TITLE:  Lyntronics Inc., B-292204, July 22, 2003
BNUMBER:  B-292204
DATE:  July 22, 2003
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Lyntronics Inc., B-292204, July 22, 2003

   Decision
    
    
    
Matter of:    Lyntronics Inc.
    
File:             B-292204
    
Date:              July 22, 2003
    
Anthony Vigliotti for the protester.
Maj. Edward E. Beauchamp and John J. Reynolds, Esq., U.S. Army Materiel
Command, for the agency.
Noah B. Bleicher and John M. Melody, Esq., Office of the General Counsel,
GAO, participated in the preparation of the decision.
DIGEST
    
Agency properly modified incumbent's contract to increase number of
required batteries, instead of conducting competitive procurement, where
agency reasonably determined that any firm other than incumbent would
require testing that would result in unacceptable delay in deliveries.
DECISION
    
Lyntronics Inc. protests the decision of the Department of the Army,
Communications-Electronics Command (CECOM), to modify Mathews Associates,
Inc.'s (MAI) contract No. DAAB07-98-D-R311, to increase the ceiling
quantity of BA‑5347/U lithium manganese dioxide batteries that can
be ordered under the contract.  Lyntronics argues that CECOM unreasonably
determined that Lyntronics is not capable of meeting the agency's needs.
    

   We deny the protest.
    
The BA-5347/U battery is the only non-rechargeable power source authorized
for use in the Thermal Weapon Sight (TWS).[1]  After a formal *best value*
source selection in September 1998, CECOM awarded MAI an
indefinite-delivery, indefinite-quantity contract to supply the Army with
the battery for 3 years.  Subsequent modifications extended the duration
of the contract through July 31, 2004, and increased the maximum quantity
of batteries that could be ordered to 75,000.  CECOM has since initiated a
follow-on competitive acquisition to succeed MAI's contract, and expects
award to be made by September 2003, with deliveries commencing in
September 2004. 
    
Due to a determination to fully field the TWS in connection with
unforeseen military buildups, including Operation Enduring Freedom and
Operation Iraqi Freedom, demand for the BA-5347/U battery has been
consistently rising.  As a result, the Army determined that it would need
to acquire additional batteries prior to the commencement of deliveries
under the new follow-on contract.  Thus, on March 10, 2003, the Army
executed justification and approval (J & A) number 03-083, authorizing
CECOM to increase the quantity ceiling under MAI's contract to
225,000 batteries.  The J & A concluded that a sole-source modification
was justified because MAI is the only responsible source reasonably
capable of meeting the immediate, interim requirements.  See 10 U.S.C.
S: 2304(c)(1) (2000) (use of other than competitive procedures authorized
when the supplies or services needed are available from only one
responsible source, or from a limited number of sources, and no other
products will satisfy the agency's needs).  According to the J & A, no
other source could meet CECOM's needs because *[a]ny other source's
product 'would need to undergo required safety and First Article Testing
[FAT] that would result in delivery delays of approximately one year from
contract award.'*  Consistent with the J & A, CECOM posted a notification
of the modification in FedBizOps on March 19, which discussed CECOM's
concern regarding delivery delays due to necessary testing for firms other
than MAI. 
    
Although CECOM had inadvertently omitted from the synopsis any reference
to standard note 22 (which indicates that offerors have 45 days to
describe their interest in and capability to perform the requirement),
Agency Request for Summary Dismissal, at 2, Lyntronics contacted CECOM on
March 24 to express interest in the requirement.  Lyntronics was advised
that it had 30 days *to write a proposal giving as much information as
possible in a condensed package.*  Protester's Response to Agency's
Request for Summary Dismissal, at 3.  In its April 2 one-page response,
Lyntronics briefly introduced the company as a *viable source for this
battery,* and stated that it could have a first article ready for testing
in 3‑4 weeks and could begin delivering batteries 1 month after
production approval.  However, the response did not provide any detail
describing how this would be achieved.  After reviewing this response and
contacting Lyntronics to determine the type of battery cell it was
proposing to use, CECOM affirmed its conclusion that MAI was the only
responsible source with an approved production line that could meet its
critical short-term needs.  Agency's Request for Summary Dismissal, Tab A,
Statement of Contracting Officer, P: 5.  CECOM issued modification
No. P00007 on April 7, raising the ordering ceiling under MAI's contract
to 225,000 units.  Lyntronics filed this protest with our Office on April
21, challenging the justification for the sole-source modification.
    
An agency has the authority under 10 U.S.C. S: 2304(c)(1) to limit a
procurement to the only firm it reasonably believes can meet its needs
within the time available.  Litton Computer Servs., B-256225 et al., July
21, 1994, 94-2 CPD P: 36 at 5-7.  We will not object to an agency's
determination to use other than competitive procedures unless we find that
it lacks a reasonable basis.  Id.     
    
Lyntronics asserts that it submitted information in its April 2 response
sufficient to demonstrate its ability to meet the agency's requirement,
and that CECOM therefore lacked a reasonable basis for modifying MAI's
contract instead of competing the requirement.  We disagree. 
    
