BNUMBER: B-261673.2
DATE: December 7, 1995
TITLE: Astrosystems, Inc.
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Matter of:Astrosystems, Inc.
File: B-261673.2
Date: December 7, 1995
Brett A. Alcala, Esq., Birnbaum & Umeda, for the protester.
Gregory H. Petkoff, Esq., and Mark E. Frazier, Esq., Department of the
Air Force, for the agency.
Robert Arsenoff, Esq., and Paul I. Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest challenging agency's determination to qualify awardee as an
approved source is denied where record shows that the agency's
determination was reasonably based.
DECISION
Astrosystems, Inc. protests the award of a contract to Support Systems
Associates, Inc. (SSAI) under request for proposals (RFP) No.
F41608-95-R-0194, issued by the San Antonio Air Logistics Center,
Department of the Air Force, for services including the repair,
testing, and calibration of automatic test equipment used on B-1B
aircraft. The protester principally maintains that SSAI was
improperly approved as a qualified source.
We deny the protest.
The RFP contemplated the award of a fixed-price contract to the
lowest-priced offeror determined to be an approved source for the
technical services to be performed under the contract, and listed
Astrosystems as one of two previously approved sources. Offerors
which had not been previously approved were invited to submit a source
approval request (SAR) information package to enable the government to
determine whether they could meet the government's needs. The SAR
package was to contain the following:
(1) Evidence of capability (e.g.: brochures, technical
information, FAA certification, purchase orders or contract for
similar items showing equal or greater degree of difficulty than
equipment being considered).
(2) Company experience and experience of the work force.
(3) Facilities description.
(4) Support and test equipment availability.
(5) Kits and piece parts availability.
(6) List of current applicable technical orders or commercial
literature/manuals and supplements which are available for
repair/overhaul.
(7) Description of Quality Program.
(8) Safety program for protection of government assets.
(9) Copy of any warranty which will be provided.[1]
Four offers were received. SSAI submitted the lowest offer of
$1,003,978.13 and Astrosystems submitted the second lowest offer of
$1,257,617.28. SSAI submitted a SAR information package which was
reviewed by agency engineers and approved. SSAI was awarded a
contract based on its low price and this protest followed.
As indicated above, Astrosystems principally maintains that the agency
improperly qualified the awardee as an approved source. Prior to
discussing this allegation, however, we address certain of the
protester's other complaints which are not for review by our Office.
First, Astrosystems challenges the contracting officer's determination
that the awardee was responsible both in a general context and with
respect to what the protester asserts are definitive responsibility
criteria. Because a determination that an offeror is capable of
performing a contract is based largely on subjective judgments which
generally are not susceptible of reasoned review, an affirmative
determination of responsibility will not be reviewed by our Office
absent a showing that such determination was made fraudulently or in
bad faith or that definitive responsibility criteria in the
solicitation were not met. Bid Protest Regulations, 4 C.F.R.
21.3(m)(5) (1995); Bomem, Inc., B-234652, May 17, 1989, 89-1 CPD
475. Astrosystems has not alleged, nor does the record contain any
suggestion of, fraud or bad faith on the part of the contracting
activity. With respect to the protester's presumption that the nine
quoted information categories of the SAR package constitute definitive
responsibility criteria, which SSAI allegedly did not meet,
Astrosystems's argument lacks legal merit. Information requested in
an RFP to determine source approval status simply does not constitute
definitive responsibility criteria--i.e., standards applied by the
agency for measuring a particular offeror's ability to perform a
contract. Advance Gear & Mach. Corp., B-228002, Nov. 25, 1987, 87-2
CPD 519. Accordingly, this aspect of the protest is dismissed.
Noting that SSAI mentions a "team member," Southwest Electronics
Laboratory, Inc., in its SAR package, Astrosystems asserts that the
Air Force failed to assure that the awardee would perform in
accordance with RFP amendment No. 0002, which the protester
characterizes as placing a fixed 10-percent cap on the amount of
subcontracting permitted. However, amendment No. 0002 actually
provides as follows:
"Intent of this procurement is for on-site repair to the maximum
extent possible. Procurement is envisioned as having one
contractor responsible for entire repair effort with very few
items being subvendored out. There [is] less than 10% exceptions
to the on-site requirement."
This language does not establish a 10-percent cap on subcontracting;
rather, it limits the amount of repair work which may be performed
outside the contractor's premises. Whether SSAI performs in
accordance with the limitation is a matter of contract administration,
which is the responsibility of the contracting agency and not within
the purview of our Office. Janke and Co., Inc., B-210776, May 19,
1983, 83-1 CPD 534. In any event, in its proposal SSAI specifically
acknowledged amendment No. 0002 and stated that it took no exceptions
to the RFP. Further, in the SAR package, SSAI states that it plans to
perform all repair work at its own Oklahoma City facility, using its
"team member" only to perform equipment calibration efforts. As the
agency reports, these efforts represent less than 10 percent of the
contract effort. Accordingly, the record does not support the
protester's supposition that the awardee will not perform in
accordance with the RFP.[2]
We now turn to Astrosystems's principal allegation that SSAI's SAR
package was inadequate to permit the Air Force to properly conclude
that the firm was a qualified source and the related allegation that
the agency waived or relaxed source approval requirements for SSAI.
