BNUMBER:  B-261476.3
DATE:  November 14, 1995
TITLE:  Mnemonics, Inc.

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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.