BNUMBER:  B-271869
DATE:  July 30, 1996
TITLE:  Heart of Dixie Machine & Fabrication Company, Inc.

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Matter of:Heart of Dixie Machine & Fabrication Company, Inc.

File:     B-271869

Date:July 30, 1996

John T. Jozwick, Esq., for the protester.
Robert E. Young, Esq., Department of the Navy, for the agency.
Behn Miller, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protest challenging award under solicitation for flexor 
refurbishing services on the basis that the awardee did not, prior to 
award, demonstrate its compliance with a solicitation requirement for 
manufacturer testing and certification of refurbishing component's 
physical characteristics is denied since by its terms, this 
requirement was a performance requirement, not a precondition to 
award.

2.  Protest contending that solicitation failed to apprise offerors 
that award could be made on the basis of initial proposals is denied 
since solicitation included a reference to a Federal Acquisition 
Regulation (FAR) provision that contemplated this possibility; to the 
extent the protester challenges the agency's use of the predecessor 
version of the current FAR provision, the protest is untimely as this 
was evident from the face of the solicitation but was not challenged 
until after the solicitation closing time.

3.  Post-closing time protest challenging agency's failure to evaluate 
offerors' past performance is dismissed as untimely since the 
solicitation included no reference to evaluation of past performance, 
and thus offerors clearly were on notice from the face of the 
solicitation that past performance was not intended to be an 
evaluation factor.

DECISION

Heart of Dixie Machine & Fabrication Company, Inc. (Dixie) protests 
the award of a contract to Alabama Coastal Repair Company, Inc. under 
request for proposals (RFP) No. N62604-96-R-7550, issued by the 
Department of the Navy for flexor refurbishing services at the Naval 
Construction Battalion Center, Gulfport, Mississippi.  Dixie contends 
that the award to Alabama is improper because the awardee failed to 
comply with one of the solicitation's certification requirements.  
Dixie also maintains that the agency improperly made contract award on 
the basis of initial proposals, and that the agency failed to consider 
offerors' past performance in its evaluation of proposals.

We deny the protest.

BACKGROUND

The RFP was issued as a small business set-aside on January 19, 1996, 
and contemplated the award of a fixed-price contract to the offeror 
whose proposed price and delivery terms presented the most 
advantageous offer for the refurbishment of up to 141 flexors, which 
are steel/rubber devices used as buffers between barges or pontoons.  
Of significance to this protest, the RFP required offerors to 
refurbish the flexors with an outer cast rubber body comprised in part 
of a polyurethane material that "shall be tested and certified to 
meet" six physical properties identified in the RFP.

For their proposals, offerors were to complete and submit the RFP's 
1-page pricing schedule, along with several standard Federal 
Acquisition Regulation (FAR) certifications and representations (e.g., 
FAR  sec.  52.203-8, the Certificate of Procurement Integrity) which were 
set forth at section K of the RFP.  The RFP also provided that the 
successful awardee would be required to produce an initial refurbished 
flexor unit for inspection by the agency.

By the March 8 closing date, four proposals--including those submitted 
by Dixie and Alabama--were received.  By correspondence dated March 13 
and March 15, the contracting officer asked both Dixie and Alabama to 
submit a specification sheet indicating the manufacturer name and 
product number of the polyurethane each firm intended to use for the 
refurbishment work; the purpose of this inquiry was to verify each 
offeror's ability to provide an acceptable polyurethane compound since 
the originally specified brand name product had been deleted from the 
solicitation due to its unavailability.  After several rounds of 
correspondence verifying each offeror's selected polyurethane and 
related manufacturer data, the agency made contract award on April 17 
to Alabama as the offeror proposing the lowest-priced, technically 
acceptable--and therefore, most advantageous--offer.

On April 25, Dixie filed this protest.

DISCUSSION

As noted above, as part of the refurbishing effort, offerors were to 
provide a replacement outer cast rubber body using a polyurethane 
material that complied with six physical properties listed in the cast 
rubber body specification.[1]  In this regard, the RFP also stated 
that "[t]he contractor shall provide material certification from a 
testing laboratory for the polyurethane materials that certifies that 
the material meets the [six] physical requirements stated in the 
contract and drawings."

