B-136488, NOVEMBER 17, 1958, 38 COMP. GEN. 357

B-136488: Nov 17, 1958

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THE CONTRACT TO OTHER THAN THE LOW BIDDER WILL NOT BE HELD TO HAVE BEEN ILLEGALLY AWARDED. TOGETHER WITH THE FACT THAT THE TESTING FACILITIES WERE NOT AVAILABLE AND THAT SUFFICIENT ADVANCE PUBLICITY OF THE PROCUREMENT WAS NOT OFFERED TO PROSPECTIVE BIDDERS. WHICH IS NOT INCORPORATED INTO OR MADE PART OF AN INVITATION FOR BIDS. GEN. 809 IT WAS HELD THAT THE RESTRICTION OF PROCUREMENT TO BIDDERS HAVING QUALIFIED PRODUCT DOES NOT RENDER AWARD ILLEGAL BECAUSE SOME BIDDERS WERE UNABLE TO QUALIFY IN TIME FOR AWARD. THAT DECISION WAS REACHED ON BASIS THAT THE PROCUREMENT WAS URGENT. INTERESTED MANUFACTURERS WERE CIRCULARIZED PRIOR TO ISSUANCE OF INVITATION. INCLUSION OF THE ITEM ON THE QUALIFIED PRODUCTS LIST WAS NOTED IN PUBLICATION NORMALLY RECEIVED BY INTERESTED MANUFACTURERS IN SUFFICIENT TIME TO QUALIFY THEIR PRODUCTS AND IS DISTINGUISHABLE FROM A QUALIFIED PRODUCTS INVITATION WHICH WAS ISSUED ON THE SAME DATE THE SYNOPSIS OF PROCUREMENT WAS SUBMITTED FOR CIRCULATION AND WHICH ALLOWED BIDDERS ONLY 13 BUSINESS DAYS IN WHICH TO HAVE THEIR PRODUCTS QUALIFIED.

