BNUMBER:  B-261968.2
DATE:  January 11, 1996
TITLE:  Marc Avenue Corporation

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Matter of:Marc Avenue Corporation

File:     B-261968.2

Date:     January 11, 1996

Dennis A. Adelson, Esq., and Amy L. Freeman, Esq., Verner, Liipfert, 
Bernhard, McPherson and Hand, for the protester.
Albert C. Ruehmann III, Esq., for BF Goodrich Aerospace, an interested 
party.
Richard P. Castiglia, Jr., Esq., and Curtis D. Elton, Esq., Department 
of the Air Force, for the agency.
John Van Schaik, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest against agency decision to reject proposal is denied where 
protester had not met qualification requirements for solicited wheel 
and brake assembly and failed to demonstrate that it could become 
qualified in time for award.

DECISION

Marc Avenue Corporation protests the rejection of its proposal under 
request for proposals (RFP) No. F42630-95-R-22041, issued by the 
Department of the Air Force for improved wheel and brake assemblies 
for certain F-16 aircraft.

We dismiss the protest in part and deny it in part.

The F-16 C/D fleet consists of two blocks, or types, of aircraft, 
block 40/42 and block 50/52.  The wheel and brake assemblies sought 
under the RFP are a part of the main landing gear for the aircraft.  
They are considered flight critical items because a failure of the 
wheel and brake assembly during operation of the aircraft could 
significantly affect flight safety.  The prime contractor for the F-16 
fleet, General Dynamics Corporation, Fort Worth Division, equipped the 
block 40/42 aircraft with a wheel and brake assembly manufactured by 
Aircraft Braking Systems Corporation (ABSC), and the block 50/52 
aircraft with a wheel and brake assembly manufactured by BF Goodrich 
Aerospace (BFG).  The ABSC 40/42 assembly and the BFG 50/52 assembly 
were each qualified to the same design specification.  ABSC and BFG 
were the sole source suppliers of replenishment spares, ABSC for the 
40/42 block and BFG for the 50/52 block.

As a result of a critical shortage of 40/42 assembly spares and 
reliability and maintenance problems associated with the ABSC 
assembly, in January 1994, the Air Force decided that it was in the 
agency's best interest to replace the existing ABSC 40/42 assembly 
with the BFG assembly, which had previously been qualified for use on 
the 40/42 aircraft and had a documented performance rate of 767 
landings, which was closer to the design objective of 1,000 landings.  
On June 10, 1994, the Air Force published a notice in the Commerce 
Business Daily (CBD) stating its intent to issue a sole source 
contract to BFG for a quantity of 40/42 assemblies.  The proposed sole 
source award was canceled on September 16, as the agency realized that 
it could not justify a sole source acquisition since there were two 
qualified sources, ABSC and BFG.

On January 12, 1995, the Air Force published a synopsis in the CBD to 
identify interested sources with the capabilities to produce a 
replacement wheel and brake assembly for the block 40/42 F-16 
aircraft.  The synopsis advised that the replacement system should 
provide a wheel design that can accommodate both a bias ply and a 
radial ply tire, and a brake design that can provide a minimum of 750 
landings before repair or replacement.  The synopsis also stated that 
the replacement wheel and brake must fit within the present envelope 
of the 40/42 wheel well fitting and be compatible with existing 
aircraft/landing gear in form, fit, and function.  The agency received 
eight expressions of interest in response to the notice.  On April 17, 
the Air Force synopsized the RFP in the CBD; that notice restated the 
requirements set forth in the January 12 synopsis.  

The RFP was issued on June 16 and, as amended, established the closing 
date for receipt of proposals as July 31.  The RFP stated that the 
acquisition was subject to a qualification requirement, that "THIS IS 
AN EXTREMELY URGENT REQUIREMENT," and that contract award would not be 
delayed to give an offeror an opportunity to meet the standards 
specified for qualification "unless determined to be in the best 
interest of the government."

