Skip to main content

B-224529, FEB 13, 1987, 87-1 CPD 160

B-224529 Feb 13, 1987
Jump To:
Skip to Highlights

Highlights

PROCUREMENT - CONTRACTOR QUALIFICATION - APPROVED SOURCES - INFORMATION SUBMISSION - TIMELINESS DIGEST: PROCURING AGENCY DID NOT DENY VENDOR A PROMPT OPPORTUNITY TO ATTAIN SOURCE APPROVAL FOR CRITICAL AIRCRAFT ENGINE PART IN TIME TO BE ELIGIBLE FOR AWARD WHERE THE AGENCY NOTIFIED THE VENDOR OF THE SOURCE APPROVAL REQUIREMENTS IN AMPLE TIME FOR THE PROTESTER TO HAVE FULFILLED THEM. THE RFP WAS ISSUED BY KELLY AIR FORCE BASE. AWARD UNDER THE RFP WAS RESTRICTED TO APPROVED SOURCES AND HOWMET ARGUES THAT THE AIR FORCE DENIED THE FIRM A REASONABLE OPPORTUNITY TO ATTAIN APPROVAL PRIOR TO AWARD. THE RFP WAS ISSUED ON MARCH 31. 1986 AND INDICATED THAT KONGSBERG VAPENFABRIKK AND UNITED TECHNOLOGIES CORPORATION WERE THE ONLY APPROVED SOURCES FOR THE TURBINE BLADES.

View Decision

B-224529, FEB 13, 1987, 87-1 CPD 160

PROCUREMENT - CONTRACTOR QUALIFICATION - APPROVED SOURCES - INFORMATION SUBMISSION - TIMELINESS DIGEST: PROCURING AGENCY DID NOT DENY VENDOR A PROMPT OPPORTUNITY TO ATTAIN SOURCE APPROVAL FOR CRITICAL AIRCRAFT ENGINE PART IN TIME TO BE ELIGIBLE FOR AWARD WHERE THE AGENCY NOTIFIED THE VENDOR OF THE SOURCE APPROVAL REQUIREMENTS IN AMPLE TIME FOR THE PROTESTER TO HAVE FULFILLED THEM, BUT THE PROTESTER FAILED TO SUBMIT NECESSARY INFORMATION IN SUFFICIENT TIME BEFORE THE AWARD.

HOWMET TURBINE COMPONENTS CORPORATION:

HOWMET TURBINE COMPONENTS CORPORATION PROTESTS THE DEPARTMENT OF THE AIR FORCE'S REJECTION OF ITS PROPOSAL UNDER REQUEST FOR PROPOSALS (RFP) NO. F41608-86-R-7249. THE RFP WAS ISSUED BY KELLY AIR FORCE BASE, TEXAS, FOR TURBINE BLADES AS SPARE PARTS FOR THE F-100 AIRCRAFT ENGINE. AWARD UNDER THE RFP WAS RESTRICTED TO APPROVED SOURCES AND HOWMET ARGUES THAT THE AIR FORCE DENIED THE FIRM A REASONABLE OPPORTUNITY TO ATTAIN APPROVAL PRIOR TO AWARD.

WE DENY THE PROTEST.

THE RFP WAS ISSUED ON MARCH 31, 1986 AND INDICATED THAT KONGSBERG VAPENFABRIKK AND UNITED TECHNOLOGIES CORPORATION WERE THE ONLY APPROVED SOURCES FOR THE TURBINE BLADES. OTHER OFFERORS COULD ALSO SUBMIT PROPOSALS AND APPLY FOR APPROVAL AS QUALIFIED SOURCES BY SUBMITTING EVIDENCE OF HAVING SATISFACTORILY PRODUCED THE ITEM FOR A DEPARTMENT OF DEFENSE AGENCY OR THE PRIME EQUIPMENT MANUFACTURER, OR BY SUBMITTING ENGINEERING DATA SUFFICIENT TO DETERMINE ACCEPTABILITY OF THE ITEM. THE RFP CAUTIONED THAT OFFERORS REQUIRING SOURCE APPROVAL WOULD ONLY BE CONSIDERED FOR AWARD IF THE GOVERNMENT COULD DETERMINE THE ACCEPTABILITY OF THE ITEM AND COULD PROCESS THE SOURCE APPROVAL APPLICATION IN SUFFICIENT TIME TO MEET THE AGENCY'S CURRENT NEEDS. HOWMET SUBMITTED A SOURCE APPROVAL PACKAGE ON MAY 9, 1986 THAT INCLUDED A BLUE PRINT FOR THE TURBINE BLADES AND INFORMATION REGARDING THE FIRM'S SUCCESSFUL MANUFACTURE OF SIMILAR ITEMS, AND SUBMITTED ITS PROPOSAL ON MAY 21. IN ADDITION, THE AIR FORCE RECEIVED PROPOSALS FROM THE TWO FIRMS THAT WERE APPROVED SOURCES. HOWMET WAS THE APPARENT LOW OFFEROR WITH AN OVERALL EVALUATED PRICE OF $3,607,021. KONGSBERG WAS NEXT IN LINE AT A TOTAL PRICE OF $3,914,700.75.

