TITLE: B-298698; B-298698.2, General Electrodynamics Corporation, November 27, 2006
BNUMBER: B-298698; B-298698.2
DATE: November 27, 2006
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B-298698; B-298698.2, General Electrodynamics Corporation, November 27, 2006

   Decision

   Matter of: General Electrodynamics Corporation

   File: B-298698; B-298698.2

   Date: November 27, 2006

   Paul J. Seidman, Esq., and David J. Seidman, Esq., Seidman & Associates,
   for the protester.

   Vera Meza, Esq., Department of the Army, for the agency.

   Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Under solicitation for digital aircraft weighing scales, requirement that
   the scales not utilize hydraulic components or mechanical load sensing
   devices, which excludes protester's product, is not unduly restrictive of
   competition where the record supports the reasonableness of the agency's
   determination that scales utilizing fully electronic load cells are
   necessary to meet its needs.

   DECISION

   General Electrodynamics Corporation (GEC) protests the terms of request
   for proposals (RFP) No. W58RGZ-06-R-0473, issued by the Army Aviation and
   Missile Systems Command (AMSAM), Army Material Command, Department of the
   Army, for digital aircraft weighing scales (DAWS). GEC argues that the
   RFP's requirement that the scales not utilize hydraulic components or
   mechanical load sensing devices is unduly restrictive of competition.

   We deny the protest.

   On February 22, 2006, AMSAM synopsized solicitation No. W58RGZ-06-R-0185
   on the Federal Business Opportunities (FedBizOpps) website. On March 9,
   the Army amended the notice to advise that "the proposed contract action
   is for supplies or services for which the Government intends to solicit
   and negotiate with one source under authority of [Federal Acquisition
   Regulation (FAR) sect.] 6.302." Agency Report (AR), Tab J2, Modification
   of Presolicitation Notice for 0185, at 1. The notice identified Intercomp
   Company Inc. as the intended sole-source contractor, but stated that
   "[i]nterested persons may identify their interest and capability to
   respond to the requirement or submit proposals . . . [and that] all
   proposals received within forty-five days . . . after date of publication
   of this synopsis will be considered by the government." Id. GEC submitted
   a response to the synopsis.

   The Army issued the solicitation on April 20, including a purchase item
   description (PID) requiring the purchase of an Intercomp brand DAWS. GEC
   protested to our Office on May 9, alleging that the Army improperly used
   other than full and open competition, that the brand-name only PID was
   unduly restrictive of competition, and that the Army failed to conduct
   market research and advance procurement planning. The Army canceled the
   proposed sole-source solicitation and stated that a new solicitation with
   performance specifications would be issued to provide for full and open
   competition. We dismissed the protest on May 19.

   On May 26, the Army posted a new synopsis of its requirement on FedBizOpps
   and, on July 28, issued the subject solicitation, calling for award of a
   5-year indefinite-delivery/indefinite-quantity contract for DAWS. The
   scales will be used worldwide to weigh aircraft within the Army inventory,
   in and out of battle conditions, to ensure that the weight of the aircraft
   does not exceed safe limits. The PID includes several system requirements,
   among them para. 3.3, which states that the "scale shall not utilize any
   hydraulic components or mechanical load sensing devices." AR, Tab E3, PID,
   at 1. GEC requested removal of PID para. 3.3 from the solicitation; the
   contracting officer denied the request. GEC then filed this protest on
   August 22.[1]

   GEC argues that the solicitation is unduly restrictive because para. 3.3
   of the PID excludes scales with hydraulic or mechanical load sensing
   devices. In response, the agency maintains that the restriction in para.
   3.3 properly reflects its requirement for fully electronic scales.[2] In
   support of its position, the agency argues that scales utilizing fully
   electronic load cells are: easier to calibrate; more reliable and easier
   to maintain; as the more recent design, are the trend in weighing scale
   technology, and therefore have less risk of losing supportability due to
   technological obsolescence; and are better suited to the extremes of
   geography and the treatment that the scales are likely to receive from
   Army soldiers in the field. The protester disputes each of these claims
   and asserts that the PID is unduly restrictive of competition.

