B-234237, May 3, 1989, 89-1 CPD 423

B-234237, May 3, 1989, 89-1 CPD 423

PROCUREMENT - Contractor Qualification - Approved sources - Equivalent products - Acceptance - Administrative discretion DIGEST: Protest challenging agency determination that gyroscopes offered as an alternate to approved source were technically acceptable is denied since agency has primary responsibility for establishing procedures to determine product acceptability and for determining whether item will satisfy government's minimum needs, and protester has not shown that agency determination was fraudulent or constituted willful misconduct.

Northrop Corporation, Precision Products Division:

Northrop Corporation, Precision Products Division, protests the Department of the Air Force's award of a contract to Integrated Logistics International (ILI) under request for proposals (RFP) No. F42600-88-R- 0355. The contract is for the supply of F-16 aircraft gyroscopes. Northrop argues that ILI has not adequately demonstrated its technical capability as a qualified source to manufacture the devices.

We deny the protest.

On April 29, 1988, ILI received initial approval as a source for the gyroscopes based upon a technical data package submitted by ILI to the Air Force. The Air Force determined that ILI was an acceptable source subject to ILI's furnishing to the Air Force an acceptable first article of the product. An RFP was issued to meet the Air Force's needs for gyros and a contract was awarded on July 14, 1988, to ILI, as the low acceptable offeror. The contract called for ILI to furnish an acceptable first article gyros assembly and 67 gyro production units.

Subsequent to the execution of ILI's contract, an additional need for gyros developed. Consequently, the Air Force issued two separate solicitations, request for proposals No. F42600-88-R-0354 which was issued to Northrop and RFP of a defective evaluation. Sony Corp. of America, 66 Comp.Gen. 286 (1987), 87-1 CPD Para. 212. Consistent with this principle, the responsibility for establishing procedures necessary to determine product acceptability also rests with the contracting agency. See Ingersoll-Rand Co., B-224706; B-224849, Dec. 22, 1986, 86-2 CPD Para. 701. In view of the agency's discretion to make such determinations, we will not question the agency's decision to accept a previously unapproved source's alternate offer in an approved source procurement unless the decision was tantamount to fraud or willful misconduct. Sony Corp. of America, B-225512, supra.

Here, we do not think that Northrop has demonstrated that the Air Force's determination to approve ILI, subject to first article testing, is tantamount to fraud or willful misconduct. As noted above, the agency's engineers have examined the technical data package of ILI and are satisfied as to the firm's ability to manufacture the gyros. In addition, ILI has agreed to, and is engaged in, subjecting its product to essentially all of the original specification's testing requirements and will be required to subject its product to "safety of flight" testing as part of its first article approval. Finally, ILI has previous experience in manufacturing similar devices.

The protester, in effect, in insisting on more rigorous testing procedures, seeks to eliminate what now appears to be its only competitor. We note, however, that consistent with the objective of our bid protest function to ensure full and open competition for government contracts, our Office generally will not review a protest that has the purpose or effect, whether explicit or implicit, of reducing competition to the benefit of the protester. Rhine Air, B-266907, July 29, 1987, 87-2 CPD 110; Ray Service Co., 64 Comp.Gen. 528 (1985), 85-1 CPD Para. 582; Ingersoll-Rand Co., B-224706; B-224849, supra, 86-1 CPD Para 701.

The protest is denied.