B-400088; B-400089, Advanced Seal Technology, Inc., July 14, 2008
Protests challenging agencyís decision to proceed with procurements for an item requiring source approval on the basis that the protester was deprived of a reasonable opportunity to requalify its alternate item is denied where the protester was notified of its removal as an approved source and the reasons for the removal before the challenged solicitations were issued; contracting agency need not delay a proposed procurement while a vendor pursues qualification of its product.
Advanced Seal Technology, Inc.
(AST) protests the issuance of an order to another vendor under request for
quotations (RFQ) No. SPM7M3-08-T-7834, and the terms of request for quotations (RFQ)
No. SPM7M1-08-U-C373, issued by the Defense Logistics Agency (
NSN 2321 is a critical application item, thus, a
designated Engineering Support Activity (
AST is a manufacturer of mechanical seals and is involved
in government-sponsored efforts to reverse engineer certain items of supply, to
provide competition in procurements where the original equipment manufacturers
(OEM) have refused to share technical information. AST has reverse engineered an alternate item
for NSN 2321, which was approved by the
In May 2007, AST filed a protest with our Office, challenging DSCCís failure to include AST on the list of approved sources in an RFQ for a smaller version of NSN 2321, NSN 4320-01-276-0822 (NSN 0822). Through that protest it became clear that DSCC had failed to properly complete a first article test of ASTís alternate item for NSN 0822 during a prior procurement. Therefore, in settlement of that protest, DSCC agreed to suspend procurement of NSN 0822 until ASTís alternate item was subjected to an installation test.
According to the agency, in June 2007, during the effort
to installation test ASTís alternate item for NSN 0822, the
The agency states that, when the AST NSN 2321 seal was
installed in the appropriate pump, it interfered with the pump casing and was
found to have been machined too large.
AR, Tab 4,
According to AST, it did not become aware that there were
any problems with its alternate item for NSN 2321 until
AST filed an agency-level protest of the January 17 RFQ
and of an earlier issued order for NSN 2321 on January 21, asserting that it
had been improperly removed as an approved source without notice or opportunity
to respond. DSCC sustained ASTís
protests on February 26, acknowledging that AST had not been promptly notified
of the revocation of its approval as a source for NSN 2321. On the same date, DSCC forwarded AST a formal
notice of ASTís removal as an approved source for NSN 2321, which included a
summary of the results of the June installation of ASTís alternate item at the
On March 3, DSCC issued the RFQs challenged here, neither of which listed AST as an approved source. As a result, AST filed agency-level protests of the RFQs, arguing that procurement of NSN 2321 should be suspended until AST had an opportunity to view the engineering documents that describe the problem with its alternate item and make the necessary revisions to be included as an approved source on the RFQs. While considering ASTís protests, on April 1, DSCC notified AST that its January 8 revised SAR for NSN 2321 was insufficient and that AST would need to perform further testing. DSCC then denied ASTís agency-level protests on April 4. AST subsequently filed two protests with our Office, challenging the denial of its protests at the agency level.
In its protests here AST argues that its ability to attain prompt requalification of its product has been hampered by the agencyís failure to promptly notify it of the revocation of its source approval and immediately provide technical information related to the revocation, as well as by the agencyís proposed 180-day timetable for the review of revisions to ASTís alternate item. AST requests that all procurements of NSN 2321 be suspended until AST can become requalified. DSCC responds that its decision to proceed with the procurement of NSN 2321 was not improper where AST was notified that it had been removed as an approved source before the challenged RFQs were issued, and DSCC is not required to--and, in view of its needs for the part, cannot--delay the procurement of NSN 2321 while AST pursues the requalification of its alternate item.
The Competition in Contracting Act of 1984 (CICA) requires
that an agency obtain ďfull and openĒ competition in its procurements through
the use of competitive procedures. 10
U.S.C. sect. 2304(a)(1)(A) (2000).
Accordingly, when a contracting agency restricts contract award to an
approved product and imposes a qualification requirement, it must give
nonapproved sources a reasonable opportunity to qualify. Newguard Indus., Inc., B-257052,
DSCC sustained ASTís earlier agency-level protests on the basis that DSCC had failed to promptly inform AST of its removal as an approved source and of the reasons for that removal, thereby denying AST a prompt opportunity to qualify in connection with the earlier-issued RFQs. Those facts are not repeated in the current protests. Here, AST had notice that it had been removed as an approved source by January 17, and was formally notified and given specific information as to why it had been removed on February 26. Therefore, because AST had the notice and information necessary to undertake requalification before the RFQs were issued on March 3, we see no basis to conclude that DSCC denied AST a reasonable opportunity to qualify its alternate item in connection with the currently challenged RFQs.
AST also argues that DSCC has denied AST a prompt
opportunity to demonstrate its qualification by suggesting a 180-day review
process for revisions to ASTís alternate item.
The 180-day time period is derived from the
With regard to whether DSCC must delay or suspend
procurement of NSN 2321 in order to allow AST to requalify, a potential offeror
may not be denied the opportunity to submit and have considered an offer for a
contract solely because the potential offeror is not an approved source, if the
potential offeror can demonstrate to the satisfaction of the contracting officer
The protests are denied.
Gary L. Kepplinger
 A critical application item is an item the failure of which could injure personnel or jeopardize a vital agency mission. Federal Acquisition Regulation (FAR) sect. 46.203.
 The agency issued an order under the first RFQ to Quality Control Corp. on April 17; no order has yet been issued under the second RFQ.
 AST argues that DSCCís February 26 notice did not provide enough specific engineering information about problems with ASTís alternate item to enable AST to begin the requalification process. While it may not have provided the level of engineering detail that AST would have preferred, DSCCís letter to AST explained how ASTís alternate item had failed during an operational test, and designated a contact at the agency for questions, concerns, and requalification. We conclude that DSCCís letter provided sufficient notice and information to AST to allow it to promptly undertake requalification.
 In fact, the agency maintains that its needs would not permit it to postpone the procurements. Specifically, DSCC states that as of May 21, there were 38 backorders of NSN 2321, 9 of which were high priority, and asserts that a delay in procuring the part will adversely affect the government.