Comptroller General

United States Government Accountability Office 

Washington, DC 20548 

of the United States

 

Decision 

Matter of: Derm-Buro, Inc. 

File: B-400558 

Date: December 11, 2008 

Frank Guthart for the protester. 

Jared P. Weissberger, Esq., Defense Logistics Agency, for the agency. 

Eric M. Ransom, Esq., and Christine S. Melody, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

Agency reasonably determined to solicit only two of five firms listed on the qualified 

products list in connection with a reprocurement, where the two firms were the only 

firms currently producing the required product, and the only firms eligible for a 

waiver of first article test requirements. 

DECISION 

Derm-Buro, Inc., of Plainview, New York, protests the failure of the Defense 

Logistics Agency, Defense Supply Center Philadelphia (DSCP) to solicit it in 

connection with solicitation No. SPM1C1-08-R-0146, a reprocurement for anti-gravity 

suits. 

We deny the protest. 

The anti-gravity suit is required to be worn by all Navy, Marine, and Air Force jet 

pilots and is designed to prevent the pilot from losing consciousness during highgravity maneuvers. Without the anti-gravity suit, a military pilot is exposed to 

gravity-induced loss of consciousness, which occurs when blood is forced into the 

lower region of the body in reaction to acceleration or deceleration during highgravity maneuvers in military fighter aircraft. According to the agency, the antigravity suit is the most critical “life and limb” flight clothing for jet pilots, and 

offerors of anti-gravity suits are required to be technically qualified at the time of 

award by having their products listed on the qualified products list (QPL). The 

agency reports that the anti-gravity suit is currently in a “critical supply position with 

an increasing number of backorders that remain unfulfilled.” Agency Report (AR), 

Memorandum for Record, at 3. 
The challenged solicitation is a reprocurement for anti-gravity suits that were to be

delivered under a prior contract that was terminated for default.

1

 With regard to this 

reprocurement, the agency specifically solicited two of five firms listed on the QPL, 

Switlik Parachute Company and Mustang Survival Manufacturing, to compete for the 

defaulted requirement. Derm-Buro, also a manufacturer of anti-gravity suits listed on 

the QPL, was not aware that Switlik and Mustang had been solicited in connection 

with the defaulted requirement until each was awarded a contract, at which point 

Derm-Buro filed this protest. Derm-Buro asserts that as a firm listed on the QPL it

was entitled to receive a copy of the solicitation, and that DSCP, by withholding the 

solicitation, improperly denied it the opportunity to submit an offer. 

Citing our decision in Montage Inc., B-277923, B-277923.2, Dec. 29, 1997, 97-2 CPD 

¶ 176, the agency first argues that we should dismiss the protest. In Montage, we 

reexamined our previous view that a defaulted contractor may not be automatically 

excluded from a competition for the defaulted requirement because such an 

exclusion would constitute an improper premature determination of

nonresponsibility. In recognition of the broad authority to reprocure accorded the 

contracting officer by Federal Acquisition Regulation (FAR) § 49.402-6, we adopted 

the position that we would decline to review an agency’s decision not to solicit a 

defaulted contractor in the reprocurement of work remaining under the defaulted 

contract. The agency argues that the Montage decision should control here because 

Derm-Buro, although not the defaulted contractor in connection with the anti-gravity

suits being reprocured, was recently terminated for default for failure to timely 

present first article test (FAT) samples and make deliveries under other contracts for 

anti-gravity suits. 

We decline to extend the decision in Montage beyond the situation presented in that 

case, and again more recently in Essan Metallix Corp., B-310357, Dec. 7, 2007, 2008 

CPD ¶ 5, wherein a contractor protests its exclusion from a reprocurement

necessitated by the termination of its own contract. As that is not the situation 

presented here, we will review whether the agency’s decision to exclude Derm-Buro 

was reasonable. 

Generally, the statutes and regulations governing federal procurements are not

strictly applicable to reprocurements of defaulted requirements. Essan Metallix 

Corp., supra, at 2. Rather, under FAR §§ 49.402-6(a), (b), and 52.249-8, an agency 

may use any terms and acquisition method deemed appropriate for repurchase of not 

more than the undelivered quantity for which the contract was terminated, although 

an agency must obtain competition to the maximum extent practicable and as 

 1

 The defaulted contractor under the prior contract is not a party to this protest. 

