Kilgore Flares Company, B-292944; B-292944.2; B-292944.3, December 24, 2003

Kilgore Flares Company, B-292944; B-292944.2; B-292944.3, December 24, 2003 TITLE: Kilgore Flares Company, B-292944; B-292944.2; B-292944.3, December 24, 2003 BNUMBER: B-292944; B-292944.2; B-292944.3 DATE: December 24, 2003 ********************************************************************** Kilgore Flares Company, B-292944; B-292944.2; B-292944.3, December 24, 2003 DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release. Decision Matter of: Kilgore Flares Company File: B-292944; B-292944.2; B-292944.3 Date: December 24, 2003 Michael B. Hubbard, Esq., Joseph J. Dyer, Esq., and Robert F. Pezzimenti, Esq., Seyfarth Shaw, for the protester. Ronald K. Henry, Esq., Kaye Scholer, for FR Countermeasures, Inc.; and Richard W. Oehler, Esq., and Eric A. Aaserud, Esq., Perkins Coie, for Armtec Defense Products Company, intervenors. Rick Martinelli, Esq., Department of the Navy, for the agency. Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Contention that agency wrongly rejected protester*s offer after determining that the protester was nonresponsible is denied where the record shows that the agency reasonably concluded that protester had not clearly established that it could meet the solicitation*s delivery schedule. DECISION Kilgore Flares Company protests the determination that it is not a responsible offeror, and the resulting rejection of its lowest-priced offer, by the Department of the Navy under request for proposals (RFP) No. N00104-03-R-K054, issued to procure two types of flare decoys--known as MJU-38B and MJU-32B flares (hereinafter, the *38B* and *32B* flares)--for use as countermeasures for aircraft under attack by heat-seeking missiles. In finding that Kilgore is not a responsible offeror, the Navy concluded, primarily, that Kilgore could not meet the delivery schedules here; Kilgore argues that the agency*s determination lacks a reasonable basis. We deny the protest. BACKGROUND The manufacture of flare decoys involves assembling highly explosive and unstable materials. Many of the firms that build these flares have experienced catastrophic explosions resulting in plant shutdowns, missed deliveries and sometimes, loss of life. After years of successfully producing these flares, and surviving in a market where other manufacturers dropped out of the business, Kilgore*s plant suffered a fatal explosion in April 2001. As a result, its plant was closed while the incident was investigated, and Kilgore was unable to make deliveries of flares on two previously-awarded Navy contracts for the 38B and 32B flares. As Kilgore was the only remaining firm producing flares for the Navy at the time of the accident, the Navy was forced to issue Military Interdepartmental Purchase Requests to the Army*s Crane Ammunition Activity for its 38B and 32B flares. The Navy explains that the cost of purchasing its flares from the Army is *significantly higher* than purchasing flares from the commercial explosives sector. Navy Clearance Memorandum at 3. This is the environment in which the RFP here was issued. On February 5, 2003, the Navy issued the instant RFP for 38B and 32B flares, seeking offers for the award of a fixed-price contract. The RFP*s base quantity sought 32,340 of each flare; the RFP also contained two options--one for each flare--seeking up to 48,150 each. RFP at 2-5. The RFP advised that award would be made *to the responsible offeror submitting the lowest priced, technically acceptable offer.* Id. at 70. The RFP provided explicit guidance on the need for first article testing, and on the importance of timely deliveries. On first article testing, the RFP advised potential offerors that they would be required to produce and deliver a quantity of the flares for government testing unless the contractor requested, and received from the government, a waiver of the requirement because the contractor had produced *supplies identical or similar to* those solicited. Id. at 38. Under the circumstances here, Kilgore was the only potential offeror likely to be in a position to obtain a waiver of the first article test requirement. On timely deliveries, the RFP advised potential offerors that there was a critical need for the timely delivery of these flares, and warned that offerors who take exception to the delivery schedule in the solicitation would not be considered for award. Id. at 6.