B-194445.2, OCT 17, 1979

B-194445.2: Oct 17, 1979

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DIGEST: PROTEST REASSERTING ALLEGATION THAT NAVY WILL MAKE IMPROPER SOLE SOURCE AWARD IS DISMISSED. REVIEW OF PROPOSED PROCUREMENT PLAN BY HIGHER LEVEL NAVAL PERSONNEL IS NOT MERE FORMALITY. GAO WILL NOT ANTICIPATE FAILURE BY NAVY TO COMPLY WITH PROCUREMENT REGULATIONS. AERO CORPORATION: AERO CORPORATION AGAIN PROTESTS WHAT IT BELIEVES WILL BECOME A SOLE SOURCE PROCUREMENT TO PERFORM THE C-130 AIRCRAFT SERVICE LIFE EXTENSION PROGRAM (SLEP) TO SUPPORT NAVAL AIR SYSTEMS COMMAND (NAVY) REQUIREMENTS. AN EARLIER PROTEST TO THE SAME EFFECT WAS DISMISSED IN OUR DECISION IN AERO CORPORATION. AERO NOW SUBMITS EVIDENCE INDICATING THAT LOWER LEVEL NAVY PERSONNEL HAVE RECOMMENDED TO THE COMMANDER. IT STATES THAT IT WILL COMPLY WITH ALL LEGAL REQUIREMENTS.

B-194445.2, OCT 17, 1979

DIGEST: PROTEST REASSERTING ALLEGATION THAT NAVY WILL MAKE IMPROPER SOLE SOURCE AWARD IS DISMISSED. REVIEW OF PROPOSED PROCUREMENT PLAN BY HIGHER LEVEL NAVAL PERSONNEL IS NOT MERE FORMALITY. MOREOVER, GAO WILL NOT ANTICIPATE FAILURE BY NAVY TO COMPLY WITH PROCUREMENT REGULATIONS.

AERO CORPORATION:

AERO CORPORATION AGAIN PROTESTS WHAT IT BELIEVES WILL BECOME A SOLE SOURCE PROCUREMENT TO PERFORM THE C-130 AIRCRAFT SERVICE LIFE EXTENSION PROGRAM (SLEP) TO SUPPORT NAVAL AIR SYSTEMS COMMAND (NAVY) REQUIREMENTS. AN EARLIER PROTEST TO THE SAME EFFECT WAS DISMISSED IN OUR DECISION IN AERO CORPORATION, B-194445, JUNE 5, 1979, 79-1 CPD 394.

TO SUPPORT THIS PROTEST, AERO NOW SUBMITS EVIDENCE INDICATING THAT LOWER LEVEL NAVY PERSONNEL HAVE RECOMMENDED TO THE COMMANDER, NAVAL AIR SYSTEMS COMMAND, THAT CERTAIN PORTIONS OF THE WORK BE AWARDED TO THE LOCKHEED COMPANY. THE PROTESTER COMPLAINS THAT SUCH ACTION WOULD BE IMPROPER, CHARACTERIZES COMMAND LEVEL REVIEW AS A MERE "FORMALITY", AND ASSERTS THAT DISMISSAL OF THIS PROTEST WOULD DEPRIVE IT AND OTHER POTENTIAL OFFERORS "OF A FAIR OPPORTUNITY TO CHALLENGE THE BASIS FOR A SOLE-SOURCE AWARD TO LOCKHEED." IN THIS REGARD, AERO INDICATES THAT IT HAS BEEN TOLD BY LOWER LEVEL NAVY PERSONNEL THAT THEY DO NOT BELIEVE THEMSELVES BOUND BY DEFENSE ACQUISITION REGULATION (DAR) SEC. 1-1003 (1976 ED.) TO GIVE PUBLIC NOTICE OF AN AWARD TO LOCKHEED PRIOR TO MAKING IT.

THE NAVY STANDS ON ITS PRIOR POSITION. IT STATES THAT IT WILL COMPLY WITH ALL LEGAL REQUIREMENTS. IT MAINTAINS THAT A PROCUREMENT PLAN HAS NOT BEEN ADOPTED, AND THAT UNTIL ONE IS, IT IS UNABLE TO RESPOND BECAUSE IN THE CIRCUMSTANCES APPROVAL OF ITS PLAN IS REQUIRED AT THE SECRETARIAL LEVEL. DAR SECS. 1-2100.2, 1-2100.6. IN ITS VIEW, THIS CASE ALSO SHOULD BE DISMISSED.

IN OUR EARLIER DECISION WE POINTED OUT THAT:

"EVEN IF AERO'S EXPECTATION OF AN EVENTUAL SOLE-SOURCE PROCUREMENT PROVES CORRECT, THE NAVY DOES NOT ACT IMPROPERLY BY CONSIDERING WHETHER A SOLE- SOURCE AWARD WOULD BE APPROPRIATE. THE NAVY WOULD ACT IMPROPERLY ONLY IF IT WERE TO PROCURE ON A SOLE-SOURCE BASIS, WITHOUT ADEQUATE JUSTIFICATION."

IT IS OUR UNDERSTANDING THAT A DECISION BY THE NAVY HAS BEEN PENDING FOR SEVERAL MONTHS AND THAT THE PLAN WAS RECENTLY RETURNED FOR FURTHER REVISIONS. IN THE CIRCUMSTANCES, IT IS APPARENT THAT APPROVAL HAS NOT FOLLOWED AS PURELY A MATTER OF FORM. NAVY PERSONNEL ARE WELL AWARE OF THE PROTESTER'S COMPLAINT. IT WOULD BE INAPPROPRIATE FOR THIS OFFICE TO ANTICIPATE THAT THE NAVY'S ACTION, WHICH HAS YET TO BE DETERMINED BY HIGHER LEVEL NAVAL PERSONNEL, WILL NOT COMPLY WITH APPLICABLE PROCUREMENT REGULATIONS.

THE PROTEST IS DISMISSED.