Rotair argues that the Army did not provide a reasonable opportunity to become an approved source for maintenance and overhaul of drag braces. The protester also contends that the agency’s award was improper because it was based on an outdated J&A that incorrectly stated that the agency had not received expressions of interest from non-approved sources. For the reasons discussed below, we find no basis to sustain the protest.

The Competition in Contracting Act of 1984 (CICA) requires agencies to obtain full and open competition in procurements through the use of competitive procedures. 10 U.S.C. § 2304(a)(1)(A). An exception to this general requirement is where there is only one responsible source, or a limited number of sources, able to meet the agency’s requirements. 10 U.S.C. § 2304(c)(1); HEROS, Inc., B 292043, June 9, 2003, 2003 CPD ¶ 111 at 6. This is the exception cited in the J&A here. AR, Tab 2.6, J&A, at 2.

CICA further states, however, that noncompetitive procedures may not be used due to a lack of advance planning by contracting officials. 10 U.S.C. § 2304(f)(5); New Breed Leasing Corp., B-274201, B-274202, Nov. 26, 1996, 96-2 CPD ¶ 202 at 6; TeQcom, Inc., B-224664, Dec. 22, 1986, 86-2 CPD ¶ 700 at 5. Our Office has recognized that the requirement for advance planning does not mean that such planning must be completely error-free, but, as with all actions taken by an agency, the advance planning required under 10 U.S.C. § 2304 must be reasonable. WorldWide Language Resources, Inc.; SOS Int’l Ltd., B 296984 et al., Nov. 14, 2005, 2005 CPD ¶ 206 at 12.

In addition, when a contracting agency restricts a contract to an approved product or source, and uses a qualification requirement as the basis for that restriction, it must give other offerors a reasonable opportunity to qualify. Barnes Aerospace Grp., B-298864, B-298864.2, Dec. 26, 2006, 2006 CPD ¶ 204 at 3; see 10 U.S.C. § 2319(b). This opportunity to qualify includes ensuring that an offeror is promptly informed as to whether qualification has been attained and, if not, promptly furnishing specific information about why qualification was not attained. Advanced Seal Tech., Inc., B-250199, Jan. 5, 1993, 93-1 CPD ¶ 9 at 3. Failure to act upon a potential offeror’s request for approval within a reasonable period of time deprives the requester of an opportunity to compete and is inconsistent with the CICA mandate that agencies obtain full and open competition through the use of competitive procedures. Barnes Aerospace Grp., supra; Advanced Seal Tech., Inc., supra.

Rotair first contends that the Army failed to provide the company a reasonable opportunity to be qualified as an approved source for maintenance and overhaul of drag braces. Specifically, Rotair noted that the agency delayed approximately 30 days in providing the protester all of the specifications needed to prepare its SAR package. Protest at 9. Rotair contends that this delay, combined with the agency’s unwillingness to delay contract award until after completion of its review of the protester’s SAR package, unreasonably deprived Rotair of an opportunity to compete. Id. We find no merit to the protester’s arguments.

As discussed above, Rotair requested the Army provide the necessary documents to prepare and submit a SAR package on June 7, 2013. AR, Tab 1.6, Email from Rotair to Contract Specialist (June 7, 2013). The agency acknowledges that it did not provide all of the required information until July 9. Contracting Officer’s Statement at 2. The protester, however, did not submit its SAR package until January 29, 2014 (which was received by the agency on February 3)--almost 7 months later. Id.

Additionally, the Army advises that Rotair’s SAR package was “prioritized” for review on February 28, that the SAR package was moved “to the top of the list of unsolicited SARs” for review on April 24, and that the review process of Rotair’s SAR package began on April 28. Supp. Contracting Officer’s Statement (Aug. 25, 2014) at 1. As discussed above, the Army awarded the contract on May 2. Subsequent to the award, on August 15, the agency sent Rotair an “on hold” letter because its SAR package did not meet certain requirements. Letter to Rotair from Army Engineering Directorate (Aug. 15, 2014), at 1-3. The agency requested that Rotair address the outlined issues and submit corrected documents within 60 days. Id. at 3.
Although the record shows that the Army delayed in providing data to Rotair that was required for the preparation and submission of its SAR package, the protester was nonetheless responsible for the majority of the delay in submitting the SAR package to the agency. In light of the protester’s delay in submitting its SAR package, and the agency’s subsequent efforts to review that package, we find no basis to conclude that the agency failed to meet its obligation to provide Rotair with an opportunity to become an approved source.

