TITLE:  Vertol SystemsCompany, Inc., B-293644.6; B-293644.7; B-293644.8; B-293644.9; B-293644.10, July 29, 2004
BNUMBER:  B-293644.6; B-293644.7; B-293644.8; B-293644.9; B-293644.10
DATE:  July 29, 2004
**********************************************************************
   Decision

   A 

   A 

   Matter of:   Vertol SystemsCompany, Inc.

   A 

   File:            B-293644.6; B-293644.7; B-293644.8; B-293644.9;
B-293644.10

   A 

   Date:              July 29, 2004

   A 

   Lawrence J. Sklute, Esq., and Nolan Sklute, Esq., for the protester.

   Capt. Peter G. Hartman, Department of the Army, and Clarence D. Long, III,
Esq., Department of the Air Force, for the agencies.

   David A. Ashen, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   A 

   Protest of procurement of foreign threat systems aircraft under the
Economy Act is denied where the Army and Air Force reasonably determined
that protester*s aircraft could not satisfy the agencies* requirements for
demonstrated airworthiness.

   DECISION

   A 

   Vertol Systems Company, Inc. protests the actions of the United States
Joint Forces Command (JFCOM) and the Air Force Special Operations Command
(AFSOC) in acquiring foreign threat systems aircraft for use in military
exercises.  Vertol generally asserts that the agencies improperly procured
these aircraft from the Threat Systems Management Office (TSMO),
Department of the Army, or under an existing contract, in violation of the
Competition in Contracting Act, 10 U.S.C. SA 2304(a)(1)(A) (2000), and the
Small Business Act, 15 U.S.C. S 644(a) (2000).

   A 

   We deny the protests.

   A 

   ACQUISITIONS FROM TSMO

   A 

   Background

   A 

   Vertol primarily focuses on the agencies* actions in acquiring foreign
threat systems aircraft from TSMOa**a**instead of allowing Vertol, a small
business, to compete to provide the required aircrafta**a**for use in
military exercises.[1]  In this regard, TSMO controls a fleet of
government-owned foreign ground and aviation systems, currently operated
and maintained by Research Analysis & Maintenance, Inc. (RAM), which are
used to provide realistic threats during training exercises and the
testing of United States weapons systems. 

   A 

   On March 16, 2004, the Joint National Training Center, JFCOM, executed a
determination and findings (D&F) pursuant to the Economy Act, 31A U.S.C.
SA 1535A (2000), in support of a military interdepartmental purchase
request to TSMO for the provision of two Russian helicoptersa**a**a
Russian Mi-17 transport helicopter and a Russian Mi-24D attack
helicoptera**a**with necessary maintenance and operational support, to
support opposition forces in a joint training exercise to occur
JuneA 12a**21,A 2004.  JFCOM anticipated that the helicopters would
actively participate in day and night operations during the exercise, with
the Mi-17 transport helicopter ferrying troops and the Mi-24D attack
helicopter conducting air assault missions in close proximity to military
and civilian personnel.  JFCOM*s D&F indicated that, before aircraft could
be used in a military exercise, they must first be determined airworthy in
accordance with military instructions and regulations.  JFCOM*s D&F
further indicated that only TSMO could provide aircraft with the required
airworthiness certification; according to the D&F, there were no
commercial sources that could provide the required aircraft certified
airworthy in accordance with applicable military instructions and
regulations.  Army D&F, Mar.A 16, 2004; Memorandum, Joint Training
Directorate, Mar. 19, 2004.

