B-180211, AUG 5, 1974

B-180211, AUG 5, 1974

1. REFUSAL TO OPEN SOLE-SOURCE PROCUREMENT OF DEEP-DIVE UNDERWATER BREATHING APPARATUS SYSTEMS TO COMPETITION BY ALLOWING UNMANNED TESTS TO SHOW QUALIFICATION TO COMPETE, WITH NECESSARY FIRST ARTICLE MANNED TESTS, IS NOT OBJECTIONABLE NOTWITHSTANDING RECENT SUCCESSFUL MANNED TEST OF PROTESTER'S APPARATUS. LENGTHY NAVY DEVELOPMENT AND TESTING OF SOLE- SOURCE SYSTEM TO ACHIEVE NECESSARY LEVEL OF CONFIDENCE IN DIVER SAFETY AND URGENT NEED FOR APPARATUS JUSTIFY FOREGOING COMPETITIVE PROCUREMENT INVOLVING UNACCEPTABLE TECHNICAL RISKS AND RESULTING DELIVERY DELAYS. 2. GAO VIEWS WITH CONCERN NAVY DELAY IN SPECIFYING DEFINITE STANDARDS OF ACCEPTABLE DEEP-DIVE UNDERWATER BREATHING APPARATUS SYSTEM PERFORMANCE NECESSARY FOR ANOTHER SOURCE TO ESTABLISH ABILITY TO COMPETE, SINCE STANDARDS, FIRST FURNISHED IN APRIL 1974, SHOULD HAVE BEEN SUSCEPTIBLE OF PREPARATION IN 1973 AFTER DEVELOPMENT OF SOLE SOURCE SYSTEM REACHED ACCEPTABLE LEVEL OF PERFORMANCE.

THE PROTEST OF BIOMARINE INDUSTRIES IS AGAINST THE PROCUREMENT BY THE DEPARTMENT OF THE NAVY OF 24 UNDERWATER BREATHING APPARATUS (UBA) SYSTEMS ON A SOLE-SOURCE BASIS FROM THE GENERAL ELECTRIC COMPANY (GE). THESE ARE LIFE SUPPORT SYSTEMS FOR USE IN DIVES TO DEPTHS OF ABOUT 850 TO 1,000 FEET. THE PROCUREMENT REPRESENTS THE CULMINATION OF SEVERAL YEARS' DEVELOPMENT, TESTING AND MODIFICATION OF THE GE UBA SYSTEM, INVOLVING AN EXPENDITURE OF ABOUT $1.3 MILLION BY THE NAVY.

THE BASIC JUSTIFICATION FOR THE DECISION TO PURCHASE THE GE SYSTEM IS CONTAINED IN THE CONTRACTING OFFICER'S DETERMINATION AND FINDINGS, DATED JUNE 25, 1973, QUOTED BELOW, AND THE CONCURRENT APPROVAL BY THE NAVAL SHIP SYSTEMS COMMAND (NAVSHIPS) SOLE SOURCE BOARD.

"UPON THE BASIS OF THE FOLLOWING FINDINGS AND DETERMINATION WHICH I HEREBY MAKE AS CONTRACTING OFFICER, THE PROPOSED PROCUREMENT DESCRIBED BELOW MAY BE NEGOTIATED WITHOUT ADVERTISING PURSUANT TO THE AUTHORITY OF 10 U.S.C. SEC. 2304(A)(10).

FINDINGS

"1. THE PROPOSED PROCUREMENT PROVIDES FOR THE FURNISHING OF 24 MK 10 MOD 4 UNDERWATER BREATHING APPARATUS, 12 M-11 FACEMASKS, 24 MK XVI HOT WATER SUITS, UMBILICAL SUBSYSTEM CONSISTING OF 24 GAS UMBILICALS, 24 HOT WATER UMBILICALS, AND 24 ELECTRICAL UMBILICALS, 12 COMMUNICATION SYSTEMS, 4 PHYSIOLOGICAL MONITORING SYSTEMS, 2 SETS MK 10 MOD 4 SYSTEMS TEST EQUIPMENT, 8 SENSOR CALIBRATION CUP ASSEMBLIES, TRAINING COURSE, PLUS AN OPTION FOR SPARE PARTS, TOGETHER WITH ASSOCIATED TECHNICAL DOCUMENTATION AND REPORTS.

