B-154544, JUNE 30, 1964, 43 COMP. GEN. 839

B-154544, JUNE 30, 1964, 43 COMP. GEN. 839

CONTRACTS - SPECIFICATIONS - QUALIFIED PRODUCTS - AGENCY APPROVAL A BIDDER WHO PROPOSES UNDER AN INVITATION ISSUED BY A MILITARY DEPARTMENT TO USE AN ITEM THAT WAS NOT QUALIFIED BY THE SOLE AGENCY DESIGNATED IN THE SPECIFICATION TO BE RESPONSIBLE FOR APPROVAL OF QUALIFIED PRODUCTS, ALTHOUGH IT WAS APPROVED BY AN AGENCY TO WHICH MANUFACTURERS COULD COMMUNICATE FOR MAKING TESTING ARRANGEMENTS, MAY NOT BE REGARDED AS OFFERING AN ITEM THAT MEETS THE QUALIFICATION REQUIREMENT OF THE SPECIFICATIONS, AND THE FACT THAT THE PARTICULAR ITEM BASED ON AN UNAUTHORIZED APPROVAL WAS PROCURED UNDER PREVIOUS INVITATIONS CANNOT TAKE THE PLACE OF AN AUTHORIZED APPROVAL BY THE SPECIFIED DESIGNATED AGENCY.

TO THE QUARTERMASTER GENERAL, UNITED STATES MARINE CORPS, JUNE 30, 1964:

REFERENCE IS MADE TO LETTER CSG-BTV OF JUNE 19, 1964, FORWARDING FOR CONSIDERATION THE PROTEST OF THE FIRESTONE TIRE AND RUBBER COMPANY AGAINST THE REJECTION OF ITS LOW BID SUBMITTED UNDER INVITATION 98 COVERING AMPHIBIOUS ASSAULT FUEL SYSTEMS AND COMPONENT PARTS.

WITH RESPECT TO THE ITEMS TO BE PROCURED, THE INVITATION SCHEDULE STATED:

ATTENTION OF BIDDERS IS INVITED TO THE APPLICABLE DRAWINGS OF THE LINE ITEM 21 AND 22 OF TABLE 1 (NOZZLE, PRESSURE LOCKING) THAT MUST CONFORM TO QPL PROVISIONS OF SPECIFICATION MIL-N-5877A:

WITH RESPECT TO PRODUCTS REQUIRING QUALIFICATION, AWARDS WILL BE MADE ONLY FOR SUCH PRODUCTS THAT HAVE, PRIOR TO TIME SET FOR OPENING OF BIDS, BEEN TESTED AND QUALIFY FOR INCLUSION IN THE QUALIFIED PRODUCTS LIST QPL 5877, WHETHER OR NOT SUCH PRODUCTS HAVE ACTUALLY BEEN SO LISTED BY THAT DATE. MANUFACTURERS ARE URGED TO COMMUNICATE WITH THE COMMANDING GENERAL, WRIGHT AIR DEVELOPMENT CENTER, WRIGHT-PATTERSON AIR FORCE BASE, OHIO: OR WITH THE BUREAU OF AERONAUTICS, NAVY DEPARTMENT, WASHINGTON, D.C., AND ARRANGE TO HAVE THE PRODUCTS THAT THEY PROPOSE TO OFFER TESTED FOR QUALIFICATION. IF THE PRODUCT BID UPON HAS BEEN SUBJECTED TO THE REQUIRED TEST AND APPROVED FOR INCLUSION ON THE QUALIFIED PRODUCTS LIST PRIOR TO THE OPENING DATE FOR BIDS, BIDDER SHALL INSERT THE BRAND OR TRADE NAME AND TEST NUMBER OF SUCH PRODUCT IN THE BLANK SPACES BELOW:

CHART

BRAND TRADE NAME: ------------------------------------------------

MANUFACTURER'S DESIGNATION NO.: ---------------------------------

TEST OF QUALIFICATION REFERENCE: ---------------------------------

SPECIFICATION MIL-N-5877A, REFERRED TO IN THE FIRST PARAGRAPH IN THE ABOVE QUOTATION, WAS ISSUED IN DECEMBER 1952. THE SPECIFICATION AS THEN ISSUED PROVIDED IN SECTION 6.4 AS FOLLOWS:

PROVISIONS FOR QUALIFICATION TESTS.--- IN THE PROCUREMENT OF PRODUCTS REQUIRING QUALIFICATION, THE RIGHT IS RESERVED TO REJECT BIDS ON PRODUCTS THAT HAVE NOT BEEN SUBJECTED TO THE REQUIRED TESTS AND FOUND SATISFACTORY FOR INCLUSION ON THE MILITARY QUALIFIED PRODUCTS LIST. THE ATTENTION OF SUPPLIERS IS CALLED TO THIS REQUIREMENT, AND MANUFACTURERS ARE URGED TO COMMUNICATE WITH THE COMMANDING GENERAL, WRIGHT AIR DEVELOPMENT CENTER, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, OR WITH THE BUREAU OF AERONAUTICS, NAVY DEPARTMENT, WASHINGTON 25, D.C., THE ACTIVITIES RESPONSIBLE FOR QUALIFICATIONS, WITH A COPY TO THE OTHER SERVICE, AND ARRANGE TO HAVE THE PRODUCTS THAT THEY PROPOSE TO OFFER TO THE ARMY, THE NAVY, OR THE AIR FORCE, TESTED FOR QUALIFICATION IN ORDER THAT THEY MAY BE ELIGIBLE TO BE AWARDED CONTRACTS OR ORDERS FOR THE PRODUCTS COVERED BY THIS SPECIFICATION. INFORMATION PERTAINING TO QUALIFICATION OF PRODUCTS COVERED BY THIS SPECIFICATION MAY BE OBTAINED FROM THE ABOVE DESIGNATED ACTIVITY RESPONSIBLE FOR QUALIFICATION.

IN OCTOBER 1958, THE SPECIFICATION WAS AMENDED AS FOLLOWS:

PAGE 14, PARAGRAPH 6.4 PROVISIONS FOR QUALIFICATION TESTS: DELETE "COMMANDING GENERAL, WRIGHT AIR DEVELOPMENT CENTER, WRIGHT-PATTERSON AIR FORCE BASE, OHIO; OR WITH THE BUREAU OF AERONAUTICS, NAVY DEPARTMENT, WASHINGTON 25, D.C., THE ACTIVITIES RESPONSIBLE FOR QUALIFICATION," AND SUBSTITUTE "BUREAU OF AERONAUTICS, NAVY DEPARTMENT, WASHINGTON 25, D.C., THE ACTIVITY RESPONSIBLE FOR QUALIFICATION.'

ON JULY 7, 1961, AERONAUTICAL SYSTEMS DIVISION, AIR FORCE SYSTEM COMMAND, UNITED STATES AIR FORCE, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, SENT A LETTER TO THE J. C. CARTER COMPANY STATING IN PERTINENT PART:

2. QUALIFICATION APPROVAL OF THE SUBJECT NOZZLE IS GRANTED BY THIS DIVISION TO THE J. C. CARTER COMPANY.

3. THE FOLLOWING INFORMATION IS FURNISHED RELATIVE TO THIS APPROVAL:

A. PART NAME: NOZZLE, PRESSURE FULE SERVICING, LOCKING, TYPE D-1.

B. USAF TYPE: D-1.

C. MANUFACTURERS P/N: 6409.

D. USAF GENERAL SPECIFICATION: N/A.

E. USAF DETAIL SPECIFICATION: MIL-N-5877A.

F. USAF DRAWING NR.: MS29520.

G. SUPERSEDED: N/A.

H. WEIGHT: 6.6 POUNDS.

I. TYPE OF APPROVAL: QPL.

J. MANUFACTURERS DRAWING NR.: 6409.

K. CONDITIONS OF APPROVAL: THIS APPROVAL APPLIES SPECIFICALLY TO THE ASSEMBLY SHOWN ON YOUR DRAWING NR. 6409. HENCEFORTH, NEW QUALIFICATION TESTS WILL BE REQUIRED IF ANY CHANGES ARE MADE TO THE APPROVED PRODUCT OR TO THE METHOD OF PRODUCTION UNLESS PREVIOUS NOTIFICATION HAS BEEN RECEIVED THROUGH THE AERONAUTICAL SYSTEMS DIVISION THAT SUCH CHANGES HAVE BEEN APPROVED. QUALIFICATION OF THE PRODUCT APPLIES ONLY TO THE PRODUCT MANUFACTURED AT THE PLANT WHICH PRODUCES THE SAMPLE TESTED.

1. BASIS OF APPROVAL: THIS APPROVAL IS BASED ON J. C. CARTER COMPANY TEST REPORT 6409-1Q.

4. SHOULD THIS NOZZLE FAIL TO MEET THE QUALIFICATION TESTS RERUN BY THE NAVY BUREAU OF AERONAUTICS IT WILL BE REMOVED FROM THE QPL.

DESPITE THE APPROVAL GIVEN BY THE AERONAUTICAL SYSTEMS DIVISION, THE CARTER NOZZLE HAS NEVER BEEN LISTED IN THE OFFICIAL QUALIFIED PRODUCTS LIST, THE LAST ISSUE OF WHICH WAS PUBLISHED IN 1957.

HOWEVER, THE FIRESTONE TIRE AND RUBBER COMPANY IN ITS BID UPON THE SUBJECT PROCUREMENT PROPOSED TO USE THE CARTER NOZZLE. IN SUPPORT OF ITS CONTENTION THAT ITS BID SHOULD NOT BE REJECTED AS NONRESPONSIVE IT RELIES UPON THE CITED LETTER OF JULY 7 AND THE FACT THAT IT NEVER HAS BEEN RESCINDED AND FURTHER UPON THE STATEMENT IN THE INVITATION PROVIDING THAT MANUFACTURERS WHO WISH TO GET THEIR PRODUCTS QUALIFIED MAY COMMUNICATE WITH THE WRIGHT AIR DEVELOPMENT CENTER AS AN ALTERNATIVE TO THE BUREAU OF AERONAUTICS. IN ADDITION, IT CALLS ATTENTION TO THE TERMS OF THE INVITATION WHICH PROVIDE THAT, IN THE EVENT OF AN INCONSISTENCY BETWEEN PROVISIONS OF THE INVITATION FOR BIDS, THE TERMS OF THE SCHEDULE SHALL TAKE PRECEDENCE OVER THE SPECIFICATIONS AND SUGGESTS THAT SINCE THE SCHEDULE PROVIDED FOR QUALIFICATION APPROVAL BY EITHER THE AIR FORCE OR THE NAVY, WHEREAS THE SPECIFICATION CONTEMPLATED APPROVAL SOLELY BY THE NAVY, THE RELIANCE UPON THE ALTERNATIVE OFFERED BY THE SCHEDULE WOULD SUPERSEDE THE REQUIREMENT OF THE SPECIFICATION. ALSO, IT IS POINTED OUT THAT THE NAVY HAS BOUGHT THE CARTER NOZZLE ON PREVIOUS CONTRACTS WHICH REFERRED TO THE CARTER TEST REPORT.

WE DO NOT FIND ANY INCONSISTENCY BETWEEN THE INVITATION SCHEDULE AND THE SPECIFICATION MIL-N-5877A WITH RESPECT TO WHO HAS RESPONSIBILITY FOR QUALIFICATION OF THE PRODUCT INVOLVED. THE STATEMENT IN THE SCHEDULE INDICATES WITH WHOM THE MANUFACTURERS SHOULD COMMUNICATE TO "ARRANGE TO HAVE THE PRODUCTS THAT THEY PROPOSE TO OFFER TESTED FOR QUALIFICATION.' THIS IS MERELY AN INDICATION OF HOW TO GO ABOUT MAKING ARRANGEMENTS FOR TESTING. THAT STATEMENT DOES NOT IDENTIFY THE ACTIVITY HAVING THE RESPONSIBILITY FOR QUALIFICATION. THAT MATTER IS COVERED BY THE SPECIFICATION WHICH INDICATED SPECIFICALLY THAT THE BUREAU OF AERONAUTICS WAS THE SOLE OFFICE RESPONSIBLE FOR QUALIFICATION. THERE IS THEREFORE NO INCONSISTENCY AS TO WHICH IS THE QUALIFYING OFFICE. ACCORDINGLY, THE ORDER OF PRECEDENCE CITED BY THE PROTESTANT IS NOT FOR APPLICATION.

MOREOVER, WHILE THE JULY 7 LETTER INDICATES THAT THE NOZZLE HAS RECEIVED QUALIFICATION APPROVAL, IT IS SPECIFIC THAT THE APPROVAL WAS GRANTED BY THE AIR FORCE AERONAUTICAL SYSTEMS DIVISION. SUCH DIVISION IS CLEARLY NOT THE OFFICE AUTHORIZED UNDER THE SPECIFICATION FOR APPROVAL OF THE PRODUCT. IN THAT CONNECTION, WE HAVE BEEN FURNISHED INFORMALLY A COPY OF A TWX FROM WRIGHT-PATTERSON AIR FORCE BASE ADVISING THE MARINE CORPS ON JUNE 26, 1964, THAT "THE BUREAU OF NAVAL WEAPONS (SUCCESSOR TO THE BUREAU OF AERONAUTICS) IS CUSTODIAN OF MIL-N 5877A AND ONLY THE CUSTODIAN CAN OFFICIALLY PLACE EQUIPMENT ON THE QPL. * * * HOWEVER, THIS ACTION WAS NOT TAKEN.' WHILE IT IS INDICATED IN THE PROTEST THAT VARIOUS ORGANIZATIONS IN THE NAVY ON SEVERAL OCCASIONS SINCE THE AIR FORCE QUALIFICATION IN 1961 HAVE PURCHASED THE SUBJECT CARTER NOZZLES AND HAVE REFERENCED THE CARTER TEST REPORT IN THE PROCUREMENT OF THE NOZZLES AND HAVE REFERENCED THE CARTER TEST REPORT IN THE PROCUREMENT OF THE NOZZLES, THE UNAUTHORIZED TREATMENT OF THE CARTER NOZZLE AS PART OF THE QUALIFIED PRODUCTS LIST IN PREVIOUS PROCUREMENTS BY ORGANIZATIONS WITHIN THE NAVY CANNOT SERVE TO TAKE THE PLACE OF AN AUTHORIZED APPROVAL OF THE CARTER NOZZLE WHICH HAS NEVER BEEN GRANTED BY THE APPROPRIATE BUREAU IN THE NAVY. THERE IS FOR CONSIDERATION ALSO THE ELEMENT THAT THE NAVY'S REQUIREMENTS MAY VARY FROM PROCUREMENT TO PROCUREMENT IN ACCORDANCE WITH THE NEEDS OF THE SERVICE AND THE FACT THAT IN ONE OR SEVERAL PROCUREMENTS IT MAY HAVE PURCHASED THE NOZZLE BASED UPON THE CARTER TEST REPORT IS NO INDICATION THAT THE PRODUCT HAS RECEIVED OVER-ALL QUALIFICATION.

THE APPROVAL OF THE CARTER NOZZLE BY THE AIR FORCE AERONAUTICAL SYSTEMS DIVISION IS NOT SUFFICIENT TO MEET THE QUALIFICATION REQUIREMENT OF SPECIFICATION MIL-N-5877A. THE BID WHICH OFFERS THE CARTER NOZZLE IS THEREFORE NONRESPONSIVE. IN THIS CONNECTION SEE B 143282, AUGUST 18, 1960.