TITLE: CM Manufacturing, Inc., B-293370, March 2, 2004
BNUMBER: B-293370
DATE: March 2, 2004
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CM Manufacturing, Inc., B-293370, March 2, 2004
Decision
Matter of: CM Manufacturing, Inc.
File: B-293370
Date: March 2, 2004
Ken Johnson for the protester.
Curtis D. Elton, Esq., Department of the Air Force, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
of the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
Contracting agency did not deny protester the opportunity to qualify as a
source for solicited part by failing to include in the solicitation a
description of required anodizing procedures for the item being procured
where those procedures were clear from information furnished to the
protester and where engineer responsible for qualification personally
explained to the protester the required anodizing process and the reason
for it while reviewing its qualification request.
DECISION
CM Manufacturing, Inc. protests the award of a contract to Goodrich
Landing Gear under request for proposals (RFP) No. F42630-03-R-3424,
issued by the Department of the Air Force for bungee assemblies for the
F-15 aircraft. The protester contends that the Air Force denied it the
opportunity to qualify as a source for the item prior to the date of award
by failing to include in the RFP information that it required to obtain a
waiver of the qualification requirements.
We deny the protest.
The RFP notified prospective offerors that the acquisition was restricted
to qualified sources and identified as approved sources Goodrich and four
other firms, not including the protester. The solicitation advised that
to become a qualified source, an offeror would be required to provide a
pre-contract award qualification article meeting the requirements of the
engineering drawings, material specifications, and process drawings; it
also provided for the possibility of waiver of the above requirement,
however, as follows:
An offeror who has had previous experience in the manufacture and
qualification of items, which can be correlated with this product, may
apply to the design control authority at [Hill Air Force Base] for a
waiver of the above stated qualification requirements.
RFP, Source Qualification Requirements, at 2. The RFP went on to note
that *[t]his waiver will be granted if and only if the design control
authority . . . can establish the qualifications of the offeror through
the evaluation of written inputs from the offeror or from previous
knowledge of the offeror*s capabilities or from previous experience with
the offeror on similar item acquisitions,* and that *[t]he current
acquisition need not and will not be delayed in order to provide an
offeror with an opportunity to meet the requirements for qualification
waiver.* Id.
The protester requested, but was not granted, a qualification waiver prior
to the date of award. On November 25, the agency awarded a contract to
Goodrich.[1]
The Air Force engineer responsible for qualifying new sources for the
bungee assembly explains that CM submitted a *qualification by similarity*
package claiming that it had produced a part similar to the one sought,
but that he determined that CM could not be considered a qualified source
based on its allegedly similar item because the similar item did not
undergo the same anodizing process as required for the bungee cap, one of
the two components of the bungee assembly.[2]
The protester contends that the Air Force denied it the opportunity to
qualify as a source for the item prior to the date of award by failing to
include in the RFP a description of the required anodizing procedures.[3]
CM alleges that the Air Force *is trying to hold manufacturers to
requirements that engineers know of but failed to include in the
solicitation,* and that *[h]ad this information been included in the [RFP]
then CM would [have] included this procedure in the [qualification]
package, [and] thus not [been] rejected by the engineer.* Protester*s
Comments, Jan. 5, 2004, at 1.
An agency may limit competition for the supply of parts if doing so is
necessary to ensure the safe, dependable, and effective operation of
military equipment, and if nonapproved sources are given a reasonable
opportunity to qualify. Arrow Gear Co., B-238936, July 12, 1990, 90-2 CPD
P: 28 at 4. In such cases, contracting agencies are required to advise
potential offerors of all the requirements they must satisfy to become
qualified; afford them a prompt opportunity to demonstrate their ability
to meet the qualification standards; and promptly inform potential
offerors whether qualification has been attained. Federal Acquisition
Regulation S:S: 9.202(a)(2) and 9.202(a)(4).
Here, the agency asserts that the required process was clear from a
drawing that was made available to the protester and other prospective
offerors (via posting on a web-site). The agency further argues that even
assuming that the RFP package and drawing did not adequately apprise the
protester of the requirement, the protester was on notice of it because
*[s]hortly after CM submitted its qualification/ qualification waiver
package, [the engineer] conferenced with CM and explained in detail to CM*
the agency*s requirement and its importance. Supp. Decl. of Air Force
Engineer, Jan. 4, 2004, at 2-3. According to the Air Force engineer, *CM
responded to [his] explanation of the requirement and its importance, not
by stating that it could or would comply with it, but rather by
challenging its necessity and claiming CM could achieve acceptable part
without using this anodize method.* Id. at 3.
The protester has neither taken issue with nor attempted to rebut either
the agency*s argument that the required anodizing process was clear from
the drawing or its argument that the engineer personally advised CM of the
required process. With regard to the latter point, the protester indeed
confirmed in its January 5 submission to our Office that the Air Force
engineer had explained the required anodizing process to it and that it
had responded by claiming that it could produce an acceptable part without
using this method. Because the protester has neither taken issue with nor
attempted to refute the agency*s position, it effectively has abandoned
its argument that the Air Force denied it the opportunity to qualify as a
source by failing to include in the RFP sufficiently detailed information
regarding the required anodizing procedure. O. Ames Co., B-283943, Jan.
27, 2000, 2000 CPD P: 20 at 7. In any event, it is clear from the record
that CM was aware of the agency*s requirement and failed to demonstrate
that its item had undergone the required anodizing process. As a result,
it clearly was reasonable for the agency to conclude that CM was not a
qualified source.
In its final submission to our Office, the protester requests that the Air
Force furnish it with an additional opportunity to qualify as a source.
To the extent that the protester is requesting that the agency continue to
suspend performance of the contract awarded to Goodrich until CM has been
given an additional opportunity to qualify, the Air Force is under no
obligation to do so. Marc Ave. Corp.,
B-261968.2, Jan. 11, 1996, 96-1 CPD P: 79 at 3; see also RFP at 13
(*Unless determined to be in the Government*s interest, award of this
contract shall not be delayed to permit an offeror to submit evidence of
qualification.*) and at Source Qualification Requirements at 2 (*The
current acquisition need not and will not be delayed in order to provide
an offeror with an opportunity to meet the requirements for qualification
waiver.*).
To the extent that the protester is instead requesting that the Air Force
give it the opportunity to qualify as a source so that it will be able to
compete for future acquisitions of the bungee assembly, the Air Force has
indicated its willingness and intention to continue working with CM to
qualify it as a source for the part. Contracting Officer*s Statement of
Fact and Findings at 1, 3; Decl. of Air Force Engineer, Dec. 16, 2003, at
7.
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] The RFP provided for award to the technically acceptable offeror with
the most favorable combination of past performance and price. The
protester*s past performance and price were not evaluated because CM was
not a qualified source.
[2] The process at issue here is anodizing an aluminum surface, which is
performed as a means of preventing corrosion. The Air Force engineer
describes the effect of anodizing as similar to rust on steel. The
specific dispute between CM and the agency concerns the difference between
two types of anodizing, hard anodizing and soft anodizing, which require
different processing techniques and produce different results. The agency
decided not to approve CM as a qualified source because it found no
evidence that CM*s item had been subject to the soft anodizing process
required by the agency for the item here. See Decl. of Air Force
Engineer, Dec. 16, 2003, at 1-3.
[3] The protester also complained in its initial protest to our Office
that the contracting officer failed to check the status of its request for
qualification prior to awarding to Goodrich. The contracting officer
denies that this was the case, noting that she checked several times,
including immediately prior to award on November 25, to see if any other
sources had become qualified, but CM had not. CM does not dispute the
contracting officer*s account of events.