TITLE: B-309946; B-309946.2, Brinkmann Instruments, Inc., October 15, 2007
BNUMBER: B-309946; B-309946.2
DATE: October 15, 2007
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B-309946; B-309946.2, Brinkmann Instruments, Inc., October 15, 2007

   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.

   Decision

   Matter of: Brinkmann Instruments, Inc.

   File: B-309946; B-309946.2

   Date: October 15, 2007

   J. Michael Littlejohn, Esq., Hal J. Perloff, Esq., and Steven J. Koprince,
   Esq., Akerman Senterfitt Wickwire Gavin, for the protester.

   Robert Kois, Esq., and Richard Martinelli, Esq., Naval Supply Systems
   Command, for the agency.

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

   DIGEST

   Agency's proposed award of a sole-source contract for autotitrators to be
   used in nuclear submarines is unobjectionable where the agency reasonably
   determined that it needed to acquire the same autotitrator previously
   fielded on other nuclear submarines for purposes of standardization and
   safety across the nuclear submarine fleet.

   DECISION

   Brinkmann Instruments, Inc. protests the proposed sole-source award of a
   contract to Mettler-Toledo, Inc. under request for quotations (RFQ) No.
   N00104-07-Q-VY68, issued by the Naval Supply Systems Command, Department
   of the Navy, for 33 Mettler DL77 Navy autotitrators.

   We deny the protest.

   On July 23, 2007, the Navy published in FedBizOpps a presolicitation
   notice of its intention to procure, on a sole-source basis, 33 DL 77 Navy
   autotitrators from Mettler to be used onboard its 688 Class and 726 Class
   nuclear submarines. Currently, the Mettler unit is installed onboard 44 of
   the Navy's nuclear submarines and is used to automate the chemistry
   analysis of steam and steam plant water samples. As explained by the Navy,
   22 of the 33 units are to be used for "On Board Repair Parts," while the
   remaining units are either intended for ship alterations or necessary to
   fulfill minimum stocking levels.[1] Agency Report (AR) at 5.

   Prior to issuance of the presolicitation notice, the Navy prepared a
   justification and approval (J&A) in support of the sole-source award to
   Mettler, citing the authority at 10 U.S.C. sect. 2304(c)(1) (2000) and
   Federal Acquisition Regulation (FAR) sect. 6.302-1, which authorize the
   use of other than competitive procedures when items required by an agency
   are available from only one responsible source or a limited number of
   responsible sources, and no other product will satisfy the agency's needs.

   Brinkmann objects to the proposed sole-source award to Mettler principally
   on the ground that its own autotitrator, the Metohm 809 Titrando, which it
   claims is less expensive than the Mettler autotitrator, is also
   technically and functionally equivalent or superior to the Mettler unit.
   [2] Accordingly, Brinkmann contends that the Navy is required to compete
   the autotitrator requirement.

   As a general matter, CICA mandates "full and open competition" in
   government procurements obtained through the use of competitive
   procedures. 10 U.S.C. sect. 2304(a)(1)(A). CICA, however, provides several
   exceptions to this requirement, including when an agency's requirements
   can only be satisfied by one responsible source. 10 U.S.C. sect.
   2304(c)(1). When, as here, an agency invokes this exception, it is
   required to execute a written J&A with sufficient facts and rationale to
   support the use of the cited authority. Our review of an agency's decision
   to conduct a sole-source procurement focuses on the adequacy of the
   rationale and conclusions set forth in the J&A where the J&A sets forth a
   reasonable justification for the agency's actions, we will not object to
   the award. Chapman Law Firm, B-296847, Sept. 28, 2005, 2005 CPD para. 175
   at 3. In this regard, our Office has held that an agency's legitimate need
   to standardize the equipment it uses may provide a reasonable basis for
   imposing restrictions on competition. See, e.g., Advanced Med. Sys., Inc.,
   B-259010, Jan. 17, 1995 (agency's need to standardize fetal monitors in
   order to maximize patient care was reasonable); Sperry Marine, Inc.,
   B-245654, Jan. 27, 1992, 92-1 CPD para. 111 (sole-source acquisition of
   particular radar system was reasonable where agency needed to utilize the
   same radar system it had already deployed at training school).

