TITLE:  Wescam, Inc., B-285792, October 11, 2000
BNUMBER:  B-285792
DATE:  October 11, 2000
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Wescam, Inc., B-285792, October 11, 2000

Decision

Matter of: Wescam, Inc.

File: B-285792

Date: October 11, 2000

Kathleen C. Little, Esq., and David R. Johnson, Esq., Vinson & Elkins, for
the protester.

D. Susan Spiegelman-Boyd, Esq., Department of the Navy, for the agency.

Glenn G. Wolcott, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Protest that agency has no immediate requirement to upgrade UH-1N
helicopter's thermal imaging systems is denied where record shows that
immediate upgrade of existing systems will significantly decrease risk to,
and enhance the safety of, the helicopter and its crew.

2. Solicitation provision that proposed systems must be compatible with
mechanical, electrical and software interfaces of existing system is
reasonable, where agency has spent considerable resources testing existing
software and has reasonable interest in avoiding modifications to
helicopter's airframe, and there is no evidence that the solicitation's
stated compatibility requirements result from unfair motives by the
contracting agency.

3. Solicitation's delivery requirements are reasonably related to the
agency's immediate need for upgraded systems which have a direct effect on
national defense and human safety concerns.

4. Protest that agency failed to engage in adequate acquisition planning is
denied where agency documented its needs more than 4 years prior to
procurement, the record reflects substantial agency discussions regarding
procurement issues beginning more than 7 months prior to issuance of
solicitation, and the agency completed a written procurement plan prior to
issuing the solicitation.

DECISION

Wescam, Inc. protests the terms of request for proposals (RFP) No.
N00164-00-R-0072, issued by the Department of the Navy to obtain targeting
thermal imaging systems for Marine Corps helicopters. Wescam asserts that
the terms of the solicitation exceed the government's requirements and
unduly restrict competition. [1]

We deny the protest.

BACKGROUND

The solicitation seeks proposals to provide upgraded thermal imaging systems
for UH-1N helicopters, both prior to, and as part of, a "mid-life upgrade"
to those helicopters. [2] The UH-1N is the Marine Corps's only utility
helicopter and performs various functions including: providing command and
control for assault support operations; transportation of troops, supplies,
and equipment; evacuation of casualties; and providing control,
coordination, and terminal guidance for supporting arms. To provide guidance
for supporting arms, the UH-1N currently relies on a thermal imaging system
with a stabilized forward looking infrared (FLIR) sensor, which provides
real-time, passive thermal imagery to the pilot. The system is used for
navigation as well as hazard and target detection and, as currently
configured, does not incorporate a laser designator. [3]

In 1996, the agency documented its need to incorporate laser designators
into the thermal imaging systems carried aboard the UH-1N aircraft. [4]
Agency Report, Tab 1, at 4. In 1997, the Marine Light/Attack Helicopter
Operational Advisory Group (OAG) determined that upgrading the thermal
imaging system with a laser designator was one of the top ten fleet
priorities for the UH-1N. Contracting Officer's Statement at 6. [5]

In 1998, the agency awarded the contract to Bell Helicopter Textron, Inc.
(BHTI) to perform the "mid-life upgrade" of the UH-1N. That contract
provides that thermal imaging systems currently in the UH-1N helicopters
will be provided to BHTI as government-furnished equipment. The modification
of the UH-1N will occur in an ongoing manner, with the last of the
unmodified UH-1N aircraft being deployed in 2009 and continuing operations
through 2012. Contracting Officer's Statement at 7.

The solicitation protested by Wescam was issued on May 31, 2000, and
contemplates award of up to 124 thermal imaging systems under an
indefinite-quantity/

indefinite-delivery contract to be installed in the currently existing UH-1N
aircraft, as well as in the UH-1Y aircraft under the "mid-life upgrade"
program. [6] The RFP provides that, in addition to laser designating
capabilities, any proposed system must "have all the operational functions
of the existing [system]," must "mount to existing hardware without
modifications to the aircraft and airframe," and must "interoperate and
conform with existing mechanical, electrical and software interfaces." RFP sect.
C, Statement of Work (SOW), at 28-29. The RFP also requires that the
proposed systems be delivered within 90 or 120 days after receipt of an
order, depending on whether the offeror has proposed an upgraded system or a
replacement system. The closing date for submission of proposals was July 7,
2000. [7] Wescam filed this protest on July 5.

