B-175721(1), MAR 19, 1973

B-175721(1): Mar 19, 1973

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THE RECORD DOES NOT INDICATE THAT THE CONTRACTING OFFICER'S DETERMINATION TO SOLE-SOURCE THIS PROCUREMENT WAS IMPROPER. NOR DOES IT INDICATE THAT NASA COULD HAVE OBTAINED A BETTER TOTAL PRICE BY INCLUDING UCC IN THE PROCUREMENT. THAT REGULATION DOES NOT PRECLUDE THE AGENCY FROM DETERMINING THAT A FIRM IS THE SOLE-SOURCE OF A PARTICULAR ITEM THROUGH INFORMATION OBTAINED FROM A SOLICITATION FOR INFORMATIONAL OR PLANNING PURPOSES. INC.: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 3. THE COMPUTER SYSTEM WAS ACQUIRED TO SUPPORT THE SKYLAB MISSION IN ITS DATA PROCESSING REQUIREMENTS AT MSFC. MSFC IS RESPONSIBLE FOR THE DESIGN AND DEVELOPMENT OF THE SKYLAB ORBITAL ASSEMBLY. THE PRIMARY FUNCTION OF THE SUBJECT SYSTEM WILL BE RECEIVING AND RECORDING SKYLAB REAL TIME OR COMPRESSED DATA.

B-175721(1), MAR 19, 1973

BID PROTEST - SOLE-SOURCE AWARD - SOLICITATION FOR INFORMATIONAL OR PLANNING PURPOSES DECISION DENYING THE PROTEST OF UCC COMMUNICATION SYSTEMS, INC., (UCC), AGAINST THE SOLE-SOURCE AWARD OF A CONTRACT TO THE UNIVAC DIVISION, SPERRY RAND CORPORATION, BY THE MARSHALL SPACE FLIGHT CENTER, NASA, FOR A STAND- ALONE UNIVAC COMPUTER SYSTEM. THE RECORD DOES NOT INDICATE THAT THE CONTRACTING OFFICER'S DETERMINATION TO SOLE-SOURCE THIS PROCUREMENT WAS IMPROPER, NOR DOES IT INDICATE THAT NASA COULD HAVE OBTAINED A BETTER TOTAL PRICE BY INCLUDING UCC IN THE PROCUREMENT. ALTHOUGH, UNDER NASA PR 1.309, SOLICITATION FOR INFORMATIONAL OR PLANNING PURPOSES CANNOT BE USED IN LIEU OF AN RFP AS THE BASIS OF AWARD, THAT REGULATION DOES NOT PRECLUDE THE AGENCY FROM DETERMINING THAT A FIRM IS THE SOLE-SOURCE OF A PARTICULAR ITEM THROUGH INFORMATION OBTAINED FROM A SOLICITATION FOR INFORMATIONAL OR PLANNING PURPOSES.

TO UCC COMMUNICATION SYSTEMS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 3, 1972, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE SOLE SOURCE AWARD OF CONTRACT NAS8- 21946 TO THE UNIVAC DIVISION, SPERRY RAND CORPORATION (UNIVAC), FOR A STAND-ALONE UNIVAC 1108 (TYPE 3011-91) COMPUTER SYSTEM (WITH MULTI- PROCESSOR CAPABILITY) BY THE MARSHALL SPACE FLIGHT CENTER (MSFC), NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA).

THE COMPUTER SYSTEM WAS ACQUIRED TO SUPPORT THE SKYLAB MISSION IN ITS DATA PROCESSING REQUIREMENTS AT MSFC. MSFC IS RESPONSIBLE FOR THE DESIGN AND DEVELOPMENT OF THE SKYLAB ORBITAL ASSEMBLY, AS WELL AS THE SKYLAB SYSTEMS ENGINEERING AND INTEGRATION. THE PRIMARY FUNCTION OF THE SUBJECT SYSTEM WILL BE RECEIVING AND RECORDING SKYLAB REAL TIME OR COMPRESSED DATA, FORMULATING AND TRANSMITTING TO THE HUNTSVILLE OPERATIONS SUPPORT CENTER SYSTEM FOR REAL TIME DISPLAY AND EVALUATION, AND DATA PROCESSING FOR SKYLAB ENGINEERING ANALYSIS AND MISSION SUPPORT. IN INITIATING THIS PROCUREMENT, MSFC SUBMITTED AN ACQUISITION PLAN TO NASA HEADQUARTERS ON FEBRUARY 18, 1972, TO JUSTIFY THE REQUIREMENT FOR A STAND-ALONE UNIVAC 1108 MULTI-PROCESSOR (TYPE 3011 91). IT SHOULD BE NOTED HERE, HOWEVER, THAT THIS SYSTEM IS IN FACT A UNIT-PROCESSOR WITH MULTI-PROCESSOR CAPABILITY.

