B-174140, B-174205, MAY 16, 1972

B-174140,B-174205: May 16, 1972

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IT IS WELL-RECOGNIZED THAT THE GOVERNMENT MAY PROPERLY REQUIRE OPERATIONAL FEATURES UPGRADING THE STATE-OF-THE-ART. WHEREAS PAST PROCUREMENTS OF ANALOG EQUIPMENT WERE QUITE RESTRICTED. TO MATZKIN & DAY: REFERENCE IS MADE TO YOUR LETTER DATED APRIL 17. THE PROTESTS HAVE GENERATED A SUBSTANTIAL AMOUNT OF DISCUSSION AND CORRESPONDENCE COVERING THE TECHNICAL AND LEGAL ISSUES PERTINENT THERETO. A BRIEF SUMMARY OF THE PROCUREMENT HISTORY OF THE TEST SET IS APPROPRIATE. REQUIREMENTS FOR THE TEST SET HAVE BEEN FULFILLED BY SOLICITATIONS ON BRAND NAME OR EQUAL BASES. SOLICITATION DOCUMENTS FOR THE TEST SET HAVE CITED THE BOWMAR/ALI AND SIERRA MODELS AS BRAND NAMES OR ON AN EQUIVALENCY BASIS. THAT SPECIFICATION WAS SUPERSEDED ON DECEMBER 22.

B-174140, B-174205, MAY 16, 1972

BID PROTEST - TECHNICAL ACCEPTABILITY - UPGRADED STATE-OF-THE-ART - COMPETITIVE BASE DECISION DENYING THE PROTEST OF BOWMAR/ALI, INC., AGAINST TWO PROCUREMENTS INVOLVING THE AWARD OF A SOLE-SOURCE CONTRACT TO PHILCO FORD CORPORATION, SIERRA ELECTRONIC OPERATION, BY THE LEXINGTON-BLUE GRASS ARMY DEPOT AND THE PROPOSED AWARD OF A CONTRACT TO ANOTHER FIRM UNDER AN IFB ISSUED BY THE ARMY ELECTRONICS COMMAND, PHILADELPHIA, PA., FOR TEST SETS TO FULFILL THE REQUIREMENTS OF THE ARMY STRATEGIC COMMUNICATIONS COMMAND. IN A HIGHLY-SPECIALIZED PROCUREMENT, THE AGENCY HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING THE NEEDS OF THE GOVERNMENT. 46 COMP. GEN. 606, 609 (1967). FURTHER, IT IS WELL-RECOGNIZED THAT THE GOVERNMENT MAY PROPERLY REQUIRE OPERATIONAL FEATURES UPGRADING THE STATE-OF-THE-ART. THE INSTANT CASE, THE OPERATIONAL ENGINEERING ADVANTAGES OF A DIGITAL READOUT OF DELAY PERMIT ITS INCLUSION AS A REASONABLE REQUIREMENT OF THE SOLICITATIONS. FINALLY, THE COMP. GEN. NOTES THE PRESENT AND PROBABLE FUTURE EXISTENCE OF A BROAD COMPETITIVE BASE, WHEREAS PAST PROCUREMENTS OF ANALOG EQUIPMENT WERE QUITE RESTRICTED. IN VIEW OF THE FOREGOING, THE PROTEST MUST BE DENIED.