Page 2 B-400558 
reasonable a price as practicable.2

 Id. These FAR provisions allow the agency to 

purchase the needed supplies as expeditiously as possible while preserving the 

government’s right to seek excess reprocurement costs from the defaulted

contractor. Id. 

The agency argues that it was not required to solicit Derm-Buro in connection with 

the reprocurement, and properly made awards to Switlik and Mustang in accordance 

with FAR § 49.402-6(a), (b). The agency states that it elected to limit competition to 

Switlik and Mustang on the basis that the two firms were the only firms that were 

currently, or had recently, delivered the required suits successfully. AR, Contracting 

Officer’s Report, at 5. Of the five firms whose products were listed on the QPL at the 

time the solicitation was issued, one was the contractor terminated for default under 

the prior contract and two, including Derm-Buro, had not delivered anti-gravity suits

recently enough to be eligible for a waiver of FAT requirements. Id. at 5-6. Thus, the 

agency determined that Switlik and Mustang were the only firms that could be 

practicably included in the competition in order to ensure continuous deliveries

without a break in production and thereby secure the expeditious replacement of the 

quantity of anti-gravity suits remaining undelivered from the terminated contract. 

Derm-Buro counters that the agency’s rationale does not hold because the delivery 

schedule under the reprocurement contracts will allow sufficient time for all 

contractors on the QPL to compete, including Derm-Buro, and that by not soliciting 

all contractors on the QPL the agency failed to obtain competition to the maximum 

extent practicable and repurchase at as reasonable a price as practicable.3

 DermBuro insists that it is fully capable of producing the required anti-gravity suits, has 

successfully delivered approximately 65,000-70,000 units in the past and, as it has 

argued before the Armed Services Board of Contract Appeals, was improperly 

terminated under its prior contracts.

4

 

 2

 The reprocurement here is for the exact number of anti-gravity suits that remain 

undelivered from the terminated contract. 

3

 Derm-Buro, as a veteran-owned small business, also requested that the matter of its 

qualifications be referred to the Small Business Administration under FAR § 19.6. 

FAR § 19.6 applies when an apparent successful small business offeror is determined 

by the contracting officer to be nonresponsible. FAR § 19.6 does not apply here, as 

Derm-Buro is not an apparent successful offeror and, in any event, as addressed in 

our discussion of Montage, our Office no longer considers an agency’s determination 

to exclude a firm from a reprocurement to involve a determination of

nonresponsibility. 

4

 The propriety of the terminations for default on its prior contracts is a matter of

contract administration not for review by our Office. Bid Protest Regulations, 4 

C.F.R. § 21.5(a) (2008). 

Page 3 B-400558 
The agency’s decision to limit competition for the reprocurement to the two firms 

currently producing anti-gravity suits, and the only firms on the QPL not subject to

FAT requirements, was reasonable. With respect to not soliciting Derm-Buro, the 

firm’s last successful delivery of anti-gravity suits was in November 2006. Therefore, 

as stated by the agency, Derm-Buro would be required to submit FAT samples and 

pass a FAT before it could begin production. Given that the recent terminations for 

default on Derm-Buro’s contracts were a result of its failure to provide FAT samples

in a timely manner and failure to make deliveries within the timeframe established in

its contract, the agency had a reasonable concern that soliciting Derm-Buro (or any 

other firm subject to FAT requirements) could have an adverse effect on the agency’s 

ability to expeditiously reprocure the critically needed suits. In light of the agency’s 

critical need and the broad discretion granted the agency in determining how to 

conduct a reprocurement, we conclude that the agency obtained maximum 

practicable competition by soliciting the two firms on the QPL that were not subject

to FAT requirements, and could therefore ensure continuous deliveries of antigravity suits with no breaks in production. 

The protest is denied. 

Gary L. Kepplinger 

General Counsel 

Page 4 B-400558