B-180586, B-180608, JAN 6, 1975

B-180586,B-180608: Jan 6, 1975

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REQUEST THAT DECISIONS DENYING PROTESTS OF ARMY'S ALLEGEDLY RESTRICTIVE APT REQUIREMENTS IN RFP'S FOR COMPUTER ASSISTED PROGRAMMING FOR NUMERICAL CONTROL MACHINES BE RECONSIDERED IS DENIED. INASMUCH AS IT HAS NOT BEEN DEMONSTRATED BY PROBATIVE EVIDENCE THAT DECISIONS INVOLVED ANY MISTAKE OF FACT NOR HAVE ANY PERSUASIVE LEGAL AUTHORITIES OR PRECEDENTS BEEN ADVANCED WHICH WOULD REASONABLY SUPPORT ANY ERROR OF LAW. 2. GAO WILL NOT CONDUCT INDEPENDENT REVIEW OF ARMY'S FUTURE MINIMUM NEEDS REGARDING COMPUTER ASSISTED PROGRAMMING FOR NUMERICAL CONTROL MACHINES. SINCE THIS IS NOT PROPERLY A FUNCTION OF GAO NOR THAT OF POTENTIAL SUPPLIERS. RATHER IS ARMY'S FUNCTION INASMUCH AS IT IS FAMILIAR WITH CONDITIONS UNDER WHICH SUPPLIES.

B-180586, B-180608, JAN 6, 1975

1. REQUEST THAT DECISIONS DENYING PROTESTS OF ARMY'S ALLEGEDLY RESTRICTIVE APT REQUIREMENTS IN RFP'S FOR COMPUTER ASSISTED PROGRAMMING FOR NUMERICAL CONTROL MACHINES BE RECONSIDERED IS DENIED, INASMUCH AS IT HAS NOT BEEN DEMONSTRATED BY PROBATIVE EVIDENCE THAT DECISIONS INVOLVED ANY MISTAKE OF FACT NOR HAVE ANY PERSUASIVE LEGAL AUTHORITIES OR PRECEDENTS BEEN ADVANCED WHICH WOULD REASONABLY SUPPORT ANY ERROR OF LAW. 2. GAO WILL NOT CONDUCT INDEPENDENT REVIEW OF ARMY'S FUTURE MINIMUM NEEDS REGARDING COMPUTER ASSISTED PROGRAMMING FOR NUMERICAL CONTROL MACHINES, SINCE THIS IS NOT PROPERLY A FUNCTION OF GAO NOR THAT OF POTENTIAL SUPPLIERS, BUT RATHER IS ARMY'S FUNCTION INASMUCH AS IT IS FAMILIAR WITH CONDITIONS UNDER WHICH SUPPLIES, EQUIPMENT, AND SERVICES HAVE BEEN USED IN THE PAST AND HOW THEY ARE TO BE USED IN THE FUTURE.

MANUFACTURING DATA SYSTEMS INCORPORATED:

BY LETTER DATED OCTOBER 18, 1974, COUNSEL FOR MANUFACTURING DATA SYSTEMS INCORPORATED (MDSI) REQUESTED THAT WE RECONSIDER OUR DECISIONS B-180608, JUNE 28, 1974, AND B-180586, JULY 9, 1974, IN WHICH WE DENIED MDSI'S PROTESTS OF THE UNITED STATES ARMY'S ALLEGEDLY RESTRICTIVE APT REQUIREMENTS IN THE PROCUREMENT OF COMPUTER ASSISTED PROGRAMMING FOR ITS NUMERICAL CONTROLNC) MACHINES. IN B-180608, SUPRA, WE FOUND THAT THE ARMY HAD A REASONABLE BASIS FOR THE REQUIREMENT IN REQUEST FOR PROPOSALS (RFP) DAAA25-74-R-0323, ISSUED AT FRANKFORD ARSENAL, PHILADELPHIA, PENNSYLVANIA, THAT THE PROCURED NC TAPE PREPARATION SYSTEM INCLUDE THE "SOFTWARE NECESSARY TO PROVIDE APT COMPATIBLE PROCESSING CAPABILITY." SIMILARLY, IN B-180586, SUPRA, WE FOUND THAT THE ARMY HAD A REASONABLE BASIS FOR THE APT LANGUAGE REQUIREMENTS IN RFP DAAA22-74-R-0073, ISSUED AT WATERVLIET ARSENAL, WATERVLIET, NEW YORK, FOR COMMERCIAL COMPUTER PROCESSING SERVICE FOR NC MACHINES.

APT (AUTOMATIC PROGRAMMED TOOLS) IS A UNIVERSAL AND HIGHLY VERSATILE PART PROGRAMMING LANGUAGE DEVELOPED FOR COMPUTER ASSISTED PART PROGRAMMING FOR NC MACHINES AND HAS THE WIDEST APPLICATION AND BROADEST CAPABILITY OF ANY PARTS PROGRAMMING LANGUAGE. THE ARMY MATERIEL COMMAND (AMC) HAS ESTABLISHED THE APT LANGUAGE AS AN INTERIM STANDARD FOR COMPUTER ASSISTED PART PROGRAMMING FOR NC MACHINES AT AMC INSTALLATIONS.

