BNUMBER: B-261476.3
DATE: November 14, 1995
TITLE: Mnemonics, Inc.
**********************************************************************
REDACTED DECISION
A protected decision was issued on the date below and was subject to a
GAO Protective Order. This version has been redacted or approved by
the parties involved for public release.
Matter of:Mnemonics, Inc.
File: B-261476.3
Date: November 14, 1995
John R. Kancilia, Esq., Landman, O'Brien, Riemenschneider & Kancilia,
for the protester.
Stuart B. Nibley, Esq., Seyfarth, Shaw, Fairweather & Geraldson, for
E-Systems, Inc., an interested party.
Craig E. Hodge, Esq., and Gary Theodore, Esq., Department of the Army,
for the agency.
Andrew T. Pogany, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Although the Competition in Contracting Act of 1984 mandates that
contracting agencies obtain full and open competition in their
procurements through the use of competitive procedures, the proposed
sole source award of a contract under 10 U.S.C. 2304(c)(1) is
unobjectionable where the agency reasonably determined that only one
source could supply the critically required items within the time
constraints of the procurement.
DECISION
Mnemonics, Inc. protests the Department of the Army's proposed sole
source award to E-Systems, Inc. under request for proposals (RFP) No.
DAAB07-95-R-S999, for three-channel Joint Tactical Terminal (JTT)
radio equipment which transmits intelligence information by means of
satellites and airborne relays to combatants on the ground.[1]
Mnemonics essentially contends that the agency improperly determined
that the firm could not meet its minimum needs within the required
time constraints and unreasonably concluded that E-Systems was the
only responsible, capable, and timely source.
We deny the protest.
GENERAL BACKGROUND
On May 9, 1995, the Army placed a synopsis in the Commerce Business
Daily (CBD) that announced a proposed sole source award to E-Systems
for the procurement of Low Rate Initial Production (LRIP) JTT
equipment. The synopsis announced a contemplated quantity of 17
JTT/H3 and 2 JTT/H-R3, with spares, training devices and services for
depot maintenance and integration support. A firm, fixed-price
contract was announced with initial deliveries required 12 months
after contract award. Two options were also announced for 33 JTT/H3
in fiscal year 1996 and 22 JTT/H3 and 36 JTT/H-R3 in fiscal year 1997.
The CBD synopsis stated that the agency's sole source procurement was
premised on the lack of complete functional specification and network
interface control documents for the JTT suitable to conduct a
competitive procurement. The proposed sole source procurement was
authorized by a Justification and Approval for Other than Full and
Open Competition (J&A), signed by the Assistant Secretary of the Army.
The Assistant Secretary, in the J&A, stated as follows
"A sole source award is deemed necessary since complete network
Interface Control Documents (ICD's) suitable to sustain a
competitive procurement are not available. Complete functional
definition of the CTT interface with the networks, were not
purchased on prior CTT contracts because the functional
performance of the CTT, the networks and the interface were being
changed. There are no feasible acquisition alternatives other
than sole source to E-Systems, ECI Division, that can achieve the
accelerated fielding requirements. E-Systems, by virtue of its
role as the developer of the CTT single channel system, two
channel CTT/H-R and three channel Hybrid Systems, has acquired
unique capabilities and in depth knowledge about program
interoperability requirements with the multiple users and
intelligence broadcast networks system security requirements, and
other technical capabilities required to produce the CTT Hybrid
Systems. No other contractor has ever built equipment or
produced a radio that is interoperable with the Tactical
Reconnaissance Intelligence Exchange System (TRIXS) network.
TRIXS is the high accuracy, time sensitive data which is
generated by the GRCS, Air Force U2-R, and Story Teller/EP-3
systems."
The Assistant Secretary, in the J&A, noted that Mnemonics's previous
interest in the procurement was rejected because the firm does "not
meet the TRIXS network interoperability requirement."
