BNUMBER:  B-262221
DATE:  November 20, 1995
TITLE:  Navistar Marine Instrument Corporation

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Matter of:Navistar Marine Instrument Corporation

File:     B-262221

Date:   November 20, 1995          

Steven J. Nadel for the protester.
Stephen Stastny, Esq., and Benjamin G. Perkins, Esq., Defense 
Logistics Agency, for the agency.
C. Douglas McArthur, Esq., and Christine S. Melody, Esq., Office of 
the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

1.  Protest of sole source solicitation is denied where agency 
complied with requirements of Competition in Contracting Act of 1984 
by executing a justification and approval authorizing the use of other 
than full and open competition procedures, because agency did not have 
in its possession sufficient, accurate, or legible data to purchase 
the part from any source other than the one known source.

2.  Protest of a solicitation's qualification procedures, filed after 
receipt of initial proposals, is not only untimely but fails to state 
a valid basis of protest, where protester fails to take issue with 
agency's need to assure equivalent functioning of parts and fails to 
identify the precise procedures that it considers unduly restrictive.

DECISION

Navistar Marine Instrument Corporation protests the terms of request 
for proposals (RFP) No. SP0440-95-R-3832, issued by the Defense 
General Supply Center (DGSC) for aneroid barometers.  Navistar 
challenges the solicitation as unduly restrictive and improperly 
limited to a sole source.

We deny the protest in part and dismiss it in part.

DGSC issued the solicitation on July 24, 1995, for a fixed-price 
contract for a quantity of 17 aneroid barometers, described by part 
number FA112150 manufactured by the Wallace and Tiernan Division of 
the Pennwalt Corporation.  The solicitation contained the standard 
clause at Defense Logistics Agency Regulation (DLAR)  52.217-9002, 
Conditions for Evaluation and Acceptance of Offers for Part Numbered 
Items.  This clause advises offerors that the agency has determined 
the Wallace and Tiernan barometer to be acceptable but permits and 
provides procedures for firms to offer alternate products.

On June 30, 1995, prior to issuing the solicitation, the contracting 
officer executed a justification and approval (J & A), authorizing the 
use of procedures other than full and open competition.  This J & A 
states that the barometer is identified only by the manufacturer's 
part number.  The J & A states further that the government does not 
possess sufficient, accurate, or legible data to purchase the 
barometer from other sources and therefore has no data to include or 
reference in the solicitation.  The agency has certified that it has 
exhausted all means to obtain a technical data package (TDP) adequate 
for manufacture of the item.

Despite the overriding mandate of the Competition in Contracting Act 
of 1984 (CICA) for achieving "full and open competition" in government 
procurements through the use of competitive procedures, 10 U.S.C.  
2301(a)(1)(A) (1994), CICA does permit noncompetitive acquisitions in 
specified circumstances such as this one, when only one known 
responsible source is available to provide the supplies that the 
agency needs.  10 U.S.C.  2304(c)(1); Federal Acquisition Regulation 
(FAR)  6.302-1; Kollsman, A Div. of Sequa Corp; Applied Data 
Technology, Inc., B-243113; B-243113.2, July 3, 1991, 91-2 CPD  18.  
Where, as here, the agency has substantially complied with the 
procedural requirements of CICA, 10 U.S.C.  2304(f), for approval of 
the contemplated sole source action and publication of the required 
notice in the Commerce Business Daily (CBD), we will not object unless 
a protester shows that there is no reasonable basis for the award.  
Rotek, Inc., B-240252, Oct. 26, 1990, 90-2 CPD  341.  Navistar has 
submitted nothing to show that the agency's determination was 
unreasonable.

The agency advises our Office that the barometer performs a critical 
function in testing of numerous aircraft engines, including those for 
the Kiowa OH-58A, Cobra/TOW, Blackhawk UH-60A and Apache AH-64 
helicopters, as well as the Mohawk OU-01D airplane.  Testing involves 
measurement of performance at various levels of barometric pressure, 
along with humidity and temperature, to determine the performance 
envelope of each engine installed.  The barometer that the agency is 
acquiring fits into a pre-existing opening on the instrument panel of 
the engine test cell used to calibrate engine performance.  DGSC 
therefore requires a barometer interchangeable with that designed by 
Wallace and Tiernan in order to ensure proper functioning during 
calibration.

Navistar takes no issue with the agency's need for the barometer to be 
interchangeable with the Wallace and Tiernan barometer.  Since the 
record shows that no other firm has demonstrated the required 
interchangeability, we have no basis to consider unreasonable the 
basic premise of the J & A--that without sufficient data, and absent 
an attempt by any other firm to qualify its product, Wallace and 
Tiernan is the only source for the barometer.[1]  See Alfa-Laval 
Separation, Inc., B-250065, Jan. 4, 1993, 93-1 CPD  1.

