BNUMBER: B-262139
DATE: December 1, 1995
TITLE: Digicomp Research Corporation
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Matter of:Digicomp Research Corporation
File: B-262139
Date: December 1, 1995
Dean M. Dilley, Esq., Patton Boggs, for the protester.
George Kinsey, Esq., Federal Aviation Administration, 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 refusal of the Federal Aviation Administration (FAA)
to allow protester to compete under solicitation for award of a
contract for standard terminal automation system is dismissed as
untimely since protest was filed more than 10 working days after
February 22, 1995, announcement in the Commerce Business Daily, which
placed protester on constructive notice that it would not be permitted
to compete if it did not certify that it met qualification criteria by
March 3.
DECISION
Digicomp Research Corporation protests the refusal of the Federal
Aviation Administration (FAA) to allow Digicomp to compete under a
solicitation for the standard terminal automation replacement system
(STARS), which is to replace existing air traffic control systems at
approximately 200 FAA and Department of Defense (DOD) operational
terminal facilities.
We dismiss the protest.
The precursor to STARS was the Advanced Automation System (AAS)
program, which was envisioned as an upgrade of the 1970s era air
traffic control technology. The agency had awarded a production
contract for AAS in July 1988 and, following performance difficulties,
that contract was partially terminated in 1993. The FAA reports that
STARS is a one-time acquisition to "make up for lost time" by
procuring some of the terminated portions of AAS using a "limited
competition" acquisition strategy.
The FAA published a series of notices in the Commerce Business Daily
(CBD) concerning STARS. The first notice, on September 6, 1994,
announced a market survey to obtain information on the capabilities
and availability of nondevelopmental terminal automation systems for
air traffic control sites. The second CBD notice, on December 13,
1994, announced a meeting to provide information to potential sources
on the planned approach for the STARS acquisition and announced that
the agency planned to release a draft request for proposals (RFP)
during the third quarter of 1995 and a formal RFP during the fourth
quarter of 1995.
The third CBD notice, published on February 22, 1995, stated that FAA
"has limited the competition for the [STARS] to vendors who have
developed and fielded operational terminal automated air traffic
control systems somewhere in the world." The notice also stated
"vendors will be prequalified through qualification criteria published
in this announcement" and that the intent of the prequalification
process is "to assure FAA that qualifying vendors are truly capable of
successfully performing the STARS acquisition." In addition, the
notice stated "[o]nce the prequalification criteria have been
finalized, vendors will be required to certify in writing that they
meet the criteria" and that "[a]s a means to assure fairness to
potential STARS offerors that meet the prequalification criteria, any
offeror found not to have met prequalification criteria will be
disqualified from continuing in the STARS competition." Essentially,
the proposed prequalification criteria were (1) previous deployment of
an air traffic control system which is operational and is being used
to separate aircraft; and (2) capability of performing software
engineering activities such as requirements analysis, design,
implementation, integration, test, distribution, installation,
enhancement, correction, upgrade or maintenance of software. Finally,
the notice required submission of responses to the STARS
prequalification criteria no later than March 3.
The fourth CBD announcement, published March 21, repeated the
prequalification criteria, and again stated that vendors were required
to certify in writing that they met the stated criteria and that any
offeror found not to have met the criteria would be disqualified from
continuing in the STARS competition. This announcement also extended
the deadline for submission of the required certification to March 31.
Eleven vendors, not including Digicomp, submitted minimum
qualification packages on or before March 31. Digicomp first
contacted the FAA by telephone on April 5, and again by facsimile on
April 7, asking if the agency was still accepting minimum
qualification packages. By letter dated April 28, the FAA responded
to Digicomp as follows:
"[i]n fairness to those companies that timely submitted the
materials requested in the March 21, 1995 STARS minimum
qualification criteria, it has been determined that it would be
improper to accept minimum qualifications from Digicomp after the
required March 31, 1995 submission date. The STARS Program
Office wishes to remind Digicomp that there still exist some
opportunit[ies] for teaming arrangements with any vendor that has
met the STARS minimum qualifications. A list of these vendors
will be published via the CBD in the near future."
In a May 25 letter, Digicomp explained that it had missed the CBD
announcement of the STARS minimum qualification process because its
copy of the March 21 CBD, which Digicomp reviews in electronic format,
was "corrupted," and it was April 7 before the firm received a new
set.[1] Digicomp also asked the FAA to "reconsider Digicomp as a
potential vendor for the STARS program" and explained that it had
recently successfully deployed a system that qualifies it for the
STARS program. Digicomp listed an Air Force contract under which it
stated that the government had accepted the firm's system and listed
features of that system.
