B-170377, AUG 9, 1971

B-170377: Aug 9, 1971

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ASPR 3-210.2(I) AUTHORIZES PROCUREMENT WITHOUT FORMAL ADVERTISING WHEN IT IS IMPRACTICAL TO OBTAIN COMPETITION. IS UNABLE TO CONCLUDE THAT THE ADMINISTRATIVE POSITION IS ARBITRARY. BIDDLE COMPANY: REFERENCE IS MADE TO YOUR LETTER DATED MAY 4. N00123-70-C-1127 WAS THE SUBJECT OF THE DECISION OF OUR OFFICE. DECISION THAT THERE WAS A LACK OF DOCUMENTED JUSTIFICATION FOR PROCURING ITEMS 3 AND 4 OF THE REQUIREMENTS UNDER SOLICITATION NO. CONSEQUENTLY THE REQUIREMENT FOR THOSE ITEMS WAS CANCELLED WITH THE INTENTION TO PROCURE THEM AT A LATER DATE. IT IS REPORTED THAT ONE OF THE TWO CANCELLED ITEMS (ITEM NO. 3 OF SOLICITATION NO. N00123-70-R-0630) IS BEING PROCURED UNDER SOLICITATION NO. THE ADMINISTRATIVE REPORT INDICATES THAT A DETERMINATION AND FINDINGS (D&F) WAS ISSUED ON APRIL 7.

B-170377, AUG 9, 1971

BID PROTEST - SOLE SOURCE PROCUREMENT DENIAL OF PROTEST BY THE JAMES G. BIDDLE COMPANY AGAINST VARIOUS SOLICITATIONS ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, LOS ANGELES, CALIFORNIA FOR SOLE SOURCE PROCUREMENT OF CALIBRATION EQUIPMENT. ASPR 3-210.2(I) AUTHORIZES PROCUREMENT WITHOUT FORMAL ADVERTISING WHEN IT IS IMPRACTICAL TO OBTAIN COMPETITION. FROM THIS RECORD, THE COMP. GEN. IS UNABLE TO CONCLUDE THAT THE ADMINISTRATIVE POSITION IS ARBITRARY, OR THAT THE SPECIFICATIONS EXCEED THE GOVERNMENT'S NEEDS.

TO JAMES G. BIDDLE COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 4, 1971, WITH ENCLOSURES, AND SUBSEQUENT CORRESPONDENCE, QUESTIONING OUR DECISION, B-170377, FEBRUARY 19, 1971, AND RAISING FURTHER QUESTIONS REGARDING VARIOUS SOLICITATIONS ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, LOS ANGELES, CALIFORNIA.

ESSENTIALLY, YOUR PROTEST QUESTIONS THE DEPARTMENT OF THE NAVY'S PROCUREMENT ON A SOLE-SOURCE BASIS UNDER THE FOLLOWING SOLICITATIONS: N00123-70-C-1127, N00123-70-C-0449, N00123-71-R-0630, AND N00123-71-C 1628. SOLICITATION NO. N00123-70-C-1127 WAS THE SUBJECT OF THE DECISION OF OUR OFFICE, B-170377, OCTOBER 22, 1970, WHICH DENIED YOUR PROTEST. OUR DECISION, B-170377, FEBRUARY 19, 1971, DENIED YOUR PROTEST WITH RESPECT TO SOLICITATION NO. N00123-71-R-0630. BASED UPON THE PRESENT RECORD, WE FIND NO REASON TO ALTER OUR PRIOR DECISIONS.

