B-220633, FEB 18, 1986, 65 COMP.GEN. 305

B-220633, FEB 18, 1986, 65 COMP.GEN. 305

CONTRACTS - NEGOTIATION - REQUESTS FOR PROPOSALS - SPECIFICATIONS - RESTRICTIVE - GENERAL ACCOUNTING OFFICE RECOMMENDATION OF LESS RESTRICTION SOLICITATION REQUIREMENT THAT ADP SERVICE CONTRACTOR'S PROPOSED PERSONNEL COMBINE RECENT BATTLE GROUP EXPERIENCE AND EXPERIENCE WITH "JOTS II PLUS" SOFTWARE IS UNDULY RESTRICTIVE OF COMPETITION. THE RESTRICTION LIMIT COMPETITION TO A SOLE-SOURCE OF SUPPLY, AND THE AGENCY HAS NOT SHOWN CONVINCINGLY THAT ITS NEEDS CANNOT BE MET BY FIRMS POSSESSING OTHER THAN THE EXACT EXPERIENCE SPECIFIED.

MATTER OF: DANIEL H. WAGNER, ASSOCIATES, INC., FEB. 18, 1986:

DANIEL H. WAGNER, ASSOCIATES, INC., PROTESTS THE PROVISIONS OF REQUEST FOR PROPOSALS (RFP) NO. N00189-85-R-0514, ISSUED BY THE NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA. THE SOLICITATION CONTEMPLATES A FIXED LEVEL OF EFFORT CONTRACT FOR TRAINING, MAINTENANCE AND OTHER SERVICES TO SUPPORT THE NAVY'S JOINT OPERATIONAL TACTICAL SYSTEM (JOTS) II PLUS PROGRAM. THE PROTESTER CONTENDS THAT THE SOLICITATION IS UNNECESSARILY RESTRICTIVE OF COMPETITION AND RESULTS IN AN IMPROPER SOLE-SOURCE AWARD TO INTERNATIONAL RESEARCH INSTITUTE (INRI). WE SUSTAIN THE PROTEST.

BACKGROUND

JOTS IS A SHIPBOARD COMMAND AND CONTROL SYSTEM DESIGNED TO ASSIST AIRCRAFT CARRIER GROUP COMMANDERS IN BATTLE MANAGEMENT. THE SYSTEM CONSISTS OF A NETWORK OF MICROCOMPUTERS INTEGRATED WITH THE IMBEDDED SHIPBOARD COMBAT SYSTEMS. JOTS SOFTWARE PERMITS THE SYSTEM TO FUNCTION AS A TACTICAL DECISION AID.

THE PROTESTER DEVELOPED THE INITIAL JOTS SOFTWARE AND PROVIDED TRAINING ON ITS USE UNDER A 1983 CONTRACT WITH THE NAVY. WITH FURTHER DEVELOPMENT, ALSO UNDER CONTRACT WITH THE PROTESTER, THE SYSTEM CAME TO BE KNOWN AS JOTS II. IN APRIL 1984, TWO OF THE PROTESTER'S PERSONNEL WHO HAD BEEN INVOLVED IN SUPPORTING JOTS II RESIGNED TO WORK FOR INRI. THE NAVY THEN AWARDED A CONTRACT FOR JOTS SUPPORT SERVICES TO INRI. UNDER THIS LATTER CONTRACT, THE JOTS SOFTWARE EVOLVED TO BECOME JOTS II PLUS.

