Raytheon Company

B-261959.3 Jan 23, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Agency was required to secure waiver of statutory requirement that contracts be awarded only by the head of the agency or his delegate. Is denied where there is no basis in the record to conclude that participation by foreign members of the Steering Committee in the evaluation process resulted in an abdication of source selection authority to the Steering Committee. REDACTED DECISION A protected decision was issued on the date below and was subject to a GAO Protective Order. The RFP was issued to procure engineering and manufacturing development of the Evolved Seasparrow Missile. Raytheon argues that the Navy's selection of Hughes for award of this contract was unreasonable and results from an improper deviation from applicable procurement laws and regulations. View Decision Matter of: Raytheon Company File: B-261959.3 Date: January 23, 1996 * REDACTED DECISION Protest that, given agency's establishment of an evaluation Steering Committee composed of representatives from NATO member nations, agency was required to secure waiver of statutory requirement that contracts be awarded only by the head of the agency or his delegate--not foreign citizens--is denied where there is no basis in the record to conclude that participation by foreign members of the Steering Committee in the evaluation process resulted in an abdication of source selection authority to the Steering Committee. Where, in response to an agency question attempting to clarify a proposal's offer of technical data rights, offeror proposes a material revision to its proposal, and agency accepts and proceeds to evaluate the proposal on the basis of the response, agency has engaged in discussions such that it must hold discussions with the other competitive range offeror and allow both offerors to submit best and final offers. Attorneys REDACTED DECISION A protected decision was issued on the date below and was subject to a GAO Protective Order. This version has been redacted or approved by the parties involved for public release. DECISION Raytheon Electronic Systems Division, through its parent, Raytheon Company, protests the award of a contract to Hughes Missile Systems Company under request for proposals (RFP) No. N00024-95-R-5400, issued by the Naval Sea Systems Command, Department of the Navy. The RFP was issued to procure engineering and manufacturing development of the Evolved Seasparrow Missile. Raytheon argues that the Navy's selection of Hughes for award of this contract was unreasonable and results from an improper deviation from applicable procurement laws and regulations. We sustain the protest. BACKGROUND This procurement--seeking design, development, fabrication (of test articles) and testing of a modified warhead, new rocket motor, and new tail control section for the existing Seasparrow missile system--was conducted pursuant to a Memorandum of Understanding (MOU) among members of the North Atlantic Treaty Organization (NATO). The MOU, for the Cooperative Support of the Seasparrow Surface Missile System, provides for the establishment of a steering committee comprised of a representative of each of the 13 nations participating in the MOU. An addendum to the MOU assigns the contracting responsibility for the missile upgrade to the Department of the Navy within the U.S. Department of Defense (DOD) (and provides that the procurement be conducted in accordance with U.S. contracting laws, regulations and procedures), but requires unanimous approval by the Steering Committee of any source selection advisory council (SSAC) recommendation for award prior to a final selection decision by the source selection authority (SSA). Pursuant to the authority in 10 U.S.C. Sec. 2304(c)(1) (1994), the Navy limited the competition here to Raytheon and Hughes, the only two qualified Seasparrow missile producers, and issued the RFP on December 16, 1994. As mentioned above, the procurement seeks a modified guidance section and fuze, [1] along with a new rocket motor and new tail control system, resulting in a faster and more maneuverable missile. These increases in speed, maneuverability, and warhead/fuze effectiveness are required to meet both U.S. and international threat scenarios. Despite the international cooperative nature of this endeavor, however, the U.S. threat scenario included in the RFP is more challenging--i.e., more difficult to counter--is classified and is not releasable to the non-U.S. participants in the program. As a result, these requirements were included in a classified attachment to the RFP marked "NOFORN," barring dissemination of the information to foreign nationals. Section L of the RFP advised offerors that any information covered by the NOFORN restriction should be clearly labeled and segregated in a separate proposal annex.