   A 

   On April 27, 2004, the Air Force executed a D&F pursuant to the Economy
Act in support of a military interdepartmental purchase request to TSMO
for the provision of a Russian Mi-8 transport helicopter, flight crew,
support and maintenance crew and instructor pilot to support the training
of pilots and troops of the 6th Special Operations Squadron (6th SOS)
through August 31, 2004.  The contemplated training requirement included a
need for night vision goggle capabilities.  The Air Force determined that
safety considerations required that only an aircraft with a standard air
worthiness certificate from the Federal Aviation Administration (FAA), or
the military equivalent certification to carry government employees, could
be used.  The D&F, and the agency*s accompanying market research report,
indicated that the agency had concluded, based on its market research,
that no private source was qualified to provide aircraft with the required
airworthiness certification and approved flight and ground operations.  In
this regard, while the Air Force was aware that Vertol owned an Mi-8
helicopter, the agency noted that FAA had only granted the aircraft a
limited, *experimental* airworthiness certificate, which the Air Force
viewed as insufficient to meet its safety concerns.  In addition, the Air
Force determined that it would not be possible for any private owner of an
Mi-8 helicopter to obtain the appropriate airworthiness certificate from
FAA or the military equivalent in time to meet the agency*s immediate need
for training forces engaged in the war on terror.  According to the
agency, an airworthiness assessment/certification by the military,
specifically TSMO, could take 2a**4A months, with any necessary
modifications taking 2a**8 months.  The Air Force concluded that TSMO was
the only source capable of providing an Mi-8 helicopter meeting the
agency*s needs.  Air Force Market Research Report, Apr. 19, 2004; Air
Force Mia**8 D&F, Apr. 27, 2004.[2]

   A 

   Preaward Assessment

   A 

   Vertol asserts that it is improper to require certification of
airworthiness before award.  According to the protester, while *[t]he
agency has a legitimate need to require offerors to obtain [Army
Regulation (AR)] 70-62 airworthiness certification for the proposed
helicopters to ensure the airworthiness of the helicopters during contract
performance,*  *the certification is not relevant prior to actual contract
performance.*  Vertol Comments, June 21, 2004, at 58-59.  Vertol maintains
that its aircraft could be promptly certified airworthy by the military
after award. 

   A 

   The Competition in Contracting Act of 1984 requires that agencies specify
their needs and solicit offers in a manner designed to achieve full and
open competition, so that all responsible sources are permitted to
compete.  10 U.S.C. SA 2305(a)(1)(A)(i) (2000).  However, the
determination of a contracting agency*s minimum needs and the best method
for accommodating them are matters primarily within the agency*s
discretion.  Tucson Mobilephone, Inc., B-250389, Jan. 29, 1993, 93-1 CPD
PA 79 at 2, recon. denied, B-250389.2, June 21, 1993, 93-1 CPD P 472. 
Where a requirement relates to national defense or human safety, as here,
an agency has the discretion to define solicitation requirements to
achieve not just reasonable results, but the highest level of reliability
and effectiveness.  Caswell Int*l Corp., Ba**278103, Dec. 29, 1997, 98-1
CPD P 6 at 2; Industrial Maint. Servs., Inc., Ba**261671 et al., Oct. 3,
1995, 95-2 CPD P 157 at 2. 

   A 

   We think the agency has reasonably established a legitimate need for
aircraft to be certified before award.  Given the critical need to ensure
the safety of government personnel, including both those on board the
aircraft and those who will be in close proximity to the aircraft while in
operation during the military exercises, we see no basis to object to a
requirement that the airworthiness of a foreign, contractor-owned aircraft
be demonstrated by means of a certification by competent aviation
authorities.  Thus, a foreign, contractor-owned aircraft cannot be used to
meet the agency*s needs until its airworthiness is demonstrated.  While
the record indicates that the length of time an airworthiness assessment
may take depends to some extent upon the particular circumstances of an
aircrafta**a**including its origin, maintenance and flight history,
configuration and conditiona**a**the agencies report that a detailed
airworthiness assessment by the military could take at least
2a**4A months, and that any necessary modifications could take
2a**8A months.  In this regard, the Army notes that it previously took 136
days (and over 3,200 staff-hours) to complete an airworthiness review for
an Mi-8 helicopter, even though the review was TSMO*s top aviation
priority and the aircraft had only accrued 12 hours, 29 minutes of
operation since a major overhaul from a factory-authorized service
center.  Declaration of TSMO Operations Team Leader, June 8, 2004, at 2;
Declaration of TSMO Operations Team Leader, Feb. 27, 2004; Declaration of
the Commander, Army Aviation Technical Test Center, May 11, 2004, at 6
(TSMO estimate assumes an aircraft with *good pedigree,* including good
historical records, and only minor modifications); see Declaration of the
Commander, Army Aviation Technical Test Center, June 8, 2004.  Although
Vertol asserts that the time required to assess the airworthiness of its
aircraft will be substantially less, the record furnishes no persuasive
evidence that the agencies* estimate of the time required for an
airworthiness assessment of a foreign, contractor-owned aircraft to be
used in military exercises was unreasonable.  Given the potentially
lengthy process involved in assessing airworthiness, and in view of the
fact that there would be no guarantee of a positive assessment, we
conclude that the agencies reasonably determined that an airworthiness
certification was a necessary precondition to receiving award.[3]   See
Computer Maintenance Operations Servs., B-255530, Feb. 23, 1994, 94-1 CPD
PA 170 at 2 (solicitation requirement for security clearances at time of
award does not unduly restrict competition where contract performance will
be impossible without clearances).

