B-198521, JUL 24, 1980

B-198521: Jul 24, 1980

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MERE FACT THAT PROTESTER CANNOT USE ITS OWN TANK DESIGN DOES NOT ESTABLISH SPECIFICATION IS UNDULY RESTRICTIVE OF COMPETITION. 2. SPECIFICATIONS ARE DESIGNED TO ALLEVIATE SAFETY AND OTHER PROBLEMS EXPERIENCED BY AGENCY PERSONNEL. SPECIFICATIONS ARE NOT UNDULY RESTRICTIVE OF COMPETITION. 4. PERFORMANCE SCHEDULE IS NOT UNDULY RESTRICTIVE OF COMPETITION WHERE IT APPROXIMATES PAST PERFORMANCE SCHEDULES AND PROCUREMENT HISTORY SHOWS CONTRACTORS CAN DELIVER ARTICLE WITHIN REQUIRED TIME FRAME. FACT THAT PREVIOUS CONTRACTOR EXPERIENCED EXCESSIVE DELAYS BEFORE RECEIVING FIRST ARTICLE APPROVAL DOES NOT INDICATE PERFORMANCE SCHEDULE IS UNREASONABLE. WHERE SUCH DELAYS WERE CAUSED BY EXTENSIVE DESIGN CHANGES ORDERED BY GOVERNMENT AFTER CONTRACT AWARD.

B-198521, JUL 24, 1980

DIGEST: 1. WHERE AGENCY HAS DEVELOPED NEW FOAM/WATER TANK DESIGN FOR USE IN AN AIRCRAFT CRASH VEHICLE, MERE FACT THAT PROTESTER CANNOT USE ITS OWN TANK DESIGN DOES NOT ESTABLISH SPECIFICATION IS UNDULY RESTRICTIVE OF COMPETITION. 2. WHERE IFB'S SPECIFICATION APPEARS TO CORRECT PROBLEMS EXPERIENCED WITH OLDER TANK DESIGN OF AIRCRAFT CRASH VEHICLE, AND PROVIDE ENHANCED MAINTENANCE PROCEDURES, PROTESTER HAS NOT SHOWN SPECIFICATION EXCEEDS AGENCY'S MINIMUM NEEDS. 3. WHERE AGENCY HAS REASONABLE BASIS FOR ITS SPECIFICATIONS REQUIRING LOCATION OF BATTERY CHARGER BEHIND RIGHT REAR WHEEL OF CRASH VEHICLE AND INCREASED ALUMINUM THICKNESS OF BODY SHELL, AND SPECIFICATIONS ARE DESIGNED TO ALLEVIATE SAFETY AND OTHER PROBLEMS EXPERIENCED BY AGENCY PERSONNEL, SPECIFICATIONS ARE NOT UNDULY RESTRICTIVE OF COMPETITION. 4. GOVERNMENT NEED NOT ELIMINATE COMPETITIVE ADVANTAGES OF INCUMBENT CONTRACTOR WHICH RESULT FROM PRIOR DESIGN AND PRODUCTION FOR GOVERNMENT OF AIRCRAFT CRASH VEHICLE AND NOT FROM UNFAIR ACTION BY GOVERNMENT. 5. PERFORMANCE SCHEDULE IS NOT UNDULY RESTRICTIVE OF COMPETITION WHERE IT APPROXIMATES PAST PERFORMANCE SCHEDULES AND PROCUREMENT HISTORY SHOWS CONTRACTORS CAN DELIVER ARTICLE WITHIN REQUIRED TIME FRAME. FACT THAT PREVIOUS CONTRACTOR EXPERIENCED EXCESSIVE DELAYS BEFORE RECEIVING FIRST ARTICLE APPROVAL DOES NOT INDICATE PERFORMANCE SCHEDULE IS UNREASONABLE, WHERE SUCH DELAYS WERE CAUSED BY EXTENSIVE DESIGN CHANGES ORDERED BY GOVERNMENT AFTER CONTRACT AWARD.

