BNUMBER: B-278103
DATE: December 29, 1997
TITLE: Caswell International Corporation, B-278103, December 29,
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:Caswell International Corporation
File: B-278103
Date:December 29, 1997
Rodney A. Grandon, Esq., Patton Boggs, L.L.P., for the protester.
Capt. Patrick B. Kernan, Department of the Army, for the agency.
Paula A. Williams, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that interoperability requirement in solicitation for targetry
equipment used for military training exercises is unduly restrictive
of competition is denied where the requirement is based on the
agency's need to ensure operational safety and military readiness.
DECISION
Caswell International Corporation protests the terms of request for
quotations (RFQ) No. DABT60-97-Q-0479, issued by the Department of the
Army, for a quantity of commercially available targetry equipment used
by the 25th Infantry Division stationed in Hawaii. Caswell contends
that the solicitation requirement for interoperability with existing
government-owned targetry manufactured by ATA Defense Industries, Inc.
(ATA) is unduly restrictive of competition.
We deny the protest.
The agency issued a combined Commerce Business Daily synopsis and
solicitation for targetry equipment which was published on July 25,
1997. The equipment under this RFQ, a total small business set-aside,
will be used to support training for the 25th Infantry Division at a
number of locations in Hawaii and will also be used as targetry that
can be deployed by the 25th Infantry Division in support of its
mission to South Korea--the primary deployment site for the 25th
Infantry Division.[1]
The challenged interoperability requirement, listed in the performance
specifications, provides as follows:
All items procured under this contract must be fully
interoperable with existing deployable range equipment procured
from ATA Defense Industries.
A site visit was scheduled for August 15 to allow interested vendors
to view, operate, and take readings from government-furnished targetry
equipment that was the same as the targetry equipment being used by
the 25th Infantry Division. ATA was the only vendor that submitted a
quotation by the August 22 extended closing date. That same day,
Caswell filed an agency-level protest in which it argued that the
solicitation improperly restricts competition because potential
vendors, other than ATA, cannot meet the requirement for
interoperability with ATA-proprietary targetry equipment. The agency
denied that protest on September 10, and the firm's subsequent protest
to our Office repeated this claim.[2]
The agency explains that the interoperability requirement is necessary
because the targetry equipment at issue here will be combined with
existing government-owned ATA targetry to meet the multi-level
training needs of the 25th Infantry Division.[3] According to the
agency, if the range targetry equipment available to the Range Control
Officer (RCO) are not interoperable, the RCO cannot pre-program the
training scenarios in the way the exercises are going to occur nor,
depending on the nature of the training exercises, rapidly reconfigure
the targetry as needed. The result would be detrimental to military
training and readiness, as the RCO may be unable to conduct division,
brigade, and battalion-wide exercises.
For example, when a division-wide exercise is conducted, all ranges
and targets are utilized. Conducting the training and moving through
the ranges with the soldiers are observer/controllers who evaluate and
operate the targetry by means of a hand held controller (HHC). If the
targetry being acquired were not interoperable with the existing
targetry, the observer/controller would have to carry two different
types of HHCs (the average weight for each is more than 10 pounds) to
operate the targets and would need to keep track of which HHC operated
the next target device. The agency states that the probability for a
training incident is very high because most of these live-fire
training exercises occur at night. VT at 13:27:01. To require the
observer/controller to carry two HHCs would create an unacceptable
risk which, the agency states, would threaten the safety of the
soldiers participating in these live-fire training exercises. VT at
13:31:00.
Further, since the 25th Infantry Division is routinely deployed to
South Korea, the Army must have the ability to combine the targetry
used by the 25th Infantry Division in Hawaii with the targetry on hand
in South Korea. The agency maintains that, as in Hawaii, the military
readiness of the troops in South Korea would be severely compromised
if the targetry equipment deployed with the 25th Infantry Division
were not interoperable with the government-owned ATA targetry used by
the soldiers in South Korea. VT at 13:39:40.
The Competition in Contracting Act of 1984 requires that agencies
specify their needs and solicit offers in a manner designed to
achieve full and open competition, so that all responsible sources are
permitted to compete. 10 U.S.C. sec. 2305 (a)(1)(A)(i) (1994). 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, recon. denied, 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 level of reliability and effectiveness. Industrial
Maintenance Servs., Inc., B-261671 et al., Oct. 3, 1995, 95-2 CPD para.
157 at 2; Harry Feuerberg & Steven Steinbaum, B-261333, Sept. 12,
1995, 95-2 CPD para. 109 at 3.
The record provides no basis to question the legitimate concerns of
the agency regarding the impact on the safety of the soldiers
participating in the training exercises and the overall military
readiness of the 25th Infantry Division if the targetry being acquired
were not interoperable with existing government-owned targetry
equipment. Based on this record, including the testimony from agency
officials, and the fact that Caswell does not refute the agency's
explanation supporting its requirement, we do not find the
interoperability requirement unduly restrictive.
The protester continues to argue that potential vendors such as itself
could not achieve interoperability with the ATA equipment because the
cost to reverse engineer an interface would be prohibitive and would
require access to ATA proprietary information, such as ATA's
proprietary control systems. The agency responds that the level of
effort and technical approach needed to manufacture an interface box
to achieve interoperability do not require access to ATA's proprietary
data. In this regard, the agency asserts that, in order to make
different target systems interoperable, a potential vendor need only
determine the radio signals generated by the government-owned HHC.
Once the radio signals are obtained, the vendor could build an
interface box that would be placed on the targets to convert the radio
signals from the differing HHC to a language that the vendor's target
interface box could understand. While Caswell disagrees with this
technical approach and argues in favor of an extensive engineering and
design effort that allegedly would require access to ATA proprietary
software, Caswell has not shown that the agency's position regarding
the feasibility of developing an interface is wrong. Further, given
our conclusion that the interoperability requirement at issue here is
reasonably related to the Army's needs, the fact that Caswell or other
vendors cannot meet the requirement does not demonstrate that it is
improper.[4]
The protest is denied.
Comptroller General
of the United States
1. A hearing was conducted in connection with this protest pursuant to
4 C.F.R. sec. 21.7(g) (1997).
2. A purchase order was subsequently awarded to ATA, but performance
has been suspended pending resolution of this protest.
3. Two members of the technical team testified that the Army owns more
than $1 million in ATA targetry equipment in the 25th Infantry
Division's primary areas of operation--Hawaii and South Korea. Video
Transcript (VT) 13:48:10.
4. Caswell has made a number of other related contentions during the
course of this protest pertaining to the adequacy of the agency's
market survey and the time allowed for vendors to attend the site
visit and engineer a solution to the interoperability requirement.
Although these contentions are not specifically addressed in this
decision, each was carefully considered by our Office and found to be
either immaterial in view of our conclusion above that the requirement
was justified by the Army, or untimely (either because the protest
issues were not raised prior to the date set for the submission of
quotations or because they were first raised in the comments to the
agency report). Bid Protest Regulations, 4 C.F.R. sec. 21.2.