B-148521, JUL. 16, 1962

B-148521, JUL. 16, 1962

TO CONSOLIDATED COMPONENTS CORPORATION:

REFERENCE IS MADE TO YOUR NIGHT LETTER DATED MARCH 28, 1962, AND YOUR LETTERS OF APRIL 2, APRIL 14 AND JUNE 14, 1962, CONCERNING YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION NO. DSA -1-62-180, AS AMENDED.

BIDS TO BE OPENED MARCH 23, 1962, WERE REQUESTED ON 4,441 FLYING HELMETS, CRASH TYPE, APH-5, IN ACCORDANCE WITH INTERIM PURCHASE DESCRIPTION IP/DES S-19-2 DATED FEBRUARY 15, 1962. THE INVITATION CONTAINED THE FOLLOWING PROVISION:

"QUALIFIED PRODUCTS LIST:

"WITH RESPECT TO PRODUCTS REQUIRING QUALIFICATION, AWARDS WILL BE MADE ONLY FOR SUCH PRODUCTS AS HAVE, PRIOR TO THE BID OPENING DATE, BEEN TESTED AND APPROVED FOR INCLUSION IN THE QUALIFIED PRODUCTS LIST NO. 19366-3 DATED 15 FEBRUARY 1961 WHETHER OR NOT SUCH PRODUCTS HAVE ACTUALLY BEEN SO LISTED BY THAT DATE. MANUFACTURERS ARE URGED TO COMMUNICATE WITH DEFENSE CLOTHING AND TEXTILE SUPPLY CENTER, 2800 SOUTH 20TH STREET, PHILADELPHIA 1, PENNSYLVANIA AND ARRANGE TO HAVE THE PRODUCTS THEY PROPOSE TO OFFER TESTED FOR QUALIFICATION.'

FOUR BIDS WERE RECEIVED, TWO OF WHICH, INCLUDING YOUR OWN, WERE REJECTED AS NONRESPONSIVE FOR FAILURE TO COMPLY WITH THE ABOVE QUALIFIED PRODUCTS REQUIREMENT, AND AWARD WAS MADE TO GEN TEX CORPORATION, WHOSE HELMET IS ON QUALIFIED PRODUCTS LIST (QPL) NO. 19366 3, AS THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER.

YOU PROTEST THIS AWARD ON THE GROUND THAT THE QUALIFIED PRODUCTS CLAUSE SHOULD NOT HAVE BEEN INCLUDED IN THE INVITATION SINCE, DUE TO NUMEROUS CHANGES IN THE SPECIFICATIONS, THE HELMET BEING PROCURED WAS NOT THE APH-5 HELMET IDENTIFIED IN THE QPL. YOU ALLEGE FURTHER THAT THE GOVERNMENT HAS PURCHASED MODIFIED APH-5 HELMETS IN THE PAST WITHOUT THE QUALIFIED PRODUCTS REQUIREMENT AND YOU ENCLOSE A COPY OF A LETTER DATED AUGUST 15, 1961, FROM THE DIRECTOR, NAVY SMALL BUSINESS PROGRAM, OFFICE OF NAVAL MATERIAL, INDICATING, WITH RESPECT TO A PARTICULAR PURCHASE OF 500 HELMETS BY THE NAVAL AIR MATERIAL CENTER (NAMC), PHILADELPHIA, THAT THE INVITATION FOR BIDS CONTAINED 10 EXCEPTIONS TO THE QPL STANDARDS AND THEREFORE WAS NOT CONSIDERED A QPL PROCUREMENT. YOU ALSO STATE THAT YOU WOULD HAVE SUBMITTED ADDITIONAL SAMPLES TO QUALIFY AS AN APH-5 SUPPLIER IF YOU HAD NOT BEEN ADVISED BY THE GOVERNMENT NOT TO CONTINUE WITH YOUR EFFORTS ON THAT HELMET, AND YOU REQUEST ADVICE AS TO WHETHER YOU CAN RECOVER AS DAMAGES YOUR COST OF BIDDING THE JOB.