DISCUSSION

Wescam protests that, to the extent the solicitation seeks laser designators
for the UH-1N aircraft before they are inducted into the midlife upgrade
program, the solicitation exceeds the agency's requirements and "conflict[s]
with the agency's Congressionally-mandated requirement or need." Protest at
2. Wescam asserts that, with regard to the UH-1N aircraft prior to the
mid-life upgrade, Congress has only authorized modifications to address
safety concerns, and asserts that "[t]here is no published Congressional
support for arming the [UH-1N] Helicopter with a laser designator,"
which--Wescam asserts--will "add lethality." Protest at 2, 4.

In arguing that acquisition of a laser designator exceeds the agency's
actual needs, Wescam refers to a Senate report that accompanied the National
Defense Authorization Act for Fiscal Year 2000, quoting the following
portion of that Report:

The budget request included $6.3 million for H-1 series aircraft
requirements. The committee is concerned about limitations of currently
installed navigational thermal imaging systems for UH-1N aircraft. Current
equipment has limitations in range performance and image quality for
detection, recognition, and identification of hazards, personnel and vehicle
sized targets. The committee supports an existing effort to upgrade this
equipment and provide for enhanced safety for Marine Corps aviators. The
committee recommends an increase of $15.0 million to complete upgrade
requirements.

S. Rep. No. 106-50, 106th Cong., 1st Sess. 92 (1999).

Based on this legislative history, Wescam asserts: "Congress earmarked funds
to enhance the safety of the existing [UH-1N] Helicopter fleet in the
interim while those helicopters are being upgraded to the [UH-1Y] version.
Procuring a laser designator for the [UH-1N] Helicopters does not address
this requirement. The laser designator will make the [UH-1N] Helicopter
lethal." Protest at 8.

The determination of a contracting agency's 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 solicitation
requirement is challenged as unduly restrictive, we will review the matter
to determine whether the alleged restriction is reasonably related to the
agency's needs and, if so, the provision is generally permissible. Tek
Contracting, Inc., B-245454, Jan. 6, 1992, 92-1 CPD para. 28 at 2; T-L-C Sys.,
B-223136, Sept. 15, 1986, 86-2 CPD para. 298 at 2-3. Where a requirement relates
to national defense or human safety, an agency has discretion to define the
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 agency first responds that the addition of the laser designator to the
existing thermal targeting system will not make the helicopter more lethal
or more of an attack helicopter; [8] rather, it increases aviator safety by
increasing the standoff range for terminal guidance for supporting arms from
other weapon platforms. Contracting Officer's Statement at 5 n.3. More
specifically, the agency explains that, as currently configured, the
efficiency and effectiveness of the UH-1N in providing terminal guidance for
supporting arms are limited in that the helicopter pilot must provide verbal
directions to the attack aircraft, using distinct terrain features or smoke
bombs. This method of "marking" a target requires the helicopter to come
within 2000 meters of the target--increasing the vulnerability of the
aircraft, and its crew, to shoulder-fired surface-to-air missiles as well as
small arms fire. Contracting Officer's Statement at 5. With the addition of
the laser designator, the standoff range for the UH-1N will increase by over
400 percent, drastically reducing the risk to the aircraft and its crew. Id.

Wescam does not dispute that the laser designator will permit the UH-1N
helicopter to effectively perform its mission regarding guidance for
supporting arms from a significantly greater distance--thereby substantially
increasing the safety of the aircraft and crew. [9] On this record, we find
no basis to question the agency's determination that there is an immediate
requirement in existing UH-1N aircraft for upgrading existing thermal
imaging systems with laser designators.

Wescam next protests that the RFP requirement that proposed systems must
conform to existing mechanical, electrical, and software interfaces unfairly
favors the manufacturer of the existing system. [Deleted].

