TITLE:  Engineered Fabrics Corporation, B-284154; B-284154.2; B-284154.3, February 23, 2000
BNUMBER:  B-284154; B-284154.2; B-284154.3
DATE:  February 23, 2000
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Engineered Fabrics Corporation, B-284154; B-284154.2; B-284154.3, February
23, 2000

Decision

Matter of: Engineered Fabrics Corporation

File: B-284154; B-284154.2; B-284154.3

Date: February 23, 2000

Cyrus E. Phillips, IV, Esq., and Douglas K. Olson, Esq., Kilcullen, Wilson
and Kilcullen, for the protester.

Michael D. Hays, Esq., Dow, Lohnes & Albertson, and Mike Kinard, Esq.,
Kinard, Crane and Butler, for American Fuel Cell and Coated Fabrics Company,
the intervenor.

Niketa L. Wharton, Esq., and Philip F. Eckert, Jr., Esq., Defense Logistics
Agency, for the agency.

John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Solicitation for fuel tanks for F-15 aircraft is not ambiguous where the
solicitation specifically lists the part numbers of the two manufacturers
whose products have been approved for use in the aircraft by the aircraft's
original manufacturer and includes a "products offered" clause, which allows
firms to offer alternate products that are physically, mechanically,
electrically, and functionally interchangeable with the products identified
in the solicitation.

DECISION

Engineered Fabrics Corporation (EFC) protests the terms of request for
proposals (RFP) No. SP0475-99-R-2508, issued by the Defense Logistics Agency
(DLA) for fuel tanks for the Department of the Air Force's F-15 aircraft.

We deny the protest.

The RFP, issued August 23, 1999, provided for the award of a fixed-price,
indefinite-quantity contract for fuel tanks for the Department of the Air
Force's F-15 aircraft. RFP at 2-4, 31. The RFP was restricted to EFC and
American Fuel Cell and Coated Fabrics Company (AmFuel), "the only sources of
supply known to have the capability to furnish the required [fuel tanks]."
RFP at 5-13; Agency Response to Issues Raised in Conference Call, Jan. 27,
2000, Attach. No. 1, Justification for Other Than Full and Open Competition.
The RFP's procurement item description specified for each of the five
requested types of tanks the appropriate national stock number, as well as
the EFC and AmFuel part numbers. RFP at 5-13. The agency explains that the
EFC and AmFuel fuel tanks that correspond to the part numbers listed in the
RFP were approved for use in the F-15 aircraft more than 10 years ago by
McDonnell Douglas Corporation [1] (the manufacturer of the F-15 aircraft)
using the applicable McDonnell Douglas procurement specifications. [2]
Agency Response to Issues Raised in Conference Call, Jan. 27, 2000, at 1-2.

The RFP included DLA's "Conditions for Evaluation and Acceptance of Offers
for Part Numbered Items" clause (similar to DLA's former "Products Offered"
clause), which allows firms to offer alternate products which are
physically, mechanically, electrically, and functionally interchangeable
with the products identified in the solicitation. RFP at 31-32; see
Henschel, Inc., B-275390.5, May 14, 1997, 97-1 CPD

para. 184 at 2. The RFP added that technical data packages were not available
from the agency for the specified EFC and AmFuel part numbers, and that
firms offering alternate products were required to submit sufficient
technical data on any alternate product offered, as well as the named part
number, to enable the agency to evaluate the alternate product to determine
whether it is interchangeable with the named part number. RFP at 5-13, 31.
The RFP also noted that "configuration control applies," and included a
configuration control clause providing, in part, that "[t]he furnished
item(s) shall conform to the approved configuration requirements/revision as
shown in the Procurement Item Description unless a variation is processed
and approved as provided . . . in accordance with MIL-STD-973." [3] RFP at
5-13, 25

The RFP stated that award would be made to the offeror whose proposal
represented the best value to the government, considering price and past
performance. RFP at 34-35.

EFC, the original equipment manufacturer of the fuel tanks, protests that
the RFP's requirements regarding the fuel tanks' weight limitations and
self-sealing capabilities are ambiguous. The protester argues that, because
it believes that the AmFuel products identified by part number in the
solicitation weigh more than do EFC's fuel tanks, and do not self seal to
the extent required by MIL-T- 5578C (as incorporated in the applicable
McDonnell Douglas/Boeing procurement specification), it is unclear to EFC
what the RFP's actual requirements are. Protest at 5-7, 10-11; Protester's
Comments, Jan. 5, 2000, at 5; Protester's Comments, Jan. 18, 2000, at 5.
Specifically, the protester complains that while "AmFuel's self-sealing fuel
construction . . . was qualified for the . . . Air Force F-15 . . . based on
a self-sealant that quickly activated . . . AmFuel's self-sealing fuel
construction . . . as recently delivered to the Air Force, the Navy and the
Army . . . does not activate properly, and does not meet MIL-T-5578C and
associated aircraft manufacturer specifications." Protester's Comments, Jan.
5, 2000, at 11; see id., Encl. 1, Declaration of EFC's Senior Vice
President, at 7; Protester's Comments, Jan. 18, 2000, Encl. 1, Declaration
of EFC's Vice President for Engineering, at 5.

In support of this contention, EFC refers to Technical Report No.
NAWCADPAX-98-2-TR (Mar. 18, 1998) (hereinafter Navy 98-2-TR), prepared by
the Naval Air Warfare Center Aircraft Division, entitled "F/A-18 A/B/C/D
Gunfire Performance Verification Testing on AmFuel Self-Sealing Fuel Cell
Material," and a memorandum drafted by an employee of the Navy describing a
gunfire test performed by the Navy in April 1998 on an AmFuel F-15 fuel cell
as a follow-on to the tests described in Navy 98-2-TR, both of which
assertedly conclude that in several instances during the tests the AmFuel
samples did not self-seal to the extent required by MIL-T-5578C. [4]
Supplemental Protest, Dec. 28, 1999, Attach. 1, Navy 98-2-TR at ii, and
Attach. 2, Navy Memorandum, F/A-18 C/D Gunfire Testing, NAWC WD China Lake
(Apr. 7, 1998),

at 2. EFC also references various personal inspections of the differences in
composition in AmFuel's fuel tanks as well as other negative comments and
information concerning AmFuel's fuel tanks. Supplemental Protest, Dec. 28,
1999, at 5-6; Protester's Comments, Jan. 5, 2000, Encl. 1, Declaration of
EFC's Senior Vice President, at 5-7; Protester's Comments, Jan. 18, 2000,
Encl. 1, Declaration of EFC's Vice President for Engineering, at 1-8;
Supplemental Protest, Feb. 5, 2000, at 2-3.

EFC concludes that if the agency had specified what the government actually
requires as to the maximum weights of the fuel tanks and the tanks'
self-sealing capabilities, then "either AmFuel would have been required to
submit a proposal for what is truly an ‘alternate product,' [or] EFC
would have been given information sufficient to offer an ‘alternate
product,' decontenting its ‘exact product' to respond to the requiring
agency's apparent needs for a lesser product." Protester's Comments, Jan. 5,
2000, at 5.

A solicitation requirement is not ambiguous unless it is susceptible to two
or more reasonable interpretations; when a dispute exists as to the actual
meaning of a solicitation requirement, our Office will resolve the matter by
reading the solicitation as a whole and in a manner that gives effect to all
provisions of the solicitation. Eagle Fire Inc., B-257951, Nov. 30, 1994,
94-2 CPD para. 214 at 2. An agency may properly express its needs by specifying
a particular product and affording other firms an opportunity to submit
offers for alternate products, where, as here, the agency has insufficient
technical information to more adequately describe its requirements.
Henschel, Inc., supra, at 4.

Here, the solicitation requests proposals for fuel tanks manufactured by
AmFuel or EFC and identifies the tanks requested by their specific part
numbers. As explained previously, the products identified by these part
numbers were approved for use in the F-15 aircraft more than 10 years ago by
McDonnell Douglas using its procurement specification. Because the McDonnell
Douglas procurement specification expressly sets forth certain maximum
weight limitations for the fuel tanks and incorporates by reference the
self-sealing capabilities detailed in MIL-T-5578C, and the RFP specifically
provides that "configuration control applies," see RFP at 5-13, 25, the RFP
is not ambiguous: it requires that the AmFuel or EFC products supplied under
the part numbers set forth in the solicitation conform to the approved
configurations.

EFC's argument regarding its inability to formulate a proposal for an
alternate product because it was unclear to EFC what requirements would be
imposed regarding the fuel tanks' maximum weights and self-sealing
capabilities is meritless. As stated above, the products identified by part
number in the solicitation were approved under the McDonnell Douglas
procurement specifications and military specifications/standards referenced
therein, and there is no indication in the record that the agency has
approved a change in configuration for either manufacturer's fuel tanks
which deviate from the requirements of those specifications. Accordingly, in
order for an offered alternate product to be "physically, mechanically,
electrically, and functionally interchangeable with" the products identified
in the solicitation as required, RFP at 31, the alternate product would have
to meet the same requirements regarding the fuel tanks' maximum weights and
self-sealing capabilities as the identified products.

We agree with the agency that, although EFC casts its protest as a challenge
to the clarity of the RFP, EFC is primarily contending that if AmFuel is
awarded a contract under this solicitation, it will not provide fuel tanks
in the same configuration as those AmFuel fuel tanks that were approved for
use in the F-15 aircraft more than 10 years ago by McDonnell Douglas under
the applicable procurement and military specifications/standards. In other
words, EFC's contention is that AmFuel will not provide the properly
configured fuel tanks as specified by the RFP. However, whether or not the
agency will properly administer the contract and require the contractor to
perform all of the requirements of the contract are matters of contract
administration which our Office will not review. Northwest EnviroService,
Inc., B-259434, B-259434.2, Mar. 30, 1995, 95-1 CPD para. 171 at 6 n.3.