   A 

   Moreover, Vertol*s assertion that its aircraft can be certified after
award is premised on its view that a military agency will be able to
perform the assessment.  However, Vertol*s position ignores the fact that
there is no military certification process available for the certification
of the airworthiness of privately-owned foreign aircraft not under
contract to the government.  In this regard, the Army reports that TSMO is
the only Department of Defense entity with the established policies,
procedures, processes and authority to determine the airworthiness of
aircraft such as the Russian aircraft in dispute here, and that TSMO*s
authority only extends to aircraft it owns or controls.  Army Report, June
9, 2004, at 12-13; Declaration of TSMO Operations Team Leader, June 8,
2004, at 2.  The Army further points out that it would be impracticable
for TSMO to perform airworthiness assessments for aircraft not under its
control, since a new airworthiness assessment would be necessary each time
an approved aircraft passed out of the control of the military; according
to the Army, TSMO lacks the specialized manpower to perform such numerous
airworthiness assessments.  We find no basis to object to the agencies*
position. 

   A 

   We note that, while the agencies have no certification process available,
they have indicated a willingness to consider airworthiness certifications
from other competent aviation authorities.  The Army has stated that it
would accept a standard FAA airworthiness certificate, a limited
certification that specifically allows the helicopter to participate in
complex military exercises (including transporting troops and flying at
night), or the Russian equivalent of an FAA standard airworthiness
certificate.  Army Comments, July 23, 2004; Army Comments, June 30, 2004,
at 6, 12.  Likewise, the Air Force has stated that it would accept a
standard FAA airworthiness certificate or an airworthiness certificate
issued by a country with which the FAA has a bilateral airworthiness
agreement.  In addition, the Air Force has indicated that it *may
consider* accepting foreign civil airworthiness certificates from
countries with which the FAA does not have a bilateral airworthiness
agreement.  Air Force Comments, July 1, 2004, at 3-4.  Although Vertol
asserts that a standard FAA airworthiness certificate is not available to
foreign aircraft such as its helicopters, certification still could be
available through the other means identified by the agencies.  In any
case, where, as here, a requirement reasonably reflects the agency*s
needs, the mere fact that a particular prospective offeror is unable or
unwilling to compete does not establish that the requirement is unduly
restrictive of competition.  See Virginia Elec. and Power Co.; Baltimore
Gas & Elec. Co., B-285209, B-285209.2, Aug. 2, 2000, 2000A CPD P 134
atA 15.  

   A 

   FAA Certification

   A 

   Vertol asserts that, as an alternative to a standard FAA airworthiness
certificate, the agencies should accept an experimental airworthiness
certification by the FAA.  In this regard, the record indicates that some,
but not all, of Vertol*s Russian aircraft have an experimental FAA
airworthiness certificate.  (The remainder appear to have no FAA
airworthiness certificate.[4])  However, neither the Air Force nor the
Army consider an experimental FAA airworthiness certificate to be a
sufficient demonstration of airworthiness as to warrant participation in
military exercises and training involving government personnel (including
both those on board the aircraft and those who will be in close proximity
to the aircraft while in operation during the military exercises), and
flying at night as well as during the day. 

