BNUMBER:  B-270880; B-270880.2
DATE:  May 16, 1996
TITLE:  Valentec Systems, Inc.

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Matter of:Valentec Systems, Inc.

File:     B-270880; B-270880.2

Date:     May 16, 1996

Timothy B. Mills, Esq., Michael J. Schaengold, Esq., and Christy L. 
Gherlein, Esq., Patton, Boggs, L.L.P., for the protester.
Thomas J. Madden, Esq., John J. Pavlick, Jr., Esq., Fernand A. 
Lavallee, Esq.,
Carla D. Craft, Esq., and Paul A. Debolt, Esq., Venable, Baetjer, 
Howard & Civiletti, for Lockheed Martin Ordnance Systems, an 
intervenor.
Bradley J. Crosson, Esq., and Jeffrey I. Kessler, Esq., Department of 
the Army, for the agency.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protest that contracting agency improperly allowed a directed 
source subcontractor that was also competing as a prime contractor to 
obtain an unfair competitive advantage is denied where the record 
shows that the contracting agency met its responsibility in such 
situations to ensure that all offerors are competing on an equal 
basis, and where any prejudice that the protester may have suffered 
was a result of its decision to ignore the solicitation's explicit 
instructions for preparing its price. 

2.  Contracting agency was not required to conduct a cost analysis of 
offerors' proposals even though offerors were required to submit cost 
and pricing data where the contracting officer reasonably determined 
that there was adequate price competition, and where the solicitation 
specifically advised that award of the fixed-price contract would be 
on a "price-only" basis, with the only cost analysis to occur after 
award, pursuant to a reopener provision.
3.  Protest that the contracting agency and the directed source 
subcontractor knew that the solicitation's surrogate price for the 
directed subcontract was unreasonably high is dismissed as untimely 
where the protester was provided information prior to submitting its 
best and final offer that triggered its duty to raise this issue at 
that time. 

DECISION

Valentec Systems, Inc. protests the award of a contract to Lockheed 
Martin Ordnance Systems (LMOS) under request for proposals (RFP) No. 
DAAA09-95-R-0100, issued by the Department of the Army for the 
production of 120mm high-explosive cartridge M933 mortar rounds.  
Valentec primarily argues that the Army improperly allowed LMOS to 
obtain an unfair competitive advantage in this procurement.   

We deny the protests in part and dismiss them in part.

The RFP, issued as a letter solicitation on June 29, 1995, used the 
terms and conditions, with significant modifications, of a previously 
issued solicitation that included requirements for these rounds.  
Pursuant to 10 U.S.C.  sec.  2304(c)(1) (1994), the competition was 
restricted to Martin Marietta Ordnance Systems and Valentec, both of 
which have previously produced these rounds.[1]  The solicitation 
anticipated award of a firm, fixed-price modification to either of the 
contracts currently held by these firms.

Award would be made "on price evaluation only" to the lowest-priced 
responsive and responsible offeror.  To protect the Army's base of 
critical producers, the RFP provided that the load, assemble, and pack 
(LAP) of the cartridge would be accomplished by LMOS, the operator of 
the Milan Army Ammunition Plant.  Hence, LMOS would perform the LAP 
effort as the prime contractor if it were the awardee, or as 
Valentec's directed subcontractor if Valentec were the awardee.  To 
eliminate any possible competitive advantage that LMOS might have over 
Valentec as a result of its status as a directed subcontractor and 
operator of the plant, the RFP included a surrogate pricing clause for 
the LAP effort.  Pursuant to this clause, offerors were to propose two 
sets of pricing.  

First, each offeror was to construct a "proposed/offered" price 
utilizing a government-provided surrogate price for the LAP effort.  
Offerors were to support this price with cost and pricing data, which 
would be used to establish the costs and rates which constituted the 
baseline portion of the price--all elements of the price save the 
surrogate-priced directed subcontract.  The proposed/offered price was 
the price that would be evaluated for purposes of award.  

Second, each offeror was to submit a "not-to-exceed (NTE)" price 
utilizing an LMOS-provided NTE LAP price which was fully supported on 
a standard form (SF) 1411.  This NTE LAP price would be used to 
determine the contract award price by substituting it for the 
surrogate LAP price in the offeror's proposed/offered pricing model.  
No other element of the proposed/offered price would be revised--the 
price would contain the identical overhead, general and administrative 
(G&A), cost of money, and profit rates, and the identical baseline 
proposal structure as used in the proposed/offered price.  

After award, pursuant to the surrogate pricing clause's reopener 
provision, the prime contractor would negotiate the price of the 
directed LAP subcontract and submit a proposal for downward adjustment 
only, substituting the negotiated LAP price for the NTE LAP price in 
its pricing model.[2]  Again, no other element of the proposed/offered 
price would be revised.  At this point, the government would perform a 
cost analysis of the proposed subcontract price and conduct price 
negotiations with the prime contractor.  These negotiations would 
result in the establishment of the final contract price.

