TITLE:  Dynamic Instruments, Inc., B-291071, October 10, 2002
BNUMBER:  B-291071
DATE:  October 10, 2002
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Dynamic Instruments, Inc., B-291071, October 10, 2002

   Decision
    
    
Matter of:   Dynamic Instruments, Inc.
    
File:            B-291071
    
Date:              October 10, 2002
    
Paul F. Whitten, Sr., for the protester.
B. J. Braun, Esq., United States Coast Guard, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
of the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
    
Protest alleging that request for proposals that gives offerors the option
of upgrading existing equipment or furnishing new equipment fails to
provide for full and open competition is denied since, even though only
manufacturer of existing equipment has sufficient information regarding
its characteristics to furnish the upgrade, offerors that cannot offer
upgraded equipment are not precluded from competing because they have the
alternative of offering new equipment.
DECISION
    
Dynamic Instruments, Inc. protests the terms of request for proposals
(RFP)
No. DTCG38-02-R-J00007, issued by the United States Coast Guard for
multi-aircraft tracking, balancing, and vibration analyzer systems.  The
protester contends that because the RFP gives offerors the option of
upgrading existing systems or furnishing new ones, but does not furnish
sufficient information regarding the existing systems to permit their
upgrade by other than the original manufacturer, the solicitation does not
provide for full and open competition.
    
We deny the protest.
    
BACKGROUND
    
On June 4, 2002, approximately 2 months prior to issuing the solicitation
at issue here, the Coast Guard published in FedBizOpps solicitation No.
DTCG38-02-Q-S00058, a combined solicitation/synopsis for upgrade of the
agency's existing vibration analyzer systems.  The notice advised that the
Coast Guard intended to negotiate with the original equipment
manufacturer, Helitune International, for the upgraded equipment.  By
letter dated June 26, Dynamic protested the agency's intent to negotiate
with Helitune on a sole-source basis, arguing that it was capable of
furnishing equipment that would satisfy the agency's needs.  On July 8,
the Coast Guard issued an amendment canceling the solicitation.  The
amendment stated that *[t]his effort will be re-issued as a 'Full and
Open' Competition,* and *[a]ll offerors will be given the opportunity to
submit new proposals when a resolicitation occurs.*  Upon receipt of this
amendment, Dynamic withdrew its protest.
    
On July 31, the Coast Guard issued RFP No. DTCG38-02-R-J00002, requesting
offers for *an upgrade to, or replacement of, [the agency's] existing
Helitune Rotortuner Dash 5 vibration analyzer systems.*  RFP at 15.  The
RFP enumerated the minimum characteristics required of the new or upgraded
systems and provided for award to the offeror whose proposal represented
the best value to the government, considering price and price-related
factors, technical factors, and past performance.  The RFP further
provided that in determining best value, price and price-related factors
would be approximately equal in weight to the combination of technical
factors and past performance.  By amendment dated August 5, the agency
changed the number of the solicitation from DTCG38-02-R-J00002 to
DTCG38-02-R-J00007.
    
Dynamic protests the terms of the new solicitation, contending that by
providing for either upgrade or replacement of the existing Helitune
systems, but failing to furnish sufficient information regarding the
existing systems to permit offerors other than Helitune to propose
upgrades, the solicitation gives Helitune an unfair advantage in the
competition.  The protester maintains that when either an upgrade or new
equipment would be acceptable to the requiring activity, *all parties must
be afforded equal ability to propose and compete for [the] upgrade
option.* 
Protest at 3.  The protester requests either that the agency revise the
RFP to provide sufficient information regarding the necessary interface
format and functional characteristics of the existing Helitune Rotortuner
systems to permit other offerors to compete for the upgrade, or that it
remove the upgrade option and require all competitors to offer new
systems.
    