B-136488, NOVEMBER 17, 1958, 38 COMP. GEN. 357

CONTRACTS - SPECIFICATIONS - QUALIFIED PRODUCTS - TIME FOR QUALIFICATION THE DENIAL OR FAILURE OF A PROCUREMENT AGENCY TO ACT ON A LOW BIDDER'S TIMELY REQUEST FOR TESTING HIS PRODUCT PURSUANT TO AN INVITATION WHICH REQUIRES THE PRODUCT TO BE QUALIFIED PRIOR TO THE TIME OF BID OPENING MAKES THE AWARD TO OTHER THAN THE LOW BIDDER OF QUESTIONABLE LEGALITY; HOWEVER, IN VIEW OF THE CONFLICT OF EVIDENCE RELATING TO THE ADMINISTRATIVE ACTION WITH RESPECT TO THE LOW BIDDER'S REQUESTS FOR TESTING HIS PRODUCT, THE CONTRACT TO OTHER THAN THE LOW BIDDER WILL NOT BE HELD TO HAVE BEEN ILLEGALLY AWARDED. AN INVITATION WHICH ALLOWED BIDDERS ONLY 13 BUSINESS DAYS FROM THE ISSUANCE OF THE INVITATION UNTIL BID OPENING TO QUALIFY THEIR PRODUCTS, TOGETHER WITH THE FACT THAT THE TESTING FACILITIES WERE NOT AVAILABLE AND THAT SUFFICIENT ADVANCE PUBLICITY OF THE PROCUREMENT WAS NOT OFFERED TO PROSPECTIVE BIDDERS, RESULTS IN RESTRICTING THE PROCUREMENT TO BIDDERS WHO HAD ALREADY QUALIFIED THEIR PRODUCTS. A REGULATION WHICH REQUIRES A WRITTEN APPLICATION TO A PROCUREMENT AGENCY TO OBTAIN AUTHORIZATION FOR QUALIFICATION TESTING IN OTHER THAN GOVERNMENT LABORATORIES FOR INCLUSION OF A PRODUCT ON THE QUALIFIED PRODUCTS LIST, BUT WHICH IS NOT INCORPORATED INTO OR MADE PART OF AN INVITATION FOR BIDS, CANNOT BE IMPOSED SUBSEQUENTLY UPON BIDDERS RESPONDING TO AN INVITATION CONTAINING A SPECIFICATION WHICH ONLY URGES BIDDERS TO COMMUNICATE WITH THE PROCUREMENT AGENCY TO ARRANGE FOR QUALIFICATION TESTING. ALTHOUGH IN 36 COMP. GEN. 809 IT WAS HELD THAT THE RESTRICTION OF PROCUREMENT TO BIDDERS HAVING QUALIFIED PRODUCT DOES NOT RENDER AWARD ILLEGAL BECAUSE SOME BIDDERS WERE UNABLE TO QUALIFY IN TIME FOR AWARD, THAT DECISION WAS REACHED ON BASIS THAT THE PROCUREMENT WAS URGENT, INTERESTED MANUFACTURERS WERE CIRCULARIZED PRIOR TO ISSUANCE OF INVITATION, AND INCLUSION OF THE ITEM ON THE QUALIFIED PRODUCTS LIST WAS NOTED IN PUBLICATION NORMALLY RECEIVED BY INTERESTED MANUFACTURERS IN SUFFICIENT TIME TO QUALIFY THEIR PRODUCTS AND IS DISTINGUISHABLE FROM A QUALIFIED PRODUCTS INVITATION WHICH WAS ISSUED ON THE SAME DATE THE SYNOPSIS OF PROCUREMENT WAS SUBMITTED FOR CIRCULATION AND WHICH ALLOWED BIDDERS ONLY 13 BUSINESS DAYS IN WHICH TO HAVE THEIR PRODUCTS QUALIFIED. A PROCUREMENT RESTRICTED TO QUALIFIED PRODUCTS ITEMS AFTER PREVIOUS PROCUREMENTS OF THE SAME OR SIMILAR PRODUCT WERE ACCOMPLISHED THROUGH ORDINARY ADVERTISING PROCEDURES MAKES SUCH A RESTRICTED PROCUREMENT OF DOUBTFUL LEGALITY. IF ADVERTISED PROCUREMENTS REQUIRING PLACEMENT ON THE QUALIFIED PRODUCTS LIST ARE JUSTIFIED UNDER SECTION 2-502 OF THE ARMED SERVICES PROCUREMENT REGULATION, IT IS SUGGESTED THAT SECTION 2-503.1 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDE SPECIFICALLY FOR PUBLICITY SUFFICIENTLY IN ADVANCE OF THE ISSUANCE OF INVITATIONS TO PERMIT INTERESTED MANUFACTURERS TO ARRANGE FOR QUALIFICATION TESTING; AND THAT, BASED ON THE URGENCY OF THE PROCUREMENT, SUFFICIENT TIME SHOULD BE ALLOWED BEFORE BID OPENING TO PERMIT THE REQUIRED QUALIFICATION TESTING. IN THE DETERMINATION OF THE LEGALITY OF AN ADMINISTRATIVE ACTION CONTEMPLATED OR TAKEN THE GENERAL ACCOUNTING OFFICE MUST--- IN THE ABSENCE OF AN INDEPENDENT INVESTIGATION--- NECESSARILY RELY FULLY UPON THE ADMINISTRATIVE REPORT OF THE RELEVANT FACTS AND IT IS, THEREFORE, IMPERATIVE THAT THE FULL AND CORRECT FACTS, IN RESPONSE TO REQUESTS FOR INFORMATION, BE FURNISHED.

TO THE SECRETARY OF THE NAVY, NOVEMBER 17, 1958:

REFERENCE IS MADE TO LETTERS DATED AUGUST 8 AND OCTOBER 17, 1958, FROM THE BUREAU OF SHIPS AND THE OFFICE OF NAVAL NAVAL MATERIEL, RESPECTIVELY, CONCERNING THE PROTEST OF THE UNIVERSAL DYNAMICS CORPORATION AGAINST THE AWARD MADE UNDER INVITATION FOR BIDS NO. 104 496-58 ISSUED BY THE SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA, ON MAY 27, 1958, FOR FURNISHING 74 DESICCANT DEHUMIDIFIERS IN ACCORDANCE WITH SPECIFICATION MIL -D-15215 ( SHIPS), AMENDMENT 2 OF JUNE 27, 1955.