Section M-2, "Special Standards of Responsibility," stated that an 
offeror's responsibility would be determined, in part, on the basis of 
three "special standards of responsibility," discussed in further 
detail below.  

Amendment No. 0002, issued August 2, provided both offerors with the 
surrogate LAP price of $117.  Prior to submitting initial proposals, 
LMOS provided Valentec with its NTE LAP subcontract pricing, which was 
higher than the surrogate price.  Both Valentec and LMOS submitted 
initial proposals to the Army on August 29.  After reviewing the 
proposals, the Army conducted discussions with both offerors and 
requested, among other things, the submission of range pricing in 
their best and final offers (BAFO).  LMOS provided Valentec with its 
revised NTE LAP subcontract pricing on December 11.  That pricing was 
significantly lower than both its previous NTE LAP subcontract price 
and the surrogate price.  Both Valentec and LMOS submitted BAFOs to 
the Army on December 12.  

The contracting officer's price analysis of the two offers showed that 
LMOS' proposed/offered price was the lowest received, and that there 
had been adequate price competition.  After LMOS was determined to be 
responsible, the Army awarded the firm the contract on December 22.  
Valentec filed its initial protest following its debriefing, and its 
supplemental protest following its receipt of the initial agency 
report.

DISCUSSION

Valentec primarily argues that the Army improperly allowed LMOS to 
obtain an unfair competitive advantage by providing Valentec with NTE 
LAP subcontract pricing that was not the same as the NTE LAP prime 
contract pricing that LMOS provided to the Army.  Valentec contends 
that the divergence in price is due to the fact that LMOS provided the 
firm with "false" and "materially overstated" SF 1411s, and that the 
Army should have been on notice of this impropriety.

When an agency requires contractors to use directed source 
subcontractors, it must ensure that all offerors are competing on an 
equal basis.  Engineered Sys., Inc., B-184098, Mar. 2, 1976, 76-1 CPD  para.  
144.  In recognition of this requirement, the RFP included the 
surrogate pricing clause.  Offerors were required to construct their 
proposed/offered pricing model utilizing this government-provided 
surrogate price for the LAP effort.  The offeror submitting the lowest 
proposed/offered price would be awarded the contract.  Thus, both 
Valentec and LMOS were required to construct the only price that 
mattered in this evaluation--including the baseline portion of the 
price--under the assumption that the LAP effort component of that 
price would be $117. 

We do not agree with Valentec that the Army's duty to level the 
competitive playing field extended to ensuring that the NTE LAP 
subcontract price that LMOS provided to Valentec was identical to the 
NTE LAP prime contract price that LMOS provided to the Army.  There is 
no such requirement; indeed, if these prices were identical there 
would be no need for the surrogate price.  The protester's 
interpretation of the provision that LMOS submit its "best estimate" 
of the LAP cost to both Valentec and the Army as a requirement that 
these "best estimates" be identical ignores the surrogate pricing 
mechanism, as well as the obvious fact, discussed further below, that 
the best estimate for a subcontract price will not be the same as the 
best estimate for a prime contract.  Moreover, the RFP explicitly 
excluded the NTE LAP price from playing any role in this 
competition--its sole use is to determine the contract award price, 
after award.      

Valentec's position that the NTE LAP prices are required to be equal 
actually springs from the fact that the firm failed to follow the 
RFP's explicit instructions.  Valentec asserts that it made its 
pricing decisions, such as where to set its amounts for profit, G&A , 
and labor, on the basis of the NTE LAP subcontract price it received 
from LMOS--it tied its proposed/offered price to the LMOS' NTE LAP 
subcontract price.  However, as noted above, the RFP explicitly 
required offerors to construct the proposed/offered price using the 
surrogate price--not the NTE LAP price.  Hence, Valentec's decision to 
rely upon LMOS' NTE LAP subcontract price to structure its 
proposed/offered price was at its peril.  A contracting agency cannot 
be expected to protect an offeror from the consequences of its refusal 
to comply with an RFP's unambiguous instructions.   

In any event, there is no evidence that the divergence in price 
between LMOS' NTE LAP subcontract price to Valentec and its NTE LAP 
prime contract price to the Army is attributable to any impropriety.  
As LMOS explains, the considerations involved in pricing a subcontract 
differ from those involved in pricing a component of a prime contract, 
resulting in different costs and, hence, a different price.  The 
subcontract price to Valentec reflects all of LMOS' costs, including 
fee/profit, G&A, and restructuring costs, but the prime contract to 
the Army reflects an internal effort and does not include these costs.  
LMOS explains that the difference in price is also attributable to 
different competitive strategies.  For example, LMOS' NTE LAP 
subcontract price to Valentec was based upon the scrap rate and number 
of production lots listed in Valentec's request for quotations (RFQ).  
LMOS' NTE LAP prime contract to the Army used a lower scrap rate and 
number of production lots which lowered the costs and, as a result, 
the price.[3]  We see nothing unreasonable with this explanation.
  
