BNUMBER:  B-281635 
DATE:  February 24, 1999
TITLE: Aeronautical Instrument & Radio Company, B-281635, February
24, 1999
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Matter of:Aeronautical Instrument & Radio Company

File:     B-281635

Date:February 24, 1999

Glade F. Flake, Esq., for the protester.
Deborah A. Gruszeczki-Randall, for BVR Aero Precision Corporation, an 
intervenor.
Robert S. Karpinski, Esq., Michael J. Cunningham, Jr., Esq., and Eric 
A. Lile, 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

Agency is not required to delay award pending inclusion of protester's 
product on qualified products list (QPL) where protester has had ample 
opportunity to complete QPL testing over period of years.

DECISION

Aeronautical Instrument & Radio Company (AIRCO) protests the award of 
any contract under request for proposals (RFP) No. N00383-98-R-0064, 
issued by the Naval Inventory Control Point (NAVICP) for 81 bearing 
distance heading indicators, P/N ID-663D/U.  The protester asserts 
that the agency is required to delay award until it has completed 
testing of its product for inclusion on the qualified products list 
(QPL).

We deny the protest.

The RFP provided that required items must be procured from sources 
listed in QPL 22075-14, which provides for qualification inspection 
and quality conformance testing in accordance with MIL-I-22075C.[1]  
RFP  sec.  C-321a, b.  Proposals were due by July 8, 1998.  On July 1, 
AIRCO contacted the agency and provided information showing that it 
had been an approved source for previous versions of the required 
indicator, and that it was currently manufacturing and selling the 
ID-663D/U to the government of Canada and to Lockheed Martin 
Corporation for incorporation into C-130 aircraft ordered under a U.S. 
Air Force contract.  AIRCO and other offerors submitted proposals by 
the closing date.  By letter of August 19, the contracting officer 
notified AIRCO that its technical documentation was inadequate for 
approval as a source for the required items, and identified a contact 
who could provide more information concerning the evaluation.  
Enclosed and referenced in this letter was a NAVICP source approval 
brochure, which mistakenly suggested that AIRCO could seek NAVICP 
source approval for its product, rather than inclusion on the QPL.

On August 19, the Navy issued amendment 0001 to reduce the base period 
from 2 years to 18 months, in order to open up the possibility that 
the requirement could be recompeted sooner if AIRCO were able to 
qualify its product.  On August 24, AIRCO filed an agency-level 
protest challenging the agency's rejecting its proposal without 
contacting AIRCO regarding further information necessary to cure the 
deficiencies cited.  On October 1, in response to the protest, the 
agency met with AIRCO.  NAVICP clarified to AIRCO that its product had 
to be QPL-approved, in accordance with the requirements of 
MIL-I-22075C, and that the source approval brochure erroneously 
provided to AIRCO was not applicable to this procurement.  The agency 
directed AIRCO to contact Raytheon Technical Services Company, the 
government's agent for testing the ID-663D/U indicators.  AIRCO 
maintains that NAVICP then agreed to delay award until testing of 
AIRCO's product was complete, but NAVICP asserts it only agreed to 
delay the award as long as possible, not indefinitely.  AIRCO also 
maintains that NAVICP agreed to have Raytheon expedite the testing; 
the Navy denies this.

On November 2, the contracting officer was advised by Raytheon that 
AIRCO had not provided a unit for testing until the end of October and 
that, as of November 2, it would take an additional 6 to 8 weeks to 
complete testing.  (The exact date of receipt is unclear, but the 
record does show that AIRCO did not ship the unit until October 21, 
and that two more units were hand-carried by AIRCO representatives to 
Raytheon on October 28.  Protester Comments, January 8, 1999, attached 
"Declaration of Mr. Evo Nicoletti," paragraphs 6, 7, attached packing 
ticket.)  Subsequently, the contracting officer was notified that 
delivery of the required items was required by April 1999, in order 
that the aircraft retrofitting program not be disrupted.  Because of 
this urgency and the projected timeframe for completion of AIRCO's 
product testing, the contracting officer sent AIRCO a November 24 
letter in which she denied the agency-level protest and informed AIRCO 
that the Navy would proceed to award a contract because she did not 
believe AIRCO could be approved in time for award.  One of the factors 
that influenced this decision was the fact that the Navy had 
authorized AIRCO to pursue qualification of its product to 
MIL-I-22075C in May 1993.  When testing was not completed within the 
specified time period, extensions were granted to AIRCO, the last of 
which was effective until June 30, 1998.  However, AIRCO never 
completed testing, which led the contracting officer to doubt that 
AIRCO's product met the qualification standards.

Before proceeding to award, the agency issued RFP amendment 0002, 
which changed the contract to be awarded from requirements-type to a 
firm quantity of 81 units and calling for delivery within 180 days 
after award.  RFP Amendment 0002,  sec.  L-1201, at 1-2.  The Navy states 
that its intention in so amending the RFP was to meet its immediate 
needs and postpone the long-term requirement, with a view that AIRCO 
might become qualified and therefore eligible to compete at a later 
time.  AIRCO filed this protest on December 4.  On February 8, 1999, 
the Navy made a determination that urgent and compelling circumstances 
made it necessary to make award notwithstanding the protest, pursuant 
to Federal Acquisition Regulation (FAR)  sec.  33.104(b)(1)(i); award was 
made to BVR Aero Precision Corporation that same day.  Qualification 
of AIRCO's product was still pending as of that date. 

