B-231680, Oct 4, 1988, 88-2 CPD 316
B-231680: Oct 4, 1988
Brand name) in request for proposals is not unduly restrictive of competition where: (1) the agency does not possess a technical data package for the component. (2) the cost of alternatives such as reverse engineering are inconsistent with the value of the requirement. (3) only a limited number of the components are being procured since the component is due to be phased out with the radios it supports. Protester that cannot comply with requirement to supply brand name radio component is not an interested party to challenge other solicitation provisions. Gel contends that the RFP is unduly restrictive of competition. The current solicitation is the third attempt by MCLB to obtain AN/UNH 17B recorder/reproducer sets.
B-231680, Oct 4, 1988, 88-2 CPD 316
PROCUREMENT - Specifications - Minimum needs standards - Competitive restrictions - Allegation substantiation - Evidence sufficiency DIGEST: 1. Agency's specification of particular radio component by part number and manufacturer (i.e., brand name) in request for proposals is not unduly restrictive of competition where: (1) the agency does not possess a technical data package for the component, (2) the cost of alternatives such as reverse engineering are inconsistent with the value of the requirement, and (3) only a limited number of the components are being procured since the component is due to be phased out with the radios it supports. PROCUREMENT - Bid Protests - GAO procedures - Interested parties 2. Protester that cannot comply with requirement to supply brand name radio component is not an interested party to challenge other solicitation provisions.
Gel Systems, Inc.:
Gel Systems, Inc., protests request for proposals (RFP) M67004-88-R 0132 for a quantity of recorder/reproducer components issued by the Marine Corps Logistics Base (MCLB), Albany, Georgia. Gel contends that the RFP is unduly restrictive of competition, contains misleading information, and violates applicable law regarding small business set asides.
We deny the protest in part and dismiss it in part.
The current solicitation is the third attempt by MCLB to obtain AN/UNH 17B recorder/reproducer sets, designated by National Stock Number (NSN) 5835-01-092-5311. The first RFP, issued October 3, 1986, for 40 units, was canceled due to ambiguities in the description of the item. The second RFP, issued August 5, 1987, for 58 units, was canceled when MCLB decided to attempt to develop a performance specification. /1/
The current RFP was issued May 12, 1988, for 28 units. As with the previous solicitations, MCLB specified the NSN for the -17B unit along with the identification numbers and part numbers (PNs) of two sources able to produce the units. Only 28 units are to be procured because radios that the -17B support are scheduled to be phased-out of use in 1991. Consequently, these units will be the last such units MCLB will ever purchase.
The RFP advises offerors that the specified units must conform to the - 17B specifications, drawings, and requirements in the possession of the listed sources; offerors must list the PN of the unit offered; and, if the stated PN is different from those of the listed sources, they must certify that the offered unit is identical to the PNs of the listed sources. The RFP does not provide for the submission of offers on any alternate or "equal" items. According to MCLB, any concern may compete so long as it offers to supply the specified -17B unit. While as many as four offerors have participated in the prior solicitations, only the listed sources submitted offers on the current RFP.
In its protest, Gel first complains that the RFP unduly restricts competition.
As a general rule, we have recognized that government procurement officials, as the ones most familiar with the conditions under which the agency has used and will use equipment, are in the best position to know the government's actual needs. Consequently, when a protest challenges a requirement, including a brand name only specification, as being unduly restrictive of competition, the burden initially is on the procuring agency to establish prima facie support for its contention that the restriction is needed to meet is minimum needs. If the agency establishes this prima facie support, the burden shifts to the protester to show that the requirement complained of is clearly unreasonable. See Monarch Water Systems, Inc., 64 Comp.Gen. 756, 762 (1985), 85-2 CPD Para. 146; Phillips Cartner & Co., Inc., B-224370.2, Oct. 2, 1986, 86-2 CPD Para. 382.
In support of the RFP restrictions, MCLB explains that without possessing a technical data package (TDP) with necessary drawings and specifications, it was unable to issue a solicitation with performance specifications, and so solicited the "brand name" designations of the two known sources of the -17B. As a component of three different radios in use by the Marine Corps, the minimum needs of the agency require that replacement units must be compatible and interchangeable with existing equipment. Use of a commercial, off-the-shelf replacement was rejected due to unknown effects on the circuitry of existing equipment and the necessity, at lower echelon levels, to return any such commercial units to the manufacturer for repairs. Thus, introduction of even a few items of a different configuration was deemed unacceptable.
