BNUMBER:  B-272239; B-272239.2
DATE:  July 17, 1996
TITLE:  Recon Optical, Inc.; Lockheed-Martin Corporation,
Fairchild Systems

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Matter of:Recon Optical, Inc.; Lockheed-Martin Corporation, Fairchild 
          Systems

File:     B-272239; B-272239.2

Date:July 17, 1996

Jed L. Babbin, Esq., Thomas Earl Patton, Esq., and Lisa E. Stern, 
Esq., Tighe, Patton, Tabackman & Babbin, for Recon Optical, Inc., and 
Ronald K. Henry, Esq., and Mark A. Riordan, Esq., Kaye, Scholer, 
Fierman, Hays & Handler, for Lockheed-Martin Corporation, Fairchild 
Systems, the protesters.
Harriet J. Halper, Esq., Gregory L. Edlefsen, Esq., and Andrew C. 
Saunders, Esq., Department of the Navy, for the agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of 
the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

Multiple awardees, each receiving a research and development contract 
for the development and testing of its proposed innovative design for 
an airborne reconnaissance camera, are not interested parties to 
protest the awards to each other where the solicitation permits 
multiple awards and neither awardee's contract is affected by the 
award or failure to award a contract to the other.

DECISION

Recon Optical, Inc. and Lockheed-Martin Corporation, Fairchild Systems 
protest awards to each other under request for proposals (RFP) No. 
N00014-95-R-DB04, issued by the Department of the Navy, Naval Research 
Laboratory, for the development and testing of an electro-optical (EO) 
camera for airborne reconnaissance.

We dismiss the protests because the protesters are not interested 
parties.

The RFP, as initially issued, contemplated award of a 
cost-plus-fixed-fee contract.  Section M of the RFP established a best 
value evaluation basis with technical factors being more important 
than cost, and stated that:

     "Award will be made to that offeror whose proposal is most 
     advantageous to the Government, proposed cost and other factors 
     considered."

The RFP schedule requested proposed costs for four contract line items 
(two of which were for documentation and data which were not to be 
specifically priced) covering the development and testing of the 
camera in accordance with an attached statement of work (SOW).  The 
SOW stated:

     "This [SOW] addresses the development and testing of an 
     Ultra-High Resolution Digital Framing [EO] camera with on-chip 
     image motion compensation or on focal-plane equivalent.  . . .  
     This effort shall include an analysis of the camera 
     specifications based on performance requirements, the development 
     of a preliminary camera design, the development of a detailed 
     camera design, the fabrication of the camera, the testing and 
     delivery of the camera, and support for data collection and 
     analysis."

The SOW stated performance specifications for the camera, and also 
stated the requirements and time schedule for the development and 
testing of a prototype camera.  The RFP did not provide for future 
production of the camera beyond the prototype.

Only Recon Optical and Fairchild submitted proposals.  The Navy 
conducted discussions with these offerors.  Prior to requesting best 
and final offers (BAFO), the Navy issued amendment 0009 to the RFP on 
March 21, 1996, which provided for the possibility of an award of a 
cost reimbursement contract without fee and for a cost sharing 
contract.  The amendment also provided for multiple awards as follows:

     "The [g]overnment reserves the right to make more than one (1) 
     award at different contract values for the same [SOW] as a result 
     of this Solicitation."

The amendment provided offerors with an opportunity to revise their 
proposals as a result of this amendment.

The Navy requested and received BAFOs from both offerors.  Recon 
Optical proposed a cost reimbursement contract for $3,258,123 and 
Fairchild proposed a cost sharing contract with a cost to the 
government of $2,500,000.  After determining that both offerors' 
technical approaches, although different, were consistent with the 
RFP, the Navy awarded separate contracts to Recon Optical and 
Fairchild on May 21 and 22, respectively.  Both offerors requested and 
received debriefings, and these protests followed.

Both protesters essentially allege that the Navy's evaluation of 
proposals was defective or unreasonable, and that the other 
protester's BAFO is technically unacceptable under the stated 
evaluation scheme.[1]  Recon Optical also alleges that the agency did 
not properly determine in accordance with the RFP whether two awards 
or a single award represented the best value to the government.