"2. THIS EQUIPMENT IS REQUIRED TO PROVIDE A RELIABLE AND SAFE CLOSED CIRCUIT BREATHING SYSTEM TO MEET THE MISSION CAPABILITY OF THE SUBMARINE RESCUE SHIPS, ASR21/22, MK II MOD I DEEP DIVE SUPPORT PROGRAM. THE VERY NATURE AND THE HAZARDS OF DEEP SATURATION DIVING THAT THIS SYSTEM WILL BE USED FOR COULD MEAN LIFE OR DEATH FOR THE DIVER. THE UNDERWATER BREATHING APPARATUS (UBA) MUST PROVIDE THE MOST RELIABLE AND SAFEST LIFE SUPPORT FUNCTION FOR THE DIVER. THE MARK 10 WAS ORIGINALLY DEVELOPED BY GENERAL ELECTRIC COMPANY. THEY HAVE THE DETAILED KNOWLEDGE, EXPERIENCE AND CAPABILITY TO FURNISH THE REQUIRED EQUIPMENT. THE SENSOR, WHICH IS AN INTEGRAL PART OF THE UNDERWATER BREATHING APPARATUS, IS PROPRIETARY TO GENERAL ELECTRIC. THE GOVERNMENT DOES NOT HAVE DATA AVAILABLE TO GIVE TO OTHERS THAT IS ADEQUATE TO ASSURE THAT ANY OTHER FIRM COULD PROVIDE THE REQUIRED EQUIPMENT. ACCORDINGLY, IT IS IMPRACTICABLE TO OBTAIN COMPETITION BY FORMAL ADVERTISING.

"3. THE PRICE OF THE PROPOSED PROCUREMENT IS NOT FIXED BY LAW OR REGULATION.

DETERMINATION

"THE USE OF A NEGOTIATED PROCUREMENT IS JUSTIFIED BECAUSE IT IS IMPRACTICABLE TO OBTAIN COMPETITION BY FORMAL ADVERTISING."

IN ADDITION, THE SOLE SOURCE BOARD APPROVAL INDICATES THAT NEITHER PERFORMANCE SPECIFICATIONS, DESIGN DATA, MANUFACTURING DRAWINGS NOR MODELS ADEQUATE FOR USE IN A COMPETITIVE PROCUREMENT WERE AVAILABLE. IT IS STATED THAT THE NAVY DOES NOT PRESENTLY OWN THE UNIT BEING PROCURED - THE GE MARK 10 MOD 4 - AND THAT THIS PROCUREMENT WILL RESULT IN A NAVY-OWNED UNIT WITH SPECIFICATIONS AND DRAWINGS SUITABLE FOR USE IN FUTURE COMPETITIVE PROCUREMENTS, WITH ONE PART OF THE SYSTEM, THE SENSOR, REMAINING PROPRIETARY TO GE. HOWEVER, NAVSHIPS STATES THAT THIS PROCUREMENT WILL BE THE ONLY PURCHASE OF THIS TYPE OF UBA SYSTEM, SINCE FUTURE PLANS CALL FOR DEVELOPMENT OF A NEW LIFE SUPPORT SYSTEM UTILIZING RECIRCULATION OF GAS FROM THE SUPPORT PLATFORM TO THE DIVER.

FURTHER, IT IS STATED THAT THE 24 UBA SYSTEMS ARE MANDATORY BOTH FOR THE OUTFITTING AND MISSION CAPABILITY OF THE NAVY'S FIRST TWO SUBMARINE RESCUE VESSELS. THE SOLE SOURCE APPROVAL STATED THAT THESE VESSELS WOULD REQUIRE DELIVERY OF THE EQUIPMENT DURING THE PERIOD AUGUST TO OCTOBER 1974 AND NAVSHIPS HAS REPEATEDLY STRESSED THE URGENT NEED FOR THESE SUPPLIES. IS REPORTED THAT THE ASR-21 AND ASR-22 WERE COMMISSIONED AND JOINED THE FLEET IN APRIL 1974. AWARD OF A CONTRACT TO GE IS BEING WITHHELD PENDING THE DECISION OF OUR OFFICE.

BIOMARINE CONTENDS THAT ITS UBA SYSTEM QUALIFIES TO COMPETE FOR THE NAVY'S REQUIREMENTS AND, THEREFORE, THAT THE SOLE-SOURCE BUY FROM GE IS IMPROPER. BIOMARINE STATES IT HAS BEEN PRODUCING UBA'S SINCE 1969 WHEN IT PARTICIPATED IN WHAT IT REGARDS AS AN INCOMPLETE AND INCONCLUSIVE NAVY DEEP TEST DIVE OF UBA UNITS. AS A RESULT OF THIS TESTING, THE NAVY SELECTED GE'S UNIT FOR FURTHER DEVELOPMENT. AS EARLY AS AUGUST 21, 1972, BIOMARINE CONTACTED THE NAVY AND REQUESTED AN OPPORTUNITY TO COMPETE IN ANY UBA PROCUREMENT. IT WAS ADVISED 1 YEAR LATER, AUGUST 21, 1973, OF THE NAVY'S SOLE-SOURCE PLANS. THE RFP WAS ISSUED ON AUGUST 22, 1973.