THIS PLAN INITIALLY ENVISIONED THE PURCHASE OF SOME COMPONENTS OF A UNIVAC 1108 SYSTEM LOCATED AT BELLCOMM, WASHINGTON, D.C. (BELLCOMM SYSTEM), WITH CONCURRENT UPGRADE TO A MULTI-PROCESSOR CAPABILITY. THIS SYSTEM IS OWNED BY YOUR COMPANY. IT WAS PURCHASED FROM UNIVAC PURSUANT TO A LEASE-BACK ARRANGEMENT AND WAS THEN ON LEASE BY UNIVAC TO BELLCOMM UNDER NASA CONTRACT NASW-417. MSFC SUBSEQUENTLY DECIDED NOT TO PURCHASE THE COMPONENTS OF THE BELLCOMM SYSTEM WHEN IT DISCOVERED THAT THE SYSTEM COULD NOT BE UPGRADED TO A MULTI-PROCESSOR.

THE ACQUISITION PLAN WAS APPROVED BY NASA HEADQUARTERS BY THE ASSOCIATE ADMINISTRATOR FOR TRACKING AND DATA ACQUISITION ON MARCH 2, 1972, AND BY THE DIRECTOR OF MANNED SPACE FLIGHT ON MARCH 8, 1972. THE FORMER APPROVAL STATED:

APPROVAL IS GRANTED FOR THE PURCHASE OF THE SUBJECT COMPUTER SYSTEM AS PROPOSED. HOWEVER, THIRD PARTY SOURCES FOR THE REQUIRED COMPONENTS ARE AVAILABLE, AND IT IS ESSENTIAL THAT ALL VENDORS WHO CAN PROVIDE THIS UNIVAC EQUIPMENT BE CONSIDERED. IN THIS REGARD, THE REQUIREMENT FOR UPGRADING TO A MULTI-PROCESSOR CONFIGURATION HAS NOT BEEN JUSTIFIED IN THE ACQUISITION PLAN. ACCORDINGLY, THE PRIMARY SELECTION CRITERIA MUST CONSIDER THE LOWEST OVERALL PRICE WHEN ALL FACTORS ARE CONSIDERED INCLUDING BOTH HARDWARE AND SOFTWARE COMPATIBILITY.

THE OFFICE OF MANNED SPACE FLIGHT ADVISED THAT IN SELECTING THE MAJOR PARTS OF THE CONFIGURATION, MSFC SHOULD CONSIDER TWO UNIVAC 1108 SYSTEMS: THE BELLCOMM SYSTEM AND THE SYSTEM LOCATED AT THE NAVAL WEAPONS CENTER, CHINA LAKE, CALIFORNIA (CHINA LAKE SYSTEM). THE CHINA LAKE SYSTEM IS ALSO OWNED BY YOUR COMPANY.

THUS, CONTRARY TO YOUR CONTENTION THAT THE ABOVE APPROVALS RESTRICTED THE PROCUREMENT TO THE BELLCOMM SYSTEM, MSFC WAS AUTHORIZED TO PROCURE A UNIT- PROCESSOR WITH MULTI-PROCESSOR CAPABILITY, AND WAS ADVISED TO CONSIDER SEVERAL SOURCES, INCLUDING THE BELLCOMM SYSTEM AND THE CHINA LAKE SYSTEM, IN OBTAINING THE COMPONENTS FOR THE PROCURED CONFIGURATION. MSFC WAS NOT AUTHORIZED TO PROCURE A MULTI-PROCESSOR CONFIGURATION AS SUCH.