OSHKOSH TRUCK CORPORATION:

OSHKOSH TRUCK CORPORATION (OSHKOSH) PROTESTS THE AWARD OF ANY CONTRACT UNDER INVITATION FOR BIDS (IFB) N62472-80-B-1629 ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, DAVISVILLE, RHODE ISLAND FOR 33 (1000 GALLON) AIRCRAFT AND PERSONNEL RESCUE FIREFIGHTING VEHICLES (CRASH VEHICLES). OSHKOSH MAINTAINS THAT FOUR OF THE SOLICITATION'S SPECIFICATIONS OR REQUIREMENTS ARE UNDULY RESTRICTIVE OF COMPETITION AND EXCEED THE MINIMUM NEEDS OF THE NAVY: 1) THE SPECIFICATION FOR THE AGENT FOAM AND WATER TANK; 2) BATTERY CHARGER/ AUXILIARY POWER SUPPLY SYSTEM; 3) VEHICLE BODY AND 4) PERFORMANCE SCHEDULE. OSHKOSH REQUESTS THAT THE NAVY AMEND THE IFB TO CHANGE THE DESIGN SPECIFICATIONS TO GENERAL PERFORMANCE REQUIREMENTS AND TO RELAX THE PERFORMANCE SCHEDULE. WE DENY THE PROTEST.

GENERAL DISCUSSION

THIS IS THE SECOND SOLICITATION FOR 1000 GALLON CRASH VEHICLES THAT THE NAVY HAS ISSUED WITHIN THE PAST TWO YEARS. SMI, NEW YORK, THE INCUMBENT CONTRACTOR, RECENTLY COMPLETED OR IS ABOUT TO COMPLETE FIRST ARTICLE APPROVAL FOR THE PRIOR PROCUREMENT. ONE OF OSHKOSH'S MAIN CONTENTIONS RUNNING THROUGHOUT ITS PROTEST RELATES TO THE APPARENT COMPETITIVE ADVANTAGE ENJOYED BY SMI BECAUSE OF ITS INCUMBENCY STATUS AND THE IFB'S DESIGN SPECIFICATIONS.

WITH RESPECT TO THE ADVANTAGES THAT SMI MAY ENJOY BECAUSE OF ITS INCUMBENCY, OSHKOSH CONTENDS THAT THE NAVY TAILORED ITS DESIGN SPECIFICATIONS AND THE IFB'S PERFORMANCE SCHEDULE TO FAVOR SMI. OSHKOSH POINTS OUT THAT THE PRIOR SOLICITATION USED PERFORMANCE SPECIFICATIONS AND NOT THE RESTRICTIVE DESIGN SPECIFICATIONS USED FOR THIS PROCUREMENT. MEET THE SPECIFICATIONS HERE, THE PROTESTER ARGUES, IT WILL HAVE TO REDESIGN ITS BASIC CRASH VEHICLE WITH RESPECT TO THE TANK CONFIGURATION, BATTERY CHARGER AND ALUMINUM BODY SHELL THICKNESS, WITH A HIGHER DESIGN COST AS A RESULT. BECAUSE OF THE INCUMBENT'S EXPERIENCE IN DESIGNING THIS CRASH VEHICLE, OSHKOSH MAINTAINS THAT ONLY SMI CAN MEET THE SOMEWHAT SHORT PERFORMANCE SCHEDULE. WITH THIS AS ITS GENERAL PREMISE, OSHKOSH CONTENDS THAT ALL OF THE SPECIFICATIONS ARE RESTRICTIVE. WE FIND NO MERIT TO THIS CONTENTION.

WE HAVE FREQUENTLY ADDRESSED THE QUESTION OF INCUMBENT CONTRACTOR ADVANTAGE. WE HAVE CONSISTENTLY HELD THAT CERTAIN FIRMS MAY ENJOY A COMPETITIVE ADVANTAGE BY REASON OF THEIR INCUMBENCY OR THEIR OWN PARTICULAR CIRCUMSTANCES. ENSEC SERVICE CORP., 55 COMP.GEN. 656 (1976), 76-1 CPD 34. THE GOVERNMENT, HOWEVER, IS NOT REQUIRED TO EQUALIZE COMPETITION; RATHER THE TEST IS WHETHER THE COMPETITIVE ADVANTAGE ENJOYED BY PARTICULAR FIRMS IS THE RESULT OF PREFERENCE OR OF UNFAIR ACTION BY THE GOVERNMENT. B-175496, NOVEMBER 10, 1972.