DURING THE PERIOD FROM AUGUST 21, 1973, UNTIL THE FILING OF THE PROTEST WITH OUR OFFICE ON DECEMBER 4, 1973, BIOMARINE ATTEMPTED TO INDUCE THE NAVY TO CONDUCT THE PROCUREMENT ON A COMPETITIVE BASIS. AT A MEETING WITH NAVY PROCUREMENT OFFICIALS, BIOMARINE ALLEGED THAT ITS UNIT HAD UNDERGONE ONE MANNED TEST IN 1971 AT 1,000 FEET, ASSERTED THAT IT COULD MEET THE NAVY'S REQUIREMENTS, AND REQUESTED THAT THE NAVY INDICATE WHAT FURTHER TESTING OF THE BIOMARINE UBA WOULD BE NEEDED TO ESTABLISH THAT IT QUALIFIED FOR THE PROCUREMENT. IN A LETTER DATED OCTOBER 2, 1973, THE NAVY PROVIDED TO BIOMARINE THE FOLLOWING STANDARDS:

"*** NAVSHIPS WOULD CONSIDER REVIEWING YOUR TEST REPORTS FOR YOUR SATISFACTORY DIVES. THE TECHNICAL DATA IN YOUR SUBMISSION SHOULD PROVIDE DATA IN THE FOLLOWING AREAS TO SUBSTANTIATE SATISFACTORY PERFORMANCE:

"A. MANNED DIVES TO 1000' DEPTHS UNDER CONTINUOUS OPERATION FOR 4 HRS DIVE DURATION IN SURROUNDING WATER TEMPERATURE OF 30 F PROVIDING DIVERS INSPIRED GAS AT A TEMPERATURE OF 70.

"B. CO2/PO2 LEVELS AT VARIOUS STEPS IN YOUR 1000' TEST WOULD ALSO BE HELPFUL AND SHOULD ALSO INDICATE WHERE AND HOW THEY WERE SAMPLED.

"C. ANY BLOOD GAS LEVELS MEASURED AT 1000' DEPTH WOULD BE HELPFUL IN OUR EVALUATION."

IN ITS OCTOBER 11, 1973, REPLY, BIOMARINE PROPOSED A LESS EXPENSIVE PROGRAM OF UNMANNED TESTS WHICH, IT BELIEVED, WOULD BE ADEQUATE TO DEMONSTRATE THE CAPABILITIES OF THE EQUIPMENT. THIS SUGGESTION WAS REJECTED BY THE NAVY ON NOVEMBER 29, 1973, AND THE PRESENT PROTEST ENSUED.

NAVSHIPS' RESPONSE TO THE PROTEST TOOK THE POSITION THAT ITS DECISION TO PROCURE ON A SOLE-SOURCE BASIS WAS NOT ARBITRARY OR UNREASONABLE, IN VIEW OF THE FACT THAT NEITHER BIOMARINE NOR ANY OTHER CONCERN BUT GE HAD DEMONSTRATED THAT ITS UNITS COULD MEET THE GOVERNMENT'S REQUIREMENTS. THIS CONNECTION, NAVSHIPS NOTED THAT BIOMARINE HAD NOT PROVIDED RESULTS OF MANNED TESTS, BUT HAD ONLY PROPOSED UNMANNED TESTS, AND THAT THIS WAS INSUFFICIENT TO SHOW THAT THE PROTESTER'S EQUIPMENT HAD ACHIEVED THE LEVEL OF CONFIDENCE AND RELIABILITY MANIFESTED BY THE EXTENSIVELY DEVELOPED, MODIFIED AND TESTED GE UNIT. IT WAS REPORTED THAT MORE THAN 750 MANNED DIVES AT VARIOUS DEPTHS WERE CONDUCTED WITH THE GE UBA; THAT NAVY DIVING OPERATIONS TOTALED 760 OPERATING HOURS IN WATER TEMPERATURES AS LOW AS 25 F. TO A DEPTH OF 1,100 FEET; AND THAT CONTRACTOR TESTING OPERATIONS TOTALED 1,431 HOURS.

