B-167661 (1), B-167661 (2), MAY 5, 1970

B-167661 (1), B-167661 (2), MAY 5, 1970

CONTRACTS--SPECIFICATIONS--MINIMUM NEEDS REQUIREMENT--ADMINISTRATIVE DETERMINATION WHILE GOVERNMENT PROCUREMENTS ARE REQUIRED TO BE ON COMPETITIVE BASIS, PRIMARY OBJECTIVE OF SPECIFICATIONS IS TO REFLECT GOVERNMENT'S ACTUAL NEEDS AND WHERE FACTORS OTHER THAN PRICE ARE OF SUBSTANTIAL SIGNIFICANCE, COMPETITION MAY BE RELAXED TO PERMIT SOLE-SOURCE PROCUREMENT WHEN SINGLE SOURCE ONLY CAN SATISFY GOVERNMENT'S LEGITIMATE NEEDS. SINCE REPORTED FACTS EVIDENCED NEED FOR CONTINUING SPECIFIC SERVICES REQUIRED, AWARD ON SOLE-SOURCE BASIS WAS PROPER. WHILE VARIATIONS OF TERM "SOLE SOURCE" HAVE BEEN USED INTERCHANGEABLY THROUGHOUT GOVERNMENT PROCUREMENTS, SUCH USE WAS NOT INTENDED TO CONFUSE ISSUES AND IS NOT GERMANE TO PRINCIPAL ISSUES INVOLVED. GENERAL ACCOUNTING OFFICE--DECISIONS--RECONSIDERATION--BASIS WHILE GAO'S DECISIONS ARE IMPARTIALLY REACHED ON BASIS OF FACTS AND WILL BE RECONSIDERED IF MATERIAL MISTAKE OF LAW OR FACT IS ALLEGED AND PROVEN, WHEN ULTIMATE QUESTION IS OF HIGHLY TECHNICAL OR SCIENTIFIC NATURE, GAO MUST RELY ON PERSONNEL EMPLOYED BY GOVERNMENT TO DECIDE SUCH MATTERS AND WHEN THERE IS CONFLICT BETWEEN STATEMENTS OF PROTESTANT AND AGENCY'S REPORT UNDER LONG ESTABLISHED POLICY GAO MUST ACCEPT LATTER. CONCERNING NOTIFICATION THAT PROTESTANT WILL SEEK REMEDY IN COURT PURSUANT TO HOLDING IN SCANWELL LABORATORIES DECISION, GAO DECISIONS ARE NOT BINDING UPON JUDICIAL BRANCH OF GOVERNMENT. SEE COMP. GEN. DEC. AND CT. CASE CITED.

TO DIGITAL PROGRAMMING SERVICES, INC.:

WE ARE IN RECEIPT OF YOUR LETTER OF MARCH 19, 1970, WHEREIN YOU MAKE CERTAIN OBSERVATIONS AND RAISE QUESTIONS PERTAINING TO OUR DECISION OF MARCH 10, 1970, DENYING YOUR PROTESTS AGAINST PURCHASE REQUESTS NOS. PR CRL-02085 AND PR CRL-02088, ISSUED BY THE AIR FORCE CAMBRIDGE RESEARCH LABORATORIES (AFCRL) ON A SOLE SOURCE BASIS TO ANALYSIS AND COMPUTER SYSTEMS, INC. (ACSI).

THE DECISION OF MARCH 10, 1970, SETS FORTH THAT THE CONTRACTS WERE NEGOTIATED PURSUANT TO THE PROVISIONS OF 10 U.S.C. 2304 (A) (11). THE DECISION ALSO REFERS TO THE GENERAL RULE THAT WHILE PROCUREMENTS ACCOMPLISHED BY NEGOTIATIONS ARE REQUIRED TO BE ON A COMPETITIVE BASIS THE PRIMARY OBJECTIVE OF SPECIFICATIONS IS TO REFLECT THE ACTUAL NEEDS OF THE GOVERNMENT, AND IN CIRCUMSTANCES WHERE FACTORS OTHER THAN PRICE ARE OF SUBSTANTIAL SIGNIFICANCE, THE REQUIREMENT FOR COMPETITION MAY PROPERLY BE RELAXED TO PERMIT A SOLE SOURCE PROCUREMENT WHERE THE LEGITIMATE NEEDS OF THE GOVERNMENT CAN BE SATISFIED FROM ONLY A SINGLE SOURCE. WE CONCLUDED, THEREFORE, THAT SINCE THE REPORTED FACTS EVIDENCED THE NEED FOR CONTINUITY OF THE SPECIFIC SERVICES REQUIRED BY THE GOVERNMENT THAT THE CONTRACTS AWARDED TO ACSI WERE VALID.

