B-168007, AUG. 28, 1970

B-168007, AUG. 28, 1970

BID PROTEST AFFIRMING DECISION OF MAY 14, 1970, DENYING PROTEST AGAINST LIMITATION OF COMPETITION TO PARTICULAR TYPE OF SURVIVAL RADIO MANUFACTURED BY MAGNVOX BY AIR FORCE SYSTEMS COMMAND.

TO CHROMALLOY AMERICAN CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 22, 1970, REQUESTING RECONSIDERATION OF OUR DECISION, B-168007, MAY 14, 1970, DENYING 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.

ESSENTIALLY, YOU PROTEST AGAINST THE DETERMINATION OF THE AIR FORCE IN LIMITING COMPETITION TO THE AN/URC-64 AND THE AN/PRC-90 SURVIVAL RADIOS MANUFACTURED BY THE MAGNAVOX COMPANY AND SYLVANIA ELECTRONICS SYSTEMS, RESPECTIVELY. YOU CONTEND THAT YOU SHOULD HAVE BEEN PERMITTED TO FURNISH YOUR RT-60 RADIO, A NUMBER OF WHICH ARE STATED TO BE PERFORMING SATISFACTORILY IN OPERATIONAL USE BY THE NAVY IN SOUTHEAST ASIA.

IT IS WELL SETTLED THAT 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. 39 COMP. GEN. 570 (1960). THIS RULE IS PARTICULARLY RELEVANT WHERE THE PROCUREMENT COVERS TECHNICAL EQUIPMENT AND DETERMINATIONS ARE BASED ON EXPERT TECHNICAL OPINION. 40 COMP. GEN. 35 (1960). AS STATED IN OUR DECISION OF MAY 14, 1970, ADVERTISING STATUTES REQUIRE THAT EVERY EFFORT BE MADE TO DRAW SPECIFICATIONS ON SUCH TERMS AS WILL PERMIT THE BROADEST FIELD OF COMPETITION CONSISTENT WITH THE GOVERNMENT'S ACTUAL NEEDS. WE STATED FURTHER THAT THE GOVERNMENT DOES NOT VIOLATE EITHER THE LETTER OR SPIRIT OF THE COMPETITIVE BIDDING STATUTES MERELY BECAUSE ONLY ONE FIRM CAN SUPPLY ITS NEEDS, PROVIDED THE SPECIFICATIONS ARE REASONABLY NECESSARY FOR THE PURPOSE.

YOU STATE IN YOUR LETTER OF JUNE 22, 1970:

"AN INVENTORY BY GAO AND THE COMPTROLLER GENERAL OF THE RELIABILITY OF THE URC-64 AND PRC-90 IN SOUTHEAST ASIA AS COMPARED WITH THE RT 10/RT-60 AND THE ACTUAL REPORTS FROM THE PILOTS WHO HAD TO USE ALL THE UNITS, WOULD PROVIDE ENLIGHTENING MATERIAL ON WHICH RADIO IS SUPERIOR AND WHICH ONE HAS STOOD UP TO THE RUGGED NEEDS OF ACTUAL COMBAT DUTY.

"WE THEREFORE REQUEST THAT YOU RE-EVALUATE YOUR DECISION, IN LIGHT OF ALL THE FACTS, AND HAVE A QUALIFIED, INDEPENDENT TECHNICAL EXPERT ASSESS AND ANALYZE WHICH IS THE BEST EQUIPMENT AVAILABLE IN TERMS OF SERVICE NEEDS AND THE TAXPAYERS' MONEY RATHER THAN ACCEPT THE 'DEFENDANTS' JUDGMENT THAT HE IS NOT GUILTY." AS WE STATED IN OUR DECISION OF MAY 14, 1970, NO BASIS EXISTS UPON THE PRESENT RECORD TO HOLD THAT THE REQUIREMENTS OF THIS PROCUREMENT WERE NOT BASED UPON A BONA FIDE DETERMINATION OF THE ACTUAL NEEDS OF THE AIR FORCE UNDER EXISTING CONDITIONS. SUCH A DETERMINATION IS NOT SUBJECT TO REVIEW BY OUR OFFICE UNLESS THERE IS EVIDENCE OF BAD FAITH OR ABUSE OF DISCRETION. YOU REQUEST THAT OUR OFFICE HAVE AN INDEPENDENT EXPERT DETERMINE WHICH IS THE BEST EQUIPMENT. AS ALREADY STATED, OUR OFFICE WILL NOT REVIEW SUCH A DISCRETIONARY DETERMINATION IN ABSENCE OF EVIDENCE OF BAD FAITH. SINCE WE FIND NO SUCH EVIDENCE, WE HAVE NO REASON TO QUESTION THE ACTION TAKEN BY THE AIR FORCE OR TO OTHERWISE JUSTIFY DISTURBING THE AWARD. ACCORDINGLY, OUR DECISION OF MAY 14, 1970, IS AFFIRMED.

WE SUGGEST THAT YOU DISCUSS DIRECTLY WITH THE AIR FORCE THE TECHNICAL MERITS OF YOUR RADIOS IN RELATION TO THE MODELS SPECIFIED IN THE SUBJECT SOLICITATION.