B-171760, APR 6, 1971

B-171760, APR 6, 1971

BID PROTEST DECISION DENYING PROTEST AGAINST AWARD OF CONTRACT TO UNIVERSAL JET INDUSTRIES FOR THE FURNISHING OF AIR CURTAINS UNDER AN IFB ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER. THE RECORD INDICATES THAT PROTESTANT WAS SENT TWO BID SETS AND WHILE IT IS UNFORTUNATE THAT NEITHER WAS RECEIVED, NOTHING IN THE RECORD INDICATES THAT DGSC INTENDED TO PRECLUDE PROTESTANT'S PARTICIPATION IN THE BIDDING. FURTHER, THE RECORD DOES NOT INDICATE THAT THE STATED REQUIREMENTS WERE NOT BONA FIDE NEEDS OF THE USING ACTIVITY AND SUCH A DETERMINATION IS FOR THE AGENCY INVOLVED. THEREFORE, THE PROTEST MUST BE DENIED.

TO MARS SALES:

WE REFER TO YOUR LETTER OF JANUARY 18, 1971, PROTESTING AGAINST AWARD BY THE DEFENSE GENERAL SUPPLY CENTER (DGSC), DEFENSE SUPPLY AGENCY (DSA), OF A CONTRACT TO UNIVERSAL JET INDUSTRIES (UNIVERSAL) FOR THE FURNISHING OF AIR CURTAINS. THE PROCUREMENT WAS ADVERTISED UNDER INVITATION FOR BIDS (IFB) DSA400-71-B-2751, ISSUED NOVEMBER 25, 1970, BY DGSC, AND THE AWARD WAS ISSUED ON JANUARY 19, 1971.

YOU COMPLAIN THAT YOU SPECIFICALLY REQUESTED TO BE SOLICITED BY DSA FOR THIS PROCUREMENT, BUT DID NOT RECEIVE A BID SET AND WERE THEREFORE UNABLE TO COMPETE. IN ADDITION, YOU QUESTION WHY THE CURTAINS WERE NOT PROCURED UNDER THE EXISTING FEDERAL SUPPLY SERVICE (FSS) CONTRACT FOR AIR CURTAINS, AND YOU INQUIRE TO WHAT EXTENT THESE AIR CURTAINS DIFFER FROM THE ITEMS AVAILABLE UNDER THE FSS CONTRACT. FINALLY, YOU CHARGE THAT THE AIR CURTAINS MANUFACTURED BY UNIVERSAL WILL NOT COMPLY WITH THE IFB REQUIREMENT FOR 1600 FEET PER MINUTE MINIMUM VELOCITY OF DISCHARGED AIR, AND THE REQUIREMENT OF INTERIM FEDERAL SPECIFICATION W F-001350 THAT THE AIR CURTAIN BE CAPABLE OF PROVIDING AN AIR CURTAIN OVER THE ENTIRE AREA OF AN OPENING FOUR FEET WIDE BY SEVEN FEET HIGH.

THE PURCHASE DESCRIPTION ON PAGE 11 OF THE IFB CALLED FOR A TYPE I CENTRIFUGAL FAN, FSN (FEDERAL STOCK NUMBER) 4140-936-3147, CONFORMING TO THE ABOVE REFERENCED SPECIFICATION, WITH AIR INTAKE PORTS PROVIDED WITH DAMPER CONTROLS AT BOTH ENDS, AND 1600 FEET PER MINUTE MINIMUM VELOCITY OF DISCHARGED AIR. BENEATH THE PURCHASE DESCRIPTION, QUANTITY REQUIREMENTS WERE SET FORTH FOR EACH OF THREE DESTINATIONS, ON WHICH PRICES WERE TO BE QUOTED F.O.B. DESTINATION. DELIVERY OF ALL QUANTITIES IS REQUIRED ON OR BEFORE JULY 5, 1971, UNDER THE DELIVERY SCHEDULE ON PAGE 14 OF THE IFB.