CECOM's FedBizOps synopsis explained that the primary justification for
restricting the acquisition to one source was that deliveries by a source
other than MAI would be delayed unacceptably due to the time required for
testing.  Lyntronics failed to substantively address this concern in its
April 2 proposal, instead merely asserting, without supporting explanation
or information, that it could have a first article ready in 3-4 weeks, and
the first shipment ready in an additional month.  In light of CECOM's
stated concern and projected 1-year timeframe, it was incumbent upon
Lyntronics to provide specific information detailing its alternative FAT
schedule; absent such information, CECOM had no basis to determine that
Lyntronics would be able to perform the required tests and deliver
batteries within CECOM's timeframe.  See Litton Computer Servs., supra.
    
Lyntronics maintains that the agency has not established that testing will
result in material delays in delivering the batteries.  Again, we
disagree.  CECOM's determination regarding testing delays was based on its
prior experience under MAI's contract and under other contracts for
similar batteries.  The record shows that FAT requirements for the
BA-5347/U battery involve successfully completing 25 different tests.  The
agency reports that actual testing took MAI nearly 6 months to
successfully complete, and that MAI delivered the first batteries under
its original contract 18 months after receipt of order.  Agency Report,
Tab B, CECOM LRC Power Sources Team Technical Statement (CECOM Statement),
at P:P: 6-9.[2]  Similarly, according to CECOM, proven battery producers
have taken between 10 and 15 months to prepare for and complete FAT
requirements under prior government contracts.  For example, under a 2002
contract (No. DAAB07-02-D-A204 for the BA-5800 and BA-5567 batteries), it
took the contractor approximately 11 months from contract award to
complete FAT.  Under another contract (No. DAAB07-02-D-A205, for the
BA-5590 and BA-5567 batteries), FAT took 13 months, and under another (No.
DAAB07-02-D-A219, for the BA-5367 battery), FAT took approximately 10
months.  Agency Report, Tab A, Contracting Officer's Statement, at 7. 
Further, offerors competing under a current solicitation
(No. DAAB07-02-R-A266) for a lithium battery similar to the
BA‑5347/U have indicated that 9 to 10 months would be the minimum
time needed for FAT preparation, testing and reporting.  Id. 
    
We find the agency's explanation of the historical timeframe for
completion of testing on this and other batteries to be persuasive support
for its conclusion that a similar amount of time would be required for a
new contractor performing the requirement here.  Although Lyntronics
disagrees with CECOM's position regarding testing delays, it has not shown
why the agency's historical experience is not a valid basis for its
decision to modify MAI's contract, or otherwise shown that the agency's
position is incorrect.  Rather, Lyntronics's position is supported by two
timetables merely stating, essentially, that it could complete the testing
in a much shorter time than estimated by the agency.  As with its April 2
response to the synopsis, however, Lyntronics has failed to provide
information or explanation either supporting these timetables or bringing
the government's estimated timeframe into question.  Moreover, these
timetables represent best-case scenarios in that they do not account for
potential unforeseen problems or testing failures; there was nothing
unreasonable in the agency's considering such eventualities in determining
the appropriate acquisition approach.  In sum, we conclude here that we
have no basis for questioning the agency's position that deliveries by a
new source would be materially delayed.  See Magnavox Elec. Sys. Co.,
B‑258076 et al., Dec. 30, 1994, 94‑2 CPD P: 266.
    
CECOM also has shown that the testing delays would prevent it from meeting
its needs for additional batteries prior to their availability under the
new follow-on contract.  The average monthly demand (AMD) was at 2,411
batteries in December 2002, and by March 2003--when the J & A was
executed--had more than doubled, to 5,721.  CECOM Statement, at P: 10.  By
the time the modification was issued on April 7, CECOM had approximately
25,000 batteries remaining available under MAI's contract, and the AMD was
consistently rising.  Agency's Response to GAO's Request for Additional
Information, June 26, 2003.  As of May 16, the AMD had increased to
12,225, CECOM had 29,105 backorders, and there were only 5,348 batteries
on hand.  CECOM Statement, at P: 10.  Thus, CECOM reasonably determined
that modification of MAI's contract was necessary to meet its interim
needs. 
    
    
    
    
    
    
    
We conclude that CECOM reasonably determined that only MAI could satisfy
its requirements for the BA-3547/U battery within the time required, and
that the sole‑source modification of that firm's contract was
unobjectionable. 
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    

   ------------------------

   [1] The TWS is a scope that mounts onto firearms such as the M16 and M4
rifles.  It provides the soldier with a thermal image of the enemy, giving
the soldier the ability to view the enemy in conditions such as darkness,
smoke, foliage or fog.  The battery is housed inside the TWS.
[2] MAI was awarded its original contract on September 30, 1998.  After 6-
1/2 months of preparatory efforts, including establishing the bill of
materials, obtaining commitments from suppliers and test facilities, and
building both cells and batteries for prototype testing, MAI began FAT on
April 15, 1999.  CECOM approved MAI's FAT report on October 5, 1999. 
CECOM Statement, at P:P: 6-9