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.