THE ARIS SHIPS, AND THAT IF THE PAR-TWT TRANSMITTER WAS TO BE USED, IT WOULD ACCORDINGLY BE NECESSARY TO EXTENSIVELY MODIFY THAT TRANSMITTER. MOREOVER, REPRESENTATIVES OF THE GENERAL ELECTRIC COMPANY HAVE STATED THAT PAR TWT TRANSMITTERS WOULD NOT BE AVAILABLE UNTIL SOME TWELVE (12) TO FOURTEEN (14) MONTHS AFTER RECEIPT OF A CONTRACT, AND THEN ONLY IF THOSE TRANSMITTERS WERE TO BE DELIVERED IN THEIR PRESENT CONFIGURATION. BECAUSE OF THESE FACTORS, THE COGNIZANT NAVAIR TECHNICAL PERSONNEL ARE OF THE OPINION THAT ANY OFFEROR WHO MIGHT UTILIZE THE GENERAL ELECTRIC PAR-TWT TRANSMITTER TECHNICAL APPROACH WOULD NEED AT LEAST SIX (6) MONTHS MORE THAN RAYTHEON TO COMPLETE THE TASK. MOREOVER, IT IS MOST CONSERVATIVELY ESTIMATED THAT AN ADDITIONAL THREE MONTHS WOULD PASS BEFORE A CONTRACT COULD BE AWARDED TO ANY OFFEROR IF THIS PROCUREMENT SHOULD BE RECYCLED SO AS TO AFFORD THE OPPORTUNITY TO THOSE WHO MIGHT WISH TO PROPOSE THE GENERAL ELECTRIC PAR TWT TECHNICAL APPROACH."

IN VIEW OF THIS DETERMINATION, WE WILL INTERPOSE NO LEGAL OBJECTION TO THE AWARD OF A CONTRACT TO RAYTHEON UNDER THE SUBJECT REQUEST FOR QUOTATIONS.