WE INDICATED IN OUR FEBRUARY 19, 1971, DECISION THAT THERE WAS A LACK OF DOCUMENTED JUSTIFICATION FOR PROCURING ITEMS 3 AND 4 OF THE REQUIREMENTS UNDER SOLICITATION NO. N00123-70-R-0630 ON A SOLE-SOURCE BASIS, AND CONSEQUENTLY THE REQUIREMENT FOR THOSE ITEMS WAS CANCELLED WITH THE INTENTION TO PROCURE THEM AT A LATER DATE. IT IS REPORTED THAT ONE OF THE TWO CANCELLED ITEMS (ITEM NO. 3 OF SOLICITATION NO. N00123-70-R-0630) IS BEING PROCURED UNDER SOLICITATION NO. N00123-71-C 1628. THE ADMINISTRATIVE REPORT INDICATES THAT A DETERMINATION AND FINDINGS (D&F) WAS ISSUED ON APRIL 7, 1971, PROVIDING FOR THE PROCUREMENT UNDER THE AUTHORITY OF 10 U.S.C. 2304(A)(10), AS IMPLEMENTED BY ASPR 3-210.2(I). THE STATUTORY PROVISION AUTHORIZES PROCUREMENT WITHOUT FORMAL ADVERTISING WHEN IT IS IMPRACTICAL TO OBTAIN COMPETITION. THE ASPR PROVISION AUTHORIZES THE USE OF THE STATUTORY AUTHORITY WHEN SUPPLIES CAN BE OBTAINED ONLY FROM A SOLE SOURCE. ASPR 3-102(C) REQUIRES PRIOR REVIEW AT A LEVEL HIGHER THAN THE CONTRACTING OFFICER WHEN A NONCOMPETITIVE PROCUREMENT IS CONTEMPLATED; SUCH APPROVAL WAS OBTAINED UNDER THIS PROCUREMENT. WE FIND NO REASON TO QUESTION THE SOLE-SOURCE PROCUREMENT UNDER SOLICITATION NO. N00123-71-C 1628.

WITH REGARD TO YOUR REFERENCE TO SOLICITATION N00123-70-C-0449, THE CONTRACTING OFFICER STATES AS FOLLOWS:

"6. ADDITIONALLY, THE 4 MAY LETTER OF PROTEST MADE REFERENCE TO CONTRACT NUMBER N00123-70-C-0449. THIS CONTRACT, AWARDED TO ELECTRO SCIENTIFIC INDUSTRIES, INC., WAS FOR THE PROCUREMENT OF A PRECISION RESISTANCE MEASURING SYSTEM. THE PROCUREMENT WAS COMPETITIVE; SIXTY SIX FIRMS WERE SOLICITED. AMONG THE SPECIFICATIONS WERE REQUIREMENTS OF MODULARITY AND A SUBMISSION OF A BID SAMPLE. BIDDLE PROPOSED A NON MODULAR SYSTEM, AND REFERENCED A UNIT IT HAD SOLD TO ANOTHER NAVY ACTIVITY AS ITS 'BID SAMPLE.' UPON BEING ADVISED THAT THE PROPOSAL WAS FOUND NON-RESPONSIVE, BIDDLE PROTESTED THE DECISION TO THE CONTRACTING OFFICER. THE COMPLAINT WAS FORWARDED TO THE REQUIRING ACTIVITY WHICH RESPONDED IN DETAIL TO THE AREAS OF TECHNICAL NON-COMPLIANCE WITH THE REQUIREMENTS. THE SUBJECT CONTRACT WAS ENTERED INTO ON 6 FEBRUARY 1970, AND FINAL PAYMENT CERTIFIED ON 2 JULY 1970."

WITH REGARD TO YOUR GENERAL CONTENTION THAT THE NAVY IS IMPROPERLY EXCLUDING YOUR PRODUCT FROM CONSIDERATION AND PURCHASING FROM ANOTHER SUPPLIER ON A SOLE-SOURCE BASIS, THE CONTRACTING OFFICER'S STATEMENT INCLUDED AS PART OF THE ADMINISTRATIVE REPORT STATES AS FOLLOWS:

"7. THE COMMENTS IMMEDIATELY ABOVE, CONCERNING MODULARITY, COUPLED WITH THE ADDITIONAL QUESTIONS RAISED BY THE BIDDLE COMPANY IN ITS MOST RECENT LETTER OF PROTEST OVER THESE PROCUREMENTS, PUT THE ENTIRE AREA OF DISPUTE INTO PROPER FOCUS.

