TITLE: B-299870.2, Barnes Aerospace Group--Costs, September 17, 2007
BNUMBER: B-299870.2
DATE: September 17, 2007
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B-299870.2, Barnes Aerospace Group--Costs, September 17, 2007

   Decision

   Matter of: Barnes Aerospace Group--Costs

   File: B-299870.2

   Date: September 17, 2007

   Jason A. Carey, Esq., Kara M. Klaas, Esq., and John G. Horan, Esq.,
   McKenna Long & Aldridge, for the protester.

   Maj. Chad L. Diederich, Department of the Air Force, for the agency.

   Linda C. Glass, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Request for recommendation that agency reimburse protest costs for second
   protest of an allegedly improper sole source award on the basis that the
   agency failed to promptly implement corrective action recommended by our
   Office in prior protest is denied where agency promptly proposed
   corrective action in response to second protest and protester's actions
   contributed to the delay in the agency's implementation of our original
   recommendations.

   DECISION

   Barnes Aerospace Group requests that our Office recommend reimbursement of
   its protest costs in connection with its protest of the Department of the
   Air Force award of an interim sole-source contract to Ferrotherm
   Corporation under request for proposals (RFP) No. FA8104-07-0401, issued
   by the Air Force to procure the repair of 2,431 F100 engine parts over an
   11-month period. That protest was dismissed after the agency determined
   that corrective action was appropriate.

   We deny the request.

   On September 25, 2006, Barnes protested the decision of the Air Force to
   award a sole-source contract to Ferrotherm under RFP No. FA8104-06-R-0276,
   issued by the Air Force to procure the repair of certain F100 engine
   parts. Barnes argued that the Air Force unreasonably delayed review of
   Barnes' request for source approval, and awarded a sole source contract to
   Ferrotherm at an unreasonable price. In a supplemental protest, Barnes
   argued that the agency unfairly required Barnes to comply with the
   agency's source approval rules, while ignoring requalification
   requirements in those same rules with regard to Ferrotherm.

   Our Office sustained the protest on the basis that the agency improperly
   proceeded with a sole source award without considering the viability of
   Barnes as a second source as part of the agency's justification process
   and because the agency treated offerors unequally with respect to the
   application of its qualification requirements. We recommended, in part,
   that the Air Force proceed as expeditiously as possible with providing a
   part for repair to Barnes so that the source approval process could be
   completed, and that the Air Force reimburse the protester its costs of
   pursuing the protest. Barnes Aerospace Group, B-298864, B-298864.2, Dec.
   26, 2006, 2006 CPD para. 204 at 14.

   According to the agency, the qualification process consists of two parts.
   After interested vendors complete Part I of the process, they are provided
   parts to perform the source demonstration repair under Part II. At the
   time of our December 2006 decision, Barnes was in the process of becoming
   a qualified source of repair for the engine rings. By memorandum dated
   August 8, 2006, the agency notified Barnes that it had satisfactorily met
   Part I of the qualification requirements but must meet the requirements of
   Part II, the source demonstration repair. The memorandum further informed
   Barnes that it would need to:

     insure possession of drawings 4084052 and ST2252 and the associated
     [Quality Assurance Documents] and specifications prior to commencing
     with the Source Demonstration repair. In addition, the latest changes to
     the required repair Technical Orders will need to be obtained.

   On January 29, 2007, approximately 1 month after our Office sustained
   Barnes's earlier protest, the Air Force again notified the protester that
   certain documentation concerning the drawings was missing and informed
   Barnes that it would not proceed to the repair demonstration phase until
   the missing documentation was provided. In response, on February 2, Barnes
   questioned the need for the requested data. On February 8, the agency
   responded that the missing data was needed because it covered details of
   the honeycomb ring segments which are not controlled by the technical data
   and to assure that the parts are manufactured to the blueprint
   specifications. Email from Air Force to Small Business Office dated Feb.
   8, 2007 (which was forwarded to Barnes). Barnes subsequently provided the
   missing documentation to the Air Force on February 27. On March 19, three
   parts for repair were forwarded to Barnes. Barnes returned the repaired
   parts to the Air Force on May 31, 2007, and the parts were forwarded to a
   laboratory for analysis on June 13.

