In re Bell Helicopter Textron
| Decision Date | 21 December 1979 |
| Docket Number | B-195268 |
| Citation | 59 Comp.Gen. 158 |
| Parties | MATTER OF: BELL HELICOPTER TEXTRON, DECEMBER 21, 1979: |
| Court | Comptroller General of the United States |
Contracts -- buy American act -- foreign products -- end product v Components airframe manufactured, tested and certified in france and disassembled for shipment to offeror in united states is foreign manufactured component and, if airframe's cost is more than 50 percent of costs of all components of helicopter end product, helicopter is foreign source end product, and 6 -percent differential required by buy American act, 41 U.S.C. 10a-d (1976), and implementing regulations, should have been added to foreign offer before offers were evaluated according to technical/cost basis procedure in request for proposals. However, addition of differential would not have changed order in which offerors stand. Contracts -- specifications -- tests -- aircraft -- proposed v. Testing model although solicitation required that proposed helicopter be directly derived from helicopter submitted for flight evaluation, provision in which requirement is included, when read as whole, indicates that intention was that flight-tested aircraft have potential to meet agency's mission and performance requirements. Contracts -- negotiation -- evaluation factors -- administrative determination protest against agency's technical evaluation of proposals is reviewed against general accounting office (GAO) standard that judgment of procuring agency officials, based on solicitation's evaluation criteria as to technical adequacy of proposals, will not be questioned unless shown to be unreasonable, an abuse of discretion or in violation of procurement statutes and regulations. Standard is not found to have been violated. Contractors -- responsibility -- contracting officer's affirmative determination accepted -- exceptions -- not supported by record ordinarily GAO does not review protests against affirmative determinations of responsibility unless fraud is alleged on the part of procuring officials or solicitation contains definitive responsibility criteria which have not been met. Standard is much the same as that followed by courts which view responsibility as discretionary matter not subject to judicial review absent fraud or bad faith. Since protester does not allege fraud, protester had failed to meet standard for review by GAO courts. Contracts -- prices -- adjustment -- latest available indices -- domestic v. Foreign -- foreign article procurement fact that price adjustment percentages to be used in economic price adjustment clauses are to be based on domestic indexes instead of french economy where some costs will be incurred is determined to be irrelevant. As indicated above, the protest is denied.
Bell helicopter textron (bell) protests the department of transportation, united states coast guard (DOT), award of contract no. Dot-cg-80513-a on a firm fixed-price basis to aerospatiale helicopter corporation (ahc) for 90 short range recovery (srr) helicopters, logistics support, training and warranties. The award was made under request for proposals (RFP) no. Cg- 80513-a, issued on March 17, 1978, which contemplated the award of a multiyear contract to replace sikorsky hh-52a helicopters currently used to perform the coast guard's srr responsibilities, missions executed within the maritime region extending the 150 nautical miles seaward of the shoreline.
As part of the evaluation of proposals submitted in response to the RFP, dot conducted a flight evaluation program under a separate contract. The flight evaluation program and the solicitation for it were included in the RFP as attachment VIII. Each offeror which intended to submit a written proposal in response to the RFP was required to provide a helicopter for the flight evaluation program. Dot awarded flight evaluation contracts to bell, ahc and sikorsky aircraft, division of united technologies corporation (sikorsky), and flight evaluations were conducted in May and June 1978.
Initial technical and cost proposals under the subject RFP were received on June 19 and July 31, 1978, respectively. Dot conducted technical discussions with the offerors from October 25 to October 30, 1978, and cost discussions from November 27 to November 30, 1978. The offerors submitted their revised technical proposals on December 7, 1978, and revised cost proposals on March 5, 1979. Sikorsky, however withdrew its proposal from the competition on March 26, 1979. BELL and ahc submitted their best and final offers on May 25 1979, and the contract was awarded to ahc on June 14, 1979.
Bell was given a debriefing on June 20, 1979, and filed its protest with our office on June 22, 1979. The protester essentially contends that dot improperly evaluated the firms' proposals, that the contract awarded to ahc is invalid, and that dot should resolicit its requirements. More specifically, BELL asserts that:
On July 6, 1979, BELL filed suit in the united states district court for the District of Columbia (textron Inc., BELL helicopter textron division v. Adams, civil action no. 79-1749) seeking an order setting aside the contract, requiring reevaluation of the proposals, and requesting that our decision on the protest be transmitted to the court. By order dated July 27, 1979, the court requested our decision "with respect to the merits of all issues set forth in the plaintiff's protest." See 4 C.F.R. 20.10(1979).
Ahc contends that bell's protest on grounds 2 and 3 above are untimely. Assuming that is correct, we will still consider those grounds because of the court's request for our decision on the issues. Sound refining Inc., b-193863, May 3, 1979, 79-1 CPD 308.
Upon consideration of the issues, we deny the protest for the reasons which follow.
Buy American act determination
A. Jurisdiction
Dot and ahc point out that ahc certified in its offer that it will furnish a domestic source end product and contend that whether ahc will comply with the certification is a matter of contract administration for resolution by the procuring activity and the contractor rather than this office. See, e.g., lanier business products, Inc., b-193204, December 12, 1978, 78-2 CPD 407; thorsen tool company b-188271, March 1, 1977, 77-1 CPD 154. However, since notwithstanding the certification, dot requested information from ahc to determine whether a domestic source end product is being offered, the question is whether dot properly evaluated the proposal in light of the information received. Where prior to award an offeror furnishes information to a contracting agency bearing upon whether the offered product is domestic, we have considered the matter. New britain hand tools division, litton industrial products, Inc., 58 Comp.Gen. 49(1978), 78-2 CPD 312. We conclude that the issue properly is before us.
B. Summary
The application of the 6-percent buy American act differential to ahc's offer would not change the order in which the offerors stand in this case. This is because, even though the addition of the differential would make ahc's cost proposal higher than bell's cost proposal, the technical advantage in ahc's proposal under the evaluation provided in the request for proposals outweighed the cost advantage. However, in order that an understanding will exist as to how the buy American act must be applied in a procurement like this, we are providing our analysis, first, as to the way in which the differential is to be applied where a technical factor is a dominant criterion and, second, as to the articles, materials and supplies to which the buy American act differential is to be applied.
The buy American act requires that only such manufactured articles materials and supplies as have been manufactured in the united states substantially all from articles, materials or supplies mined, produced or manufactured in the united states shall be acquired for public use, unless the head of the agency concerned determines it to be inconsistent with the public interest or the cost to be unreasonable. 41 U.S.C. 10a(1976). Executive order no. 10582, December 17, 1954, as amended, which establishes uniform procedures for determinations, as provides that materials (including articles and supplies) shall be considered to be of foreign origin if the cost of the foreign products used in such materials constitutes 50 percent or more of the cost of all the products used therein. The order further provides that the price of domestic articles is unreasonable if it exceeds the cost of like foreign articles PLUS a differential. The...
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