MDSI CONTENDS THAT SINCE THE APPLICATION OF THIS "STANDARD" IN THE PROTESTED RFP'S WAS A RESTRICTIVE SPECIFICATION TENDING TO LIMIT OR ELIMINATE COMPETITION, THE ARMY WAS REQUIRED BY THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) AND THE LEGAL PRECEDENTS TO MEET A MUCH GREATER BURDEN OF PROOF THAN MERELY SHOWING A REASONABLE BASIS FOR JUSTIFYING ITS APT COMPATIBILITY REQUIREMENTS AND THAT WHETHER THIS IS A MINIMUM NEED OF THE GOVERNMENT SHOULD BE CAREFULLY EXAMINED BY OUR OFFICE FOR A SUBSTANTIAL BASIS IN FACT.

WE HAVE RECOGNIZED THAT GOVERNMENT PROCUREMENT OFFICIALS, WHO ARE FAMILIAR WITH THE CONDITIONS UNDER WHICH SUPPLIES, EQUIPMENT OR SERVICES HAVE BEEN USED IN THE PAST AND HOW THEY ARE TO BE USED IN THE FUTURE ARE GENERALLY IN THE BEST POSITION TO KNOW THE GOVERNMENT'S ACTUAL NEEDS AND ARE THEREFORE BEST ABLE TO DRAFT APPROPRIATE SPECIFICATIONS. SEE MATTER OF PARTICLE DATA, INC.; COULTER ELECTRONICS, INC., B-179762, B-178718, MAY 15, 1974. THEREFORE, WE HAVE CONSISTENTLY HELD THAT THE DRAFTING OF SPECIFICATIONS IS THE FUNCTION OF THE PROCURING AGENCY AND NOT THE FUNCTION OF OUR OFFICE, NOR THAT OF POTENTIAL OFFERORS. SEE 38 COMP. GEN. 190 (1958); B 178288, MAY 24, 1973.

WE ARE NOT PERSUADED BY MDSI'S CLAIM THAT THE ARMY HAS TO MEET A HIGHER STANDARD IN THIS CASE TO SHOW THAT ITS "RESTRICTIVE" APT REQUIREMENTS REFLECTED ITS MINIMUM NEEDS. ALL SPECIFICATIONS CONTAINED IN SOLICITATIONS RESTRICT COMPETITION TO SOME DEGREE; HOWEVER, SPECIFICATIONS NEED NOT BE COMPROMISED IN ORDER TO OBTAIN COMPETITION, SO LONG AS THEY REFLECT THE GOVERNMENT'S ACTUAL NEEDS. B-178594, NOVEMBER 20, 1973. AND, MDSI HAS NOT DEMONSTRATED HOW THE ARMY'S APT REQUIREMENTS IN THE PROTESTED RFP'S DID NOT REFLECT THE GOVERNMENT'S ACTUAL NEEDS.

MDSI ALSO TAKES ISSUE WITH THE VARIOUS REASONS GIVEN FOR REQUIRING APT COMPATIBILITY IN THE PROTESTED RFP'S, WHICH MDSI STATES ARE GROUNDED ON THE ERRONEOUS ASSUMPTION THAT IT IS SIGNIFICANTLY EASIER FOR AN APT TRAINED PROGRAMMER TO LEARN A NEW APT COMPATIBLE LANGUAGE THAN MDSI'S COMPACT II. HOWEVER, MDSI HAS PRESENTED NO PROBATIVE EVIDENCE IN SUPPORT OF THIS ASSERTION OR ANY EVIDENCE DEMONSTRATING THAT OUR PREVIOUS DECISIONS WERE BASED UPON ANY MATERIAL MISTAKE OF FACT. MOREOVER, WE DO NOT BELIEVE THE PREVIOUS DECISIONS WERE BASED SOLELY ON THIS ASSUMPTION. THE RFP'S APT REQUIREMENTS WERE ALSO STATED TO BE JUSTIFIED IN VIEW OF THE EXISTING SOURCE PROGRAMS AND POST PROCESSORS AND THE ARMY POLICY OF IN- HOUSE NC CONTROL AND BACKUP CAPABILITY WHERE FEASIBLE, WITH WHICH REASONS MDSI HAS NOT TAKEN ISSUE.

MDSI CLAIMS THAT PREVIOUS RESTRICTIVE PROCUREMENT PRACTICES WERE BEING IMPROPERLY USED IN THE RFP'S TO SHOW THE LOGIC AND NECESSITY FOR FUTURE RESTRICTIVE SPECIFICATIONS. HOWEVER, MDSI HAS NOT SHOWN HOW THESE ALLEGED PAST RESTRICTIVE PRACTICES ADVERSELY AFFECTED THE LEGITIMACY OF THE GOVERNMENT'S NEEDS UNDER THE RFP'S OR WERE FOR THE PURPOSE OF FAVORING ANY PARTICULAR SUPPLIER.