ON MARCH 9, 1972, KNOWN SOURCES WERE SENT SOLICITATIONS IN ORDER TO TEST THE MARKET FOR THE AVAILABILITY OF THE REQUIRED CONFIGURATION. THE SOLICITATION REQUESTED INFORMATION, "FOR PLANNING PURPOSES ONLY," ON THE TOTAL COST TO THE GOVERNMENT FOR THE PURCHASE, SUPPORT AND MAINTENANCE OF A STAND-ALONE UNIVAC 1108 MULTI-PROCESSOR (TYPE 3011-91) SYSTEM. IT ALSO REQUESTED PRICES ON SOFTWARE. BY MARCH 20, 1972, RESPONSES WERE RECEIVED FROM UNIVAC, UNIVERSITY COMPUTING COMPANY (UCC), AND COMPUTER SCIENCES CORPORATION (CSC). YOUR COMPANY FURNISHED INFORMATION ON THE BELLCOMM AND CHINA LAKE SYSTEMS. AS A RESULT OF AN EXTENSIVE EVALUATION AND COMPARISON OF THESE RESPONSES TAKING INTO CONSIDERATION SUCH FACTORS AS PRICE, TECHNICAL REQUIREMENTS, COMPATIBILITY, ETC., MSFC DECIDED TO PURCHASE THE COMPLETE SYSTEM OFFERED BY UNIVAC. A DETERMINATION AND FINDINGS WAS ISSUED ON MARCH 30, 1972, AS JUSTIFICATION FOR AUTHORIZATION TO NEGOTIATE WITH UNIVAC ON A SOLE SOURCE BASIS PURSUANT TO 10 U.S.C. 2304(A)(10) AND THE IMPLEMENTING NASA PROCUREMENT REGULATION (NASA PR) 3.210-2(I). NONCOMPETITIVE NEGOTIATION WAS AUTHORIZED BY HIGHER AUTHORITY ON MARCH 31, 1972. ON MARCH 31, 1972, CONTRACT NAS8-21946 WAS AWARDED TO UNIVAC.

YOUR PROTEST IS BASED ON SEVERAL GROUNDS. FIRST, YOU QUESTION THE VALIDITY OF THE CONTRACTING OFFICER'S DETERMINATION THAT UNIVAC IS THE SOLE SOURCE FOR THE PROCUREMENT OF THE REQUIRED COMPUTER SYSTEM. SECOND, YOU CONTEND THAT NASA MADE A COSTLY MISTAKE BY AWARDING THE CONTRACT TO UNIVAC, IN THAT THE TOTAL PRICE SUBMITTED BY UNIVAC WAS HIGHER THAN THE TOTAL PRICE WOULD HAVE BEEN IF UCC HAD BEEN AWARDED A PART OF THE PROCUREMENT. THIRD, YOU QUESTION THE PROPRIETY OF THE MEANS BY WHICH THE CONTRACTING AGENCY OBTAINED PRICE AND TECHNICAL INFORMATION FROM THE KNOWN SOURCES, AND THEN SUBSEQUENTLY USED THIS INFORMATION AS THE BASIS FOR THE CONTRACT AWARD. FINALLY, YOU POINT OUT THAT MSFC CONDUCTED NEGOTIATIONS WITH UNIVAC ON A SOLE SOURCE BASIS A DAY BEFORE THE DETERMINATION AND FINDINGS WAS SIGNED AND 2 DAYS BEFORE THE JUSTIFICATION FOR NONCOMPETITIVE PROCUREMENT WAS IMPLEMENTED.

