B-174026, JUL 14, 1972

B-174026, JUL 14, 1972

(NO 2 LINE MATERIAL) (NO 3 LINE MATERIAL)

TO OPTICS TECHNOLOGY, INC.

YOUR LETTER OF FEBRUARY 18, 1972, REQUESTS RECONSIDERATION OF OUR DECISION OF FEBRUARY 8, 1972, CONCERNING YOUR PROTEST AGAINST THE SOLE SOURCE AWARD OF A CONTRACT FOR AN ELECTRO-OPTICAL TRANSFER SYSTEM TO THE EALING CORPORATION, UNDER REQUEST FOR PROPOSALS (RFP) NO. N00600-71 R- 5669, BY THE UNITED STATES NAVY PURCHASING OFFICE (NPO), WASHINGTON, D.C.

OUR DECISION HELD IN GENERAL THAT THE NEGOTIATION OF A SOLE-SOURCE CONTRACT WITH A FOREIGN CONTRACTOR UNDER THE PUBLIC EXIGENCY EXCEPTION TO THE REQUIREMENT FOR FORMAL ADVERTISING DID NOT VIOLATE THE BUY AMERICAN ACT, 41 U.S.C. 10 A-D OR THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) AND WAS, THEREFORE, NOT SUBJECT TO QUESTION BY OUR OFFICE IN VIEW OF A PROPERLY MADE DETERMINATION THAT "EQUIPMENT MEETING ITS MINIMUM NEEDS IS NOT MADE IN THE UNITED STATES IN SUFFICIENTLY AVAILABLE COMMERCIAL QUANTITIES OF THE REQUISITE QUALITY." THE PRIMARY GROUNDS FOR THIS DETERMINATION WERE DELAY PROBLEMS ANTICIPATED IN THE INTEGRATION OF DOMESTICALLY MANUFACTURED EQUIPMENT WITH EXISTING EALING EQUIPMENT, AND THE FACT THAT EXISTING DOMESTIC COMMERCIAL EQUIPMENT KNOWN TO NAVY TECHNICAL PERSONNEL WAS NOT CONSIDERED TO MEET THE SPECIFIC REQUIREMENTS FOR THE APPLICATION CONTEMPLATED IN THIS INSTANCE, PARTICULARLY THAT "CONCURRENT MEASUREMENT OF PHASE AND MODULATION TRANSFER FUNCTIONS" WAS NOT PROVIDED FOR.

YOU QUESTION WHY OUR OFFICE DID NOT SELECT DATA FROM SOURCES OTHER THAN THE NPO IN ORDER TO REFUTE CERTAIN STATEMENTS MADE IN THE NPO REPORT TO OUR OFFICE WHICH YOU CONSIDER TO BE ERRONEOUS. SPECIFICALLY, YOU CONTEND THAT EQUIPMENT COMPARABLE TO THAT PROCURED FROM EALING IS AVAILABLE IN THE UNITED STATES AS EVIDENCED BY CATALOGS, DATA SHEETS, AND LETTER PROPOSALS WHICH YOU ARE PREPARED TO PROVIDE; THAT AN NPO STATEMENT RELATING TO THE NEED FOR "PROFESSIONAL CONTACT WITH USERS OF SIMILAR EQUIPMENTS" IS MISLEADING SINCE FEW EALING INSTRUMENTS ARE IN USE IN THIS COUNTRY, WHILE MORE THAN 50 OPTICS TECHNOLOGY INSTRUMENTS ARE IN USE, 14 OF WHICH ARE LOCATED AT THE U.S. ARMY'S FORT BELVOIR; AND THAT A QUOTATION FROM OPTICS TECHNOLOGY SHOULD HAVE BEEN REQUESTED BY OUR OFFICE IN ORDER TO DOCUMENT YOUR CLAIM THAT OPTICS TECHNOLOGY COULD HAVE DELIVERED EQUIPMENT COMPARABLE TO THE EALING EQUIPMENT IN LESS THAN HALF THE TIME SPECIFIED IN THE RFP.

THE NPO HAS RESPONDED TO YOUR CONTENTIONS IN A MEMORANDUM FROM THE CONTRACTING OFFICER, DATED APRIL 7, 1972, A COPY OF WHICH IS ENCLOSED. A RESULT OF OUR REVIEW OF YOUR LETTER REQUESTING RECONSIDERATION AND THE CONTRACTING OFFICER'S RESPONSE, WE MUST CONCLUDE THAT NO BASIS EXISTS TO WARRANT OUR MODIFYING OUR PRIOR DECISION.

THE THRUST OF OUR DECISION WAS THAT THE DETERMINATION BY APPROPRIATE NAVY TECHNICAL PERSONNEL THAT ONLY ONE MANUFACTURER COULD FULFILL THE OPERATIONAL REQUIREMENTS IN THIS INSTANCE REPRESENTED A PROPER EXERCISE OF THE DISCRETION VESTED IN THOSE OFFICIALS. WHILE DIFFERENCES OF OPINION AS TO THE TECHNICAL BASES RELIED ON FOR MAKING DETERMINATIONS OF THIS KIND FREQUENTLY EXIST, OUR OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT IT WOULD NOT BE PROPER TO SUBSTITUTE OUR JUDGMENT, OR THE JUDGMENT OF A THIRD PARTY, FOR THAT OF THE ADMINISTRATIVE OFFICIALS ABSENT CLEAR EVIDENCE OF ABUSE OF DISCRETION. IN THIS CASE, NPO PHYSICISTS HAVE STATED THAT AT THE TIME OF SOLICITATION THEY WERE AWARE OF NO OTHER ELECTRO-OPTICAL SYSTEM WHICH WOULD MEET THEIR PARTICULAR NEEDS, ALTHOUGH THEY WERE AWARE OF THE EXISTENCE OF SIMILAR EQUIPMENT WHICH WAS NOT CONSIDERED ADEQUATE FOR THE APPLICATION CONTEMPLATED. THE APRIL 7, 1972, CONTRACTING OFFICER MEMORANDUM STATES ALSO THAT EVEN AT THAT DATE, NO OTHER COMPARABLE SYSTEM WAS KNOWN TO EXIST. YOU HAVE NOT PROVIDED ANY EVIDENCE, OTHER THAN UNSUBSTANTIATED ALLEGATIONS, THAT THIS POSITION IS ERRONEOUS, AND WE, THEREFORE, MUST ADHERE TO OUR EARLIER DECISION.

SINCE THE DETERMINATION THAT ONLY THE EALING EQUIPMENT MEETS THE GOVERNMENT'S NEEDS IN THIS INSTANCE IS NOT SUBJECT TO QUESTION, YOUR CONTENTIONS WITH REGARD TO INSTALLED OPTICS TECHNOLOGY INSTRUMENTS OF A SIMILAR NATURE AND YOUR DELIVERY CAPABILITIES FOR SUCH INSTRUMENTS BECOME IRRELEVANT.

IN ACCORDANCE WITH THE ABOVE CONSIDERATIONS, THE DECISION OF FEBRUARY 8, 1972, IS SUSTAINED.