B-206191, OCT 15, 1982

B-206191: Oct 15, 1982

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A PROTEST CHALLENGING THE RESTRICTIVENESS OF A SOURCE-CONTROL SOLICITATION IS TIMELY UNDER GAO BID PROTEST PROCEDURES WHERE FILED ONE MONTH AFTER PUBLICATION OF THE PROCUREMENT IN THE COMMERCE BUSINESS DAILY BUT BEFORE THE CLOSING DATE FOR RECEIPT OF PROPOSALS. 2. AN AGENCY'S DETERMINATION TO PROCURE FUEL PUMPS ON A SOURCE CONTROL BASIS IS NOT SHOWN TO BE UNREASONABLE WHERE THE PROTESTER MERELY DISAGREES WITH THE AGENCY'S JUDGMENT THAT THE SOURCE-CONTROL DRAWING IS NOT SUFFICIENTLY DETAILED TO SUPPORT A MORE COMPETITIVE PROCUREMENT. 3. A PROTESTER HAS NOT SHOWN THAT AN AGENCY'S SOURCE-CONTROL DETERMINATION IS IN FACT A SOLE-SOURCE DETERMINATION SIMPLY BECAUSE THE PROTESTER DID NOT RECEIVE NOTICE FROM THE AGENCY CONCERNING QUALIFICATION PROCEDURES.

B-206191, OCT 15, 1982

DIGEST: 1. A PROTEST CHALLENGING THE RESTRICTIVENESS OF A SOURCE-CONTROL SOLICITATION IS TIMELY UNDER GAO BID PROTEST PROCEDURES WHERE FILED ONE MONTH AFTER PUBLICATION OF THE PROCUREMENT IN THE COMMERCE BUSINESS DAILY BUT BEFORE THE CLOSING DATE FOR RECEIPT OF PROPOSALS. 2. AN AGENCY'S DETERMINATION TO PROCURE FUEL PUMPS ON A SOURCE CONTROL BASIS IS NOT SHOWN TO BE UNREASONABLE WHERE THE PROTESTER MERELY DISAGREES WITH THE AGENCY'S JUDGMENT THAT THE SOURCE-CONTROL DRAWING IS NOT SUFFICIENTLY DETAILED TO SUPPORT A MORE COMPETITIVE PROCUREMENT. 3. A PROTESTER HAS NOT SHOWN THAT AN AGENCY'S SOURCE-CONTROL DETERMINATION IS IN FACT A SOLE-SOURCE DETERMINATION SIMPLY BECAUSE THE PROTESTER DID NOT RECEIVE NOTICE FROM THE AGENCY CONCERNING QUALIFICATION PROCEDURES, SINCE THE PROTESTER IS NOT THE KIND OF MANUFACTURER TO WHICH THE AGENCY WOULD SEND NOTICE AND SINCE THE PROTESTER MERELY ALLEGES THAT THE AGENCY'S TESTING FACILITY IS "UNRESPONSIVE" TO REQUESTS FOR SOURCE APPROVAL.

MAGNACO INDUSTRIES:

MAGNACO INDUSTRIES PROTESTS THE ISSUANCE OF SOLICITATION NO. DAAJ09 82-R- A341 BY THE UNITED STATES ARMY TROOP SUPPORT AND AVIATION MATERIEL READINESS COMMAND. THE SOLICITATION SOUGHT CAM ACTUATED FUEL PUMPS FROM AIRTEX PRODUCTS ON A SOURCE-CONTROL BASIS. MAGNACO PRINCIPALLY CONTENDS THAT THE PROCUREMENT OF THIS FUEL PUMP DOES NOT QUALIFY AS A SOURCE- CONTROL PROCUREMENT UNDER DEFENSE ACQUISITION REGULATION (DAR) SEC. 1-313 (1976 ED.) AND THAT CONSEQUENTLY THE ARMY SOLICITATION IS IMPROPERLY RESTRICTIVE.

WE DENY THE PROTEST.

