BNUMBER:  B-261968
DATE:  November 16, 1995
TITLE:  Aircraft Braking Systems Corporation

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Matter of:Aircraft Braking Systems Corporation

File:     B-261968

Date:     November 16, 1995

Bruce R. DeYoung, Esq., for the protester.
Albert C. Ruehmann III, Esq., for BF Goodrich Aerospace, an interested 
party.
Richard P. Castiglia, Jr., Esq., and Curtis Elton, Esq., Department of 
the Air Force, for the agency.
Paula A. Williams, Esq., John Van Schaik, Esq., and Michael R. Golden, 
Esq., Office of the General Counsel, GAO, participated in the 
preparation of the decision.

DIGEST

Protest that agency denied protester reasonable opportunity to compete 
because the time allowed to qualify its wheel and brake assembly was 
insufficient is denied where the record establishes that the protester 
had as much time as its competitor to qualify its assembly prior to 
the issuance of the instant solicitation and the agency reasonably 
determined that it could not delay the procurement until the protester 
obtained source approval.

DECISION

Aircraft Braking Systems Corporation (ABSC) protests any award under 
request for proposals (RFP) No. F42630-95-R-22041, issued by the 
Department of the Air Force to acquire an improved wheel and brake 
assembly for certain F-16 aircraft to replace those supplied by ABSC 
under a prior contract.  ABSC primarily argues that a solicitation 
requirement for radial tire compatibility exceeds the requirements of  
the original equipment manufacturer's (OEM) design specifications, is 
unduly restrictive, and impermissibly favors its competitor, BF 
Goodrich Aerospace (BFG).

We deny the protest.

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 and OEM of 
the F-16 fleet is General Dynamics Corporation, Fort Worth Division.  
The OEM equipped the block 40/42 aircraft with a wheel and brake 
assembly manufactured by ABSC, and the block 50/52 aircraft with a 
wheel and brake assembly manufactured by BFG.  The ABSC 40/42 assembly 
and the BFG 50/52 assembly were each qualified to the same OEM 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.

In 1991, BFG sought source approval for its wheel and brake assembly 
to be used on the block 40/42 aircraft.  The Air Force performed a 
2-year field service evaluation (FSE) by installing the BFG assembly 
on a limited number of block 40/42 aircraft.  The FSE established that 
BFG's assembly was fully interchangeable with the ABSC 40/42 assembly, 
and has an expected life of 767 landings, compared to the ABSC 
assembly which has an expected life of 250 landings.  The BFG assembly 
was approved for use on the block 40/42 aircraft in December 1993.

Meanwhile, the agency states, since being put into operational use, 
ABSC's F-16 block 40/42 wheel and brake assembly has not met the 
expected performance standards.  Specifically, field use and 
performance tests of the ABSC assembly demonstrated that the brakes 
were averaging only 250 landings before replacement of carbon heat 
stacks was required.  This performance average was contrary to the 
design specification requirement that the brake life "shall be at 
least 500 aircraft brake usage sequences (i.e., landings)" with a 
design goal of "1000 aircraft brake usage sequences."  Other 
performance problems with the ABSC assembly were identified as severe 
wheel corrosion, inadequate heat shielding, extensive torque cracking, 
deformed rotor channels, inadequate brake heat stacks, and locked 
brakes.

In 1990 and 1991, the Air Force experienced severe reliability and 
maintenance  problems with the 40/42 fleet because the service life of 
the ABSC assembly continued to be shorter than expected.  This gave 
rise to degraded aircraft support in the form of depleted inventory 
and continuous back orders.  The agency incurred excessive manpower 
and replacement costs, as it frequently had to ask ABSC to accelerate 
delivery of replenishment spares to ensure continued aircraft support.  
ABSC did accelerate delivery of some wheel components but was not able 
to improve delivery of the more urgent brake parts.  Consequently, the 
wheel and brake were placed on the agency's critical item list in 
December 1993, and the brake heat stack was added in December 1994. 