HERE, THE PROTESTER HAS NOT PRESENTED ANY EVIDENCE WHICH SHOWS THAT THE NAVY WAS BIASED TOWARD SMI TO THE EXCLUSION OF OSHKOSH OR ANY OTHER BIDDER. AS A GENERAL RULE, EVEN THOUGH PERFORMANCE SPECIFICATIONS MAY BE LESS LIKELY TO PLACE UNDUE RESTRICTIONS ON COMPETITION THAN DESIGN SPECIFICATIONS, THERE IS NO LEGAL PROSCRIPTION ON THE USE OF DESIGN SPECIFICATIONS PROVIDED THE STATED REQUIREMENTS ARE NOT UNDULY RESTRICTIVE AND ACCURATELY REFLECT AN AGENCY'S MINIMUM NEEDS. CONSTANTINE N. POLITES & CO., B-189214, DECEMBER 27, 1978, 78-2 CPD 437. WHERE, AS HERE, THE INCUMBENT CONTRACTOR IS ABLE TO USE A SPECIFIC EQUIPMENT DESIGN RESULTING FROM ITS WORK ON A PRIOR GOVERNMENT CONTRACT, THE GOVERNMENT NEED NOT EQUALIZE THE RESULTANT COMPETITIVE ADVANTAGE ON THE SUCCEEDING PROCUREMENT. ABC REFUSE COLLECTION, INC., B-194216, JUNE 4, 1979, 79-1 CPD 388.

GENERALLY, WHEN A PROTESTER CHALLENGES A SPECIFICATION AS UNDULY RESTRICTIVE OF COMPETITION, THE PROCURING AGENCY MUST ESTABLISH PRIMA FACIE SUPPORT FOR ITS CONTENTION THAT THE RESTRICTIONS IT IMPOSES ARE REASONABLY RELATED TO ITS NEEDS. THE BURDEN OF PROOF REMAINS ON THE PROTESTER TO SHOW THAT THE REQUIREMENTS COMPLAINED OF ARE CLEARLY UNREASONABLE. CONSTANTINE M. POLITES & CO., SUPRA. THIS IS SO BECAUSE THE GOVERNMENT'S CONTRACTING AGENCIES PRIMARILY ARE RESPONSIBLE FOR DETERMINING THE NEEDS OF THE GOVERNMENT AND THE METHODS OF ACCOMMODATING SUCH NEEDS. 38 COMP.GEN. 190 (1958); MANUFACTURING DATA SYSTEMS, INCORPORATED, B-180608, JUNE 28, 1974, 74-1 CPD 348. WE TAKE THIS VIEW BECAUSE WE RECOGNIZE 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 WILL BE USED IN THE FUTURE, GENERALLY ARE IN THE BEST POSITION TO KNOW THE GOVERNMENT'S ACTUAL NEEDS, AND THEREFORE ARE BEST ABLE TO DRAFT APPROPRIATE SPECIFICATIONS. PARTICLE DATA, INC.; COULTER ELECTRONICS, INC., B-179762, B-178718, MAY 15, 1974, 74-1 CPD 257. WITH THESE PRINCIPLES IN MIND, WE WILL EXAMINE THE SPECIFIC ALLEGATIONS.

