BNUMBER: B-261954.4
DATE: July 19, 1996
TITLE: Saturn Industries--Reconsideration
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Matter of:Saturn Industries--Reconsideration
File: B-261954.4
Date:July 19, 1996
George W. Ash, Esq., Dykema Gossett, for the protester.
Glenn G. Wolcott, Esq. and Paul Lieberman, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Request for reconsideration is denied where requesting party
reiterates arguments raised during the initial protest, raises
arguments that could have been but were not raised during the initial
protest, and fails to demonstrate that the decision contains errors of
fact or law.
DECISION
Saturn Industries requests reconsideration of our decision, Saturn
Indus., B-261954.3, Jan. 5, 1996, 96-1 CPD para. 9, in which we denied
Saturn's protest challenging the provisions of solicitation No.
SPO750-95-R-0213, issued by the Defense Construction Supply Center
(DCSC), Defense Logistics Agency (DLA). The solicitation sought
proposals to provide 515 hydraulic motor race assemblies, national
stock number (NSN) 2530-01-109-4375, to be used in the transmission of
the M2 and M3 Bradley Fighting Vehicle. Saturn asserts that our
decision failed to adequately address various protest issues.
We deny the reconsideration request.
The challenged solicitation was issued on May 22, 1995, and provided
that one of the assembly components (the race) was source
controlled.[1] In that regard, the solicitation established
qualification requirements with which an offeror must comply to become
a qualified source, stating:
"Qualification testing of [the race component will require a 100
hour dynamometer test ($75,000) [and] 6000 mile on-vehicle test
($25,000) and $25,000 for analysis and final report before source
approval can be given . . . . Contractor would need to supply
eight [race components] . . . along with the above funds, to the
government for testing. Testing would take six to nine months."
In its protest, Saturn challenged the solicitation's qualification
requirements on the basis that it had not been given a reasonable
opportunity to qualify its product. Specifically, Saturn asserted:
"As written, the solicitation requires delivery of the race
assemblies within 150 days of contract award. The Item
Description indicates that qualification testing requires six to
nine months. Therefore it is not possible for any potential
offeror to compete in this procurement if its offered product is
not qualified, or at least one to four months into testing, at
the time of award.
". . . DCSC has therefore, in effect, unreasonably limited the
competition by specifying lengthy testing requirements which
cannot be met by unqualified offerors. This violates the
requirement in 10 U.S.C. sec. 2319 that nonapproved sources be given
a reasonable opportunity to qualify."
As we pointed out in our decision, the record belied Saturn's
representations that it had not been afforded an adequate opportunity
to qualify its component. Specifically, the record established that,
in December 1992, Saturn was awarded a contract to supply the race
assemblies being procured under the challenged solicitation.[2]
There, as here, the solicitation provided that the race component was
source controlled and identified Martin Marietta and Kaydon as the
qualified sources. By letter to the agency dated December 22, 1992,
Saturn requested waiver of the source control requirements.[3] In
February 1993, Saturn submitted a request to become a qualified
source. Saturn was subsequently advised of the specific requirements
it must meet to qualify as a source for the race component; those
requirements were identical to the qualification requirements in the
solicitation here. Specifically, by letter dated June 8, 1993, Saturn
was advised that qualification testing would include a "100 hour dyno
test" and a "6000 mile on-vehicle test," that "Saturn would need to
supply eight parts [for testing]," that "testing would take
6-9 months," and that "Saturn would be required to pay for all costs
associated with qualification." By letters dated July 19, September
15, and December 10, 1993, and February 8, 1994, DLA reiterated the
qualification requirements. Despite the government's clear statements
regarding the ongoing need for the qualification requirements, Saturn
failed to submit any components for qualification testing, and made no
deliveries under its prior contract. That contract was terminated by
the government in July 1994.
Based on the facts summarized above, our decision rejected Saturn's
assertion that it had not been given a "reasonable opportunity to
qualify [its product]." The record was clear beyond dispute that
Saturn had been repeatedly advised of the precise testing requirements
which its protest challenged. Despite the agency's multiple requests
that Saturn submit its component for testing, Saturn failed to do
so--and the record indicates that Saturn has yet to manufacture any of
those components. Saturn's reconsideration request presents no new
evidence or argument demonstrating factual or legal errors in our
decision regarding this matter; accordingly, there is no basis for
reconsideration regarding this issue. See John Peeples--Recon.,
B-233167.3, Dec. 9, 1991, 91-2 CPD para. 522.
Saturn also complains that our decision failed to properly address its
assertion that Martin Marietta and Kaydon were not subjected to the
current qualification testing requirements and, therefore, are not
properly qualified sources. Repeating assertions made in its protest,
Saturn asserts that "the qualifications of both Lockheed Martin and
Kaydon are at a minimum, not properly documented and more likely,
never occurred."
In responding to Saturn's protests regarding this issue, the agency
explained that the race assemblies were developed by Kaydon and
General Electric Corporation (Martin Marietta's corporate predecessor
for this item) between 1984 and 1986 and that, during that period,
the race component was subjected to a series of tests and inspections
integrated within the development process; however, most of the
documentation relating to that development no longer exists.