Rotair next contends that the Army was required to delay award of this contract until the agency completed the review of the protester’s SAR package. As discussed above, a potential offeror may not be denied the opportunity to submit an offer for a contract solely because the potential offeror is not an approved source; similarly, a prospective offeror must be provided an opportunity to be qualified as an approved source. 10 U.S.C. §§ 2319(b), (c)(3).
The protester’s argument here, however, raises a separate question--whether the agency must delay award of a contract in order to allow an offeror an opportunity to become qualified. As our Office has recognized, the approval process for critical safety items used in aviation can be involved. See Barnes Aerospace Grp., supra, at 6. In addition, the applicable statutes and regulations expressly provide that agencies need not delay proposed procurements in order to provide potential offerors enough time to become qualified. 10 U.S.C. § 2319(c)(5); FAR § 9.202(e). Accordingly, we cannot conclude that the Army acted improperly by not delaying the award here.

Finally, Rotair contends that the award to Overhaul was improper because the J&A restricting the competition to approved sources inaccurately stated that there were no pending expressions of interest by non-approved sources. The protester is correct that the May 16, 2013, J&A’s findings regarding expressions of interest was outdated as of the time the agency awarded the contract to Overhaul on May 2, 2014--as shown by the protester’s own expression of interest. The J&A, however, concerned the issuance of a solicitation that was limited to two approved sources. AR, Tab 2.6, J&A, at 2. Based on the J&A’s authority, the solicitation stated that the competition was limited to approved sources for drag brace maintenance and overhaul. RFP at 2. Thus, at the time the solicitation was issued, the J&A’s statement concerning the absence of other expressions of interest was accurate.

Because Rotair was not an approved source at the time of award, the agency could not make award to that firm in accordance with the terms of the solicitation. AR, Tab 1.3, Agency-Level Protest Decision (June 10, 2014), at 2. Moreover, as discussed above, the agency was not required to delay the award until the review of the protester’s SAR. For this reason, we do not think that Rotair’s submission of a SAR package provides any basis to challenge the agency’s award under the terms of the J&A or the solicitation.

The protest is denied (Rotair Industries, Inc., B-409950: Sep 25, 2014) (pdf)

This protest relates to RBC's efforts over almost 10 years to become a second approved source for Black Hawk helicopter swashplate bearings. In simple terms, two swashplates join the main rotor to the top of the main fuselage of a helicopter; the lower swashplate is stationary, while the upper swashplate rotates. Duplex ball bearings, known as the swashplate bearings, allow the upper swashplate to rotate in response to torque from the engine.

RBC argues that the delay in granting its request for source approval undermines DLA's justification for limiting the procurement to the original equipment manufacturer (OEM) of the Black Hawk (Sikorsky) or to the OEM's supplier (Kaydon). For its part, DLA argues that it has taken appropriate steps to allow RBC to pursue source approval, but since RBC is not currently an approved source, the sole-source procurement is proper. As explained in greater detail below, after RBC filed its protest, DLA revised the requirement from 33 bearings to six, and again directed award to the OEM, based on urgency. RBC also protested the revised procurement.

(sections deleted)

The Competition in Contracting Act of 1984 (CICA) requires that an agency obtain full and open competition in its procurements through the use of competitive procedures. 10 U.S.C. sect. 2304(a)(1)(A). Exceptions to this general requirement are provided in the statute where (among other enumerated exceptions) there is only one responsible source able to meet the agency's requirements, 10 U.S.C. sect. 2304(c)(1), or the requirement is of unusual and compelling urgency, 10 U.S.C. sect. 2304(c)(2). Since DLA took corrective action in response to the initial protest here--and thus no longer justified this procurement on a conclusion that there is only one responsible source for these bearings--the remaining issue in this protest is DLA's reliance on urgency to justify its reduced requirement for swashplate bearings.

As RBC points out, CICA mandates that noncompetitive procedures may not be used because agency contracting officials failed to perform advance planning. 10 U.S.C. sect. 2304(f)(4); HEROS, Inc., B-292043, June 9, 2003, 2003 CPD para. 111 at 6; New Breed Leasing Corp., B-274201, B-274202, Nov. 26, 1996, 96-2 CPD para. 202 at 6; TeQcom, Inc., B-224664, Dec. 22, 1986, 86-2 CPD para. 700 at 5. Our Office has recognized that the requirement for advance planning does not mean that such planning must be completely error-free, but, as with all actions taken by an agency, the advance planning required under 10 U.S.C. sect. 2304 must be reasonable. Barnes Aerospace Group, B-298864, B-298864.2, Dec. 26, 2006, 2006 CPD para. 204 at 4-5.

