TITLE:   ATA Defense Industries, Inc., B-282511.8, May 18, 2000
BNUMBER:  B-282511.8
DATE:  May 18, 2000
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ATA Defense Industries, Inc., B-282511.8, May 18, 2000

Decision

Matter of: ATA Defense Industries, Inc.

File: B-282511.8

Date: May 18, 2000

Claude P. Goddard, Jr., Esq., and Hal J. Perloff, Esq., Wickwire Gavin, for
the protester.

Jeffrey I. Kessler, Esq., and Caridad Ramos, Esq., Department of the Army,
for the agency.

Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protester's contention that a solicitation improperly requires submission of
proprietary technical data for evaluation of a commercial item in violation
of the regulations governing commercial item acquisitions is rendered
academic when the agency waives the application of the regulation, and the
protester fails to raise a timely objection to the waiver.

DECISION

ATA Defense Industries, Inc. protests the terms of amendment 0009 to request
for proposals (RFP) No. DAAE20-98-R-0215, issued by the Department of the
Army's Tank-Automotive Armaments Command for the purchase of the
Intermediate New Generation Army Targetry System (INGATS). ATA argues that
the revised solicitation improperly requires submission of proprietary data
explaining the operation of each offeror's INGATS system in violation of the
regulations governing commercial acquisitions set forth in Federal
Acquisition Regulation (FAR) Part 12. In addition, ATA argues that the
solicitation fails to accurately state the agency's minimum needs, that the
Army's intended testing plan for the system is inadequate, and that the
solicitation--which is restricted to participation by small and small
disadvantaged businesses--improperly requires the submission of small
business utilization plans.

We deny the protest.

BACKGROUND

This protest challenges the second attempt by the Army to complete its
procurement of the INGATS system following our decision in ATA Defense
Indus., Inc., B-282511, B-282511.2, July 21, 1999, 99-2 CPD para. 33, which
sustained ATA's protest of a contract award to Caswell International
Corporation. [1] As explained therein, the INGATS procurement calls for the
installation of complete live-fire training ranges, including training in
range operations, at various Army facilities throughout the world. Id. at 2.
Then, as now, the training ranges purchased under the INGATS contract will
be composed of commercially available targetry equipment, and the
procurement is therefore being conducted pursuant to the commercial item
procedures in FAR Part 12. Id.

The major subsystems that are assembled into INGATS training ranges are
identified in our initial decision. Id. One of these subsystems is the hit
detector device (HDD), of which there are two types: one detects the
presence of a hit by the vibrations caused when a projectile actually
strikes the target; the other detects a hit, and extrapolates the virtual
position of the hit on the target, by measuring the acoustic waves (or other
types of footprints) the projectile makes as it passes through the plane of
the target. Id. at 5. The latter, more sophisticated, type of HDD is called
a non-contact HDD.

On February 9, 2000, the Army issued amendment 0009 to the INGATS
solicitation, which, among other things, requested submission of revised
technical proposals by February 22. Amend. 0009 at 1. The revised
solicitation required that proposals include significant detail about the
workings of an offeror's non-contact HDD to aid the agency in its
evaluation. Id. at 25. This detail included, but was not limited to, an
explanation of the device's theoretical principals of operation including
its expected accuracy, and an assessment of the sensitivity of the device to
the approach angle of the projectile including an error analysis. Id. On
February 17, ATA filed this challenge to the revised solicitation.

DISCUSSION

The Federal Acquisition Streamlining Act of 1994 (FASA), 10 U.S.C. sect. 2377
(1994), established a preference, and specific requirements, for acquiring
commercial items that meet the needs of an agency. In general terms, the
Act, and the regulations that implement it, are intended to steer government
agencies clear of the more traditional, and intrusive, government
contracting practices that have evolved when agencies are buying products
that have no counterpart in the commercial marketplace. Thus, FAR Part 12
implements this policy by allowing agencies to use solicitation terms--and
to make other adjustments in the areas of acquisition planning, evaluation,
and award--that more closely resemble the commercial marketplace when
procuring commercial items. See generally Aalco Forwarding, Inc., et al.,
B-277241.8, B-277241.9, Oct. 21, 1997, 97-2 CPD para. 110 at 9-22. Consistent
with this policy, FAR sect. 12.302(c) bars the tailoring of solicitations for
commercial items in a manner inconsistent with customary commercial practice
"unless a waiver is approved in accordance with agency procedures."

In its initial protest, ATA argued that the requirement for submission of a
detailed explanation of the workings of an offeror's non-contact HDD is
contrary to customary commercial practice for targetry systems, and
therefore is improper. [2] On March 24, the Army provided our Office, and
the protester, a report in response to the protest. In its report on the
protest, the Army essentially conceded that the solicitation sought
information not customarily provided to the public with a commercial item or
process. The report also advised, however, that, one day prior to submission
of the report, the Army had exercised its authority under FAR sect. 12.302(c) to
waive the general bar on tailoring solicitations in a manner inconsistent
with customary commercial practice. The report included a copy of the
waiver.

On March 30, ATA telephonically requested a 4-day extension to its deadline
for filing comments, which we granted. This extension was confirmed by ATA's
letter to our Office of the same date. Thus, ATA filed its comments on April
7. In its comments, ATA argued that the Army had no authority to exercise a
waiver here, [3] and that the Army did not follow established procedures in
seeking the waiver.

On April 11, the Army requested dismissal of ATA's initial challenge to the
solicitation's request for information about the non-contact HDD on the
basis that the challenge had been rendered academic by the agency's waiver
under FAR sect. 12.302(c). In addition, the Army requested dismissal of the
issues raised in ATA's comments regarding the Army's authority to exercise a
waiver, and the procedural adequacy of the waiver, because these issues were
not raised within 10 days after the Army provided notice and a copy of the
waiver in its agency report.

