Advanced Seal Technology, Inc.
B-311308, Jun 5, 2008
Advanced Seal Technology, Inc. (AST) protests the issuance of an order to Quality Control Corporation by the Defense Logistics Agency (DLA), Defense Supply Center Columbus (DSCC), under request for quotations No. (RFQ) SPM7M3-07-T-D027 for seal assemblies, National Stock Number 4320-01-276-0822 (NSN 0822).
We deny the protest.
B-311308, Advanced Seal Technology, Inc., June 5, 2008
Protest that offeror was deprived of a reasonable opportunity to qualify its alternate item is denied where, although the procuring agency failed to promptly notify offeror of deficiencies in its item, the record shows that the offeror did not suffer competitive prejudice as a result.
Advanced Seal Technology, Inc. (AST) protests the issuance of an order to Quality Control Corporation by the Defense Logistics Agency (
NSN 0822 is a critical application item, thus, a designated Engineering Support Activity (
In December 2005, in response to three DSCC solicitations for NSN 0822, AST attempted to submit a
In March 2006, while AST's
On July 10, DSCC again issued an order to another firm at a price higher than that quoted by AST. AST protested that order at the agency level, arguing that, because its proposed alternate item had been conditionally approved, it should have been given an installation test before the order was issued to another firm. AST's agency-level protest was sustained, and the order was cancelled.
On October 12, DSCC issued an order to AST under which AST was required to submit two sample units of PFS-0822-21A for use in a first article test (FAT), to serve as the installation test of the alternate item. Even though the order included a FAT requirement, the FAT requirement was not added to the DSCC FAT monitor's tracking system. Agency Report (AR), Tab 4, Affidavit, at 2. As a result, the FAT was never scheduled and the contract administrator, believing that the alternate item was approved, directed AST to expedite delivery of the entire 145 unit order.
In August 2007, DSCC received an initial response from the
On December 20, DSCC publicized the issuance of an order to another firm under the RFQ at issue here, at a price higher than that quoted by AST. On December 21, AST inquired as to why its lower-priced quotation had not been considered and was informed for the first time that its proposed alternate item had failed the installation test in August, 4 months before. AST then asked why it had not been informed of the test results earlier and was told that DSCC believed that AST had been notified. Protest at 1.
On December 28, DSCC sent AST a copy of the
The Competition in Contracting Act of 1984 (CICA) requires that an agency obtain full and open 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. Newgard Indus., Inc., B-257052,
While the cumulative effect of repeated shortcomings in the qualification process may deny an offeror a reasonable opportunity to qualify, Advanced Seal Tech., Inc., B-249855.2,
With regard to the specific procurement challenged here, AST argues that DSCC's failure to inform it of the results of the installation test of PFS-0822-21A denied AST a reasonable opportunity to qualify its alternate item before the issuance of the order. By statute and regulation, agencies imposing qualification requirements must fulfill specific responsibilities. As relevant here, they must provide offerors a prompt opportunity to demonstrate their qualification and must ensure that any offeror seeking qualification is promptly informed as to whether qualification has been attained, and if not, promptly furnish specific information on why qualification was not attained. 10 U.S.C. sect. 2319(b)(4), (6); FAR sect. 9.202(a)(2)(ii), (4).
In response to AST's argument, DSCC contends that it fulfilled the requirements of 10 U.S.C. sect. 2319(b)(6) by notifying the attorney who had represented AST in the protest that led to the installation test. DSCC also argues that, even assuming it failed to properly notify AST of the result of the installation test, AST was not prejudiced because, even if it had been promptly notified of the results, the firm could not have successfully qualified in time to compete for this order. 
In our view, even assuming that notification of the attorney who represented AST in its previous protests was sufficient to constitute notice to AST, DSCC's notification of AST's former attorney was unreasonably delayed, contrary to the requirements in 10 U.S.C. sect. 2319(b)(6). The installation test was completed on August 22 and the test report was completed on September 19, but the report was not forwarded to AST's former attorney until November 27. Whether this more than 2-month delay between the completion of the test report and formal notification was attributable to DSCC or the
However, we also conclude that AST was not prejudiced by DSCC's failure to promptly notify it of the results of the installation test. AST first received the results of the installation test on December 28. By January 9, AST had modified its alternative item and sent a revised
Based on that 94-day time period and the ultimate rejection of AST's revised
Moreover, because AST's revised
The protest is 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.
 A contracting officer need not delay a proposed order in order to provide a potential offeror with an opportunity to demonstrate its ability to meet the standards specified for qualification. FAR sect. 9.202(e).
 DSCC also notes in its report that it delayed the issuance of the order due to its inability to notify AST of the results of the installation test before November 27. DSCC argues that, had AST been notified on September 19, the order would have been issued earlier than December 18. AR at 5.