Under the bid protest provisions of the Competition in Contracting Act 
of 1984, 31 U.S.C.  sec.  3551-3556 (1994), only an "interested party" may 
protest a federal procurement.  That is, a protester must be an actual 
or prospective offeror whose direct economic interest would be 
affected by the award of a contract or the failure to award a 
contract.  4 C.F.R.  sec.  21.0(a) (1996).  Determining whether a party is 
interested involves consideration of a variety of factors, including 
the nature of issues raised, the benefit of relief sought by the 
protester, and the party's status in relation to the procurement.  
Black Hills Refuse Serv., 67 Comp. Gen. 261 (1988), 88-1 CPD  para.  151.

Here, both protesters received awards based on the complete acceptance 
of their respective BAFOs.  Neither protester has credibly alleged 
that its contract would be reduced, increased, or otherwise affected 
by the other protester receiving or not receiving an award.  Nor has 
either protester credibly alleged that it otherwise suffered direct 
economic harm resulting from the agency's decision to award a contract 
to the other (e.g., an alternate proposal passed over in favor of the 
award to the other protester).[2]  The purpose of this RFP, as stated 
in the SOW, is to address the Navy's need for improved airborne 
reconnaissance through the research and development of an EO camera in 
accordance with the stated performance requirements.  Since amendment 
0009 stated that the agency could "make more than one award at 
different contract values for the same [SOW,]" offerors were 
reasonably apprised that the Navy would consider funding parallel 
development contracts which would result in the research and 
development of multiple camera designs.[3]  Each offeror submitted 
only one proposal for camera development and design under the SOW, and 
each offeror was awarded a contract to proceed with the development 
and design exactly as each had proposed to do in its respective BAFO.  
Since each protester here is a fully successful offeror under the RFP 
each would be unable to obtain any additional stake in this 
procurement even if its protest of the other award were sustained.  We 
therefore see no basis to conclude that either protester possesses the 
requisite direct economic interest necessary to maintain its protest.

While both protesters allege that they do have a direct economic 
interest in the protest because the contract awarded to the other 
protester essentially obligates funds which the agency would otherwise 
be able to apply to their own contract should the proposed costs of 
their respective proposal not be sufficient to cover the development 
and testing of the prototype camera, this type of speculative economic 
interest is not sufficiently direct to render the protesters 
interested parties.  See Travenol Laboratories, Inc., B-215739; 
B-216961, Jan. 29, 1985, 85-1 CPD  para.  114.  

The protests are dismissed.

Comptroller General
of the United States

1. To the extent that Recon Optical alleges that Fairchild's proposed 
approach infringes on Recon Optical's patents, the issue is not for 
consideration by our Office.  See Diversified Technologies; Almon A. 
Johnson, Inc., B-236035, Nov. 6, 1989, 89-2 CPD  para.  427.

2. While Recon Optical speculates, upon information and belief, that 
Lockheed must have proposed a new technology not encompassed by the 
RFP, such that the award to Lockheed actually constitutes an improper 
sole source award pursuant to unannounced agency requirements, Recon 
Optical offers only the agency's debriefing statement that Fairchild 
proposed a "clearly different technical approach" than that proposed 
by Recon Optical, and a press release which describes Fairchild's 
approach as using a "unique on-chip image motion compensation 
technology" to support this allegation.  However, the RFP specifically 
solicited proposals for the design of an EO camera "with on-chip 
motion compensation or on-focal-plane equivalent" and stated only 
performance specifications.  Since the information upon which the 
protester relies does not suggest that Fairchild proposed to use other 
than on-chip image motion compensation technology, Recon Optical's 
unsupported allegation of an improper sole source award is not 
sufficient

to constitute a cognizable protest under our Bid Protest Regulations.  
4 C.F.R.  sec.  21.1(c)(4), 21.1(i) and 21.5(f); see Science Applications 
Int'l Corp., B-265607, Sept. 1, 1995, 95-2 CPD  para.  99.

3. To the extent these protests challenge the propriety of multiple 
awards here, they are untimely protests of an alleged impropriety 
apparent on the face of the amended solicitation which, in this case, 
should have been raised prior to the next closing date after amendment 
0009 was issued.  4 C.F.R.  sec.  21.2(a)(1); see Constructive Playthings; 
Lakeshore Curriculum Materials Co., B-216190.2; B-216190.3, Apr. 8, 
1985, 85-1 CPD  para.  398.