   A 

   We find no basis for objecting to the agencies* refusal to accept an
experimental certificate.  In response to our request for its views, FAA
has supported the agencies* position regarding the limits of an
experimental FAA airworthiness certificate.  In this regard, FAA
regulations generally provide that experimental airworthiness certificates
are issued for the purposes of:  (1)A research and development;
(2)A conducting test flights and other operations to show compliance with
the airworthiness regulations; (3) crew training; (4)A exhibiting the
aircraft*s flight capabilities, performance, or unusual characteristics at
air shows, motion picture, television, and similar productions; (5) air
racing; (6) market surveys; (7)A operating amateur-built aircraft;
(8)A operating kit-built aircraft; and (9) operating light-sport
aircraft.  14 C.F.R. S 21.191 (2004).  FAA has advised that using
helicopters in a joint forces training exercise does not qualify as
exhibition of the aircraft, the only operational purpose for which the
Vertol Mi-24 helicopter with an experimental FAA airworthiness certificate
had been certified, and that using the aircraft in this manner would
violate the applicable regulation.  In addition, FAA advises that
accepting payment when the helicopter is used to transport troop personnel
would amount to the carriage of persons for hire, an activity that is
prohibited for aircraft issued only an experimental FAA airworthiness
certificate.  (In this regard, 14 C.F.R. S 91.319(a) provides that:  *No
person may operate an aircraft that has an experimental certificate--(1)
For other than the purpose for which the certificate was issued; or
(2)A Carrying persons or property for compensation or hire.*)  Further,
FAA states that operation of the helicopter at night would not be
permitted until certain FAA regulatory instrumentation and equipment
requirements had been met.  Letter from FAA to GAO, Mar. 19, 2004.

   A 

   Vertol notes that, contrary to the agencies* positions here, the record
indicates that the Army and the Air Force have previously procured the use
of contractor-owned foreign aircrafta**a**including aircraft furnished by
Vertola**a**possessing only an experimental FAA airworthiness
certificate.  Army Comments, June 30, 2004, at 3-4; Air Force Report, June
16, 2004, Contracting Officer Statement of Facts; Air Force Comments, July
1, 2004, at 2.  In addition, it appears that the Department of the Navy
may use contractor-owned foreign aircraft possessing only an experimental
FAA airworthiness certificate.  Army Comments, June 30, 2004, at 3-4, 7
n.14, Declaration of Director, Joint National Training Capability; Vertol
Comments, June 21, 2004, at 6.  However, the Army and Air Force explain
that, until Vertol brought the matter to their attention, they had not
fully understood and complied with the airworthiness certification
requirements for foreign aircraft; they state that they will seek to
ensure that the airworthiness certification requirements are met in the
future.  Army Comments, June 30, 2004, at 4; Air Force Comments, July 1,
2004, 2-3.  In any case, each federal procurement stands alone; an
agency*s acceptance of an approach as acceptable under a prior procurement
does not require the agency to find the same approach acceptable under the
present procurement.  See Career Quest, Inc., Ba**292865, B-292865.2,
Dec.A 10, 2003, 2004 CPD P 4 at 5-6.  We conclude that the fact that the
agencies may have been willing in the past to accept foreign,
contractor-owned aircraft with only an experimental FAA airworthiness
certificate, or that the Navy may still accept such aircraft, does not
render unreasonable the agencies* determination here to require the
highest levels of safety as evidenced by a standard FAA airworthiness
certificate.

   A 

   We find that the Army and Air Force reasonably determined that Vertol*s
aircraft, whether possessing an experimental FAA airworthiness
certification or no FAA airworthiness certification at all, could not
satisfy the agencies* requirements for demonstrated airworthiness.  We
thus conclude that nothing in Vertol*s arguments furnishes a basis for
objecting to the agencies proceeding under the Economy Act. 