Marc submitted a proposal, which, after discussions were conducted, 
the Air Force rejected by an August 21 letter which stated: 

     "This is to inform you that based on the information you 
     submitted for review, you do not meet the qualification 
     requirements.  Your proposal outlines a design, development 
     effort.  The RFP specifically states that a design, development 
     effort is not acceptable.  Also, due to the fact [that] you have 
     not completed your design and development effort, you do not have 
     the necessary documentation for our review.  Consequently, your 
     proposal is not responsive and cannot be considered."

In addition, the letter informed Marc that it could continue to seek 
qualification but stated that "due to the urgency of the requirements 
the Air Force will not delay contract award pending your 
qualification.  We anticipate a contract will be awarded by 15 Oct 
95."

In its principal allegation, Marc complains that, although it could 
not meet the qualification requirements when it submitted its 
proposal, under the RFP those requirements only had to be met by the 
time of award.  Marc notes that the RFP stated that the "acquisition 
will not be delayed to allow a contractor to become a qualified source 
unless determined to be in the best interest of the government," and 
argues that due to its low price and superior technical approach, it 
was in the government's "best interest" to delay the award to allow 
Marc to qualify.  As a result, Marc argues that it was unreasonable to 
reject its proposal.

The RFP permitted firms, such as Marc, that had not previously 
supplied the required items to qualify by manufacturing a 
qualification article and submitting it to the Air Force for 
inspection and testing.  The RFP also stated: 

     "The burden of proof regarding the [qualification] requirements 
     rests with the contractor.  Authenticity verification will not be 
     pursued by the responsible procuring activity.  If the proposal 
     does not include all the required information, it may be 
     determined nonresponsive and not considered for award."

When it submitted its proposal, Marc had not met the RFP qualification 
requirements.  As a result, during discussions, Marc was asked to 
provide evidence of compliance with those requirements and to provide 
"a definitized milestone schedule outlining your design and 
development effort and proposed delivery that complies to the RFP 
requirements."[1]  In response, in an August 9 letter, Marc argued 
that, while it believed that its proposal was in the best interest of 
the government,  it would need 10 months to qualify the firm's wheel 
and brake design.  However, there generally is no requirement that an 
agency delay a procurement in order to provide a potential offeror an 
opportunity to demonstrate its ability to become qualified. 10 U.S.C.  
2319(c)(5) (1994).  Under the terms of the RFP, Marc's proposal was 
reasonably rejected because the firm failed to demonstrate that it 
could become qualified in time for award.[2]

Marc also challenges the agency's determination that there was an 
urgent need for the assemblies which prevented delay of the award and 
argues that BFG had an unfair competitive advantage under the RFP.  
According to Marc, the monthly usage rates for the F-16 Block 40/42 
wheel and brake components indicate that adequate fleet support is 
available for 19 months, which would be sufficient time for Marc to 
perform the necessary qualification tests and deliver production items 
on its proposed schedule.  Marc argues that the agency's determination 
of urgency was improperly based simply on a concern with the potential 
loss of funding and that, in any event, there is no urgent need for 
the quantity of assemblies solicited.  Marc also argues that BFG, as 
evidenced by the June 10, 1994, CBD announcement of the proposed sole 
source contract to BFG for a quantity of 40/42 assemblies, was given 
source selection information and was unfairly permitted to perform 
qualification testing prior to issuance of the RFP--opportunities that 
Marc was not provided.[3] 

These contentions are untimely.  Under our Bid Protest Regulations, 
protests based upon alleged improprieties in a solicitation which are 
apparent prior to the closing time for receipt of initial proposals 
must be filed prior to the closing time.  4 C.F.R.  21.2(a)(1) 
(1995); Engelhard Corp., B-237824, Mar. 23, 1990, 90-1 CPD  324.

The RFP stated that this was an urgent procurement and required 
deliveries to start 9 months after award.  In addition, in response to 
a pre-closing date request from Marc that the solicitation be amended 
to allow greater lead time before the start of delivery, the Air Force 
informed Marc that the schedule was

     "driven by the urgent need to correct R&M [reliability and 
     maintenance] deficiencies and relieve critical Block 40/42 
     mission readiness impacts.  A delay of this acquisition and 
     purchase of additional spare parts to sustain the present system 
     would further degrade the already critical support posture of the 
     Block 40/42 aircraft and result in additional unnecessary costs 
     to the [Air Force]."

