B-210215.2, OCT 17, 1983, OFFICE OF GENERAL COUNSEL

B-210215.2, OCT 17, 1983, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

MR. RICHARD R. MERRITT, PRESIDENT:

THIS IS IN REPLY TO YOUR LETTER OF AUGUST 10, 1983, IN WHICH YOU REQUEST THAT WE "RE-EXAMINE" OUR DECISION IN THE MATTER OF QUALITY DIESEL ENGINES, INC., B-210215, JUNE 20, 1983, 83-2 CPD 1. IN THAT DECISION, WE DENIED YOUR PROTEST CONCERNING THE SOLE-SOURCE AWARD OF A CONTRACT TO FAIRBANKS MORSE ENGINE DIVISION OF COLT INDUSTRIES OPERATING CORPORATION FOR THE OVERHAUL OF THREE SHIPBOARD DIESEL ENGINES BECAUSE WE CONCLUDED THAT THE NAVY DID NOT POSSESS TECHNICAL DATA NECESSARY FOR A COMPETITIVE PROCUREMENT.

AMONG OTHER THINGS, YOU REQUEST THAT OUR OFFICE CONDUCT AN INVESTIGATION INTO THE ENTIRE MATTER TO DETERMINE WHY ONLY FAIRBANKS HAS THE TECHNICAL DATA NECESSARY TO PERFORM THE OVERHAUL OPERATIONS.

SINCE IT APPEARS THAT YOU MISUNDERSTOOD BOTH THE SCOPE OF THIS OFFICE'S FUNCTION UNDER OUR BID PROTEST PROCEDURES AND PRECISELY WHAT WE DID IN REVIEWING THIS PROTEST INITIALLY, WE OFFER THE FOLLOWING EXPLANATION. DO NOT, AS PART OF OUR BID PROTEST FUNCTION, CONDUCT INDEPENDENT INVESTIGATIONS TO PROVE OR DISPROVE A PROTESTER'S ALLEGATIONS. THIS IS SO BECAUSE BID PROTESTS ARE QUASI-JUDICIAL IN NATURE, AND, THUS, THE BURDEN IS ON THE PROTESTER TO PROVE THAT THERE IS A LEGAL IMPROPRIETY IN THE PROCUREMENT UNDER PROTEST; WE ARE NOT IN A POSITION TO QUESTION DISCRETIONARY JUDGMENTS MADE IN PRIOR PROCUREMENTS (SUCH AS AN AGENCY'S DECISION NOT TO ACQUIRE TECHNICAL DATA) AS PART OF THIS ADJUDICATORY PROCESS. THUS, WHEN A BID PROTEST IS FILED WITH THIS OFFICE, WE DO NOT UNDERTAKE A FULL-SCALE INDEPENDENT INVESTIGATION. RATHER, AS IS CLEARLY SPELLED OUT IN THE BID PROTEST PROCEDURES, SEE 4 C.F.R. PART 21 (1983), WE REVIEW AGENCY ACTIONS ON THE BASIS OF A WRITTEN RECORD, WHICH CONSISTS OF SUBMISSIONS FROM THE PROTESTER, THE AGENCY, AND OTHER INTERESTED PARTIES. BASED UPON THIS WRITTEN RECORD, WE CONSIDER WHETHER AN AWARD, OR PROPOSED AWARD, OF A CONTRACT COMPLIES WITH STATUTORY, REGULATORY AND OTHER LEGAL REQUIREMENTS. SEE SMI (WATERTOWN), INC., B-188174, FEBRUARY 8, 1977, 77-1 CPD 98.

IN REVIEWING THE PROTEST RECORD IN QUESTION, WE CONSIDERED THE QUALITY DIESEL AND NAVY SUBMISSIONS IN THEIR ENTIRETY. WE DID NOT IGNORE ANY PORTIONS OF THOSE SUBMISSIONS; NEITHER DID WE ACCEPT VERBATIM THE NAVY'S ARGUMENTS. AFTER CONSIDERING THE MATTER, WE FOUND THAT THE NAVY HAD SHOWN THAT IT HAD A REASONABLE BASIS FOR PROCEEDING WITH A SOLE-SOURCE PROCUREMENT BECAUSE OF THE LACK OF ADEQUATE TECHNICAL DATA. WE THEREFORE HELD THAT THE RECORD DID NOT PERMIT THE CONCLUSION THAT THE NAVY'S SOURCE SELECTION DECISION WAS IMPROPER.

ALTHOUGH YOU HAVE NOT BROUGHT TO OUR ATTENTION ANY FACTORS BEARING ON THE SOURCE SELECTION WHICH WE DID NOT PREVIOUSLY CONSIDER, WE HAVE AGAIN CAREFULLY REVIEWED THE ENTIRE RECORD IN THIS CASE, INCLUDING CERTAIN ASPECTS WHICH YOU EMPHASIZE, SUCH AS THE NAVY'S REFUSAL TO MEET WITH YOU AND THE ALLEGED FAILURE OF THE CONTRACTING OFFICER TO SIGN THE SOLE-SOURCE JUSTIFICATION - AND AGAIN FIND THAT OUR PRIOR CONCLUSIONS WERE CORRECT. IN THIS CONNECTION, WE POINT OUT THAT THERE IS NO ABSOLUTE LEGAL REQUIREMENT FOR A MILITARY DEPARTMENT TO ACQUIRE AN INTEREST IN TECHNICAL DATA. DEFENSE ACQUISITION REGULATION SEC. 9-200 ET SEQ.

ACCORDINGLY, WE FIND NO BASIS UPON WHICH TO RECONSIDER THIS MATTER BECAUSE YOU HAVE NOT PRESENTED US WITH FACTS THAT WERE NOT PREVIOUSLY CONSIDERED OR WHERE WE WERE LEGALLY INCORRECT. 4 C.F.R. SEC. 21.9.