AS A REMEDY FOR THE ARMY'S ALLEGED RESTRICTIVE PRACTICES, MDSI PROPOSES THAT A DETAILED REVIEW BE CONDUCTED BY INDEPENDENT EXPERTS UNDER THE SUPERVISION OF OUR OFFICE. THIS REVIEW WOULD EVALUATE THE LEGITIMACY OF THE ARMY'S APT REQUIREMENTS AND THE CAPABILITIES OF OTHER NC SYSTEMS AND APPARENTLY WOULD DETERMINE THE ARMY'S FUTURE USE OF THESE REQUIREMENTS.

MDSI CONTENDS THAT THIS REMEDY IS SIMILAR TO THAT PROPOSED IN 47 COMP. GEN. 12 (1967), WHICH FOUND THAT THE ARMY HAD NOT OBTAINED THE FULLEST PRACTICABLE COOPERATION AND PARTICIPATION OF INDUSTRY IN STANDARDIZING A PROPRIETARY SWIVEL HOOK FOR USE IN TIRE CHAIN ASSEMBLIES AS ENVISIONED BY 10 U.S.C. SEC. 2452 (4) (1964). WE DIRECTED THAT FUTURE USE OF THE SPECIFICATIONS RESTRICTING THE PROCUREMENT OF TIRE CHAIN ASSEMBLIES TO THOSE USING THE PROPRIETARY SWIVEL HOOK BE SUSPENDED UNTIL OTHER COMPETITIVE ARTICLES HAD BEEN TESTED AND EVALUATED.

OUR PREVIOUS DECISIONS WERE NOT INTENDED TO CERTIFY THE LEGITIMACY OF AMC'S INTERIM APT LANGUAGE STANDARD, BUT RATHER THEY ONLY FOUND THAT THE ARMY HAD A REASONABLE BASIS FOR THE PROTESTED RFP'S APT REQUIREMENTS. MOREOVER, WE CANNOT ACCEPT MDSI'S PROPOSED REMEDY OF OUR DETERMINING THE ARMY'S FUTURE MINIMUM NEEDS FOR IT REGARDING COMPUTER ASSISTED PROGRAMMING FOR NC MACHINES, SINCE THIS IS NOT PROPERLY THE FUNCTION OF OUR OFFICE.

IN ANY CASE, WE DO NOT BELIEVE AMC'S ESTABLISHMENT OF AN INTERIM APT LANGUAGE STANDARD FOR COMPUTER ASSISTED PART PROGRAMMING FOR NC MACHINES IN AMC INSTALLATIONS IS THE TYPE OF SUPPLY STANDARDIZATION PROGRAM OF THE DEPARTMENT OF DEFENSE (DOD), WHICH IS COVERED UNDER 10 U.S.C. SECS. 2451- 2456 (1970). MOREOVER, IT IS CLEAR THAT THE APT LANGUAGE IS NOT A DOD STANDARD BUT RATHER IS INTENDED ONLY TO REFLECT AMC'S ACTUAL NEEDS.

FURTHERMORE, THE NUMERICAL CONTROL SOCIETY HAS COMPLETED A REPORT DATED MARCH 31, 1974, ENTITLED NUMERICAL CONTROL LANGUAGE EVALUATION FOR THE UNITED STATES ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY, WHICH EVALUATED AND COMPARED SEVEN OF THE MAJOR NC PROGRAMMING LANGUAGES, INCLUDING APT, UNIAPT, ACTION AND COMPACT II, AND WHICH THE ARMY WILL USE IN DETERMINING THE NC LANGUAGES) BEST SUITING THE MINIMUM NEEDS OF ITS ACTIVITIES.

MDSI ALSO OBJECTS TO THE ARMY'S FAILURE TO JUSTIFY THE RFP'S UNDER ASPR SEC. 3.213 (1973 ED.) RATHER THAN ASPR SEC. 3.210 (XIII) (1973 ED.). HOWEVER, WE WILL NOT REVIEW THIS CONTENTION, SINCE IT SHOULD HAVE BEEN PROTESTED PRIOR TO THE RESPECTIVE CLOSING DATES FOR RECEIPT OF PROPOSALS AND IS THEREFORE UNTIMELY. SEE SECTION 20.2 (A) OF OUR BID PROTEST PROCEDURES AND STANDARDS (4 CFR 20.2(A) (1974)).

WE HAVE EXAMINED ALL OF MDSI'S TIMELY CONTENTIONS AND DO NOT FIND ANY JUSTIFICATION FOR MODIFYING OUR EARLIER DECISIONS, INASMUCH AS IT HAS NOT BEEN DEMONSTRATED THAT OUR PRIOR DECISIONS INVOLVED ANY MISTAKE OF FACT NOR HAVE ANY PERSUASIVE LEGAL AUTHORITIES OR PRECEDENTS BEEN ADVANCED WHICH WOULD REASONABLY SUPPORT ANY ERROR OF LAW. SEE B 178594, SUPRA; MATTER OF PARTICLE DATA, INC, B-178718, MAY 29, 1974.

ACCORDINGLY, OUR DECISIONS B-180608, SUPRA, AND B-180586, SUPRA, ARE AFFIRMED.