The fact that an incumbent contractor will have a competitive advantage over
another offeror resulting from an agency requirement of compatibility does
not preclude an agency from requiring such compatibility, so long as the
advantage did not result from unfair motives or action by the contracting
agency. Bironas, Inc. B-249428, Nov. 23, 1992, 92-2 CPD para. 365 at 3.

Here, the agency states that it has spent considerable time and resources
developing and testing the software used in the existing thermal imaging
system and that, unless the proposed system is compatible with that
software, those expenditures will have been wasted. Further, the agency
explains that it is requiring compatibility with existing mechanical and
electrical interfaces to ensure that proposals for the thermal imaging
system do not require modifications to the aircraft itself or the existing
airframe. Finally, the agency states that its approach with regard to
existing mechanical, electrical and software interfaces is intended to
minimize risks to aviator safety and mission capability. Contracting
Officer's Statement at 6-7.

As noted above, where an agency's stated requirements relate to national
defense and human safety, 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.

Here, we view the agency's interests in minimizing airframe modifications in
order to minimize risk to aviator safety and mission capability, as well as
retaining the value associated with its prior development and testing, to
reasonably support the solicitation's compatibility requirements. Further,
we find no indication in the record that the advantage to the manufacturer
of the current thermal imaging system results from any unfair motives or
action by the contracting agency. On this record, we find no merit in
Wescam's assertion that the solicitation's compatibility requirements are
inappropriate. [10]

Wescam also protests that the solicitation requirement that deliveries occur
within 90 or 120 days after an order is placed is unduly restrictive. Wescam
asserts that it would need "at least a six to nine month lead time" to meet
the agency's requirements. Protester's Comments at 22.

Although restrictive provisions may be included in a solicitation only to
the extent necessary to satisfy an agency's needs, once an agency has
established a reasonable basis for its stated requirements, an allegedly
restrictive provision which meets those requirements is not objectionable.
Tek Contracting, Inc., supra. An agency need not delay satisfying its
requirements to allow a vendor time to develop the ability to meet those
requirements. Trimble Navigation, Ltd., B-247913, July 13, 1992, 92-2 CPD para.
17 at 6.

As discussed above, the agency has established that it has an immediate need
to equip existing UH-1N aircraft with laser designators. [11] Further,
acquisition of these items will have a direct effect on the safety of the
aircraft and crews operating both the UH-1N and UH-1Y aircraft. Since any
delays in meeting this need will prolong the risks to aviator safety and
mission capabilities, there is no merit in Wescam's assertion that the
delivery requirement is unduly restrictive.

Finally, Wescam complains that the agency failed to perform adequate
acquisition planning for this procurement, referring to provisions of
Federal Acquisition Regulation (FAR) Part 7, which requires agencies to
perform acquisition planning and conduct market research for all
acquisitions in order to promote full and open competition. See FAR sect.
7.102(b).

The record shows that the agency first documented its requirements for
upgrading the UH-1N's with laser designators in 1996. Agency Report, Tab 1,
at 4. Further, in response to the document production request made by Wescam
in connection with this protest, the agency has produced numerous e-mail
messages between various agency personnel, dating back to October 1999,
which document multiple discussions within the agency regarding the manner
in which acquisition of the thermal imaging systems should occur. [12]
Agency Report, Tab 13. Finally, the record contains a written procurement
plan for this acquisition, which was finalized prior to issuance of the
solicitation and which addresses a variety of procurement issues, including
the manner in which the solicitation will be distributed, the type of
contract contemplated, a discussion of the procurement history for similar
items, the manner in which the contract will be funded, the delivery
requirements, and the total estimated value of the contract. Agency Report,
Tab 8. On this record we find no merit in Wescam's assertion that the agency
failed to engage in adequate advance planning for this procurement.

The protest is denied.

Acting General Counsel

Anthony H. Gamboa

Notes

1. Wescam also initially protested that the solicitation violated the
Anti-Deficiency Act, 31 U.S.C. sect.1341(a) (1994), but subsequently withdrew
that basis for protest.