TO MATZKIN & DAY:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 17, 1972, AND PRIOR CORRESPONDENCE, ON BEHALF OF BOWMAR/ALI, INC., CONCERNING PROTESTS AGAINST THE CONDUCT OF TWO PROCUREMENTS OF ENVELOPE DELAY DISTROTION MEASURING TEST SETS TO FULFILL REQUIREMENTS OF THE UNITED STATES ARMY STRATEGIC COMMUNICATIONS COMMAND (STRATCOM). ONE PROTEST INVOLVES THE AWARD OF SOLE -SOURCE CONTRACT NO. DAAG22-72-C-0024 TO PHILCO-FORD CORPORATION, SIERRA ELECTRONIC OPERATION (SIERRA) FOR 10 EACH TEST SETS BY THE PROCUREMENT DIVISION, LEXINGTON-BLUE GRASS ARMY DEPOT (LBAD) FOR INSTALLATION IN S-280 SHELTERS TO SUPPORT THE TECHNICAL VISITS PROGRAM (TVP). THE OTHER PROTEST DEALS WITH THE PROPOSED AWARD OF A CONTRACT FOR 51 EACH TEST SETS TO ANOTHER FIRM, UNDER INVITATION FOR BIDS (IFB) NO. DAAB05-71-B-0607, ISSUED BY THE UNITED STATES ARMY ELECTRONICS COMMAND (ECOM), PHILADELPHIA, PENNSYLVANIA, FOR USE BY STRATCOM IN ITS WORLDWIDE COMMUNICATIONS INSTALLATIONS.

THE PROTESTS HAVE GENERATED A SUBSTANTIAL AMOUNT OF DISCUSSION AND CORRESPONDENCE COVERING THE TECHNICAL AND LEGAL ISSUES PERTINENT THERETO. IN ADDITION, OUR OFFICE HAS CONDUCTED ITS OWN INDEPENDENT INVESTIGATION INTO THE MATTERS OF CONTROVERSY RAISED BY THE PROTESTS. FROM OUR REVIEW OF THE ENTIRE RECORD, WE MUST DENY THE PROTESTS OF BOWMAR/ALI FOR REASONS SET FORTH BELOW.

A BRIEF SUMMARY OF THE PROCUREMENT HISTORY OF THE TEST SET IS APPROPRIATE. IN ACCORDANCE WITH STRATCOM TECHNICAL SPECIFICATION SCC 65005 DATED JUNE 16, 1964, THE PREDECESSOR OF BOWMAR/ALI (ACTON LABORATORIES, INC.) DEVELOPED THE TEST SET, AFTER SUCCESSFULLY COMPETING IN A 1965 TWO-STEP FORMALLY ADVERTISED PROCUREMENT. SINCE THAT TIME, EXCEPT FOR THE INSTANT ECOM PROCUREMENT, REQUIREMENTS FOR THE TEST SET HAVE BEEN FULFILLED BY SOLICITATIONS ON BRAND NAME OR EQUAL BASES, CITING A BOWMAR/ALI MODEL NUMBER AND/OR A SIERRA MODEL NUMBER. FOR THE PAST SEVERAL YEARS, UP TO THE LBAD SOLE-SOURCE PROCUREMENT TO SIERRA, SOLICITATION DOCUMENTS FOR THE TEST SET HAVE CITED THE BOWMAR/ALI AND SIERRA MODELS AS BRAND NAMES OR ON AN EQUIVALENCY BASIS.

IN APRIL 1970, APPARENTLY TO AVOID FUTURE PROCUREMENTS ON A BRAND NAME OR EQUAL BASIS, THE UNITED STATES ARMY COMMUNICATIONS SYSTEMS AGENCY (USACSA) ISSUED A DETAILED SPECIFICATION COVERING THE TEST SET. THAT SPECIFICATION WAS SUPERSEDED ON DECEMBER 22, 1970, BY TECHNICAL SPECIFICATION NO. SCC- CSA-70507A, WHICH, ACCORDING TO THE ACTING ASSISTANT TO THE SECRETARY OF DEFENSE (TELECOMMUNICATIONS), "INCLUDED ALL OF THE DESIRABLE ENGINEERING CHANGES (TO THE TEST SET) PREVIOUSLY APPROVED, PLUS A REQUIREMENT FOR DIGITAL READOUT." THE ECOM PROCUREMENT REQUIRES OFFERORS TO FURNISH THE TEST SET IN ACCORDANCE WITH USACSA TECHNICAL SPECIFICATION NO. SCC-CSA- 70507A. SECTION 3.4.9A OF THE SPECIFICATION, ENTITLED "DELAY," READS, AS FOLLOWS:

"A. READOUT. THE MEASURING SET SHALL DISPLAY A DIRECT-DIGITAL READING OF DELAY."