WHILE YOU CONTEST THE SOLE SOURCE DETERMINATION, IT APPEARS FROM THE RECORD THAT NEITHER OF THE SYSTEMS UPON WHICH UCC FURNISHED INFORMATION IN RESPONSE TO THE SOLICITATION FOR INFORMATION WAS A TYPE 3011-91 SYSTEM AS REQUIRED BY THE SOLICITATION. THE BELLCOM SYSTEM IS A TYPE 3011-99 AND THE CHINA LAKE SYSTEM IS A TYPE 3011-02. FURTHER, IT IS OUR UNDERSTANDING THAT NEITHER OF THESE SYSTEMS IS UPGRADABLE TO MULTI PROCESSOR CAPABILITY. WE RECOGNIZE THAT WHEN THE ACQUISITION PLAN WAS PREPARED, MSFC CONTEMPLATED PURCHASING SOME COMPONENTS OF THE BELLCOM SYSTEM. THAT WAS A TIME WHEN MSFC WAS UNDER THE BELIEF THAT THE BELLCOM SYSTEM COULD BE UPGRADED TO MULTI-PROCESSOR CAPABILITY. MSFC SUBSEQUENTLY DISCOVERED, HOWEVER, THAT THIS SYSTEM WAS NOT IN FACT UPGRADABLE. THAT NEITHER THE BELLCOMM NOR THE CHINA LAKE SYSTEM IS UPGRADABLE IS ESTABLISHED BY APPENDIX XVIII OF UNIVAC'S FISCAL YEAR 1972 FEDERAL SUPPLY SCHEDULE PRICE LIST, WHICH PROVIDES THAT UNIVAC 1108 UNIT-PROCESSOR WITH SERIAL NUMBERS 101 THROUGH 131 CANNOT BE CONVERTED TO MULTI-PROCESSORS (THE SERIAL NUMBERS OF THE BELLCOMM SYSTEM AND THE CHINA LAKE SYSTEM ARE 129 AND 121 RESPECTIVELY). IT WOULD APPEAR THEREFORE THAT TO UPGRADE THESE SYSTEMS TO HAVE MULTI PROCESSOR CAPABILITY WOULD REQUIRE AN EXTENSIVE REPLACEMENT OF PARTS, AND SUBSTANTIAL COSTS. MOREOVER, THE "EVALUATION SUMMARY OF RESPONSES" STATES THAT TO PURCHASE EITHER OF THE UCC HARDWARE CONFIGURATIONS WOULD REQUIRE SEPARATE PROCUREMENT ACTION TO OBTAIN ADDITIONAL ITEMS FROM UNIVAC AND THAT SUCH A COURSE OF ACTION WOULD POSE A PROBLEM OF SYSTEM INSTALLATION AND INTEGRATION RESPONSIBILITY. WE CANNOT CONCLUDE THAT THE CONTRACTING OFFICER'S DETERMINATION TO SOLE SOURCE THE PROCUREMENT WAS IMPROPER IN THE CIRCUMSTANCES.

WITH RESPECT TO YOUR CONTENTION THAT NASA COULD HAVE OBTAINED A BETTER TOTAL PRICE BY INCLUDING UCC IN THE PROCUREMENT, WE NOTE THAT THE DECISION TO NEGOTIATE WITH UNIVAC WAS NOT BASED ON PRICE ALONE, BUT ALSO UPON THE BASIS THAT SPLITTING THE PROCUREMENT WOULD POSE AN INSTALLATION AND INTEGRATION PROBLEM. IN ANY EVENT, THE COST ANALYSIS ATTACHED TO YOUR LETTER OF OCTOBER 3, 1972, ATTEMPTING TO ESTABLISH THAT THE TOTAL COST OF YOUR COMPUTER SYSTEM IS $5,895 LOWER THAN UNIVAC'S, IS NOT PERSUASIVE. YOU QUOTE $8,700 AS THE AMOUNT NECESSARY TO ACHIEVE MULTI-PROCESSOR CAPABILITY IN THE BELLCOMM SYSTEM. THIS IS THE CONTRACT PRICE THAT UNIVAC HAS PROVIDED AS THE COST OF UPGRADING THE UNIVAC 1108 UNIT-PROCESSOR TYPE 3011-91 TO MULTI-PROCESSOR CAPABILITY. HOWEVER, IN VIEW OF THE INFORMATION IN THE FOREGOING PARAGRAPH, IT IS NOT APPARENT THAT $8,700 WOULD BE THE COST OF MODIFYING YOUR EQUIPMENT.

WITH RESPECT TO YOUR CONCERN OVER THE METHOD USED BY THE CONTRACTING AGENCY TO OBTAIN PRICE AND TECHNICAL INFORMATION, THE RECORD SHOWS THAT THE SOLICITATION REQUESTED, "FOR PLANNING PURPOSES ONLY," THE TOTAL COST TO THE GOVERNMENT FOR A UNIVAC 1108 MULTI-PROCESSOR (TYPE 3011-91) SYSTEM. THE RESPONSES WERE EVALUATED AND COMPARED, AFTER WHICH IT WAS DETERMINED THAT UNIVAC WAS THE SOLE SOURCE FOR THE REQUIRED ITEM. BASED ON SUBSEQUENT NEGOTIATIONS, UNIVAC WAS AWARDED THE CONTRACT.