"8. NOTWITHSTANDING THE COMPANY'S ADMITTED EXPERTISE IN THE AREA OF PRECISION MEASURING SYSTEMS, IT IS NOT IN A POSITION TO BE THE ARBITER OF THE NEEDS OF THE NAVY'S CALIBRATION SYSTEM. THE NEEDS OF THE NAVY ARE INHERENTLY DIFFERENT FROM THOSE OF PRIVATE INDUSTRY. AS AN EXAMPLE, FEW, IF ANY, PRIVATE CONCERNS WOULD HAVE NEED OR USE OF A WORLD-WIDE NETWORK OF CALIBRATION LABORATORIES WHICH MUST PERFORM CONSISTENTLY AND IN DIRECT CONFORMANCE TO ONE ANOTHER, AND WHICH MUST ENABLE CALIBRATION TECHNICIANS TO BE TRANSFERRED FROM ONE LABORATORY TO ANOTHER WITH AN ABSOLUTE MINIMUM OF RETRAINING. BECAUSE OF THE INHERENT MOBILITY OF NAVAL WEAPONS SYSTEMS AND ASSOCIATED TEST EQUIPMENT, THERE CAN BE NO ASSURANCE THAT THE EQUIPMENT REQUIRING CALIBRATION SERVICES WILL ALWAYS BE REFERRED TO THE SAME LABORATORY FOR SUCH SERVICES. INDEED, QUITE THE CONVERSE IS TRUE; CALIBRATION TWICE IN SUCCESSION BY THE SAME LABORATORY IS A STATISTICAL IMPROBABILITY FOR FLEET TEST EQUIPMENT. CONSISTENCY, BOTH OF MEASUREMENT AND TECHNIQUE, MUST BE THE KEYSTONE OF SUCH A SYSTEM. SUCH CONSISTENCY IS AVAILABLE ONLY WHERE IDENTICAL UNITS, FROM THE SAME MANUFACTURER, ARE UTILIZED THROUGHOUT THE SYSTEM.

"9. THE PROTESTANT, HOWEVER, IN RESPONDING TO THIS POINT AS FORMERLY MADE, ASSERTS THAT THE NATIONAL BUREAU OF STANDARDS IS INCAPABLE OF CERTIFYING TO LEVELS OF UNCERTAINTY AS GOOD AS THOSE REQUIRED OF THE PROCURED SYSTEM. THE ESI SYSTEM PROCURED IS CAPABLE OF PERFORMING RESISTANCE COMPARISONS TO A LEVEL OF UNCERTAINTY OF 0.2 PPM (PARTS PER MILLION). THE NATIONAL BUREAU OF STANDARDS (NBS) IS CURRENTLY CAPABLE OF PERFORMING TO A COMPARISON UNCERTAINTY OF APPROXIMATELY 0.05 PPM. THUS, REGARDLESS OF THE UNDERSTANDING OF THE PROTESTANT, THE SYSTEM PROCURED IS WELL WITHIN THE PRESENT ABILITIES OF THE NBS.

"10. THE LETTERS OF PROTEST RECEIVED FROM THE JAMES G. BIDDLE CO. IN THESE MATTERS INDICATE A POSSIBLE SOURCE OF CONFUSION. THIS POSSIBLE SOURCE IS THE DIFFERENCE BETWEEN ABSOLUTE MEASUREMENTS AND COMPARISON MEASUREMENTS. TO MAKE A RATHER GROSS ANALOGY, CONSIDER THE SITUATION IF THE NBS HAD ESTABLISHED A STANDARD FOOT ACCURATE TO ONLY OR - 1/4 INCH. BY DEFINITION THEN, A CALIBRATION SYSTEM WOULD NOT BE ABLE TO ACCURATELY DETERMINE THAT A GIVEN RULER WERE EXACTLY ONE FOOT OR - 1/8 INCH, BUT IT COULD BE CAPABLE OF DETERMINING THAT TWO RULERS WERE WITHIN 1/16 INCH IN LENGTH OF EACH OTHER. FOR MANY PURPOSES, IT IS MORE IMPORTANT TO KNOW THAT THE TWO RULERS ARE SIMILAR THAN IT IS TO KNOW WHAT THEIR INDIVIDUAL, ABSOLUTE LENGTHS ARE. THUS, CONSISTENCY OF MEASUREMENT MAY, INDEED, BE ACHIEVED BEYOND LEVELS RELATED TO THE NBS AND REPRODUCIBLE IN NON- IDENTICAL EQUIPMENTS. THIS STATEMENT IS NOT AN INDICTMENT OF THE PRECISION MEASURING INDUSTRY. TO ASSUME THAT CERTAIN MEMBERS OF THE INDUSTRY ARE INCAPABLE OF ACHIEVING REDUCTIONS IN UNCERTAINTY BEYOND THOSE CURRENTLY AVAILABLE FROM OTHERS, AS THE PROTESTOR IMPLIES, IS MUCH CLOSER TO AN 'UNWARRANTED INDICTMENT.'

