BNUMBER: B-274730
DATE: December 9, 1996
TITLE: Simula Government Products, Inc.
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Matter of:Simula Government Products, Inc.
File: B-274730
Date:December 9, 1996
Michael D. Guinan, Esq., and John T. Jones, Jr., Esq., Bryan Cave LLP,
for the protester.
Howard J. Stanislawski, Esq., Melvin Rishe, Esq., Gary P. Quigley,
Esq., and Richard L. Larach, Esq., Sidley & Austin, for Israel
Aircraft Industries, Ltd., an intervenor.
Daniel A. Laguaite, Esq., Department of the Navy, for the agency.
Jeanne W. Isrin, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Where Commerce Business Daily (CBD) notice announcing agency's intent
to modify a contract contains note 22--giving other potential sources
45 days to submit expressions of interest showing their ability to
meet agency's stated requirements--a potential source must first
timely respond to the CBD notice and receive a negative agency
response before it can protest the agency's decision at the General
Accounting Office; protest of modification is dismissed where, in
response to note 22, protester submitted to the agency only a
statement that it considered itself to be a responsible source for the
requirements, without any supporting information to demonstrate its
capability; where the items required are of a relatively complex
nature, as in this case, such a response is inadequate to meet the
requirements of note 22.
DECISION
Simula Government Products, Inc. protests the proposed modification of
Department of the Navy contract No. N00421-96-C-1038, awarded to
Israel Aircraft Industries, Ltd. (IAI) on June 14, 1996, for
non-developmental item (NDI) crashworthy passenger/troop helicopter
seats.
We dismiss the protest.
On September 13, 1996, the Navy announced in a Commerce Business Daily
(CBD) synopsis its intention to modify IAI's contract to add or modify
certain requirements: (1) 50 additional IAI NDI crashworthy CH-53
helicopter seats; (2) turnkey installations of those seats in
the CH-53D, CH-53E, and CH-53ME helicopters; (3) airframe
reinforcement kits; (4) a change in the attachment pin chains to
braided cable; and (5) stress analysis on the proposed seat and
attaching hardware. The CBD notice stated that IAI was judged the
only responsible source able to satisfy the requirement, and
referenced note 22, which gave interested persons 45 days to identify
their interest and capability to respond to the requirement or submit
proposals.
By letter of September 23, Simula responded to the notice with a
letter that stated as follows:
"Please be advised that Simula Government Products, Inc.,
considers itself to be a responsible source for this
procurement."
The letter contained no further information. Also by letter dated
September 23, Simula filed this protest with our Office, claiming
that the modification of IAI's contract amounted to an unjustified
sole-source procurement, because Simula is a responsible source which
can meet the requirement.
As a prerequisite to our considering a protest of a note 22 intended
sole-source procurement, the protester must have both timely submitted
an adequate response to the notice, and received a negative agency
response. Allerion Inc., B-256986, Apr. 28, 1994, 94-1 CPD para. 281;
Norden Sys., Inc., B-245684, Jan. 7, 1992, 92-1 CPD para. 32. This
procedure gives the agency an opportunity to reconsider its
sole-source decision in light of a serious offeror's preliminary
proposal, while limiting challenges to the sole-source decision to
diligent potential offerors. Allerion Inc., supra; DCC Computers,
Inc., 70 Comp. Gen. 534 (1991), 91-1 CPD para. 514. In this regard,
where a complex requirement is involved, a mere expression of interest
in the procurement does not meet the requirements of note 22--an
adequate response must at least detail the offeror's ability to meet
the requirement; what is actually contemplated is a preliminary
proposal which could lead the agency to reconsider the sole-source
decision. See Litton Computer Servs., B-256225.4; B-256225.5, July
21, 1994, 94-2 CPD para. 36; Norden Sys., Inc., supra.
We find that the requirement here--for crashworthy helicopter seats
and related items and services--is sufficiently complex that a mere
expression of interest was insufficient to satisfy the requirements of
note 22. Again, Simula submitted only an undocumented, unexplained
assertion that it could meet the requirement. This assertion did not
serve the purpose of note 22--it did not provide the agency with any
information showing that the agency's conclusion that there was only
one source for the requirement was incorrect. Specifically, it did
not explain how Simula was capable of furnishing and installing IAI
seats and related items. Without such information, the agency had no
reason to change its conclusion that only IAI, the manufacturer of the
IAI seats, could furnish and install the required seats.
Simula argues that it possesses an acceptable NDI seat and that
contracting officials were aware of its capability--notwithstanding
its failure to provide supporting information with its expression of
interest--based on its participation in the competition for the
original (IAI) contract. However, the purpose of the proposed
modification is to obtain a quantity of the IAI seats for testing to
determine whether to exercise options to purchase 2,445 seats under
IAI's contract; thus, IAI seats are required, and the agency's
sole-source determination was based on its consideration of whether
any firm other than IAI could furnish and install IAI seats. In
competing for award of the original contract, Simula offered its own
seat, not an IAI seat. Thus, even if the agency was aware that Simula
is capable of furnishing an acceptable crashworthy seat (it is not
clear that this capability was evident, since Simula's offered seat
under the original procurement was found technically unacceptable for
failure to meet the NDI requirement), it had no reason to believe that
Simula would or could furnish and install an IAI seat if the firm were
included in a competition. We note that, despite Simula's general
claim that it can meet the requirement, it has not claimed that it can
provide the IAI seat, or addressed the Navy's assertion that it cannot
provide IAI seats.
As Simula did not timely submit an adequate response to the CBD
notice, we will not consider its protest of the proposed
modification.[1]
The protest is dismissed.
Comptroller General
of the United States
1. Although the Navy argued that Simula's protest should be dismissed
for failure to adequately respond to note 22 in its October 21 report,
Simula did not rebut this argument until November 18. During a
telephone conference on that date, Simula cited a footnote in our
decision Keco Indus., Inc., B-238301, May 21, 1990, 90-1 CPD para. 490, in
which we suggested that, under the proper circumstances, a protest may
be filed without a prior response to note 22 where it is clear that
the agency is so firmly committed to a sole-source procurement that an
expression of interest would be futile. While Simula invokes this
dictum as an exception to the general rule, it has not stated the
basis for, or otherwise supported, its conclusion that the Navy is
immovably committed to a sole-source contract. In any case, this
argument is untimely, since it was not raised within 10 days after
Simula became aware of the agency's position. Bid Protest
Regulations, section 21.2(a)(2), 61 Fed. Reg. 39039, 39043 (1996) (to
be codified at 4 C.F.R. sec. 21.2(a)(2)).