Notwithstanding the current lack of documentation, the agency pointed
out that the operational testing requirements to which Saturn objects
are intended to demonstrate the component's capability to perform
under actual operating conditions, and that the components currently
being provided have repeatedly been, and continue to be, tested under
such conditions.
In our decision, we specifically stated: "Saturn asserts that the
race components being provided by the previously approved sources were
not subjected to the testing requirements that are now required." Our
decision rejected that argument noting that, notwithstanding the
inability of the agency to, at this time, produce documentation of its
prior development efforts, Saturn offers no rational argument to
support its assertion that, in developing the race assembly as a new
component, the agency failed to subject it to operational testing.
Similarly, we noted that Saturn did not rebut the agency's explanation
that the currently fielded components have repeatedly demonstrated
their capability to perform under actual operating conditions and, as
such, are continuously subjected to the same testing requirements
which Saturn asserts were never performed. Saturn's reconsideration
request offers no new arguments or evidence on these issues and merely
reflects its disagreement with our prior decision, which does not
constitute a valid basis for reconsideration. See, John
Peeples--Recon., supra.[4]
Saturn also complains that our decision failed to separately discuss
whether the agency has satisfied the procedural requirements
associated with its obligation to examine and revalidate the
qualification requirements. See 10 U.S.C. sec. 2319(e); FAR sec. 9.202(f)
(FAC 90-2). Saturn did not raise this matter in its protest;
nonetheless, in seeking reconsideration, it points to the fact that
the agency was requested to provide documents pertaining to the
maintenance and revalidation of the qualification requirements.
Significantly, Saturn does not question the actual, ongoing need for
the qualification requirements. In particular, Saturn's
reconsideration request expressly states: "[Saturn] has not asserted
that the need for qualification [of this safety critical item] is
improper." As our decision pointed out, the race assemblies are
properly classified as "safety critical" in that component failure
during operation could result in personal injury to military
personnel.[5] In light of Saturn's express acknowledgment of the
legitimate, ongoing need for qualification requirements, Saturn's
assertion regarding the agency's alleged failure to properly document
its revalidation provides no basis to object to the agency's actions.
Moreover, Saturn's initial protest did not assert that the agency
failed to comply with the revalidation requirements. In short, Saturn
has neither raised the issue now in a manner which would provide a
basis to sustain its protest, nor did it raise the issue in any
meaningful fashion in its initial protest when it could and should
have done so.
Finally, Saturn asserts that our decision failed to adequately address
its allegation of an organizational conflict of interest with regard
to Martin Marietta. Saturn's protest in this regard was based on the
fact that Martin Marietta provides engineering support services for
the Bradley Fighting Vehicle under a systems technical support
contract and, as such, will assist the agency in testing Saturn's
component.
Since Saturn has yet to manufacture and submit its component for
testing, we found no basis to sustain Saturn's protest on the basis of
an anticipated conflict of interest. Saturn appears to be seeking
reassurance that the agency will objectively evaluate its component if
and when Saturn manufactures and submits the component. In response
to this concern, the agency has provided express assurance that it
will objectively evaluate the component. Saturn's speculation that
the agency will fail to perform an objective evaluation merely
anticipates improper agency action and, therefore, is not for
consideration. See, e.g., Sea-Land Serv., Inc., B-246784.6; B-253068,
Aug. 5, 1993, 93-2 CPD para. 84; Harbor Branch Oceanographic Inst., Inc.,
B-243417, July 17, 1991, 91-2 CPD para. 67; Jantec, Inc., B-243192, Mar.
14, 1991, 91-1 CPD para. 289; General Elec. Canada, Inc., B-230584, June
1, 1988, 88-1 CPD para. 512; Logistical Support, Inc., B-218465, Apr. 18,
1985, 85-1 CPD para. 447; Riggins Co., Inc., B-214460, July 31, 1984, 84-2
CPD para. 137; Surgical Instrument Co. of Am., B-215026, July 25, 1984,
84-2 CPD para. 112; Afri-American Supply Co., B-206137, Feb. 17, 1982,
82-1 CPD para. 141.
The request for reconsideration is denied.
Comptroller General
of the United States
1. The solicitation identified Martin Marietta Defense Systems (now
Lockheed Martin) and Kaydon Corporation as the only approved sources.
2. Saturn's prior contract for the race assemblies, No. DLA
770-93-C-3520, was awarded on December 15, 1992.
3. The agency formally denied that request by letter dated July 19,
1993.
4. It appears that Saturn's primary objective is to have the
government, rather than Saturn, bear the testing costs. As we noted
in our decision, offerors are generally required to bear their own
costs of qualification testing. See 10 U.S.C. sec. 2319(b)(3); Federal
Acquisition Regulation (FAR) sec. 9.202(a)(1)(ii). Agencies are
permitted, under certain circumstances, to bear such costs. See 10
U.S.C. sec. 2319(d)(1)(B); FAR sec. 9.204(a)(2). Here, the record presented
no indication that the agency had abused its discretion; accordingly,
this issue provided no basis to sustain Saturn's protest.
5. FAR sec. 46.203 establishes criteria for designating a product as
"safety critical," thereby necessitating qualification testing
requirements.