IT IS THIS REQUIREMENT FOR DIGITAL READOUT WHICH CONSTITUTES THE PRINCIPAL BASIS OF THE BOWMAR/ALI PROTESTS. BOWMAR/ALI CONTENDS THAT THE DIGITAL REQUIREMENT PRECLUDES IT FROM OFFERING ITS STANDARD MODEL TEST SET UTILIZING AN ANALOG OR METER READOUT. IT IS URGED THAT THE REQUIREMENT FOR A DIGITAL (NUMBERED VALUE) READOUT OF DELAY EXCEEDS THE MINIMUM OR ACTUAL NEEDS OF THE GOVERNMENT AND, AS SUCH, RESULTS IN AN UNDUE RESTRICTION OF COMPETITION.

IN THIS REGARD, THE RECORD SHOWS THAT THE SOLE-SOURCE LBAD PROCUREMENT FOLLOWED A FORMALLY ADVERTISED BRAND NAME OR EQUAL PROCUREMENT FOR TEST SETS CITING EITHER OF TWO BOWMAR/ALI MODELS OR A SIERRA MODEL, UTILIZING A DIGITAL READOUT OF DELAY, OR EQUAL. ON FEBRUARY 5, 1971, BOWMAR/ALI WAS AWARDED THE CONTRACT ON ITS LOW BID OFFERING THE LESS SOPHISTICATED OF ITS TWO CITED MODELS. HOWEVER, AFTER DELIVERY AND ACCEPTANCE OF THE SETS, STRATCOM, THE USING ACTIVITY, DETERMINED THE SETS TO BE UNACCEPTABLE AND REQUESTED REPLACEMENT ACTION BY LBAD. WHEREUPON, LBAD AWARDED A SOLE- SOURCE PROCUREMENT TO SIERRA SINCE IT WAS DETERMINED THAT ONLY THE SIERRA MODEL SATISFIED CHARACTERISTICS CONSIDERED ESSENTIAL TO THE TVP PROGRAM, INCLUDING, AMONG OTHERS; SIZE (SIERRA MODEL CAN FIT INTO ASSIGNED SPACE IN TVP SHELTER), CERTAIN ACCURACY ASPECTS, AND DIGITAL READOUT OF DELAY. THE LATEST USACSA SPECIFICATION WAS NOT UTILIZED FOR THE PROCUREMENT BECAUSE IT DID NOT REFLECT CERTAIN REQUIREMENTS PECULIAR TO THE TVP PROGRAM.

AS MENTIONED ABOVE, THE ECOM PROCUREMENT CITED THE LATEST USACSA SPECIFICATION REQUIRING A DIGITAL READOUT OF DELAY. EIGHT BIDDERS RESPONDED WITH BOWMAR/ALI SUBMITTING THE SIXTH LOWEST BID. THE ECOM CONTRACTING OFFICER REJECTED BOWMAR/ALI'S REQUESTS TO SUBMIT ITS STANDARD MODEL HAVING AN ANALOG READOUT OF DELAY. MOREOVER, THE ECOM CONTRACTING OFFICER REPORTS THAT THERE ARE THREE DEFICIENCIES IN THE STANDARD BOWMAR/ALI MODEL WHICH PRECLUDE ITS ACCEPTANCE UNDER THE SPECIFICATION: (1) NO DIGITAL DELAY READOUT; (2) NO PHYSICALLY DEMONSTRATED RELIABILITY DATA; AND (3) INADEQUATE STABILITY OF MODULATION FREQUENCY OSCILLATOR. SHOULD BE NOTED THAT THE RECORD ESTABLISHES THAT NO TEST SET HAS EVER BEEN BUILT TO THE SPECIFICATION, HENCE, THE ECOM REQUIREMENTS FOR FIRST ARTICLE TESTING AND ACQUISITION OF TECHNICAL DATA.

