TITLE: B-298247; B-298247.2, Fabritech, Inc., July 27, 2006
BNUMBER: B-298247; B-298247.2
DATE: July 27, 2006
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B-298247; B-298247.2, Fabritech, Inc., July 27, 2006

   Decision

   Matter of: Fabritech, Inc.

   File: B-298247; B-298247.2

   Date: July 27, 2006

   Shlomo D. Katz, Esq., and Kenneth B. Weckstein, Esq., Epstein, Becker &
   Green, PC, for the protester.

   J. Michael Slocum, Esq., Slocum & Brodie, PC, for The Purdy Corporation,
   an intervenor.

   Vera Meza, Esq., and Amy S. Meredith, Esq., Department of the Army, and
   John W. Klein, Esq., and Kenneth Dodds, Esq., Small Business
   Administration, for the agencies.

   Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest challenging rejection of small business protester's offer on the
   ground that the agency's decision constituted a nonresponsibility
   determination that should have been referred to the Small Business
   Administration is sustained where the basis of the agency's
   determination--that protester would be unable to obtain the required
   parts--relates directly to the firm's capability to perform the contract.

   DECISION

   Fabritech, Inc., a small business, protests the award of a contract to The
   Purdy Corporation under request for proposals (RFP) No. W58RGZ-04-R-0686,
   issued by the U.S. Army Aviation and Missile Command (AMCOM) for overhaul
   of tail rotor gearboxes for the AH-64 helicopter. Fabritech argues that
   the agency improperly failed to refer the determination of Fabritech's
   responsibility to the Small Business Administration (SBA) under the
   certificate of competency (COC) program. Fabritech also asserts that the
   agency treated it and the awardee unequally in that the agency either
   failed to verify that the awardee would provide certified parts--as
   Fabritech was asked to do--or the agency held discussions with the awardee
   without also holding discussions with Fabritech.

   We sustain the protest.

   BACKGROUND

   AMCOM issued the RFP on December 20, 2004 to acquire the overhaul of a
   minimum of 95 and a maximum of 500 tail rotor gearboxes for the AH-64
   helicopter. The RFP was initially issued as a total small business
   set-aside. By amendment 3, issued on February 16, 2006, the agency changed
   the RFP to restrict competition to approved sources for the gearboxes; in
   this regard, the amendment stated that "[c]urrently, the only approved
   sources for this item" are Purdy and Fabritech. Supplemental Agency Report
   (Supp. AR), Tab 5, RFP amend. 3 at 2. The amendment also changed the
   original evaluation factors for award to provide that award would to be
   made to the "responsive and responsible offeror whose proposal is
   evaluated at the lowest total cost to the government."[1] Id. at 12.

   With regard to Fabritech's status as an approved source, the agency
   notified Fabritech by letter dated December 7, 2005, that it was approved
   as a source of repair and overhaul of the gearboxes provided that
   Fabritech met several contingencies, including agreeing to purchase all
   critical safety item (CSI)[2] replacement parts from AMCOM-approved and
   -tested sources. AR, Tab A, attach. 3, at 2. In a letter to the protester
   dated March 13, 2006, the contracting officer requested that Fabritech
   provide documentation that it met the contingencies, including the
   requirement that all CSI replacement parts be purchased from
   AMCOM-approved and -tested sources, so that the agency could "adequately
   evaluate and make a determination of Fabritech's responsibility." Supp.
   AR, Tab 10, attach. 4, Letter from Contracting Officer to Protester, Mar.
   13, 2006, at 1-2.[3] Fabritech responded by letter dated March 24, noting
   that it expected to receive approval of its source approval request for
   the new manufacture of the gearbox in September 2006. Fabritech asserted
   that approval on or near that date would allow it ample time to
   manufacture the parts necessary to perform the contract. Fabritech
   asserted that, in what it considered the highly unlikely event that its
   approval to manufacture the parts in-house were delayed, it could borrow
   useable parts from items that were slated for later overhaul for use in
   earlier overhauls. The parts that had been borrowed would then be obtained
   or manufactured in time to be used in the later overhauls. AR, Tab A,
   attach. 5.

   The agency made award to Purdy on April 17. By letter dated April 18, the
   agency informed Fabritech that its assertion that it was working to become
   a qualified source for the CSI items "does not supply current proof of
   your ability to meet this requirement" and that therefore Fabritech's
   proposal "cannot be considered at this time." AR, Tab A, attach. 10,
   Letter from the Army to Protester, Apr. 18, 2006, at 2. This protest
   followed.

   DISCUSSION

   Fabritech asserts that the agency's rejection of its proposal was based on
   a determination that Fabritech is not a responsible offeror in view of its
   perceived inability to obtain the required parts from an approved source,
   and thus that the Army was required to refer the matter to the Small
   Business Administration (SBA) pursuant to the certificate of competency
   (COC) procedures. See 15 U.S.C. sect. 637(b)(7) (2000).

   The term "responsibility" refers to a firm's apparent ability and capacity
   to perform contract requirements. See Antenna Prods. Corp., B-227116.2,
   Mar. 23, 1988, 88-1 CPD para. 297 at 3. If a small business concern's
   offer that would otherwise be accepted is to be rejected because of a
   determination of nonresponsibility, the contracting officer must refer the
   matter to the SBA, which has exclusive authority to decide whether or not
   to issue a COC. Federal Acquisition Regulation (FAR) sect. 9.104-3(d)(1).
   Here, the protester has represented that it will obtain the parts either
   by manufacturing them itself--given that the protester expects to receive
   approval in time to do so--or, failing that, by borrowing parts that are
   slated for later overhaul to use in earlier overhauls. Protest, exh. 2,
   Letter from Protester to Contracting Officer, Mar. 24, 2006, at 1-2. The
   protester argues that it has proposed an acceptable means of furnishing
   the necessary parts, and that any dispute with the agency over the
   protester's ability to do so is a matter of responsibility.

   We agree that the decision to reject Fabritech's proposal constituted a
   determination of nonresponsibility. The record shows that the reasons
   given for the agency's rejection relate directly to the protester's
   ability or capability to perform, and the agency's concerns clearly align
   with the description in the relevant FAR provisions of elements bearing on
   responsibility. See FAR sect. 9.104-1(b) (firm must "[b]e able to comply
   with the required or proposed delivery or performance schedule"); sect.
   9.104-3(a) (the contracting officer "shall require acceptable evidence of
   the prospective contractor's ability to obtain required resources"; that
   evidence "normally consists of a commitment or explicit arrangement, that
   will be in existence at the time of contract award, to rent, purchase, or
   otherwise acquire the needed facilities, equipment, other resources, or
   personnel"). See also Noah Howden, Inc., B-227979, Oct. 22, 1987, 87-2 CPD
   para. 386 at 3.

   The agency asserts that the decision to reject Fabritech's proposal was
   based not on a finding of nonresponsibility, but on a finding that the
   proposal was unacceptable for failure to meet a qualification requirement,
   and thus there was no requirement for referral to the SBA. The term
   "qualification requirement" means "a requirement for testing or other
   quality assurance demonstration that must be completed by an offeror
   before award of a contract." 10 U.S.C. sect. 2319(a) (2000). In support of
   its position here, the agency relies on 10 U.S.C. sect. 2319(c)(4), which
   provides as follows:

     Nothing contained in this subsection requires the referral of an offer
     to the [SBA] pursuant to [15 U.S.C. sect. 637(b)(7)] if the basis for
     the referral is a challenge by the offeror to either the validity of the
     qualification requirement or the offeror's compliance with such
     requirement.

   Because, as explained above, we conclude that the basis of the agency's
   decision relates to responsibility, not compliance with a qualification
   requirement,[4] the statutory exception to the requirement for referral to
   the SBA in 10 U.S.C. sect. 2319(c)(4) does not apply. This conclusion is
   consistent with our cases addressing the distinction between findings
   relating to compliance with qualification requirements and those relating
   to an offeror's responsibility.[5] See Stevens Tech. Servs., Inc.,
   B-250515 et al., May 17, 1993, 93-1 CPD para. 385 at 10 (exception to
   referral requirement is not applicable where the solicitation
   qualification requirements relate to the firm's capability to perform
   rather than product testing or specification compliance); Goodyear Tire &
   Rubber Co., B- 247363.6, Oct. 23, 1992, 92-2 CPD para. 315 at 7 (the
   ability of an offeror to supply a qualified product--but not whether a
   product was properly qualified--concerns the offeror's responsibility).

   The agency also asserts that the dispute here is not whether the protester
   is capable of performance, which the agency concedes would be a
   responsibility determination, but rather relates to the agency's concern
   regarding the protester's proposed method of performance, which can--and
   in this case did--render the proposal unacceptable. Specifically, the
   protester's "current inability to meet the requirements of the
   solicitation and technical documentation" rendered the protester's
   proposal technically unacceptable, the agency argues. Supp. AR, Legal
   Memorandum, at 3.

   The agency distinguishes the protester's "proposed ways to perform the
   solicitation requirements" from its "capabilities," citing Capital CREAG
   LLC, B-294958.4, Jan. 31, 2005, 2005 CPD para. 31. In CREAG, we concluded
   that because the agency's unfavorable evaluation of the protester's
   proposal was based on its proposed approach to performing the contract
   requirements (specifically, a decentralized approach to management and
   staffing), rather than on the protester's ability or capability to
   perform, the agency's decision not to make award to the firm was not
   tantamount to a nonresponsibility determination, and therefore no referral
   to the SBA was required. Capital CREAG LLC, supra, at 7-8. Here, in
   contrast, the agency is challenging the protester's ability to obtain the
   parts from approved sources; in this regard, the contracting officer
   states that "Fabritech cannot be awarded a maintenance and overhaul
   contract because Fabritech did not provide evidence of their ability to
   purchase CSI parts from approved sources nor is it approved as a
   `manufacturing source.'" Supp. AR, Contracting Officer's Statement, at 11.
   We therefore find unpersuasive the agency's argument that its challenge is
   to the protester's unacceptable methodology rather than the firm's
   responsibility.

   Further, the agency fails to point to any provision in the RFP calling for
   consideration of an offeror's approach to obtaining parts as part of a
   technical evaluation of the offer. On the contrary, as noted above, the
   RFP was amended to change the original basis for award--which provided for
   award to the offeror whose proposal was found to offer the best value to
   the government--to provide for award to the "responsive and responsible
   offeror whose proposal was evaluated at the lowest total cost to the
   government." Supp. AR, Tab 5, RFP amend. 3 at 12. The RFP also was amended
   to delete the evaluation factors set out in the original RFP and
   substitute DFARS sect. 52.215-4008, which addresses only the evaluation of
   price, not any technical factors. Thus we see no support in the terms of
   the RFP for the argument that the assessment of the protester's ability to
   obtain the required parts related in any way to the technical evaluation
   of its proposal.

   The agency also asserts that since Fabritech is not yet an approved
   source, the agency is precluded from making award to the firm. In support
   of this argument, the agency points to the following statutory provision,
   which in relevant part states as follows:

     [T]he head of the contracting activity for an aviation critical safety
     item [may] enter into a contract for the procurement, modification,
     repair, or overhaul of such item only with a source approved by the
     design control activity in accordance with section 2319 of title 10,
     United States Code.

   National Defense Authorization Act for Fiscal Year 2004, Pub. L. No.
   108-136, sect. 802(b)(2), 117 Stat. 1392, 1540 (2003), reprinted in 10
   U.S.C.A. sect. 2302 note. See also DFARS sect. 209.270-3(a) (implementing
   regulation).

   The agency argues that since Fabritech has not demonstrated to the
   agency's satisfaction that it has the ability to obtain required parts
   from a qualified source, it has not met a qualification requirement; the
   firm therefore cannot be an approved source for the part, and the agency
   thus may not award a contract to the firm. The premise of the agency's
   argument here is flawed, however, because, as explained in detail above,
   the requirement on which the argument is based--Fabritech's ability to
   obtain required parts from other sources--is not a qualification
   requirement. As a result, any concern about the protester's ability in
   this area does not relate to a qualification requirement and does not
   trigger application of the statute limiting contracts for CSIs to approved
   sources.

   In sum, because the agency made a responsibility determination without
   referring the matter to the SBA, the protest is sustained.

