Link: GAO Decision
Protestor:Kilgore Flares Company, LLC
Agency: Department of the Navy
Disposition: Protest Denied.
Agency properly found protester nonresponsible to perform contract for the manufacture of flares where the record reflects outstanding concerns relating to the safety of the firm’s manufacturing facility.
General Counsel P.C. Highlight:
Kilgore Flares Company, LLC protested the agency’s determination that Kilgore was not responsible to provide the requirements of an RFP for the provision of infrared simulator flares. The RFP indicated that the contracting officer was required to obtain a preaward ammunition and explosives safety survey before awarding the contract. The preaward survey report for Kilgore recommended “no award” based on Kilgore’s lack of an approved explosive safety site plan.
The GAO disagreed with Kilgore’s assertion that it should have been provided an opportunity to resolve the alleged deficiency in its site plan during the preaward survey. It noted that Kilgore has been on notice as to the deficiency in its plan for some time, and was aware that the issue could result in a recommendation of “no award.” The GAO disregarded Kilgore’s argument that it had been approved for award multiple times in the past and that the status of its site plan had never been an issue. It found that the agency’s failure to raise concerns about the status of Kilgore’s site plan in the past does not makes its decision to do so now unreasonable.
Where contracting firms provide products for which manufacture is subject to strict safety conditions, the firms must maintain compliance with all site plan requirements. Plans must be kept current, and construction or modification of facilities should be approved prior to commencement. The award of contracts while site plans are out-of-date will not preclude an agency from finding that the firm is not responsible during later procurements as a result of failing to maintain current site plans.