THE INVITATION ON PAGE 5 PROVIDED:

QUALIFIED PRODUCTS

WITH RESPECT TO PRODUCTS REQUIRING QUALIFICATION, AWARDS WILL BE MADE ONLY FOR SUCH PRODUCTS AS HAVE, PRIOR TO THE TIME SET FOR OPENING OF BIDS, BEEN TESTED AND APPROVED FOR INCLUSION (BUT WITHOUT REGARD TO WHETHER SUCH PRODUCTS HAVE ACTUALLY BEEN SO LISTED BY THAT DATE) IN THE QUALIFIED PRODUCTS LIST USED BY THE DEPARTMENT OF THE NAVY OF PRODUCTS QUALIFIED UNDER MILITARY SPECIFICATIONS MIL-D-15215, DEHUMIDIFIER DESICCANT, ELECTRIC, ( FOR SHIPBOARD USE).

MANUFACTURERS ARE URGED TO COMMUNICATE WITH, AND ARRANGE TO HAVE THE PRODUCTS THAT THEY PROPOSE TO OFFER TESTED FOR QUALIFICATION BY THE CHIEF, BUREAU OF SHIPS, NAVY DEPARTMENT, WASHINGTON, 25, D.C.

IN RESPONSE TO THE INVITATION, BIDS WERE RECEIVED FROM FIVE BIDDERS AND WERE OPENED ON JUNE 16, 1958. ONLY THREE OF THE BIDDERS WERE ON THE QUALIFIED PRODUCTS LIST. WHILE UNIVERSAL SUBMITTED THE LOWEST BID, ITS BID WAS REJECTED BECAUSE IT HAD NOT COMPLIED WITH THE REQUIREMENTS CONCERNING THE QUALIFICATION OF ITS PRODUCT PRIOR TO BID OPENING. AWARD WAS MADE ON JUNE 26, 1958, TO CARGOCAIRE ENGINEERING CORPORATION- - ONE OF THE THREE BIDDERS ON THE QUALIFIED PRODUCTS LIST--- AS THE LOWEST RESPONSIVE BIDDER.

UNIVERSAL CONTENDS THAT, DESPITE THE FACT IT TOOK EVERY REASONABLE AND LOGICAL MEASURE TO QUALIFY ITS PRODUCT PRIOR TO BID OPENING, IT WAS DENIED AN OPPORTUNITY TO TIMELY QUALIFY BY THE FAILURE OF YOUR DEPARTMENT TO ARRANGE FOR QUALIFICATION TESTING PRIOR TO AWARD CONTRARY TO THE FULL AND FREE COMPETITION CONTEMPLATED BY 10 U.S.C. 2305. IT FURTHER ALLEGES THAT IT RECEIVED THE INVITATION ON MAY 30 (A LEGAL HOLIDAY) AND ON THE NEXT BUSINESS DAY ( JUNE 2) CONTACTED THE BUREAU OF SHIPS TO ARRANGE FOR TESTING.

ESSENTIALLY, IT IS THE POSITION OF YOUR DEPARTMENT THAT THE AWARD TO CARGOCAIRE AS THE LOWEST QUALIFIED BIDDER WAS PROPER AND VALID AND THAT YOUR DEPARTMENT MUST TAKE EXCEPTION TO THE ALLEGATION OF UNIVERSAL THAT IT DID ALL THAT WAS POSSIBLE TO QUALIFY ITS PRODUCT PRIOR TO BID OPENING. THAT CONNECTION, IT WAS STATED IN THE LETTER OF AUGUST 8, 1958, THAT:

IN ADDITION, THE SPECIFICATION TO WHICH THE PROPOSED PRODUCT MUST CONFORM AND WHICH OF NECESSITY UNIVERSAL POSSESSED, CONTAINS SIMILAR INSTRUCTIONS AS TO THE MANNER OF REQUESTING QUALIFICATION TESTING. FURTHER THE INVITATION FOR THE SAME EQUIPMENT ISSUED LAST JANUARY TO WHICH UNIVERSAL REFERS, SPECIFIED THE BUREAU OF SHIPS AS TO OFFICE WITH WHICH TO COMMUNICATE FOR ARRANGING FOR QUALIFICATION TESTING. THESE PROCEDURES, ESTABLISHED TO ASSIST MANUFACTURERS WERE IGNORED BY THE PROTESTING BIDDER; TO DATE NO APPLICATION FOR TESTING UNIVERSAL'S DEHUMIDIFIERS OR COMMUNICATION OF ANY SORT, ORAL OR WRITTEN, FROM UNIVERSAL (HAVE) BEEN RECEIVED BY THE DEHUMIDIFIER SECTION OF THE BUREAU OF SHIPS. HAD A PROPER APPLICATION BEEN SUBMITTED DURING THE ,SPRING" OF 1958 TO THE BUREAU OF SHIPS IN ACCORDANCE WITH THESE PROCEDURES RATHER THAN DIRECTLY TO THE INDEPENDENT TESTING FACILITY, THERE IS NO DOUBT THAT THE UNIVERSAL PRODUCTS WOULD HAVE BEEN INCLUDED ON THE QUALIFIED PRODUCTS LIST IN TIME FOR THE OPENING OF THE INVITATION FOR BID 104-496-58, ASSUMING, OF COURSE, THAT IT MET THE REQUIREMENTS OF THE REFERENCED SPECIFICATION. HAD SUCH REQUEST BEEN RECEIVED BY THE BUREAU OF SHIPS EVEN AFTER THIS INVITATION WAS ISSUED IN MAY, THE BUREAU MIGHT WELL HAVE BEEN ABLE TO EXPEDITE UNIVERSAL'S QUALIFICATION TESTING SO AS TO PERMIT THEIR BID TO BE CONSIDERED RESPONSIVE TO THE INVITATION, EVEN THOUGH THE QUALIFIED PRODUCTS PROVISION IN THE INVITATION DOES NOT STATE OR REPRESENT THAT THIS COULD BE DONE. ( ITALICS SUPPLIED.)

ON THE OTHER HAND, UNIVERSAL HAS FURNISHED INFORMATION TO THE EFFECT THAT IT WAS IN CONSTANT CONTACT WITH THE BUREAU OF SHIPS FROM JUNE 2 THROUGH JUNE 18, 1958, FOR THE PURPOSE OF OBTAINING QUALIFICATION OF ITS PRODUCT. THIS INFORMATION HAS BEEN SUBSTANTIATED IN PART BY THE SENATE SELECT COMMITTEE ON SMALL BUSINESS, A STAFF MEMBER OF WHICH WAS IN COMMUNICATION DURING SUCH PERIOD WITH PERSONNEL OF THE BUREAU OF SHIPS AND THE OFFICE OF NAVAL MATERIAL ON BEHALF OF UNIVERSAL TO OBTAIN POSTPONEMENT OF THE BID OPENING DATE FOR 56 DAYS TO PERMIT THE TESTING OF UNIVERSAL'S PRODUCT BY THE PENNSYLVANIA STATE UNIVERSITY. IN FACT, OUR RECORDS SHOW THAT SUCH AN EXTENSION WAS FORMALLY REQUESTED BY THE CHAIRMAN OF THE SENATE SMALL BUSINESS COMMITTEE IN A LETTER DATED JUNE 11, 1958, ADDRESSED TO THE OFFICE OF NAVAL MATERIEL. ALSO AS EARLY AS APRIL 2, 1958, UNIVERSAL REQUESTED QUALIFICATION TESTING OF ITS PRODUCT FROM THE UNIVERSITY, THE ONLY AUTHORIZED NAVY TESTING FACILITY FOR DEHUMIDIFIERS. IN A REPLY DATED APRIL 4, 1958, THE UNIVERSITY ADVISED UNIVERSAL THAT TESTING BY MEANS OF ITS CLIMATOMETER COULD NOT BE CONSIDERED UNTIL AUGUST 1958. WHILE THAT EXCHANGE OF CORRESPONDENCE HAD REFERENCE TO A TYPE OF DEHUMIDIFIER OTHER THAN THAT COVERED BY SPECIFICATION MIL-D-15252 ( SHIPS), IT APPEARS THAT CLIMATOMETER FACILITIES WERE REQUIRED FOR HUMIDITY TESTING REGARDLESS OF THE TYPE OF DEHUMIDIFIER INVOLVED.