THE PRIMARY REASON FOR CLASSIFYING THE APH-5 HELMET AS A QUALIFIED PRODUCT IS BECAUSE IT IS A ,LIFE OR LIMB" ITEM. IF PROPERLY CONSTRUCTED, IT IS ANTICIPATED THAT MANY LIVES WILL BE SAVED BY THE USE OF THIS ITEM. FIGURES ARE AVAILABLE IN A TEST REPORT BY THE UNITED STATES ARMY BOARD FOR AVIATION ACCIDENT RESEARCH, FORT RUCKER, ALABAMA, TO SUBSTANTIATE THE IMPORTANCE OF THIS ITEM. FOR EXAMPLE, 2,813 FLYING ACCIDENT REPORTS INDICATE THAT 991 OCCUPANTS WERE NOT WEARING HELMETS AT THE TIME OF THE ACCIDENT AND 202 RECEIVED HEAD INJURIES CLASSIFIED AS MAJOR, CRITICAL OR FATAL. FIFTY-EIGHT SUFFERED FATAL HEAD INJURIES, ACCOUNTING FOR OVER ONE- THIRD OF ALL FATALITIES. CONVERSELY, 265 OCCUPANTS WERE SAVED FROM HEAD INJURIES BECAUSE PROTECTIVE HELMETS WERE WORN. THE MAJORITY OF THESE "SAVES" OCCURRED AFTER OCTOBER 1959, THE ISSUE DATE OF THE APH-5 HELMET TO ARMY AVIATORS. THEREFORE, TO REQUIRE ANYTHING LESS THAN THE BEST QUALIFIED PRODUCT IN STRICT ACCORDANCE WITH THE REQUIREMENTS OF THE SPECIFICATION WOULD, IN EFFECT, JEOPARDIZE HUMAN LIVES.

THIS SAFETY FACTOR CLEARLY BRINGS THE PROCUREMENT WITHIN THE PROVISIONS OF PARAGRAPH 1-1103 (IV) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), WHICH AUTHORIZES THE USE OF A QUALIFICATION REQUIREMENT WHEN THE INTEREST OF THE GOVERNMENT REQUIRES ASSURANCE PRIOR TO AWARD THAT THE PRODUCT IS SATISFACTORY FOR ITS INTENDED USE. QUALIFICATION IS ALSO AUTHORIZED BY PARAGRAPH 1-1103 (III) OF ASPR WHEN THE COSTS OF REPETITIVE TESTING WOULD BE EXCESSIVE. THE COST OF FULLY TESTING ONE OF THE HELMETS HAS BEEN ESTIMATED TO BE IN THE NEIGHBORHOOD OF $2,300.

WITH REFERENCE TO YOUR ALLEGATION THAT THE INTERIM PURCHASE DESCRIPTION CONTAINED NUMEROUS CHANGES FROM SPECIFICATION MIL-H-19366 (WEP), THESE CHANGES IN NO WAY AFFECTED THE CONSTRUCTION OF THE APH-5 HELMET WHICH REMAINED THE REQUIRED ITEM. THEY MERELY CHANGED SUCH THINGS AS THE TYPE OF HEADSET TO BE PLACED INSIDE OF THE HELMET, THE TYPE OF MICROPHONE TO BE ATTACHED TO THE HELMET, AND A MODIFICATION OF THE BRACKET WHICH HOLDS THE MICROPHONE. THESE CHANGES WERE THOROUGHLY DISCUSSED WITH HIGHLY QUALIFIED TECHNICIANS AT THE QUARTERMASTER RESEARCH AND ENGINEERING COMMAND, NATICK, MASSACHUSETTS, WHO PREPARED THE PURCHASE DESCRIPTION AND WHO WORKED WITH NAVY TECHNICAL PERSONNEL IN ITS DEVELOPMENT, AND THEY HAVE ADVISED THE CONTRACTING OFFICER THAT THE ITEM BEING PROCURED UNDER INTERIM PURCHASE DESCRIPTION IP/DES S-19 2 IS FOR ALL PRACTICAL PURPOSES THE SAME ITEM AS UNDER MILITARY SPECIFICATION MIL-H-19366 (WEP).