In addition, when a contracting agency restricts a contract to an approved product or source, and uses a qualification requirement, it must give other potential sources a reasonable opportunity to qualify. Lambda Signatics, Inc., B-257756, Nov. 7, 1994, 94‑2 CPD para. 175 at 4; Advanced Seal Tech., Inc., B-250199, Jan. 5, 1993, 93-1 CPD para. 9 at 3; see generally 10 U.S.C. sect. 2319(b). Failure to act upon a potential offeror's request for approval within a reasonable period of time deprives the requester of an opportunity to compete and is inconsistent with the CICA mandate that agencies obtain full and open competition through the use of competitive procedures. Lambda Signatics, Inc., supra; Advanced Seal Tech., Inc., supra; see also Freund Precision, Inc., B‑223613, Nov. 10, 1986, 86-2 CPD para. 543 at 3-4, aff'd, Freund Precision, Inc.--Recon., B‑223613.2, May 4, 1987, 87-1 CPD para. 464 (protest sustained where agency failed to evaluate protester's alternate product for unreasonable period of time); Rotair Indus., Inc., B‑232702, Dec. 29, 1988, 88-2 CPD para. 636 at 3 (protest sustained where agency unreasonably delayed processing of source approval request).

In our view, the actions of DLA and AMCOM chronicled above have unreasonably deprived RBC of an opportunity to compete for a contract to provide these bearings. While we do not question the urgency or necessity of obtaining the six bearings at issue here, we nevertheless conclude that DLA has failed to adequately plan for a requirement that was foreseeable and therefore the agency has failed in its statutory duty to perform adequate advance planning and to promote competition. In this regard, we view the earlier sole-source solicitations (some of which were canceled, possibly as a result of RBC's objections) as confirming the foreseeability of a continuing requirement for significantly larger quantities of swashplate bearings than are covered by this procurement. In the face of these continuing requirements, RBC has sought source approval from DLA or the Army since February 2000--i.e., for almost 10 years prior to the date of this decision. We think these facts amply establish a failure to conduct adequate and reasonable advance planning, as required under CICA. 10 U.S.C. sect. 2304(f)(4). Thus we conclude that the sole-source procurement here is not properly justified.  (RBC Bearings Incorporated, B-401661; B-401661.2, October 27, 2009)  (pdf)

Viking argues that it offered a previously-approved, as opposed to an alternate, product, and thus should not have been required to submit a data package for evaluation. The protester further argues that the agency improperly failed to request information pertaining to the acceptability of its valve from the Marine Corps.

As previously noted, the RFQ here incorporated by reference DLAD sect. 52.217-9002, which instructed offerors to indicate in their quotations whether they were offering an "exact product," an "alternate product," a "superceding part number," or a "previously-approved product," and to furnish the data required for whichever was applicable. For an alternate product, offerors were required to furnish "drawings, specifications, or other data necessary to clearly describe the characteristics and features of the alternate product being offered;" in addition, they were required to furnish data describing the exact product cited in the item description to the extent that this information was not already available to the government. The section further instructed that if, as was the case here, the solicitation did not identify the level of data in the government's possession, offerors were to assume that no data was available and to "furnish drawings and other data covering the design, materials, etc., of the exact product cited in the AID [acquisition item description], sufficient to establish that the Offeror's product is equal to the product cited in the AID." DLAD sect. 52.217-9002(c)(3)(a). For a previously-approved product, offerors were required to identify the contract or solicitation under which the product had previously been furnished or evaluated and approved; offerors were cautioned as follows, however:

If the product was furnished or evaluated and approved by a contracting activity different from the one issuing this solicitation, Offerors are advised that the Contracting Officer may not have access to records of another activity or other information sufficient to reasonably determine the offered product's acceptability. Therefore, in order to ensure that adequate data is available for evaluation, Offerors may elect to furnish with their offer the information requested by subparagraph (b) [pertaining to submission of an exact product] or (c) [pertaining to submission of an alternate product] of this provision, whichever is applicable for the offered product. Offerors are advised that if the additional data is not furnished, the Government may not be able to evaluate the offer.
DLAD sect. 52.217-9002(e)(2).