THE FOREGOING INFORMATION WAS DISCUSSED AT A CONFERENCE WITH NAVY OFFICIALS AND RESULTED IN THE FURTHER REPORT DATED OCTOBER 17, 1958. THAT REPORT, IN PERTINENT PART, STATES:

THE RECORD SUBMITTED BY UNIVERSAL DYNAMICS INDICATES THAT IT WAS NOT UNTIL JUNE 2, 1958, ALMOST A WEEK AFTER THE INVITATION WAS ISSUED, THAT UNIVERSAL DYNAMICS BEGAN MAKING ATTEMPTS TO ARRANGE WITH THE NAVY FOR QUALIFICATION TESTING. THIS RECORD IS REPLETE WITH ALLEGATIONS OF VARIOUS CONTACTS ON BEHALF OF UNIVERSAL DYNAMICS FROM JUNE 2ND TO JUNE 9TH. FOLLOWING THE CONFERENCE IN YOUR OFFICE, THIS OFFICE CONDUCTED AN INTENSIVE INVESTIGATION OF THE MATTER. DESPITE THESE EFFORTS, AND APART FROM CONTACTS WITH BUREAU OF SHIPS PERSONNEL, AS EXPLAINED BELOW, IT HAS NOT BEEN POSSIBLE TO VERIFY OR EVEN IDENTIFY ANY OF THESE ALLEGED CONTACTS.

WHILE THERE MAY HAVE BEEN TELEPHONE CONVERSATIONS RELATING TO THIS MATTER WITH NAVY PERSONNEL OTHER THAN THOSE IN THE BUREAU OF SHIPS, PRIOR TO JUNE 10, 1958, NEITHER THE RECOLLECTIONS OF THE INDIVIDUALS CONCERNED NOR PERTINENT OFFICE RECORDS REVEAL ANY CONTACT UNTIL JUNE 10TH. THIS MATTER WAS HANDLED FOR THE OFFICE OF NAVAL MATERIEL PRIMARILY BY LIEUTENANT COMMANDER T. J. MCDERMOTT. ON SEPTEMBER 5TH, 1958, HE WAS CONTACTED BY TELEPHONE IN CALIFORNIA BEFORE HIS DEPARTURE FOR THE FAR EAST. LIEUTENANT COMMANDER MCDERMOTT HAS A DISTINCT RECOLLECTION THAT HE HAD RECEIVED ONLY ONE TELEPHONE CALL RELATING TO THIS MATTER, THAT BEING FROM THE STAFF OF THE SENATE SMALL BUSINESS COMMITTEE. HE FURTHER RECOLLECTS THAT HE PROMPTLY FURNISHED THE PERTINENT INFORMATION TO THE NAVY OFFICES CONCERNED, WITH THE ADVICE THAT A LETTER FROM THE SENATE SMALL BUSINESS COMMITTEE WOULD BE FORTHCOMING. THE DATE OF THE CALL IN QUESTION--- JUNE 10, 1958--- AND OTHER PERTINENT FACTS ARE CONFIRMED BY MEMORANDA IN THE OFFICE OF NAVAL MATERIEL AND THE BUREAU OF SUPPLIES AND ACCOUNTS. IT WAS NOT UNTIL FRIDAY, JUNE 13TH, THAT THE CONTRACTING OFFICER, WHO IS LOCATED AT MECHANICSBURG, PENNSYLVANIA, WAS CONTACTED BY ANYONE REGARDING THE MATTER OF QUALIFICATION TESTING. UNDER THESE CIRCUMSTANCES, IT WAS NOT REASONABLE TO EXPECT THE CONTRACTING OFFICER, ON THE EVE OF THE OPENING OF THE BIDS, SCHEDULED FOR THE FOLLOWING MONDAY, TO EXTEND THAT OPENING. FURTHER, IT WAS NOT UNTIL JUNE 11TH, ONLY THREE WORKING DAYS BEFORE THE BID OPENING, THAT A LETTER WAS WRITTEN. THIS WAS A LETTER FROM THE SENATE SMALL BUSINESS COMMITTEE REQUESTING THAT THE BID OPENING BE DELAYED FOR 56 DAYS TO PROVIDE AN OPPORTUNITY FOR THE TESTING OF UNIVERSAL DYNAMICS' PRODUCTS. HOWEVER, THIS LETTER WAS NOT RECEIVED BY THE NAVY UNTIL THE AFTERNOON OF MONDAY, JUNE 16TH, THE DATE OF THE BID OPENING.