"11. EVEN WERE THIS CONSISTENCY IN COMPARISON AVAILABLE WITH A MULTIPLICITY OF MEASURING DEVICES (AS EXPERIENCE HAS DEMONSTRATED IT IS NOT), THERE WOULD YET BE JUSTIFICATION FOR PROCURING IDENTICAL SYSTEMS FOR EACH LABORATORY. THE NAVY INVESTS LARGE SUMS OF MONEY IN THE PREPARATION OF TRAINING MANUALS AND COURSES TO ENSURE THAT IT WILL HAVE A CONTINUING SUPPLY OF ADEQUATELY TRAINED TECHNICIANS TO MAN ITS CALIBRATION FACILITIES. CALIBRATION MANUALS FOR GIVEN PIECES OF TEST EQUIPMENT ARE WRITTEN TO ENABLE THE TECHNICIAN TO MAKE THE REQUIRED MEASUREMENTS AS EFFICIENTLY AS POSSIBLE. WHERE POSSIBLE, THE MANUALS WILL REFER DIRECTLY TO PROCEDURES USING SPECIFIED CALIBRATION DEVICES. WHERE THERE ARE A MULTIPLICITY OF DEVICES IN FIELD USE, THE PREPARATION OF SUCH MANUALS IS IMPOSSIBLE, AND THE MAINTENANCE OF THE EQUIPMENT TO BE CALIBRATED IS CONSEQUENTLY MORE COSTLY IN BOTH TIME AND LEVEL OF EXPERTISE REQUIRED TO PERFORM THE TESTS. FINALLY, BY THE VERY NATURE OF THE MILITARY SYSTEM, THERE IS CONSTANT TURNOVER OF PERSONNEL BETWEEN AND AMONG THE CALIBRATION LABORATORIES. CONSEQUENTLY, IT BEHOOVES THE NAVY TO ENSURE THAT IT IS ABLE TO ACCOMPLISH SUCH TRANSFERS WITH AN ABSOLUTE MINIMUM OF RETRAINING. ONLY BY HAVING IDENTICAL EQUIPMENT AT EACH FACILITY CAN THESE SKILLED PERSONNEL BE UTILIZED EFFICIENTLY.

"12. IT IS THE MISSION OF THE REQUIRING ACTIVITY FOR THESE PROCUREMENTS TO ESTABLISH AND MAINTAIN A CALIBRATION SYSTEM COMMENSURATE WITH THE NEEDS OF THE NAVY. THIS MISSION CANNOT BE FULFILLED BY MODIFYING THE SYSTEM TO COMPORT WITH THE COMMERCIAL PRODUCTS, EXPECTATIONS AND EXPERIENCES OF JAMES G. BIDDLE CO., OR ANY OTHER INDIVIDUAL MANUFACTURER. TO THE CONTRARY, ONLY THOSE PRODUCTS WHICH COMPLY WITH THE NEEDS OF THE SYSTEM CAN PROPERLY BE CONSIDERED. THOSE PRODUCTS OF THE JAMES G. BIDDLE CO. WHICH MAY BE POTENTIALLY COMPLIANT WILL CONTINUE TO BE CONSIDERED DURING THOSE PHASES OF THE REQUIRING ACTIVITY'S MISSION WHICH ADMIT TO COMPETITIVE PROCUREMENT."

AS EXPLAINED TO YOU IN OUR DECISION OF OCTOBER 22, 1970, THE DRAFTING OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT AND THE DETERMINATION AS TO WHETHER THOSE NEEDS CAN BE MET BY A GIVEN PRODUCT ARE PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING AGENCY. AS IN THE INSTANT CASE, THIS RULE IS PARTICULARLY APPLICABLE WHERE THE PROCUREMENT COVERS TECHNICAL EQUIPMENT AND DETERMINATIONS ARE BASED ON EXPERT TECHNICAL OPINION.

BASED UPON THE RECORD BEFORE US, WE FIND NO LEGAL OBJECTION TO THE PROCEDURES FOLLOWED BY THE DEPARTMENT OF THE NAVY IN PROCURING THIS EQUIPMENT ON A SOLE-SOURCE BASIS. WE CANNOT CONCLUDE THAT THE ADMINISTRATIVE POSITION IS ARBITRARY OR THAT THE SPECIFICATIONS EXCEED THE GOVERNMENT'S NEEDS. ACCORDINGLY, FOR THE REASONS STATED, YOUR PROTEST IS DENIED.

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