PROCUREMENT Bid Protests GAO procedures GAO decisions Reconsideration Request for reconsideration of decision denying protest of a purchase order for ablative coating kits is denied where requester has failed to show that the prior decision. Which found that the agency properly concluded that the protester did not have an acceptable alternate product- -contained any legal or factual errors. A synopsis of the solicitation was published in the Commerce Business Daily (CBD) on August 13. Was its own product. Its offer of the FlexFram 705 product would have been responsive. Since it had been previously approved and was specifically referenced in the CBD notice. Satisfied the specification and should have been considered.
Matter of: Fiber Materials, Inc.-- Reconsideration File: B-246587.2 Date: August 24, 1992
PROCUREMENT Bid Protests GAO procedures GAO decisions Reconsideration Request for reconsideration of decision denying protest of a purchase order for ablative coating kits is denied where requester has failed to show that the prior decision--which found that the agency properly concluded that the protester did not have an acceptable alternate product- -contained any legal or factual errors.
Fiber Materials, Inc. (FMI) requests reconsideration of our decision, Fiber Materials, Inc., B-246587, March 18, 1992, 92-1 CPD Para. 288. In that decision, we denied FMI's protest of a purchase order issued to Flamemaster Corporation for ablative coating kits, under Department of Army request for quotations (RFQ) No. DAAC79-91-T-1229.
We deny the request for reconsideration.
The RFQ, issued under small purchase procedures, called for ablative coating kits for the Chaparral missile system. A synopsis of the solicitation was published in the Commerce Business Daily (CBD) on August 13, 1991, advising of the proposed procurement of a kit meeting the requirements of Army Missile Command (MICOM) specification MIS 36199, Flamemaster PN (part number) 3943 or 705. The notice stated that the Army proposed to negotiate on a sole source basis with Flamemaster for the kits, but invited offers of alternate items. In response to the CBD notice, FMI filed an agency-level protest of the proposed procurement of the item from Flamemaster, on the ground that one of the products specified in the synopsis, PN 705, was its own product, FlexFram 705, which the Army already had approved. The Army denied FMI's agency-level protest and issued a small purchase order to Flamemaster in the amount of $22,245.
In the protest that FMI then filed with our Office, FMI asserted that, if solicited, its offer of the FlexFram 705 product would have been responsive, since it had been previously approved and was specifically referenced in the CBD notice. In the alternative, the protester stated that another FMI product, FlexFram 725, satisfied the specification and should have been considered. In this connection, FMI asserted that the solicitation as issued identified an incorrect specification, since MIS 36199 had been replaced by MIS 43098, which (along with a Flamemaster product) referenced FMI's newer product, FlexFram 725.
In denying FMI's protest, we found that, despite the notice's inadvertent reference to PN 705 (which, as indicated above, was incorrectly listed as a Flamemaster product), the Army never intended to solicit FlexFram 705, and had a reasonable basis for not doing so: based on prior testing, the Army had determined that the product debonded unacceptably from the Chaparral system's metal surfaces, and therefore did not meet the agency's minimum needs. We also rejected the protester's alternative argument on the ground that, at the time the purchase order was issued, (1) the new specification had not been formally approved, and (2) the product it referenced, FlexFram 725, had not been fully tested.
In requesting reconsideration, FMI reiterates its argument that its 705 product was responsive, and therefore should have been considered. According to the protester, any problems that the Army had with using 705 were due, not to changes in the product or the specification, but to the fact that the agency had changed the primer that it was using under the coating.
In considering these arguments previously, we found them unpersuasive. We explained that, although 705 had been approved in 1987, tests in 1988 showed that it would not bond properly to the missile system primer then being used, and therefore no longer met the agency's minimum needs. FMI was aware of these facts; it acknowledged in its protest that:
"the Army experienced some debonding problems as early as . . . 1988 with FlexFram 705 when it changed the priming system for the Chaparral Program."
Despite this negative experience with 705, the Army had not deleted the product entirely from the specification, in the belief that it might still be suitable for use over other primers, in applications other than the Chaparral program. Based on the Army's tests, however, 705 clearly was no longer acceptable for use in the Chaparral program, which was the stated purpose of this procurement.
In light of the above, the CBD notice's inadvertent reference to 705 did not, as FMI argued, provide a basis for considering the product for this procurement; the pertinent test, which we found the agency reasonably applied, was whether the product actually met the agency's minimum needs. Rather than soliciting a product such as 705 that had already been found unacceptable, the only practical means of possibly expanding competition was to indicate that offers of items other than the Flamemaster product would be reviewed for technical acceptability. See Helitune, Inc., B-243617, July 19, 1991, 91-2 CPD Para. 77; East West Research, Inc., B-239516, Aug. 29, 1990, 90-2 CPD Para. 178. That is precisely what the Army did, by stating in the CBD notice:
"Firms that can provide the required coating are encouraged to identify themselves and provide supporting evidence . . . which may permit their participation in current and future procurements."
We explained in our decision that where, as here, an agency invites offers of an alternate product, the prospective offeror generally bears the burden of submitting sufficient information regarding the alternate product to enable the contracting agency to determine whether the item meets all the requirements of the solicitation; that is, the responsibility is on the offeror to demonstrate affirmatively the acceptability of an alternate product. Aero Components Co., B-243919, Aug. 14, 1991, 91-2 CPD Para. 148. We will not disturb the agency's technical determination unless it is shown to be unreasonable. East West Research, Inc., supra.
As we pointed our previously, FMI did not provide any supporting evidence that its product could meet the agency's needs. It still has not done so in its request for reconsideration. Consequently, with respect to FlexFram 705, there is no basis for modifying our prior decision. Department of the Air Force, et al.--Recon., 67 Comp.Gen. 272 (1988), 88-1 CPD Para. 357.
In requesting reconsideration, FMI argues that if the product specification in the CBD notice did not meet the agency's needs, the Army should have used the revised specification, MIS 43098, which listed FlexFram 725 as an approved product. We responded to this argument previously. We found that, although FlexFram 725 and the proposed revised specification, MIS 43098, were both undergoing review, neither had been approved at the time the solicitation was issued; they were still undergoing review, moreover, as of the time the purchase order was issued to Flamemaster. FMI has not shown this conclusion to be erroneous.
We also noted in our decision that in January 1992, well after the purchase order was issued, the Army did complete testing of FlexFram 725; based on favorable test results, the Army determined that FlexFram 725 would be an acceptable item for future procurements. FMI now argues that, based on those tests, the agency should either (1) order ablative coating kits under the revised specification, MIS 43098 (which references FlexFram 725), or (2) issue no further purchase orders until the specification has been officially approved.
FMI appears to be stating what should be done with respect to any future procurement of the coating kits. However, a protest against a future solicitation is premature; the precise nature and provisions of the solicitation are speculative until it is actually issued. Our bid protest procedures are reserved for determining whether an award or proposed award complies with statutory, regulatory, or other requirements, Brown Assocs. Mgmt. Servs., Inc.--Recon., B-235906.3, Mar. 16, 1990, 90-1 CPD Para. 299; they are not available for challenging future procurements. Browning- Ferris Indus., B-209234, March 29, 1983, 83-1 CPD Para. 323. Consequently, FMI's arguments with respect to future procurements of the item are premature and not for consideration at this time.
The request is denied.