IT IS DESIRED AT THIS POINT TO CORRECT AND EXPLAIN A STATEMENT, ON PAGE 3 OF THE BUREAU OF SHIPS LETTER TO YOU OF AUGUST 8, 1958, TO THE EFFECT THAT NEITHER AN APPLICATION FOR TESTING, NOR A COMMUNICATION OF ANY SORT, FROM UNIVERSAL DYNAMICS HAD BEEN RECEIVED BY THE DEHUMIDIFIER SECTION OF THE BUREAU OF SHIPS. THIS INFORMATION WAS FURNISHED TO YOU ON THE BASIS OF INFORMATION OBTAINED FROM THE PERSONNEL CONCERNED IN THE DEHUMIDIFIER SECTION. SUBSEQUENT TO THE MEETING WITH YOU ON AUGUST 26TH, AND ON THE BASIS OF REFRESHED RECOLLECTIONS RESULTING FROM CLOSER QUESTIONING, THE DEHUMIDIFIER PERSONNEL CONCERNED HAVE ADVISED THAT SOME CONVERSATIONS WERE HELD ON JUNE 2ND AND JUNE 9TH, BUT THEY DID NOT UNDERSTAND THAT THESE DISCUSSIONS WERE INTENDED TO BE REQUESTS FOR QUALIFICATION TESTING. THEIR UNDERSTANDING WAS THAT THESE DISCUSSIONS WERE MERELY IN THE NATURE OF PRELIMINARY INQUIRIES AS TO WHETHER THERE WERE ALTERNATE LABORATORIES AVAILABLE FOR TESTING. THEY STATE THAT THEY ADVISED UNIVERSAL DYNAMICS THAT PENN STATE HAD THE ONLY LABORATORY PREPARED AT THAT TIME TO DO THIS TYPE OF TESTING.

* * * THE FIRST EFFORTS BY OR ON BEHALF OF UNIVERSAL DYNAMICS TO ARRANGE WITH THE NAVY FOR QUALIFICATION TESTING OCCURRED AFTER ISSUANCE OF THE INVITATION FOR BIDS. NO SHOWING HAS BEEN MADE THAT UNIVERSAL DYNAMICS HAD AVAILABLE, PRIOR TO THE BID OPENING OR SINCE, A DEHUMIDIFIER MEETING THE SPECIFICATION. IN THESE CIRCUMSTANCES, AND IN FAIRNESS TO OTHER BIDDERS WHO HAD QUALIFIED THEIR PRODUCTS IN ADVANCE, REFUSAL BY THE CONTRACTING OFFICER TO EXTEND THE BID OPENING DATE FOR A SUFFICIENT TIME TO PERMIT UNIVERSAL DYNAMICS TO SUBMIT FOR QUALIFICATION TESTING A FULLY CONFORMING DEHUMIDIFIER SEEMS CLEARLY TO HAVE BEEN A PROPER EXERCISE OF DISCRETION. ( ITALICS SUPPLIED.)

IN VIEW OF THE ABOVE-QUOTED PROVISIONS OF THE INVITATION, WE DOUBT THAT AN AWARD TO OTHER THAN A LOW BIDDER CAN BE JUSTIFIED WHERE IT IS ESTABLISHED THAT THE LOW BIDDER'S TIMELY REQUESTS TO HAVE HIS PRODUCT TESTED ARE IGNORED OR DENIED. HOWEVER, SINCE WE CANNOT IN THIS INSTANCE RESOLVE THE CONFLICT IN THE EVIDENCE RELATING TO YOUR DEPARTMENT'S ACTION IN THAT REGARD, WE WILL NOT CONCLUDE, AS A MATTER OF LAW THAT THE CONTRACT WITH CARGOCAIRE WAS ILLEGALLY AWARDED. WE DO FEEL, HOWEVER, THAT THE NONAVAILABILITY OF THE FACILITIES OF PENNSYLVANIA STATE UNIVERSITY PROBABLY WAS ONE OF THE CONTRIBUTING FACTORS WHICH EFFECTIVELY PRECLUDED THE TIMELY QUALIFICATION OF UNIVERSAL'S PRODUCT. ANOTHER FACT WHICH MAY HAVE PRECLUDED THE TIMELY QUALIFICATION OF UNIVERSAL'S PRODUCT WAS THAT ONLY 13 BUSINESS DAYS WERE GIVEN FOR PRODUCT QUALIFICATION PRIOR TO BID OPENING. THESE MATTERS AND THE FURTHER FACT THAT SUFFICIENT ADVANCE PUBLICITY OF THE PROCUREMENT WAS NOT AFFORDED TO BIDDERS HAD THE PRACTICAL RESULT OF RESTRICTING THE PROCUREMENT TO THOSE BIDDERS ALREADY QUALIFIED.