FOAM/WATER TANK

THE MAJOR CHANGE IN THE TANK SYSTEM CONCERNS THE NAVY'S USE OF A DETAILED DESIGN SPECIFICATION WHICH REQUIRES THAT THE 130 GALLON FOAM TANK BE POSITIONED WITHIN A CELL IN THE WATER TANK AND THAT IT BE REMOVABLE AS A UNIT FROM THE WATER TANK. THIS DESIGN, ACCORDING TO THE NAVY, ENHANCES MAINTENANCE OF THE FOAM CELL BECAUSE IT CAN BE REMOVED FOR INSPECTION AND REPAIR THEREBY GREATLY REDUCING VEHICLE "DOWNTIME", I.E., THE DESIGN INCREASES THE AVAILABILITY OF THESE VEHICLES FOR EMERGENCIES. THE NAVY REPORTS THAT EXPERIENCE WITH THE NAVY FIREFIGHTING TRUCKS NOW IN USE, BUILT IN ACCORDANCE WITH THE SPECIFICATION PROPOSED BY OSHKOSH AND ALSO USED BY THE NAVY IN PAST PROCUREMENTS, HAS REVEALED NUMEROUS PROBLEMS WITH LEAKING TANKS. THIS OCCURRED BECAUSE THE PRIOR TANK DESIGN DID NOT REQUIRE A SEPARATE FOAM TANK; INSTEAD, ONE OF THE WATER TANK CAVITIES WAS FILLED WITH FOAM. MOST LEAKAGE AND CONTAMINATION OCCURRED IN THE PREVIOUS TANK DESIGN THROUGH THE COMMON WALL OF THE FOAM AND WATER TANK CAVITIES. THE NEW DESIGN ELIMINATES THE PROBLEMS EXPERIENCED IN THE PAST WHEN FOAM TANK AND WATER TANK LEAKAGE WOULD CAUSE CONTAMINATION OF THE FIREFIGHTING AGENT. THE NEW MODULAR FOAM TANK/WATER TANK DESIGN DOES NOT HAVE A COMMON WALL BETWEEN THE TWO TANKS. FURTHER, THE NAVY HAS STRENGTHENED THE TANK SUPPORT AND INTERNAL BAFFLE/WALL DESIGN WHICH HAS HAD A MARKED IMPROVEMENT IN ELIMINATING TANK LEAKAGE. THE NAVY REPORTS THAT THESE IMPROVEMENTS, AMONG OTHERS, "RESULTED FROM MORE THAN TWO YEARS OF EVALUATION/TESTING PROCEDURES."

NONETHELESS, OSHKOSH STATES THAT NO OTHER MILITARY SERVICE OR COMMERCIAL USER HAS REDESIGNED ITS TANK SYSTEM LIKE THE NAVY HAS, OTHER PURCHASERS OF THE MOST RECENT OSHKOSH TANK DESIGN HAVE NOT EXPERIENCED ANY PROBLEMS WITH FOAM LEAKAGE AND, FINALLY, THE NAVY BASES ITS CONCLUSIONS REGARDING THE LEAKAGE PROBLEM ON SEVEN YEAR OLD OSHKOSH TRUCKS. OSHKOSH MAINTAINS THAT IT HAS MADE NUMEROUS IMPROVEMENTS IN ITS TANK SYSTEM SINCE 1973 AND IT CONCLUDES THEREFORE THAT THE NAVY UNJUSTIFIABLY CHANGED ITS TANK REQUIREMENTS WITHOUT EXPLORING OSHKOSH'S NEW TANK SYSTEM. OSHKOSH CONTENDS THAT BY REDESIGNING ITS TANK SYSTEM, THE NAVY OVERSTATED ITS MINIMUM NEEDS.

