B-164780, NOV. 4, 1968

B-164780, NOV. 4, 1968

TO GLOBE INDUSTRIES, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 25, 1968, REQUESTING RECONSIDERATION OF OUR DECISION, B-164780, SEPTEMBER 12, 1968, DENYING YOUR PROTEST AGAINST THE AWARD MADE BY THE AIR FORCE UNDER INVITATION FOR BIDS NO. F34601-68-B-0477.

THE LETTER OF SEPTEMBER 25, 1968, RAISES ESSENTIALLY THE SAME POINTS CONSIDERED IN OUR PREVIOUS DECISION, THAT IS, THAT THE GENERATORS TO BE PROCURED UNDER THE ABOVE INVITATION UNDER SPECIFICATION MIL-G-5413D HAD PREVIOUSLY BEEN PROCURED AS QUALIFIED PRODUCTS FROM A QUALIFIED PRODUCTS LIST (QPL), AND INASMUCH AS THE SUCCESSFUL BIDDER'S PRODUCT WAS NOT SO LISTED AWARD SHOULD NOT HAVE BEEN MADE TO THAT COMPANY.

YOUR POSITION IS PREMISED UPON THE INCORPORATION OF MILITARY SPECIFICATION MIL-G-5413D INTO THE INVITATION AND THE FACT THAT PARAGRAPH 3.1 OF THAT SPECIFICATION STATES:

"3.1 QUALIFICATION - THE GENERATORS FURNISHED UNDER THIS SPECIFICATION SHALL BE A PRODUCT WHICH HAS BEEN TESTED AND MEETS THE QUALITY ASSURANCE PROVISIONS SPECIFIED HEREIN, AND HAS BEEN LISTED ON OR APPROVED FOR LISTING ON THE APPLICABLE QUALIFIED PRODUCTS LIST.' THE SHORT ANSWER TO YOUR PROTEST AND REQUEST FOR RECONSIDERATION IS, AS WE POINTED OUT IN OUR DECISION, THAT AT THE TIME THIS INVITATION FOR BIDS WAS ISSUED NO PRODUCT HAD AS YET BEEN QUALIFIED UNDER THE REVISED MIL-G-5413D AND THERE DID NOT IN FACT EXIST ANY "APPLICABLE QUALIFIED PRODUCTS LIST" AT THE TIME AWARD WAS MADE UNDER THE INVITATION. ACCORDINGLY, WE PERCEIVE NO NEED FOR A WAIVER OF THE QUALIFICATION REQUIREMENTS AS PROVIDED IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1108.

FURTHER, AS WE STATED IN THE DECISION OF SEPTEMBER 12, 1968, THE INVITATION SHOULD HAVE ADVISED THAT PARAGRAPH 3.1 OF THE SPECIFICATION WAS NOT APPLICABLE TO THIS PROCUREMENT. WE ALSO AGREED THAT THE AIR FORCE SHOULD HAVE APPROPRIATELY RESPONDED TO YOUR WIRES OF APRIL 27 AND MAY 16, 1968. HOWEVER, WE CANNOT CONCLUDE THAT THE CONTRACTING OFFICER THEREBY PLACED YOUR FIRM AT A COMPETITIVE DISADVANTAGE OR OTHERWISE PREJUDICED YOUR RIGHTS.

ADDITIONALLY, WE FEEL REQUIRED TO POINT OUT THAT THERE WOULD BE SERIOUS QUESTION AS TO THE VALIDITY OF ANY AWARD MADE ON THE BASIS YOU URGE WHEN AS HERE THE "QUALIFIED PRODUCTS" PROVISION OF ASPR 1-1107.2 WAS INTENTIONALLY OMITTED. SEE 33 COMP. GEN. 109.

FINALLY, CONCERNING YOUR GENERAL COMMENTS REGARDING THE HARM THE AIR FORCE'S ACTION AND OUR DECISION OF SEPTEMBER 12, 1968, WILL CAUSE TO THE USE OF QUALIFIED PRODUCTS LISTS, WE CALL YOUR ATTENTION TO THE FACT THAT QUALIFIED PRODUCTS WERE CONCEIVED AS A RESULT OF THE NEED TO TEST PRODUCTS IN ADVANCE OF THEIR PROCUREMENT (ASPR 1-1101) AND QPL LISTS ARE PRIMARILY MAINTAINED BECAUSE OF THE TIME, EXPENSE, AND EQUIPMENT OTHERWISE REQUIRED FOR TESTING PRIOR TO EACH SEPARATE AWARD (ASPR 1-1103).

IN THIS PROCUREMENT A QUALIFIED PRODUCT OR QPL LIST DID NOT EXIST AT THE TIME THE INVITATION WAS ISSUED. WHILE YOUR PRODUCT DID BECOME QUALIFIED PRIOR TO BID OPENING AND AWARD, A QPL LIST DID NOT COME INTO EXISTENCE. CLEARLY, THE CONCEPT OF PRODUCT QUALIFICATION AND QPL LISTS WERE DEVELOPED FOR USE WITH COEXISTENT AND/OR FUTURE PROCUREMENTS (ASPR 1-1101). ADDITIONALLY, EVEN HAD A LIST EXISTED, THE CONTRACTING OFFICER BY AMENDING THIS PROCUREMENT TO GIVE A QPL LIST RETROACTIVE EFFECT WOULD HAVE CONTRAVENED HIS AFFIRMATIVE DUTY TO ASSURE ADEQUATE COMPETITION (ASPR 1- 1109).

FOR THE ABOVE REASONS, THE DECISION OF SEPTEMBER 12, 1968, MUST BE AFFIRMED.