B-162449, NOV. 2, 1967

B-162449, NOV. 2, 1967

BIDS - QUALIFIED PRODUCTS DECISION TO CONSOLIDATED AIRBORNE SYSTEMS, INC., CONCERNING THEIR PROTEST TO AWARD TO AUTOMATED SPECIALTIES DIV. OF TELEDYNE, INC. UNDER REQUEST FOR QUOTATIONS ISSUED BY AVIATION SUPPLY OFFICE FOR QUANTITIES OF ANGLE ATTACK INDICATOR INSTRUMENTS FOR MILITARY AIRCRAFT. WHERE A REQUEST FOR QUOTATIONS CONTAINED A QUALIFIED PRODUCT LISTING REQUIREMENT AND ONLY ONE FIRM WAS LISTED BUT THE RECORD INDICATES THAT THE CONTRACTING OFFICER TOOK REQUIRED ACTION TO INSURE ADEQUATE COMPETITION, THE RESTRICTION OF AWARD TO THE QUALIFIED PRODUCT IS NOT IMPROPER SINCE REQUIREMENT WAS BASED ON A BONA FIDE DETERMINATION OF NEED AND THE EXERCISE OF SUCH DETERMINATION IS VESTED IN THE PROCUREMENT OFFICIALS AND IN ABSENCE OF BAD FAITH IS NOT SUBJECT TO REVIEW.

TO CONSOLIDATED AIRBORNE SYSTEMS, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 7 AND SEPTEMBER 26, 1967, PROTESTING AGAINST AWARD OF A CONTRACT UNDER REQUEST FOR QUOTATIONS (RFQ) N00383-68-Q-0069, ISSUED BY THE AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA.

THE ABOVE MENTIONED RFQ, ISSUED ON AUGUST 10, 1967, SOLICITED QUOTATIONS FOR STEPLADDER QUANTITIES OF INDICATORS, ANGLE OF ATTACK, TO BE FURNISHED IN ACCORDANCE WITH THE PROVISION OF MILITARY SPECIFICATIONS MIL-I-18856A (WEP) AND MILITARY STANDARDS DRAWING MS28067-2. THIS INSTRUMENT PROVIDES THE PILOT WITH VISUAL INDICATION OF THE ANGLE OF ATTACK OF THE AIRCRAFT. THE RFQ PROVIDED THAT THE INDICATORS TO BE FURNISHED UNDER MILITARY SPECIFICATIONS MIL-I-18856A (WEP) BE TESTED AND PASS QUALIFICATION TESTS SPECIFIED THEREIN, AND BE ON OR APPROVED FOR LISTING ON A QUALIFIED PRODUCTS LIST (QPL). QPL 18856-4 OF NOVEMBER 24, 1965, LISTS AUTOMATED SPECIALTIES DIVISION OF TELEDYNE, INC., ONLY.

IT IS YOUR CONTENTION THAT THE PRESENT PROCUREMENT IS BEING PURCHASED TO A QPL REQUIREMENT; THAT THERE IS ONLY ONE FIRM ON THE LIST; THAT COMPETITION IS THEREFORE INADEQUATE; AND THAT UNDER THESE CIRCUMSTANCES THE CONTRACTING OFFICER SHOULD PROCEED IN ACCORDANCE WITH SECTIONS 1-1108, 1-1109 (A) (1) AND (2) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) IN ORDER TO PROVIDE ADEQUATE COMPETITION. YOU FURTHER CONTEND THAT THE PRESENT RFQ SHOULD BE CANCELED AND REWRITTEN, SO AS TO PERMIT A FIRST ARTICLE TEST REQUIREMENT IN LIEU OF THE QPL REQUIREMENT.

ASPR 1-1108 PROVIDES THAT WHEN AN ITEM IS PROCURED UNDER A SPECIFICATION WHICH INCLUDES QUALIFICATION REQUIREMENTS, SUCH QUALIFICATION REQUIREMENTS CAN ONLY BE WAIVED BY THE ACTIVITY THAT PREPARED THE SPECIFICATION AND IN APPROPRIATE CASES, WHEN REQUESTED BY THE CONTRACTING OFFICER, THE PREPARING ACTIVITY MAY WAIVE QUALIFICATION REQUIREMENTS. ASPR 1-1109 (A) CALLS FOR A REVIEW OF THE APPLICABLE QPL PRIOR TO SOLICITATION TO ASCERTAIN WHETHER THE NUMBER OF SUPPLIERS IS ADEQUATE. IF THE CONTRACTING OFFICER IS OF THE OPINION THAT THE NUMBER OF SOURCES IS INADEQUATE, HE SHALL REQUEST THE SPECIFICATION PREPARING ACTIVITY TO PROVIDE INFORMATION CONCERNING THE STATUS OF TESTS ON ADDITIONAL PRODUCTS. IF NO TESTS ARE BEING CONDUCTED OR CONTEMPLATED, THE CONTRACTING OFFICER SHALL REQUEST THE PREPARING ACTIVITY TO ADVISE WHETHER A MEANS OF QUALITY ASSURANCE OTHER THAN QUALIFICATION APPROVAL MAY BE SUBSTITUTED IN THE PROCUREMENT.

CONCERNING THE PROCURING ACTIVITY'S COMPLIANCE WITH THE ABOVE REGULATIONS, THE ADMINISTRATIVE REPORT, IN PERTINENT PART, STATES: "2. SINCE ONLY ONE SOURCE WAS LISTED ON THE QPL THE CONTRACTING OFFICER, IN ACCORDANCE WITH ASPR 1-1109, BY LETTER OF 13 JULY 1967, EXHIBIT B, REQUESTED THAT THE SPECIFICATION PREPARING ACTIVITY, NAVAL AIR SYSTEMS COMMAND (NASC), ADVISE ASO:

"A. OF ANY QUALIFIED CONCERN NOT YET LISTED ON THE QPL.