WE DISAGREE. WHILE WE HAVE NO BASIS TO DISPUTE OSHKOSH'S CLAIM THAT ITS NEW TANK SYSTEM HAS NOT EXPERIENCED LEAKAGE PROBLEMS (THE RECORD CONTAINS NO DOCUMENTED EVIDENCE ON THE SUBJECT), THE FACT REMAINS THAT THE NAVY HAS EXPERIENCED MANY LEAKAGE DIFFICULTIES WITH FOAM/WATER TANKS OF THE BASIC OSHKOSH DESIGN, I.E., TANKS WHICH HAVE A COMMON WALL BETWEEN THE FOAM AND WATER TANK. WHILE OSHKOSH'S NEW TANK SYSTEM INCORPORATES OTHER CHANGES IN THE TANK'S FIBERGLASS CONTENT AND THE CRADLE OR TANK SUPPORT, IT STILL USES A COMMON WALL BETWEEN THE FOAM AND WATER CELLS, AND IT DOES NOT PROVIDE THE EASE OF MAINTENANCE THAT THE REMOVABLE FOAM TANK FEATURE WILL INHERENTLY PERMIT. INASMUCH AS THE SOLE PURPOSE OF THESE VEHICLES IS TO SAVE LIVES AND PROPERTY, WE ARE NOT PREPARED TO CONCLUDE THE SPECIFICATIONS EXCEEDED THE GOVERNMENTS NEEDS FOR THIS PROCUREMENT. NONETHELESS, WE BELIEVE THAT IN VIEW OF THE PROTESTER'S ALLEGATIONS THAT ITS REDESIGNED VEHICLE HAS SATISFIED SIMILAR NEEDS OF OTHER MILITARY AND CIVILIAN ORGANIZATIONS, THE NAVY SHOULD DETERMINE AFTER A THOROUGH INVESTIGATION, WHETHER THE OSHKOSH DESIGN WILL ALSO SATISFY ITS NEEDS IN THE FUTURE. SEE BBR PRESTRESSED TANKS, B-187205, B-187999, MAY 4, 1977, 77-1 CPD 302.

IN ADDITION, THE FACT THAT THE NEW TANK IS AVAILABLE ONLY FROM ONE OR TWO MANUFACTURERS, AS ALLEGED BY OSHKOSH, DOES NOT ESTABLISH THAT THE SPECIFICATION IS UNDULY RESTRICTIVE. THE EFFECT OF THIS IS TO RESTRICT ANY POTENTIAL TRUCK MANUFACTURER'S CHOICE OF A SUBCONTRACTOR TO THOSE SOURCES. THE PROTESTER IS NOT AT A COMPETITIVE DISADVANTAGE BECAUSE EACH BIDDER IS IN THE SAME COMPETITIVE POSITION AS ANY OTHER. ABREEN CORPORATION, B-197261, APRIL 18, 1980, 80-1 CPD 274.

FOR THE REASONS STATED, THEREFORE, WE DO NOT BELIEVE THE NAVY'S SPECIFICATION IS UNDULY RESTRICTIVE OF COMPETITION.

BATTERY CHARGER/AUXILIARY POWER SUPPLY SYSTEM

THE SPECIFICATION REQUIRES THAT THE BATTERY CHARGER/AUXILIARY POWER SUPPLY SYSTEM (BC) BE LOCATED UNDER THE RIGHT REAR SECTION STEPS OF THE VEHICLE. OSHKOSH MAINTAINS THAT THE NAVY UNNECESSARILY HAS RESTRICTED THE LOCATION OF THE BC. ACCORDING TO OSHKOSH, IN OTHER NAVY PROCUREMENTS, THE MANUFACTURER WAS FREE TO CHOOSE THE LOCATION OF THE BC.

THE NAVY REPORTS THAT IT CHOSE TO LOCATE THE BATTERY CHARGER UNDER THE RIGHT REAR STEPS OF THE VEHICLE BECAUSE 1) ITS LOCATION ON THE TOP DECK PRESENTED A SAFETY HAZARD TO FIREFIGHTERS DRESSED IN CUMBERSOME FIREFIGHTING GEAR; THE NAVY WANTS TO ELIMINATE EQUIPMENT CLUTTER ON THE TOP DECK OF THE VEHICLE, AND 2) ITS LOCATION IN THE SIDE COMPARTMENTS WAS PREEMPTED BY OTHER EQUIPMENT EITHER SUPPLIED BY THE MANUFACTURER OR BY THE NAVY FIRE SERVICE. THE NAVY STATES THAT THE SPECIFIED LOCATION HAS BEEN FOUND BY EXPERIENCE TO BE THE MOST ACCEPTABLE BECAUSE IT UTILIZES PREVIOUSLY UNUSED SPACE AND REQUIRES A SHORTER ELECTRICAL RUN. THE NAVY BELIEVES THAT THIS IS THE OPTIMUM LOCATION FOR THE BC.