Regarding the protester's request that additional information regarding
the existing Rotortuner systems be furnished to all prospective offerors,
the Coast Guard states that *Helitune considers its entire Rotortuner Dash
5 system, including the cabling between components, as well as the
upgraded version Dash 5JS+, to be proprietary,* and that it *does not own
or have a license right to share Helitune's proprietary data with other
contractors.*  Contracting Officer's Statement at 5.  Accordingly, it is
not feasible for the agency to comply with the protester's first request. 
Regarding the protester's alternative request that the upgrade option be
eliminated and all offerors be required to offer new systems, the
protester essentially is asking that the field of competition be
restricted to its benefit.  Our role in resolving bid protests, however,
is to ensure that the statutory requirement for full and open competition
is met, not to protect any interest a protester may have in more
restrictive solicitation terms.  Fidelity and Cas. Co. of New York,
B-281281, Jan. 21, 1999, 99-1 CPD P: 16 at 4; NavCom Def. Elec., Inc.,
B-276163.3, Oct. 31, 1997, 97-2 CPD P: 126 at 2 n.1.
    
In any event, the determination of the agency's needs and the best method
of fulfilling those needs is primarily the responsibility of the
contracting agency, and we will not question the agency's determination
unless it is shown to be unreasonable.  T-L-C Sys., B-233136, Sept. 15,
1986, 86-2 CPD P: 298 at 2.  Here, the agency determined that either an
upgraded version of its existing system or a new system would meet its
needs, and the protester has not demonstrated that this determination was
unreasonable.  Moreover, the fact that Helitune, which manufactured the
existing systems, may be uniquely capable of offering to upgrade them does
not mean that it should be precluded from competing on that basis.  The
government has no obligation to equalize a competitive advantage that a
potential offeror may enjoy as a result of a prior government contract
unless the advantage resulted from unfair motives or actions by the
contracting agency.  Bironas, Inc.,
B-249428, Nov. 23, 1992, 92-2 CPD P: 365 at 3; T-L-C Sys., supra, at 3.
    
The protester further argues that even assuming that the agency's actions
are consistent with the requirements of the Federal Acquisition Regulation
(FAR),
they are inconsistent with promises made to the protester at the time it
withdrew its initial protest.  In this connection, the protester maintains
that it was assured by the Coast Guard that the reissued solicitation
would provide for full and open competition and *negat[e] any unfair
advantage to the incumbent vendor.*  Protester's Comments at 1.  The
protester contends that it withdrew its initial protest *based upon the
[agency's] assurances that the new solicitation would be structured to
provide equal footing to all interested parties.*  Id.
    
As previously noted, while Helitune, as manufacturer of the existing
equipment, may have a competitive advantage over other offerors in
responding to the upgrade option, it is not the result of any unfairness
on the part of the agency; accordingly, the protester's argument that the
agency has failed to negate any unfair advantage accruing to the incumbent
contractor is without basis.  Further, to the extent that Dynamic is
suggesting that it would not have withdrawn its original protest had it
recognized that the agency intended to provide for an upgrade alternative
in the resolicitation, the protester was not prejudiced by its decision to
withdraw because had it not done so, we would have dismissed the protest
on the grounds that the agency had cancelled the underlying solicitation. 
In this regard, we routinely dismiss protests where the agency has
canceled the underlying solicitation because cancellation of the
solicitation renders the protest academic, and we do not consider academic
protests, because to do so would serve no useful public policy purpose. 
Morey Mach., Inc.--Recon., B-233793.2, Aug. 3, 1989, 89-2 CPD P: 102 at 1.
    
Dynamic also alleged in its initial protest that the language of the RFP
concerning evaluation is *ambiguous, highly subjective, and without
sufficient structure to support fair and equal evaluation of all proposed
offers.*  Protest at 2.  The contracting officer responded to this
allegation in his statement, noting that the agency had complied with the
requirements of FAR S: 15.101-1 by identifying in the RFP the factors and
significant subfactors that would affect contract award and their relative
importance.  Contracting Officer's Statement at 5.  The agency further
noted that the solicitation's evaluation scheme reduced the incumbent
contractor's competitive advantage by permitting the selection of a more
expensive, but technically superior replacement product.  In responding to
the agency report, the protester has neither taken issue with nor
attempted to rebut the positions taken by the agency.  Accordingly, we
consider it to have abandoned these grounds of protest.  O. Ames Co.,
B-283943, Jan. 27, 2000, 2000 CPD P: 20 at 7.
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel