B-182847, MAY 6, 1975

B-182847: May 6, 1975

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NAVY'S DECISION TO ISSUE CHANGE ORDER TO EXISTING CONTRACT RATHER THAN HAVING THE GOVERNMENT PROCURE ITEM AND FURNISH IT TO AIRFRAME MANUFACTURER IS AN ADMINISTRATIVE DECISION WHICH IS NOT ORDINARILY A MATTER WHICH THIS OFFICE WILL RESOLVE UNLESS MODIFICATION IS BEYOND SCOPE OF CONTRACT. 2. PROPOSAL WHICH OFFERS SUPPLIES WHERE NEED HAS BEEN DETERMINED BY GOVERNMENT AND PROCUREMENT ALREADY BEGUN BY GOVERNMENT PRIME CONTRACTOR IS NOT REQUIRED TO BE TREATED AS AN "UNSOLICITED PROPOSAL" UNDER NAVY INSTRUCTION. 3. PROPRIETY OF PROCURING METHODS OF GOVERNMENT PRIME CONTRACTOR WILL NOT BE DECIDED BY THIS OFFICE UNLESS CIRCUMSTANCES EXIST AS ARE DESCRIBED IN OPTIMUM SYSTEMS. THERE WAS SUBSTANTIAL CONCERN REGARDING POTENTIAL INTERFERENCE WHICH THE LIGHTS MIGHT HAVE UPON THE PERFORMANCE OF THE AIRCRAFT.

B-182847, MAY 6, 1975

1. NAVY'S DECISION TO ISSUE CHANGE ORDER TO EXISTING CONTRACT RATHER THAN HAVING THE GOVERNMENT PROCURE ITEM AND FURNISH IT TO AIRFRAME MANUFACTURER IS AN ADMINISTRATIVE DECISION WHICH IS NOT ORDINARILY A MATTER WHICH THIS OFFICE WILL RESOLVE UNLESS MODIFICATION IS BEYOND SCOPE OF CONTRACT. 2. PROPOSAL WHICH OFFERS SUPPLIES WHERE NEED HAS BEEN DETERMINED BY GOVERNMENT AND PROCUREMENT ALREADY BEGUN BY GOVERNMENT PRIME CONTRACTOR IS NOT REQUIRED TO BE TREATED AS AN "UNSOLICITED PROPOSAL" UNDER NAVY INSTRUCTION. 3. PROPRIETY OF PROCURING METHODS OF GOVERNMENT PRIME CONTRACTOR WILL NOT BE DECIDED BY THIS OFFICE UNLESS CIRCUMSTANCES EXIST AS ARE DESCRIBED IN OPTIMUM SYSTEMS, B-183039, MARCH 19, 1975, 54 COMP. GEN. .

SYMBOLIC DISPLAYS, INCORPORATED:

SYMBOLIC DISPLAYS, INCORPORATED, HAS PROTESTED THE DECISION BY THE NAVAL AIR SYSTEMS COMMAND (NAVAIR) TO PROCURE HIGH INTENSITY ANTI COLLISION (STROBE) LIGHTS FOR THE P-3 AIRCRAFT FROM THE AIRFRAME MANUFACTURER, LOCKHEED AIRCRAFT COMPANY, UNDER ENGINEERING CHANGE PROPOSAL NO. F-3-842. THIS CHANGE PROPOSAL WOULD RESULT IN A CHANGE ORDER UNDER CONTRACT NO. N00019-73-C-0075 TO DESIGN, DEVELOP, AND INSTALL STROBE LIGHTS ON 12 AIRCRAFT CURRENTLY BEING MANUFACTURED. THE NAVY ALSO INTENDS TO ORDER APPROXIMATELY 390 STROBE LIGHT RETROFIT KITS FOR INSTALLATION BY NAVY PERSONNEL IN PREVIOUSLY DELIVERED AIRCRAFT.

ESSENTIALLY, SYMBOLIC OBJECTS TO NAVY'S DETERMINATION TO MEET ITS REQUIREMENTS THROUGH LOCKHEED WITHOUT ATTEMPTING TO OBTAIN COMPETITIVE PROPOSALS. IN ADDITION THE FIRM OBJECTS TO THE SUBCONTRACTING PROCEDURES UTILIZED BY LOCKHEED, PARTICULARLY AN ALLEGED UNAUTHORIZED DISCLOSURE BY LOCKHEED OF PROPRIETARY TECHNICAL INFORMATION FURNISHED TO LOCKHEED IN SYMBOLIC'S PROPOSAL. SYMBOLIC ALSO OBJECTS TO THE NAVY'S FAILURE TO EVALUATE, AS REQUIRED BY NAVY REGULATION, ITS UNSOLICITED PROPOSAL SUBMITTED TO THE NAVY SUBSEQUENT TO LOCKHEED'S SELECTION OF ANOTHER MANUFACTURER FOR THE STROBE LIGHTS.