THE AIR FORCE SOURCE APPROVAL TECHNICIAN REVIEWED HOWMET'S SOURCE APPROVAL APPLICATION AND DETERMINED THAT ADDITIONAL INFORMATION WAS NECESSARY, INCLUDING DRAWINGS, SHIPPING ORDERS, DATA RIGHTS, AND A LIST OF THE DIFFERENCES BETWEEN THE REQUIRED ITEM AND THE SIMILAR ITEM PREVIOUSLY PRODUCED BY HOWMET. THE TECHNICIAN REQUESTED THIS INFORMATION ON MAY 29, AND HOWMET SUBMITTED IT THE NEXT DAY. THIS INFORMATION WAS THEN FORWARDED TO THE AGENCY'S SOURCE APPROVAL ENGINEERS FOR FURTHER REVIEW.

THE ENGINEERING OFFICE REQUESTED FURTHER INFORMATION AND, BY LETTER OF JULY 17, HOWMET WAS ADVISED THAT THE AIR FORCE REQUIRED FIVE ADDITIONAL ITEMS. THE ADDITIONAL ITEMS INCLUDED AN "ENGINEERING MASTER DRAWING" AND "THE CORRESPONDING AIRFOIL DATA," WHICH WERE BOTH IDENTIFIED BY NUMBER. THE LETTER ALSO REQUESTED THAT HOWMET SUBMIT EVIDENCE THAT IT OR ITS PROPOSED SUBCONTRACTORS ARE QUALIFIED TO PROVIDE THE MAJOR MANUFACTURING OPERATIONS REQUIRED BY THE ORIGINAL EQUIPMENT MANUFACTURER, PRATT AND WHITNEY AIRCRAFT (PWA). IN THIS REGARD, THE LETTER STATED THAT "PWA CERTIFICATION OR HAVING PWA ENGINEERING SOURCE APPROVAL OR QUALIFICATION APPROVAL WILL SUFFICE."

HOWMET SUBMITTED ITS RESPONSE BY LETTER DATED JULY 25. THE REVISED PACKAGE WAS AGAIN SUBMITTED TO THE ENGINEERING OFFICE FOR REVIEW AND, ON SEPTEMBER 8, THE ENGINEERING OFFICE DETERMINED THAT HOWMET COULD NOT BE APPROVED AS A SOURCE BECAUSE HOWMET FAILED TO PROVIDE EVIDENCE THAT IT WAS CERTIFIED BY PWA TO UTILIZE ITS PROPRIETARY DATA. A WRITTEN DETERMINATION WAS FORWARDED TO THE CONTRACTING OFFICE, WHICH RECEIVED THE DETERMINATION ON SEPTEMBER 19.

THE AIR FORCE INDICATES THAT, ALTHOUGH THE REQUIREMENT WAS NOT URGENT AT THE TIME THE RFP WAS ISSUED, ALL OFFERORS WERE ADVISED IN AUGUST THAT THE AGENCY'S NEED FOR THE ITEM WAS CRITICAL. AS A RESULT, UPON RECEIPT OF THE ENGINEERS' DETERMINATION NOT TO APPROVE HOWMET AS AN APPROVED SOURCE, THE CONTRACTING OFFICER DECIDED TO MAKE AN AWARD TO KONGSBERG SINCE FURTHER DELAY IN THE APPROVAL PROCESS WAS UNACCEPTABLE.

ON SEPTEMBER 19, HOWMET REQUESTED THAT A MEETING BE HELD, AND ON SEPTEMBER 24 THE PROTESTER MET WITH THE AIR FORCE'S SOURCE EVALUATION OFFICE AND THE COGNIZANT ENGINEERING OFFICE. AT THAT TIME, HOWMET PROVIDED A LETTER FROM PWA, DATED JANUARY 20, 1984 AND RECEIVED BY HOWMET ON FEBRUARY 7, WHICH INDICATED THAT HOWMET WAS CERTIFIED BY PWA TO UTILIZE THE COMPANY'S TECHNICAL DOCUMENTATION AND TOOLING TO PERFORM MILITARY CONTRACTS WITH THE GOVERNMENT. THIS INFORMATION WAS FORWARDED TO THE ENGINEERING OFFICE FOR REVIEW. NEVERTHELESS, BY LETTER DATED SEPTEMBER 26, 1986, THE CONTRACTING OFFICER ADVISED HOWMET THAT THE FIRM HAD NOT BEEN GRANTED APPROVAL AS A SOURCE FOR THE TURBINE BLADE BECAUSE HOWMET HAD FAILED TO PROVIDE EVIDENCE OF PWA CERTIFICATION THAT HOWMET COULD PROVIDE THE NECESSARY MANUFACTURING OPERATIONS. THE CONTRACTING OFFICER INDICATES THAT HE WAS NOT AWARE THAT HOWMET HAD SUBMITTED ADDITIONAL INFORMATION ON SEPTEMBER 24 AND PROCEEDED TO AWARD KONGSBERG THE CONTRACT ON SEPTEMBER 30. ON OCTOBER 6, THE AIR FORCE ADVISED HOWMET OF THE AWARD, AND HOWMET'S PROTEST WAS RECEIVED IN OUR OFFICE ON OCTOBER 8.

THE ENGINEERING OFFICE NEVERTHELESS EVALUATED THE LETTER FROM PWA FOR THE PURPOSE OF SOURCE APPROVAL FOR FUTURE PROCUREMENTS. BY LETTER OF OCTOBER 14, THE AIR FORCE ADVISED HOWMET THAT IT HAD BEEN GRANTED SOURCE APPROVAL TO PRODUCE THE TURBINE BLADE.

HOWMET CONTENDS THAT THE AGENCY'S REPEATED REQUESTS FOR ADDITIONAL INFORMATION, PARTICULARLY THE REQUIREMENT FOR PWA CERTIFICATION OF HOWMET'S MANUFACTURING OPERATIONS, WERE USED TO POSTPONE THE DECISION ON SOURCE APPROVAL. HOWMET ALSO CONTENDS THAT PWA CERTIFICATION WAS NOT NECESSARY TO MANUFACTURE THE TURBINE BLADES. THE PROTESTER ARGUES THAT IT TOOK 5 MONTHS TO DISAPPROVE HOWMET AS A SOURCE AND THEN ONLY 2 WEEKS TO COMPLETELY REVERSE THIS DECISION, AND COMPLAINS THAT THE AIR FORCE CLEARLY HAD SUFFICIENT TIME TO APPROVE HOWMET. HOWMET CONTENDS THAT THE AIR FORCE'S FAILURE TO DO SO UNFAIRLY EXCLUDED THE FIRM FROM COMPETING FOR THE CONTRACT.

THE AIR FORCE ARGUES THAT THE REQUIREMENT WAS URGENT AND THE AGENCY WAS UNABLE TO DELAY THE AWARD UNTIL HOWMET HAD SATISFIED ALL THE REQUIREMENTS FOR SOURCE APPROVAL. THE AIR FORCE ALSO INDICATES THAT ALTHOUGH HOWMET SUBMITTED THE ADDITIONAL INFORMATION ON SEPTEMBER 24 AND WAS THEN GRANTED APPROVAL BASED ON THAT INFORMATION ON OCTOBER 14, THE CONTRACTING OFFICE WAS UNAWARE THAT THE REQUIRED INFORMATION HAD BEEN SUPPLIED AT THE SEPTEMBER 24 MEETING OR THAT THE APPLICATION HAD BEEN RESUBMITTED FOR REVIEW. IN THE MEANTIME, THE CONTRACTING OFFICE HAD INFORMED THE SOURCE EVALUATION OFFICE THAT THE URGENCY OF THE REQUIREMENT WOULD NOT PERMIT FURTHER DELAY IN THE AWARD PROCESS, AND, CONSEQUENTLY, HOWMET'S SOURCE APPROVAL APPLICATION WAS FOUND APPLICABLE ONLY TO FUTURE REQUIREMENTS. THE AIR FORCE ARGUES THAT IT ACTED PROPERLY THROUGHOUT THE APPROVAL PROCESS AND REPEATEDLY REQUESTED HOWMET TO SUBMIT THE DATA REQUIRED FOR EVALUATION PURPOSES. SINCE HOWMET WAS NOT AN APPROVED SOURCE AT THE TIME THE CONTRACT WAS AWARDED, THE AIR FORCE CONTENDS THAT THE AWARD TO KONGSBERG WAS PROPER.

