BNUMBER:  B-261206.2
DATE:  February 12, 1996
TITLE:  Hi-Shear Technology Corporation--Reconsideration

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Matter of:Hi-Shear Technology Corporation--Reconsideration

File:     B-261206.2

Date:     February 12, 1996

Peter B. Jones, Esq., Jones & Donovan, for the protester.
Mary E. Shallman, Esq., Gray Cary Ware & Freidenrich, for Teledyne 
Ryan Aeronautical, McCormick Selph Electronics, an interested party.
David M. Hill, Esq., and Kathryn M. Burke, Esq., Department of the Air 
Force, for the agency.
C. Douglas McArthur, Esq., and Christine S. Melody, Esq., Office of 
the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

Request for reconsideration is denied where requesting party merely 
expresses disagreement with prior decision and continues argument that 
contracting officer did not have discretion, where solicitation 
provided for consideration of Blue Ribbon Contractor (BRC) status, to 
consider price in the selection decision; prior regulation, provided 
by protester with its initial filing, and current regulation, provided 
by agency in its response to the protest, both grant the contracting 
officer discretion to make award to a lower-priced non-BRC, 
considering similar factors.

DECISION

Hi-Shear Technology Corporation requests reconsideration of our 
decision, Hi-Shear Technology Corp., B-261206, Aug. 31, 1995, 95-2 CPD  para.  
97, denying its protest of the award of a contract to Teledyne Ryan 
Aeronautical, McCormick Selph Electronics, under request for proposals 
(RFP) No. F41608-95-R-10105, issued by the Department of the Air Force 
for aircraft recovery sequencers.  Hi-Shear, a participant in the Air 
Force Materiel Command's (AFMC) Blue Ribbon Contractor (BRC) program, 
contended that the agency did not consider the protester's BRC status 
in its selection decision, contrary to solicitation provisions.

We deny the request for reconsideration.

The selection decision was a choice between Teledyne, which offered 
the lower price, and Hi-Shear, a BRC.  In making this decision, the 
contracting officer noted that Teledyne was producing the same 
sequencers for McDonnell Douglas, possessed the excess capacity to 
deliver an additional 30 per month, and already had the long-lead time 
items in-house.  Hi-Shear, by contrast, although a designated BRC, did 
not have extra long-lead time items, might not be able to meet 
short-term, urgent requirements, and would have to hire more 
assemblers, which might have a short-term impact on quality.  Although 
both offerors were qualified sources and equally capable of 
manufacturing the sequencers, the contracting officer found little 
risk in selecting the lower-priced contractor, Teledyne, although it 
was not a BRC.

As we noted in our earlier decision, the solicitation provided that 
the selection decision would consider the AFMC BRC Program, as well as 
price.  The BRC program, which applies to spare parts acquisitions, 
recognizes that responsible contractors have "varying degrees of 
quality and delivery performance," and provides a framework for 
contracting officers to exercise business judgment in making selection 
decisions normally dictated solely by price.  See AFMC Federal 
Acquisition Regulation Supplement (AFMC FARS) Part 5315.605-90.  Our 
decision noted that the AFMC FARS set forth factors for consideration 
in deciding whether to select a higher-priced BRC for award.  Although 
the Air Force had provided our Office with a copy of the current 
regulation, dated September 30, 1994, we reviewed the selection 
decision in terms of the factors listed in a prior version of the 
regulation (dated July 1, 1992), which Hi-Shear had submitted with its 
protest.

In our prior decision, we agreed with the Air Force that while it was 
permitted under the BRC program to make award based on considerations 
other than price, neither the language of the solicitation nor the 
underlying regulations required it to do so.  The underlying 
regulation essentially requires an award in the government's best 
interest and, where the BRC is higher in price, requires a written 
justification regardless of which offeror--BRC or non-BRC--the 
contracting officer chooses.  See AFMC FARS  sec.  
5315.605-90(h)(9)(ii),(iii).  We found the Air Force's consideration 
of the factors set forth in the regulation both reasonable and 
consistent with that guidance.

In requesting reconsideration, Hi-Shear essentially argues that the 
factors for consideration differ between the older regulation that it 
cited in its protest and the newer version.  Hi-Shear suggests that 
our decision would have been different had we looked at the decision 
in terms of the factors listed in the newer regulation.

Hi-Shear is incorrect.  The factors listed in the earlier regulation 
are as follows:  required delivery schedule; complexity of items; 
criticality of items; size of order; need for first article; absolute 
dollar difference; new contractor's past quality and delivery 
performance; and overall cost to the government.  The current 
regulation calls for consideration of the need for delivery "within 
stated time constraints and quality parameters."[1]  Thus, while the 
specific language has changed, the current version of the regulation 
directs the contracting officer to consider essentially the same 
factors that were considered here.

The contracting officer here found Teledyne equally capable of 
producing a quality product, and, considering the relative work loads 
of the two offerors, as likely if not more likely to meet the required 
delivery schedule.  The record contained no evidence that this 
determination was unreasonable, and Hi-Shear presents no such evidence 
in its request for reconsideration.  The factors considered in the 
selection decision were clearly consistent with both versions of the 
regulation.

In essence, Hi-Shear continues the argument made in its earlier 
protest that a contractor's acceptance into the BRC Program removes a 
contracting officer's discretion to consider price and, under a 
solicitation that provides for consideration of BRC status, requires 
selection of the BRC contractor regardless of other considerations.  
In our prior decision, we recognized that the ordinary expectation is 
that award to a BRC will be in the government's best interest, even 
where the price is higher.  However, under either version of the 
regulation, the contracting officer may make award to the non-BRC and 
must, in fact, justify any decision to make award to a BRC at a higher 
price.  The regulation promises only consideration of BRC status and 
clearly allows the contracting officer the discretion to weigh that 
status against a higher price, considering various relevant factors, 
in making a selection decision.  Hi-Shear's continued disagreement 
with our earlier decision provides no basis for reconsideration.  See 
4 C.F.R.  sec.  21.12(a) (1995); Jack Faucett Assocs.--Recon., B-254421.3, 
Aug. 11, 1994, 94-2 CPD  para.  72.

The request for reconsideration is denied.

Comptroller General
of the United States

1. Under the Defense FAR Supplement  sec.  246.103(c), complexity and 
criticality determine quality requirements.