TITLE: B-310372.4, Pemco Aeroplex, Inc., May 2, 2008
BNUMBER: B-310372.4
DATE: May 2, 2008
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B-310372.4, Pemco Aeroplex, Inc., May 2, 2008
Decision
Matter of: Pemco Aeroplex, Inc.
File: B-310372.4
Date: May 2, 2008
David R. Hazelton, Esq., Roger S. Goldman, Esq., Kyle Jefcoat, Esq.,
Benjamin Wei, Esq., and Andrew Stein, Esq., Latham & Watkins LLP, for the
protester.
Brent G. Curtis, Esq., and Kenneth C. Kitzmiller, Esq., Department of the
Air Force, for the agency.
Rand L. Allen, Esq., Paul F. Khoury, Esq., Scott M. McCaleb, Esq., Kara M.
Sacilotto, Esq., William J. Grimaldi, Esq., and Nicole P. Wishart, Esq.,
Wiley Rein, LLP, for The Beoing Company, an intervenor.
Glenn G. Wolcott, Esq., and Ralph O. White, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that the agency's actual requirements have materially changed from
those stated in a solicitation under which a competition was recently
conducted is dismissed where agency representative responsible for
translating operational requirements into contractual requirements has
submitted declaration stating that the agency has not yet made any
determination regarding potential changes to the contract requirements.
DECISION
Pemco Aeroplex, Inc.,[1] protests the terms of solicitation No.
FA8105-05-R-0014, under which a contract was awarded to Boeing Aerospace
Operations to perform programmed depot maintenance (PDM) for KC-135
aircraft. Pemco asserts that recent developments indicate that the
Department of the Air Force's actual requirements regarding PDM for KC-135
aircraft are materially different than the terms of the solicitation under
which the offerors recently competed, and maintains that the solicitation
should be revised, and the competition reopened, to permit offerors to
submit proposals for what Pemco asserts are the Air Force's actual
requirements.
We dismiss the protest.
BACKGROUND
On February 29, 2008, the agency selected Boeing for award of a contract
to perform PDM on KC-135 aircraft.[2] On March 11, Pemco filed a protest
challenging that source selection decision; the merits of the March 11
protest are currently being considered by this Office, and we will
subsequently issue a decision regarding that matter.
On March 21, Pemco filed this supplement to its March 11 protest,
maintaining that, during program management review meetings (PMRs)
conducted by the Air Force on March 11-12,[3] the Air Force "announced two
significant, material changes to the KC-135 PDM program -- a change in the
expected quantity of aircraft undergoing contractor PDM and a potential
change in the PDM cycle." [4] Pemco Protest, Mar. 21, 2008, at 4.
More specifically, with regard to the quantity of aircraft to be serviced
under the contract, Pemco notes that the solicitation advised offerors
that the agency's "best estimated quantity" (BEQ) of aircraft to be
serviced under the contract was 24 per year. Nonetheless, Pemco asserts
that, at the recent PMRs, the Air Force "announced . . . an increase in
the expected number of aircraft undergoing contractor PDM each year from
24 to 36."[5] Protest at 4. With regard to Pemco's protest alleging a
"potential change in the PDM cycle," Pemco asserts that, at the PMRs, the
Air Force "announced a pilot program to change the PDM schedule of the
KC-135 aircraft from the current five year maintenance schedule to a new
four/eight year schedule." Id. at 5.
In response to Pemco's March 21 protest, the Air Force submitted a
declaration from Col. James J. Nally, Commander, 827^th Aircraft
Sustainment Group, Tinker Air Force Base, whose responsibilities include
"translating operational requirements [for the KC-135 fleet] into
contractual requirements." Declaration of Col. Nally, Mar. 31, 2008, para.
1. With regard to the quantity of aircraft to be serviced, the declaration
states:
Pemco's assertion that the Air Force's PMR presentation announced a
change in the number of aircraft expected to undergo contract PDM is
incorrect. The number of PDM aircraft planned for both organic and
contract PDM remains unchanged. The total KC-135 PDM aircraft per year
(organic and contract) is estimated at 72-78. The Best Estimated
Quantity for the contractor remains at 24 aircraft per year as stated in
the solicitation.