Thus, Marc knew prior to submitting its proposal that the agency 
considered the requirement for brake assemblies to be urgent as a 
result of the "already critical support posture."  Marc also knew the 
impact that the agency's position would have on its ability to compete 
since, in a May 22 letter to the Air Force, Marc stated that the RFP 
qualification requirement "limits the competition to only two possible 
sources.  Anyone who does not have an existing brake on the aircraft 
cannot meet the qualification requirements."  

Similarly, Marc's protest that BFG has an unfair competitive advantage 
under this RFP was premised on the June 10, 1994, CBD announcement.  
Indeed, in its May 22 questions concerning the draft RFP, Marc argued 
"any contractor that can meet [the RFP qualification requirements] and 
also meet the required delivery schedule must have been given advance 
procurement information on the requirements of the [statement of 
work]."

Therefore, Marc's protests of the urgency of the procurement and of 
BFG's asserted unfair competitive advantage in light of the 
qualification requirement are untimely, inasmuch as they were clear to 
Marc before it submitted its proposal.[4]  4 C.F.R.  21.2(a)(1);  
Engelhard Corp., supra.

In its comments on the agency report, for the first time, Marc argued 
that the Air Force failed to comply with regulatory requirements to 
justify the qualification requirements and to give detailed public 
notice of those requirements.  This issue also is untimely; the 
qualification requirements were set forth in the RFP, if Marc had any 
concerns about the justification for those requirements or about 
appropriate notice of those requirements, it should have protested 
prior to the closing date for receipt of proposals.  4 C.F.R.  
21.2(a)(1).

Also for the first time, in its comments, Marc argued that the Air 
Force improperly allowed BFG to conduct service testing of its 
products--an opportunity not offered to Marc and other prospective 
competitors.  However, the Air Force's report in response to the 
protest stated that BFG had completed a field service evaluation of 
its assemblies.  Marc received that report on October 6, yet did not 
raise this issue until its October 31 comments.  This new and 
independent allegation is untimely since it was raised more than 10 
days after the protester received the agency report, which placed the 
protester on notice of this ground for protest.[5]  See Coulter Corp., 
et al., B-258713; B-258714, Feb. 13, 1995, 95-1 CPD  70. 

The protest is dismissed in part and denied in part.

Comptroller General
of the United States

1. We do not agree with Marc's contention that by requesting a 
definitized milestone schedule, the agency improperly applied to 
Marc's proposal an evaluation criterion that was not set forth in the 
RFP.  The request for a schedule did not amount to the application of 
an unannounced evaluation factor; the purpose of the schedule was 
simply for determining whether Marc could become qualified in time to 
be considered for award.

2. Marc also challenges the agency's decision, as stated in the August 
21 letter, to reject Marc's proposal as a design, developmental effort 
since, as Marc notes, while the RFP stated that it "does not direct 
nor fund design and development of new wheel and brake systems," the 
RFP nonetheless did not state that a design, developmental effort 
would be unacceptable.  We see no reason to consider this contention 
since we have concluded that the agency reasonably rejected Marc's 
proposal because the firm could not qualify in time for award.

3. According to Marc, "[i]t is evident from the content of this 
official notice that [BFG] had been provided advance technical and 
procurement parameters which allowed them the opportunity to design, 
produce, and perform the necessary qualification tests for an improved 
F-16 Block 40/42 C/D aircraft wheel and brake to replace the system 
currently owned and operated by the Air Force."

4. We note that another protester timely protested BFG's asserted 
unfair competitive advantage prior to the closing date.  Aircraft 
Braking Sys. Corp., B-261968, Nov. 16, 1995, 95-2 CPD  224 (denying 
the protest).

5. Although the protester received an extension of time for filing its 
comments, such an extension does not waive the timeliness requirements 
of our Bid Protest Regulations.  CH2M Hill Southeast, Inc., B-244707; 
B-244707.2, Oct. 31, 1991, 91-2 CPD  413.