   A contracting agency has the discretion to determine its needs and the
   best method to accommodate them. Parcel 47C, LLC, B-286324, B-286324.2,
   Dec. 26, 2000, 2001 CPD para. 44 at 7. In preparing a solicitation, a
   contracting agency is required to specify its needs in a manner designed
   to achieve full and open competition, and may include restrictive
   requirements only to the extent they are necessary to satisfy the agency's
   legitimate needs. 10 U.S.C. sect. 2305(a)(1)(B) (2000); Innovative
   Refrigeration Concepts, B-272370, Sept. 30, 1996, 96-2 CPD para. 127 at 3.
   Where a protester challenges a specification as unduly restrictive, the
   procuring agency has the responsibility of establishing that the
   specification is reasonably necessary to meet its needs. The adequacy of
   the agency's justification is ascertained through examining whether the
   agency's explanation is reasonable, that is, whether the explanation can
   withstand logical scrutiny. Chadwick-Helmuth Co., Inc., B-279621.2, Aug.
   17, 1998, 98-2 CPD para. 44 at 3. A protester's mere disagreement with the
   agency's judgment concerning the agency's needs and how to accommodate
   them does not show that the agency's judgment is unreasonable. See Dynamic
   Access Sys., B-295356, Feb. 8, 2005, 2005 CPD para. 34 at 4. Where, as
   here, a requirement relates to national defense or human safety, an agency
   has the discretion to define solicitation requirements to achieve not just
   reasonable results, but the highest possible reliability and/or
   effectiveness. Vertol Sys. Co., Inc., B-293644.6 et al., July 29, 2004,
   2004 CPD para. 146 at 3.

   The record contains many competing claims about load cell performance. The
   protester asserts that, unlike the agency, it has provided empirical
   evidence to support certain of its allegations. Apparently recognizing the
   lack of an empirical study that would support its position concerning the
   relative performance of hydraulic and electronic load cells, on August 9
   an agency official with extensive knowledge of and participation in the
   DAWS procurement sent an e-mail message to an Air Force Metrology and
   Calibration (AFMETCAL) Program employee who was a DAWS mechanical
   engineer. The e-mail stated in part:

     I was wondering whether a rigorous study had been accomplished. . . . 
     comparing the suitability of the two load cell technologies in platform
     scale applications for aircraft weighing operations.

     If you are not aware of a study, then a brief memo describing your
     experiences with the technologies would also be useful.

   Response to Supplemental AR (SAR), exh. 27, Agency e-mails, at 3. We
   assume that no written response to this inquiry was received, however,
   because the agency has provided no such document in any of its filings
   responding to the protest.

   In contrast, the protester offers as empirical evidence slides from an
   AFMETCAL presentation titled "USAF Metrology & Calibration Program:
   Platform Scales Analysis," dated November 2004. Protester's Comments to
   AR, Tab 8. The protester asserts that in this presentation the Air Force
   "determined GEC scales using hydraulic technology are easier to calibrate
   than Intercomp Scales." Protester's Response to AR, at 3. We agree that
   certain slides can reasonably be interpreted to show that the protester's
   scales are easier to calibrate than Intercomp's. See Slides, p. 12
   ("Corner adjustments have increased calibration time from about 2 to 5
   hours per platform scale (Intercomp)."); p. 18 ("Added corner
   check/adjustment to procedures. Mandatory for Intercomp Scales. Only
   performed on GEC Scales when calibration check fails."). The agency
   asserts that the scales in the presentation were of a different capacity
   than those being procured and that the data would not accurately portray
   what the performance of the scales would be today.

   The agency has not challenged that fact that these slides appear to
   support the conclusion that in certain circumstances GEC's scales with
   hydraulic load cells outperformed Intercomp's scales with electronic load
   cells with regard to calibration. The slides in this presentation contain
   data for scales in actual use by the military, and the fact that the
   scales are of a different capacity than those being procured is not
   relevant. (The agency has not asserted that electronic load cells suit its
   needs better than hydraulic load cells only for certain weights.) The fact
   that the data is from 2004 makes it, relative to the record as a whole,
   fairly current. Moreover, these slides were produced by the military in
   advance of this protest and not in anticipation of it and appear to be
   objective, if limited, evidence that GEC's scales may be easier to
   calibrate than Intercomp's.[3] On the record before us, we find
   unpersuasive the agency's argument that it is reasonable to exclude scales
   utilizing hydraulic load cells from consideration because scales utilizing
   electronic load cells are easier to calibrate.

   Nevertheless, the agency has other bases for excluding hydraulic load
   cells which justify the restriction. In this connection, the agency also
   asserts that scales with hydraulic load cells and mechanical load sensing
   devices are less reliable and more difficult to maintain than fully
   electronic load cells. Contracting Officer's Statement at 3. That
   determination was made during the early stages of the DAWS reprocurement
   planning by an AMCOM technical representative. In a memorandum for the
   record dated July 29, 2005, the technical representative stated:

     Scales based upon hydraulics usually utilize bags of a fluid or a piston
     (normally oil based). . . . Problems that arise with this technology are
     that these units have a tendency to leak with age or can burst with
     overloading the  scale. They furthermore have more moving parts than the
     fully electronic scales that are utilized in more recent designs or dirt
     can get imbedded in them and cause friction. This comes into play when
     reliability is being considered. Cleaning or calibration is normally
     more tedious since the scale is normally required to be taken apart and
     adjusted or thoroughly cleaned compared to an electronic scale . . .