   The protester also argues that the agency either conducted discussions
   with the awardee and not with the protester or failed to verify that the
   awardee would provide certified parts, and thereby applied relaxed
   solicitation requirements to the awardee. The contracting officer asserts
   that part of the confusion regarding whether the awardee had offered to
   comply with the RFP requirements was caused by agency misclassification of
   a part, and that the awardee has, in fact, satisfied the agency that the
   awardee will purchase parts from approved sources. Supp. AR, Contracting
   Officer's Statement, at 1. The evidence cited by the protester that
   discussions took place between the awardee and the agency--that the only
   explanation the protester can see to explain how the awardee could have
   satisfied the agency's inquiry so quickly is if discussions had taken
   place--is speculative. Moreover, the protester has not asserted that it
   suffered any prejudice as a result of the alleged discussions, and we see
   none. In this regard, the record is clear that the protester had been
   given ample opportunity by the agency to address the agency's concerns,
   and there is no assertion that, if discussions had been held with it, the
   protester would have made any material changes to its offer. Likewise, we
   see no evidence that the agency relaxed the RFP requirements for the
   awardee.

   RECOMMENDATION

   We recommend that, consistent with this decision, the matter be referred
   to the SBA for review under the COC procedures. If the SBA issues a COC
   and Fabritech is otherwise in line for award, the agency should terminate
   the award to Purdy and make award to Fabritech. We also recommend that
   Fabritech be reimbursed the reasonable costs of filing and pursuing the
   protest, including reasonable attorneys' fees. 4 C.F.R. sect. 21.8(d)(1)
   (2006). Fabritech should submit its certified claim for costs, detailing
   the time expended and costs incurred, directly to the agency within 60
   days of receiving this decision.

   The protest is sustained.

   Gary L. Kepplinger
   General Counsel

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

   [1] As originally issued, the RFP provided for award to the offeror whose
   proposal was found to offer the best value to the government based on
   three evaluation criteria, technical, past performance, and price. Under
   the technical factor, proposals were to be evaluated on a pass/fail basis
   based on whether the offeror demonstrated that it had or would have access
   to special tools and equipment specified in the RFP. Agency Report (AR),
   Tab A, attach. 1, RFP at 54.

   [2] An aviation CSI is "a part, an assembly, installation equipment,
   launch equipment, recovery equipment, or support equipment for an aircraft
   or aviation weapon system if the part, assembly, or equipment contains a
   characteristic any failure, malfunction, or absence of which could cause

     (1) A catastrophic or critical failure resulting in the loss of or
     serious damage to the aircraft or weapon system;

     (2) An unacceptable risk of personal injury or loss of life; or

     (3) An uncommanded engine shutdown that jeopardizes safety."

   Defense Federal Acquisition Regulation Supplement (DFARS) sect. 209.270-2.

   [3] In a post-protest filing to our Office, the contracting officer
   describes "responsibility" as a poor choice of words, and suggests that
   the intent was to "evaluate Fabritech's ability to comply with the
   contingencies outlined in the 7 Dec 2005 letter." Supp. AR, Contracting
   Officer's Statement, at 2.

   [4] FAR sect. 9.206-2 requires that the contracting officer insert FAR
   sect. 52.209-1 in solicitations that are subject to a qualification
   requirement. That clause, which does not appear in this RFP, supplies
   notice to offerors that a qualification requirement applies and furnishes
   additional detail about the means to meet the requirement. We have held
   that where, as here, FAR sect. 52.209-1 is not expressly incorporated in a
   solicitation, an agency may not enforce any qualification requirements.
   Gentex Corp., B-271381, June 18, 1996, 96-1 CPD para. 281 at 4. In
   response, the agency points to other clauses that are included in the RFP
   which, in the agency's view, serve the purpose of providing notice and
   additional detail regarding the qualification requirements here. We need
   not address this issue, however, given our conclusion that the basis for
   rejecting Fabritech's proposal did not involve a qualification
   requirement.

   [5] We asked the SBA for its views on this issue; by letter dated June 16,
   2006, the SBA agreed that the matter involved a question of responsibility
   rather than a qualification requirement, and thus that referral under the
   COC procedures was required.