BIOMARINE'S REPLY TO THIS WAS ESSENTIALLY THAT THE NAVY HAD NEVER INDICATED WHAT ITS EXACT REQUIREMENTS WERE AND WHAT TESTING WAS REQUIRED TO SHOW THAT THE UNIT MET THE REQUIREMENTS. THE PROTESTER CHALLENGED THE NAVY'S ASSERTION THAT IT DID NOT COMPREHEND THE SCOPE OF THE PROCUREMENT WITH THE CONTENTION THAT THE NAVY HAD NEVER INDICATED, EVEN IN THE RFP ITSELF, WHAT PERFORMANCE STANDARDS AN ACCEPTABLE UBA SYSTEM MUST MEET. NEVERTHELESS, BIOMARINE STATED THAT IT HAD REASON TO BELIEVE IT COULD MEET THE CRITERIA, EVEN WITHOUT KNOWING THEM, SINCE FROM OTHER EXPERIENCE AND OPPORTUNITY FOR COMPARISONS WITH GE EQUIPMENT, IT HAD CONCLUDED THAT ITS UNITS OUTPERFORM GE'S.

AT A CONFERENCE ON THE PROTEST HELD AT OUR OFFICE ON FEBRUARY 12, 1974, BIOMARINE ITERATED THESE POINTS AND STRESSED THAT IT WAS UNFAIR AND UNREALISTIC TO EXPECT IT TO CONDUCT MANNED TESTS AT ITS OWN EXPENSE. THIS REGARD BIOMARINE POINTED OUT THAT THE PERFORMANCE STANDARDS STATED IN THE NAVSHIPS OCTOBER 2, 1973, LETTER WERE RATHER GENERAL; THAT MANNED TESTING WOULD COST BIOMARINE ABOUT $200,000; AND THAT THERE WAS NO ASSURANCE THAT SUCCESSFUL COMPLETION OF THE TESTS WOULD ASSURE QUALIFICATION TO PARTICIPATE IN THE PROCUREMENT.

IN ADDITION, SHORTLY AFTER THE CONFERENCE, BIOMARINE PRESENTED TO NAVSHIPS THE FOLLOWING PROGRAM TO DEMONSTRATE ITS QUALIFICATIONS TO COMPETE IN THE PROCUREMENT:

"ASSUMING WE ARE SATISFIED THAT WE CAN PERFORM TO THE LEVELS SPECIFIED BY THE NAVY, WE ARE PREPARED TO DO THE FOLLOWING TO PROVE THAT WE CAN AND WE SHOULD BE CONSIDERED FOR AWARD:

"1. AT BIOMARINE INDUSTRIES' EXPENSE, WE WILL ARRANGE FOR ALL UNMANNED TESTING SPECIFIED BY THE NAVY TO BE CONDUCTED BY AN INDEPENDENT LABORATORY, AND WE WILL PROVIDE THE NAVY WITH TEST RESULTS DEMONSTRATING THAT OUR EQUIPMENT PASSES THE TESTS. THIS CAN BE DONE WITHIN 30 DAYS OF PROVIDING US THE REQUIRED TESTS AND PERFORMANCE LEVELS.

"2. WE WILL PROVIDE A BIOMARINE INDUSTRIES UNIT TO THE NAVY FOR MANNED TESTING TO PRE-QUALIFY THE BIOMARINE EQUIPMENT FOR THE PURPOSE OF COMPETING FOR THE PROCUREMENT. WHILE THE NAVY WOULD PAY FOR THE COST OF THESE TESTS, THE UNITS AND BIOMARINE'S TECHNICAL PERSONNEL WOULD BE FURNISHED AT NO CHARGE TO THE NAVY.

"3. AS AN ALTERNATIVE TO #2, WE WOULD COMPETE FOR AND ACCEPT A CONTRACT REQUIRING THE FIRST ARTICLE APPROVAL OF OUR EQUIPMENT. THE CONTRACT WOULD SPECIFY THE TESTS TO BE PERFORMED AND THE PERFORMANCE LEVELS TO BE ACHIEVED. WE WOULD AGREE TO PERFORM FIRST ARTICLE TESTING CONCURRENTLY WITH THE INITIAL PRODUCTION WORK AND TO COMPLETE DELIVERIES WITHIN THE 8 MONTH PERIOD WHICH IS STATED TO BE G.E.'S LEAD TIME. TESTING COULD BE BY THE NAVY OR BY AN INDEPENDENT LABORATORY. IF THE FORMER, THE COST OF SUCH TESTING COULD BE ADDED TO OUR PRICE FOR EVALUATION PURPOSES; IF THE LATTER, THE COST OF SUCH TESTING WOULD BE INCLUDED IN OUR PRICE. FIRST ARTICLE TEST RESULTS WOULD BE AVAILABLE WITHIN 90 DAYS OF MUTUAL AGREEMENT ON PROCEEDING. THIS 90 DAYS INCLUDES THE TIME FOR THE UNMANNED TESTS DESCRIBED IN #1 ABOVE.