The foregoing paragraph makes clear that if, as was the case here, a vendor offers a product that was furnished to, or approved by, a contracting activity different from the one conducting the procurement in question, the contracting officer may not be able to obtain the records establishing the product's acceptability, and that if the contracting officer is unable to gain access to such records, the offeror must submit a data package to ensure evaluation of its offer. The agency explained that while the protester furnished evidence that it had previously furnished the valves to the Marine Corps, it did not furnish evidence that the valves had been approved. The agency noted in this connection that while one of the military services can decide to accept the risk associated with buying an item that has not been approved by the responsible ESA (which in this case was the Naval Inventory Control Point, Mechanicsburg, Pennsylvania), DLA will only acquire an exact product or one that the ESA has determined to be a technical equivalent. DLA also noted that in response to the protest here, it had attempted to gain access to archived files of the Marine Corps to determine if Viking had undergone some form of technical evaluation and approval for the item offered, but was unsuccessful.

The agency further explained that in an attempt to resolve Viking's protest, it had contacted the individual at the ESA whom the protester's attorney had identified to agency counsel as a source who could provide information regarding the approval of Viking's product; this individual stated that he did not have the authority to approve the item (his authority being limited to making recommendations regarding approval to a senior engineer), and thus had not approved Viking's part. This individual further advised that if Viking's part had been approved, a "certificate of conformance" would have been issued to Viking. DLA personnel followed up on the foregoing representations by contacting the senior engineer in question, who stated that he had no recollection of approving Viking's part for this NSN; in addition, DLA personnel contacted Viking to inquire whether it had a certificate of conformance and were told that it did not have such a document.

Given that, despite their reasonable efforts, DLA personnel were unable to locate documentation establishing that Viking's part had been approved as an acceptable alternate to the specified part, we think that it was both reasonable and consistent with the terms of the RFQ for the agency to require a data package for evaluation.

In commenting on the agency report, the protester raised an additional argument-- that the agency had deprived it of the opportunity to gain approval of its item in time for award under this RFQ by failing to refer its drawing to the ESA for approval.

The master solicitation for automated simplified acquisitions explicitly provides that "[a]lternate offers will not be considered for automated award," but that they "may be submitted for evaluation for future procurements . . . ." Master Solicitation at 5. To the extent that the protester had an objection to the above clause barring consideration of alternate offers for automated award, it needed to raise its objection prior to the closing date for receipt of quotations. See Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2009) (to be timely, a protest based on an alleged impropriety in a solicitation must be filed prior to the closing date for receipt of offers/quotations). In any event, the provision is clearly intended to prevent delay in making automated awards, which is consistent with statutory authority providing that an agency need not delay a procurement in order to provide an offeror an opportunity to demonstrate its ability to become qualified. 10 U.S.C. sect. 2319(c)(5) (2006); Advanced Seal Tech., Inc., B‑400088; B‑400089, July 14, 2008, 2008 CPD para. 137 at 4-5. Moreover, we think the agency made a reasonable effort to obtain information bearing on whether Viking's part was approved and that Viking had an opportunity to provide evidence for the assertion in its quotation that its item was a previously-approved part.  (Viking Inc.--USA, B-401528, August 25, 2009)  (pdf)

In its protests here AST argues that its ability to attain prompt requalification of its product has been hampered by the agency’s failure to promptly notify it of the revocation of its source approval and immediately provide technical information related to the revocation, as well as by the agency’s proposed 180-day timetable for the review of revisions to AST’s alternate item. AST requests that all procurements of NSN 2321 be suspended until AST can become requalified. DSCC responds that its decision to proceed with the procurement of NSN 2321 was not improper where AST was notified that it had been removed as an approved source before the challenged RFQs were issued, and DSCC is not required to--and, in view of its needs for the part, cannot--delay the procurement of NSN 2321 while AST pursues the requalification of its alternate item.

The Competition in Contracting Act of 1984 (CICA) requires that an agency obtain “full and open” competition in its procurements through the use of competitive procedures. 10 U.S.C. sect. 2304(a)(1)(A) (2000). Accordingly, when a contracting agency restricts contract award to an approved product and imposes a qualification requirement, it must give nonapproved sources a reasonable opportunity to qualify. Newguard Indus., Inc., B-257052, Aug. 11, 1994, 94-2 CPD para. 70 at 2. This opportunity to qualify includes providing offerors a prompt opportunity to demonstrate their qualification and ensuring that the offeror is promptly informed as to whether qualification has been attained and, if not, promptly furnishing specific information why qualification was not attained. 10 U.S.C. sect. 2319(b)(6); FAR sect. 9.202(a)(2)(ii), (4).

DSCC sustained AST’s earlier agency-level protests on the basis that DSCC had failed to promptly inform AST of its removal as an approved source and of the reasons for that removal, thereby denying AST a prompt opportunity to qualify in connection with the earlier-issued RFQs. Those facts are not repeated in the current protests. Here, AST had notice that it had been removed as an approved source by January 17, and was formally notified and given specific information as to why it had been removed on February 26. Therefore, because AST had the notice and information necessary to undertake requalification before the RFQs were issued on March 3, we see no basis to conclude that DSCC denied AST a reasonable opportunity to qualify its alternate item in connection with the currently challenged RFQs.

