B-191318, SEP 20, 1978

B-191318, SEP 20, 1978

DIGEST: ORIGINAL DECISION IS AFFIRMED WHERE REQUEST FOR RECONSIDERATION PROVIDES NO LEGAL OR FACTUAL BASIS TO ALTER CONCLUSION THAT SOLE SOURCE AWARD WAS JUSTIFIED.

FIBER MATERIALS, INC. - RECONSIDERATION:

FIBER MATERIALS, INC. (FMI), REQUESTS RECONSIDERATION OF OUR DECISION B-191318, JUNE 8, 1978, 57 COMP.GEN. , 78-1 CPD 422. FMI PROTESTED THE AWARD OF A SUBCONTRACT BY SANDIA CORPORATION (SANDIA) UNDER REQUEST FOR QUOTATION (RFQ) BKH/07-5583 FOR A "RIGIDIZED BUT UNDENSIFIED PREFORM OF FINE-WEAVE-PIERCED FABRIC (FWPF) CARBON MATERIAL WOVEN FROM POLYACRYLONITRILE (PAN) YARN." SANDIA IS THE OPERATING CONTRACTOR FOR THE DEPARTMENT OF ENERGY'S (DOE) SANDIA LABORATORIES.

THE CONTRACT AWARD WAS MADE ON A SOLE SOURCE BASIS TO AVCO CORPORATION (AVCO) NOTWITHSTANDING FMI'S LOWER PRICED OFFER IN RESPONSE TO THE UNRESTRICTED RFQ.

OUR PRIOR DECISION HELD THAT ALTHOUGH IT WOULD HAVE BEEN PROPER TO CANCEL THE SOLICITATION AND MAKE A SOLE SOURCE AWARD WHEN THE SOLE SOURCE REQUIREMENT WAS DISCOVERED AFTER THE RECEIPT OF PROPOSALS, AWARD TO THE SOLE SOURCE SUPPLIER UNDER THE ORIGINAL RFQ WAS NOT PREJUDICIAL TO FMI SINCE THE SAME RESULT WOULD ULTIMATELY HAVE BEEN ATTAINED AND THE SOLICITATION DID NOT SET FORTH ANY PARTICULAR BASIS FOR AWARD, SUCH AS PRICE. THE THRUST OF FMI'S REQUEST FOR RECONSIDERATION IS A CHALLENGE TO THE SOLE SOURCE JUSTIFICATION.

THE FWPF-PAN MATERIAL WAS TO BE SUBJECTED TO MATERIALS ANALYSIS TESTS BY SANDIA "IN CONJUNCTION WITH FUTURE DEVELOPMENT AND DESIGN WORK *** ON WEAPONS COMPONENTS THAT WILL BE REQUIRED TO FUNCTION PROPERLY IN ASSOCIATION WITH THE FWPF-PAN MATERIALS WHICH THE AIR FORCE MAY USE IN FUTURE RE-ENTRY VEHICLE PROGRAMS." WE NOTED, AND IT HAS NOT BEEN DISPUTED, THAT ONLY SUCH MATERIAL FURNISHED BY AVCO HAD BEEN "FLIGHT TESTED" AND "EXTENSIVELY EVALUATED PRIOR TO BEING QUALIFIED BY THE AIR FORCE ON RE-ENTRY VEHICLE APPLICATIONS"; THAT FMI'S FWPF-PAN MATERIAL HAD NOT BEEN SO QUALIFIED; AND THAT WITHOUT THAT QUALIFICATION, SANDIA "COULD NOT BE CERTAIN THAT THE PROPERTIES OF THE MATERIALS PROPOSED BY FMI WAS SUFFICIENTLY SIMILAR TO THE QUALIFIED AVCO MATERIAL TO PROVIDE MEANINGFUL DATA FOR SANDIA'S OWN DESIGN PROGRAMS."

OUR BID PROTEST PROCEDURES, 4 C.F.R. 20.9(A) (1978), PROVIDE IN PERTINENT PART THAT:

"*** THE REQUEST FOR RECONSIDERATION SHALL CONTAIN A DETAILED STATEMENT OF THE FACTUAL AND LEGAL GROUNDS UPON WHICH REVERSAL OR MODIFICATION IS DEEMED WARRANTED ***."

FMI PRESENTS NO NEW FACTS WHICH LEAD US TO ALTER OUR ORIGINAL CONCLUSION FOR IT HAS NOT ADDRESSED THE SINGULAR FACTUAL BASIS UPON WHICH SANDIA'S SOLE SOURCE DETERMINATION WAS MADE. FOR EXAMPLE, FMI POINTS TO "INITIAL" ASSESSMENT OF ACCEPTABILITY BY AIR FORCE PERSONNEL FOR ITS MATERIAL "FOR THE UPCOMING MARK 12-A NOSETIP PROCUREMENT," AS EVIDENCE OF AN AIR FORCE FINDING "OF BOTH QUALITY AND PRODUCTION CAPABILITY ACCEPTABLE TO THAT ENTITY." FMI ALSO NOTES THAT A RECENT SALE OF THE FWPF-PAN MATERIAL TO THE LOS ALAMOS LABORATORY (ANOTHER DOE FACILITY) INDICATES A MARKED DISCREPANCY IN THE PROCUREMENT PRACTICES BY TWO DOE LABORATORIES AND AS INDICATIVE THAT THE POLICIES (FOR COMPETITION) OF "THE U. S. GOVERNMENT ARE NOT BEING UNIFORMLY ADHERED TO." WE THINK THESE ASSERTIONS, AMONG OTHERS, MISS THE POINT. THIS OFFICE MADE NO FINDING WITH RESPECT TO FMI'S ABILITY TO MANUFACTURE ACCEPTABLE FWPF-PAN MATERIALS. WE IN FACT CONCLUDED THAT THE SOLE SOURCE JUSTIFICATION FOR THE AWARD TO AVCO FOR THE PRESENT APPLICATION WOULD NOT, IN OUR OPINION, "PRECLUDE FMI FROM SUPPLYING SIMILAR MATERIALS FOR 'OTHER' SANDIA RESEARCH OR DESIGN PROGRAMS." IN OTHER WORDS, THE JUSTIFICATION FOR A SOLE SOURCE AWARD WAS WHOLLY DEPENDENT ON THE QUALIFICATION OF THE MATERIAL BY THE AIR FORCE (NOT SANDIA) FOR THE SPECIFIC RE-ENTRY VEHICLE APPLICATION WITH WHICH SANDIA WAS CONCERNED. THE BASIS FOR THIS CONCLUSION IS SUCCINCTLY SUMMARIZED BY SANDIA IN ITS REPORT TO THIS OFFICE, WHEREIN IT STATES THAT:

"SANDIA IS NOT PROCURING THE MATERIAL FOR THE AIR FORCE AND IS NOT QUALIFYING THE MATERIAL FOR USE BY THE AIR FORCE. SANDIA IS *** (DESIGNING A FUSE FOR A SPECIFIC RE-ENTRY VEHICLE). IN ORDER TO DO THIS SANDIA MUST KNOW THE MATERIAL PROPERTIES OF THE FWPF-PAN MATERIAL USED BY THE AIR FORCE ***. ONLY AVCO SUPPLIES THIS MATERIAL ***. IF SANDIA DID STUDY THE FMI MATERIAL, IT WOULD NOT ASSIST THE SANDIA DESIGN EFFORT *** AND WOULD NOT QUALIFY THE MATERIAL FOR USE BY THE AIR FORCE."

OUR ORIGINAL DECISION IS AFFIRMED.