In its protest, Dixie contends that Alabama's proposal did not offer 
to use a certified polyurethane material which complied with each of 
the six required physical characteristics listed above.  As a result, 
Dixie maintains, Alabama's proposal should have been rejected by the 
Navy as technically unacceptable.

Contrary to Dixie's assertions, the solicitation did not impose a 
polyurethane certification requirement that had to be satisfied prior 
to award--nowhere did the solicitation specifically direct offerors to 
address compliance with the polyurethane certification in their 
proposals.  See Honolulu Marine, Inc., B-248380, Aug. 6, 1992, 92-2 
CPD  para.  87.  Moreover, the solicitation did not require offerors to 
submit certification evidence of the polyurethane material's physical 
requirements, but instead required only the "contractor" to provide 
such certification.  The use of the term "contractor" generally 
indicates that the certification is a general performance requirement 
to be addressed by the successful awardee, post-award.  See Motorola 
Communications and Elecs., Inc., B-225613, Jan. 27, 1987, 87-1 CPD  para.  
91.

This  interpretation of the specification as a general contract 
performance requirement is supported by the limited circumstances 
under which testing and certification of the polyurethane material's 
physical characteristics can be obtained.  The record shows that a 
polyurethane material cannot be tested or certified for compliance 
with the six physical characteristics listed in the solicitation until 
after it has been mixed with other components, poured into a body 
cast, and cured as part of the flexor refurbishment process.  That is, 
without being processed as part of the refurbishment chemical process, 
the polyurethane component itself is incapable of meeting any of the 
six general physical requirements listed in the RFP.  In this regard, 
the Navy reports that in each of the prior flexor refurbishment 
procurements--including two contracts that were awarded to Dixie--no 
testing or certification results of the polyurethane were provided 
until after award, when the successful awardee began contract 
performance.

Under these circumstances, since the RFP did not specifically direct 
offerors to provide any polyurethane certification before award, and 
since the record shows that no testing can occur until after the 
commencement of contract performance, we conclude that the 
certification specification at issue here is a contract performance 
requirement that does not have to be satisfied prior to award.

Dixie next contends that the agency improperly awarded the contract to 
Alabama on the basis of initial proposals, since the RFP failed to 
apprise offerors of this  possibility.  We find this contention 
without merit since at page 49 of the RFP, the agency incorporated by 
reference FAR  sec.  52.215-16, "Contract Award, Alternate III," which 
states that "[t]he [g]overnment intends to evaluate proposals and 
award a contract without discussions with offerors.  Therefore, each 
initial offer should contain the offeror's best terms from a cost or 
price and technical standpoint."  Thus, contrary to Dixie's 
contentions, the solicitation did in fact apprise offerors that the 
agency intended to award the contract based on initial proposals.[2]

To the extent Dixie challenges the agency's failure to evaluate 
offerors' past performance, its protest is 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 that closing time.  4 
C.F.R.  sec.  21.2(a)(1) (1996).  In this case, it was apparent from the 
face of the RFP that past performance was not to be considered under 
any aspect of the agency's proposal evaluation; consequently, because 
the RFP did not provide for consideration of offerors' past 
performance, the protester knew or should have known--well before the 
March 8 closing date--that the agency would not factor offerors' past 
performance into its evaluation.  See AAI ACL Technologies, Inc., 
B-258679.4, Nov. 28, 1995, 95-2 CPD  para.  243.  Since Dixie did not 
challenge the agency's failure to consider past performance prior to 
the solicitation closing date, this ground of protest is untimely.

The protest is denied.

Comptroller General
of the United States

1. The six properties are tensile strength; ultimate elongation; 
hardness; tear resistance; volume change in distilled water after 504 
hours at 158 degrees Fahrenheit; and change in hardness after 168 
hours at 212 degrees Fahrenheit.

2. Effective October 1, 1995, FAR  sec.  52.215-16, Alternate III was 
renumbered as FAR  sec.  52.215-16, Alternate II.  To the extent the 
protester challenges the agency's failure to use the current version 
of  this provision, its protest is untimely as this defect was 
apparent from the face of the RFP, but was not challenged prior to the 
March 8 closing time.  See 4 C.F.R.  sec.  21.2(a)(1) (1996); ADT Sec. 
Sys., Inc., B-249932.2, 
Feb. 4, 1993, 93-1 CPD  para.  100.