UNDER SECTION 1216(A) OF THE DEPARTMENT OF DEFENSE AUTHORIZATION ACT, 1985 (ACT), 10 U.S.C. SEC. 2319(C)(3) (SUPP. III 1985), A POTENTIAL OFFEROR MAY NOT BE DENIED THE OPPORTUNITY TO SUBMIT AN OFFER OR QUOTATION AND HAVE IT CONSIDERED FOR A CONTRACT SOLELY BECAUSE THE POTENTIAL OFFEROR HAS NOT MET A PREQUALIFICATION REQUIREMENT IF THE OFFEROR CAN DEMONSTRATE TO THE SATISFACTION OF THE CONTRACTING OFFICER THAT ITS PRODUCT MEETS THE STANDARDS ESTABLISHED FOR QUALIFICATION OR CAN MEET SUCH STANDARDS BEFORE THE DATE SPECIFIED FOR AWARD. THE ACT DEFINES A PREQUALIFICATION REQUIREMENT AS A REQUIREMENT FOR TESTING OR OTHER QUALITY ASSURANCE DEMONSTRATION THAT MUST BE COMPLETED BY AN OFFEROR BEFORE AWARD OF A CONTRACT. 10 U.S.C. SEC. 2319(A). THUS, AN OFFEROR MAY NOT BE EXCLUDED FROM CONSIDERATION MERELY BECAUSE IT IS NOT AN APPROVED SOURCE.

THE ACT FURTHER PROVIDES THAT BEFORE ESTABLISHING A PREQUALIFICATION REQUIREMENT, THE CONTRACTING AGENCY MUST SPECIFY IN WRITING AND MAKE AVAILABLE TO A POTENTIAL OFFEROR UPON REQUEST ALL REQUIREMENTS WHICH A PROSPECTIVE OFFEROR OR ITS PRODUCT MUST SATISFY IN ORDER TO BECOME QUALIFIED, SUCH REQUIREMENTS TO BE LIMITED TO THOSE NO MORE RESTRICTIVE THAN NECESSARY TO MEET THE AGENCY'S NEEDS. 10 U.S.C. SEC. 2319(B)(2). THE AGENCY ALSO MUST ENSURE THAT A POTENTIAL OFFEROR IS PROVIDED, UPON REQUEST, A PROMPT OPPORTUNITY TO DEMONSTRATE ITS ABILITY TO MEET THE PREQUALIFICATION STANDARDS. 10 U.S.C. SEC. 2319(B)(4). THESE PROVISIONS EFFECTIVELY CREATE A DUTY ON THE PART OF A CONTRACTING AGENCY TO TAKE CERTAIN ACTION TOWARDS QUALIFYING NEW SOURCES. SEE AMERICAN BALLSCREW, B-223915, DEC. 10, 1986, 86-2 CPD PARA. 664.