THROUGH AN AUGUST 5, 1985, NOTICE IN THE COMMERCE BUSINESS DAILY (CBD), THE NAVY ANNOUNCED ITS INTENTION TO ISSUE A SOLE-SOURCE SOLICITATION TO INRI FOR JOTS II PLUS TRAINING AND MAINTENANCE FOR 1 YEAR, WITH 1 ADDITIONAL OPTION YEAR. THE NOTICE STATED THAT IN-DEPTH KNOWLEDGE OF JOTS II PLUS SOFTWARE WAS REQUIRED, AS WAS SPECIFIC KNOWLEDGE OF OTHER JOTS FEATURES. THE AGENCY PREPARED A JUSTIFICATION FOR USE OF OTHER THAN COMPETITIVE PROCEDURES, AS REQUIRED BY 10 U.S.C.A. SEC. 2304(F) (WEST SUPP. 1985), AS AMENDED BY THE COMPETITION IN CONTRACTING ACT OF 1984 (CICA), PUB.L. NO. 98-369, 98 STAT. 1175, 1187, INDICATING THAT THE REQUIRED PROPERTY OR SERVICES WERE AVAILABLE FROM ONLY ONE RESPONSIBLE SOURCE AND NO OTHER TYPE OF PROPERTY OR SERVICES WOULD SATISFY ITS NEEDS. SEE 10 U.S.C.A. SEC. 2304(C)(1).

THE PROTESTER RESPONDED TO THE CBD SYNOPSIS BY ASSERTING THAT IT WAS QUALIFIED TO PERFORM THE REQUIRED JOTS II PLUS SERVICES. IT DESCRIBED IN SOME DETAIL THE QUALIFICATIONS OF TWO SUBCONTRACTORS THAT IT PROPOSED TO USE IN THIS EFFORT AND OBJECTED TO THE SOLE-SOURCE NATURE OF THE PROCUREMENT.

AFTER CONSULTING WITH THE USING ACTIVITY, THE CONTRACTING OFFICER CONCLUDED THAT THE REQUIREMENTS IN THE SOLICITATION ISSUED TO INRI REFLECTED THE NAVY'S NEEDS, AND THUS, WERE NOT OVERLY RESTRICTIVE. THE REQUIREMENTS IN QUESTION, TO WHICH THE PROTESTER OBJECTS, SPECIFY THAT THE OFFEROR'S PROJECT MANAGER HAVE PREVIOUS EXPERIENCE IN THE INSTALLATION OF JOTS II PLUS AND IN TRAINING BATTLE GROUP STAFF IN ITS USE. THE SOLICITATION ALSO REQUIRES THE PROJECT MANAGER TO HAVE AT LEAST 3 YEARS OF FIRST-HAND EXPERIENCE WITH CARRIER GROUP STAFF ACROSS ALL WARFARE AREAS, AND STATES THAT THE EXPERIENCE "MUST BE RECENT, WITHIN THE LAST 6 MONTHS PRECEDING THIS SOLICITATION." IN ADDITION, THE SOLICITATION REQUIRES BOTH THE PROJECT MANAGER AND THE PROJECT ANALYST/COMPUTER PROGRAMMER TO HAVE "DETAILED KNOWLEDGE OF THE JOTS II PLUS PROGRAM, INCLUDING SYSTEM ARCHITECTURE, PROGRAM CODE, TACTICAL APPLICATIONS, AND DOCUMENTATION." FINALLY, THE SOLICITATION REQUIRES THE PROJECT ANALYST/COMPUTER PROGRAMMER TO HAVE EXPERIENCE WITHIN THE LAST 6 MONTHS WITH AIRCRAFT CARRIER BATTLE GROUP STAFF.

ACCORDING TO THE PROTESTER, CARRIER GROUP OPERATIONS DO NOT CHANGE SO RAPIDLY THAT PERSONNEL WITH EXPERIENCE WITHIN THE LAST 2 YEARS, RATHER THAN THE LAST 6 MONTHS, COULD NOT MEET THE AGENCY'S TRAINING NEEDS. ADDITION, THE PROTESTER SAYS THE NAVY HAS RESTRICTED THE PROCUREMENT TO INRI BY REQUIRING DETAILED KNOWLEDGE OF JOTS II PLUS. THE PROTESTER ARGUES THAT JOTS II PLUS IS NOT SIGNIFICANTLY DIFFERENT FROM JOTS II, THE SYSTEM IT DESIGNED AND WITH WHICH IT IS FAMILIAR.