AST also argues that DSCC has denied AST a prompt opportunity to demonstrate its qualification by suggesting a 180-day review process for revisions to AST’s alternate item. The 180-day time period is derived from the ESA’s Source Approval Information Brochure, which states that “within 180 days of a SAR being prioritized for review, the contractor shall be advised of the approval or disapproval thereof, or if additional time is required to process the request, the date on which approval or disapproval will be provided.” Source Approval Information Brochure at 13. AST has not explained why that time period is unreasonable other than to cite its previous experiences in which review has occurred more rapidly, and on the record here we see no basis on which to find that the 180-day review period violates the prompt opportunity requirement in 10 U.S.C. sect. 2319(b)(6). Further, we note that AST’s seal failed to qualify previously, and therefore AST’s alternate item must be evaluated again.

With regard to whether DSCC must delay or suspend procurement of NSN 2321 in order to allow AST to requalify, a potential offeror may not be denied the opportunity to submit and have considered an offer for a contract solely because the potential offeror is not an approved source, if the potential offeror can demonstrate to the satisfaction of the contracting officer or ESA that the potential offeror or its product can meet the standards of qualification before the date specified for award. 10 U.S.C. sect. 2319(c)(3). However, there is no statutory requirement that an agency delay a procurement in order to provide an offeror an opportunity to demonstrate its ability to become qualified. 10 U.S.C. sect. 2319(c)(5); Marc Ave. Corp., B-261968.2, Jan. 11, 1996, 96-1 CPD para. 79 at 3. Accordingly, we agree with DSCC that it has no obligation to suspend its procurements of NSN 2321 here.  (Advanced Seal Technology, Inc., B-400088; B-400089, July 14, 2008) (pdf)

A procuring agency may limit competition for the supply of parts if doing so is necessary to ensure the safe, dependable and effective operation of military equipment, see, e.g., Tura Mach. Co., B-241426, Feb. 4, 1991, 91-1 CPD para. 114 at 3, and the contracting agency is primarily responsible for determining its minimum needs and for determining whether a potential offeror will satisfy those needs, since it must bear the burden of difficulties resulting from defective determinations in this regard. Chromalloy Gas Turbine Corp., B-234272, May 17, 1989, 89-1 CPD para. 474 at 2. When a contracting agency restricts a contract award to only approved sources and imposes qualification requirements, unapproved sources should be given a reasonable opportunity to qualify. 10 U.S.C. sect. 2319 (2000). However, an agency is not required to delay a procurement solely to provide a potential offeror an opportunity to demonstrate its ability to become approved. 10 U.S.C. sect. 2319 (c)(5); The Purdy Corp., B-259066, Mar. 1, 1995, 95-1 CPD para. 120 at 3. This is particularly true where the offeror contributes to its failure to obtain timely source approval. Id.

Here, HFMC has not meaningfully challenged either the substance of the DLA’s determination regarding the critical nature of the valve assemblies, nor the authority of DLA to establish source approval qualification requirements. Rather, its entire protest rests on the assertion that unidentified TACOM personnel previously advised HFMC that it “need only qualify the assembly component [NSN-1063] in order to qualify the entire [NSN-]6205 tank valve assembly.”[4] HFMC Comments, May 14, 2008. In short, HFMC argues that, because unidentified TACOM representatives allegedly misled HFMC several years ago regarding the qualification requirements--or alternatively, that HFMC misunderstood the scope of the qualification requirements--DLA is now obligated to list HFMC as an approved source for this procurement.

Based on the record here, we reject HFMC’s protest that the agency improperly failed to include HFMC as an approved source for acquisition of the valve assemblies at issue. Indeed, it is clear that HFMC has been given an opportunity to meet the requirements to become a qualified source for the valve stem assemblies, but has declined to do so. Accordingly, there is no basis to question the agency’s determination not to identify HFMC as an approved source in this solicitation. (Hydro Fitting Manufacturing Corporation, B-311452, July 8, 2008) (pdf)

With regard to the specific procurement challenged here, AST argues that DSCC’s failure to inform it of the results of the installation test of PFS-0822-21A denied AST a reasonable opportunity to qualify its alternate item before the issuance of the order. By statute and regulation, agencies imposing qualification requirements must fulfill specific responsibilities. As relevant here, they must provide offerors a prompt opportunity to demonstrate their qualification and must ensure that any offeror seeking qualification is promptly informed as to whether qualification has been attained, and if not, promptly furnish specific information on why qualification was not attained. 10 U.S.C. sect. 2319(b)(4), (6); FAR sect. 9.202(a)(2)(ii), (4).