YOU FIRST ASK WHY WE DID NOT QUESTION THE DETERMINATION TO NEGOTIATE THIS PROCUREMENT UNDER 10 U.S.C. 2304 (A) (11), "WHEN HAD THE AGENCY REALLY BELIEVED COMPETITION WAS IMPRACTICAL, IT WOULD HAVE USED (A) (10)." THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-210.3 SPECIFICALLY PROHIBITS THE USE OF THE LATTER NEGOTIATING AUTHORITY WHEN NEGOTIATION IS AUTHORIZED BY ANY OTHER NEGOTIATING EXCEPTION LISTED IN 10 U.S.C. 2304 (A), EXCEPT (A) (12). THE USE OF ANY OTHER EXCEPTION DOES NOT INVOLVE ANY DETERMINATION AS TO WHETHER COMPETITION IS AVAILABLE.

YOU NEXT STATE "WE WONDER WHY YOU FAILED TO DISTINGUISH BETWEEN SINGLE SOURCE PROCUREMENT AND SOLE SOURCE." IT IS THE EXPERIENCE OF OUR OFFICE THAT SEVERAL VARIATIONS OF THE TERM "SOLE SOURCE" ARE COMMONLY USED INTERCHANGEABLY THROUGHOUT GOVERNMENT PROCUREMENT, I. E; "SINGLE SOURCE", "SELECTED SOURCE" AND "ONE-SOURCE", AND WE ARE NOT AWARE OF ANY TECHNICAL DISTINCTION IN MEANING SO FAR AS REGULATORY OR STATUTORY PROVISIONS ARE CONCERNED. THESE VARIATIONS ARE REPEATEDLY USED WHEN CONDITIONS FOR SOLE SOURCE PROCUREMENTS ARE PRESENT AND JUSTIFIED. IF THERE WAS A TRANSITION OR INTERPLAY FROM THE USE OF THE WORDS "SOLE SOURCE" IN THE CORRESPONDENCE AMONG THE VARIOUS OFFICES INVOLVED IN THIS MATTER, WE DO NOT THINK THAT IT WAS INTENDED TO BE A PLAY ON WORDS OR AS A MEANS TO CONFUSE THE ISSUES, AND FAIL TO SEE WHERE SUCH A TRANSITION IS GERMANE TO A DISPOSITION OF THE PRINCIPAL ISSUES RAISED BY YOUR INITIAL PROTEST.

YOUR MAIN CONCERN SEEMS TO BE CENTERED AROUND YOUR QUESTION AS TO THE EXTENT OF OUR INVESTIGATION INTO THIS MATTER. AS IN ALL SIMILAR CASES, WE REQUESTED FROM THE AIR FORCE UPON RECEIPT OF YOUR PROTEST A DETAILED ADMINISTRATIVE REPORT RESPONSIVE THERETO, INCLUDING THE DOCUMENTARY RECORD. IN THIS CASE, AS IS OFTEN DONE, WE FURNISHED YOU COPIES OF THE PERTINENT PORTION OF THE ADMINISTRATIVE REPORT FOR REPLY. UPON RECEIPT OF YOUR ADDITIONAL COMMENTS AND ARGUMENTS, THE AIR FORCE WAS ASKED TO COMMENT ON NEW MATTERS RAISED IN YOUR LETTER OF OCTOBER 10, 1969. WHILE WE ATTEMPT TO REACH OUR DECISIONS IMPARTIALLY ON THE BASIS OF THE FACTS BEFORE US, FINAL DETERMINATION OF THE MINIMUM NEEDS OF THE GOVERNMENT IS NECESSARILY THE FUNCTION OF THE ADMINISTRATIVE AGENCY CONCERNED. IN THIS CASE THIS DETERMINATION INVOLVES COMPLEX QUESTIONS REQUIRING A THOROUGH KNOWLEDGE OF THE AIR FORCE'S SPACE EXPLORATION AND SATELLITE PROBE PROGRAM. OUR OFFICE MUST ACCORD A SIGNIFICANT DEGREE OF FINALITY TO THE CONTRACTING AGENCY'S DETERMINATION IN RESOLVING THE TECHNICAL AND SCIENTIFIC QUESTIONS WHICH ARISE DURING THE NEGOTIATION PROCESS SINCE WE DO NOT POSSESS THE IN-HOUSE TECHNICAL OR ENGINEERING CAPABILITY NECESSARY TO CONDUCT AN INDEPENDENT OR ON THE SPOT EVALUATION. WHEN THERE IS A CONFLICT BETWEEN THE STATEMENTS OF A PROTESTANT AND THE REPORT OF THE ADMINISTRATIVE OFFICE, IT IS THE LONG ESTABLISHED POLICY OF OUR OFFICE TO ACCEPT THE LATTER, IN THE ABSENCE OF EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. 37 COMP. GEN. 568 (1958). WHERE THE ULTIMATE QUESTION IS ONE OF HIGHLY TECHNICAL OR SCIENTIFIC JUDGMENT, WE MUST GENERALLY ACCEPT THE JUDGMENT OF THE PERSONNEL EMPLOYED BY THE GOVERNMENT TO DECIDE SUCH MATTERS.