In its response to the agency report, Navistar disputes the agency's 
assertion that it cannot obtain drawings sufficient for competition.  
The protester contends that if the agency will provide it with basic 
information on the physical dimensions and electrical interfaces, it 
can develop test and inspection procedures as good or better than 
those used by Wallace and Tiernan.[2]

In essence, Navistar challenges the agency procedures for qualifying 
alternate products, which were evident from the RFP.  Under our Bid 
Protest Regulations, 4 C.F.R.  21.2(a)(1) (1995), allegations of 
improprieties in a solicitation apparent prior to the time set for 
receipt of initial proposals must be filed prior to that time.  Thus, 
these arguments, first raised in the protester's comments of September 
15, 3 weeks after the receipt of initial proposals on August 24, are 
untimely.  Moreover, to the extent that Navistar's initial protest can 
be read to allege that the qualification procedures of DLAR  
52.217-9002 are "restrictive," it fails to state a valid basis of 
protest.[3]

The version of DLAR  52.217-9002 used here advises potential offerors 
that the agency has no data available for use in determining the 
acceptability of products other than the named product.  Any product 
offered must be either identical to or physically, mechanically, 
electrically and functionally interchangeable with the Wallace and 
Tiernan barometer.  To demonstrate such interchangeability, an offeror 
must submit a TDP describing the alternate product being offered.  
Further, offerors must obtain a TDP on the named product.  These TDPs 
must contain information on design, materials, performance, function, 
inspection and testing, interchangeability, and other characteristics 
sufficient to allow DGSC to determine that the alternate product is 
equal to named product.

Where a solicitation provision is challenged as overly restrictive, we 
will review the adequacy of an agency's justification for the 
provision through examining whether the agency's explanation appears 
reasonable.  See Craigrick's, Inc., B-261356, July 5, 1995, 95-2 CPD  
2.  As noted above, the protester does not contest DGSC's assertion 
that it needs any offered product to be interchangeable with the 
Wallace and Tiernan barometer.  We therefore have no basis to conclude 
that the use of the clause is unreasonable.  To the extent that 
Navistar considers certain portions of the clause to be 
restrictive--that while DGSC needs a degree of interchangeability, 
there is no need for an offeror to demonstrate equality for every 
characteristic of the product offered--the protester raises no 
specific objection to the requirements of that clause.  Navistar has 
not attempted to demonstrate how the clause exceeds the agency's 
needs, or how DGSC should modify the clause to make it acceptable.  
Based on the record before our Office, the protester therefore has not 
established a likelihood that the DLAR  52.217-9002 procedures for 
qualifying alternate products exceed the agency's minimum needs.  
Navistar thus has failed to state a valid basis for protest, and we 
therefore have no basis for considering the matter.  See 4 C.F.R.  
21.3(m)(5); Bombardier, Inc., Canadair, Challenger Div., B-244328, 
June 17, 1991, 91-1 CPD  575.

The protest is denied in part and dismissed in part.

Comptroller General
of the United States

1. The protester does question whether DGSC conducted a market survey.  
CICA, 10 U.S.C.  2304(f)(3)(D), requires that the J & A include a 
description of the market survey conducted or a statement of the 
reasons a market survey was not conducted.  Although the J & A did not 
address this requirement, the agency published a notice of the 
acquisition in the CBD and provided a procedure for potential offerors 
to qualify their barometers.  Thus, the essential purposes of a market 
survey were served.  See FAR  7.101; Coulter Corp. et al., B-258713; 
B-258714, Feb. 13, 1995, 95-1 CPD  70.

2. The agency subsequently provided the protester with the drawings 
that it has.  The agency asserts that the drawings are not adequate 
for purposes of competition, since they contain no test procedures, no 
tolerances, no face value scale information, and no information on 
materials.

3. The initial protest stated only that the solicitation was 
"restrictive and sole source."  In its response to a request by DGSC 
that we dismiss the protest, Navistar for the first time made 
reference to the DLAR clause.  The protester's argument at that time 
was that the clause did not identify the "salient characteristics" of 
the barometer.  Our Office has held that where a solicitation contains 
a clause similar to DLAR  52.217-9002, there is no requirement for a 
statement of "salient characteristics."  Fantasy Lane, Inc., 
B-254072.3, June 23, 1994, 94-1 CPD  377 (involving the Products 
Offered predecessor clause to DLAR  52.217-9002).  Further, to the 
extent that the protester asserts that the solicitation contained no 
standards for an offered product to meet, the record shows that 
assertion to be incorrect, since the clause clearly contains such 
standards.