On June 7, the agency finalized a justification for other than full
and open competition (JOTFOC) to justify limiting the STARS
competition to vendors that had been qualified through the STARS
qualification process. The JOTFOC stated that the STARS minimum
qualification process was being conducted under the authority provided
the FAA by 49 U.S.C.A. 40110(b)(2)(E) (West Supp. 1995), "in lieu of
the prequalification process promulgated by 41 U.S.C. 253c and FAR
[Federal Acquisition Regulation Subpart] 9.2." The JOTFOC stated that
the existing terminal radar approach control facilities are obsolete
and in need of replacement and that a July 6, 1989, GAO report,
entitled "Air Traffic Control: Computer Capacity Shortfalls May
Impair Flight Safety," GAO/IMTEC-89-63, criticized the FAA for failing
to promptly address these problems. The JOTFOC stated that, as a
result of the time and resources consumed by the AAS contract, the FAA
had a mandate to field a system as soon as possible and had an urgent
need to undertake a limited acquisition approach to STARS. The JOTFOC
stated that the agency would accomplish this goal by limiting the
acquisition to offerors that had fielded an operational automated air
traffic control system with basic functionality and had met other
minimum qualification criteria.
A fifth CBD announcement, published July 11, 1995, stated
"The [FAA] has completed the process of selecting eligible
vendors who through the STARS minimum qualification process, have
proven the capability to successfully fulfill the agency's
minimum needs. The STARS minimum qualification process was
conducted under the limited competition authority provided the
FAA by 49 U.S.C.[A] 40110(b)(2)(E), in lieu of the
prequalification process promulgated by 41 U.S.C. 253c and FAR
Subpart 9.2."
The announcement also listed seven vendors considered eligible to
participate in operational capability demonstrations, submit
proposals, and compete for award. Digicomp was not listed.
After additional correspondence between Digicomp and the FAA, in a
July 17 letter, Digicomp argued that the FAA could not refuse to
review an offer submitted by Digicomp simply because it was not
prequalified. Digicomp cited 41 U.S.C. 253c(c)(4) (1988), which
essentially states that a potential offeror may not be denied an
opportunity to submit and have considered a proposal in response to an
RFP solely because it has not been prequalified, and requested that
the FAA confirm it would provide Digicomp with the solicitation and
consider a proposal submitted by the firm. In its July 21 response,
the FAA referenced the statement in the July 11 CBD announcement to
the effect that the STARS minimum qualification process was conducted
under the limited competition authority provided by 49 U.S.C.A.
40110(b)(2)(E), "in lieu of the prequalification process promulgated
by 41 U.S.C. 253c." The letter also stated that Digicomp's
questions concerning 41 U.S.C. 253c "are no longer relevant to the
STARS acquisition process," and that Digicomp is not an eligible STARS
vendor and may not compete for the STARS contract.
On July 25, Digicomp protested to this Office challenging the
determination in the FAA's July 21 letter that Digicomp would not be
considered for award under the STARS acquisition. Essentially,
Digicomp's position is that the FAA's refusal to consider an offer
from Digicomp violates 41 U.S.C. 253c(c)(4), which provides
"A potential offeror may not be denied the opportunity to submit
and have considered an offer for a contract solely because the
potential offeror has not been identified as meeting a
qualification requirement, if the potential offeror can
demonstrate to the satisfaction of the contracting officer that
the potential offeror or its product meets the standards
established for qualification or can meet such standards before
the date specified for award of the contract."
Digicomp states that, although the FAA is relying on the conclusion of
its prequalification process as a legal basis for rejecting in advance
offers from firms that are not prequalified, this is precisely what 41
U.S.C. 253c(c)(4) is intended to prevent. Digicomp argues that 49
U.S.C.A. 40110(b)(2)(E) does not supersede the prequalification
limitations imposed by 41 U.S.C. 253c since, according to Digicomp,
the FAA's authority to use noncompetitive procedures is subject to 41
U.S.C. 253c, which provides that a civilian agency may not refuse to
consider offers from potential offerors solely because they were not
prequalified.
Digicomp acknowledges that an agency is not required to delay a
procurement in order to provide a potential offeror an opportunity to
become approved; nonetheless, the protester argues that there is no
evidence that such a delay would occur in this case. According to
Digicomp, when it filed its protest, the RFP had not yet been released
and award of a contract was not expected for many months. In
addition, Digicomp maintains that the accelerated timetable employed
by the FAA in the prequalification process shows that the agency can
make its prequalification decisions very quickly.
In response to the protest, as explained above, the FAA maintains that
it is conducting a limited competition among offerors that meet
minimum qualifications "under the limited competition authority
provided to the FAA by 49 U.S.C.[A.] 40110(b)(2)(E)." It is the
FAA's position that 41 U.S.C. 253c does not apply here. In relevant
part, 49 U.S.C.A. 40110(b)(2) reads as follow:
"the Administrator of the [FAA] . . . may--
(E) use procedures other than competitive procedures only when
the property or services needed by the Administrator of the [FAA]
are available from only one responsible source or only from a
limited number of responsible sources and no other type of
property or services will satisfy the needs of the
Administrator."
