B-219226.2, JUL 29, 1985

B-219226.2: Jul 29, 1985

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PRIOR DECISION IS AFFIRMED WHERE. GEL WAS AN INTERESTED PARTY TO THE PROTEST. GEL ARGUES THAT OUR DECISION'S TECHNICAL CONCLUSIONS WERE IMPROPERLY BASED ON "TWO DOCUMENTS THAT SHOULD NOT HAVE BEEN CONSIDERED. ...". THE FIRST DOCUMENT OF RECORD WAS A LETTER DATED FEBRUARY 22. (A LARGE BUSINESS WHICH IS A POTENTIAL SUPPLIER OF THIS TYPE OF EQUIPMENT). WHICH WAS SUBMITTED TO US BY FLEETWOOD. TELEX MADE A NUMBER OF TECHNICAL CONCLUSIONS WHICH ALLEGEDLY WERE IMPROPERLY LATER ADOPTED IN OUR DECISION. GEL ARGUES THAT THE IMPROPRIETY AROSE BECAUSE TELEX SHOULD NOT HAVE BEEN ALLOWED TO PARTICIPATE IN THE PROTEST GIVEN ITS STATUS AS A LARGE BUSINESS. THE SECOND DOCUMENT OF RECORD IS DESCRIBED BY GEL AS A "TECHNICAL REPORT ALLEGEDLY PREPARED BY A GROUP OF ARMY MAINTENANCE WORKERS.".

B-219226.2, JUL 29, 1985

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED DIGEST: 1. PRIOR DECISION IS AFFIRMED WHERE, CONTRARY TO CONTENTION BY AN INTERESTED PARTY REQUESTING RECONSIDERATION, GAO DID NOT ACCEPT WITHOUT QUESTION THE TECHNICAL VIEWS CONTAINED IN TWO DOCUMENTS SUBMITTED ON BEHALF OF THE PROTESTER. RATHER, GAO PERFORMED AN INDEPENDENT REVIEW OF THE TECHNICAL ISSUES INVOLVED IN THE PROTEST TO SUPPORT ITS DETERMINATION THAT THE ARMY HAD NOT ESTABLISHED A PRIMA FACIE CASE FOR THE PROTESTED SPECIFICATIONS. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED 2. WHERE INTERESTED PARTY ON RECONSIDERATION DISPUTES ONLY ONE OF SEVERAL OF GAO'S TECHNICAL CONCLUSIONS IN SUPPORT OF A RECOMMENDATION TO REVISE SPECIFICATION TO BROADEN COMPETITION, WE NEED NOT DECIDE DISPUTE SINCE THE INTERESTED PARTY HAS NOT CHALLENGED THE VALIDITY OF OTHER REASONS WHICH SUPPORT GAO'S POSITION ON THIS ISSUE.

GEL SYSTEMS, INC.-- RECONSIDERATION:

GEL SYSTEMS, INC. (GEL), HAS REQUESTED RECONSIDERATION OF OUR DECISION IN FLEETWOOD ELECTRONICS, INC., B-216947.2, JUNE 11, 1985, 85-1 CPD PARA. ---. OUR DECISION SUSTAINED THE PROTEST OF FLEETWOOD ELECTRONICS, INC. (FLEETWOOD), AGAINST CERTAIN TECHNICAL SPECIFICATIONS CONTAINED IN DEPARTMENT OF THE ARMY REQUEST FOR PROPOSALS (RFP) NO. DAAG08-84-R-0399, A TOTAL SMALL BUSINESS SET-ASIDE ISSUED FOR LANGUAGE LABORATORY SYSTEMS FOR THE ARMY'S DEFENSE LANGUAGE INSTITUTE (DLI). GEL WAS AN INTERESTED PARTY TO THE PROTEST.