Given the critical shortage of 40/42 assembly spares and the 
reliability and maintenance problems associated with the ABSC 
assembly, in January 1994, the Air Force determined 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.  
A life-cycle cost (LCC) analysis performed by the agency concluded 
that purchase of an improved, upgraded 40/42 assembly was both 
technically feasible and cost effective as the benefit of such an 
approach would be realized through the end of the  system life.  On 
June 7, 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.

In August 1994, ABSC met with procurement officials regarding its 
40/42 assembly.  At that time, ABSC representatives acknowledged that 
certain problems existed in its assembly and proposed improvements 
which it wanted the agency to adopt.  Along with these proposed 
improvements, ABSC offered a 10-year performance warranty for its 
wheel and brake frame and a 3-year, 825-landing index warranty for its 
brake.  ABSC further stated that it had developed a radial compatible 
wheel.  Thereafter, in September, ABSC submitted an unsolicited 
proposal as a follow-up to its presentation.  The Air Force returned 
this unsolicited proposal as it had decided to discontinue the sole 
source acquisition and anticipated issuing a competitive solicitation. 

On January 6, 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.[1]  On April 
12, the Air Force synopsized its requirement in the CBD; that notice 
restated the additional qualification requirements previously 
identified in the January 6 synopsis, including the bias ply and 
radial ply tire requirement for the replacement wheel and brake 
system.  

The RFP was issued on June 16, and, as amended, established the 
closing date for receipt of proposals as July 31.  The RFP contained 
three clauses relevant to this protest.  Clause I-70, "Qualification 
Requirements," is the provision at Federal Acquisition Regulation 
(FAR)  52.209-1, and stated that the acquisition is subject to a 
qualification requirement and that contract award would not be delayed 
to give an offeror an opportunity to meet the standards specified for 
qualification.  Clause L-518, "Specified Standard for Qualification," 
as modified by clause L-140, stated that in addition to the OEM 
specification requirements as amended, the proposed replacement wheel 
and brake assembly must satisfy the additional qualification 
requirements set forth in the RFP statement of work as of the date of 
award.
ABSC objects that the requirement for radial tire compatibility 
precludes it from competing.  The protester points to clause I-70 and 
modified clause L-518 in the solicitation as support for its 
contention that the agency changed not only the OEM qualification 
requirements, but also the means of demonstrating qualification so as 
to limit the acquisition to BFG.  In this regard, ABSC states that it 
cannot obtain the material needed to produce a qualification article 
for testing in time for award.[2] 

The Air Force maintains that the qualification requirements do not 
favor BFG and that the agency provided a reasonable time frame for 
ABSC to qualify its assembly.  According to the agency, radial tire 
usage on the F-16 wheel assembly was an Air Force initiative which was 
conveyed to representatives from ABSC, BFG, and other tire 
manufacturers which met with Air Force representatives and the OEM on 
May 16, 1991.  This discussion was later confirmed by the OEM in a 
follow-up letter to the attendees dated June 12, 1991.  Since ABSC and 
BFG representatives participated at the May 16 meeting and 
subsequently received the OEM's June 12 follow-up letter, the Air 
Force maintains, both firms knew of the agency's desire for radial 
tire usage on the wheel assembly and had an equal opportunity to 
develop and qualify their wheel assemblies.  Only BFG sought and 
obtained source approval for its wheel assembly; consequently, the 
agency argues, ABSC's own lack of diligence is the reason why its 
assembly is not currently qualified for radial tire compatibility.  In 
any event, the agency reports that it will not delay award until ABSC 
obtains approval since it is in a critical supply position due, in 
large part, to the serious performance, operational readiness and 
pilot safety problems caused by ABSC's 40/42 assemblies.

Qualification requirements are government requirements for testing or 
other quality assurance demonstrations that must be completed before 
the award of a contract.  10 U.S.C.  2319(a) (1994); FAR  52.209-1.  
Among other things, agencies must provide an opportunity for 
qualification before award by publishing notice in the CBD and 
inserting the FAR  52.209-1 clause in the solicitation.  FAR  9.205 
and 9.206-2; see ABA Indus., Inc., B-250186, Jan. 13, 1993, 93-1 CPD  
38.