   AR, Tab M, Memorandum for the Record.

   The agency argues that because hydraulic load cells contain fluid, the
   scales are susceptible to leakage, and that diminishes their reliability
   and maintainability. The protester does not challenge the agency's
   assertion that a load cell that is susceptible to leakage would be less
   reliable and harder to maintain. Rather, the protester argues that it
   hermetically seals its load cells to preclude leakage and "provides
   mechanical protection to preclude overloads." Response to AR, at 3. The
   agency asserts, however, that even hermetically sealed load cells must
   have mechanical and electrical interfaces to the outside of the load cell
   which are subject to failure. Moreover, the agency argues that, while the
   protester has offered no evidence in the way of patents for its claimed
   design enhancements that would end cell leakage, the special design
   features necessary to prevent hydraulic load cell failures resulting in
   leakage add complexity to the design of GEC's already more complex load
   cell. This "significant additional design complexity," claims the agency,
   "results in more potential failure modes than the fully electronic load
   cell and increases reliability risk." Combined Agency Response to
   Supplemental Protest and Comments on AR (Combined Response), exh. 2,
   Statement of Product Manager for Aviation Ground Support Equipment, at 7.
   In any event, the contrast that the agency draws between the two types of
   load cells is this: while it can be stated with absolute certainty that
   electronic load cells cannot leak, it cannot be stated with absolute
   certainty that hydraulic load cells will never leak. Id. at 8. Thus, the
   agency asserts that in the absence of some clear advantage of hydraulic
   load cells over fully electronic load cells that outweighs the inherent
   reliability and maintainability risks of hydraulic load cells, the agency
   reasonably decided to eliminate hydraulic load cells from consideration.
   We agree.

   The agency also asserts that, "when performing technology tradeoffs for
   performance, reliability, maintainability, and affordability," it must
   consider "the extremes of environmental design requirements," the skill
   level and experience of equipment operators, and the often harsh operating
   conditions for the Army. Id. at 6. "Because of the uncertainty regarding
   the magnitude, direction, and frequency of [] additional forces
   transmitted to the load cells in Army usage," the agency argues, "the best
   way to mitigate the risk of load cell failure under expected field
   conditions is to consider scales using only the most robust load cell
   technologies." Id.

   The agency argues that the protester's own patent for a "Highly Accurate
   Weighing System" supports the agency's assertion that electronic load
   cells are more suited for combat situations. Specifically, the GEC patent
   states that it is "an improved weighing system which produces highly
   accurate measurements, which can be successfully operated by lesser
   skilled personnel, and which minimizes the expense of maintaining the
   system in an operable condition." Combined Response, supra, attach. 4, GEC
   Patent, at 2. This "improved weighing system" includes a fully electronic
   load cell. The protester does not challenge the agency's description of
   its patent; the protester instead asserts that electronic cells have their
   own shortcomings, including susceptibility to moisture and electrical
   surge damage. In fact, the record appears to show that the advantages of
   non-electronic cells in these areas--resistance to moisture and electrical
   surge damage--make non-electronic cells preferable for applications such
   as food processing plants and truck weigh stations. See Response to
   Supplemental AR, exh. 30. But the protester does not argue, and we see no
   basis to assume, that food processing plants and truck weigh stations are
   comparable to battlefields and that consequently the same load cell types
   preferable for one application would likewise be preferable for the other.
   We conclude that the record here, including the claim in the protester's
   own patent, supports the agency's conclusion that the design of electronic
   load cells is more suitable for combat situations.

   Further, the agency argues that its decision to restrict the procurement
   to scales utilizing fully electronic load cells reflects the current
   industry standard. AR, Tab Q, at 3-5. An agency properly may rely on an
   applicable industry standard to demonstrate the reasonableness of the
   agency's requirements. RMS Indus., B-247233, B-247234, May 1, 1992, 92-1
   CPD para. 412 at 3. The agency also asserts that because fully electronic
   load cells are a more recent design than hydraulic load cells and are the
   trend in weighing technology, the prospects for future supportability are
   enhanced if the agency procures electronic cells. The agency offers many
   industry references in support of these claims. See, e.g., AR, Tab Q3, at
   1 ("[S]train gage load cells [one type of electronic load cell] dominate
   the weighing industry."); Tab Q9, at 1 ("The vast majority . . . of
   weighing applications depend on the strain gage load cell."); Tab Q10, at
   2-3 ("According to survey results, industrial weighing systems are now
   overwhelmingly electronic. . . . Reasons to convert mechanical weighing
   systems remain compelling. Electronic scales are more accurate,
   repeatable, and less susceptible to errors caused by environmental factors
   such as vibration and shock.").