THE RECORD SHOWS THAT NAVAIR MADE THE DETERMINATION TO PROCURE THE STROBE LIGHTS FROM LOCKHEED, THE AIRFRAME MANUFACTURER, RATHER THAN PROCURE THE ITEM AND FURNISH IT TO THE AIRFRAME MANUFACTURER BECAUSE IT LACKED THE TECHNICAL EXPERTISE AS WELL AS THE NECESSARY SPECIFICATION TO INSURE A TIMELY STROBE LIGHT PROCUREMENT AND INTEGRATION INTO THE AIRCRAFT. APPARENTLY, THERE WAS SUBSTANTIAL CONCERN REGARDING POTENTIAL INTERFERENCE WHICH THE LIGHTS MIGHT HAVE UPON THE PERFORMANCE OF THE AIRCRAFT. THE DECISION WAS MADE, THEREFORE, TO HAVE LOCKHEED ACCEPT THE ENGINEERING RISK AND INTEGRATION RESPONSIBILITY FOR THE STROBE LIGHTS. AFTER DISCOVERING NAVAIR'S DECISION TO CONTRACT FOR THE ABOVE REQUIREMENTS WITH LOCKHEED, SYMBOLIC SUBMITTED A PROPOSAL, NO. 74.605-6325, IN AN EFFORT TO PERSUADE NAVAIR TO RECONSIDER ITS DECISION AND CONTRACT WITH SYMBOLIC.

THE APPROPRIATENESS OF CONTRACT MODIFICATIONS VIS-A-VIS HAVING THE GOVERNMENT PROCURE THE ITEM AND FURNISH IT TO THE AIRFRAME MANUFACTURER INVOLVES A MATTER OF CONTRACT ADMINISTRATION WHICH IS PRIMARILY THE FUNCTION AND RESPONSIBILITY OF THE CONTRACTING AGENCY, AND IS NOT ORDINARILY FOR RESOLUTION UNDER OUR BID PROTEST FUNCTION UNLESS THE MODIFICATION IS BEYOND THE SCOPE OF THE CONTRACT. 50 COMP. GEN. 540 (1971). IN THIS CASE IT HAS NOT BEEN ALLEGED NOR IS IT EVIDENT THAT THE MODIFICATION COULD BE CONSIDERED BEYOND THE SCOPE OF THE AIRCRAFT CONTRACT. THEREFORE, WE MUST DENY THE PROTEST CONCERNING NAVAIR'S DECISION TO CONTRACT WITH LOCKHEED.

WITH REGARD TO SYMBOLIC'S OBJECTIONS TO LOCKHEED'S PROCUREMENT ACTIONS, IT IS THE POLICY OF THIS OFFICE NOT TO CONSIDER PROTESTS AGAINST THE AWARD OF A SUBCONTRACT BY A GOVERNMENT PRIME CONTRACTOR UNLESS (1) THE PRIME CONTRACTOR IS ACTING AS THE GOVERNMENT'S PURCHASING AGENT; (2) THE GOVERNMENT HAS ACTIVELY OR DIRECTLY PARTICIPATED IN THE SUBCONTRACTOR SELECTION AND THIS PARTICIPATION HAS HAD THE NET EFFECT OF CAUSING OR CONTROLLING THE POTENTIAL SUBCONTRACTOR'S REJECTION OR SELECTION OR OF SIGNIFICANTLY LIMITING THE SUBCONTRACTOR SOURCES; (3) IT IS SHOWN THAT THERE IS FRAUD OR BAD FAITH ON THE PART OF THE GOVERNMENT IN APPROVING THE SUBCONTRACT AWARD; (4) THE SUBCONTRACT AWARD IS "FOR" THE GOVERNMENT; OR (5) AN AGENCY REQUESTS AN ADVANCE DECISION. OPTIMUM SYSTEMS, B-183039, MARCH 19, 1975, 54 COMP. GEN.. SYMBOLIC HAS NOT ALLEGED FACTS WHICH WOULD INDICATE THAT ANY OF THE ABOVE LISTED SITUATIONS ARE PRESENT IN THIS CASE AND WE THEREFORE DECLINE TO DECIDE SYMBOLIC'S PROTEST REGARDING LOCKHEED'S PROCUREMENT ACTION.

REGARDING THE CONSIDERATION REQUIRED TO BE GIVEN BY THE NAVY TO SYMBOLIC'S PROPOSAL, WE NOTE THAT ITS SUBMISSION TO THE NAVY OCCURRED AFTER THE FIRM WAS ADVISED OF LOCKHEED'S REJECTION OF ITS PROPOSAL AND THE SELECTION OF ANOTHER MANUFACTURER. NAVAIR INSTRUCTION 4200.8 PROVIDES FOR THE REVIEW AND PROCESSING OF UNSOLICITED TECHNICAL PROPOSALS. IT STATES THAT A TECHNICAL PROPOSAL WILL NOT BE TREATED AS UNSOLICITED IF IT IS MERELY A NORMAL DEVELOPMENT OR EXTENSION OF AN EXISTING PROGRAM. ACCORDINGLY, IT DOES NOT APPEAR THAT SYMBOLIC'S PROPOSAL TO THE NAVY WAS UNSOLICITED WITHIN THE PURVIEW OF THE ABOVE INSTRUCTION.

ACCORDINGLY, THE PROTEST IS DENIED.