AMONG THE CLAUSES INCORPORATED BY REFERENCE IN THE IFB AND THE RELATED CONTRACT IS THE INSPECTION CLAUSE PRESCRIBED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 7-103.5(A), UNDER WHICH THE GOVERNMENT HAS THE RIGHT TO INSPECT AND TEST THE CONTRACT ITEMS BEFORE ACCEPTANCE. A SIMILAR RIGHT IS RESERVED TO THE GOVERNMENT IN THE QUALITY ASSURANCE PROVISIONS OF THE INTERIM FEDERAL SPECIFICATION, WHICH ALSO STATES A SPECIFIC REQUIREMENT FOR TESTS FOR VELOCITY COVERING THE DOORWAY AREA DESIGNATED IN THE SPECIFICATION. INSPECTION AND ACCEPTANCE ARE TO BE EFFECTED AT ORIGIN (PAGE 16 OF THE IFB).

A SUPPLY WARRANTY CLAUSE ON PAGE 20 OF THE IFB COVERS DEFECTS EXISTING AT TIME OF DELIVERY NOTWITHSTANDING INSPECTION AND ACCEPTANCE BY THE GOVERNMENT AND AFFORDS THE GOVERNMENT A PERIOD OF ONE YEAR FROM THE LAST DELIVERY UNDER THE CONTRACT WITHIN WHICH THE CONTRACTOR MAY BE GIVEN WRITTEN NOTICE OF BREACH OF THE WARRANTY. THE WORDING OF THE CLAUSE IS SIMILAR TO THE WORDING OF THE WARRANTY CLAUSE SET FORTH IN ASPR 7- 105.7(A).

SECTION 3 OF THE INTERIM FEDERAL SPECIFICATION STATES VARIOUS REQUIREMENTS FOR THE AIR CURTAIN FANS BUT PERMITS CERTAIN OPTIONS TO SEVERAL OF THE REQUIREMENTS. UNDER SECTION 3.5.3, THE LOCATION OF THE AIR INTAKE PORTS MAY BE OTHER THAN AS PROVIDED IN THE SPECIFICATION, AND DAMPERS MAY BE SPECIFIED TO CONTROL THE AIR INTAKE VOLUME AT THE INTAKE PORTS. UNDER SECTION 3.6.1, WHICH SPECIFIES A VELOCITY BETWEEN 500 AND 1600 FEET PER MINUTE FOR TYPE I (TEMPERATURE CONTROL AIR CURTAINS), A SPECIFIC MINIMUM VELOCITY MAY BE SPECIFIED WHEN REQUIRED. SECTION 6.2 OF THE SPECIFICATION REQUIRES LISTING OF THE DESIRED OPTIONS, AMONG OTHER INFORMATION, IN THE PROCUREMENT ORDERING DOCUMENTS.

AS YOU WERE INFORMED BY THE CONTRACTING OFFICER IN A LETTER DATED JANUARY 5, 1971, A BID SET WAS SENT TO YOU BY AIRMAIL ON NOVEMBER 25, 1970, ADDRESSED TO P.O. BOX 145, EL SEGUNDO, BUT DGSC RECEIVED NO RESPONSE FROM YOU. REFERENCE TO THE MAILING LIST USED BY DGSC FOR DISTRIBUTION OF THE BID SETS CONFIRMS THE CONTRACTING OFFICER'S STATEMENT AND INDICATES THAT A SECOND BID SET WAS SENT TO YOU ON NOVEMBER 25, 1970, BY REGULAR MAIL, TO 114 SHELDON STREET, EL SEGUNDO. IN THE CIRCUMSTANCES, WHILE IT IS REGRETTABLE THAT YOU APPARENTLY DID NOT RECEIVE EITHER OF THE BID SETS OR NOTICE THE PROCUREMENT SYNOPSIS WHICH WAS PUBLISHED IN THE COMMERCE BUSINESS DAILY ON NOVEMBER 27, 1970, IN TIME TO SUBMIT A BID ON THE PROCUREMENT BY DECEMBER 17, 1970, THE SCHEDULED DATE OF BID OPENING, WE SEE NOTHING IN THE RECORD TO WARRANT A FINDING THAT DGSC INTENDED TO PRECLUDE YOUR PARTICIPATION IN THE BIDDING.