"4. AS AN ADDITIONAL ALTERNATIVE, *** HARBOUR BRANCH (FOUNDATION) IS CURRENTLY RUNNING MANNED TESTS TO VARIOUS DEPTHS AT DUKE UNIVERSITY. DR. YOUNGBLOOD OF HARBOUR BRANCH HAS INDICATED AN INTEREST IN CONDUCTING A DEEP COLD WATER DIVE DURING THE CURRENT SERIES. THE BIOMARINE RIG COULD BE MAN TESTED AT NO COST TO THE NAVY BY PIGGY BACKING ON THEIR TESTS SHOULD THE NAVY BE ABLE TO SET TEST PARAMETERS. WE BELIEVE TIMING CAN BE WORKED OUT BY US IN DISCUSSIONS WITH NAVY AND HARBOUR BRANCH PERSONNEL.

"OUR WILLINGNESS TO OFFER THE ABOVE IS DEPENDENT ON AGREEMENT THAT PASSAGE OF THE TESTS QUALIFIES US FOR THE PROCUREMENT."

WITH REFERENCE TO THE PROPOSED MANNED TESTS DISCUSSED ABOVE IN PARAGRAPH 4, BIOMARINE SUBSEQUENTLY FURNISHED A STATEMENT FROM DR. YOUNGBLOOD CONCERNING A MANNED TEST OF THE BIOMARINE EQUIPMENT PERFORMED ON APRIL 23, 1974. THIS TEST, APPARENTLY NOT CONDUCTED IN COOPERATION WITH THE NAVY, IS DESCRIBED AS FOLLOWS:

"THE TEST CONSISTED OF A 40 MINUTE, MANNED DIVE TO 1,000 FEET IN 13 C WATER WITH THE DIVER DOING SIMULATED OIL FIELD TASKS REQUIRING A SUBSTANTIAL LEVEL OF PHYSICAL ACTIVITY. THE DIVER REPORTED NO PROBLEM WITH BREATHING RESISTANCE AND THE CCR-1000 MAINTAINED EXCELLENT CONTROL OF THE OXYGEN PARTIAL PRESSURE AND PCO2.

"WITHIN THE LIMITS TESTED, THE CCR-1000 PERFORMED IN A SAFE AND RELIABLE MANNER. THIS TEST AND OTHERS PERFORMED BY THE BARBOUR BRANCH FOUNDATION LABORATORY INDICATE THE POTENTIAL OF THE CCR-1000 FOR USE IN DEEP DIVING OPERATIONS SUCH AS LOCK-OUT DIVING AND SUBMARINE RESCUE OPERATIONS FOR WHICH WE HAVE PURCHASED THEM."

THE PRESENT PROTEST WAS HELD IN ABEYANCE WHILE THE NAVY GAVE CONSIDERATION TO BIOMARINE'S SUGGESTED METHODS OF OPENING THE PROCUREMENT TO COMPETITION. IN A SUPPLEMENTARY REPORT DATED APRIL 16, 1974, NAVSHIPS CONCLUDED THAT NONE OF THE POSITIONS ADVANCED BY BIOMARINE PRESENTED A BASIS FOR COMPETITIVE PROCUREMENT.

THIS REPORT CLARIFIED THE NAVY'S REQUIREMENTS BY INDICATING THAT DIVERS MUST BE ABLE TO DO USEFUL WORK AT A LEVEL OF 1,000 FEET WITHOUT PHYSIOLOGICAL STRESS IN EXCESS OF CERTAIN PARAMETERS. FURTHERMORE, THE REPORT PROVIDED A NUMBER OF TECHNICAL CRITERIA FOR MANNED TEST STANDARDS AND CONDITIONS WHICH, IN CONJUNCTION WITH THE PHYSIOLOGICAL STRESS PARAMETERS, REPRESENT THE PERFORMANCE LEVEL AN ACCEPTABLE UBA SYSTEM MUST REACH IN ORDER TO SATISFY THE NAVY'S MINIMUM NEEDS. THE REPORT EXPRESSED THE VIEW THAT A HIGH DEGREE OF CONFIDENCE AS TO THE ABILITY OF A UBA UNIT TO ASSURE DIVER SAFETY IS MANDATORY. SINCE MANY PERFORMANCE FACTORS CANNOT BE EXTRAPOLATED TO ACHIEVE THIS CONFIDENCE LEVEL, A SERIES OF TESTS, CULMINATING AT A TIME WHEN NO FURTHER SIGNIFICANT CHANGES TO THE SYSTEM ARE NEEDED, ARE NECESSARY. THIS IS THE PROCEDURE WHICH HAS BEEN FOLLOWED WITH THE GE UBA UNIT.