AIRCO argues that the award should have been delayed until 
qualification of its product was completed, as it claims the agency 
agreed to do at the October 1 meeting.  It maintains that any delay in 
the qualification of its product from July 1 to October 1 was the 
fault of NAVICP, due to the erroneous reference in the  August 19 
letter to the agency's source approval procedures, upon which AIRCO 
alleges it relied.  AIRCO maintains it has cooperated to the fullest 
extent possible since being advised on October 1 that QPL testing in 
fact was necessary, and asserts that the delay since then has been the 
result of NAVICP's failure to arrange for expedited testing with 
Raytheon.[2] 

A potential offeror may not be denied the opportunity to submit and 
have considered an offer for a contract if the offeror can demonstrate 
that its product meets or can meet the approval standards before the 
date for award.  10 U.S.C.  sec.  2319(c)(3) (1994); Alpha Q, Inc., 
B-270517, Mar. 14, 1996, 96-1 CPD  para.  150 at 3.  However, there is no 
requirement that an agency delay a procurement in order to provide an 
offeror an opportunity to demonstrate its ability to become qualified.   
10 U.S.C.  sec.  2319(c)(5); Marc Ave. Corp., B-261968.2, Jan. 11, 1996, 
96-1 CPD  para.  79 at 3.  This is particularly true where the offeror 
contributes to its failure to obtain timely source approval.  Saturn 
Indus., B-261954.3, Jan. 5, 1996, 96-1 CPD  para.  9 at 5.

The protest is without merit.  The agency did nothing to prevent AIRCO 
from having its product qualified.  AIRCO had been aware of the QPL 
requirement for the item since 1993, and, simply, had failed to 
complete the required testing despite being granted extensions of time 
to do so.  Thus, when AIRCO's proposal in response to this RFP was 
rejected in July 1998, it was due, not to some failure by the agency 
to provide AIRCO an opportunity to qualify, or to an erroneous 
evaluation of the proposal; rather, it was due to the protester's 
failure to have its product qualified in a timely manner despite 
having had every opportunity to do so.  See Saturn Indus., supra 
(offeror which was aware of qualification requirement 2 years prior to 
procurement had reasonable opportunity to qualify).  Indeed, the 
record establishes that the agency actually has amended the 
solicitation and voluntarily delayed the award solely to accommodate 
AIRCO.

The agency correctly asserts that its agreement at the October 1 
meeting to delay the award--even if the protester is correct that the 
agency agreed to an indefinite delay--is irrelevant to the outcome of 
this protest.  This is because, as of October 1, the agency had done 
nothing improper to delay AIRCO's qualification, and thus was under no 
legal obligation to delay an award with which it already was 
authorized to proceed.  See Alpha Q, Inc., supra; Marc Ave. Corp., 
supra.  In this regard, we are not persuaded that the agency's 
erroneous reference to its source selection procedures had any effect 
on the timeliness of AIRCO's qualification testing.  First, AIRCO has 
been authorized to qualify its product for the QPL since 1993, and 
hence had to have been well aware of the testing requirements and that 
the required item had to be QPL-approved.  Second, the RFP 
specifically provided that the indicators had to be procured from 
sources listed on QPL 22075-14 and had to have undergone testing in 
accordance with MIL-I-22075C, RFP  sec.  C-321a, b, which also states in 
section 3.1 that indicators furnished under it have to be on the QPL.  
Third, while the August 19 letter erroneously referred to source 
approval procedures, it also specifically referred to the QPL, stating 
that "[i]t is suggested that you take appropriate action to become an 
approved source listed on the Qualified Products List [P/N] ID663D/U 
for future procurements," and that "[y]ou are also advised to review . 
. . MIL-I-22075C(AS) which provides detailed information on 
qualification procedures."  The letter thus was ambiguous at best, and 
AIRCO reasonably should have sought clarification rather than assuming 
that the QPL requirement--which was included in the RFP, and of which 
it long had been aware--no longer applied.
  
AIRCO maintains, essentially, that the agency has not acted in good 
faith to qualify its product.  However, AIRCO has presented no 
evidence to this effect, and we will not attribute improper motives to 
procurement personnel on the basis of inference or supposition.  
Radalab, Inc., B-225662.2, May 15, 1987, 87-1 CPD  para.  519 at 4.  
Moreover, this claim is not supported by the record which, again, 
shows that the agency has done nothing improper in connection with 
AIRCO's qualification, and actually has taken steps to assure that 
AIRCO will have the opportunity to compete for at least a portion of 
the agency's requirement if and when it becomes qualified.

The protest is denied.

Comptroller General
of the United States

1. QPL 22075-14 (January 30, 1991) lists BVR Aero Precision 
Corporation and one other firm as the only qualified suppliers.

2. AIRCO also argues that, because it is a small business, it was 
incumbent on NAVICP to take steps to expedite its QPL approval, 
pursuant to FAR  sec.  9.204(a)(2).  However, FAR  sec.  9.204(a)(2) speaks only 
to conditions under which the government may bear the costs of testing 
for small businesses, and requires neither that agencies provide 
assistance to expedite qualification testing, nor that they delay 
award pending QPL approval for small businesses.