B-159624, SEP. 20, 1966

B-159624, SEP. 20, 1966

TO HENRY SPEN AND CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER AND ENCLOSURES DATED JULY 8, 1966, YOUR FILE 1548-247, AND TO YOUR BRIEF DATED SEPTEMBER 9, 1966, CONCERNING YOUR PROTEST AGAINST AWARD OF A CONTRACT TO STEWART AVIONICS INC. (STEWART), UNDER REQUEST FOR QUOTATIONS (RFQ) 383/901580/66Q ISSUED BY THE AVIATION SUPPLY OFFICE (ASO), PHILADELPHIA, PENNSYLVANIA. WHILE YOUR PROTEST WAS RECEIVED BEFORE AWARD, BECAUSE OF THE URGENT NEED FOR THE EQUIPMENT IN QUESTION, A CONTRACT WAS AWARDED AVIONICS INC. ON AUGUST 8, 1966.

THE SUBJECT RFQ WAS FOR REPLACEMENT PARTS FOR AN AIR CYLINDER ASSEMBLY PREVIOUSLY PROCURED FROM STEWART UNDER CONTRACT NO. N383 89029A, AND CONTAINED 5 ITEMS. ON THE BASIS OF THE CONTRACTING OFFICER'S DETERMINATION THAT DRAWINGS OF THE REQUESTED ITEMS ADEQUATE FOR COMPETITIVE PROCUREMENT WERE NOT AVAILABLE, ONLY STEWART WAS SOLICITED. YOUR FIRM LEARNED OF THE SOLICITATION THROUGH THE COMMERCE BUSINESS DAILY AND SUBMITTED AN UNSOLICITED QUOTATION, CONTENDING THAT YOUR PARTS WERE INTERCHANGEABLE WITH THOSE OF STEWART. YOUR PROPOSAL WAS EVALUATED BY ASO AND REJECTED ON THE GROUND THAT "SINCE THE GOVERNMENT DOES NOT HAVE ADEQUATE DATA DESCRIBING THE STEWART PARTS, IT DOES NOT HAVE THE MEANS BY WHICH TO MAKE A TIMELY DETERMINATION AS TO WHETHER THE PARTS OFFERED BY SPEN ARE IN FACT INTERCHANGEABLE WITH THE STEWART PARTS.'

YOU POINT OUT THAT YOUR FIRM HAS SUPPLIED ASO WITH AIR CYLINDER ASSEMBLIES UNDER 4 OUT OF 5 RECENT CONTRACTS, THE ONLY CONTRACT NOT BEING AWARDED TO SPEN CO. BEING THE CURRENT ONE UNDER WHICH STEWART SUPPLIED THE ASSEMBLIES FOR WHICH REPLACEMENT PARTS ARE NOW BEING PROCURED. YOU THEREFORE CONTEND THAT NOT ONLY ARE YOUR PARTS INTERCHANGEABLE WITH THOSE OF STEWART, BUT THAT THE ASO TECHNICAL PERSONNEL SHOULD KNOW THAT THEY ARE INTERCHANGEABLE BECAUSE OF THE SIMILARITY BETWEEN PAST AND PRESENT PROCUREMENTS. YOU STATE THAT YOU OFFERED TO GUARANTEE THE INTERCHANGEABILITY OF THE SPEN CO. PARTS IN ANY WAY ACCEPTABLE TO THE PROCURING ACTIVITY AND THAT WHEN INFORMED THAT TESTING WOULD BE REQUIRED TO DETERMINE INTERNCHANGEABILITY BUT THAT THERE WAS NOT SUFFICIENT TIME FOR GOVERNMENT TESTING, YOU OFFERED TO PAY FOR INDEPENDENT TESTING, WHICH COULD BE ACCOMPLISHED IN A SHORTER PERIOD OF TIME.

THE NAVY REPORT, ON THE OTHER HAND, STATES THAT SINCE YOUR QUOTATION WAS LOW ON ITEMS 2 THROUGH 5, A THOROUGH ANALYSIS OF YOUR QUOTATION WAS CONDUCTED TO SEE IF AWARD COULD BE MADE TO THE SPEN CO., BUT THAT THE LACK OF DATA ON THE STEWART PARTS COUPLED WITH THE LACK OF TIME FOR DEVELOPMENT OF THE NECESSARY DATA MADE IT NECESSARY TO REJECT THE QUOTATION. THE REPORT STATES THAT WHILE THE EARLIER COMPETITIVE PROCUREMENTS SPECIFIED THAT ANY ALTERNATE COMPONENT PARTS OFFERED HAD TO BE INTERCHANGEABLE WITH AND EQUAL TO THE PARTS LISTED IN THE SPECIFICATIONS, THOSE PROCUREMENTS WERE FOR COMPLETE UNITS AND THE PRIMARY CONCERN WAS WHETHER THE UNITS OFFERED MET PERFORMANCE REQUIREMENTS. FOR THAT REASON, PERFORMANCE SPECIFICATIONS AND DRAWINGS WERE USED. ALSO, TO ASSURE PROPER PERFORMANCE, ANY ALTERNATE COMPONENT PARTS OFFERED WERE SUBJECTED TO PREPRODUCTION TESTING. THE REPORT FURTHER STATES THAT THE FACT THAT COMPLETE STEWART OR SPEN ASSEMBLY UNITS CONFORMED TO PERFORMANCE SPECIFICATIONS AND APPLICABLE BUWEPS END ASSEMBLY DRAWINGS DOES NOT NECESSARILY ASSURE THAT THE ASSEMBLIES OR THEIR COMPONENT PARTS WOULD BE INTERCHANGEABLE. IN THE CASE OF REPLACEMENT PARTS IT IS ABSOLUTELY NECESSARY THAT THE NEW PARTS BE INTERCHANGEABLE WITH THE PARTS WHICH THEY WILL REPLACE. WHETHER OR NOT THE SPEN PARTS MET THIS REQUIREMENT COULD NOT BE DETERMINED, IN THE OPINION OF THE CONTRACTING OFFICER, WITHOUT LABORATORY TESTING WHICH COULD NOT BE CONDUCTED UNTIL TEST SPECIFICATIONS HAD BEEN DEVELOPED. THE LACK OF TEST SPECIFICATIONS PLUS THE URGENT NEED FOR THE REPLACEMENT PARTS LED THE CONTRACTING OFFICER TO DETERMINE THAT THERE WAS NOT SUFFICIENT TIME FOR TESTING EITHER BY THE GOVERNMENT OR BY AN INDEPENDENT AGENCY.

GENERALLY, THE DETERMINATION OF WHETHER OR NOT A PARTICULAR PRODUCT COMPLIES WITH SPECIFICATION REQUIREMENTS IS PRIMARILY THE FUNCTION OF THE ADMINISTRATIVE AGENCY, AND THIS OFFICE WILL NOT INTERFERE WITH THE AGENCY'S DETERMINATION UNLESS THERE IS A SHOWING OF BAD FAITH OR THE LACK OF A REASONABLE FACTUAL BASIS FOR THE DETERMINATION. ON THE BASIS OF THE RECORD BEFORE US, WE CONCLUDE THAT THE CONTRACTING OFFICER'S FINDING THAT A TIMELY DETERMINATION COULD NOT BE MADE REGARDING THE INTERCHANGEABILITY OF THE SPEN PARTS WAS NOT UNREASONABLE OR IN BAD FAITH, AND THAT HIS REJECTION OF THE SPEN QUOTATION IS THEREFORE NOT SUBJECT TO QUESTION BY OUR OFFICE. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.

WE NOTE, HOWEVER, THAT ASO ADVISES THAT IT IS CURRENTLY DEVELOPING TEST SPECIFICATIONS FOR DETERMINING INTERCHANGEABILITY SO THAT FUTURE PROCUREMENTS OF REPLACEMENT PARTS FOR AIR CYLINDER ASSEMBLIES CAN BE MADE ON A COMPETITIVE BASIS.