BNUMBER:  B-277656 
DATE:  November 5, 1997
TITLE: Greenwich Air Services, Inc., B-277656, November 5, 1997
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DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective 
Order.  This redacted version has been approved for public release.
Matter of:Greenwich Air Services, Inc.

File:     B-277656

Date:November 5, 1997

John A. Ordway, Esq., Berliner, Corcoran & Rowe, for the protester.
Paul Shnitzer, Esq., Crowell & Moring, for Turbo Power & Marine 
Systems, Inc.       an intervenor.
Richard Gonzales, Esq., Department of Transportation, for the agency.
Katherine Riback, Esq., Glenn Wolcott, Esq., and Paul Lieberman, Esq., 
Office of the General Counsel, GAO, participated in the preparation of 
the decision.

DIGEST

1.  RFP requirement that technical representative of original 
equipment manufacturer (OEM) be present during six critical phases of 
the overhaul and repair work of power turbines is not unduly 
restrictive where requirement is based on agency's reasonable concerns 
regarding safe operation of ships.

2.  Protester's unsupported speculation that involvement of OEM 
technical representative will undermine contract performance, thereby 
decreasing the protester's chances for subsequent awards, does not 
provide basis for protest. 

DECISION

Greenwich Air Services, Inc. protests the terms of request for 
proposals (RFP) No. DTCG40-97-R-70026, issued by the Coast Guard for 
the overhaul and repair of Pratt & Whitney power turbines.[1]  
Greenwich contends that the solicitation requirement that a technical 
representative of the original equipment manufacturer (OEM) be present 
during certain phases of the overhaul and repair process improperly 
restricts competition and creates an organizational conflict of 
interest for Turbo Power and Marine Systems, Inc., the OEM.[2]  

We deny the protest.

BACKGROUND

On May 9, 1997, the agency issued the RFP, which contemplated the 
award of a requirements contract for a base year with one 1-year 
option period.  The solicitation required that OEM brand name parts be 
used and that an OEM technical representative be on site during six 
critical phases of the overhaul and repair process.[3]  Prior to 
issuing the solicitation, the agency executed a "Justification for 
Other Than Full and Open Competition" (JOTFOC) which stated: 

     Pratt & Whitney/Turbo Power & Marine Systems, Inc. is the only 
     known company possessing the original drawings, specifications, 
     engineering control procedures and proprietary methods to ensure 
     the latest design configuration, manufacturing and quality 
     control required to produce parts to current engineering 
     specifications and requirements. . . .  Power Turbines which 
     explode with flying debris due to faulty parts, may severely 
     mangle or kill anyone in the engine room . . . .  Catastrophic 
     failure of the Power Turbine during engine operation could result 
     in hundreds of thousands of dollars in damage, not only to 
     itself, but the gas generator that the power turbine drives, and 
     the area surrounding the turbine on the vessel.  

Subsequently, the agency amended the JOTFOC to also state:  

     Pratt & Whitney/Turbo Power & Marine Systems, Inc. is the only 
     known source for the technical expertise required to ensure:  
     that repairs recommended by the contractor are necessary; that 
     Pratt and Whitney authorized repair procedures, modifications, 
     limits/tolerances, and inspection criteria are used; and that all 
     Pratt and Whitney Standard Practices are met.

On May 30, Greenwich filed an agency-level protest challenging the 
terms of the solicitation as being overly restrictive.  The agency 
denied that protest on July 22. 
 
On July 23, Greenwich and Turbo each submitted a proposal responding 
to the solicitation.  The total evaluated price of Greenwich's 
proposal was $[deleted] and the total evaluated price of Turbo's 
proposal was $[deleted].  On July 30, Greenwich filed this protest 
with our Office.
 
DISCUSSION
 
Greenwich first argues that the RFP requirement for an OEM technical 
representative requirement improperly restricts competition because of 
the control it gives to Turbo, the OEM, over its competitors' prices.  
Greenwich argues that the requirement permits Turbo to quote an 
unreasonably high price for the services of its OEM representative, 
thereby ensuring for itself an "insurmountable price advantage," 
maintaining that "the complete elimination of these OEM Representative 
clauses is necessary to avoid the unfair competitive disadvantage."  
Although Greenwich acknowledges that, under previous contracts, it 
"[has] utilized the regional [OEM] representative for consultation and 
added expertise--when necessary," Greenwich nonetheless asserts "there 
is no reason to require any OEM Representative services, as 
inspections can be accomplished by others, including Greenwich, in 
accordance with the OEM's manual."