GEL ARGUES THAT OUR DECISION'S TECHNICAL CONCLUSIONS WERE IMPROPERLY BASED ON "TWO DOCUMENTS THAT SHOULD NOT HAVE BEEN CONSIDERED. ..." THE FIRST DOCUMENT OF RECORD WAS A LETTER DATED FEBRUARY 22, 1985, FROM TELEX COMMUNICATIONS, INC. (A LARGE BUSINESS WHICH IS A POTENTIAL SUPPLIER OF THIS TYPE OF EQUIPMENT), WHICH WAS SUBMITTED TO US BY FLEETWOOD. IN THIS DOCUMENT, TELEX MADE A NUMBER OF TECHNICAL CONCLUSIONS WHICH ALLEGEDLY WERE IMPROPERLY LATER ADOPTED IN OUR DECISION. GEL ARGUES THAT THE IMPROPRIETY AROSE BECAUSE TELEX SHOULD NOT HAVE BEEN ALLOWED TO PARTICIPATE IN THE PROTEST GIVEN ITS STATUS AS A LARGE BUSINESS. THE SECOND DOCUMENT OF RECORD IS DESCRIBED BY GEL AS A "TECHNICAL REPORT ALLEGEDLY PREPARED BY A GROUP OF ARMY MAINTENANCE WORKERS." ACCORDING TO GEL, THIS SECOND DOCUMENT "COMPLETELY DISAGREES" WITH THE TECHNICAL CONCLUSIONS SET FORTH IN A MEMORANDUM (WHICH SUPPORTED THE PROTESTED SPECIFICATIONS) "AUTHORIZED BY AND APPROVED FOR THE COMMANDANT, DLI." THIS MEMORANDUM WAS ALSO PART OF OUR RECORD FOR OUR PRIOR DECISION. GEL ARGUES THAT THE ARMY GROUP REPORT SHOULD NOT HAVE BEEN CONSIDERED, ESSENTIALLY BECAUSE THE REPORT DISAGREES WITH THE COMMANDANT'S OFFICIAL POSITION.

TO SHOW THAT WE ALLEGEDLY INCORRECTLY ADOPTED "AT FACE VALUE" THE CONCLUSIONS OF THE TELEX LETTER AND THE GROUP TECHNICAL REPORT, GEL FOCUSES ON ONE OF THE TECHNICAL ISSUES IN THE PROTEST-- INVOLVING THE "POWER SUPPLY" FOR THE SYSTEM-- AND ARGUES THAT OUR CONCLUSIONS ABOUT THIS ISSUE AND THE DOCUMENTS' CONCLUSIONS ARE ESSENTIALLY THE SAME.

THE ARMY'S POWER SUPPLY SPECIFICATIONS REQUIRED THAT EACH STUDENT'S UNIT CONTAIN ITS OWN POWER SUPPLY. FLEETWOOD CONTENDED THAT THIS REQUIREMENT WAS TOO RESTRICTIVE AND THAT A SYSTEM USING CENTRALLY LOCATED POWER SUPPLIES SHOULD ALSO BE ACCEPTABLE. THE TELEX LETTER SUPPORTED THIS ARGUMENT.

CONTRARY TO GEL'S APPARENT POSITION THAT WE ACCEPTED WITHOUT QUESTION THE VIEWS CONTAINED IN THE QUESTIONED DOCUMENTS, WE INDEPENDENTLY REVIEWED THE TECHNICAL ISSUES INVOLVED IN THE PROTEST TO DETERMINE IF THE ARMY HAD ESTABLISHED PRIMA FACIE SUPPORT FOR THE PROTESTED SPECIFICATIONS. TO THE EXTENT OUR CONCLUSIONS PARALLELED THOSE FOUND IN THE TELEX LETTER AND THE GROUP TECHNICAL REPORT, SUCH PARALLELS ARE IRRELEVANT TO THE QUESTION OF WHETHER OUR DECISION WAS CORRECT. THE REAL-- AND ONLY-- QUESTION IS WHETHER THE VIEWS EXPRESSED IN OUR DECISION REGARDING THE ARMY'S JUSTIFICATION FOR THE SPECIFICATIONS WERE SOUND.

