Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Protest challenging solicitation requirement for topside processor in acoustic hydrographic multibeam system as restrictive of competition is denied where agency demonstrates a reasonable basis for the requirement.
General Counsel P.C. Highlight:
The protester argues that the requirement that the processors be located topside is restrictive of competition. GAO states that while a contracting agency has the discretion to determine its needs and the best method to accommodate them, those needs must be specified in a manner designed to achieve full and open competition. Solicitations may include restrictive requirements only to the extent they are necessary to satisfy the agency’s legitimate needs. Where a protester challenges a requirement as unduly restrictive of competition, the procuring agency has the responsibility of establishing that the requirement is reasonably necessary to meet the agency’s needs.
The Corps explains that it requires a topside processor so that it will be able to access the processor to perform repairs, upgrades, and/or replacement of the processing unit without dry-docking the vessel. In other words, its need is for a system that will require minimal dry-docking of the vessel. With regard to the 23-foot boat, which is “trailer-able,” the agency explains that it wants the same system on both boats. The Corps contends in this connection that the two vessels are operated by the same captain and crew members, so having the same system on both will reduce the need for operator training. The Corps further explains that it is an advantage to the agency if the two systems have compatible and interchangeable parts since this will allow the agency to switch system components between the two boats if one of the vessels is required for a survey at the same time that its multibeam system is in need of repair.
The primary concern underpinning the agency’s requirement for topside processing modules is its desire to minimize the risk of having a processor failure that results in the disruption and expense associated with dry-docking its vessel. Notwithstanding the protester’s assertions to the contrary, this risk is not illusory. The protester does not dispute the fact that if its processor fails, the Corps’ vessel will need to be dry-docked to repair the failed processor. Rather, the protester maintains that there is little or no risk of processor failure. Although, as pointed out above, some of the failures described by the agency did not involve the processor functions that the protester embeds in the sonar head, the record does reflect that other failures did involve those functions, thereby lending credence to the agency’s underlying concern. With regard to the protester’s argument that its chips have never failed, the agency notes that the protester’s system incorporating an embedded processing chip has only been available for a few years and therefore has not been on the market long enough to establish a record regarding its long-term performance. Further, in response to the protester’s complaint that other parts of the sonar heads could also fail, the agency reports that it has been its experience that the transducer (i.e., sonar head) components rarely cause problems, and the protester has not sought to rebut the agency position. Given the potential disruption posed by the failure of a non-topside mounted processor, and the agency’s reasonably-based desire to minimize the risk of disruption associated with such a failure, GAO has no basis to find the agency’s requirement unreasonable or otherwise improper. The protest is denied.