AS TO THE REASON FOR DGSC'S ELECTION NOT TO PURCHASE THE AIR CURTAINS ON THE EXISTING FSS CONTRACT, THE CONTRACTING OFFICER STATES THAT DGSC WAS AWARE THAT A TYPE I AIR CURTAIN, CONFORMING TO INTERIM FEDERAL SPECIFICATION W-F-001350, MARCH 15, 1968, COULD BE PURCHASED UNDER FSS CONTRACT GS-OOS-83809. DGSC TECHNICAL PERSONNEL, HOWEVER, ADVISED THE CONTRACTING OFFICER THAT THE TYPE I AIR CURTAIN FAN WHICH IS IDENTIFIED BY FSN 4140-168-1932 IN THAT FSS CONTRACT DOES NOT INCLUDE THE SALIENT CHARACTERISTICS (I.E., THE INTAKE PORTS ON THE ENDS, THE DAMPER CONTROLS FOR THE INTAKE PORTS AND THE VELOCITY CAPABILITY OF 1600 FEET PER MINUTE MINIMUM FOR DISCHARGED AIR) DESIRED BY THE ORDERING ACTIVITY. ACCORDINGLY, THE CONTRACTING OFFICER, WITH THE APPROVAL OF THE DIRECTORS OF TECHNICAL OPERATIONS AND SUPPLY OPERATIONS OF DGSC, ISSUED THE IFB DESCRIBING THE REQUIRED UNIT.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 5-102.3 LISTS CERTAIN FEDERAL SUPPLY SCHEDULES, THE USE OF WHICH IS MANDATORY ON THE DEPARTMENT OF DEFENSE. THE AIR CURTAINS INVOLVED IN THIS PROCUREMENT ARE NOT AMONG THE CLASSES OF ITEMS INCLUDED IN THE LISTED FEDERAL SUPPLY SCHEDULES.

ASPR 5-104.1, RELATING TO OPTIONAL FEDERAL SUPPLY SCHEDULES, PROVIDES THAT CONTRACTING OFFICERS SHOULD CONSIDER OPTIONAL FEDERAL SUPPLY SCHEDULES EQUALLY WITH OTHER SOURCES IN ASSURING THAT PURCHASE OF ITEMS OF THE TYPE CONTAINED IN SUCH SCHEDULES ARE MADE TO THE BEST ADVANTAGE OF THE GOVERNMENT, PRICE, DELIVERY, SERVICE AND OTHER FACTORS CONSIDERED. THE REGULATION FURTHER PROVIDES, "THIS SECTION SHALL IN NO WAY MINIMIZE THE REQUIREMENTS FOR USING FORMAL ADVERTISING WHEN THE SITUATION WARRANTS."

IN THIS CASE, THE USING ACTIVITY, WHICH BORE THE PRIMARY RESPONSIBILITY FOR DETERMINATION OF THE MINIMUM NEEDS OF THE GOVERNMENT, STATED A REQUIREMENT FOR A TYPE I AIR CURTAIN WITH SEVERAL OF THE OPTIONAL FEATURES PERMITTED BY THE INTERIM FEDERAL SPECIFICATION, AND THE ONLY SIMILAR ITEM WHICH IS AVAILABLE UNDER A FEDERAL SUPPLY SCHEDULE CONTRACT DOES NOT INCLUDE SUCH FEATURES. THERE IS NO INDICATION IN THE RECORD THAT THE STATED REQUIREMENT IS NOT A BONA FIDE NEED OF THE USING ACTIVITY. IN THE CIRCUMSTANCES, IT IS OUR VIEW THAT THE DECISION OF THE CONTRACTING OFFICER TO PROCURE THE SPECIFIED ITEMS BY MEANS OF FORMALLY ADVERTISED COMPETITIVE BIDDING, WHICH WAS APPROVED BY THE DIRECTOR OF SUPPLY OPERATIONS, DGSC, WAS IN ACCORD WITH ASPR 5-104.1.

CONCERNING THE BASIS ON WHICH AWARD WAS MADE TO UNIVERSAL, THE RECORD SHOWS THAT UNIVERSAL SUBMITTED THE LOW BID UNDER THE IFB. UNIVERSAL TOOK NO EXCEPTION TO THE SPECIFICATIONS NOR DID IT SPECIFY ANY UNIVERSAL MODEL NUMBER FOR THE ITEM OFFERED. THE CONTRACTING OFFICER THEREFORE CONSIDERED UNIVERSAL'S BID RESPONSIVE TO THE REQUIREMENTS SET OUT IN THE IFB.

