BNUMBER:  B-280758             
DATE:  November 16, 1998
TITLE: Avtron Manufacturing, Inc., B-280758, November 16, 1998
**********************************************************************

DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective 
Order.  This redacted version has been approved for public release.

Matter of:Avtron Manufacturing, Inc.

File:B-280758            
        
Date:November 16, 1998

Norman J. Philion, Esq., Edward V. Hickey, Esq., and Christopher D. 
Perry, Esq., Thompson Hine & Flory, for the protester. 
Gregory H. Petkoff, Esq., and Mark Frazier, Esq., Department of the 
Air Force,
for the agency. 
Adam Vodraska, Esq., and Jerold D. Cohen, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that awardee's aircraft generator test stand is not a 
nondevelopmental item (NDI), and thus did not meet the solicitation's 
NDI requirement, is denied where the solicitation was issued under 
commercial item procedures seeking a "commercial NDI," and the 
awardee's proposed test stand in fact exists as a commercial item 
needing only minor modifications to be acceptable.

DECISION

Avtron Manufacturing, Inc. protests the award of a contract to AAI/ACL 
Technologies, Inc. (ACL) by the Department of the Air Force, San 
Antonio Air Logistics Center, under request for proposals (RFP) No. 
F41608-97-R-0168 for aircraft generator test stands.  Avtron primarily 
contends that ACL's offered test stand is not a nondevelopmental item 
(NDI), as required by the RFP, and was improperly evaluated as 
technically acceptable.

We deny the protest.

BACKGROUND

The Air Force issued the RFP in draft form on September 30, 1997, for 
a replacement to the agency's existing MC-2 aircraft generator test 
stand, which had been designed to a military specification and 
supplied by ACL during the 1970's.  The solicited test stand is to be 
used to field test multi-aircraft integrated drive generators (IDG), 
constant speed drives (CSD), and their associated generators (GEN).  
On December 30, the Air Force issued amendment 1, which converted the 
draft RFP into a final RFP, and established January 23, 1998 as the 
deadline for receipt of proposals, which later was extended to January 
30 by amendment 2.

Section 3 of the RFP's Performance Purchase Description (PPD) 
established minimum essential criteria for the proposed test stand to 
be considered acceptable.  The PPD required the contractor to furnish 
a current and complete test stand of modular design and listed major 
modules or assemblies that offerors should include on the test stands 
they proposed.  PPD at 2, 5.  The PPD also provided: 

     3.3.  NDI Commercial Item.  The test stand shall be an already 
     developed, state-of-the-art, market proven, commercial test stand 
     with a proven reliability track record.  Minor modifications are 
     allowed to the existing test stand. . . .

     3.3.1.  Major Modules or Assemblies:  If the proposed [test 
     stand] is assembled using commercial NDI major modules or 
     assemblies, which have not been previously merged and sold 
     commercially as a test stand, the major modules or assembly that 
     is proposed[/]used shall have a proven reliability track record 
     of reliable and satisfactory service in similar test stands.  
     Offeror shall provide evidence that these are proven and reliable 
     commercially available assemblies.

     3.4.  Description.  The proposed test stand shall be a commercial 
NDI test                                                     stand. . 
. .

PPD at 4.  

The solicitation stated that proposals would be evaluated for 
compliance with PPD  sec.  3 and that offerors should provide evidence that 
their proposed units are reliable and commercially "'market proven' 
per 3.3 and 3.3.1."  RFP at 22, 24; PPD at 9-10.  

The RFP required each offeror to submit a technical proposal, with 
performance specifications for the offeror's proposed test stand and 
commercial manuals, as well as present and past performance 
information, including a list of all contracts and subcontracts 
performed during the last 5 years for the same or similar work.  RFP 
at 19-22.  The RFP specified that award would be made to the 
acceptable offeror submitting the lowest evaluated offer based on the 
factors established in the RFP's performance-price tradeoff evaluation 
scheme, under which technical requirements were significantly more 
important than performance or price, with performance risk rating and 
price ranked second and co-equal.  RFP at M-505, 22-24.

The Air Force received five proposals in response to the RFP by the 
January 30 closing date, including proposals from Avtron and ACL.  The 
agency evaluated the proposals, issued written requests for technical 
clarifications to all offerors on March 13 and, based on the 
satisfactory written responses from the offerors, determined by April 
3 that all five proposals were technically acceptable.  According to 
the Air Force, the technical clarification request to ACL involved 
"very minor" aspects of its proposal, and the offeror's response 
satisfied the agency and did not result in any revision to ACL's 
proposal.  Agency Report, Tab 1 at 3.  The agency then issued four 
more amendments to the solicitation, finally requiring, through 
amendment 6 issued on July 7, that revised proposals be submitted by 
July 13. 

