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.