WE BELIEVE THAT THIS POLICY REPRESENTS THE ONLY PRACTICAL APPROACH OPEN TO OUR OFFICE IN DISPOSING OF SUCH CONTENTIONS MADE BY UNSUCCESSFUL OFFERORS IN THE FACE OF CONTRARY EVIDENCE FROM THE PROCUREMENT AGENCY. THE ARGUMENTS AGAINST OUR OFFICE ESTABLISHING AND MAINTAINING AN ENGINEERING CAPABILITY COMPETENT TO REVIEW SUCH ADMINISTRATIVE DETERMINATIONS WOULD RESULT IN AN ANOMALOUS SITUATION WHEREIN OUR OFFICE WOULD BE SUBSTITUTING ITS JUDGMENT FOR THAT OF THE OFFICIALS WHO WERE EMPLOYED FOR THAT SPECIFIC PURPOSE BY THE PROCURING AGENCY, WITH A CONSEQUENT DIFFUSION OF PROCUREMENT RESPONSIBILITY AND EXTENDED AND POSSIBLY UNREASONABLE DELAYS IN EFFECTING NEEDED PROCUREMENTS.

CONCERNING YOUR NOTIFICATION THAT SHOULD THIS SITUATION CONTINUE UNINTERRUPTED, YOU WILL CONSIDER SEEKING YOUR REMEDY PURSUANT TO THE RECENT HOLDING IN SCANWELL LABORATORIES, INC. V. DAVID D. THOMAS, ACTING ADMINISTRATOR OF FAA (NO. 22, 863 U.S. CIR. CT. APP. D.C.), DECIDED FEBRUARY 13, 1970, WE, OF COURSE, HAVE NO CONTROL OVER WHAT FORUM YOU WILL SELECT TO HEAR YOUR COMPLAINTS, AND OUR DECISIONS ARE NOT IN ANY EVENT BINDING UPON THE JUDICIAL BRANCH OF THE GOVERNMENT.

IN REFERENCE TO YOUR DESIRE TO BE INFORMED OF THE BASIS UPON WHICH REQUEST FOR PROPOSALS NO. CRL-02097, ISSUED BY AFCRL ON OCTOBER 14, 1969, FOR SATELLITE TELEMENTRY REDUCTION COULD BE COMPETITIVE, WHILE ALL PREVIOUS RFP'S WERE SOLE SOURCED TO ACSI, WE HAVE BEEN INFORMALLY ADVISED THAT THE REFERENCED COMPETITIVE PROCUREMENT, A 100 PERCENT SMALL BUSINESS SET-ASIDE, WAS NOT FOR SATELLITE TELEMENTRY REDUCTION, RATHER, IT WAS FOR ROCKET DATA REDUCTION FROM ROCKET BORNE TRANSDUCERS WHICH WAS THE INITIAL REQUIREMENT FOR THIS TYPE OF WORK. CONSEQUENTLY, IT IS REPORTED THAT THERE WAS NO PROBLEM IN OBTAINING FULL COMPETITION. OF THE 50 FIRMS SOLICITED, 10 INCLUDING DIGITAL, OFFERED ACCEPTABLE PROPOSALS, BUT YOUR FIRM WAS NOT LOW IN PRICE.

WHILE WE WILL RECONSIDER OUR DECISIONS IF A MATERIAL MISTAKE OF LAW OR FACT IS ALLEGED AND PROVEN, THERE IS NO SHOWING IN YOUR LETTER OF MARCH 19, 1970, THAT OUR PRIOR DECISION INVOLVED ANY MISTAKE OF FACT, NOR ARE THERE ANY LEGAL AUTHORITIES OR PRECEDENTS CITED TO ESTABLISH ANY ERROR OF LAW THEREIN; RATHER, YOU CONTINUE TO TAKE ISSUES WITH THE REASONS GIVEN BY THE AIR FORCE FOR AWARDING THE CONTRACTS TO ACSI.

THEREFORE, WE FIND NO BASIS FOR CONCLUDING THAT THE CONTRACTS WERE NOT AWARDED IN GOOD FAITH, AND WE REMAIN OF THE OPINION THAT NO VALID BASIS EXISTS ON WHICH WE COULD DISTURB THE AWARDS. THE DECISION OF MARCH 10, 1970, DENYING YOUR PROTEST IS THEREFORE AFFIRMED.