The Air Force completed its performance-price tradeoff evaluation 
during July by conducting a performance risk analysis based on past 
and present performance information from the offerors and from 
returned questionnaires sent to the offerors' listed customers.  The 
agency states that, because ACL's first commercial sale of its 
proposed test stand had just been completed and the customer had not 
yet had an opportunity to assess its performance, the Air Force sent 
an inspection team consisting of an engineer, the program manager, and 
several other agency personnel to visit the customer's facility in 
order to verify that the test stand ACL had sold commercially was the 
same as, or similar to, ACL's proposed test stand.  Agency Report, Tab 
1 at 4-5.  The Air Force maintains that its inspection team did not 
enter into discussions of any kind with ACL personnel during this 
visit, which took place after the agency had already determined ACL's 
proposal to be technically acceptable.  Id.  Based on this review of 
ACL's proposed test stand and the confirmed commercial sale of the 
unit, the Air Force rated ACL as a low performance risk.  Agency 
Report, Tab 1 at 5.  Avtron also received a low performance risk 
rating based on questionnaire responses from two of its customers.  
Id.

On July 24 the Air Force awarded the contract to ACL because, while 
both ACL's and Avtron's proposals were technically acceptable and 
represented low performance risk, ACL's price of $5,734,677 was 
significantly lower than Avtron's price of $7,411,130.  Id.; Agency 
Report, Tab 10 at 3-4.

ANALYSIS

Avtron's primary contention is that ACL's proposed test stand was not 
an NDI and thus did not meet the requirements of the PPD.[1]  Avtron 
asserts that at the time of the evaluation, ACL had not yet developed 
its proposed test stand (and that ACL's existing MC-2 test stand 
improperly would require major modifications to become acceptable), 
and ACL's test stand was not market proven with a proven reliability 
track record, as required.  In this respect, Avtron points out that, 
even though ACL's proposed test stand may have been sold to a 
commercial customer,  the stand was not installed and operating at the 
time of the agency's technical evaluation.  

We first point out that an offer of either a commercial item or an NDI 
would have been acceptable under PPD  sec.  3.3's requirement for an "NDI 
Commercial Item" and PPD  sec.  3.4's requirement for a "commercial NDI 
test stand."[2]  In addition to the language of those requirements, 
the RFP was issued under the commercial item procedures of Federal 
Acquisition Regulation (FAR) part 12, which are used for the 
acquisition of supplies or services that meet the definition of 
commercial items at FAR  sec.  2.101.[3]  Further, the RFP included 
numerous commercial item solicitation provisions and clauses, and set 
out requirements for the test stand such as market acceptability and 
inclusion of commercial manuals.[4]  We think it is clear that the RFP 
contemplated offers of either an NDI or a commercial item.[5]

In our view, the Air Force properly determined that ACL's offered test 
stand met the RFP requirements at issue.  The firm's proposal states 
that [DELETED].

To support its claims that its proposed test stand was market proven 
with a reliability track record, ACL, as requested by the RFP, 
provided performance specifications, a commercial specification sheet, 
a commercial manual, and lists of commercial customers for its 
CSD/IDG/GEN test stands, including the [DELETED] offered here.  Id. at 
v.1,  sec.  2, app. 2-B,  sec.  3, and v.2. 

ACL's proposal thus established that it was not merely offering the 
MC-2 with major modifications, but was offering an existing commercial 
test stand that, albeit developed from the MC-2, was already 
"repackaged" and updated with "state-of-the-art" components and needed 
only minor modifications[6] to meet the RFP's requirements.[7]  We 
therefore have no basis to disagree with the agency's conclusion that 
ACL's proposed test stand met the requirements of the PPD. 

Avtron also maintains that ACL should not have received a low risk 
rating for past performance.  

The record shows that offerors were assigned performance risk ratings 
based on present and past performance information and input from the 
questionnaires sent to their customers for the same or similar kind of 
work described in the RFP.  Agency Report, Tab 10 at 2.  As noted, ACL 
submitted extensive present and past performance information in its 
proposal encompassing numerous contracts for CSD/IDG/GEN test stands, 
including the same model proposed for this RFP that had recently been 
sold to a commercial customer.  ACL Proposal at v.1, app. 1-A and v.2.  
Although the Air Force recognized that this test stand had not yet 
been delivered to the commercial customer at the time the customer 
responded to the agency's inquiries, the agency determined, as a 
result of its inspection after the stand was delivered, that the 
customer's test stand was similar to the item solicited and provided 
satisfactory overall operation.[8]  Agency Report, Tab 10 at 2.  
Further, the record indicates that the agency's evaluation included 
data maintained by the government from ACL's past performance which 
provided no unfavorable information.  Agency Report, Tab 8.  We have 
no basis to find objectionable the Air Force's rating of ACL's 
performance risk as low.

Finally, Avtron suggests that the Air Force repeatedly extended the 
RFP's closing date to provide ACL an opportunity to improve its 
proposal or to accommodate ACL's attempt to get its "prototype up and 
running" before award.  Protest at 14; Comments at 6-7, 11-13.  