IN VIEW OF THESE CONSIDERATIONS, THE NAVY FOUND NONE OF BIOMARINE'S SUGGESTED ALTERNATIVES TO BE ACCEPTABLE: "THE KEY ELEMENT OF GOVERNMENT CONCERN IS THE ABILITY OF THE UBA TO SUCCESSFULLY COMPLETE MANNED TESTS IN COLD WATER AT A DEPTH OF 1000 FEET. BIOMARINE HAS OFFERED THREE ALTERNATIVES TO SUCH TESTING IN PARAGRAPHS MARKED 1, 2, 3, AND 4 OF THEIR 14 FEBRUARY 1974 LETTER. THE OPTION UNDER BOTH ALTERNATIVES 1 AND 2 TO HAVE TESTING ACCOMPLISHED BY THE NAVY IS NOT PRACTICAL BECAUSE OF HIGHER PRIORITY DEMANDS ON AVAILABLE QUALIFIED MEDICAL AND DIVING PERSONNEL. MORE IMPORTANTLY, ALTHOUGH THE THREE ALTERNATIVES PROVIDE VARIOUS MEANS OF ACCOMPLISHING MANNED TESTS, NONE OF THEM CAN PROVIDE THE CONFIDENCE THAT A SINGLE TEST (AS PROPOSED BY BIOMARINE AND AS USED BY THEM AS A MEANS OF DETERMINING THE COST TO THE NAVY AND TIME OF EQUIPMENT AVAILABILITY) WILL RESULT IN A SYSTEM THAT FULFILLS THE CRITERIA SPECIFIED HEREIN. IN THE CASE OF THE MK 10, THIS TESTING INVOLVED A SERIES OF THREE DIVES AT DEPTHS OF 1000 FEET OR MORE. THE COST OF A SINGLE MANNED DEEP DIVE CONDUCTED BY NAVY PERSONNEL USING NAVY SUBJECTS IS IN EXCESS OF $200,000. THE TIME FOR PREPARATION, EQUIPMENT TURN AROUND, CONDUCT, AND ANALYSIS OF EACH TEST WOULD TAKE AT LEAST FOUR (4) MONTHS.

"EQUIPMENT PROVIDED TO THE NAVY MUST NOT ONLY BE SAFE AND RELIABLE, BUT MUST ALSO BE AVAILABLE TO THE NAVY FOR USE IN A PREDICTABLE TIME FRAME AND WITHIN THE REQUIRED TIME FRAME. NONE OF THE ALTERNATIVES OFFERED BY BIOMARINE PROVIDE A BASIS OF COMPETITIVE CONTRACTING SINCE THE ULTIMATE COST OF DEMONSTRATING THAT THE EQUIPMENT BEING OFFERED MEETS THE GOVERNMENT'S MINIMUM NEEDS CANNOT BE ESTABLISHED WITH ACCEPTABLE CONFIDENCE. FURTHER, THE ULTIMATE AVAILABILITY DATE OF THE BIOMARINE SYSTEM FOR OPERATIONAL USE CANNOT BE ESTABLISHED WITH CONFIDENCE FOR THE SAME REASONS. ALL OF THE ALTERNATIVES OFFERED BY BIOMARINE ARE THEREFORE CONSIDERED BY THE NAVY TO BE UNACCEPTABLE FROM A TECHNICAL AND MINIMUM NEED STANDPOINT."

UNDER 10 U.S.C. 2304(A)(10), THE NEGOTIATION AUTHORITY RELIED UPON BY THE AGENCY IN ISSUING THE PRESENT SOLICITATION, CIRCUMSTANCES MAY EXIST JUSTIFYING A NONCOMPETITIVE PROCUREMENT. ONE SUCH CIRCUMSTANCE, DESCRIBED IN ASPR 3-210, IS WHERE THE REQUIRED SUPPLIES OR SERVICES CAN BE OBTAINED FROM ONLY ONE PERSON OR FIRM (SOLE SOURCE OF SUPPLY). THE CONTRACTING OFFICER'S DECISION TO MAKE A SOLE-SOURCE AWARD UNDER THIS AUTHORITY WILL NOT BE QUESTIONED UNLESS IT IS CLEAR FROM THE RECORD THAT THE ACTION CONSTITUTES AN ABUSE OF PROCUREMENT DISCRETION. B 178179, JULY 27, 1973.

