TITLE: B-297137, Testek, Inc., October 28, 2005
BNUMBER: B-297137
DATE: October 28, 2005
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B-297137, Testek, Inc., October 28, 2005

   Decision

   Matter of: Testek, Inc.

   File: B-297137

   Date: October 28, 2005

   Sanjiv Joshi for the protester.

   Robert Sebold, Esq., Defense Logistics Agency, for the agency.

   Jonathan L. Kang, Esq., and Michael R. Golden, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest is denied where agency reasonably determined offeror's proposed
   alternative approach to meeting sole-source requirement did not comply
   with solicitation criteria.

   DECISION

   Testek, Inc. protests the award of a contract to Avtron Manufacturing,
   Inc. under solicitation No. SP0490-05-R-0489, issued by the Defense
   Logistics Agency (DLA) for the upgrade and modernization of aircraft
   generator test stands. The protester argues that the agency improperly
   solicited the requirement on a sole-source basis and improperly rejected
   its alternative proposal as technically unacceptable.

   We deny the protest.

   BACKGROUND

   On April 8, 2005, the agency issued a presolicitation notice stating that
   the agency intended to procure on a sole-source basis "modernization and
   upgrades" for three Avtron generator drive test stands, model Nos. 738/K
   and 400, at the Naval Aviation Depot, Naval Air Station, North Island, in
   San Diego, California.[1] The test stands are used to measure the
   performance of generators that provide power for various aircraft systems
   and components. Because the computer components used in the Avtron test
   stands currently owned by the agency are considered obsolete, Avtron
   offers an upgrade kit to modernize the parts, thereby extending the life
   of the test stand. The statement of work required the upgrade of the three
   test stands by replacement of the data control and data acquisition
   systems in a manner compatible with existing software, the upgrade of two
   gearboxes, and the installation of the upgrades. The upgrades were also
   intended to provide expanded capabilities for testing newer aircraft
   generators.

   The solicitation, issued on April 11, stated that the procurement was
   conducted on a sole-source basis because "highly specialized components
   [are] available only from this contractor," i.e., Avtron. Agency Report
   (AR), Tab D, Presolicitation Notice, at 1. The solicitation established a
   closing date of May 11. The agency prepared a justification for other than
   full and open competition supporting the sole-source award to Avtron. AR,
   Tab E, Justification and Approval (J&A), at 1. The J&A stated that the
   sole-source award was required because the existing Avtron test stands
   lack the capability to meet current generator test requirements, and that
   an upgrade of those test stands or the purchase of new test stands was
   required. Id.  at 4. The J&A further stated that upgrade packages for the
   Avtron test stands could not be obtained from another source. Id. at 1.

   Although the solicitation stated that alternative proposals would not be
   accepted, on May 11, Testek submitted, and the agency evaluated, a
   proposal from this firm to upgrade the Avtron test stands using parts from
   Testek's AECTS test stand, a model currently offered by Testek. Based on
   its evaluation, the agency rejected Testek's proposal as technically
   unacceptable. Testek filed an agency-level protest, which was denied.
   Testek then filed its protest with our Office.

   DISCUSSION

   As an initial matter, Testek raises several protest issues that are
   untimely because they were not raised prior to the time established for
   the receipt of proposals. Bid Protest Regulations, 4 C.F.R. sect.
   21.2(a)(1) (2005). Testek challenges the agency's decision to upgrade the
   existing test stands instead of purchasing new test stands, and the
   agency's conclusion that the upgraded Avtron test stands described in the
   solicitation actually meet the solicitation requirements.[2] Because
   Testek did not challenge the terms of the solicitation prior to the time
   established for the receipt of proposals, it cannot do so now. Bid Protest
   Regulations, 4 C.F.R. sect. 21.2(a)(1).

   The remaining protest ground addresses the reasonableness of the agency's
   evaluation of Testek's alternative proposal under the terms of the
   solicitation. An offeror who submits an alternative proposal to a
   sole-source solicitation has the burden of affirmatively demonstrating
   that the alternative product is an acceptable substitute. Sterling Mach.
   Co., Inc., B-246467, Mar. 2, 1992, 92-1 CPD para. 253 at 2-3. An offeror
   must submit sufficient information in its proposal to enable the agency to
   determine whether the proposed alternative meets all of the requirements
   of the solicitation, and we will not sustain a protest challenging the
   agency's technical determination unless it is unreasonable. Id.

   The agency determined that Testek's proposal described its AECTS test
   stand and its capabilities, but that the proposal did not adequately
   describe how the test stand's components and Testek's approach to
   upgrading the Avtron test stands comprised an acceptable alternative to
   the Avtron upgrade package.[3] AR, Tab S, Agency-Level Protest Denial, at
   1. The agency concluded that Testek's proposal did not demonstrate that
   the upgrade of Avtron's test stands with Testek components was possible or
   that Testek had ever conducted such an upgrade.[4] In fact, Testek now
   acknowledges that it has no experience upgrading the Avtron test stands,
   i.e., that it has never performed this upgrade previously.