WITH RESPECT TO THE PROCEDURES PRESCRIBED BY THE INVITATION FOR BIDS TO OBTAIN QUALIFICATION TESTING, WE DO NOT AGREE THAT UNIVERSAL OR ANY OTHER BIDDER WAS REQUIRED THEREBY TO FOLLOW THE MANDATE OF NAVY/SHIPS (250-357- 2), CONDITIONS GOVERNING QUALIFICATION TESTS IN OTHER THAN GOVERNMENT LABORATORIES. WHILE SPECIFICATION MIL-D-15215 ( SHIPS) WAS MADE A PART OF THE INVITATION, PARAGRAPH 6.3 THEREOF ONLY URGED MANUFACTURERS TO COMMUNICATE WITH THE BUREAU OF SHIPS TO ARRANGE FOR QUALIFICATION TESTING. NAVY/SHIPS (250-357-2) WAS NOT INCORPORATED INTO OR MADE PART OF THE INVITATION. HENCE, THE PROCEDURES PRESCRIBED THEREIN BY PARAGRAPH 3 FOR WRITTEN APPLICATION FOR AN AUTHORIZATION OF QUALIFICATION TESTS COULD NOT BE IMPOSED SUBSEQUENTLY UPON BIDDERS RESPONDING TO THE SUBJECT INVITATION.

IN 36 COMP. GEN. 809, WE HELD THAT THE RESTRICTION OF A PROCUREMENT TO THOSE BIDDERS HAVING A QUALIFIED PRODUCT DOES NOT RENDER AN AWARD ILLEGAL BECAUSE SOME OF THE BIDDERS WERE UNABLE TO QUALIFY IN TIME FOR AWARD. HOWEVER, THAT DECISION WAS REACHED IN THE LIGHT OF CERTAIN ESTABLISHED FACTS--- NOT PRESENT HERE--- NAMELY, THAT THE PROCUREMENT WAS URGENT, ALL INTERESTED MANUFACTURERS WERE CIRCULARIZED PRIOR TO ISSUANCE OF THE INVITATION, AND THE INCLUSION OF THE ITEM ON THE QUALIFIED PRODUCTS LIST WAS NOTED IN A PUBLICATION NORMALLY RECEIVED BY INTERESTED MANUFACTURERS IN SUFFICIENT TIME TO QUALIFY THEIR PRODUCTS AND TO BE ELIGIBLE FOR AWARD UNDER THE TERMS OF THE INVITATION. IN THIS INSTANT CASE, A SYNOPSIS OF THE PROCUREMENT WAS SUBMITTED TO THE DEPARTMENT OF COMMERCE ON MAY 27, 1958, THE DATE THE INVITATION WAS ISSUED; AND IT IS REPORTED THAT NO BASIS EXISTED FOR ADVANCE PUBLICITY OR FOR AN "INORDINATELY LONG OPENING DATE.' HENCE, THE ABOVE-CITED DECISION IS DISTINGUISHABLE FROM THE INSTANT MATTER. MOREOVER, THE JUSTIFICATION FOR PLACING OF THE INSTANT PROCUREMENT ON THE QUALIFIED PRODUCTS LIST IS DOUBTFUL IN VIEW OF THE FACT THAT ORDINARY ADVERTISED PROCEDURES WERE UTILIZED TO PROCURE SIMILAR EQUIPMENT ON IFB-600-1115 58-S, DATED APRIL 11, 1958, AND IFB-195-158-59 (H), DATED OCTOBER 13, 1958.