Id. para. 3.
With regard to Pemco's allegation of a "potential change in the PDM
cycle," the declaration states:
The Air Force has not changed from the current five-year PDM cycle. The
four/eight-year maintenance concept is an on-going study and will be
evaluated using a structured systems engineering approach to determine
if this model is feasible. This evaluation will focus on a sample of 13
prototype aircraft to be inducted into the Tinker organic maintenance
line beginning in FY09. This prototype effort is necessary to support
the Air Force decision to remain with the current five-year PDM cycle or
switch to an alternative maintenance concept. All the data necessary to
make this decision will not be available until FY14. Until the study and
prototyping is complete and the data fully evaluated, the requirement
for contract PDM to support a five year cycle will not change.
Id. para. 4.
As a general rule, in considering a protest based on the protester's view
of what a procuring agency's actual requirements are, or should be, this
Office will accept an agency's representations regarding its actual
requirements and its statements of how it intends to fill them. See, e.g.,
Serv-Air, Inc., B-258243.4, Mar. 3, 1995, 95-1 CPD para. 125 at 3-4.
Specifically, we have applied this policy in situations where an agency is
considering a particular course of action, but has not yet reached a
conclusion regarding how it will proceed. ITT Elect. Sys., Radar
Sys.-Gilfillian, B-299150 et al., Feb. 2, 2007, 2007 CPD para. 19 at 2-3.
Until the agency has made a decision regarding a potential change in
contract requirements, a protest based on the protester's anticipation of
the agency's subsequent course of action is speculative and premature.
Lockheed Martin Aeronautics Co., B-298626, Nov. 21, 2006, 2006 CPD
para. 177 at 7-8.
Here, as discussed above, the agency has unambiguously stated that Pemco's
factual allegations regarding changes to the contract requirements are not
accurate, and that, to the extent the agency has considered, or is
considering, the type of changes on which Pemco's protest is based, no
decision has been reached. On this record, Pemco's protest is
premature.[6]
The protest is dismissed.[7]
Gary L. Kepplinger
General Counsel
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[1] We understand that Pemco is now doing business as Alabama Aircraft
Industries, Inc. Since the protester refers to itself as Pemco, our
decision does the same.
[2] As the parties are aware, the agency initially awarded the contract to
Boeing on September 10, 2007; thereafter, Pemco filed a protest
challenging that action. On December 27, 2007, this Office sustained
Pemco's protest, recommending that the agency perform cost realism and
risk assessments regarding particular aspects of Boeing's proposal. The
agency's February 29, 2008 source selection decision was made after
reviewing our December 27 decision and recommendations.
[3] The agency states that PMRs are conducted periodically to assess the
performance of maintenance activities on the KC-135 aircraft, and to
discuss relevant future plans.
[4] PDM on KC-135 aircraft is currently performed both by the Air Force
itself at Tinker Air Force base (frequently referred to as "organic" PDM)
and by an outside contractor or contractors (until recently, the outside
contractor work was divided between Boeing and Pemco). PDM is currently
performed on a 5-year cycle.
[5] Neither Pemco's protest, nor its subsequent response to the agency's
motion to dismiss, identifies who allegedly made the announcement or,
other than generally referencing the PMRs, when and under what
circumstances the announcement was made.
[6] In the event the agency subsequently pursues a course of action
consistent with Pemco's factual allegations, Pemco may re-submit its
protest for this Office's consideration. Our statement in this regard
should not be construed as an advance ruling regarding any relevant issue
presented by such subsequently-filed protest.
[7] In its protest submissions, Pemco also asserts that Boeing had
"advance knowledge" of what Pemco asserts are the agency's changed
requirements. Since, as discussed above, we have dismissed the protest on
the basis of the Air Force's representations that its requirements have
not changed, we will not further consider Pemco's protest that Boeing had
knowledge of the alleged changes.