THERE APPEARS TO BE NO QUESTION BUT THAT THE EXPERIENCE REQUIREMENTS WERE INTENDED TO DESCRIBE THE QUALIFICATION OF THE TWO EMPLOYEES WHO, HAVING ONCE WORKED FOR THE PROTESTER, ARE NOW EMPLOYED BY INRI. THE NAVY JUSTIFIES THE RESTRICTION ON THE BASIS THAT THE RAPIDLY CHANGING THREAT IT FACES HAS MEANT THAT BATTLE GROUP OPERATIONS ARE CONSTANTLY CHANGING. SPECIFICALLY, THE NAVY SAYS THAT OPERATIONAL PLANS AS WELL AS FIGHTING INSTRUCTIONS CHANGED SIGNIFICANTLY DURING THE 6 TO 8 MONTHS PRIOR TO ISSUANCE OF THE SOLICITATION. THE NAVY SAYS THAT INTEGRATION OF CURRENT TACTICS WITH THE JOTS II PLUS NETWORK IS CONSIDERED THE "HEART" OF ITS REQUIREMENT. IT ARGUES THEREFORE THAT IT IS REASONABLE TO REQUIRE THE SUCCESSFUL CONTRACTOR TO HAVE A COMPLETE AND UP-TO-DATE UNDERSTANDING OF BATTLE GROUP RESPONSES AND TACTICS.

IN ADDITION, THE AGENCY DEFENDS ITS REQUIREMENT THAT THE CONTRACTOR'S PERSONNEL HAVE DETAILED KNOWLEDGE OF JOTS II PLUS AS OPPOSED TO JOTS OR JOTS II ON THE BASIS THAT JOTS II PLUS INCLUDES AN ENTIRELY NEW OPERATING SYSTEM, NEW DECODERS, AND A NEW COMMUNICATIONS SYSTEM PERMITTING AUTOMATIC TRANSMISSION OF DATA THROUGHOUT THE NETWORK OF COMBAT CENTERS AND MANUAL DATA TRANSMISSION FROM STATION TO STATION. THE AGENCY SAYS THAT GIVEN THE SCOPE OF THE CHANGES, FAMILIARITY WITH JOTS II CANNOT BE SUBSTITUTED FOR DETAILED KNOWLEDGE OF JOTS II PLUS.

ANALYSIS

GENERALLY, WHEN A SOLICITATION PROVISION IS CHALLENGED AS UNDULY RESTRICTIVE OF COMPETITION, THE INITIAL BURDEN IS ON THE PROCURING ACTIVITY TO ESTABLISH PRIMA FACIE SUPPORT FOR ITS CONTENTION THAT THE RESTRICTION IS JUSTIFIED. THE ADEQUACY OF A JUSTIFICATION IS DETERMINED BY EXAMINING WHETHER THE AGENCY'S EXPLANATION CAN WITHSTAND LOGICAL SCRUTINY. R.R. MONGEAU ENGINEERS, INC., B-218356, B-218357, JULY 8, 1985, 85-2 CPD PARA. 29. ONCE THIS PRIMA FACIE SUPPORT IS ESTABLISHED, HOWEVER, THE BURDEN SHIFTS TO THE PROTESTER, TO SHOW THAT THE ALLEGEDLY RESTRICTIVE PROVISION IS UNREASONABLE. LOGISTICAL SUPPORT INC., B-208763, APR. 22, 1983, 83-1 CPD PARA. 436.