With respect to the arguments first raised in ATA's comments--i.e., that the
Army lacks authority to exercise the waiver here, and that the waiver
obtained is procedurally insufficient--there is no dispute in the record
that ATA received the Army's report on March 24, or that the report provided
ATA notice and a copy of the waiver. Under our Bid Protest Regulations, a
protest must be filed within 10 days after the basis of the protest is known
or should have been known, whichever is earlier. 4 C.F.R. sect. 21.2(a)(2)
(2000). Where a protester initially files a timely protest and later
supplements it with new and independent grounds of protest, the later-raised
allegations must also independently satisfy the timeliness requirements.
Keci Corp.--Recon., B-255193.2, May 25, 1994, 94-1 CPD para. 323 at 4.

Here, although ATA appropriately requested an extension of time to file its
comments under our rules, see 4 C.F.R. sect. 21.3(i), an extension of time to
file comments does not, and cannot, waive the timeliness requirements for
filing new bid protest issues. Keci Corp.--Recon., supra; Unitor Ships
Serv., Inc., B-245642, Jan. 27, 1992, 92-1 CPD para. 110 at 10; see CH2M Hill
Southeast, Inc., B-244707; B-244707.2, Oct. 31, 1991, 91-2 CPD para. 413 at 8.
Since the issues raised in the comments--ATA's challenges to the Army's
authority to execute a waiver and to the procedural sufficiency of the
waiver--constitute new and independent grounds of protest, they were
required to be filed within 10 days of the time ATA received the agency
report including the claimed waiver. Since ATA failed to satisfy this
requirement, these grounds of protest are untimely.

In addition, since the Army elected to waive the general bar on tailoring
solicitations in a manner inconsistent with customary commercial practice,
the issue ATA raised in the initial protest--that the requirement in the RFP
for submission of technical data is inconsistent with commercial
practice--is academic at this juncture. See Canadian Commercial
Corp./Liftking Indus., Inc., B-282334 et al., June 30, 1999, 99-2 CPD para. 11
at 14.

With respect to the remaining issues raised by ATA's initial protest, we
turn first to ATA's complaint that the solicitation does not match
requirements in the Army's Operational Requirements Document for the New
Generation Army Targetry System (the "ORD"). The ORD is an internal Army
document prepared for planning purposes. ATA points out several areas where
ATA concludes the solicitation has not specified an INGATS system that will
meet all of the goals established by the ORD, and complains specifically
that the solicitation has relaxed requirements found in the document.

As a starting point, we note that the Army has not incorporated the ORD into
the solicitation here, nor are we aware of any requirement that it do so. In
addition, ATA's interest here appears to be to force the Army to adopt more
restrictive specifications than found in the current solicitation to meet
ATA's perception of the Army's minimum needs--a matter we will not consider
in this forum. Loral Fairchild Corp.--Recon., B-242957.3, Dec. 9, 1991, 91-2
CPD para. 524 at 3. Similarly, we will not consider ATA's complaint that the
Army's intended testing plan is not sufficiently stringent, as it does not
test for all of the requirements in the ORD. See id.

Finally, ATA argues that the solicitation improperly requires small business
offerors to submit a small business utilization plan. In this regard, the
Army denies that the solicitation requires small businesses to submit a
small business utilization plan but acknowledges that it intends to evaluate
each offeror's intent to utilize small businesses in performing the required
effort. See Amend. 0009 at 28, 31-32. In our view, there is nothing improper
about evaluating a potential offeror's commitment to utilizing small
businesses to meet the requirements of this contract--especially given that
the estimated value of this contract exceeds $100 million. In addition, the
fact that the awardee will be a small business as well (or will have been
prior to receiving this contract) does not lead us to the conclusion that
the requirement is improper or illogical.

The protest is denied.

Comptroller General
of the United States

Notes

1. ATA's challenge to the Army's earlier attempt to reopen this procurement
resulted in an alternative dispute resolution meeting between
representatives of our Office, the Army, ATA, and Caswell. At the conclusion
of this meeting, the Army took corrective action, ATA agreed that its
protest was effectively resolved, and our Office closed the matter without
further action. At the same time, however, ATA requested reimbursement for
the costs of pursuing its challenge to the Army's proposed reopening. A
recitation of the issues raised by ATA regarding the earlier reopening is
set forth in our decision ATA Defense Indus., Inc., B-282511.6, Mar. 14,
2000, 2000 CPD para. ___ at 2-3, denying ATA's request for reimbursement of its
protest costs.

2. ATA's argument is premised upon the assumption that this explanation will
include proprietary technical data. We think ATA's assumption is valid. FAR
sect. 27.401 defines technical data as "data other than computer software, which
are of a scientific and technical nature." The detailed explanation of the
workings of an offeror's non-contact HDD sought by the Army here will likely
constitute technical data, as that term is defined in FAR Part 27. In
addition, the Army essentially concedes that it is not customary to provide
such data to the public when selling a commercial item. Affidavit of
Competition Advocate, Apr. 19, 2000, at 2.

3. In support of this argument, ATA points to FAR sect. 12.211, which states, in
relevant part, that "the Government shall acquire only the technical data
and the rights in the data customarily provided to the public with a
commercial item or process." In essence, ATA argues that the Army may not
use the waiver authority in

FAR sect.12.302 (c) to avoid the prohibition on acquiring technical data set out
in

FAR sect. 12.211.