B-180577, MAY 7, 1974

B-180577, MAY 7, 1974

PROTEST AGAINST ARMY'S SOLE-SOURCE AWARD FOR 2,000 RADIO FREQUENCY POWER TEST SETS IS DENIED, SINCE ADEQUATE SPECIFICATIONS WERE NOT AVAILABLE TO PERMIT COMPETITIVE PROCUREMENT AND ARMY WAS AWARE OF ONLY ONE FIRM CAPABLE OF SUPPLYING THE ITEMS NEEDED.

TO ELECTRO IMPULSE, INC.:

ELECTRO IMPULSE, INC. (ELECTRO IMPULSE), HAS PROTESTED AGAINST THE SOLE- SOURCE AWARD OF A CONTRACT TO BIRD ELECTRONICS CORPORATION (BIRD) BY THE U.S. ARMY ELECTRONICS COMMAND UNDER RFP DAAB07-74-R-0462. THE PROCUREMENT WAS FOR 2,000 TEST SETS, RADIO FREQUENCY POWER AN/URM-182, WHICH CONSIST OF BIRD'S WATTMETER MODEL 4110 MODIFIED WITH ACCESSORIES.

THE SOLE-SOURCE NEGOTIATED PROCUREMENT WAS JUSTIFIED UNDER 10 U.S.C. 2304(A)(10) AND ASPR 3-210.2(I) AND 3-210.2(XIII), WHICH PERMIT NEGOTIATION WHEN IT IS IMPRACTICABLE TO OBTAIN COMPETITION BECAUSE SUPPLIES CAN BE OBTAINED FROM ONLY ONE FIRM AND BECAUSE IT IS IMPOSSIBLE TO DRAFT ADEQUATE SPECIFICATIONS OR ANY OTHER ADEQUATE DETAILED DESCRIPTION OF THE REQUIRED SUPPLIES. THE PROTESTER CLAIMS, HOWEVER, THAT IT IS IN POSSESSION OF THE REQUISITE SPECIFICATION AND THAT IT CAN DELIVER THE DESIRED UNITS IN ACCORDANCE WITH THE GOVERNMENT'S DELIVERY SCHEDULE.

THE CONTRACTING OFFICER REPORTS THAT HE IS NOT AWARE OF ANY MANUFACTURER OTHER THAN BIRD WHICH HAS OR CAN PRODUCE AN ITEM COMPARABLE TO THAT COVERED BY THE SOLICITATION, AND THAT HE HAS BEEN PROVIDED NO INFORMATION BY THE PROTESTER AS TO AN EQUIVALENT UNIT WHICH MEETS THE ARMY'S TECHNICAL REQUIREMENTS. HE FURTHER REPORTS THAT BECAUSE THE ARMY DOES NOT HAVE DETAILED SPECIFICATIONS (THE BIRD MODEL 4110, DEVELOPED BY BIRD AT ITS OWN EXPENSE, IS PROTECTED BY PATENTS), IT COULD NOT COMPLETELY EVALUATE AN ITEM OFFERED AS AN EQUIVALENT TO THE BIRD MODEL WITHOUT EXTENSIVE TESTING WHICH WOULD COST $50,000 AND DELAY ISSUANCE OF THE TEST SETS TO THE FIELD BY 8 TO 12 MONTHS. WITH RESPECT TO THE PROTESTER'S ASSERTION THAT IT HAS A COPY OF THE NECESSARY SPECIFICATION, THE ARMY STATES THAT WHAT ELECTRO IMPULSE HAS "ONLY DESCRIBES THE TECHNICAL REQUIREMENTS AND PHYSICAL CHARACTERISTICS OF THE BIRD MODEL 4110 ***. IT LACKS CONSTRUCTION DETAILS (NO DRAWINGS) AND THE NECESSARY INFORMATION ON THE REQUIRED MATERIALS, PROCESSES, ETC. AND/OR THEIR RELATED SPECIFICATIONS."

WE THINK THE ARMY POSITION, WHICH IS SUPPORTED BY THE RECORD AND NOT REFUTED BY THE PROTESTER, PRESENTS AN ADEQUATE BASIS FOR THE SOLE SOURCE PROCUREMENT. SINCE ADEQUATE DATA WERE NOT AVAILABLE FOR A COMPETITIVE PROCUREMENT AND SINCE TIME DID NOT REASONABLY PERMIT THE ARMY TO TRY TO EXAMINE OTHER FIRMS' PRODUCTS IN ORDER TO SATISFY ITS CURRENT NEEDS, WE HAVE NO BASIS FOR TAKING EXCEPTION TO THE LEGALITY OF AN AWARD TO THE ONLY FIRM WHICH THE ARMY BELIEVES CAPABLE OF PRODUCING AN ACCEPTABLE ITEM. SEE B-178536, NOVEMBER 27, 1973 AND CASES CITED THEREIN. THEREFORE, THE PROTEST IS DENIED. THE ARMY REPORTS, HOWEVER, THAT ALTHOUGH ITS EFFORTS TO OBTAIN "THE DATA NECESSARY TO SUPPORT A COMPETITIVE PROCUREMENT HAVE NOT BEEN SUCCESSFUL TO DATE, *** EFFORTS WILL BE CONTINUED TO MAKE FUTURE PROCUREMENTS COMPETITIVE."