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.