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)).