BNUMBER: B-270236
DATE: February 20, 1996
TITLE: Dynamic Instruments, Inc.
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Matter of:Dynamic Instruments, Inc.
File: B-270236
Date: February 20, 1996
Paul F. Whitten, Sr., for the protester.
John B. Denniston, Esq., and Jason A. Levine, Esq., Covington &
Burling, for Mechanical Technology Inc., an intervenor.
David M. Hill, Esq., and Richard P. Castiglia, Jr., Esq., Department
of the Air Force, 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
Protest that agency improperly rejected protester's offered equipment
under proposed sole-source procurement is denied where record shows
that protester's equipment, an engine balancing system, did not meet
the agency's minimum needs because of the system's limited ability to
provide real-time data on engine vibration levels.
DECISION
Dynamic Instruments, Inc. protests the sole-source award of a contract
to Mechanical Technology Inc. (MTI) under request for proposals (RFP)
No. F41608-95-R-0239, issued by the Department of the Air Force for a
portable balancing system.
We deny the protest.
On March 8, 1995, the agency issued the solicitation for a fixed-price
requirements contract for a PBS 4100 portable balancing system, plus
accessories, for the F108 engine used in the KC-135R aerial tanker.
The agency subsequently executed a justification and approval (J & A)
authorizing the use of other than full and open competition. That J &
A identifies MTI as the only source for the PBS 4100, based on the
agency's lack of technical data and drawings necessary for any other
firm to manufacture the PBS 4100.
The J & A and the synopsis that the agency published in the Commerce
Business Daily (CBD) described the PBS 4100 as follows:
"Automatically collects vibration data during engine test run and
calculates balance solution, displays a diagram of engine balance
to indicate where weights should be installed."
In other words, the system monitors engine vibration at different
speeds and produces a recommended configuration for attaching weights
to keep vibration within acceptable limits.
Dynamic Instruments provided a timely expression of interest in the
procurement; subsequent correspondence from the protester disclosed
that Dynamic Instruments was seeking qualification of a Vibration
Analysis Test Set (VATS) to satisfy the agency's needs.
The protester submitted an offer by the amended closing date of July
7, and requested an opportunity to make a presentation on the
capabilities of the VATS. The Air Force granted this request and,
after the presentation, scheduled a demonstration test for the VATS at
the Rickenbacker Air National Guard facility in Ohio.
The technician in charge of the demonstration test noted several
shortcomings in the VATS. Where the PBS 4100 produced a survey of
vibration from ground idle to take-off, the VATS required acceleration
at a set rate, within a pre-established range. The operator, it was
discovered, became distracted from monitoring engine gauges by the
need to provide boost at these prescribed levels. Further, the VATS
did not allow an analysis for all phases of engine operation, but only
analyzed vibration at the prescribed settings. More seriously, the
technician noted, the VATS could not monitor fan frame vibration and
turbine rear frame vibration simultaneously. The VATS did not display
real-time data, but provided a balance solution only at the end of the
testing cycle. Consequently, with no means of monitoring vibration
during testing, there was no way to ensure that the engine was not
being damaged during the testing. Further, that portion of the
engine--fan frame or turbine rear frame--not currently being tested
could suffer damage while an operator was running tests on the other
portion.
Air Force technical personnel concluded that although the VATS could
track engine vibration and provide a balance solution, it would not be
able to balance the engines safely--without danger of damage during
testing--without significant modification. On October 13, 1995, the
Air Force rejected Dynamic Instruments's offer. This protest
followed.
The protester challenges the decision to procure the engine balancing
system on a sole-source basis, essentially arguing that the agency
improperly concluded that the protester's equipment would not also
meet the agency's needs. Based on our review of the record here, we
see no basis to object to the agency's decision to reject Dynamic
Instruments's offer and to procure the equipment on a sole-source
basis.
The CBD notice identified three functions of the equipment--the
collection of vibration data, the calculation of a balance solution,
and the display of that solution. The record shows that the VATS is
not comparable to the PBS 4100 in two of the three functions mentioned
in the CBD--collecting vibration data (simultaneously from two points)
and displaying the solution in real time. Dynamic Instruments does
not argue that its equipment in fact has these features of the PBS
4100; instead, the protester contends that its equipment will meet the
agency's needs without those features. In essence, the protester is
challenging the agency's determination of its minimum needs.
The contracting agency has the primary responsibility for determining
its minimum needs since it best understands the conditions under which
solicited supplies and services will be used. See Vorum Research
Corp., B-255393; B-255394; Feb. 28, 1994, 94-1 CPD para. 155. We have no
basis to question the agency's conclusion that the features lacking
from the VATS--simultaneous monitoring of the fan frame and rear
turbine frame, and the ability to provide real-time data--are
necessary to balance an engine safely, or to discount the agency's
concern that the engine not be damaged during testing. The protester
here does not deny the risks of engine failure, described in detail
above, that might result where the cited characteristics of the
equipment are absent. Under these circumstances, we see no basis to
object to the agency's conclusion that these features are necessary to
meet its needs.
To the extent that Dynamic Instruments now asserts that the
solicitation should have provided a more precise listing of those
features, the protest is untimely. Protests based upon alleged
improprieties in a solicitation which are apparent prior to the time
set for receipt of offers must be filed prior to that time. Bid
Protest Regulations, section 21.2(a)(1), 60 Fed. Reg. 40,737, 40,740
(Aug. 10, 1995) (to be codified at 4 C.F.R. sec. 21.2(a)(1)).
Accordingly, the protester should have raised these issues prior to
the time for submission of offers on July 7, rather than waiting for
the rejection of its offer on October 13.
The Competition in Contracting Act of 1984 permits a noncompetitive
acquisition where there is only one responsible source for a needed
item and no other item meets the government's needs. 10 U.S.C. sec.
2304(c)(1) (1994). The record here establishes that the VATS does not
meet the government's needs and that, insofar as the agency is aware,
only the PBS 4100, available only from MTI, meets its needs.
Accordingly, a noncompetitive award to MTI is legally
unobjectionable.[1]
The protest is denied.
Comptroller General
of the United States
1. Initially, the protester also argued that the agency has rights to
MTI's proprietary data and should provide that data to other firms, so
that they can produce a balancing system that meets the agency's
needs. The submissions of MTI and the agency contradict the
protester's assertions that the agency has or can obtain data from MTI
to allow a competitive procurement. The protester has not directly
responded on these points, and we consider it to have abandoned this
argument. See Datum Timing, Div. of Datum, Inc., B-254493, Dec. 17,
1993, 93-2 CPD para. 328. In any event, this issue is untimely, because it
concerns an alleged solicitation impropriety which should have been
raised prior to the time set for submission of initial proposals. See
Bid Protest Regulations, section 21.2(a)(1), supra.