BNUMBER:  B-271835
DATE:  July 31, 1996
TITLE:  OPS, Inc.

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Matter of:OPS, Inc.

File:     B-271835

Date:July 31, 1996

Phil Seberger, Jr., for the protester.
Susan Spiegelman-Boyd, Esq., Department of the Navy, for the agency.
Linda C. Glass, Esq., and Paul I. Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protest that agency did not permit sufficient time for offerors to 
submit product samples is denied where the agency permitted more than 
the statutorily required 
30 days, adequate competition was expected, there is no indication 
that the agency deliberately attempted to exclude the protester from 
the procurement and, as the result of a pre-solicitation notice 
published in the Commerce Business Daily, the protester was made aware 
of the general requirement more than 4 months before the sample was 
due.

2.  The General Accounting Office generally will not consider a 
protest that an  agency should use more restrictive specifications to 
meet its minimum needs.  

3.  Protest that sound reduction requirement for suppressor improperly 
penalizes offerors with state-of-the-art design is denied where the 
requirement reasonably specifies the agency's minimum needs and the 
protester's objection is based on an inaccurate technical premise.

DECISION

OPS, Inc. protests the terms of request for proposals (RFP) No. 
N00164-96-R-0023, issued by the Naval Surface Warfare Center, Crane 
Division (Crane) for suppressors for the M4A1 Carbine.[1]  

We deny the protest.

In December 1995, Crane synopsized in the Commerce Business Daily its 
intent to procure, using full and open competition, a minimum of 50 
and a maximum of 10,000 suppressors for the M4A1 Carbine under an 
indefinite delivery/indefinite quantity contract.  The synopsis stated 
that the suppressor shall minimize sound and flash signature of the 
M4A1 Carbine firing M855 ammunition and shall have a minimum life of 
3,000 rounds including frequent full automatic firing.  The synopsis 
also stated that 10 product samples would be required to be submitted 
with each proposal.  In response to the synopsis, the protester made 
six recommendations to the agency concerning the suppressor 
requirements.  Four of the suggestions were adopted by the agency and 
were incorporated into the solicitation specifications.  The other 
two, concerning the warranty and quick attach/detach function, were 
not incorporated because the agency determined that they conflicted 
with the user's requirements.  

The RFP was issued on March 26, 1996, with a May 10 closing date for 
submission of proposals and 10 product samples.  The specifications 
set forth an acceptable range for each of the technical parameters of 
the suppressor, with the "goal" being the top of the range, for which 
additional technical credit would be given.  With respect to 
reliability and rate of fire, the RFP required that the number of 
stoppages in the 3,000 round endurance test not be greater than the 
number of stoppages for the unsuppressed carbine, and provided that 
the enhanced goal for undergraded performance was 5,000 rounds.  The 
RFP also provided that the sound reduction goals were 30 decibels or 
greater sound pressure level reduction in all frequencies (20 Hz - 
20,000 Hz).  The product samples were not required to meet all of the 
RFP specifications, but were required to meet the lowest parameter in 
the technical areas of interface, weight, size, and sound pressure 
level.  

OPS protests that 6 weeks is not enough time for it to design, and 
develop product samples and respond to the RFP.  OPS also objects that 
the agency "downgraded" the specifications in order to make it 
possible for a particular vendor to be able to meet the 
specifications.  In this regard, OPS maintains that the endurance 
firing standard of 3,000 rounds is less than one third that required 
under the terms of an earlier contract awarded by a Department of the 
Army activity.  OPS also argues that the sound pressure level 
requirement penalizes a design that raises the relatively low 
frequency gun shot sound to a very high frequency.   

With respect to the procurement time frame, the agency maintains that 
offerors were given sufficient time to develop samples.  The agency 
points out that the December 1995 synopsis stated that product samples 
would be required, thus OPS had from December to begin designing a 
quick attach suppressor for the M4A1 Carbine.  The agency also points 
out that while OPS had communications with the agency in January and 
April, the protester never indicated that a lengthy period was 
required for designing and producing product samples.  

With certain exceptions not relevant here, a contracting agency is 
required by statute to allow a minimum 30-day response period for 
procurements.  See 15 U.S.C.  sec.  637(e)(3)(B) (1994); Federal 
Acquisition Regulation (FAR)  sec.  5.203(c); Trilectron Indus., Inc., 
B-248475, Aug. 27, 1992, 92-2 CPD  para.  130.  Here, the agency placed 
offerors on notice that product samples would be required 3 months 
before the solicitation was issued and permitted offerors 45 days in 
which to respond to the solicitation, hence its actions were not per 
se improper.  Under these circumstances, we review the agency's 
refusal to extend the due date for offers to determine whether it is 
inconsistent with the full and open competition standard and whether 
there was a deliberate attempt to exclude the potential offeror from 
the competition.  Control Data Corp., B-235737, Oct. 4, 1989, 89-2 CPD  para.  
304.  