"B. IF ANY OTHER CONCERN HAD SUBMITTED SAMPLES FOR QUALIFICATION.

"C. WHETHER ANY OTHER MEANS OF QUALITY ASSURANCE COULD BE SUBSTITUTED FOR QUALIFICATION TESTING. "BY LETTER OF 26 JULY 1967, EXHIBIT C, NASC ADVISED THAT NO OTHER CONCERN HAD QUALIFIED, THAT NONE HAD SUBMITTED SAMPLES FOR TESTING, AND THAT NO TECHNICAL REASON EXISTED TO SUBSTITUTE OTHER MEANS OF QUALITY ASSURANCE FOR QUALIFICATION TESTING. "3. THE RFQ CONTAINED THE NOTICE REQUIRED BY ASPR 1-1107.2 AND INCLUDED THE INDENTIFICATION OF THE QPL AND THE OFFICE TO BE CONTACTED TO ARRANGE FOR QUALIFICATION TESTING. THIRTY DAYS WERE ALLOWED BETWEEN THE DATE OF ISSUANCE AND OPENING. QUOTATIONS WERE TO BE FURNISHED BY 8 SEPTEMBER 1967. THE PROPOSED PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY OF 14 AUGUST 1967 WITH THE NOTATION THAT -AWARD WILL BE MADE ONLY FOR SUCH PRODUCTS THAT HAVE BEEN TESTED AND QUALIFIED FOR INCLUSION IN THE QPL PRIOR TO THE TIME SET FOR THE OPENING OF BIDS WHETHER OR NOT SUCH PRODUCTS HAVE ACTUALLY BEEN INCLUDED IN THE LIST BY THAT DATE.-"

IT THUS APPEARS THAT NOT ONLY DID THE CONTRACTING OFFICER PROCEED IN ACCORDANCE WITH ASPR 1-1109 TO INSURE ADEQUATE COMPETITION, ALTHOUGH WITH NEGATIVE RESULTS, BUT CONTRARY TO YOUR ALLEGATION, THE SPECIFICATION PREPARING ACTIVITY WAS REQUESTED PURSUANT TO ASPR 1-1108 AND 1-1109 (A) (2) TO CONSIDER WAIVING QPL QUALIFICATION REQUIREMENTS, WHICH IT REFUSED TO DO. CONCERNING THE ALLEGATION IN YOUR LETTER OF SEPTEMBER 26, THAT THE COGNIZANT ENGINEER, MR. W. C. KILLIAN, WAS NOT REQUESTED (IN ACCORDANCE WITH ASPR 1-1108) TO CONSIDER WAIVING QPL QUALIFICATION REQUIREMENTS, NOR TO ACT UNDER ASPR 1-1109 (A) (2),THE ABOVE MENTIONED LETTER OF JULY 26, 1967, ORIGINATED IN MR. KILLIAN'S OFFICE AND WAS WRITTEN PURSUANT TO HIS INSTRUCTIONS.

WITH RESPECT TO YOUR REQUEST THAT THE RFQ BE CANCELED AND REWRITTEN SO AS TO PERMIT COMPETITION ON A FIRST ARTICLE TEST REQUIREMENT RATHER THAN ON A QPL REQUIREMENT, OUR OFFICE HAS RECOGNIZED THE LEGALITY OF THE QUALIFIED PRODUCTS METHOD OF PROCUREMENT WHEN THE NEEDS OF THE AGENCY REQUIRE IT, EVEN THOUGH IT INVOLVES AN ELEMENT OF RESTRICTION ON FULL AND FREE COMPETITION. 36 COMP. GEN. 809. ADDITIONALLY, WE HAVE HELD THAT THE GOVERNMENT DOES NOT VIOLATE THE LETTER OR SPIRIT OF THE COMPETITIVE BIDDING STATUTES MERELY BECAUSE ONLY ONE FIRM CAN SUPPLY ITS NEEDS, PROVIDED THE SPECIFICATIONS ARE REASONABLE AND NECESSARY FOR THE PURPOSE INTENDED. 45 COMP. GEN. 365, 368; 34 COMP. GEN. 336. AS TO THE PRESENT PROCUREMENT WE FIND NO ADEQUATE BASIS FOR HOLDING THAT THE QPL REQUIREMENTS WERE NOT BASED UPON A BONA FIDE DETERMINATION OF THE PRESENT NEEDS OF THE NAVY UNDER EXISTING CONDITIONS. THE EXERCISE OF SUCH DETERMINATION IS VESTED IN THE PROCUREMENT OFFICIALS INVOLVED AND, IN THE ABSENCE OF BAD FAITH IS NOT SUBJECT TO REVIEW. CONSEQUENTLY, WE SEE NO VALID BASIS FOR CONCLUDING THAT RESTRICTION OF THE AWARD TO PRODUCTS QUALIFIED UNDER THE QPL PROCEDURE OF MILITARY SPECIFICATION MIL-I-18856A IS IMPROPER, OR THAT THE RFQ SHOULD BE CANCELED AND THE PROCUREMENT READVERTISED IN ORDER TO GIVE YOUR FIRM AN OPPORTUNITY TO BID ON A FIRST ARTICLE APPROVAL BASIS. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.