2. The UH-1N was introduced in the 1970s and has never undergone a service
life extension or upgrade program. The agency states that deficiencies have
developed with regard to the aircraft's operational capability, performance,
reliability, and maintainability. Agency Report, Tab 1, Operational
Requirements Document for the Mid-Life Upgrade to the UH-1N, at 2. The
"midlife upgrade" of the UH-1N, which is being performed under a different
contract with Bell Helicopter Textron, Inc. (BHTI), is intended to address
and resolve these deficiencies over the next several years. Upon completion
of BHTI's upgrade program, the helicopters will be identified as UH-1Y
helicopters. Thus, over the next several years, the current fleet of UH-1N
helicopters will effectively become the UH-1Y fleet.

3. The agency states that the current weapon of choice for the U.S. Marine
Corps is a precision guided munition (PGM), and that the most successful
PGMs are laser-guided, which require support from a laser designator. Agency
Report, Tab 12, at 2.

4. The agency states that attempts to obtain funding for laser designation
capability date back as far as 1989 and that, during Desert Shield/Desert
Storm, the Marine Corps obtained and installed development models of a laser
designator system onto the UH-1N aircraft. Agency Report, Tab 12, at 2.

5. In 1999, the agency began making modifications to the thermal imaging
systems in the UH-1N which were aimed at providing laser designator
capabilities for the existing aircraft, including incorporation of a third
generation infrared array sensor and an eye safe laser range finder.
Contracting Officer's Statement at 4. At this time approximately 60 percent
of the thermal imaging systems in UH-1N aircraft are equipped with these
upgrades. Id.

6. The agency initially intended to obtain the system from the manufacturer
of the existing systems on a sole-source basis.

7. [Deleted].

8. The agency elaborates that neither the UH-1N, nor the upgraded version of
that aircraft, the UH-1Y, will carry laser guided munitions. The laser
designator does not provide munitions guidance for the utility helicopters;
rather, it assists the utility helicopter's mission to provide guidance for
weapons from other platforms. Supplemental Agency Report, Aug. 24, 2000, at
1-2.

9. Wescam does, however, argue, in a similar vein, that to the extent there
is a legitimate need for a thermal imaging system with a laser designator,
that need exists only with regard to the upgraded helicopters--that is, for
the UH-1Y helicopters--because, Wescam asserts, the agency "[will] eliminate
the [UH-1N] Helicopters from service by 2004." Protest at 4. As discussed
above, Wescam is factually mistaken regarding the scheduled operational life
of the UH-1N helicopters. The record shows that the UH-1N helicopters will
continue operation through 2012. Contracting Officer's Statement at 5;
Agency Report, Tab 5, H-1 Transition Plan. Further, the agency's immediate
need for a laser designator in the UH-1N aircraft is reflected in the very
legislative history on which Wescam relies for its assertion that the
agency's needs are limited to safety issues. As noted above, the Senate
Report accompanying the National Defense Authorization Act for fiscal year
2000 expressly referenced congressional concerns regarding the limitations
of "currently installed" (emphasis added) thermal imaging systems,
specifically referring to "limitations in . . . detection, recognition, and
identification of . . . targets." S. Rep. No. 106-50, supra.

10. Wescam also protests that the solicitation provides that $150,000 will
be added to the evaluated price of proposals offering systems other than the
existing system. The agency states that this amount reflects the minimum
costs the agency will incur in confirming that an alternative proposed
system does, in fact, meet the compatibility requirements. We view this
amount--which is less than one-half of one percent of the estimated
procurement value--as both de minimis and reasonably related to the agency's
compatibility requirements.

11. The agency also states that it conducted a market survey of potential
offerors and found that at least two vendors had items currently available
that would essentially meet the technical requirements and that delivery of
similar items by these manufacturers often takes place in between 90 and 120
days. Contracting Officer's Statement at 12. We think the agency reasonably
believed it could obtain competition for this system.

12. The fact that Wescam does not agree with the agency's resolution of some
of the issues discussed does not negate the acquisition planning in which
the agency engaged.