THE ARMY USES THE FUEL PUMPS IN CERTAIN MILITARY ENGINES. THE PUMPS ORIGINALLY WERE PURCHASED ON A SOURCE-CONTROL BASIS. BETWEEN 1971 AND 1979, HOWEVER, THE ARMY PURCHASED THE FUEL PUMPS UNDER A SPECIFICATION CONTROL DRAWING, WHICH DESIGNATED AIRTEX AND AC SPARK PLUG AS SUGGESTED SOURCES. DURING THAT TIME, MAGNA INDUSTRIES, THE PREDECESSOR TO MAGNACO, WAS A SUPPLIER OF THE FUEL PUMPS. IN 1979, DUE TO AN ENGINEERING MANAGEMENT DECISION, THE ARMY RETURNED TO PURCHASING THE PUMP, AS IT HAD PRIOR TO 1971, ON A SOURCE-CONTROL BASIS, WITH AIRTEX AS THE ONLY APPROVED SOURCE INDICATED ON THE DRAWING.

ON DECEMBER 24, 1981, THE ARMY PUBLISHED A NOTICE IN THE COMMERCE BUSINESS DAILY (CBD) OF THE ISSUANCE OF A SOLICITATION TO PURCHASE FUEL PUMPS IN ACCORDANCE WITH THE SOURCE-CONTROL DRAWING. THE NOTICE STATED THAT ONLY APPROVED SOURCES WERE SOLICITED AND THAT "QUALIFICATION CAN BE TIME CONSUMING." THE SOLICITATION ITSELF IDENTIFIED AIRTEX AS THE SOLE APPROVED SOURCE AND NOTED THAT "A SUBSTITUTE ITEM *** SHALL NOT BE USED WITHOUT PRIOR TESTING AND APPROVAL BY MERADCOM." (MERADCOM IS THE ARMY'S MOBILITY EQUIPMENT RESEARCH AND DEVELOPMENT COMMAND.) THE CLOSING DATE FOR THE SUBMISSION OF PROPOSALS WAS JANUARY 26, 1982 AT 4 P.M.

MAGNACO INITIALLY CHALLENGED THE SOLICITATION IN A LETTER TO THE ARMY DATED JANUARY 19, 1982. BEFORE THE ARMY HAD DECIDED THE MATTER, MAGNACO FILED THIS PROTEST WITH OUR OFFICE ON JANUARY 26, SEVERAL HOURS BEFORE THE CLOSING DATE FOR RECEIPT OF PROPOSALS.

THE ARMY CONTENDS THAT MAGNACO'S PROTEST IS UNTIMELY. MAGNACO HAD CONSTRUCTIVE KNOWLEDGE OF THE BASIS OF ITS PROTEST UPON PUBLICATION OF THE CBD NOTICE, THE ARMY ASSERTS, AND THUS WAS REQUIRED UNDER OUR BID PROTEST PROCEDURES TO FILE ITS PROTEST WITHIN 10 WORKING DAYS OF PUBLICATION. C.F.R. SEC. 21.2(B)(2) (1982).

WE DISAGREE. MAGNACO'S PROTEST CHALLENGES ALLEGED IMPROPRIETIES IN THE ARMY SOLICITATION. UNDER OUR BID PROTEST PROCEDURES, SUCH PROTESTS WILL BE CONSIDERED TIMELY SO LONG AS THEY ARE FILED PRIOR TO THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS. 4 C.F.R. SEC. 21.2(B)(1). THIS CLOSING DATE DEADLINE APPLIES EVEN WHERE, AS HERE, ALLEGED DEFECTS MIGHT HAVE BEEN RAISED EARLIER BASED ON INFORMATION IN A CBD NOTICE. CF. CMI CORPORATION, B-206349, MARCH 8, 1982, 82-1 CPD 212 (A PROTEST CHALLENGING THE RESTRICTIVENESS OF A SOLICITATION SYNOPSIZED IN THE CBD IS UNTIMELY WHERE FILED AFTER THE CLOSING DATE FOR RECEIPT OF PROPOSALS). SINCE MAGNACO FILED ITS PROTEST PRIOR TO THE CLOSING DATE, THE PROTEST IS TIMELY.

MAGNACO MAINTAINS THAT THE PURCHASE OF THE FUEL PUMPS ON A SOURCE CONTROL BASIS IS IMPROPER AND THUS AMOUNTS TO AN UNJUSTIFIED SOLE SOURCE PROCUREMENT. THE PUMP BASICALLY HAS A STANDARD DESIGN CONFIGURATION, MAGNACO ASSERTS, AND SINCE THE SPECIAL FEATURES NEEDED BY THE ARMY ARE FULLY DETAILED ON THE DRAWING, A COMPETITIVE PROCUREMENT IS WARRANTED UNDER DAR SEC. 1-313(B). THUS, MAGNACO BELIEVES THAT THE SOLICITATION SHOULD NOT BE SOURCE-CONTROLLED BUT SHOULD INSTEAD PROVIDE FOR POST-AWARD FIRST ARTICLE TESTING.