The FAA first argues that, as a matter of law, the FAA's "limited
competition" authority set forth in 49 U.S.C.A. 40110(b)(2)(E)
"takes precedence" over the prequalification authority set forth in 41
U.S.C. 253c and cited by Digicomp. According to the agency, the
language of 49 U.S.C.A. 40110(b)(2)(E), which applies only to FAA,
should control over 41 U.S.C. 253c, which applies to all civilian
agencies, since "[i]t is a fundamental tenet of statutory construction
that specific language takes precedence over general language."[2]
The FAA also argues that Digicomp's position would render meaningless
the "limited competition" authority of 49 U.S.C.A. 40110(b)(2)(E)
and that Digicomp's interpretation of the limited competition
authority granted the FAA would subvert "the deference accorded [the
FAA] in the administration of its own statutes."
FAA also argues that 41 U.S.C. 253c does not apply here because the
minimum qualification criteria spelled out in the CBD do not amount to
a "qualification requirement" as defined by and governed by that
statute. Also, according to the FAA, there are no plans for recurring
purchases, or a series of solicitations or contracts, and it is not
appropriate to apply prequalification requirements to the one-time
purchase of the STARS under a limited competition.
Contrary to the position taken by the FAA, it appears to us that the
only purpose of 49 U.S.C.A. 40110(b)(2)(E) was to grant to the FAA
the same authority as the Department of Defense (DOD), the Departments
of the Army, Navy, Air Force, the National Aeronautics and Space
Administration (NASA) and the Coast Guard under 10 U.S.C.
2304(c)(1)(1994). In this respect, as set forth above, 49 U.S.C.A.
40110(b)(2)(E) is virtually identical to 10 U.S.C. 2304(c)(1)
(1994), which grants to DOD, the Army, Navy, Air Force, NASA and the
Coast Guard the authority to
". . . use procedures other than competitive procedures only
when-
(1) the property or services needed by the agency are available
from only one responsible source or only from a limited number of
responsible sources and no other type of property or services
will satisfy the needs of the agency."
This conclusion--that the only purpose of 49 U.S.C.A. 40110(b)(2)(E)
was to grant to the FAA the same authority as contained in 10 U.S.C.
2304(c)(1)--is supported by the legislative history of 49 U.S.C.A.
40110(b)(2)(E). In this respect, previous to the enactment of 49
U.S.C.A. 40110(b)(2)(E), 49 U.S.C. app. 1344(g) stated that "[t]he
Administrator shall have the same authority as the Administrator would
have under section 2304(c)(1) of title 10, United States Code, if the
Federal Aviation Administration were listed as an agency under section
2303(a) of title 10, United States Code." Subsequently, 49 U.S.C.A.
40110(b)(2)(E) was enacted as part of Pub. L. No. 103-272. In a
report of the Committee on the Judiciary to accompany H.R. 1758, H.R.
Rep. No. 180, 103rd Cong., 1st Sess. 268, the Committee explained:
"Subsection [40110](b)(2)(E) is substituted for 49 [U.S.C.] App.
1344(g) to eliminate the cross-references to other laws and for
clarity and is based on the text of 10 [U.S.C.] 2304(c)(1)." Thus, we
view the FAA's authority to limit competition to a limited number of
sources under 49 U.S.C.A. 40110(b)(2)(E) as the same as that granted
to DOD, the Army, Navy, Air Force, NASA and the Coast Guard by 10
U.S.C. 2304(c)(1).
Since the purpose of 49 U.S.C.A. 40110(b)(2)(E) was to grant to the
FAA the same authority as contained in 10 U.S.C. 2304(c)(1), the FAA
would have authority to ignore 41 U.S.C. 253c only if the agencies
subject to 10 U.S.C. 2304(c)(1)--DOD, the Army, Navy, Air Force,
NASA and the Coast Guard--also have the authority to ignore the
virtually identical prequalification provisions set forth at 10 U.S.C.
2319 that apply to those agencies. This is not the case; the
provisions of 10 U.S.C. 2319 apply to DOD, the Army, Navy, Air
Force, NASA and the Coast Guard even when those agencies invoke the
authority of 10 U.S.C. 2304(c)(1) to conduct limited competitions.
