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.