THE ARMY RESPONDS THAT FULLY ADEQUATE TECHNICAL DATA CONCERNING THE FUEL PUMP IS NOT AVAILABLE, MAKING A SOURCE-CONTROL PURCHASE UNDER DAR SEC. 1- 313(C) APPROPRIATE. IN THIS REGARD, THE ARMY STATES THAT THE FUEL PUMP OUTLINED IN THE DRAWING IS NOT A STANDARD COMMERCIAL ITEM BECAUSE CERTAIN MODIFICATIONS HAVE BEEN MADE TO ADAPT THE PUMP TO EXTREME TEMPERATURES. THE ARMY ALSO NOTES THAT THE PUMP'S INTERNAL MECHANISMS ARE NOT DETAILED ON THE SOURCE-CONTROL DRAWING. THE ARMY EMPHASIZES, HOWEVER, THAT THE PURCHASE OF AIRTEX FUEL PUMPS HERE IS NOT A SOLE-SOURCE PROCUREMENT, SINCE OTHER MANUFACTURERS MAY SEEK APPROVAL OF THEIR PRODUCTS THROUGH MERADCOM. THE DEMAND FOR THE FUEL PUMP, THE ARMY CONTINUES, DOES NOT ALLOW FOR POSSIBLE DELIVERY DELAYS THAT MIGHT OCCUR UNDER THE ALTERNATIVE PROCEDURE - FIRST ARTICLE TESTING - THAT MAGNACO PROPOSES.

IT IS WELL ESTABLISHED THAT CONTRACTING AGENCIES ARE PRIMARILY RESPONSIBLE FOR DETERMINING AND ACCOMMODATING THEIR MINIMUM PROCUREMENT NEEDS. MUNICIPAL & INDUSTRIAL PIPE SERVICES LTD., B-204595, JANUARY 18, 1982, 82-1 CPD 39. WE HAVE RECOGNIZED IN THIS CONNECTION THAT, SINCE GOVERNMENT PROCUREMENT OFFICIALS ARE MOST FAMILIAR WITH THE CONDITIONS UNDER WHICH SUPPLIES, EQUIPMENT OR SERVICES HAVE BEEN AND WILL BE USED, THEY GENERALLY ARE IN THE BEST POSITION TO KNOW WHAT THE GOVERNMENT'S MINIMUM NEEDS ARE. WALTER KIDDE, DIVISION OF KIDDE, INC., B-204734, JUNE 7, 1982, 82-1 CPD 539. THUS, WE WILL NOT QUESTION AN AGENCY'S DETERMINATION OF ITS ACTUAL NEEDS OR HOW BEST TO MEET THEM UNLESS THERE IS A CLEAR SHOWING THAT THE DETERMINATION HAS NO REASONABLE BASIS. INTERSCIENCE SYSTEMS, INC., B-205458, MARCH 9, 1982, 82-1 CPD 220. FIND THAT MAGNACO HAS FAILED TO SHOW THAT THE ARMY'S SOURCE-CONTROL DETERMINATION WAS UNREASONABLE.

DAR SEC. 1-313(C) PROVIDES THAT REPLACEMENT PARTS FOR WHICH FULLY ADEQUATE MANUFACTURING DRAWINGS OR OTHER NECESSARY DATA ARE UNAVAILABLE SHOULD BE PROCURED ONLY FROM SOURCES THAT HAVE SATISFACTORILY MANUFACTURED THOSE PARTS IN THE PAST. IN SUPPORT OF ITS DETERMINATION UNDER THAT REGULATION, THE ARMY STATES THAT THE 1979 DECISION TO LIMIT FUEL PUMP PURCHASES TO APPROVED SOURCES WAS DUE TO THE INCREASING NUMBER OF QUALITY AND RELIABILITY PROBLEMS THAT OCCURRED DURING THE PERIOD IN WHICH THE FUEL PUMP DRAWING WAS SPECIFICATION-CONTROLLED. FOR INSTANCE, THE ARMY STATES THAT SEVERAL PROBLEMS AROSE FROM USE OF THE MAGNA INDUSTRIES PUMP, INCLUDING INSUFFICIENT CLEARANCE IN PARTS OF THE PUMP AND EXCESSIVE SIDE PLAY IN THE ACTUATING ARM.