WHILE THIS PROCUREMENT LEAVES MUCH TO BE DESIRED SO FAR AS THE COMPETITIVE BIDDING STATUTES AND THE ADMINISTRATION OF THE QUALIFIED PRODUCTS LIST ARE CONCERNED, AS PREVIOUSLY STATED, WE ARE NOT DISPOSED TO QUESTION THE AWARD MADE TO CARGOCAIRE. HOWEVER, WE FEEL STRONGLY THAT THE INSTANT PROCUREMENT DEMONSTRATES CERTAIN DEFECTS IN THE ADMINISTRATION OF THE QUALIFIED PRODUCTS LISTS SO FAR AS ADVERTISED PROCUREMENTS ARE CONCERNED. WE BELIEVE THERE IS SERIOUS DOUBT WHETHER THE JUSTIFICATIONS ENUMERATED IN SECTION 2-502 OF THE ASPR FOR USE OF THE QUALIFIED PRODUCTS LIST EXISTED IN THE INSTANT PROCUREMENT; THAT SECTION 2-503.1 OF THE ASPR SHOULD PROVIDE SPECIFICALLY FOR PUBLICITY SUFFICIENTLY IN ADVANCE OF THE ISSUANCE OF THE INVITATION TO PERMIT INTERESTED MANUFACTURERS TO ARRANGE FOR QUALIFICATION TESTING; AND THAT, BASED ON THE URGENCY OF THE PROCUREMENT, SUFFICIENT TIME SHOULD BE ALLOWED BEFORE BID OPENING TO PERMIT THE REQUIRED QUALIFICATION TESTING. IN THIS LATTER CONNECTION, A COPY OF THIS DECISION IS BEING FORWARDED TO THE SECRETARY OF DEFENSE FOR HIS INFORMATION.

IN CONCLUSION, WE REFER TO A PHASE OF THIS MATTER WHICH HAS A PARTICULAR BEARING ON THE FUNCTIONS OF THIS OFFICE. IN YOUR DEPARTMENT'S LETTER OF AUGUST 8, 1958, THERE APPEARS AN UNCOMPROMISING DENIAL THAT UNIVERSAL COMMUNICATED IN ANY MANNER, ORAL OR WRITTEN, WITH THE DEHUMIDIFIER SECTION OF THE BUREAU OF SHIPS FOR THE PURPOSE OF HAVING ITS EQUIPMENT TESTED. THIS STATEMENT, HOWEVER, SEEMS TO HAVE BEEN LESS THAN ACCURATE IN VIEW OF THE CONCESSION IN THE SUBSEQUENT LETTER OF OCTOBER 17, 1958, THAT UNIVERSAL DID COMMUNICATE WITH THE DEHUMIDIFIER PERSONNEL CONCERNED ON DIFFERENT OCCASIONS AND THAT "SOME" CONVERSATIONS, TOGETHER WITH THE FACT THAT THE ONLY TESTING LABORATORY WHICH HAD BEEN AUTHORIZED BY NAVY FOR THE TYPE OF TESTING REQUIRED IN THIS CASE WAS NOT AVAILABLE FROM APRIL THROUGH AUGUST 1958, MAKE IT DIFFICULT TO PERCEIVE ANY JUSTIFICATION FOR THE FURTHER ADVICE GIVEN US IN THE REPORT OF AUGUST 8, 1958, TO THE EFFECT THAT HAD THE BUREAU OF SHIPS BEEN REQUESTED TO DO SO, EVEN AFTER THE INVITATION WAS ISSUED, THE BUREAU PROBABLY WOULD HAVE BEEN ABLE TO EXPEDITE TESTING OF UNIVERSAL'S PRODUCTS SO AS TO PERMIT CONSIDERATION OF ITS BID. YOU WILL UNDERSTAND, OF COURSE, THAT IN REACHING OUR CONCLUSIONS IN CASES OF THIS NATURE AS TO THE LEGALITY OF ADMINISTRATIVE ACTION CONTEMPLATED OR TAKEN WE MUST--- IN THE ABSENCE OF AN INDEPENDENT INVESTIGATION CONDUCTED BY OUR OWN OFFICE--- NECESSARILY RELY FULLY UPON THE ADMINISTRATIVE REPORT OF THE RELEVANT FACTS. IT IS, THEREFORE, IMPERATIVE THAT WE BE FURNISHED THE FULL AND CORRECT FACTS IN RESPONSE TO OUR REQUESTS.