WE THINK THE NAVY REASONABLY REQUIRED THAT THE BC BE LOCATED UNDER THE RIGHT REAR STEPS. THE PROTESTER DOES NOT DISAGREE WITH THE NAVY'S STATEMENT THAT THIS LOCATION WILL REQUIRE A SHORTER ELECTRICAL RUN, NOR DOES THE PROTESTER DISPUTE THE NAVY'S ASSERTION THAT EXPERIENCE OF NAVY FIRE-FIGHTING PERSONNEL INDICATES THAT THIS IS THE OPTIMUM LOCATION FROM A SAFETY, SPACE UTILIZATION STANDPOINT. IT SEEMS REASONABLE TO CONLUDE THAT IF THE SIDE COMPARTMENTS ARE PREEMPTED BY OTHER EQUIPMENT THE RIGHT REAR LOCATION WOULD APPEAR TO BE A LOGICAL CHOICE. CLEARLY, OSHKOSH HAS NOT SHOWN THAT THE LOCATION OF THE BC UNDER THE STEPS CANNOT BE ACHIEVED AT A MINIMUM EXPENSE. WE THEREFORE FAIL TO SEE HOW THIS PORTION OF THE SPECIFICATION IS UNDULY RESTRICTIVE OF COMPETITION.

VEHICLE BODY

THE SPECIFICATION REQUIRES THE CRASH VEHICLE BODY TO BE 14 GAUGE (.064 INCH) ALUMINUM WELDED CONSTRUCTION RATHER THAN THE 16 GAUGE (.050 INCH) CONSTRUCTION USED IN THE PAST. OSHKOSH MAINTAINS THAT NO OTHER USER REQUIRES THE THICKER GAUGE ALUMINUM, THAT 16 GAUGE ALUMINUM IS LESS COSTLY, AND THAT IT IS EXTREMELY UNLIKELY THAT THE THICKER ALUMINUM WILL PREVENT DENTING AS THE NAVY SUGGESTS.

IN OUR VIEW, WE BELIEVE THE NAVY REASONABLY INCREASED THE THICKNESS OF THE VEHICLE SHELL. THE NAVY REPORTS THAT THE THINNER ALUMINUM, AS PREVIOUSLY PROVIDED BY THE PROTESTER, IS NOT DURABLE ENOUGH AND HAS RESULTED IN SHELL DEFORMATION, PARTICULARLY IN OFF-RUNWAY USE. WHILE THE PROTESTER DOES NOT DISPUTE THE FACT THAT THE NAVY HAS EXPERIENCED SUCH PROBLEMS, THE PROTESTER ARGUES THAT THE NAVY WOULD HAVE TO INCREASE THE BODY THICKNESS .125 TO .188 INCHES TO PREVENT DENTING AND THAT THIS WOULD SLOW THE VEHICLE DOWN. WHILE THE NAVY CONCEDES THAT THERE ARE NO TESTS WHICH SHOW THAT 14 GAUGE ALUMINUM WILL PREVENT DENTING, IT APPEARS THAT THE NAVY NECESSARILY HAS MADE A TRADE-OFF BETWEEN BUILDING A VEHICLE WHICH IS IMPREGNABLE AND ONE WHICH WILL BETTER RESIST SHELL DEFORMATION, WHILE MAINTAINING THE IFB'S WEIGHT, ACCELERATION AND SPEED REQUIREMENTS. FAIL TO SEE HOW THE USE OF THE HEAVIER GAUGE ALUMINUM PREJUDICES THE PROTESTER TO ANY DEGREE, SINCE ALL BIDDERS ARE SUBJECT TO THE SAME REQUIREMENT.