In response to AST’s argument, DSCC contends that it fulfilled the requirements of 10 U.S.C. sect. 2319(b)(6) by notifying the attorney who had represented AST in the protest that led to the installation test. DSCC also argues that, even assuming it failed to properly notify AST of the result of the installation test, AST was not prejudiced because, even if it had been promptly notified of the results, the firm could not have successfully qualified in time to compete for this order.

In our view, even assuming that notification of the attorney who represented AST in its previous protests was sufficient to constitute notice to AST, DSCC’s notification of AST’s former attorney was unreasonably delayed, contrary to the requirements in 10 U.S.C. sect. 2319(b)(6). The installation test was completed on August 22 and the test report was completed on September 19, but the report was not forwarded to AST’s former attorney until November 27. Whether this more than 2-month delay between the completion of the test report and formal notification was attributable to DSCC or the ESA, we conclude that it did not constitute prompt notice as required under 10 U.S.C. sect. 2319(b)(6). However, we also conclude that AST was not prejudiced by DSCC’s failure to promptly notify it of the results of the installation test. AST first received the results of the installation test on December 28. By January 9, AST had modified its alternative item and sent a revised TDP to DSCC. DSCC forwarded the revised TDP to the ESA, which conducted an evaluation and notified AST on April 1 that its revised TDP was rejected because it was incomplete and contained insufficient information to determine if the modified design would work. The period of time from when AST learned of the result of the installation test to when it was notified that its revised TDP was rejected was 94 days. Based on that 94-day time period and the ultimate rejection of AST’s revised TDP, it is clear that AST would not have had a reasonable chance of receiving the order even if it had been promptly notified of the results of the installation test. Assuming that AST was officially notified of the results of the installation test on September 19, based on the 94-day time period, AST would have received notice that its revised TDP was rejected on December 22, 2 days after DSCC publicized the issuance of the order to another firm. Moreover, because AST’s revised TDP was rejected, AST could not have qualified in time for the order even if the evaluation of the TDP had taken substantially less time. If AST had been notified that its revised TDP was rejected even well ahead of the date the order was issued, AST would have been required to revise its TDP for a second time and submit it for reevaluation before it would have had a chance of again becoming conditionally approved. In our view, there was not a reasonable chance that AST could have become a qualified source in time to receive the order. (Advanced Seal Technology, Inc., B-311308, June 5, 2008)  (pdf)

Here, the agency asserts that the required process was clear from a drawing that was made available to the protester and other prospective offerors (via posting on a web-site).  The agency further argues that even assuming that the RFP package and drawing did not adequately apprise the protester of the requirement, the protester was on notice of it because “[s]hortly after CM submitted its qualification/ qualification waiver package, [the engineer] conferenced with CM and explained in detail to CM” the agency’s requirement and its importance.  Supp. Decl. of Air Force Engineer, Jan. 4, 2004, at 2-3.  According to the Air Force engineer, “CM responded to [his] explanation of the requirement and its importance, not by stating that it could or would comply with it, but rather by challenging its necessity and claiming CM could achieve acceptable part without using this anodize method.”  Id. at 3. The protester has neither taken issue with nor attempted to rebut either the agency’s argument that the required anodizing process was clear from the drawing or its argument that the engineer personally advised CM of the required process.  With regard to the latter point, the protester indeed confirmed in its January 5 submission to our Office that the Air Force engineer had explained the required anodizing process to it and that it had responded by claiming that it could produce an acceptable part without using this method.  Because the protester has neither taken issue with nor attempted to refute the agency’s position, it effectively has abandoned its argument that the Air Force denied it the opportunity to qualify as a source by failing to include in the RFP sufficiently detailed information regarding the required anodizing procedure.  O. Ames Co., B-283943, Jan. 27, 2000, 2000 CPD ¶ 20 at 7.  In any event, it is clear from the record that CM was aware of the agency’s requirement and failed to demonstrate that its item had undergone the required anodizing process.  As a result, it clearly was reasonable for the agency to conclude that CM was not a qualified source. (CM Manufacturing, Inc., B-293370, March 2, 2004) (pdf)