A STRICTER RULE IS APPROPRIATE, HOWEVER, WHEN THE EFFECT OF A RESTRICTION IS TO LIMIT THE PROCUREMENT TO A SOLE-SOURCE OF SUPPLY. TO JUSTIFY A SOLE -SOURCE AWARD, AN AGENCY MUST ESTABLISH CONVINCINGLY THAT THERE IS (OR THAT AT THE TIME OF AWARD IT REASONABLY BELIEVED THERE WAS) CLEARLY BUT ONE POSSIBLE CONTRACTOR. ROLM CORP., AND FISK TELEPHONE SYSTEMS, INC., B-202031, AUG. 26, 1981, 81-2 CPD PARA. 180, AFF'D OCT. 9, 1981, 81-2 CPD PARA. 291; LEAR SIEGLER INC., B-209524, SEPT. 1, 1983, 83-2 CPD PARA. 285. MOREOVER, UNDER THE CICA PROVISION THE NAVY CITES, A SOLE-SOURCE AWARD IS JUSTIFIABLE ONLY IF THE SERVICES ARE AVAILABLE FROM BUT ONE SOURCE AND NO OTHER TYPE OF SERVICES WILL SATISFY THE AGENCY'S NEED. U.S.C.A. SEC. 2304(C)(1). SOLE-SOURCE PROCUREMENTS UNDER CICA ARE SUBJECT TO CLOSE SCRUTINY BY OUR OFFICE. WSI CORP., B-220025, DEC. 4, 1985, 85-2 CPD PARA. 626.

AS INDICATED, IT IS CLEAR FROM THE RECORD THAT THE NAVY AT ALL TIMES CONTEMPLATED A SOLE-SOURCE AWARD TO INRI AND DRAFTED THE DISPUTED REQUIREMENTS WITH ONLY INRI IN MIND. THE NAVY HAS NOT SHOWN CONVINCINGLY, HOWEVER, THAT ITS NEEDS CAN BE SATISFIED ONLY BY THE TWO EMPLOYEES OF THE INCUMBENT ON WHOSE BACKGROUND THE REQUIREMENTS ARE BASED. IT HAS NOT JUSTIFIED THE EXCLUSION OF FIRMS SUCH AS THE PROTESTER WHOSE JOTS II AND CARRIER BATTLE GROUP EXPERIENCE MAY BE LESS RECENT, BUT WHO NEVERTHELESS POSSESS SUBSTANTIAL, RELEVANT COMMUNICATIONS, PROGRAMMING, TRAINING, AND SIMILAR SUPPORT SERVICE EXPERTISE.

WHILE THE NAVY HAS IDENTIFIED DIFFERENCES BETWEEN JOTS II AND JOTS II PLUS-- FOR EXAMPLE, A CHANGE IN OPERATING SYSTEMS, MIGRATION TO A REAL- TIME DESIGN, AND SUPPORT OF A NUMBER OF INTERFACES TO PERMIT THE COMPUTERS TO COMMUNICATE WITH PERIPHERAL SYSTEMS-- IT HAS NOT EXPLAINED ANY OF THE CHANGES IN SUFFICIENT TECHNICAL DETAIL TO SHOW THAT THE WORK IS OF A NATURE THAT WOULD PRECLUDE COMPETITION BY EXPERIENCED COMPUTER PERSONNEL WITH ACCESS TO THE PROGRAM CODE AND DOCUMENTATION AND WITH EXPERIENCE WITH SIMILAR, RELATED TACTICAL DECISION SUPPORT SYSTEMS. WE ARE TOLD THAT THE CHANGES TO JOTS AND JOTS II PLUS HAVE BEEN EXTENSIVE. WE HAVE BEEN PROVIDED WITH LITTLE DOCUMENTATION OF THIS CLAIM. THE AGENCY SAYS THAT A CHANGE IN THE OPERATING SYSTEM WAS MADE, BUT WE ARE NOT TOLD WHAT IT WAS. IT ARGUES THAT THE SYSTEM NOW INCLUDES ENHANCED COMMUNICATIONS CAPABILITIES, BUT DOES NOT DESCRIBE THESE CHANGES IN DETAIL OR EXPLAIN WHY ONLY THE TWO INDIVIDUALS WHO IMPLEMENTED THE NEW SYSTEM ARE CAPABLE OF UNDERSTANDING IT. MOREOVER, THE NAVY HAS OFFERED NO DETAILED EVIDENCE TO ILLUSTRATE OR OTHERWISE SUPPORT ITS CONTENTION THAT RECENT CHANGES IN CARRIER GROUP OPERATIONS ARE SO EXTENSIVE THAT IT WOULD BE IMPOSSIBLE FOR SOMEONE WHO HAS NOT BEEN INVOLVED IN THE WORK DURING THE PAST 6 MONTHS TO PERFORM THE CONTRACT.

