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.