The agency's position is correct.  First, there is no requirement that 
an agency delay a procurement in order to provide a potential offeror 
an opportunity to demonstrate its ability to become approved.  10 
U.S.C.  2319(c)(5).  In this case, the Air Force has determined that 
it needs to make an immediate award because there is a critical 
shortage of 40/42 assemblies.  ABSC has presented no information or 
argument establishing that there in fact is no shortage of the 
assemblies.  Thus, there was nothing improper in the Air Force's 
decision not to delay the procurement while ABSC obtained source 
approval.  See Aircraft Instruments Co., B-233609, Mar. 6, 1989, 89-1 
CPD  241.

We also find nothing improper in the manner in which the Air Force 
applied the qualification requirements here.  Specifically, while ABSC 
complains that it lacked sufficient time to qualify its assembly to 
the radial tire compatibility requirement, the record shows that more 
than 3 years passed between the May 16, 1991, meeting with agency 
officials, the OEM, ABSC, and BFG regarding the use of radial tires on 
the wheel assembly and the solicitation's issuance on June 16, 1995.  
As stated previously, during this 3-year period, BFG sought and 
obtained qualification of its assembly, while ABSC did not.  ABSC has 
not explained, and the record does not show, why ABSC failed to 
diligently pursue qualification of its assembly to the radial tire 
compatibility requirement during this period.  Nor does the protester 
explain why it did not pursue approval of its proposed FSX 40/42 
assembly, which it claims is "fully qualified," after the agency 
synopsized its requirement (on January 6 and April 12), for a 
replacement system with a wheel design that can accommodate both bias 
and radial ply tires.  Contractors generally should seek qualification 
in advance and independent of any specific acquisition (as BFG did).  
ABSC's failure to do so was the direct cause of its failure to obtain 
source approval in time to compete for the current award.  See 
Texstar, Inc., B-239905, Oct. 9, 1990, 90-2 CPD  273; Radalab, Inc., 
B-225662.2, May 15, 1987, 87-1 CPD  519.  ABSC had the same 
qualification opportunity as its competitor, BFG, and the 
qualification requirement is not improperly restrictive just because 
the firm desires additional time to complete the qualification 
process.  Id.[3]

The protest is denied.

Comptroller General
of the United States

1. The protester submitted a second unsolicited proposal in February 
which was returned by the agency without action. 

2. In response to the RFP, ABSC submitted three proposals:  the two 
previously submitted unsolicited proposals which offered various 
"improvements" to the existing 40/42 assembly, and the third proposal 
for its proposed FSX assembly, which the protester states meets the 
additional requirements, including radial tire compatibility.  The two 
"improvement" proposals were rejected by the agency because they 
lacked technical data required for evaluation and qualification.  The 
third proposal, for the FSX assembly, was withdrawn by the protester 
on August 24, on the ground that there was insufficient time for the 
firm to retest to the additional qualification requirements.  

3. ABSC initially raised a number of related arguments concerning the 
decision to replace rather than retrofit the ABSC assembly.  For 
example, ABSC argued that the wheel and brake assembly for the 50/52 
fleet should be made a part of this replacement/retrofit procurement, 
and that in favoring the BFG assembly, the Air Force adversely 
affected ABSC's foreign military sales contracts.  These arguments are 
in large part untimely, see 4 C.F.R.   21.2(a)(1), or otherwise have 
no bearing on the propriety of the award.  In any case, ABSC abandoned 
the issues.  By letter dated September 18, 1995, the protester stated 
that it is "simply protesting the change in the qualification 
requirements which change prevented any supplier other than BFG the 
opportunity to qualify."  Similarly, in an October 4 response to the 
agency's supplemental memorandum of law, the protester reasserted that 
"[t]he specification/performance requirements were not contested, only 
the shortening of the time frame to show qualification so to preclude 
any BFG competitor from qualifying."