   Again, the protester does not challenge the premise that the agency may
   reasonably prefer a load cell that enjoys a larger market share and
   utilizes newer technology. Rather, the protester counters the agency's
   claim with an article endorsing the protester's technology. That article
   quotes a GEC corporate officer and features two photographs of GEC scales
   and none from any other manufacturer. The article, which carries no
   by-line, runs beside a large advertisement for GEC scales. We need draw no
   inferences regarding the credibility of this article's content; the agency
   has assembled a large array of material from various sources that identify
   the superior market share of electronic cells and that the trend is away
   from hydraulic load cells to electronic ones. We think that the agency has
   reasonably supported its claims that electronic cells are the standard
   throughout the industry, in part because they are a newer technology.

   Inasmuch as the scales will be used in combat to ensure the safe operation
   of military aircraft, it is reasonable for the agency to place a premium
   on reliability and maintainability, see Vertol Sys. Co., Inc., supra, at
   3, a superior characteristic of electronic load cells. While the agency
   has not shown the reasonableness of all of its assertions regarding fully
   electronic load cells, we find that the agency's decision to specify such
   load cells, on the whole, is reasonable.

   GEC further alleges that the agency failed to conduct adequate market
   research before proceeding with this procurement. However, our review of
   the record shows that the agency's market research, which included
   discussions with technical experts and representatives within AMCOM, other
   Army and Department of Defense agencies, as well as commercial
   manufacturers, including GEC and Intercomp, see Tab K, was appropriate to
   the circumstances present here. See FAR sect. 10.001(a)(2). While the
   record of the agency's market research for this solicitation is nearly
   identical to the market research for the canceled solicitation, the
   requirements are quite similar, as well. Further, the agency employee who
   conducted the market research asserts that the research was performed a
   second time, in advance of the second solicitation, using the same
   sources.

   Finally, the protester asserts that the solicitation constitutes an
   improper de facto sole source procurement. This claim is belied by the
   fact that, in addition to the awardee, the protester itself submitted a
   proposal under the current solicitation which it later withdrew. See
   Wyeth-Ledere Vaccines and Pediatrics, B-274490, B-274490.2, Dec. 13, 1996,
   96-2 CPD para. 229 at 8 n.5. That proposal is evidence that the protester
   can compete, even though it may be inconvenient for it to do so on the
   agency's terms. Staveley Instruments, Inc., B-259548.3, May 24, 1995, 95-1
   CPD para. 256 at 7. Accordingly, we find there is no merit to the
   assertion that the agency conducted a de facto sole-source procurement or
   that the procurement results from a lack of advance planning by the
   agency.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] Both Intercomp and GEC submitted proposals under the RFP. GEC later
   withdrew its proposal, stating that the scale that it had offered would
   have been a modified version of one of its off-the-shelf scales, and that
   due to an increase in orders it no longer had the time to meet the
   solicitation's delivery schedule. GEC asserts it should be permitted to
   furnish its hydraulic technology-based weigh scales under the RFP.

   [2] The critical component of a weigh scale's design is the load cell, a
   mechanism that converts a force acting on it into a measurable electrical
   output. Load cells are commonly categorized as pneumatic, hydraulic, or
   electronic; pneumatic and hydraulic are two types of mechanical load
   cells, and there are several types of electronic ones. AR, Tab Q,
   Assessment of Load Cell Requirements in the Digital Aircraft Weighing
   Scale, at 2. Because pneumatic load cells have a relatively low response
   speed and require clean, dry regulated air or nitrogen, id. at 3, which
   clearly renders them inappropriate for use under the conditions here, the
   exclusion of load cells utilizing hydraulic components is essentially a
   requirement for electronic load cells.

   [3] The protester argues that the AFMETCAL slides also show that GEC's
   scales are more reliable, because they purportedly remain calibrated
   longer. We agree that some of the slides can be interpreted to show that
   GEC scales maintain their calibration for longer periods. See Slides, pp.
   14, 16. The protester's reference to reliability is different from the
   concept as it is used by the agency here, however; as discussed further
   below, the agency's position regarding the scales' reliability refers to
   the length of time that scales operate properly without unscheduled
   downtime due to malfunctions, not to the length of time between scheduled
   calibrations.