The CBD synopsis contained note 22 which provides that firms
interested in submitting a proposal or an expression of interest in
the proposed procurement should do so within 45 days of the date of
the publication of the CBD synopsis. On June 22, the protester
submitted a timely expression of interest to the agency pursuant to
note 22. On July 11, Mnemonics received a response from the agency
stating that the firm had not demonstrated the capability to
successfully perform the requirements of the JTT program principally
because the protester would be unable to timely develop the JTT TRIXS
function within the required delivery schedule. In the meantime, the
agency issued the RFP to E-Systems. This protest followed.
ANALYSIS
Because of the overriding mandate of the Competition in Contracting
Act of 1984 (CICA) for full and open competition in government
procurements obtained through the use of competitive procedures, 10
U.S.C. 2304(a)(1)(A), our Office will closely scrutinize sole source
procurements under the exception to that mandate provided by 10 U.S.C.
2304(c)(1). Mine Safety Appliances Co., B-233052, Feb. 8, 1989, 89-1
CPD 127. Where, as here, however, the agency has substantially
complied with the procedural requirements of CICA, 10 U.S.C.
2304(f), calling for written justification for and higher-level
approval of contemplated sole source action and publication of the
required CBD notice, we will not object to the sole source award
unless it can be shown that there is not a reasonable basis for it.
Id. In sum, excepting those noncompetitive situations which arise
from a lack of advance planning, a sole source award is justified
where the agency reasonably concludes that only one known source can
meet the government's needs within the required time. Data
Transformation Corp., B-220581, Jan. 16, 1986, 86-1 CPD 55.
Criticality of the Delivery Schedule
The protester argues that the agency made an "invalid determination"
that accelerated delivery of JTT equipment is required with deliveries
beginning in 1 year.[2]
In response, the agency has provided evidence, unrebutted by the
protester, that essential military requirements necessitate an
expedited delivery schedule. For example, the JTT, which will
interoperate with TRIXS, is needed for the Guardrail Common Sensor
(GRCS), an airborne system which is fielded and operational in the
United States, Europe, and Korea; for the Joint STARS Ground Station
Module, which is an intelligence and targeting data processing and
dissemination system; and for monitoring of hostile enemy actions in
North Korea and in the DMZ (the JTT equipment must be available in
December 1995). The JTT equipment is also needed for similar
requirements, such as the Joint Tactical Ground Station, the Patriot
system, and the Airborne Reconnaissance Low Electronic Warfare sensor
platform, and other critical military intelligence processing systems.
We conclude that the record supports the agency's stated critical need
for this equipment within the time schedule of the RFP.
Capabilities of the Protester
As stated above, the protester's note 22 submission was principally
rejected because of the agency's technical concern about the
protester's ability to meet the TRIXS requirement.[3] As relevant
here, the protester has submitted an affidavit from a technical
expert. The expert states that original C5 specifications (containing
actual computer software source codes) were created for the CTT and
that the software which performs on the processor in the JTT is
"substantially the same software as is contained in the CTT." If
given access to the CTT C5, a competent contractor, such as Mnemonics,
"can transport that software on to its own hardware design and have
the full capability to operate with TRIXS [with] minor modifications
to the software."[4] It is on this basis that Mnemonics believes that
it can successfully perform the requirements within the short time
frame.
Both the agency and the interested party have presented substantial
technical evidence refuting Mnemonics's assumptions. The agency
states as follows
"Deleted."
E-Systems explains that it added significant functional features to
the processor software which provides an Airborne Relay Terminal, not
present in the CTT, which allows the JTT to be placed on an airborne
platform and perform TRIXS network relay functions. The JTT software
also interfaces with a high-powered host (required for TRIXS) which is
a "completely new interface when compared to the CTT host interface"
and represents "another significant development effort." E-Systems
further states that "[p]orting the CTT software from a MC68000
processor (used by CTT) to a MC68040 processor (proposed by Mnemonics)
would create additional technical and developmental difficulties.
Additionally, E-Systems states as follows
"A major omission in Mnemonics' discussion of using the CTT
software . . . is one of testing. Even when software is written
so that it can be reused, the effort associated with retesting
approximately [deleted]lines of ADA/assembly code is quite large.