We see no basis for concluding that the agency is violating the full 
and open competition standard or that it is deliberately excluding the 
protester from the competition.  First, as a result of informal 
surveys, the agency learned that at least five manufacturers possessed 
a quick attach suppressor which, with minor modification, would meet 
the agency's needs.  Further, as noted above, offerors were placed on 
notice in December 1995 that product samples were required and, 
although OPS was in contact with the agency after issuance of the 
synopsis and the solicitation, OPS first raised its allegation that 
more time was needed in its protest filed with our Office on April 23.  
Thus, the agency had no reason to believe that it needed to make 
greater efforts to assure competitive sources of supply or that OPS or 
others could not meet requirements as advertised.  The fact that OPS 
belatedly determined that it needs more time does not mean that the 
agency is obligated to provide that time.  While a contracting agency 
must solicit offers in a manner designed to achieve full and open 
competition, an agency does not have to delay satisfying its own needs 
in order to allow a particular vendor time to develop the ability to 
meet the government's requirement.  Trimble Navigation, Ltd., 
B-247913, July 13, 1992, 92-2 CPD  para.  17.  In short, there is no merit 
to this protest issue.

OPS, in arguing that the agency should require what its claims to be 
an industry standard of 10,000 rounds for firing endurance, as opposed 
to the solicitation goal of 5,000 rounds, with a test requirement of 
3,000 rounds, is requesting the use of more restrictive 
specifications.  Because the purpose of our bid protest function, 
consistent with the Competition in Contracting Act of 1984, 10 U.S.C.  sec.  
2304 (1994), is to ensure that full and open competition is obtained, 
we generally will not consider a protest that the procuring agency 
should use more restrictive specifications to meet its minimum needs.  
See Container Prods. Corp., B-232953, Feb. 6, 1989, 89-1 CPD  para.  117.  
Moreover, nothing in the record contradicts the agency's position that 
the standard used will satisfy its minimum needs.

OPS suggests that the agency's decision to relax the endurance firing 
standard was made simply to accommodate an OPS competitor.  On the 
contrary, the record shows that the endurance firing standard 
contained in the solicitation was based on the requirements of the 
user activity and on planned depot maintenance of all the M4A1 
accessories at 5,000 round intervals.  Based on this plan for 
maintenance at regular intervals for the entire M4A1 accessory kit, an 
endurance performance in excess of 5,000 rounds for one item within 
the accessory kit obviously would exceed the agency's requirements for 
this item.  In this regard, the protester's assertion that an Army 
activity imposed a different standard based on its needs is of no 
relevance here.  Further, we have recognized that it is appropriate 
for an agency to relax specifications that exceed agency minimum needs 
in order to enhance competition.  Transtar Aerospace, Inc., B-239467, 
Aug. 16, 1990, 90-2 CPD  para.  134.

OPS also argues that the 30-decibels sound reduction goal for the 
suppressor improperly penalizes an offeror with a state-of-the-art 
design that modifies the sound to a high frequency.  OPS asserts that 
the high frequency component of the sound is imperceptible to the 
human ear, is not as likely to damage the hearing system, and is 
attenuated very rapidly by the air and the natural environment.  
Therefore, OPS asserts, the sound reduction goal for the higher 
frequencies exceeds the agency's needs.

In preparing a solicitation for supplies or services, a contracting 
agency must specify its needs and solicit offers in a manner designed 
to achieve full and open competition, and include restrictive 
provisions or conditions only to the extent necessary to satisfy the 
agency's needs.  10 U.S.C.  sec.  2305(a)(1) (1994).  Contracting agencies 
have broad discretion in determining their minimum needs and the best 
method of accommodating those needs, and we will not question such a 
determination unless the record clearly shows it lacks a reasonable 
basis.  H.L. Bouton Co., Inc., B-256014.4, Oct. 24, 1994, 94-2 CPD  para.  
149; Woodland Container Corp., B-255000, Feb. 3, 1994, 94-1 CPD  para.  70.

The agency states that the purpose of the suppressor is to decrease 
the audible sound associated with firing the carbine, hence, the 
reduction of sound within the range which humans can hear is 
appropriate.  The agency also states that testing for this 
specification will measure whether the average peak sound pressure 
level reduction is 25 decibels or more in the carbine with the 
suppressor compared to the carbine without the suppressor.  The agency 
maintains that how an offeror achieves the proper sound pressure level 
reduction does not matter, and that rather than penalizing a 
state-of-the-art design, the specification allows an offeror to meet 
this requirement by any means that it chooses.  

OPS does not directly dispute the agency's position with respect to 
the sound reduction requirement.  Rather, it challenges the agency's 
position that 20 Hertz (Hz) to 20,000 Hz is the range within which 
humans hear sound and, therefore, the range through which suppression 
is necessary and required.  The protester contends that sound above 
10,000 Hz is essentially inaudible so attentuation of sound to high 
frequencies (above 10,000 Hz) should also be an acceptable form of 
silencing.  The agency's position, however, is borne out by the 
literature in the field (humans "normally hear sound waves whose 
frequencies lie between about 20 and 20,000 Hz."  Peter B. Denes & 
Elliot Pinson, The Speech Chain:  The Physics & Biology of Spoken 
Language (2d ed., New York W.H. Freeman 1995)).  Accordingly, we see 
no basis to object to the RFP's suppression requirement.

The protest is denied.

Comptroller General
of the United States  

1. The M4A1 Carbine is a weapon used by the United States Special 
Operations Command (USSOCOM).  In an effort to upgrade the Carbine, 
the agency has issued a series of procurements of commercial items to 
improve the Carbine's performance.  The procurements are for 
components which will be integrated into an accessory kit for the M4A1 
and will allow the Carbine to be tailored to various mission 
scenarios.