B-297172; B-297172.2, FN Manufacturing, Inc., December 1, 2005

B-297172; B-297172.2, FN Manufacturing, Inc., December 1, 2005 TITLE: B-297172; B-297172.2, FN Manufacturing, Inc., December 1, 2005 BNUMBER: B-297172; B-297172.2 DATE: December 1, 2005 ************************************************************** B-297172; B-297172.2, FN Manufacturing, Inc., December 1, 2005 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: FN Manufacturing, Inc. File: B-297172; B-297172.2 Date: December 1, 2005 John S. Pachter, Esq., Jonathan D. Shaffer, Esq., Erin R. Karsman, Esq., Richard C. Johnson, Esq., and David S. Stern, Esq., Smith Pachter McWhorter & Allen, for the protester. Jeffrey I. Kessler, Esq., and Maria B. Bribriesco, Esq., Department of the Army, 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 Protest challenging an agency's affirmative determination of the awardee's responsibility on the ground that there is evidence raising serious concerns that the contracting officer (CO) unreasonably failed to consider available relevant information suggesting that the awardee does not have a satisfactory record of integrity and business ethics is denied where the record shows that: (1) while the awardee was investigated for possible fraud, it was neither indicted nor proposed for debarment; (2) the CO was aware of the information that led to the questions about the awardee's activities under certain previous contracts and did not ignore the matter; and (3) the CO's more recent dealings with the company provided a rational basis for her conclusion that the awardee is a responsible contractor. DECISION FN Manufacturing, Inc. protests the award of a contract to Tri-Technologies, Inc. under solicitation No. W52H09-05-R-0190, issued by the Department of the Army for 12,500 bipod assemblies for M249 machine guns. FN challenges the Army's affirmative determination of Tri-Tech's responsibility. We deny the protest. BACKGROUND This protest raises only one contention--i.e., that the Army's contracting officer (CO) improperly concluded that Tri-Tech has a satisfactory record of integrity and business ethics, which is a prerequisite to being considered a responsible contractor eligible for award of a contract from the federal government under Federal Acquisition Regulation (FAR) sect. 9.104-1(d). As discussed in greater detail below, Tri-Tech's performance of previous contracts for bipods--two of them with the Army, and one as a supplier to FN--raised questions, resulting in an investigation, about whether the company had committed fraud, and engaged in on-going efforts to conceal that fraud, or whether it acted unintentionally when it provided bipods made out of a different type of steel than specified in its contracts. In FN's view, the CO failed to conduct a sufficient review of Tri-Tech's actions under those earlier contracts to properly conclude that the company was responsible here. The Army's Consideration of Tri-Tech for This Award This procurement began as an intended sole-source award to FN, due to the Army's urgent need for M249 bipod assemblies, and the fact that FN appeared to be the only company able to produce these items without being subjected to first article testing procedures. Contracting Officer's (CO) Statement at 13. The agency estimated that first article testing procedures could add at least 120 days to the delivery time. Agency Report (AR), Tab C, at 3. As a result, a Justification and Approval (J&A) for Other Than Full and Open Competition was approved on February 10, 2005, and a synopsis of the intended sole-source award was publicized. CO's Statement at 13. In response to the published synopsis, the Army received an expression of interest from Tri-Tech; the Army answered, by letter dated March 1, that issuance of the solicitation was imminent, and that the solicitation would include a requirement for first article testing and an aggressive delivery schedule. On April 8, the agency issued the solicitation; both FN and Tri-Tech submitted proposals by the solicitation's May 10 closing date. Id. Upon receipt of the two proposals, the CO noticed that Tri-Tech's offered price was significantly lower than FN's price, which led the CO to consider whether Tri-Tech should be allowed to compete for the award.