IN OUR VIEW, THE REQUIREMENT FOR DIGITAL READOUT REPRESENTS A VALID AND REASONABLE REFLECTION OF THE ACTUAL NEEDS OF THE GOVERNMENT. HOWEVER, THE VARIOUS PROCURING AND USING ACTIVITIES INVOLVED HERE FAILED TO PROVIDE SUFFICIENT SUPPORT FOR THEIR CONCLUSIONS RESPECTING THE OTHER TECHNICAL AND SIZE UNACCEPTABILITIES OF THE BOWMAR/ALI MODEL. THE ACTING COMMANDING GENERAL OF STRATCOM, BY LETTER DATED MARCH 8, 1972, TO THE COMMANDING GENERAL, USACSA, STATES THAT "ACCEPTABLE ACCURACY CAN BE OBTAINED WITH THE ANALOG METHOD" AND THAT THE REPLACEMENT OF ANALOG WITH DIGITAL TEST SETS "IS BASED PRIMARILY UPON AN OPERATIONAL RATHER THAN AN ENGINEERING RESPONSIBILITY."

AS BOWMAR/ALI RECOGNIZES, THE DETERMINATION OF THE NEEDS OF THE GOVERNMENT AND THE METHOD OF ACCOMMODATING SUCH NEEDS IS PRIMARILY THE RESPONSIBILITY OF THE CONTRACTING AGENCIES OF THE GOVERNMENT. THIS IS PARTICULARLY APPLICABLE HERE WHERE THE PROCUREMENT IS FOR EQUIPMENT OF A HIGHLY SPECIALIZED NATURE AND THE DETERMINATIONS MUST BE BASED ON EXPERT TECHNICAL OPINION. SEE 46 COMP. GEN. 606, 609 (1967).

THE MARCH 8 LETTER, REFERRED TO ABOVE AND QUOTED BELOW, CUT THROUGH THE MAZE OF UNSUPPORTED ARGUMENTS CONCERNING TECHNICAL UNACCEPTABILITY OF A TEST SET WITH AN ANALOG READOUT AND CRYSTALLIZED THE GOVERNMENT'S RATIONALE BEHIND THE REQUIREMENT FOR DIGITAL READOUT. IN ESSENCE, THE GOVERNMENT JUSTIFIES THE NECESSITY FOR A TEST SET EMPLOYING DIGITAL READOUT OF DELAY BASED PRIMARILY ON HUMAN ENGINEERING FACTORS, ENCOMPASSING OPERATIONAL ADVANTAGES RESULTING IN MORE CONSISTENT LEVELS OF ACCURACY. THE LETTER READS, IN THIS REGARD, AS FOLLOWS:

"2. MEASUREMENT OF ENVELOPE DELAY DISTORTION IS AN INDISPENSABLE REQUIREMENT IN HIGH SPEED DATA CIRCUITS IN ORDER TO ENABLE ADJUSTMENT FOR THE DELAY DISTORTION *** WITHOUT WHICH THE HIGH SPEED CIRCUITS WOULD SOON BE IN A MARGINAL OR INOPERABLE STATUS. THE NEED FOR DIGITAL MEASUREMENT IS RECOGNIZED BY BOWMAR/ALI, ITSELF, IN AN UNSOLICITED PROPOSAL *** SUBMITTED TO STRATCOM IN OCTOBER 1968, WHICH WAS FAVORABLY CONSIDERED TECHNICALLY. THE TREND IN INDUSTRY AND GOVERNMENT IS TO DIGITAL READOUT TO IMPROVE MEASUREMENT SPEED AND ACCURACY. THIS HEADQUARTERS IS ADVISED THAT THE MAJOR COMMUNICATIONS CARRIERS ARE RECOGNIZING THE ADVANTAGES OF THE DIGITAL METHOD AND EITHER SWITCHING OR CONSIDERING SWITCHING FROM ANALOG TO DIGITAL READOUTS FOR VIRTUALLY THE SAME REASONS AS THE ARMY.