PARAGRAPH 1.309 OF THE NASA PR PROVIDES AS FOLLOWS:

1.309 SOLICITATIONS FOR INFORMATION OR PLANNING PURPOSES. IT IS THE GENERAL POLICY OF THE NASA TO SOLICIT BIDS, PROPOSALS OR QUOTATIONS ONLY WHERE THERE IS A DEFINITE INTENTION TO AWARD A CONTRACT OR PURCHASE ORDER. HOWEVER, IN SOME CASES SOLICITATION FOR INFORMATIONAL OR PLANNING PURPOSES MAY BE JUSTIFIED. INVITATIONS FOR BIDS AND REQUESTS FOR PROPOSALS WILL NOT BE USED FOR THIS PURPOSE. REQUESTS FOR QUOTATIONS MAY BE ISSUED FOR INFORMATIONAL OR PLANNING PURPOSES ONLY WITH PRIOR APPROVAL OF THE PROCUREMENT OFFICER. IN SUCH CASES, THE REQUEST FOR QUOTATION SHALL CLEARLY STATE ITS PURPOSE AND, IN ADDITION, THE FOLLOWING STATEMENT IN CAPITAL LETTERS SHALL BE PLACED ON THE FACE OF THE REQUEST: THE GOVERNMENT DOES NOT INTEND TO AWARD A CONTRACT ON THE BASIS OF THIS REQUEST FOR QUOTATION, OR OTHERWISE PAY FOR THE INFORMATION SOLICITED. THE FOREGOING DOES NOT PROHIBIT THE ALLOWANCE, IN ACCORDANCE WITH 15.205- 3, OF THE COST OF PREPARING SUCH QUOTATIONS.

IT APPEARS THAT UNDER THE PROVISIONS OF NASA PR 1.309, SOLICITATIONS FOR INFORMATIONAL OR PLANNING PURPOSES CANNOT BE USED IN LIEU OF A REQUEST FOR PROPOSALS AS THE BASIS OF AN AWARD. HOWEVER, THIS REGULATION DOES NOT PRECLUDE AN AGENCY FROM DETERMINING, ON THE BASIS OF INFORMATION OBTAINED FROM A SOLICITATION FOR INFORMATIONAL OR PLANNING PURPOSES, THAT A COMPANY IS THE SOLE SOURCE OF A PARTICULAR ITEM, AND THEN AWARDING A CONTRACT TO THAT COMPANY ON THE BASIS OF SUBSEQUENT NEGOTIATIONS. IN THIS SITUATION, THE SOLICITATION IS NOT BEING USED AS A BASIS OF AN AWARD, BUT RATHER AS A DEVICE TO DETERMINE THE AVAILABILITY OF SOURCES FOR THE SUBJECT ITEM. NOTE, HOWEVER, THAT THE SOLICITATION IN THE INSTANT CASE DID NOT CONTAIN A NOTICE STATING THAT THE GOVERNMENT DOES NOT INTEND TO AWARD A CONTRACT ON THE BASIS OF THE SOLICITATION. WHILE RECOGNIZING THAT THIS OMISSION CONSTITUTED A DEVIATION FROM THE ABOVE REGULATION, CLEARLY IT WAS MERELY A MATTER OF FORM RATHER THAN OF SUBSTANCE, AND AS SUCH DOES NOT CONSTITUTE GROUNDS FOR UPHOLDING THE PROTEST.

REGARDING YOUR COMPLAINT THAT NEGOTIATIONS WERE CONDUCTED WITH UNIVAC ON A SOLE SOURCE BASIS A DAY BEFORE THE DETERMINATION AND FINDINGS WAS SIGNED, PARAGRAPH 3.306 OF NASA PR PROVIDES FOR THE PREPARATION OF THE DETERMINATION AND FINDINGS PRIOR TO THE ISSUANCE OF A REQUEST FOR PROPOSALS OR QUOTATIONS. AS TO YOUR SIMILAR COMPLAINT CONCERNING THE JUSTIFICATION FOR NONCOMPETITIVE PROCUREMENT, NASA PR DIRECTIVE NO. 71 2, DATED MARCH 17, 1971, IN AMENDING PARAGRAPH 3.306-1 OF NASA PR, REQUIRES SUCH JUSTIFICATION "WHEN ONLY ONE SOURCE IS TO BE SOLICITED." THUS, THE LATE EXECUTION OF THE DETERMINATION AND FINDINGS AND THE JUSTIFICATION WAS CONTRARY TO THE PROCUREMENT REGULATIONS. FOR THE REASON ABOVE NEITHER DO THESE DEVIATIONS CONSTITUTE A BASIS FOR SUSTAINING THE PROTEST.

ACCORDINGLY, THE PROTEST IS DENIED.

HOWEVER, WE ARE BRINGING THE ABOVE DEFICIENCIES TO THE ATTENTION OF THE ADMINISTRATOR OF NASA AND SUGGESTING THAT APPROPRIATE ACTION BE TAKEN TO PREVENT A RECURRENCE. A COPY OF THIS LETTER IS ENCLOSED.