   In the meantime, to meet an urgent need for the engine rings, on April 10,
   the Air Force issued a solicitation for repair of 2,431 engine rings for
   an 11-month period. On May 1, both Barnes and Ferrotherm submitted
   proposals. Since Ferrotherm was the only qualified source as of that date,
   award was made to Ferrotherm on May 21. Barnes protested the award to our
   Office on June 11. On June 21, 10 days after the protest was filed, the
   Air Force advised our Office that it had decided to take corrective
   action. The Air Force decreased the award quantity from 2,431 units to 342
   units, to cover its immediate needs while completing its review of Barnes'
   qualification request. In addition, the Air Force committed to completing
   all needed laboratory testing, analysis, and engineering review of Barnes'
   repaired parts in approximately 90 days. The Air Force further stated that
   it would initiate a new competitive procurement for a 5-year
   indefinite-delivery/indefinite-quantity repair contract. On July 11, we
   dismissed the protest as academic.

   On July 26, Barnes filed this request for reimbursement of the costs it
   incurred pursuing its second protest.

   Our Bid Protest Regulations, 4 C.F.R. sect. 21.8(e) (2007), provide that
   where an agency takes corrective action in response to a protest, our
   Office may recommend that the agency pay the protester its costs of filing
   and pursuing the protest. We have held that this regulation does not exist
   to award protest costs in every case in which an agency takes corrective
   action, but rather in those instances where an agency unduly delays taking
   corrective action in the face of a clearly meritorious protest. American
   Lawn Serv., Inc.--Entitlement to Costs, B-271039.2, May 15, 1996, 96-1 CPD
   para. 228 at 2.

   Here, the agency's promised corrective action that resulted in dismissal
   of Barnes' second protest as academic was submitted 10 days after the
   second protest was filed. We agree with the agency that the corrective
   action here was not unduly delayed.

   Barnes argues, however, that had the Air Force promptly qualified Barnes
   in compliance with our recommendation in our December 26, 2006, decision,
   Barnes would have had no need to pursue this second protest. Consequently,
   Barnes maintains that the Air Force's failure to implement our
   recommendation forced Barnes to incur the fees and costs of the follow on
   protest, and as a result, we should follow the rule established in our
   decision, Louisiana Clearwater, Inc.-Recon. and Costs, B-283081.4,
   B-283081.5, Apr. 14, 2000, 2000 CPD para. 209, where we held that the
   reimbursement of protest costs may be appropriate where an agency does not
   timely implement promised corrective action in response to an initial
   protest, and a subsequent protest was necessitated by the agency's failure
   to implement the promised corrective action.

   Based on the record, we do not find that the agency failed to promptly
   implement our prior recommendations. As stated above, in response to our
   recommendations with respect to the first protest, on January 29, the Air
   Force specifically notified the protester that prior to receiving parts
   for repair, the protester needed to provide to the agency certain missing
   documents. The record also shows that Barnes was on notice of the agency's
   need for additional documentation since August 2006. Instead of submitting
   the missing documents, the protester questioned the agency's need for
   them. The protester finally submitted the requested documents almost a
   month after the agency's January 29 request, and more than 6 months after
   the agency's initial request (on August 8). Upon receipt of the requested
   documents on February 27, the agency forwarded the parts for repair to the
   protester on March 19. The agency subsequently received the repaired parts
   from Barnes on May 31 and forwarded the repaired parts to the laboratory
   for analysis on June 13. The Air Force has now committed to completion of
   all needed laboratory testing, analysis and engineering review in
   approximately 90 days.

   The record here demonstrates that the Air Force affirmatively attempted to
   implement our initial recommendation and complete the source approval
   process for Barnes, and that Barnes's failure to promptly provide the
   documents requested by the agency contributed to the delay in the source
   approval process. As a result, we conclude that Barnes should not be
   reimbursed the costs of filing the protest it submitted on June 11.

   The request for our recommendation that Barnes be reimbursed its protest
   costs for its second protest is denied.

   Gary L. Kepplinger
   General Counsel