   Further, the solicitation required that the equipment offered be a current
   production model. Solicitation, Statement of Work, para. 3.4. The
   solicitation prohibited prototype, pre-production, or redesigned products.
   Id. In light of the solicitation's prohibition on prototype,
   pre-production, or redesigned products, the agency determined that
   Testek's proposal would require modification of Testek's AECTS products to
   achieve compatibility with the Avtron test stands, and thus Testek's
   products were not acceptable under the terms of the solicitation. Based on
   the agency's conclusion that Testek had never performed an upgrade of an
   Avtron test stand by adapting its own AECTS parts, and the agency's
   conclusion that proprietary data requirements would necessitate analysis
   of the Avtron test stands and reverse engineering by Testek to achieve an
   upgrade, the agency, in our view, reasonably determined that Testek's
   proposal was not technically acceptable under the current production model
   criterion. AR, Tab S, Agency-Level Protest Denial, at 3.

   Testek contends that the agency treated it unequally in the evaluation of
   this issue, arguing that because Avtron no longer produces test stand
   model Nos. 738/K and 400, Avtron does not have a product that complies
   with the current production model requirement. Testek argues that, in
   contrast, its AECTS test stand is a current production model, and
   therefore meets the solicitation requirement. The protester, however,
   misunderstands the nature of the current production model criterion in the
   context of the solicitation: the Avtron upgrade package, including the
   parts and installation, is the subject of the solicitation. Thus, the
   upgrade package itself, and not the upgraded test stand, must be the
   current production model that is offered for sale. The agency determined,
   and Avtron's proposal confirms, that the Avtron upgrade package is a
   current production model as that term is defined in the solicitation. See
   AR, Tab H, Avtron Upgrade Package Brochure and Proposal.

   In sum, Testek submitted, and the agency evaluated, Testek's proposed
   alternative approach to meeting the solicitation requirements. We conclude
   that the agency reasonably determined that Testek's alternative proposal
   did not meet the solicitation requirements and was technically
   unacceptable.[5]

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] The solicitation notes that the Avtron test stands, model Nos. 738/K
   and 400, are effectively the same models.

   [2] With regard to the capabilities of the upgraded Avtron test stand,
   Testek contends that only the Testek AECTS test stand has the capability
   to meet the F-18E/F generator test requirements under the solicitation.
   The F-18E/F generator test requirement was clearly stated in the
   solicitation, as was the agency's intention to obtain the Avtron upgrades
   to meet this requirement. Thus, to the extent that Testek claims that
   Avtron cannot provide this functionality, the issue is untimely. 4 C.F.R.
   sect. 21.2(a)(1).

   [3] The agency initially determined that the Testek proposal was
   unacceptable because the agency apparently believed that Testek proposed
   to provide new test stands instead of an upgrade package, and further that
   Testek proposed to provide an AECTS test stand that could only provide
   150-horsepower capacity, instead of the required 300-horsepower capacity.
   AR, Tab P, Rejection of Alternate Proposal, at 1. Testek responded in an
   agency-level protest that its proposal was for the upgrade of the Avtron
   test stands using Testek components from its AECTS test stand, rather than
   a new Testek test stand, and that Testek identified in its proposal
   components capable of providing 300-horsepower motors. AR, Tab Q, Testek
   Agency-Level Protest, at 1-2. In its response to the agency-level protest,
   the agency acknowledged that Testek did propose to upgrade the Avtron test
   stands, and that Testek's proposal identified components capable of
   meeting the 300-horsepower requirement. AR, Tab S, Agency-Level Protest
   Denial, at 1. Nonetheless, the agency, upon reevaluating Testek's
   proposal, concluded that the proposal still did not comply with the
   requirements for the reasons discussed above. Id. Thus, the protester was
   not prejudiced by the initial, apparently incorrect basis for rejecting
   its proposal. See McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para.
   54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.
   Cir. 1996).

   [4] Testek cites phone logs created by its employees of conversations with
   Navy personnel in August 2004 as evidence that DLA knew or should have
   known of Testek's capabilities to meet the solicitation requirements.
   Protester's Comments at 2-3. Discussions with the Navy of the firm's
   general capabilities do not affect Testek's obligation to submit a
   proposal that clearly addressed its ability to meet the specific
   solicitation requirements here. In any case, as discussed above, Testek
   acknowledges that it has had no experience in upgrading Avtron test
   stands.

   [5] Testek raises several other protest issues which we have considered,
   but do not address as we find them to be without merit.