"3. *** THESE PROCEDURES (ANALOG), AT BEST, ARE HIGHLY CONDUCIVE TO OPERATOR ERROR. THE NECESSITY FOR THE MOST EFFICIENT USE OF PERSONNEL AT OPERATIONAL SITES AND INCREASED USE OF HIGHER SPEED DATA CIRCUITS, COMPELS THE ARMY TO PROCURE EQUIPMENT WHICH DECREASES PROBABILITY OF OPERATOR ERROR AND SUBSTANTIALLY REDUCES MEASUREMENT TIME; FURTHER, TRAINING CAPABILITY IS IMPROVED BY USE OF EQUIPMENT REQUIRING LESS COMPLICATED OPERATOR PROCEDURES FOR MORE ACCURATE RESULTS. THE REQUIREMENTS, RELATED TO OPERATOR TIME AND ACCURACY, PRECLUDE CONTINUED USE OF THE ANALOG METHOD OF READOUT.

"4. *** WITH DIGITAL READOUT THE DELAY EQUALIZATION PROCESS IS SIMPLIFIED BECAUSE THE OPERATOR CAN READ THE DIGITAL INDICATOR WITHOUT GOING TO THE MEASURING SET AND INTERPOLATING AND CALCULATING THE RESULT. IF THE STATION IS SUCH THAT MEASURING EQUIPMENT IS IN ANOTHER ROOM, AN UNTRAINED PERSON CAN EASILY READ THE RESULTS AND CALL THEM OUT TO THE OPERATOR. THUS, THE PROCESS IS SIMPLIFIED, MORE QUICKLY ACCOMPLISHED AND IN MOST CASES REQUIRES FEWER TRAINED PERSONNEL.

"5. ALTHOUGH ACCEPTABLE ACCURACY CAN BE OBTAINED WITH THE ANALOG METHOD, IT REQUIRES THE UTILIZATION OF MORE OPERATOR TIME AND MORE HIGHLY TRAINED OPERATORS. ***

"6. BY USING DIGITAL READOUT THE ARMY CAN BE ASSURED OF A MORE CONSISTENT LEVEL OF ACCURACY BY SUBSTANTIALLY REDUCING THE CHANCES OF OPERATOR ERROR IN INTERPOLATING METER READINGS AND PRECLUDING ARITHMETICAL MISCALCULATIONS. WITH A DIRECT DIGITAL READOUT THE FINAL RESULT, IN NUMERICAL FORM, IS PRESENTED DIRECTLY TO THE OPERATOR. THEREFORE, THE CHANCE THAT THE OPERATOR WILL MAKE A MISTAKE IN ADDING THE VALUES OF SWITCH SETTINGS TOGETHER IS ELIMINATED. THE REQUIREMENT TO INTERPOLATE THE VALUE OF A MOVING NEEDLE IS ALSO ELIMINATED. FINALLY, THE REQUIREMENT TO ADD THE INTERPOLATED VALUE OF THE METER READING TO THE SUM OF THE SWITCH SETTINGS IS ALSO ELIMINATED.

"7.THIS HEADQUARTERS CANNOT RECOGNIZE THE CLAIM THAT THE SPECIFICATION REQUIRING DIGITAL READOUT IS TOO RESTRICTIVE. IT IS WELL WITHIN THE STATE -OF-THE-ART AND A FEATURE IN EQUIPMENT SPECIFICATIONS OF SEVERAL MANUFACTURERS. WITH RESPECT TO ARMY EXISTING AND FUTURE REQUIREMENTS, DIGITAL READOUT IS AN ABSOLUTE MINIMUM REQUIREMENT IN STRATCOM PROCUREMENTS OF DELAY DISTORTION MEASURING EQUIPMENTS."

THE UNSOLICITED PROPOSAL FROM BOWMAR/ALI'S PREDECESSOR, ACTON LABORATORIES, INC., REFERRED TO IN NUMBERED PARAGRAPH 2 IN THE MARCH 8 LETTER, QUOTED ABOVE, CITES AS ONE OF THE SALIENT FEATURES OF AN IMPROVED TEST SET A DIGITAL READOUT OF DELAY IN LIEU OF THE THEN AND CURRENT ANALOG OR METER DISPLAY TO IMPROVE OPERATOR READABILITY OF DELAY.