The contracting agency has the primary responsibility for determining
its minimum needs and for determining whether a previously unapproved
source will satisfy those needs, since it must bear the burden of
difficulties incurred by reason of a defective evaluation. Chromalloy
Gas Turbine Corp., supra; Sony Corp. of Am., 66 Comp. Gen. 286
(1987), 87-1 CPD 212. Whether an offeror seeking source approval
has submitted sufficient information to convince the agency that it
will meet the agency's minimum needs is essentially a technical
judgment committed to the agency's discretion, id., which we will not
disturb unless it is unreasonable. Service & Sales Inc., B-247673,
June 29, 1992, 92-1 CPD 545. A protester's mere disagreement with
an agency's technical judgment does not render the judgment
unreasonable and does not provide a legal basis for sustaining a
protest. See DBA Sys., Inc., B-241048, Jan. 15, 1991, 91-1 CPD 36.
Astrosystems's criticisms of the Air Force's conclusions concerning
the adequacy of SSAI's SAR package fall short of establishing that the
agency's determination was unreasonable. At best, the protest
arguments constitute technical disagreements which do not provide a
basis for the protester to prevail in this matter.
For example, Astrosystems questions whether the awardee has
established its "capability" under the first listed source approval
standard. In this regard, the protester asserts that the awardee has
not performed contracts involving similar items of comparable
complexity. The agency notes that SSAI listed six contracts and
states that an Air Force technical representative familiar with B-1B
equipment to be repaired contacted the Federal Aviation Administration
(FAA) concerning the details of SSAI's performance on all six
contracts. The technical representative, who was also familiar with
FAA equipment, concluded that the six identified contract efforts were
comparable to that required under the RFP. On the basis of this
conclusion, SSAI was found to have provided sufficient information to
establish its capability under this standard. While Astrosystems
takes exception to this conclusion and insists that the evaluation
should have been more extensive, we find nothing in the RFP's
standards to suggest that the successful performance of six contracts
of similar complexity is insufficient to establish SSAI's capability.
Likewise, regarding the first listed overall "capability" standard,
the agency reviewed technical descriptive information on repair
procedures provided by SSAI in its SAR package and found it to be
adequately detailed. Astrosystems argues that the information was
generic in nature and asserts that the agency essentially waived the
standard. The RFP standard merely sets forth technical information as
one illustrative category of data impacting on capability without
providing any specific requirements, and Astrosystems's assertion that
the agency's conclusion is wrong does not provide us with a basis for
questioning the evaluators' judgment here.
With reference to the second and third listed source approval factors,
Astrosystems questions whether SSAI has a sufficient number of
employees and insists that the agency should not have accepted at face
value, without further investigation, the awardee's statement that its
7,675 square foot Oklahoma City facility was adequate to perform the
contract. The RFP did not set forth specific personnel requirements
or square footage facility requirements, nor did it require the Air
Force to conduct a plant facilities survey in conjunction with source
approval; thus, Astrosystems's objection merely reflects its
disagreement with the Air Force regarding the significance of the
information provided by SSAI.
Finally, Astrosystems complains that SSAI did not submit a complete
list of current applicable technical orders which are available for
repair or overhaul as required by the sixth listed source approval
factor. The agency points out that SSAI did indicate what technical
orders it possessed and included a statement that it would order
supplementary orders as required in the performance of the contract.
Since SSAI's SAR package also indicated that the firm subscribes to
the military service which provides such orders, we see no basis for
questioning the agency's judgment that the awardee satisfied this
requirement.
The protest is denied.
Comptroller General
of the United States
1. This is the same information that was considered when the
protester's SAR was evaluated a year prior to this procurement. Item
(5) on the list, concerning kits and piece parts availablitiy, was
inadvertently included in the instructions and is not relevant to the
procurement of repair services because electronic parts are readily
available in the commercial market. Since the Air Force did not
measure any offeror's ability to perform against this standard, its
inadvertent inclusion was not prejudicial. Moreover, an agency is not
obligated to use previous qualification standards in future
procurements if it determines that they are no longer needed to
measure whether an offeror can meet the agency's needs. See
Chromalloy Gas Turbine Corp., B-234272, May 17, 1989, 89-1 CPD 474.
2. Astrosystems has raised various other nonmeritorious allegations
which we will not address in detail. For example, the protester
claims that the agency's failure to
execute a justification for a source approval requirement, as required
by Federal Acquisition Regulation 9.202(a), prior to including the
requirement in the RFP prejudiced its pricing strategy, arguing, in
essence, that it could have and would have offered a substantially
lower price in an unrestricted procurement with a different
competitive mix of offerors. The fact of the matter is, however,
that, notwithstanding the agency's error in not executing the
justification, the source approval requirement was included in the RFP
and all offerors competed under the same set of standards. We
therefore fail to see how the protester was prejudiced. Astrosystems
also asserts that SSAI's failure to complete the inspection and
acceptance and f.o.b. origin clauses rendered its offer technically
unacceptable. In both cases, however, the omissions were waivable as
minor informalities since SSAI identified its place of performance
elsewhere in the offer. Moreover, under Astrosystems's position, its
own offer would be unacceptable for failure to complete the f.o.b.
origin clause.