Advanced Seal Technology, Inc.
B-400088,B-400089, Jul 14, 2008
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 (DLA), Defense Supply Center-Columbus (DSCC) for mechanical seals, National Stock Number (NSN) 4320-01-279-2321 (NSN 2321).
We deny the protests.
B-400088; B-400089, Advanced Seal Technology, Inc., July 14, 2008
Protests challenging agency's 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 DSCC's 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 AST's alternate item for NSN 0822 during a prior procurement. Therefore, in settlement of that protest, DSCC agreed to suspend procurement of NSN 0822 until AST's alternate item was subjected to an installation test.
According to the agency, in June 2007, during the effort to installation test AST's 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 AST's 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 AST's removal as an approved source for NSN 2321, which included a summary of the results of the June installation of AST's 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 AST's 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 AST's 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 agency's 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 agency's proposed 180-day timetable for the review of revisions to AST's 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 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. Newguard Indus., Inc., B-257052,
DSCC sustained AST's 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 AST's 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 or
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 DSCC's February 26 notice did not provide enough specific engineering information about problems with AST's 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, DSCC's letter to AST explained how AST's alternate item had failed during an operational test, and designated a contact at the agency for questions, concerns, and requalification. We conclude that DSCC's 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.