As stated above, the agency amended the RFP four times after initial 
proposals were submitted.  Amendment 3, issued on April 13, specified 
that any first article changes needed to meet the PPD requirements 
would be at no charge to the government, and requested that offerors 
verify their price proposals by April 24.  Amendment 4, issued April 
21, extended the time for revised proposals to April 29.  On June 18, 
the agency issued amendment 5, which added an omitted clause for a 
subcontracting plan, revised the PPD to correct minor errors and to 
make minor specification changes, requested offerors to fill in their 
prices on replacement schedule forms, and extended the due date for 
revised proposals to July 2.  Amendment 6 was issued on July 7 to 
extend the date a final time, to July 13.  In  this regard, Avtron's 
protest, at 14, notes that amendment 6 stated that it was issued to 
request a final proposal revision as a result of "discussions 
following Amendment 05."  Avtron questions whether there was any 
legitimate need for any of the amendments, particularly amendment 6, 
given that the contracting officer has reported that the reference to 
"discussions" only meant conversations dealing with the anticipated 
award date "and other logistical questions."[9]  

The record simply does not support the protester's view that the Air 
Force kept extending the due date for revised proposals merely to 
provide ACL with more time to install its commercial test stand for 
government inspection.  There is nothing in the protest filings, other 
than Avtron's speculation, to indicate that the agency's reasons were 
other than to provide all offerors the opportunity to make any 
revisions to their proposals necessitated by the amendments as 
described above, which included changes to the PPD and elsewhere in 
the RFP.  In sum, we have no basis to find that ACL received 
preferential treatment of the sort the protester suggests.

Since the Air Force reasonably determined that ACL's proposed item 
test stand was technically acceptable and presented low performance 
risk, we find unobjectionable the Air Force's selection of ACL's 
low-priced proposal under the RFP's award criteria.

The protest is denied.

Comptroller General
of the United States

1. Under Federal Acquisition Regulation (FAR)  sec.  52.202-1(e), which was 
incorporated in the RFP by reference (through the solicitation's 
incorporation of FAR  sec.  52.212-4, Contract Terms and 
Conditions--Commercial Items, RFP at 1), an NDI is:

               (1) Any previously developed item of supply used 
            exclusively for governmental purposes by a Federal agency, 
            a State or local government, or a foreign government . . .
               (2) Any item described in paragraph (e)(1) of this 
            definition that requires only minor modification or 
            modifications of a type customarily available in the 
            commercial marketplace in order to meet the requirements 
            of the procuring department or agency; or
               (3) Any item of supply being produced that does not 
            meet the requirements of paragraph (e)(1) or (e)(2) solely 
            because the item is not yet in use.

2. FAR  sec.  52.202-1(c) defines a commercial item as: 

               (1) Any item . . . that is of a type customarily used 
            for nongovernmental purposes and that--
                 (i) Has been sold, leased, or licensed to the general 
public; or
                 (ii) Has been offered for sale, lease or license to 
            the general public;
               (2) Any item that evolved from an item described in 
            paragraph (c)(1) of this clause through advances in 
            technology or performance and that is not yet available in 
            the commercial marketplace, but will be available in the 
            commercial marketplace in time to satisfy the delivery 
            requirements under a Government solicitation;
               (3) Any item that would satisfy a criterion expressed 
in paragraphs (c)(1) or (c)(2) of this clause, but for--
                 (i) Modifications of a type customarily available in 
the commercial marketplace; or
                 (ii) Minor modifications of a type not customarily 
available in the commercial marketplace made to meet Federal 
Government requirements. . . . 
               (4) Any combination of [the above] of a type 
customarily combined and sold in combination to the general public . . 
. .

3. The definitions in FAR  sec.  2.101 are essentially the same as those in 
FAR  sec.  52.202-1(c), (e).

4. Consistent with the commercial item solicitation requirements of 
FAR  sec.  12.204(a), 12.301, and 12.303, the RFP was issued on a Standard 
Form 1449, Solicitation/Contract/Order for Commercial Items, and 
either incorporated by reference or included the full text of FAR  sec.  
52.212-1, Instructions to Offerors--Commercial Items; FAR  sec.  52.212-3, 
Offeror Representations and Certifications--Commercial Items; FAR  sec.  
52.212-4, Contract Terms and Conditions--Commercial Items; and FAR  sec.  
52.212-5, Contract Terms and Conditions Required To Implement Statutes 
or Executive Orders--Commercial Items.  RFP at 1, 9-11, and 14-22.  
The RFP also included Defense Federal Acquisition Regulation 
Supplement provisions and clauses for solicitation of commercial 
items.  RFP at 12, 18-19.

5. In fact, the statutory definition of an NDI specifically 
encompasses a commercial item.  10 U.S.C.  sec.  2376(1) (1994); 41 U.S.C.  sec.  
403(13) (1994).

6. A "minor modification" under FAR  sec.  52.202-1(c) is one that does not 
"significantly alter the non-governmental function or essential 
physical characteristics of an item or component, or change the 
purpose of a process."

7.[DELETED].

8. The questionnaire returned by this customer reported favorable 
experience with ACL, including a prior contract for a similar test 
stand and subsequent upgrade.  Agency Report, Tab 8.

9.[DELETED].