B-298247; B-298247.2, Fabritech, Inc., July 27, 2006

B-298247; B-298247.2, Fabritech, Inc., July 27, 2006 TITLE: B-298247; B-298247.2, Fabritech, Inc., July 27, 2006 BNUMBER: B-298247; B-298247.2 DATE: July 27, 2006 **************************************************** B-298247; B-298247.2, Fabritech, Inc., July 27, 2006 Decision Matter of: Fabritech, Inc. File: B-298247; B-298247.2 Date: July 27, 2006 Shlomo D. Katz, Esq., and Kenneth B. Weckstein, Esq., Epstein, Becker & Green, PC, for the protester. J. Michael Slocum, Esq., Slocum & Brodie, PC, for The Purdy Corporation, an intervenor. Vera Meza, Esq., and Amy S. Meredith, Esq., Department of the Army, and John W. Klein, Esq., and Kenneth Dodds, Esq., Small Business Administration, for the agencies. Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging rejection of small business protester's offer on the ground that the agency's decision constituted a nonresponsibility determination that should have been referred to the Small Business Administration is sustained where the basis of the agency's determination--that protester would be unable to obtain the required parts--relates directly to the firm's capability to perform the contract. DECISION Fabritech, Inc., a small business, protests the award of a contract to The Purdy Corporation under request for proposals (RFP) No. W58RGZ-04-R-0686, issued by the U.S. Army Aviation and Missile Command (AMCOM) for overhaul of tail rotor gearboxes for the AH-64 helicopter. Fabritech argues that the agency improperly failed to refer the determination of Fabritech's responsibility to the Small Business Administration (SBA) under the certificate of competency (COC) program. Fabritech also asserts that the agency treated it and the awardee unequally in that the agency either failed to verify that the awardee would provide certified parts--as Fabritech was asked to do--or the agency held discussions with the awardee without also holding discussions with Fabritech. We sustain the protest. BACKGROUND AMCOM issued the RFP on December 20, 2004 to acquire the overhaul of a minimum of 95 and a maximum of 500 tail rotor gearboxes for the AH-64 helicopter. The RFP was initially issued as a total small business set-aside. By amendment 3, issued on February 16, 2006, the agency changed the RFP to restrict competition to approved sources for the gearboxes; in this regard, the amendment stated that "[c]urrently, the only approved sources for this item" are Purdy and Fabritech. Supplemental Agency Report (Supp. AR), Tab 5, RFP amend. 3 at 2. The amendment also changed the original evaluation factors for award to provide that award would to be made to the "responsive and responsible offeror whose proposal is evaluated at the lowest total cost to the government."[1] Id. at 12. With regard to Fabritech's status as an approved source, the agency notified Fabritech by letter dated December 7, 2005, that it was approved as a source of repair and overhaul of the gearboxes provided that Fabritech met several contingencies, including agreeing to purchase all critical safety item (CSI)[2] replacement parts from AMCOM-approved and -tested sources. AR, Tab A, attach. 3, at 2. In a letter to the protester dated March 13, 2006, the contracting officer requested that Fabritech provide documentation that it met the contingencies, including the requirement that all CSI replacement parts be purchased from AMCOM-approved and -tested sources, so that the agency could "adequately evaluate and make a determination of Fabritech's responsibility." Supp. AR, Tab 10, attach. 4, Letter from Contracting Officer to Protester, Mar. 13, 2006, at 1-2.[3] Fabritech responded by letter dated March 24, noting that it expected to receive approval of its source approval request for the new manufacture of the gearbox in September 2006. Fabritech asserted that approval on or near that date would allow it ample time to manufacture the parts necessary to perform the contract. Fabritech asserted that, in what it considered the highly unlikely event that its approval to manufacture the parts in-house were delayed, it could borrow useable parts from items that were slated for later overhaul for use in earlier overhauls. The parts that had been borrowed would then be obtained or manufactured in time to be used in the later overhauls. AR, Tab A, attach. 5. The agency made award to Purdy on April 17.