FOR THE REASONS WHICH FOLLOW, WE BELIEVE THAT THE NAVY'S REJECTION OF BIOMARINE'S SUGGESTED METHODS FOR OPENING THE PROCUREMENT TO COMPETITION WAS REASONABLE. AS WE UNDERSTAND THE PROTESTER'S FOUR POINT PROGRAM, THE ALTERNATIVES OF UNMANNED OR MANNED TESTING DISCUSSED IN PARAGRAPHS 1 AND 2, SUPRA, WOULD BE FOR THE PURPOSE OF ESTABLISHING BIOMARINE'S QUALIFICATION TO COMPETE IN THE PROCUREMENT. AS WE HAVE NO BASIS TO QUESTION THE NAVY'S POSITION THAT MANNED TESTING OF THE BIOMARINE UNIT IS IMPRACTICABLE BECAUSE OF OTHER DEMANDS ON NAVY PERSONNEL, THIS ALTERNATIVE WILL NOT BE CONSIDERED FURTHER. HOWEVER, WE MUST CONSIDER BIOMARINE'S ARGUMENT THAT, ALTHOUGH MANNED TESTS ARE NECESSARY BEFORE THE UNITS ARE DELIVERED TO THE NAVY FOR USE, THEY CAN BE ACCOMPLISHED DURING CONTRACT PERFORMANCE. IN OTHER WORDS, THE PROTESTER HAS CONTENDED THAT UNMANNED TESTS CAN SUFFICIENTLY ESTABLISH ITS QUALIFICATIONS TO COMPETE, AND THAT NECESSARY MANNED TESTING CAN BE ACCOMPLISHED IN CONNECTION WITH THE FIRST ARTICLE APPROVAL AT THE EXPENSE OF BIOMARINE. IN THIS REGARD, BIOMARINE ALLEGES THAT DESPITE THIS PRICE HANDICAP, IT CAN SUCCESSFULLY COMPETE FOR THE CONTRACT AT SIGNIFICANT COST SAVINGS. TO FOLLOW THE PROCEDURE OUTLINED ABOVE WOULD EXPOSE THE NAVY TO TECHNICAL RISKS AND THE POSSIBILITY OF DELIVERY DELAYS. SPECIFICALLY, IF BIOMARINE FAILED TO PRODUCE AN ACCEPTABLE FIRST ARTICLE, NAVSHIPS COULD FIND ITSELF INVOLVED IN A PROCESS OF EXTENSIVE MODIFICATION OF THE BIOMARINE UBA WITH THE RESULTING DELAYS IN OBTAINING AN ACCEPTABLE SYSTEM. IN THIS REGARD, WE NOTE THAT THE GE UNIT SELECTED FOR DEVELOPMENT BY THE NAVY WENT THROUGH A SERIES OF FIVE MODIFICATIONS DURING THE PERIOD FROM 1969 TO 1973. EVEN ACCEPTING, ARGUENDO, BIOMARINE'S CONTENTION THAT ITS UBA CAN PRESENTLY OUTPERFORM GE'S, IT WOULD NOT SEEM UNREASONABLE TO BELIEVE THAT THERE IS A DEFINITE RISK THAT BIOMARINE'S UNIT MAY SIMILARLY REQUIRE CONSIDERABLE MODIFICATION. IN ADDITION, WE THINK ANOTHER AREA OF TECHNICAL UNCERTAINTY IS HIGHLIGHTED BY THE FOLLOWING COMMENT IN GE'S LETTER OF FEBRUARY 22, 1973, TO OUR OFFICE:

"PROTESTANT APPEARS TO DIRECT ALL OF ITS COMMENT TO THE SUITABILITY OF ITS COMMERCIAL UBA FOR THE NAVY REQUIREMENTS WITHOUT COMMENT ON THE OTHER CRITICAL ELEMENTS OF THE INTEGRATED LIFE SUPPORT SYSTEM DEFINED BY THE RFP. IT IS NOT CLEAR WHETHER PROTESTANT SEEKS TO RESPOND PIECEMEAL TO THE RFP WITH RESPECT TO THE UBA ALONE OR TO THE ENTIRE INTEGRATED SYSTEM. THE FORMER, IT IS UNCLEAR HOW PROTESTANT WOULD ACHIEVE COMPATIBILITY OF ITS UBA WITH THE INTEGRATED SYSTEM OF THE RFP. IF THE LATTER, PROTESTANT HAS NOT EVEN SUGGESTED HOW IT WOULD DEMONSTRATE AND TEST OTHER THAN THE UBA PORTION OF THE SYSTEM. GENERAL ELECTRIC ON THE OTHER HAND HAS ALREADY TESTED AND PROVEN THE RELIABILITY OF ITS TOTAL INTEGRATED LIFE SUPPORT SYSTEM."