Here, the record reflects that the agency did not require Pac Sci Quantic to produce and test a qualification article, but rather approved Pac Sci Quantic as a qualified source at its Hollister, California facility, based on, among other things, Pacific Scientific’s corporate experience with the BBU-63/B cartridge, previous production of similar cartridges at the Hollister facility, and an RFP requirement for first article testing. As discussed below, we find that the agency’s approval was reasonable and consistent with applicable law and regulation, as well as the terms of the RFP. (Scot, Incorporated, B-292580, October 3, 2003)  (pdf)

Protest that award was improper because contracting activity that approved awardee's part for addition to qualified products list did not have approval authority is denied, where contracting officer found part approval valid based on consideration of information from cognizant activities, consistent with his authority under 10 U.S.C. sect. 2319. (Phaostron Instrument & Electronic Company, B-284456, April 20, 2000)  

Where, as here, a solicitation requires that the source of the product procured be qualified or approved, it is improper for a contracting agency to include in the list of approved sources a source that has not been properly approved and whose product does not satisfy the applicable specifications. Id. Including such a source in the list may constitute a basis for sustaining a protest if the agency's action prejudices the protester. Id. 

Here, the Army ultimately determined that TET should have been listed in the RFP as an approved source, Contracting Officer's Statement para. 9, and that it was unnecessary to "reapprove" a source (TET) that was already qualified and manufacturing the panels.  (Lavi Systems, Inc., B-282295, June 24, 1999)

The product at issue here is a heat exchanger, which costs between $15,000 and $20,000 and is a critical component in the F-15 fighter jet. 2nd Am. Compl. at 3. It was originally developed for the Israeli Air Force. Id. In 1990, the U. S. Air Force began using it in the U.S. planes, and, until WCC was approved, TAT was its only supplier. AR 799. The Air Force began looking at WCC as an additional heat exchanger supplier in 2010. AR 17. WCC submitted a proposal and began its attempt to obtain approval for their own version of the heat exchanger, which was allegedly reverse engineered from TAT’s heat exchanger. AR 17, 279.

The plaintiff contends that procurement rules dictate that WWC must successfully undergo the same tests as those which qualified TAT to provide the heat exchanger. In arguing that WCC was not qualified to provide the heat exchanger, the plaintiff relied heavily on the following provision of the Code of Federal Regulations:

If a qualification requirement applies, the contracting officer need consider only those offers identified as meeting the requirement…unless an offeror can satisfactorily demonstrate to the contracting officer that it or its product or its subcontractor or its product can meet the standards established for qualification before the date specified for award.

48 C.F.R. § 9.206-1(c). A qualification requirement is “a requirement for testing or other quality assurance demonstration that must be completed by an offeror before award of the contract.” 10 U.S.C. § 2319(a). The Federal Acquisition Regulation (“FAR”), through the DoD 4120.24-M, states that product testing “must be done on an equitable basis…to achieve fair treatment of all manufacturers with the capability to meet the performance, quality, and reliability requirements in the specification.” DoD 4120.24-M at 1.

Plaintiff contended that the regulations required each offeror successfully complete the same test regime for its heat exchanger, and that WCC could not be qualified as a supplier because it did not complete all of the tests. The FAR states that, when a qualification requirement exists, an agency “must specify all requirements that a potential offeror (or its product) must satisfy in order to become qualified.” 48 C.F.R. § 9.202(a)(iii). However, plaintiff ignores the fact that, prior to the establishment of a qualification requirement, DoD must “prepare a written justification stating the necessity for establishing the qualification requirement and specify why the qualification requirement must be demonstrated before contract award.” 10 U.S.C. § 2319(b)(1). This written justification was never created. Absent the written justification, this Court cannot presume that the Agency intended offerors to be subject to a qualification requirement that was never made explicit.

This Court agrees with defendant’s assertion that no qualification requirement exists here, and that “nothing in the procurement specification set forth ‘a requirement for testing or other quality assurance demonstration that must be completed by an offeror before award of a contract.’” D’s CMJAR at 21 (citing 10 U.S.C. § 2319(a)). Despite the plaintiff’s insistence that such a testing regime exists, none has been identified. The Court scoured the Administrative Record and could not locate any indication of a qualification requirement other than a few emails referring to the “procurement spec.” that WCC would be compared to. AR 350-51, 848. This Procurement Specification established “the requirements for performance, design, development, test and compatibility of equipment in the F-15 Aircraft,” but no part of those tests were required to be performed prior to the contract award. AR 399, 482-87. Even if the Court had been able to identify TAT’s original testing plan, it is important to note that TAT underwent its qualifying tests over 20 years ago. It is reasonable to assume that, during the past 20 years, technology standards would have changed such that TAT’s original testing regime would have been significantly modified and many of the tests would now be unnecessary and inapplicable.