WE DO NOT SUBSCRIBE TO THE BOWMAR/ALI CHARACTERIZATION OF THE DIGITAL REQUIREMENT AS MERELY A PERSONAL PREFERENCE UNRELATED TO THE ESSENTIAL NEEDS OF THE GOVERNMENT. IT IS AXIOMATIC THAT THE GOVERNMENT MAY OBTAIN TECHNICAL EQUIPMENT WHICH EMPLOYS OPERATIONAL FEATURES UPGRADING THE STATE -OF-THE-ART BY TAKING ADVANTAGE OF THE MOST ADVANCED DEVELOPMENTS AVAILABLE WHERE THE NEED EXISTS. WE BELIEVE THIS TO BE SO EVEN THOUGH SIMILAR EQUIPMENT GENERALLY EQUIVALENT FROM A PERFORMANCE STANDPOINT IS COMMERCIALLY AVAILABLE. OUR OFFICE HAS ATTACHED SIGNIFICANCE TO OPERATIONAL OR HUMAN ENGINEERING ADVANTAGES INVOLVED IN THE PROCUREMENT OF PARTICULAR EQUIPMENT AS PROPER REFLECTIONS ON THE MINIMUM NEEDS OF THE GOVERNMENT. SEE 51 COMP. GEN. 247 (B-173695, OCTOBER 27, 1971).

MOREOVER, OUR OWN INVESTIGATION AGREED WITH THE STATEMENTS MADE IN THE MARCH 8 LETTER CONCERNING THE ADVANTAGES TO BE DERIVED FROM THE USE OF A TEST SET EMPLOYING THE DIGITAL READOUT. WE DO NOT VIEW THE DIGITAL REQUIREMENT TO BE A FRIVOLOUS OR UNNECESSARY FEATURE OF THE TEST SET. OUR OPINION, DEFINITE ADVANTAGES, IN TERMS OF OPERATIONAL EASE, REDUCTION OF ERROR, SPEED OF READING DELAY AND FEWER AND LESS TRAINED PERSONNEL MAKE THE GOVERNMENT'S SPECIFYING SUCH A FEATURE TO BE NOT ONLY PREFERRED, BUT A REASONABLE REQUIREMENT IN THE CIRCUMSTANCES.

LEAVING ASIDE THE LBAD PROCUREMENT (A ONE-TIME BUY FOR THE SPECIALIZED TVP PROGRAM), THE ECOM PROCUREMENT GENERATED RESPONSES FROM EIGHT FIRMS EVIDENCING THE PRESENT AND PROBABLE FUTURE EXISTENCE OF A BROAD COMPETITIVE BASE. IN THE PAST, COMPETITION FOR TEST SET REQUIREMENTS HAS BEEN ESSENTIALLY LIMITED TO BOWMAR/ALI AND SIERRA. BOWMAR/ALI BELIEVES THAT THE GOVERNMENT SHOULD, BY BROADENING THE SPECIFICATION TO PERMIT THE OFFERING OF ANALOG EQUIPMENT, PERMIT ALL OF THE INDUSTRY, HERETOFORE NON- PARTICIPATING IN TEST-SET COMPETITION, TO DEVELOP EITHER TYPE OF TEST SET TO DETERMINE BY COMPETITION THE SET TRULY LESS COSTLY TO THE GOVERNMENT. WE DO NOT BELIEVE IT IS NECESSARY TO REQUIRE THE GOVERNMENT TO GO THROUGH THAT EXERCISE SINCE, AS MENTIONED ABOVE, THE ANALOG EQUIPMENT NO LONGER SATISFIES THE CONSIDERED MINIMUM NEEDS OF THE GOVERNMENT.

ACCORDINGLY, WE CONCLUDE THAT THE REQUIREMENT FOR A DIGITAL READOUT OF DELAY MAY NOT BE QUESTIONED BY OUR OFFICE.

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