PERFORMANCE SCHEDULE

THE PROTESTER POINTS OUT THAT THE NAVY'S PRIOR PROCUREMENT REQUIRED FIRST ARTICLE TESTING WITHIN 220 DAYS AFTER RECEIPT OF NOTICE TO PROCEED AND DELIVERY OF ALL VEHICLES WITHIN 450 DAYS. THIS PROCUREMENT REQUIRES FIRST ARTICLE TESTING WITHIN 210 DAYS OF NOTICE TO PROCEED AND ALL VEHICLES MUST BE DELIVERED WITHIN 420 DAYS. BY EMPHASIZING THE EXTRAORDINARY DELAY IN FIRST ARTICLE APPROVAL EXPERIENCED BY SMI UNDER THE PRIOR PROCUREMENT, OSHKOSH ARGUES THAT NO BIDDER EXCEPT SMI CAN DESIGN ITS CRASH VEHICLE IN ACCORDANCE WITH THESE SPECIFICATIONS WITHIN THIS COMPRESSED PERFORMANCE SCHEDULE. OSHKOSH ARGUES THAT ONLY SMI WILL QUALIFY FOR FIRST ARTICLE WAIVER AND THAT THE NAVY UNREASONABLY HAS TAILORED ITS SCHEDULE TO FAVOR SMI THEREBY RESTRICTING COMPETITION.

FOR THE REASONS ALREADY DISCUSSED, WE FIND NO MERIT IN OSHKOSH'S CONTENTIONS WHICH RELY ON SMI'S INCUMBENCY STATUS AS A BASIS FOR FINDING THE PERFORMANCE SCHEDULE RESTRICTIVE. IN THIS CONNECTION, THERE IS NO REQUIREMENT THAT THE GOVERNMENT ELIMINATE THE ADVANTAGES WHICH MAY ACCRUE TO A BIDDER, SUCH AS WAIVER OF FIRST ARTICLE TESTING, MERELY BECAUSE IT IS PRODUCING AN ARTICLE THE GOVERNMENT IS SOLICITING. SEE KEUFFEL & ESSER COMPANY, 57 COMP.GEN. 413 (1978), 78-1 CPD 281. FURTHER, THE NAVY REPORTS THAT PAST PROCUREMENT HISTORY SHOWS THAT THE FIRST ARTICLE DELIVERY REQUIREMENTS HAVE RANGED FROM 180 TO 210 DAYS FROM DATE OF CONTRACT AWARD AND PRODUCTION DELIVERY HAS BEEN ACCOMPLISHED WITHIN 340 DAYS FROM AWARD. THE NAVY STATES THAT OSHKOSH DESIGNED AND BUILT ITS FIRST CRASH VEHICLE IN 180 DAYS WITH NO PREVIOUS EXPERIENCE IN DESIGNING OR FABRICATING THIS TYPE OF FIRE APPARATUS. THUS, BASED ON THE NAVY'S PAST EXPERIENCE, IT WOULD APPEAR THAT THE CURRENT PERFORMANCE SCHEDULE IS REASONABLE. WE DO NOT BELIEVE THAT THE DELAYS EXPERIENCED BY SMI ON THE PRIOR CONTRACT ARE RELEVANT BECAUSE THE NAVY REPORTS THAT THE DELAYS WERE CAUSED BY NUMEROUS DESIGN CHANGES IN THE SPECIFICATIONS AFTER CONTRACT AWARD AND OTHER ELEMENTS OF THE CONTRACT FOR WHICH EXTENSIONS WERE GRANTED. THE PROTESTER ONLY SPECULATES THAT THE REQUIREMENT FOR THIS PROCUREMENT, SOME OF WHICH WERE DEVELOPED THROUGH THE NAVY'S EXPERIENCE ON SMI'S CONTRACT, CANNOT BE ACHIEVED WITHIN THE SPECIFIED TIME FRAME. THE PROTESTER HAS NOT DEMONSTRATED THAT THE PRIOR DELAYS EXPERIENCED BY SMI WERE THE RESULT OF THE SPECIFICATION AS ORIGINALLY DRAFTED BEFORE THE NAVY ORDERED THE CHANGES.

THE PROTEST IS DENIED.