B-143282, AUG. 18, 1960

B-143282: Aug 18, 1960

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TO MORGAN ALUMINUM WELDING ROD COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 21. PARAGRAPH 103-2.1 OF THE INVITATION PROVIDED THAT AWARDS WOULD BE MADE "ONLY FOR SUCH PRODUCTS THAT HAVE. WHETHER OR NOT SUCH PRODUCTS HAVE ACTUALLY BEEN INCLUDED IN THE LIST BY THAT DATE.'. WAS LISTED AS THE QUALIFICATION OFFICE. YOUR BID SUBMITTED IN RESPONSE TO THE INVITATION WAS ACCOMPANIED BY LETTER DATED MAY 31. WE ARE QUALIFIED ON ALL BUT 5. WE ARE NOT BIDDING. ON THE BALANCE OF THESE ITEMS WE ARE EITHER PRESENTLY LISTED ON THE QUALIFIED PRODUCTS LIST OR WE ARE QUALIFIED BUT NOT LISTED. WE ARE TAKING THE LIBERTY OF ATTACHING HEREWITH THE QUALIFICATION TEST REPORTS. A PRODUCT DOESN-T NECESSARILY HAVE TO BE LISTED ON THE QUALIFIED PRODUCT LIST BUT THAT THE TEST WORK MUST BE COMPLETED PRIOR TO THE DATE OF THE AWARD.

B-143282, AUG. 18, 1960

TO MORGAN ALUMINUM WELDING ROD COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 21, 1960, PROTESTING THE REJECTION OF YOUR LOW BID ON LOTS 7 THROUGH 12, 21 AND 22, UNDERINVITATION FOR BIDS NO. IFB-155-/6-5/-3458-60.

THE INVITATION, ISSUED ON MAY 3, 1960, BY THE GENERAL STORES SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA, TO BE OPENED ON JUNE 22, 1960,COVERED REQUIREMENTS FOR FIVE TYPES OF WELDING ELECTRODES IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-E-160530 DATED APRIL 28, 1959, WHICH CALLED FOR "QUALIFIED PRODUCTS" IN ACCORDANCE WITH CHAPTER IV OF DEFENSE STANDARDIZATION MANUAL M200. PARAGRAPH 103-2.1 OF THE INVITATION PROVIDED THAT AWARDS WOULD 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 IDENTIFIED BELOW, WHETHER OR NOT SUCH PRODUCTS HAVE ACTUALLY BEEN INCLUDED IN THE LIST BY THAT DATE.' THE CHIEF, BUREAU OF SHIPS, NAVY DEPARTMENT, WASHINGTON, C., WAS LISTED AS THE QUALIFICATION OFFICE.

YOUR BID SUBMITTED IN RESPONSE TO THE INVITATION WAS ACCOMPANIED BY LETTER DATED MAY 31, 1960, AS FOLLOWS:

"OF THE 22 LOTS CALLED FOR IN THIS INVITATION, ALL REQUIRE A QUALIFIED PRODUCT, TO BE CONSIDERED FOR AN AWARD. OF THESE 22 ITEMS, WE ARE QUALIFIED ON ALL BUT 5, 6, 19 AND 20. ON THESE FOUR ITEMS, WE ARE NOT BIDDING. ON THE BALANCE OF THESE ITEMS WE ARE EITHER PRESENTLY LISTED ON THE QUALIFIED PRODUCTS LIST OR WE ARE QUALIFIED BUT NOT LISTED. WE ARE TAKING THE LIBERTY OF ATTACHING HEREWITH THE QUALIFICATION TEST REPORTS, AS THE INVITATION SPECIFICALLY STATES THAT, TO BE CONSIDERED, A PRODUCT DOESN-T NECESSARILY HAVE TO BE LISTED ON THE QUALIFIED PRODUCT LIST BUT THAT THE TEST WORK MUST BE COMPLETED PRIOR TO THE DATE OF THE AWARD. BELIEVE THE REPORT OF THESE TESTS, ATTACHED, WHICH WERE COMPLETED PRIOR TO THE OPENING DATE OF THE INVITATION, WILL QUALIFY US TO BE CONSIDERED FOR THOSE ITEMS.'

THE QUALIFICATION TEST REPORTS REFERRED TO ARE DATED MAY 26, 1960.

SUBSEQUENT TO THE OPENING OF THE BIDS, THE CONTRACTING OFFICER REQUESTED INFORMATION FROM THE CHIEF, BUREAU OF SHIPS, AS TO WHETHER THE MATERIAL OFFERED BY YOU HAD BEEN TESTED AND QUALIFIED FOR INCLUSION IN THE APPROPRIATE QUALIFIED PRODUCTS LIST. THE CONTRACTING OFFICER WAS ADVISED THAT THE MATERIAL INVOLVED WAS APPROVED FOR INCLUSION IN THE QUALIFIED PRODUCTS LIST AS OF 0800 JUNE 8, 1960, AS STATED IN A LETTER DATED JUNE 8, 1960, FROM THE BUREAU OF SHIPS TO YOU NOTIFYING YOU OF THE QUALIFICATION APPROVAL AS OF THAT DATE. SINCE IT THUS APPEARED THAT THE MATERIAL OFFERED DID NOT MEET THE QUALIFICATION REQUIREMENTS OF PARAGRAPH 103-2.1 OF THE INVITATION, YOUR BID ON THE LOTS INVOLVED WAS REJECTED AS NONRESPONSIVE.

YOU PROTEST THE ACTION TAKEN BY THE CONTRACTING OFFICER ON THE BASIS THAT THE MATERIAL SHOULD BE CONSIDERED AS APPROVED AS OF MAY 26, 1960, THE DATE OF THE COMPLETION OF THE TEST WORK IN YOUR OWN LABORATORIES, SINCE THE LABORATORY TEST RESULTS WERE APPROVED BY THE LOCAL NAVAL INSPECTOR AND THE TEST REPORTS WERE MAILED TO THE BUREAU OF SHIPS,WASHINGTON, D.C., ON MAY 26.

THE INVITATION SPECIFICALLY PROVIDED THAT THE BUREAU OF SHIPS WAS THE QUALIFICATION OFFICE. UNDER THE EXPRESS PROVISIONS OF SECTION 1 1105 OF THE ARMED SERVICES PROCUREMENT REGULATION, UNTIL THAT OFFICE APPROVED THE TEST REPORTS THE MATERIAL WAS NOT QUALIFIED TO BE INCLUDED IN THE APPROPRIATE QUALIFIED PRODUCTS LIST OR FOR AWARD OF A CONTRACT UNDER ANY BID OPENED PRIOR TO THE DATE OF APPROVAL. WHILE THE LANGUAGE OF THE INVITATION PROVISION IS NOT AS CLEAR IN THIS RESPECT AS IT MIGHT BE, THE PROVISIONS OF THE REGULATION AND OF THE STANDARDIZATION MANUAL CLEARLY PRECLUDE ANY RETROACTIVE APPLICATION OF THE QUALIFICATION APPROVAL, AND WE COULD NOT INTERPRET THE INVITATION IN A MANNER CONTRARY TO THESE GOVERNING PROVISIONS.

ACCORDINGLY, WE FIND NO BASIS TO QUESTION THE ADMINISTRATIVE ACTION TAKEN IN THIS MATTER.