Matter of: Marine Instrument Company File: B-247774 Date: July 6, 1992
B-247774: Jul 6, 1992
The RFQ was issued on April 26. Calling for fixed-price quotations to supply binnacles which were described in a purchase description developed in 1988. Calling for FAT testing and providing that the government could waive such testing where "supplies identical or similar to those called for in the schedule have been previously furnished by the offeror/contractor and have been accepted by the Government.". The protester's allegations may be summarized as follows: (1) the Navy did not have a reasonable basis for waiving FAT requirements for Hand since its previously approved binnacles had never been subjected to tests to determine whether or not the items complied with what the protester describes as "new" requirements for painting the binnacles.
Matter of: Marine Instrument Company File: B-247774 Date: July 6, 1992
PROCUREMENT Small Purchase Method Quotations First-article testing Waiver Administrative discretion Agency had a reasonable basis to waive first article testing requirements for binnacles where awardee had successfully furnished similar items in the past and the specifications had not materially changed. PROCUREMENT Small Purchase Method Quotations First-article testing Waiver Administrative discretion Agency reasonably refused to waive first article testing requirements for binnacles for the protester where record shows that protester had never successfully furnished similar items in the past and had never completed first article testing in the past.
Marine Instrument Company, Newport Beach, California, (MIC) protests the award of a contract to John E. Hand & Sons Company, under request for quotations (RFQ) No. PTWB44-1009-3065, issued by the Department of the Navy for two bronze  binnacles--i.e., stands for shipboard compasses. The protester basically alleges that the agency had no reasonable basis for waiving first article testing (FAT) requirements for Hand while refusing to waive them for MIC.
We deny the protest.
The RFQ was issued on April 26, 1991, calling for fixed-price quotations to supply binnacles which were described in a purchase description developed in 1988. The RFQ included the clause set forth at Federal Acquisition Regulation Sec. 52.209-3, calling for FAT testing and providing that the government could waive such testing where "supplies identical or similar to those called for in the schedule have been previously furnished by the offeror/contractor and have been accepted by the Government."
Hand quoted a price of $10,235 without FAT; MIC quoted $8,900 on the same basis, but raised its price to $12,150 if FAT could not be waived. After consulting with Navy engineers, the contracting officer determined that he could waive the FAT requirements for Hand on the basis that the firm had successfully provided the same item under past contracts. He concluded that he could not waive the FAT requirements for the protester because MIC had never successfully completed FAT testing for binnacles and had never supplied the item under contract to the Navy.
The protester's allegations may be summarized as follows: (1) the Navy did not have a reasonable basis for waiving FAT requirements for Hand since its previously approved binnacles had never been subjected to tests to determine whether or not the items complied with what the protester describes as "new" requirements for painting the binnacles; and (2) the Navy acted unreasonably in not waiving FAT requirements for MIC as the protester had supplied acceptable binnacles to the Navy which had passed the shock and vibration tests contained in the FAT requirements when the protester allegedly performed contract No. N000104-89-C-N119 for the supply of binnacles to the Navy under the same specification.
As to MIC's first contention, the record shows that Hand has successfully supplied the same item to the agency under several contracts during the past 20 years; the record further shows that, notwithstanding the protester's speculation to the contrary, the basic technical requirements for the binnacle in issue have not materially changed over that period of time. (In fact, to the extent they have changed, they have been liberalized to enhance competition.) The record further shows that no problems have been encountered as a result of Hand's supplying the Navy with binnacles.
An agency's decision to waive a FAT requirement is largely discretionary since the requirement is for the protection and benefit of the government, and we will not disturb that decision unless we find it to be unreasonable. Marine Instrument Co., B-241292.3, Mar. 22, 1991, 91-1 CPD Para. 317. Under the circumstances here, we find that it was appropriate and reasonable to waive FAT requirements for Hand under the clause contained in the RFQ.
As to MIC's second contention, the Navy submits that it reasonably refused to waive the FAT requirements for MIC because the firm had never previously passed FAT testing and had never furnished binnacles to the Navy. The protester contends that it should have been accorded at least a "partial" FAT waiver because the Marine Instrument Company, Tucson, Arizona, the predecessor to the protester, passed the shock and vibration portions of the FAT requirements under contract No. N00104-89C-N119.
The record shows that on December 26, 1990, Marine Instrument Company, Tucson, Arizona, was informed that the FAT requirements under the referenced contract were not completed because only shock and vibration test results had been provided. In this regard, the contractor was directed to the same specification that was used in the RFQ at issue which lists a total of five other tests--in addition to shock and vibration--which must successfully be performed to pass the FAT requirements. The record further shows that, as a result of a dispute between the owner of the Tucson firm and the protester, the contract was terminated for default on November 11, 1991--during the pendency of the protested procurement--with no binnacles having been supplied.
The clause in the RFQ involving FAT clearly requires the performance of seven tests--including shock and vibration. It only provides for waiver--not partial waiver--in the event the contractor has previously furnished identical or similar supplies which have been accepted by the government. As indicated above, neither the protester nor the firm it claims as a predecessor ever supplied the Navy with binnacles, and neither ever passed all seven of the FAT requirements in the RFQ. Accordingly, the Navy reasonably concluded not to waive the FAT requirements for the protester. See Marine Instrument Co., supra.
The protest is denied.
1. In the initial agency report, the Navy erroneously stated that Hand had been awarded a contract for aluminum-cast binnacles; the agency later corrected this error and the protester was given an opportunity to respond. In fact, the award was made for bronze-cast binnacles; therefore, all of the protester's arguments about the potential differences between bronze and aluminum castings, and Hand's failure to produce the latter, are not relevant to this award.