IN VIEW OF THE FOREGOING, AND THE URGENT NEED FOR UBA'S MEETING FLEET REQUIREMENTS, THE NAVY'S VIEW THAT UNACCEPTABLE TECHNICAL RESKS AND DELIVERY DELAYS JUSTIFY FOREGOING THE ADVANTAGES OF COMPETITION CANNOT, IN OUR OPINION, BE REGARDED AS UNREASONABLE.

THE LAST SUGGESTED ALTERNATIVE PRESENTED BY BIOMARINE RELATES TO UTILIZING ONGOING MANNED TESTS BY THE HARBOR BRANCH FOUNDATION AND, IN THIS CONNECTION, WE MUST CONSIDER THE RESULTS OF A MANNED TEST REPORTED BY A SCIENTIST INVOLVED IN THIS WORK. WE HAVE NO REASON TO QUESTION THE VALIDITY OF THIS EVIDENCE. HOWEVER, IT DOES NOT OVERCOME THE THRUST OF THE NAVY'S POSITION THAT GE'S UNIQUE CAPABILITY TO FULFILL THE PRESENT REQUIREMENT IS BASED ON A SERIES OF MANNED TESTS CULMINATING IN THE DEVELOPMENT OF A UBA UNIT REQUIRING NO FURTHER MAJOR MODIFICATIONS. ADDITION, DR. YOUNGBLOOD'S STATEMENT ITSELF APPEARS TO RECOGNIZE THE LIMITED SIGNIFICANCE OF THE TESTING, INASMUCH AS IT STATES THAT "THIS TEST AND OTHERS PERFORMED *** INDICATE THE POTENTIAL OF THE *** (BIOMARINE UNIT) FOR USE IN DEEP DIVING OPERATIONS ***."

BASED ON THE FOREGOING, WE DO NOT BELIEVE BIOMARINE HAS MET THE HEAVY BURDEN OF SHOWING THAT THE NAVY'S SOLE-SOURCE ACTION IS ARBITRARY, CAPRICIOUS AND AN ABUSE OF PROCUREMENT DISCRETION. ACCORDINGLY, OUR OFFICE WILL NOT OBJECT TO THE PROPOSED AWARD TO GE, AND THE PROTEST IS DENIED.

ONE ASPECT OF THE PROCUREMENT CAUSES US CONCERN - THE DELAY ON THE PART OF THE NAVY IN PROVIDING TO BIOMARINE A CLEAR INDICATION OF THE REQUIRMENTS WHICH AN ACCEPTABLE UBA SYSTEM WOULD HAVE TO MEET. AS NOTED PREVIOUSLY, THIS INFORMATION WAS FURNISHED FOR THE FIRST TIME IN THE NAVY'S APRIL 16, 1974, SUPPLEMENTARY REPORT IN THE FORM OF PHYSIOLOGICAL STRESS PARAMETERS AND TEST STANDARDS AND CONDITIONS. IT SEEMS TO US THAT UPON COMPLETING THE DEVELOPMENT OF THE GE SYSTEM AND DETERMINING THAT IT HAD REACHED AN ACCEPTABLE LEVEL OF PERFORMANCE, OR, IN ANY EVENT, BY THE TIME THE RFP WAS ISSUED IN AUGUST 1973, THE NAVY SHOULD HAVE BEEN IN A POSITION TO QUANTIFY THIS PERFORMANCE STANDARD, AS IT DID LATER. WHILE THE EFFECT OF FURNISHING THIS INFORMATION TO BIOMARINE AT AN EARLY STAGE IN THE PROCUREMENT IS A MATTER OF SPECULATION, IT WOULD AT LEAST HAVE RENDERED THE PROTESTER'S PROPOSAL THAT UNMANNED TESTS WOULD BE SUFFICIENT TO QUALIFY FOR THE PROCUREMENT AND THAT MANNED TESTS BE CONDUCTED IN CONNECTION WITH A FIRST ARTICLE APPROVAL A MORE VIABLE POSSIBILITY FROM THE STANDPOINT OF TIMELY DELIVERY.

WE NOTE THAT THE DELAY IN APPRISING BIOMARINE OF THE PERFORMANCE STANDARDS IS SIMILAR TO THE IMPERFECTIONS IN NAVY PROCUREMENT PRACTICES AND PROCEDURES WE DISCUSSED IN ANOTHER RECENT PROTESTED PROCUREMENT OF LIFE SUPPORT BREATHING DEVICES. SEE 52 COMP. GEN. 801 (1973).