Also, the testing required for product delivery requires
expertise in the detailed functional requirements, not just the
software implementation. . . . To reverse engineer the detailed
requirements from the C5, in time to support the software
development and test efforts, is unrealistic."
Based on this record, we think the agency made a reasonable technical
determination that serious technical doubts existed as to whether
Mnemonics could timely deliver the critical equipment under the
expedited delivery schedule. We find nothing in the record to show
that the agency's position regarding the necessary software changes is
incorrect, or that the agency abused its technical judgment in making
this determination and the resulting determination that award to
E-Systems, on a sole source basis, was appropriate given the
exigencies of the circumstances. In short, we think the agency
reasonably determined that the scope of the software changes necessary
to make the CTT C5 function on the JTT presented an unacceptable
technical risk inherent in the protester's proposed technical
approach. The agency states that it will competitively acquire this
equipment (and solicit Mnemonics) with a projected date for the "full
and open" award by December 1996.
Mnemonics raises numerous additional arguments which we find to be
without merit. The protester first argues that the solicitation
contained options for Demand Access Multiple Assignment (DAMA)
requirements which were not authorized by the J&A. In response, the
agency has deleted these options from the solicitation. The protester
also objects to the presence of any options in the solicitation as
"not in the government's best interest." In response, the contracting
officer states that "[n]o option quantities on the subject sole source
acquisition will be procured subsequent to the award of the
competitive procurement unless necessary to fulfill documented urgent
requirements which can only be satisfied through exercise of the
option." In view of this explanatory statement, we find no merit in
the protester's objection to inclusion of the options. The protester
next argues that the J&A did not authorize the procurement of two
JTT/H-R3 units for the base period. The agency acknowledges this
clerical error and will resubmit a corrected J&A to the Assistant
Secretary of the Army. The protester also argues, in its comments,
that the sole source procurement was the result of lack of advance
planning. This allegation is untimely. See 4 C.F.R. 21.2(a)(2)
(1995). Finally, the protester argues that the agency is improperly
using production funding for a developmental effort. The agency
explains that this is a production effort and the record does not show
otherwise.
The protest is denied.
Comptroller General
of the United States
1. The JTT was formerly known as the Commanders Tactical Terminal
(CTT) which was originally a single channel model. The two items
principally at issue here are the JTT/H3 device (three channel
receiver and one channel transmitter) and the JTT/H-R3 (three channel
receiver). The CTT and JTT equipment must interface with (that is,
receive data from and/or transmit data to) the Tactical Reconnaissance
Intelligence Exchange System (TRIXS) as well as several other military
communications networks.
2. The protester relies on two Congressional Committee Reports to
argue that Congress only authorized the agency to acquire the original
and older CTT equipment rather than the advanced JTT equipment. For
example, one report refers to the "CTT's capabilities" and states that
the "CTT is an integral part of the Army's high priority effort."
H.R. Rep. No. 562, 103d Cong., 2d Sess. (1994). The other
congressional committee report, H.R. Rep. No. 138, 104th Cong., 1st
Sess. (1995), states as follows: "The Committee believes that rapid
procurement and fielding of this receiver will improve tactical
intelligence support to operational forces and allow the community to
move forward with the development of the logical functional basis for
the future Joint Tactical Terminal (JTT)." The protester argues that
the committees' various references were to "CTT" and not to a "JTT"
(which allegedly was only to be procured in the "future") and that
"[t]he agency is attempting to bootstrap a [Congressional]
justification for the continued design and development of the JTT
through a Congressional authorization of the CTT." We reject these
arguments. The agency has presented to our Office the written
military plans the agency submitted to Congress, before the name JTT
came into use, which shows that Congress was fully aware of the
agency's plans to acquire JTT equipment. Thus, as the agency states,
the terminologies of "CTT" and "JTT" appear to have been used
interchangeably by the Congressional committees. We therefore find no
merit to this argument.
3. We note here that the agency's concern is not that the protester is
incapable of successfully developing and producing equipment
compatible with the TRIXS network. Rather, the agency's technical
experts do not believe the protester can accomplish this complicated
task within the short time frame of this procurement.
4. The protester states that this C5 exists and is numbered R140599.
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