See Service & Sales Inc., B-247673, June 29, 1992, 92-1 CPD 545;
Kitco Inc., B-241868, Mar. 1, 1991, 91-1 CPD 238; Marine Elec. Sys.,
B-253630, Sept. 15, 1993, 93-2 CPD 175. Moreover, nothing on the
face of 49 U.S.C.A. 40110(b)(2)(E) indicates an intention to permit
the FAA to ignore the requirements of 41 U.S.C. 253c concerning
prequalification requirements.[3]
While we view the FAA's interpretation of 49 U.S.C.A. 40110(b)(2)(E)
to be incorrect, we will not consider whether the FAA's refusal to
consider an offer from Digicomp was permissible because Digicomp's
protest is untimely. The February 22 CBD announcement stated that
minimum qualification certifications were due on March 3 and any
offeror not meeting the minimum criteria "will be disqualified from
continuing in the STARS competition." Although Digicomp apparently
did not read this announcement, publication of an announcement in the
CBD places prospective competitors on constructive notice of the
contents of that announcement. See L&L Oil Co., Inc., B-246560, Mar.
9, 1992, 92-1 CPD 270. Thus, the February 22 announcement placed
Digicomp constructively on notice that it would not be permitted to
compete for a STARS contract award if it did not file the appropriate
certification. Digicomp's first written submission to the FAA
concerning the qualification process was its April 7 facsimile in
which it submitted "a synopsis of Digicomp's qualification criteria"
and stated that a more detailed package would be submitted "provided
FAA is accepting qualification data beyond March 31, 1995."
Under the applicable Bid Protest Regulations, protests not based upon
alleged improprieties in a solicitation must be filed with this Office
or the contracting agency no later than 10 working days after the
protester knew, or should have known, of the basis for protest,
whichever is earlier. 4 C.F.R. 21.2(a)(2) (1995). Obviously, the
protest filed here in July does not meet this requirement. Moreover,
even if the April 7 facsimile could be considered a protest to the
agency--a point Digicomp does not assert--the protest would still be
untimely since April 7 is 28 working days after February 22, the date
of the CBD announcement which gave Digicomp constructive notice of its
basis for protest.[4]
Digicomp argues that nothing in the CBD notices provided any
indication that "the FAA would refuse to consider offers from
non-prequalified firms." This contention is contradicted by the
record; as explained above, both the February 22 and March 21 CBD
announcements stated that offerors not meeting the qualification
criteria "will be disqualified from continuing in the STARS
competition."[5]
Since the protest is untimely, we do not consider Digicomp's
allegation that the FAA should permit Digicomp to compete because
doing so would not delay the award.
The protest is dismissed.
Comptroller General
of the United States
1. Digicomp does not explain why it was apparently unaware of the
three previous CBD announcements, including the February 22 notice
which stated that FAA was limiting the STARS competition to vendors
who had previously developed and fielded operational terminal
automated air traffic control systems, that vendors were to be
prequalified through qualification criteria published in the
announcement, and that any offeror found not to have met
prequalification criteria would be disqualified from continuing in the
STARS competition.
2. The FAA also argues: "Given that the 'limited' competition
authority was created to address the specific situation of
'infrequent' purchases of 'critical' items, even on a sole-source
basis, it must be read as an exception to the general,
government-wide, 'prequalification' requirements."
3. The only difference between 49 U.S.C.A. 40110(b)(2)(E) and the
provision at 41 U.S.C. 253(c)(1), which also applies to the FAA, is
that the new provision permits the FAA to "use procedures other than
competitive procedures" when needed property or services "are
available from only one responsible source or from a limited number of
responsible sources," while 41 U.S.C. 253(c)(1) permits the use of
"other than competitive procedures" only when the needed property or
services "are available from only one responsible source." In other
words, the only apparent change in FAA's authority to use other than
competitive procedures is that the FAA now has authority, in
appropriate circumstances, to limit competition to multiple
responsible sources from which the needed property and services are
available, while previously the FAA had no explicit authority to
conduct a limited competition among multiple responsible sources, but
could only limit competition to a single responsible source.
4. Digicomp's protest also is untimely if timeliness is calculated
based on the fourth CBD announcement of March 21, which again stated
that any offeror not meeting the minimum criteria would be
disqualified from continuing in the STARS competition.
5. Moreover, Digicomp did not file a timely protest even after it was
given actual notice that it would not be permitted to compete for a
STARS contract. The FAA's April 28 letter stated: "it would be
improper to accept minimum qualifications from Digicomp after the
required March 31, 1995 submission date," and "there may still exist
some opportunity for teaming arrangements with any vendor that has met
the STARS minimum qualifications. A list of these vendors will be
published via the CBD in the near future." We think this letter was
sufficient to place a reasonable prospective offeror on notice that it
would not be permitted to compete for a STARS award as a prime
contractor. Nonetheless, Digicomp did not protest with this Office or
with the FAA within 10 working days of receipt of the April 28 letter.