WHILE MAGNACO ALLEGES THAT THE SOURCE-CONTROL DRAWING IS SUFFICIENTLY DETAILED TO SUPPORT A MORE COMPETITIVE PROCUREMENT, IT PRESENTS NOTHING FURTHER IN SUPPORT OF ITS CLAIM. MAGNACO'S MERE DISAGREEMENT WITH THE ARMY'S POSITION DOES NOT CONSTITUTE THE KIND OF PROBATIVE EVIDENCE REQUIRED TO ESTABLISH THAT THIS POSITION IS UNREASONABLE. SEE POWER TESTING INCORPORATED, B-197647, JULY 11, 1980, 80-2 CPD 26. THEREFORE, WE FIND NO BASIS FOR OBJECTING TO THE ARMY'S DETERMINATION TO PURCHASE THE PUMPS ON A SOURCE-CONTROL BASIS.

MAGNACO ALLEGES FURTHER THAT THE PURCHASE OF FUEL PUMPS IS AND WILL CONTINUE TO BE DE FACTO A SOLE-SOURCE PROCUREMENT BECAUSE OF THE ADMINISTRATIVE DIFFICULTIES IN OBTAINING MERADCOM APPROVAL. IN THIS REGARD, MAGNACO COMPLAINS THAT IT WAS NEVER NOTIFIED OF QUALIFICATION PROCEDURES AND THAT, IN OTHER INSTANCES, IT GENERALLY HAS FOUND MERADCOM TO BE UNRESPONSIVE TO REQUESTS FOR TESTING. MAGNACO BELIEVES IN ANY EVENT THAT IT SHOULD HAVE BEEN INCLUDED AS AN APPROVED SOURCE ON THE BASIS OF MAGNA INDUSTRIES' EARLIER CONTRACT. THE ARMY RESPONDS THAT IT IS MERADCOM'S ONGOING PRACTICE TO NOTIFY ANY KNOWN COMMERCIAL MANUFACTURERS OF PRODUCT QUALIFICATION PROCEDURES. MAGNACO HAS NOT BEEN SO NOTIFIED, THE ARMY CONTINUES, BECAUSE THAT FIRM IS NOT A KNOWN COMMERCIAL MANUFACTURER OF FUEL PUMPS. IN ADDITION, THE ARMY NOTES THAT ANY MANUFACTURER MAY REQUEST PRODUCT TESTING BY MERADCOM.

WE BELIEVE THE MERADCOM'S PROCEDURE IS REASONABLY CALCULATED TO GIVE NEW SOURCES A FAIR OPPORTUNITY TO QUALIFY. SEE, E.G., PARKER HANNIFIN CORPORATION, B-199937, OCTOBER 2, 1981, 81-2 CPD 270. WHILE MAGNACO ALLEGES THAT MERADCOM FAILED TO NOTIFY IT OF THE PREQUALIFICATION PROCEDURES, THE FIRM DOES NOT SPECIFICALLY DISPUTE THE ARMY'S ASSERTION THAT MAGNACO IS NOT A KNOWN COMMERCIAL MANUFACTURER OF FUEL PUMPS. THUS, WE ARE UNABLE TO CONCLUDE THAT MERADCOM IMPROPERLY OVERLOOKED PROVIDING NOTICE TO MAGNACO.

ALSO, THE FACT THAT MAGNACO MAY HAVE SUPPLIED THE PUMP IN THE PAST DID NOT, FOR SEVERAL REASONS, QUALIFY THE FIRM HERE AS AN APPROVED SOURCE UNDER DAR SEC. 1-313(C). FIRST, THE PUMP TO WHICH MAGNACO REFERS WAS SUPPLIED PRIOR TO THE ARMY'S IMPOSITION OF THE SOURCE CONTROL RESTRICTION. THUS, THAT PUMP WAS NEVER SUBJECT TO THE PARTICULAR KIND OF TESTING TO WHICH ALL OTHER FIRMS SEEKING SOURCE APPROVAL ARE NOW SUBJECT. IN ADDITION, THE ARMY EXPERIENCED PROBLEMS WITH THAT PUMP. FINALLY, WE NOTE THAT IT WAS MAGNA INDUSTRIES AND NOT MAGNACO THAT WAS THE SOURCE OF THE PUMP UNDER THE PRIOR CONTRACT.

THE PROTEST IS DENIED.