The agency responds that the RFP requirement for an OEM technical 
representative is necessary because of recent restructuring within the 
contracting activity that has depleted staffing, leaving a current 
staffing level without the necessary expertise to ensure that repairs 
recommended by the contractor are necessary and that the appropriate 
repair procedures and inspection criteria are used.  Further, as 
discussed in the JOTFOC, the agency maintains that the specific 
expertise provided by the OEM technical representative is critical to 
the safe operation of the power turbines.

The agency notes that this identical issue was previously considered 
in connection with a prior solicitation for the overhaul and repair of 
Pratt & Whitney marine gas generators in which an OEM technical 
representative was required to be on site during the entire overhaul 
process.  In response to a protest filed by Greenwich's subsidiary, 
the requirement was revised so that the OEM technical representative 
was only required to be present during six critical phases of the 
overhaul and repair work.  The agency maintains that, as with the gas 
generators, the agency's review of this issue led it to conclude that 
the presence of an OEM representative during the specified phases was 
necessary since improper repairs could threaten the safety of agency 
personnel, result in exorbitant additional repair costs, and 
incapacitate agency ships.  

The determination of a contracting agency's minimum needs and the best 
method for accommodating them are matters primarily within the 
agency's discretion.  Tucson Mobilephone, Inc., B-250389, Jan. 29, 
1993, 93-1 CPD  para.  79 at 2, aff'd, B-250389.2, June 21, 1993, 93-1 CPD  para.  
472.  Where a requirement relates to national defense or human safety, 
as here, an agency has the discretion to define solicitation 
requirements to achieve not just reasonable results, but the highest 
possible reliability and effectiveness.  Tucson Mobilephone, Inc., 
supra, 93-1 CPD  para.  79 at 5.  

The record provides no basis to call into question the legitimacy of 
the agency's concerns regarding the risk of improper repair of the 
power turbines absent OEM assistance, and the ramifications involved.  
Indeed, Greenwich itself acknowledges that in the past, assistance 
from an OEM representative has been necessary.  Further, Greenwich's 
asserted concern that the requirement would [deleted].   Based on this 
record, including the JOTFOC and the agency's explanation supporting 
its requirements, we do not find the requirements unduly restrictive.

Greenwich also asserts that the OEM technical representative 
requirement creates an organizational conflict of interest for 
Turbo.[4]  Greenwich asserts that if an offeror other than Turbo 
receives award, Turbo's representative would have an incentive to 
undermine the awardee's performance, thereby improving Turbo's chances 
for subsequent awards.

Greenwich's argument regarding the conflict of interest on the part of 
Turbo is entirely speculative.  While an agency may exclude an offeror 
from the competition because of an apparent conflict of interest in 
order to protect the integrity of the procurement system, even if no 
actual impropriety can be shown, such a determination must be based on 
facts and not mere innuendo or suspicion.  Cleveland 
Telecommunications Corp., 73 Comp. Gen. 303, 308 (1994), 94-2 CPD  para.  
105 at 7.

Here, there is no support for Greenwich's speculation.  On the 
contrary, the record indicates that Greenwich has previously relied on 
the OEM technical representative's expertise in successfully 
performing similar contracts.  To the extent this portion of the 
protest is based on Greenwich's speculation that the agency will fail 
to perform an objective evaluation of proposals under subsequent 
procurements, it merely anticipates improper agency action and, 
therefore, is not for consideration on the merits.  See, e.g., Harbor 
Branch Oceanographic Inst., Inc., B-243417, July 17, 1991, 91-2 CPD  para.  
67 at 6.

The protest is denied.

Comptroller General 
of the United States  

1. The power turbines are used in the Coast Guard's 378' High 
Endurance Cutters and 400' Ice Breakers.  

2. Turbo Power and Marine Systems, Inc. is an affiliate of Pratt & 
Whitney.  

3. The RFP states that the contractor shall have an OEM technical 
representative at the contractor's facility during the following 
critical operations:  initial inspection, initial (dirty) inspection, 
clean inspection (final condition report), repairs, assembly, and 
testing.  

4. An organizational conflict of interest exists when because of other 
activities or relationships with other persons, a person is unable or 
potentially unable to render impartial assistance or advice to the 
government, or the person's objectivity in performing the contract 
work is or might be otherwise impaired, or a person has an unfair 
competitive advantage.  See Federal Acquisition Regulation  sec.  9.501.