THE ARMY'S POSITION WAS THAT ONLY AN INDEPENDENT POWER SUPPLY FOR EACH UNIT WOULD PERMIT, IN THE EVENT OF POWER FAILURE IN ONE UNIT, OTHER UNITS TO CONTINUE OPERATIONS. WE FOUND THAT THE SPECIFICATION FOR INDEPENDENT POWER SUPPLIES DID NOT DEFINE ACCEPTABLE POWER SUPPLY RELIABILITY AND DID NOT APPEAR TO PRECLUDE THE USE OF COMMON COMPONENTS (OTHER THAN POWER SUPPLIES) THAT COULD DISRUPT THE ENTIRE SYSTEM IF THEY FAIL. IN OUR DISCUSSION, WE ALSO POINTED OUT THAT THE LIKELIHOOD OF A POWER SUPPLY FAILURE INCREASES AS THE NUMBER OF POWER SUPPLIES IS INCREASED AND, THUS, THE SPECIFICATION, AS WRITTEN, WOULD NOT NECESSARILY CONSTITUTE THE BEST MEANS OF MEETING THE AGENCY'S NEED FOR RELIABILITY AND DEPENDABILITY. ALSO DETERMINED THAT IT IS POSSIBLE THAT A SYSTEM CONTAINING A WELL- DESIGNED, FUSED AND SURGE-PROTECTED CENTRAL POWER SOURCE COULD OFFER THE ARMY THE SAME RELIABILITY AS A SYSTEM COMPOSED OF INDIVIDUAL POWER SOURCES. THE RECORD FURTHER INDICATED THAT DLI HAD USED SYSTEMS WITH CENTRAL POWER SUPPLIES AND HAD NEVER EXPERIENCED A POWER SUPPLY FAILURE WITH THESE SYSTEMS; AND, FINALLY THAT THE SPECIFICATIONS' DRAFTERS, WHO RELIED ON THEIR "EXPERIENCE" TO JUSTIFY THE REQUIREMENT FOR INDEPENDENT POWER SUPPLIES, HAD NEVER DOCUMENTED THIS EXPERIENCE OR ESTABLISHED THAT THE EXPERIENCE WAS RELEVANT TO THIS PROCUREMENT. BASED ON THIS INFORMATION, WE CONCLUDED THAT THE ARMY HAD NOT ESTABLISHED A PRIMA FACIE CASE FOR REQUIRING THAT EACH STUDENT'S UNIT CONTAIN ITS OWN POWER SUPPLY.

GEL NOW ARGUES THAT OUR CONCLUSION THAT AS THE NUMBER OF POWER SOURCES INCREASE THE LIKELIHOOD OF POWER SUPPLY FAILURE RISES IS NOT CORRECT. GEL, HOWEVER, HAS NOT QUESTIONED THE VALIDITY OF THE OTHER REASONS WE ADVANCED FOR OUR POSITION ON THE POWER SUPPLY ISSUE, OTHER THAN SUGGESTING THAT THESE OTHER REASONS STEM ONLY FROM THE QUESTIONED DOCUMENTS. SINCE THESE REASONS, INDEPENDENT OF THE ONE ELEMENT CHALLENGED BY GEL, STILL SUPPORT THE VALIDITY OF OUR CONCLUSION, GEL SIMPLY HAS NOT SHOWN THAT OUR BASIC CONCLUSION ON THE POWER SUPPLY ISSUE IS ERRONEOUS.

FINALLY, GEL INSISTS THAT BECAUSE GEL'S APPARENT SUPPLIER, TELEX, STATES THAT IT COULD OFFER BOTH CENTRALIZED AND INDIVIDUAL POWER SUPPLIES, WE SHOULD HAVE UPHELD THE SPECIFICATION FOR INDIVIDUAL POWER SUPPLIES. WHETHER TELEX COULD ALSO OFFER A SYSTEM WITH INDIVIDUAL POWER SUPPLIES IS IRRELEVANT TO THE QUESTION OF THE PROPRIETY OF THE SPECIFICATION REQUIREMENT FOR INDIVIDUAL POWER SUPPLIES. IF THE ARMY CANNOT ESTABLISH PRIMA FACIE SUPPORT FOR THIS SPECIFICATION-- WHICH IT HAS NOT DONE TO DATE -- THEN THE SPECIFICATION CANNOT BE ALLOWED TO STAND AS IT DOES NOT EXPRESS THE ARMY'S REASONABLE NEEDS FOR THIS ASPECT OF THE UNIT.

WE AFFIRM OUR DECISION.