CONSISTENT WITH ITS DUTY, THE AIR FORCE, IN ITS JULY 17 LETTER, ADVISED HOWMET OF THE SPECIFIC INFORMATION NECESSARY FOR SOURCE APPROVAL OF HOWMET'S TURBINE BLADES. THE RECORD DOES NOT INDICATE THAT HOWMET PREVIOUSLY HAD REQUESTED THE AGENCY TO MAKE AVAILABLE THE SPECIFIC REQUIREMENTS WHICH AN OFFEROR MUST MEET FOR SOURCE APPROVAL, AND THEREFORE THE AGENCY HAD NO DUTY TO ADVISE HOWMET OF THESE REQUIREMENTS UNTIL THE AIR FORCE REVIEWED HOWMET'S SOURCE APPROVAL APPLICATION WITHIN A REASONABLE PERIOD OF TIME. WE POINT OUT THAT THE SOURCE EVALUATION TECHNICIAN REVIEWED THE APPLICATION AND REQUESTED MORE INFORMATION ON MAY 29, AT WHICH TIME HE COULD HAVE ADVISED HOWMET OF THE SPECIFIC REQUIREMENTS FOR SOURCE APPROVAL, ASSUMING THAT THE AIR FORCE HAD PREPARED THOSE REQUIREMENTS IN ADVANCE AS REQUIRED BY 10 U.S.C. SEC. 2319(B)(2). EVEN IF THERE WAS A DELAY IN NOTIFYING HOWMET OF THE SPECIFIC REQUIREMENTS FOR SOURCE APPROVAL, HOWEVER, THERE IS NO SHOWING THAT THE DELAY PREJUDICED HOWMET SINCE THERE STILL REMAINED AMPLE TIME FOR HOWMET TO SUBMIT THE REQUIRED EVIDENCE OF PWA CERTIFICATION, WHICH HOWMET ALREADY POSSESSED AND SUBSEQUENTLY PROVIDED TO THE AIR FORCE ON SEPTEMBER 24. THE FAILURE TO SUBMIT SUCH EVIDENCE IN SUFFICIENT TIME BEFORE AWARD TO ALLOW FOR ITS EVALUATION WAS THE ONLY BASIS FOR NOT APPROVING HOWMET'S BLADES.

WHILE HOWMET ASSERTS THAT PWA CERTIFICATION WAS NOT NECESSARY FOR THE PRODUCTION OF THIS ITEM, THIS BASIS FOR PROTEST IS UNTIMELY. SINCE OUR BID PROTEST REGULATIONS REQUIRE THAT A PROTEST BE FILED NOT LATER THAN 10 WORKING DAYS AFTER THE BASIS OF PROTEST WAS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER, 4 C.F.R. SEC. 21.2(A)(2) (1986), ANY PROTEST OF THE REQUIREMENT FOR PWA CERTIFICATION SHOULD HAVE BEEN FILED WITHIN 10 DAYS AFTER HOWMET'S RECEIPT OF THE AIR FORCE'S JULY 17 LETTER SETTING FORTH THE REQUIREMENT.

IN ADDITION, WE ARE UNABLE TO CONCLUDE THAT THE AIR FORCE WAS REQUIRED TO WITHHOLD AWARD PENDING THE SUBMISSION OF ADDITIONAL INFORMATION BY HOWMET. AFTER BEING ADVISED BY THE ENGINEERING OFFICE ON SEPTEMBER 19 THAT HOWMET'S SOURCE APPROVAL APPLICATION HAD BEEN DENIED, THE CONTRACTING OFFICER DETERMINED THAT URGENCY NECESSITATED THE IMMEDIATE AWARD OF A CONTRACT FOR ITS CURRENT REQUIREMENTS. ALTHOUGH HOWMET MET WITH THE AIR FORCE ON SEPTEMBER 24 AND SUBMITTED ADDITIONAL INFORMATION, REVIEW OF THAT INFORMATION WAS NOT COMPLETED UNTIL AFTER THE CONTRACT HAD ALREADY BEEN AWARDED TO KONGSBERG. IN VIEW OF THE FACT THAT HOWMET WAS REQUESTED TO PROVIDE SUCH INFORMATION AND HAD AMPLE OPPORTUNITY TO SUBMIT THIS INFORMATION AT A MUCH EARLIER DATE, WE ARE UNABLE TO AGREE WITH HOWMET'S ASSERTION THAT IT WAS THE AGENCY'S DELAYS WHICH RESULTED IN HOWMET'S NOT BEING APPROVED FOR THIS PROCUREMENT. WE FIND NO BASIS TO QUESTION THE AGENCY'S DETERMINATION OF URGENCY AND SINCE HOWMET WAS NOT AN APPROVED SOURCE AT THE TIME OF CONTRACT AWARD, THE AWARD TO KONGSBERG, AS THE LOWEST-PRICE QUALIFIED OFFEROR, WAS PROPER.

ACCORDINGLY, THE PROTEST IS DENIED.

GAO Contacts

Office of Public Affairs