   A 

   ACQUISITION UNDER EXISTING CONTRACT

   A 

   Vertol also challenges the Air Force*s acquisition of aircraft under the
United States Special Operations Command*s (USSOCOM) existing contract
with L3 Communications Integrated Systems (L3Com).  On April 1, 2003,
USSOCOM awarded an indefinite-delivery/indefinite-quantity contract to
L3Com to furnish logistics support, including logistics support services
for aircraft, to special operations forces.  On November 6, two task
orders were issued to L3Com to provide 6th SOS with threeA aircraft,
including one BT-67, one Russian An-32, and one Russian Mi-8/17 aircraft. 
On November 13, one task order was modified to replace the An-32 aircraft
with a Russian An-26 aircraft.  L3Com conducted a competition among
potential subcontractors to meet the An-26 requirement and then issued a
purchase order to Avia Leasing/SRX for an An-26.

   A 

   On June 2, 2004, Vertol filed a protest with our Office challenging
procurement of the An-26 from Avia.  Asserting that it first learned the
basis of its protest on May 31, Vertol argued that the order to Avia for
the An-26 exceeded the scope of L3Com*s contract and was an improper
sole-source award.  As discussed above, however, Vertol has made no
showing that, if afforded the opportunity to satisfy the agency*s need for
an An-26 aircraft, it could furnish a suitable aircraft that meets the Air
Force*s reasonable requirements with respect to demonstrated
airworthiness.

   A 

   Under the bid protest provisions of the Competition in Contracting Act of
1984,
31 U.S.C. SS 3551-3556 (2000), only an *interested party* may protest a
federal procurement.  That is, a protester must be an actual or
prospective supplier whose direct economic interest would be affected by
the award of a contract or the failure to award a contract.  Bid Protest
Regulations, 4A C.F.R. SA  21.0(a) (2004).  Determining whether a party is
interested involves consideration of a variety of factors, including the
nature of issues raised, the benefit of relief sought by the protester,
and the party*s status in relation to the procurement.  Four Winds Servs.,
Inc., B-280714, Aug.A 28, 1998, 98-2 CPD PA  57 at 2.  A protester is not
an interested party where it would not be in line for contract award were
its protest to be sustained.  Id.  Since

   Vertol is unable to meet the agencies* reasonable minimum needs, Vertol is
not an interested party to protest the procurement of the An-26.[5]

   A 

   The protests are denied.

   A 

   Anthony H. Gamboa

   General Counsel

   A 

   ------------------------

   [1] Foreign threat systems aircraft are aircraft that represent enemy
aircraft during military exercises and the testing of United States
weapons systems.

   [2] In any case, Air Force determined that given the hourly rate Vertol
has charged for use of its Mi-8 helicopter, it would be more economical to
use TSMO*s helicopter.

   [3] Furthermore, the agencies contemplate having to assume some risk of
loss for aircraft they take under contract.  Army Comments, June 30, 2004,
at 10; Air Force Comments, Contracting Officer*s Statement, June 5, 2004,
at 4.  We see nothing unreasonable in their refusal to accept liability
for aircraft before knowing whether such aircraft are airworthy.

   [4] As noted by the Army, FAA*s on-line registry of aircraft currently
indicates that only one of Vertol*s Mi-24D helicopters has even an
experimental FAA airworthiness certificate; the other four Mi-24D
helicopters and the Mi-8 helicopter appearing under the registry listings
for *Vertol Systems* have no FAA airworthiness certificate.  FAA*s on-line
registry also includes a Vertol Systems listing of a Russian An-2
fixed-wing Russian aircraft, which does have an experimental FAA
airworthiness certificate.  Army Comments, May 14, 2004, at 2; Army
Comments, June 9, 2004, at 6; see .

   [5] As noted by Vertol, although the An-26 being procured is listed in the
FAA registry of aircraft, it has no FAA airworthiness certificate. 
However, according to the Air Force, the aircraft has a valid
country-of-origin standard airworthiness certificate.  In any case,
reports the agency, the aircraft is grounded and will not be flown until
questions regarding its airworthiness ars resolved.  Air Force Comments,
July 1, 2004, at 4; Air Force Comments, July 12, 2004; Air Force Comments,
July 15, 2004.