ON THE OTHER HAND, THE NAVY CONCEDES THAT THE CHANGES MADE BETWEEN JOTS II AND JOTS II PLUS INVOLVED CHANGES TO WARFARE-SPECIFIC DECISION AID MODULES (THE HEART OF THE SYSTEM) ONLY TO THE EXTENT THAT THEY WERE RESTRUCTURED TO PERMIT THEM TO INTERACT PROPERLY WITH THE NEW OPERATING SYSTEM. THE PROTESTER WAS FAMILIAR WITH JOTS II. ADDITIONALLY, THE RECORD SHOWS THE PROTESTER AND ITS TWO PROPOSED SUBCONTRACTORS (DATA SYSTEMS AND EDO CORPORATION) HAVE EXTENSIVE EXPERIENCE WITH DATA LINK/COMPUTER COMMUNICATIONS, INCLUDING SUBSTANTIAL EXPERIENCE WITH THE SYSTEMS THE NAVY CITES AS SIGNIFICANT IN THE EVALUATION OF JOTS II PLUS. THEY ALSO HAVE HAD EXTENSIVE EXPERIENCE WITH NAVAL OPERATIONS, AS WELL AS WITH NAVAL WARFARE MODELS, TACTICS AND TRAINING.

IN THE CIRCUMSTANCES, WE FIND NO CONVINCING SUBSTANTIATION FOR THE NAVY'S POSITION THAT JOTS II PLUS IS SO COMPLEX THAT IT WOULD BE IMPOSSIBLE FOR ANY FIRM EXCEPT ONE EMPLOYING THE TWO INDIVIDUALS WHO CURRENTLY WORK FOR INRI TO PERFORM THE CONTRACT. SIMILARLY, WE FIND THAT THE NAVY HAS NOT ESTABLISHED THAT THE MAGNITUDE OF RECENT CHANGES IN CARRIER GROUP OPERATIONS HAS BEEN SO EXTENSIVE AS TO PRECLUDE SATISFACTORY PERFORMANCE BY OTHERWISE QUALIFIED INDIVIDUALS WHOSE EXPERIENCE MAY HAVE BEEN ACQUIRED MORE THAN 6 MONTHS AGO, ASSUMING THOSE INDIVIDUALS ARE BRIEFED ON RECENT DEVELOPMENTS BEFORE THEY BEGIN PERFORMANCE.

FOR THE REASONS STATED, WE ARE RECOMMENDING THAT THE NAVY REVISED ITS SOLICITATION TO PERMIT COMPETITION BY ELIMINATING THE PROTESTED PROVISIONS THAT, AS THEY STAND, PRECLUDE CONSIDERATION OF PROPOSALS SUBMITTED BY ANY FIRM OTHER THAN INRI. OF COURSE, NOTHING IN OUR DECISION IS INTENDED TO PREVENT THE NAVY FROM GIVING RELEVANT EXPERIENCE REASONABLE WEIGHT IN SELECTING AN AWARDEE UNDER AN APPROPRIATELY REVISED SOLICITATION.

BY SEPARATE LETTER, WE ARE BRINGING OUR RECOMMENDATION TO THE ATTENTION OF THE SECRETARY OF THE NAVY.

THE PROTEST IS SUSTAINED.