B-168007 (2), MAY 14, 1970

B-168007 (2), MAY 14, 1970

CONTRACTS--SPECIFICATIONS--ADMINISTRATIVE DETERMINATION CONCLUSIVENESS- DETERMINATION JUSTIFICATION UNDER REQUEST FOR PROPOSALS FOR RADIOS, MAILING BEING LIMITED TO TWO COMPANIES, WHICH PROVIDED OFFEROR SHOULD SUBMIT PROPOSAL ONLY ON TYPE RADIO PREVIOUSLY DELIVERED TO GOVERNMENT UNDER PRIOR GOVERNMENT CONTRACT, NO BASIS IS FOUND THAT BONA FIDE DETERMINATION OF ACTUAL AIR FORCE NEEDS BY PROCUREMENT OFFICIALS INVOLVED IS SUBJECT TO REVIEW SINCE SPECIFICATIONS REFLECTING ACTUAL GOVERNMENT NEEDS ARE PRIMARILY RESPONSIBILITY OF ADMINISTRATIVE AGENCY AND COMPETITIVE BIDDING STATUTES ARE NOT VIOLATED MERELY BECAUSE ONLY ONE FIRM CAN SUPPLY ITS NEEDS, PROVIDED SPECIFICATIONS ARE REASONABLE AND NECESSARY FOR PURPOSE. SEE 34 COMP. GEN. 336.

TO THE MAGNAVOX COMPANY:

FURTHER REFERENCE IS MADE TO YOUR PROTEST IN CONNECTION WITH REQUEST FOR PROPOSALS NO. F33657-70-R-0202, ISSUED BY THE AIR FORCE SYSTEMS COMMAND, AERONAUTICAL SYSTEMS DIVISION, WRIGHT-PATTERSON AIR FORCE BASE, OHIO.

THE SUBJECT SOLICITATION WAS ISSUED ON SEPTEMBER 9, 1969, AND MAILING WAS LIMITED TO THE MAGNAVOX COMPANY AND SYLVANIA ELECTRONICS SYSTEMS FOR 3250 AN/URC-64 RADIOS (LESS BATTERY) OR 3250 AN/PRC-90 RADIO SETS (WITH BATTERIES). THE SOLICITATION PROVIDED THAT A REAL COST EVALUATION WOULD BE PERFORMED ON THE PROPOSALS SUBMITTED UNDER THE SOLICITATION AND ATTENTION WAS INVITED TO THE LETTER OF TRANSMITTAL WHICH IDENTIFIED THE REAL COST IMPACT DETERMINED APPLICABLE TO THE PARTICULAR EQUIPMENT. THE GOVERNMENT SPECIFICALLY RESERVED THE RIGHT TO MAKE AWARD FOR THE AN/URC-64 RADIO OR THE AN/PRC-90 RADIO. AMENDMENT NO. 1 ISSUED ON SEPTEMBER 16, 1969, PROVIDED THAT EACH OFFEROR SHOULD SUBMIT ITS PROPOSAL ONLY ON THE TYPE RADIO SET WHICH IT HAD PREVIOUSLY DELIVERED TO THE GOVERNMENT UNDER A PRIOR GOVERNMENT CONTRACT.

YOU PROTEST THE AWARD MADE TO SYLVANIA ELECTRONICS SYSTEMS FOR THE AN/PRC -90 RADIO ON THE BASIS THAT BY LIMITING OFFERS TO RADIO SETS PREVIOUSLY FURNISHED TO THE GOVERNMENT THE SOLICITATION UNDULY LIMITED COMPETITION AND THAT IF THE MAGNAVOX COMPANY HAD BEEN ALLOWED TO OFFER EQUIPMENT EQUAL TO THE AN/PRC-90, IT WOULD HAVE BEEN ABLE TO BE COMPETITIVE. YOU ALSO PROTEST THE AIR FORCE'S APPARENT ABANDONMENT OF THE ADVANCES IN THE STATE- OF-THE-ART DEVELOPED INTO THE AN/URC-64.

THE AIR FORCE, IN JUSTIFICATION OF THE LIMITATIONS IMPOSED ON THIS PROCUREMENT, STATES:

"THE AIR FORCE REQUIREMENT FOR SURVIVAL RADIOS HAS UNTIL THE INSTANT PROCUREMENT BEEN CONSISTENTLY IDENTIFIED AS THE FOUR CHANNEL URC-64. HOWEVER, DURING RECENT REQUIREMENT REVIEWS, SOUTHEAST ASIAN REQUIREMENTS HAVE BEEN RESTATED TO INCLUDE TWO CHANNEL CAPABILITY AS REPRESENTED BY THE PRC-90. PARTIAL RATIONALE FOR THE SHIFT IN AIR FORCE REQUIREMENTS IS THAT A REVIEW OF ASSETS ON HAND OR ON ORDER REVEALED THAT THE 17,300 URC-64S WAS ADEQUATE SUPPLY FOR THE EXTREMELY HIGH RISK AREAS OF OPERATION. NEW ASSETS OF EITHER THE URC-64 OR PRC 90 TYPE WERE URGENTLY REQUIRED TO FLUSH THE SYSTEM OF OLD AND UNRELIABLE URC-10S, URC-4S AND URC-11S. THE AIR FORCE, THEREFORE, FOR THE PRESENT PROCUREMENT WAS IN THE POSITION TO PURCHASE EITHER THE NAVY QUALIFIED PRC-90 OR CONTINUE WITH URC-64. CRITERIA FOR SELECTION WAS ESTABLISHED AS OVERALL COST TO THE AIR FORCE AND EARLIEST DELIVERY. EARLIEST DELIVERY TO MEET THE PRIORITIES ESTABLISHED COULD ONLY BE ACHIEVED BY CONTINUED DELIVERY OF ONE OR THE OTHER QUALIFIED UNIT FROM ITS ESTABLISHED SOURCE. IN ORDER TO ESTABLISH OVERALL OR 'REAL COST' TO THE AIR FORCE, PARAMETERS IDENTIFYING INVENTORY IMPLEMENTATION COSTS WERE EVALUATED WITH EQUIPMENT COSTS. THE GOVERNMENT, AS A BUYER, WAS INTERESTED SOLELY IN PROCURING THE RADIO SET THAT (A) MET ITS TECHNICAL REQUIREMENTS, (B) WAS READILY AVAILABLE AS QUALIFIED ITEM AND (C) WAS OVERALL LEAST COSTLY. THE SOLICITATION WAS STRUCTURED SO AS TO PROVIDE THESE RESULTS. IT FURTHER PROVIDED FOR THE OBJECTIVE EVALUATION OF FIRM OFFERS FROM TWO FIRMS IN LIEU OF THE UNILATERAL SELECTION BY THE GOVERNMENT OF ONE OF THE AVAILABLE EQUIPMENTS ON THE BASIS OF ESTIMATE OR MARKETING INFORMATION."

THE AIR FORCE ALSO FURNISHED A DETAILED REBUTTAL TO THE VARIOUS CONTENTIONS RAISED IN YOUR LETTER OF NOVEMBER 7, 1969, A COPY OF WHICH HAS BEEN FURNISHED YOU. THE BASIC FACTS, HOWEVER, ARE THAT THE AIR FORCE DETERMINED THAT EITHER THE AN/PRC-90 OR AN/URC-64 WHEN FURNISHED IN ACCORDANCE WITH EXISTING SPECIFICATIONS WOULD MEET ITS URGENT CURRENT NEEDS AND THAT IN VIEW OF THE URGENCY THE AIR FORCE COULD NOT CONSIDER ANY FIRM IN MEETING SUCH NEED UNLESS PREVIOUSLY QUALIFIED FOR THE PARTICULAR RADIO OFFERED. ALSO WHILE BOTH SYLVANIA AND MAGNAVOX ARE REQUIRED UNDER THEIR EXISTING CONTRACTS TO FURNISH DATA PACKAGES FOR THE RADIO DEVELOPED AND BEING FURNISHED WHICH WOULD BE ADEQUATE FOR OPEN COMPETITION, NEITHER FIRM HAD AS YET FURNISHED SUCH DATA PACKAGES. THEREFORE, ASIDE FROM THE URGENT NEED FOR EARLY DELIVERY, IT APPEARS DOUBTFUL THAT ANY FIRM OTHER THAN THE DEVELOPER COULD FURNISH THE RADIO, SINCE DETAIL DRAWINGS AND SPECIFICATIONS WERE NOT AVAILABLE.

WE HAVE CONSISTENTLY HELD THAT THE ESTABLISHMENT OF SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY. IT HAS ALSO BEEN HELD THAT THE ADVERTISING STATUTES REQUIRE THAT EVERY EFFORT BE MADE TO DRAW SPECIFICATIONS IN SUCH TERMS AS WILL PERMIT THE BROADEST FIELD OF COMPETITION CONSISTENT WITH THE GOVERNMENT'S ACTUAL NEEDS. IT IS WELL ESTABLISHED THAT THE GOVERNMENT DOES NOT VIOLATE EITHER THE LETTER OR THE SPIRIT OF THE COMPETITIVE BIDDING STATUTES MERELY BECAUSE ONLY ONE FIRM CAN SUPPLY ITS NEEDS, PROVIDED THE SPECIFICATIONS ARE REASONABLE AND NECESSARY FOR THE PURPOSE. 34 COMP. GEN. 336 (1955). AS TO THIS PROCUREMENT WE FIND NO BASIS FOR HOLDING THAT THE REQUIREMENTS WERE NOT BASED UPON A BONA FIDE DETERMINATION OF THE ACTUAL NEEDS OF THE AIR FORCE UNDER EXISTING CONDITIONS. THE EXERCISE OF SUCH DETERMINATION IS VESTED IN THE PROCUREMENT OFFICIALS INVOLVED IN EACH CASE AND, IN THE ABSENCE OF BAD FAITH, IS NOT SUBJECT TO REVIEW.

SINCE WE FIND NO EVIDENCE OF BAD FAITH OR ABUSE OF DISCRETION IN THIS PROCUREMENT, YOUR PROTEST IS DENIED.