Additionally, Courts have neither the expertise nor permissible discretion to decide on technical and prudential decisions, such as how many safety tests should be run on a military aircraft. Absent a regulatory provision establishing the test protocol or quantified testing plan, this area is one of broad discretion for the Air Force or DoD, but not the Court. TAT’s argument, while appearing persuasive, has simply pieced together various sources to infer a test requirement that did not actually exist. The argument is ultimately not reasonable, as it leads to a conclusion that lacks any support in the law or regulations.  (TAT Technologies, LTD v. U. S. and Wall Colmonoy Corporation, No. 16-540C, September 22, 2016)

The Court defers to the Forest Service’s decision that fire retardant products containing YP Soda, in the presence of sunlight, evidenced enhanced toxicity to the freshwater organisms studied. The Court finds that the decision by the Forest Service to preclude products containing YP Soda from its QPL is based on a rational hypothesis. The Court thus must find that the Forest Service decision was not irrational, arbitrary or capricious. The Court recognizes that the plaintiff is in disagreement with the Forest Service’s scientific evidence, but because the Court cannot substitute its judgment for that of the agency, even if reasonable minds could reach differing conclusions, the Court must defer to the agency. As long as a rational basis is articulated and relevant factors are considered, as they were here, the agency’s action must be upheld. Bowman Transp., Inc., 419 U.S. at 285-86. The Court must also defer to the agency decision requiring gum thickener. The court can find no evidence that the decision was beyond the bounds that a rational decision maker, acting in good faith, could have made. Thus, the Court does not find that the decision to require gum thickener in fire retardant materials was arbitrary and capricious. The Court could second guess the agency and evaluate the various studies and probe experts. That, however, would be beyond of the judicial role. After review of the evidence, the Court finds the manner in which the agency made the decision, based on the administrative record, to require the inclusion of gum thickener in fire retardant products was one that a rational decision-maker, acting in good-faith, could make. The court may not relitigate the scientific data on this topic and the Forest Service’s decision must stand. It should also be noted that the Court found no evidence of bad faith. The procedures outlined in FAR part 9 are applicable to acquisitions involving qualification requirements under 41 U.S.C. § 253c and these are the procedures the Forest Service was required to adhere to for this procurement. Fire-Trol contends that the Forest Service failed to comply with FAR part 9.202 which requires written justification for and approval of qualification requirements. Fire-Trol concedes that requirement was met in January 2005 with respect to the original January 2000 Specification 5100-304b but argues that there was no written justification for or approval of the amendment to that specification issued on January 2005. Pl. Br. 19-20. However, the justification and approval procedures in FAR part 9.202 are not required for every amendment to the specification. Under FAR part 9.204(i)(2) agencies are required to reexamine qualified products if “the requirements in the specification have been amended or revised sufficiently to affect the character of the product”. The Court finds that altering the fire-retardant ingredients for enhanced efficiency and safety does not substantially effect the character of the product.  (Fire-Trol Holdings, LLC, v. U. S. and Hunot Retardant Co. and Astarsis, LLC, No. 05-205, April 6, 2005) (pdf)

As noted in the previous subsection, the government argues that SAI has now had a reasonable opportunity to requalify, and thus should not be granted additional time by this court in order to permit said requalification. In support of this argument, defendant cites SAI’s December 5, 2003 submission of a Source Approval Request (SAR) packet to the agency. Thus, the government contends that permitting SAI to attempt requalification 25 again is inconsistent with FAR § 9.202(e). Said provision states that “[t]he contracting officer need not delay a proposed award in order to provide a potential offeror with an opportunity to [qualify]. FAR § 9.202(e). We cannot accept this argument. While FAR § 9.202(e) does not require a contracting officer to delay an award to allow a potential offeror time to qualify, the government should not be allowed to take advantage of this self-serving regulation when its actions (or, as here, inactions) in violation of other FAR provisions directly led to the shortage of qualification time prior to the scheduled award date. To allow the government to invoke FAR § 9.202(e) as a shield in circumstances when the government’s own violations of FAR led to the delay in a source’s qualification goes squarely against basic principles of fundamental fairness. In effect, it would enable defendant to benefit from its own wrong. It is well established that he who seeks equity must do equity. On this record, therefore, we hold that the government violated FAR § 9.205's requirement by failing to urge potential offeror SAI to demonstrate its ability to meet qualification requirements.  (SAI Industiries Corp., v. U. S., No. 03-2698C, May 26, 2004) (pdf)