Valentec next argues that the Army improperly failed to conduct a cost 
analysis of the proposals in view of the fact that the solicitation 
required the submission of cost and pricing data.  

Where, as here, a fixed-price contract is to be awarded and the agency 
concludes that adequate price competition has been obtained, the 
agency generally is not obliged to perform a cost analysis on the 
proposals even if offerors submit cost and pricing data.  Research 
Management Corp., 69 Comp. Gen. 368 (1990), 90-1 CPD  para.  352; Northern 
Virginia Serv. Corp., B-258036.2; B-258036.3, Jan. 23, 1995, 95-1 CPD  para.  
36.  Moreover, the RFP specifically advised offerors that award would 
be based "on price evaluation only," and that the only proposals in 
contention would be submitted by two experienced providers of these 
items.  The only RFP reference to a cost analysis is in the context of 
the reopener provision, under which the Army would conduct a cost 
analysis of the subcontract prices after award of the contract, during 
negotiations for the final price.  Under the circumstances, we see no 
basis to conclude that the agency was required to conduct a cost 
analysis here.  Id.

Valentec also argues that both the Army and LMOS knew that the 
surrogate price was unreasonably high, but improperly failed to inform 
Valentec or adjust that price.  Among other bases for this allegation, 
Valentec asserts that the difference in price between LMOS' NTE LAP 
price and the surrogate LAP price was sufficient to have put the Army 
on notice that the surrogate price was unreasonably high.

Protests based upon alleged improprieties in a solicitation--such as 
the allegedly erroneous surrogate price term here--which are apparent 
prior to the time set for submission of BAFOs, must be filed prior to 
that time.  4 C.F.R.  sec.  21.2(a)(1) (1996); ASI Personnel Serv., Inc., 
B-258537.7, June 14, 1995, 95-2 CPD  para.  44.  LMOS provided Valentec with 
its NTE LAP subcontract pricing on December 11, the day before BAFOs 
were submitted.  These prices were significantly lower than the 
surrogate price.  If Valentec believed that such a price discrepancy 
showed that the surrogate price was unreasonably high, it should have 
protested on this basis before the time set for receipt of BAFOs.  See 
Astrosystems, Inc., B-260399.2, July 11, 1995, 95-2 CPD  para.  18.  
Notwithstanding anything the protester may have learned after award, 
the price discrepancy triggered its duty to seek further information 
regarding the substantiation of the surrogate price.  East Carolina 
Builders, B-243926, June 10, 1991, 91-1 CPD  para.  559; Horizon Trading 
Co., Inc.; Drexel Heritage Furnishings, Inc., B-231177; B-231177.2, 
July 26, 1988, 88-2 CPD  para.  86. 

Valentec finally argues that the Army failed to consider the RFP's 
"Special Standards of Responsibility."  As noted above, section M-2 of 
the RFP stated that an offeror's responsibility would be determined, 
in part, on the basis of three "special standards of responsibility":  
demonstrated competence in system ammunition manufacture, assembly, 
inspection and test; demonstrated competence to produce and inspect 
ammunition metal parts; and demonstrated knowledge in the 
implementation of a quality control plan in compliance with the 
technical data package and specification.  

The Army disputes the protester's position that these standards are 
definitive responsibility criteria subject to our review.  See 4 
C.F.R.  sec.  21.5(c) (1996) (an affirmative determination of 
responsibility will not be reviewed absent a showing that, among other 
things, definitive responsibility criteria were not met).  However, 
even assuming they are, our review is limited to ascertaining whether 
the contracting officer had sufficient evidence of compliance to 
reasonably conclude that the criteria had been met.  D.H. Kim Enters., 
Inc., B-255124, Feb. 8, 1994, 94-1 CPD  para.  86.  In her responsibility 
determination, the contracting officer states that she reviewed 
various aspects of the procurement and concluded that LMOS had a 
satisfactory record of performance and the necessary organization, 
experience, operational controls, and technical skills to perform the 
work required.  In a statement to this Office, the contracting officer 
explains that her determination included a consideration of the fact 
that, in a previous procurement for these rounds, LMOS demonstrated 
its competence in the areas covered by the standards.  Thus the record 
does not support Valentec's contention that the Army failed to apply 
the "Special Standards of Responsibility" in making its award 
decision.
We deny the protests.

Comptroller General
of the United States

1. Martin Marietta became LMOS after its merger with Lockheed 
Corporation.  LMOS' M933 contract is known as "Buy III"; Valentec's 
M933 contract, with LMOS as a directed source subcontractor, is known 
as "Buy IV"; and this procurement is known as "Buy IVa." 

2. Due to the competitive position of the parties, the government, not 
Valentec, would negotiate the LAP price with LMOS.

3. While Valentec may not have intended its RFQ to bind LMOS to the 
scrap rate and number of production lots it listed, we cannot conclude 
from the contemporaneous record that LMOS should have been on notice 
of Valentec's intention.