   Based on our review of the record, we conclude that the Navy had a
   reasonable basis for the sole-source award to Mettler. The record shows
   that the ability of the Brinkmann autotitrator to meet the Navy's onboard
   technical requirements was not an issue. Rather, the Navy's justification
   for the sole-source award to Mettler is based upon, among other things, a
   reasonable need for standardization.

   As explained by the Navy, the accuracy and reliability of the chemical
   analyses by the autotitrators is essential for the safe operation of a
   submarine's nuclear reactor plant and having a standard unit allows Navy
   personnel to operate the autotitrator equipment without regard to the
   specific submarine to which they are assigned. AR, Tab E, J&A at 2.
   Maintaining the operational continuity of the autotitrators across
   submarines is especially important since Navy personnel operating the
   units are not professional chemists and there is "constant turnover" of
   personnel between submarines. AR, Tab A, Declaration of Director, Fleet
   Readiness Division, Naval Nuclear Propulsion Program, Aug. 28, 2007, at 1.
   Because no other autotitrator is "directly interchangeable in form fit and
   function" with the currently fielded Mettler unit, AR, Tab E, J&A at 2,
   introducing a different unit would undermine the advantage of having Navy
   personnel operate a single standard unit, thereby "increas[ing] the risk
   of incorrect chemical analyses," and in turn increasing the risk to the
   safety of Navy personnel and equipment. AR, Tab A, Declaration of
   Director, Fleet Readiness Division, Naval Nuclear Propulsion Program, Aug.
   28, 2007, at 1.

   According to Brinkmann, other than a different keypad or operating system,
   there is little difference between its own autotitator and the Mettler
   unit, and the differences which do exist would not affect ease of use.
   Comments at 4. In arguing that the differences between the two units are
   insignificant in nature and that the Navy's standardization and safety
   concerns are therefore overstated, Brinkmann relies on broad assertions
   and the opinions of its own director of sales. In our view, Brinkmann's
   arguments on this point amount to little more than its disagreement with
   the agency's determinations, which does not provide an adequate basis to
   sustain the protest. In sum, we conclude that the Navy has established a
   legitimate safety need for fielding a single standard autotitrator and
   that the contemplated award to Mettler will achieve the Navy's
   standardization goals. See American Eurocopter Corp., B-283700, Dec. 16,
   1999, 99-2 CPD para. 110 at 6-7 (finding restriction of competition to
   specific make and model of helicopter was reasonable where standardization
   of agency's fleet was necessary based on safety concerns). We therefore
   find the proposed sole-source award to Mettler unobjectionable. [3]

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] In March 2007, the Navy had issued a solicitation for the purchase of
   62 Mettler units in order to replace all the fielded Mettler
   autotitrators. The Navy subsequently reevaluated its needs and decided
   that some units could be refurbished, reducing the number of needed
   Mettler units to 33 as provided in the subject solicitation.

   [2] Brinkmann also argued that the "only one responsible source" exception
   in the Competition in Contracting Act (CICA) and FAR sect. 6.302-1 was not
   available to the agency because the autotitrators are not "highly
   specialized equipment." CICA and the FAR, however, do not limit
   application of the single source exception to procurements of "highly
   specialized equipment," as suggested by the protester. Rather, the
   provisions in CICA and the FAR regarding "highly specialized equipment"
   merely prescribe the necessary findings regarding "a follow-on contract
   for the continued development or production of . . . highly specialized
   equipment . . . ." 10 U.S.C. sect. 2304(d)(1)(B); see also FAR sect.
   6.301-2(a)(2)(ii).

   [3] Brinkmann also challenged the agency's sole-source award to Mettler on
   the ground that it was the result of the agency's lack of advance
   planning. See 10 U.S.C. sect. 2304(f)(5)(A) (providing that an agency may
   not use noncompetitive procedures due to its lack of advance planning);
   see also FAR sect. 6.301(c)(1). Since, as discussed above, the Navy has
   articulated a reasonable need to employ the Mettler autotitrator due to a
   need for standardization stemming from safety concerns, Brinkmann's
   advance planning argument is without merit. In addition, Brinkmann filed a
   supplemental protest challenging the solicitation's "Alternate Product
   Offers" clause. Since the protester did not respond to the Navy's
   substantive responses on this issue, we consider this issue to have been
   abandoned. MFVega & Assocs., LLC, B-291605.3, Mar. 25, 2003, 2003 CPD
   para. 65 at 4.