THE RESPONSIVENESS OF A BID IS FOR DETERMINATION UNDER THE TERMS OF THE INVITATION FOR BIDS. 45 COMP. GEN. 221 (1965). SINCE UNIVERSAL DID NOT STATE ANY EXCEPTION IN ITS LOW BID TO THE REQUIREMENTS SET FORTH IN THE IFB AND SINCE THERE WAS NO OTHER INDICATION IN THE BID OF ANY INTENT ON THE PART OF UNIVERSAL TO DELIVER AN ITEM WHICH WILL NOT CONFORM TO THE SPECIFIED NEEDS OF THE GOVERNMENT, WE CONCUR WITH THE DETERMINATION OF THE CONTRACTING OFFICER THAT UNIVERSAL'S BID WAS RESPONSIVE AND THEREFORE ELIGIBLE FOR CONSIDERATION FOR AWARD.

AS TO WHETHER UNIVERSAL CAN BE EXPECTED TO FURNISH AN AIR CURTAIN WHICH MEETS THE GOVERNMENT'S STATED REQUIREMENTS, THIS ISSUE INVOLVES UNIVERSAL'S RESPONSIBILITY, A MATTER WHICH IS PRIMARILY FOR DETERMINATION BY DGSC. YOU STATE THAT UNIVERSAL IS IN DEFAULT AS A NONCONFORMING CONTRACTOR TO REQUIREMENTS OF SPECIFICATIONS. THE RECORD MADE AVAILABLE TO OUR OFFICE BY DSA, HOWEVER, INCLUDES A MEMORANDUM SIGNED BY THE CONTRACTING OFFICER UNDER DATE OF JANUARY 6, 1971, AS SUPPORT FOR NOT REQUESTING A PREAWARD SURVEY OF UNIVERSAL IN ORDER TO DETERMINE ITS RESPONSIBILITY. THIS MEMORANDUM, WHICH WAS PREPARED PURSUANT TO DSA PROCUREMENT REGULATION 1-905.4(E), STATES THAT UNIVERSAL WAS NOT LISTED ON THE EXPERIENCE LIST OF DSA, THE DEPARTMENT OF THE NAVY OR THE DEPARTMENT OF THE AIR FORCE; THAT UNIVERSAL HAD FURNISHED SATISFACTORY ITEMS, INCLUDING 900 UNITS IN 1968, MOSTLY UNDER THE FSS CONTRACT, AND 519 TIMELY DELIVERED UNITS TO DGSC IN 1969; THAT UNIVERSAL'S FACILITIES AND "KNOW HOW" ARE MORE THAN ADEQUATE TO PERFORM THE DGSC CONTRACT; AND THAT UNIVERSAL'S ESTIMATED FINANCIAL STRENGTH, ACCORDING TO DUN AND BRADSTREET, IS FAR IN EXCESS OF THE CONTRACT AMOUNT. IN LIGHT OF SUCH DATA, IT WOULD APPEAR THAT THE AFFIRMATIVE DETERMINATION BY THE CONTRACTING OFFICER AS TO UNIVERSAL'S RESPONSIBILITY WAS NOT WITHOUT AN ADEQUATE BASIS.

DSA TAKES THE POSITION THAT THE GOVERNMENT'S INTERESTS UNDER THE CONTRACT WITH UNIVERSAL ARE PROTECTED BY THE QUALITY ASSURANCE PROVISIONS IN THE INTERIM FEDERAL SPECIFICATION, THE CONTRACT INSPECTION CLAUSE AND THE WARRANTY CLAUSE. IN THIS CONNECTION, THE RECORD SHOWS THAT IN VIEW OF YOUR STATEMENTS REGARDING NONCONFORMANCE OF UNIVERSAL'S EQUIPMENT WITH THE INTERIM FEDERAL SPECIFICATION, DGSC HAS REQUESTED THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT (DCASD), MIAMI, FLORIDA, TO HAVE DCASD QUALITY ASSURANCE REPRESENTATIVES VERIFY ALL CONTRACTOR INSPECTION AND TESTS UNDER THE QUALITY ASSURANCE PROVISIONS OF THE INTERIM FEDERAL SPECIFICATION AND TO FURNISH TO DGSC COPIES OF THE RELATED REPORTS.

IT WOULD THEREFORE APPEAR THAT THE INTERESTS OF THE GOVERNMENT SHOULD BE ADEQUATELY SAFEGUARDED BY THE INSPECTION AND TEST REQUIREMENTS OF THE SPECIFICATION, THE TERMS OF THE WARRANTY CLAUSE, AND BY THE ACTION INITIATED BY DGSC TO BE SPECIFICALLY APPRISED OF THE INSPECTION AND TEST RESULTS.

IN VIEW OF THE FOREGOING YOUR PROTEST MUST BE DENIED.