While a functional or performance-type specification might have alleviated the problems with a commercial unit, the absence of a TDP meant such a specification must be developed, which the Marine Corps advises would require a minimum of 120 days at a cost of over $8,000. addition, the agency states that the cost of developing, printing, and distributing a new technical manual, with related provisioning and cataloging of piece parts for repair, would cost an estimated $49,875. the alternative, reverse engineering of the existing -17B unit would take over 2,000 man-hours at a cost of $146,737. The MCLB considers such costs inconsistent with the value of the requirement, where, for example, in the original solicitation, one firm offered to produce all 40 units for less than $160,000. Since only 28 units are solicited and no further units will be procured, the agency determined that its minimum needs could only be met by specifying the PNs of the two known sources.
As a former contractor for -17A units for the Army, Gel claims that MCLB in fact has a usable TDP: the -17A TDP which allegedly can be modified by a functional statement of work for any extra features. Further, Gel contends that to the extent there is a -17B unit, it is merely a -17A unit modified by the two listed sources without authority, and MCLB cannot legitimately solicit its supply.
We find that MCLB has established the required prima facie support for its brand name requirement and that Gel has failed to demonstrate that the requirement is clearly unreasonable. We therefore find nothing objectionable in MCLB's statement of its minimum needs. Moreover, Gel has presented no evidence to support its allegation that the -17B is not a legitimate item of military hardware. In fact, we note that the Army, which Gel claims would be the only organization able to authorize a -17B, had ordered 30 of the units as part of the canceled second solicitation. With regard to use of the -17A TDP for production of the -17B unit, the agency advises that the -17A TDP is not even adequate to produce the -17A unit and that Gel agrees.
Since Gel has not disputed the agency's statement, we conclude that there is no support for Gel's allegation that -17A specifications are a viable starting point for -17B production.
Gel also claims that in actuality the procurement is for a sole source item and that MCLB intentionally misled offerors by listing a second defunct source of supply. These allegations are without merit. Since there are two sources of supply for the -17B unit and the RFP does not restrict participation only to the listed sources, this is not a sole- source procurement. In any event, where, as here, a requirement is reasonable and necessary, the fact that only one or a limited number of firms can comply with it, does not indicate that a violation of the competitive procurement regulations has occurred. See Rolm Corp., B-214052, Sept. 11, 1984, 84-2 CPD Para. 280. With regard to "misleading information," although the RFP did list the incorrect identification number for one of the sources, the correct PN was listed and amendment 0002 to the RFP corrected the source's identification number. Thus, this issue is academic. See Target Financial Corp., B-228131, Nov. 23, 1987, 87-2 CPD Para. 506. While, as the protester notes, MCLB was aware of the correct identification number at the time of the second RFP, we find no evidence that the erroneous entry in the current RFP is due to bad faith. See Business Communications Systems, Inc., B-218619, July 29, 1985, 85-2 CPD Para. 103.
In its comments on the agency report, Gel further complains that the listed sources are not properly included because they do not meet the requirements for "approved sources." Since this procurement essentially involves a brand name only solicitation and does not restrict participation to the sources listed, whether these sources would be properly denominated "approved" pursuant to the Department of Defense Supplement to Federal Acquisition Regulation (DFARS) Sec. 17.720-3 (DAC 86-1) is not relevant to this protest.
Gel also raises a number of other issues regarding the solicitation: the legality of MCLB's decision not to set aside the procurement for small business; the elimination of any specific evaluation factors under RFP section M; the alleged restrictiveness of several requirements regarding drawings and specifications; and the propriety of requiring compliance with Military Standard (MIL-STD) 481 regarding waivers and deviations (RFP paragraph C-3). In view of our determination that the RFP is properly restricted to the listed PNs for the -17B and Gel's admitted inability to produce the -17B and lack of an indication that it will produce or supply it as solicited, we find that Gel is not an interested party to object to other provisions of the solicitation. See Bid Protest Regulations, 4 C.F.R. Secs. 21.0(a) and 21.1(a) (1988). Accordingly, the protest is dismissed as to these bases. W.A. Whitney Corp., B-227082, July 7, 1987, 87-2 CPD Para. 20.
The protest is denied in part and dismissed in part.
/1/ A protest filed by Gel against the second solicitation was dismissed as academic (B-229503).