While conceding that "AmFuel is located in Magnolia, Arkansas, and is
presently capable of complying with the Berry Amendment," the protester
appears to speculate that if AmFuel is awarded the contract, the Air Force
may permit AmFuel to "transfer . . . [the] contract to an affiliate in
France" in violation of the Berry Amendment. [5] Protest at 7-8. The
premature nature of this speculative allegation notwithstanding, we note
again that whether or not the agency will properly administer the contract
and require the contractor to perform all of the requirements of the
contract are matters of contract administration which our Office will not
review.

The protester next argues that AmFuel cannot properly be found responsible
by the agency, and its proposal under this RFP should therefore be rejected,
because its product will not comply with the requirements of the McDonnell
Douglas procurement specification and applicable military specifications and
because AmFuel lacks adequate financial capability. Protest at 8-10;
Supplemental Protest, Dec. 28, 1999, at 4. Because the record shows that
there has been no determination of responsibility, Agency Report, Jan. 11,
2000, at 1-2, this aspect of EFC's protest is also premature and will not be
considered. Everpure, Inc., B-231732, Sept. 13, 1988, 88-2 CPD para. 235 at 4.
In any event, our Office will not review an affirmative responsibility
determination absent a showing of fraud or bad faith or that definitive
responsibility criteria were not applied. Id. Contracting officials are
presumed to act in good faith and, in order to establish otherwise, there
must be virtually irrefutable proof that the agency had a malicious and
specific intent to harm the protester. Id. The protester has made no such
showing.

The protester finally alleges agency bias in favor of AmFuel, complaining
that DLA, through the Department of the Air Force, "has repeatedly given
preferential treatment to AmFuel." Protest at 4. Government officials are
presumed to act in good faith; we will not attribute unfair or prejudicial
motives to procurement officials on the basis of inference or supposition.
RONCO Consulting Corp., B-280113, Aug. 11, 1998, 98-2 CPD para. 41 at 5. In
addition to producing credible evidence showing bias, the protester must
demonstrate that the agency bias translated into action that unfairly
affected the protester's competitive position. Id. Here, EFC has furnished
no credible evidence to support its allegation, and has not demonstrated how
the alleged preferential treatment unfairly affected its competitive
position. Accordingly, we have no basis upon which to question the motives
of the cognizant agency officials.

The protest is denied.

Comptroller General
of the United States

Notes

1. McDonnell Douglas is now Boeing St. Louis.

2. The McDonnell Douglas procurement specifications for the fuel tanks
incorporate by reference, among other things, military specification
MIL-T-5578C (as amended) that sets forth certain requirements for the tanks'
self-sealing capabilities. Protester's Comments, Jan. 5, 2000, Encl. 4,
McDonnell Douglas Corporation Procurement Specification for Tank, Fuel,
Aircraft, Self-Sealing, #2 Fuselage, at 2U.

3. MIL-STD-973 sets forth the requirements for configuration control.
Configuration control concerns who controls the design changes made to an
item, the government or the manufacturer. The government can obtain control
of items it buys by part number, thus giving it the right to approve any
changes made to an item. See Camar Corp., B-253016, Aug. 11, 1993, 93-2 CPD
para. 94 at 4 n.1.

4. The agency disputes the protester's characterization of the test results,
and points out that the tests were conducted by the Navy rather than the Air
Force and were not performed in accordance with all of the requirements of
MIL-T-5578C. Agency Report, Jan. 11, 2000, at 2-3. For example, the Air
Force mechanical engineer whose responsibilities include the F-15 aircraft's
fuel system concluded that "the results of the testing were positive and
therefore deemed acceptable as is." Agency Report, Dec. 22, 1999, Attach.
11, at 2.

5. The RFP (at 23) included the standard "Preference for Certain Domestic
Commodities" clause, Defense Federal Acquisition Regulation sect. 252.225-7012,
which implements the Berry Amendment, 10 U.S.C. sect. 2241 note (1994), which
generally restricts the Department of Defense's expenditure of funds for
certain articles and items, including synthetic fabric and coated synthetic
fabric, to domestically produced products. Our Office has previously
concluded that certain fuel tanks were "items of individual equipment
manufactured within the Berry Amendment restriction." Department of Defense
Purchase of Fuel Cells, B-246304.2 et al., July 31, 1992; see also Dash
Eng'g, Inc.; Engineered Fabrics Corp., B-246304.8, B-246304.9, May 4, 1993,
93-1 CPD para. 363 at 2-3, aff'd, B-246304.12, B-246304.13, Sept. 27, 1993, 93-2
CPD para. 184 at 3-4.