THERE IS NO RECORD OF MODIFIED APH-5 HELMETS BEING PURCHASED WITHOUT THE QUALIFIED PRODUCTS REQUIREMENT, BUT IT DOES APPEAR THAT ON TWO PRIOR PROCUREMENTS FOR THE ARMY, THE NAVY PURCHASED A MODIFIED APH-5 HELMET AS A "QUALIFIED PRODUCT" UNDER PURCHASE DESCRIPTIONS PREPARED BY PERSONNEL AT THE QUARTERMASTER RESEARCH AND ENGINEERING COMMAND, NATICK, MASSACHUSETTS. THESE CONTRACTS WERE NOS. N-383 (MIS) 66584A, DATED AUGUST 2, 1960, AND N-383 (MIS) 57150A, DATED DECEMBER 3, 1958, AWARDED TO GEN TEX CORPORATION, CARBONDALE, PENNSYLVANIA, AND MINE SAFETY APPLIANCES COMPANY, PITTSBURGH, PENNSYLVANIA, RESPECTIVELY. WITH RESPECT TO THE PURCHASE OF 500 HELMETS REFERRED TO IN LETTER OF AUGUST 15, 1961, FROM THE DIRECTOR, NAVY SMALL BUSINESS PROGRAM, THE CONTRACTING OFFICER HAS CAREFULLY INVESTIGATED THE MATTER, BOTH AT NAMC, PHILADELPHIA, AND THE OFFICE OF NAVAL MATERIAL IN WASHINGTON, AND HAS BEEN ADVISED THAT THE PROCUREMENT IN QUESTION, ALTHOUGH CONTAINING THE 10 EXCEPTIONS REFERRED TO, WAS ACTUALLY PROCURED BY THE NAVY AS A QPL ITEM.

YOUR DECISION TO DISCONTINUE EFFORTS TO HAVE YOUR HELMET QUALIFIED AS AN APH-5 IS REGRETTED, PARTICULARLY IF IT WAS CAUSED OR CONTRIBUTED BY THE SUGGESTION IN LETTER OF NOVEMBER 1, 1961, FROM NAMC, PHILADELPHIA, THAT QUALIFICATION SAMPLES BE FABRICATED IN ACCORDANCE WITH THE LATEST SPECIFICATION FOR THE IMPROVED APH-6 HELMET TO BE PROCURED BY THE NAVY. THE RECORD INDICATES THAT THE SHELL OF THE TWO HELMETS IS THE SAME, BUT THAT THE APH-6 INCORPORATES A COMPLICATED ATTACHMENT WHICH WILL ACCOMMODATE THE OXYGEN MASK REQUIRED BY THE NAVY FOR VERY HIGH ALTITUDE FLYING. IT IS THE FUNCTION OF THE DEFENSE SUPPLY AGENCY (DSA), WHICH HAS ONLY BEEN IN EXISTENCE SINCE JANUARY 1, 1962, TO COORDINATE AND CONSOLIDATE PURCHASING FOR THE DEPARTMENT OF DEFENSE AND, WHERE POSSIBLE, TO STANDARDIZE THE ITEM TO BE PURCHASED, AND WE HAVE BEEN ADVISED BY DSA THAT STANDARDIZATION ON ONE HELMET FOR THE THREE SERVICES IS CURRENTLY UNDER CONSIDERATION. HOWEVER, UNTIL IT IS ACCOMPLISHED, THE APH-5 HELMET, WHICH IS CONSIDERED SATISFACTORY BY THE ARMY, WILL CONTINUE TO BE PURCHASED BY DSA FROM FIRMS QUALIFIED UNDER QPL NO. 19366-3, AND THE CONTRACTING OFFICER HAS STATED THAT YOU WERE BEING ADVISED, IN ORDER THAT YOU MIGHT PURSUE YOUR QUALIFICATION EFFORTS ON THE APH-5, IF YOU SO DESIRE.

WITH RESPECT TO YOUR RIGHT TO RECOVER YOUR COSTS IN BIDDING ON THE JOB, THE COURTS HAVE HELD MANY TIMES THAT THE LAWS GOVERNING THE ADVERTISING AND AWARD OF CONTRACTS WERE ENACTED SOLELY FOR THE BENEFIT AND PROTECTION OF THE GOVERNMENT AND NO BIDDER ACQUIRES ENFORCEABLE RIGHTS UNTIL THE VALID ACCEPTANCE OF HIS OFFER BY A PROPERLY AUTHORIZED REPRESENTATIVE OF THE GOVERNMENT. SEE PERKINS V. LUKENS STEEL CO., 310 U.S. 113; FRIEND V. LEE 221 F.2D 96; O-BRIEN V. CARNEY, 6 F.SUPP. 761.

FOR THE REASONS STATED WE CONCLUDE THAT THE PROCUREMENT WAS PROPERLY LIMITED TO HELMETS EITHER APPEARING ON QPL NO. 19366-3 OR HAVING QUALIFIED PRIOR TO BID OPENING, THAT THE HELMET BEING PROCURED WAS, FOR QUALIFICATION PURPOSES, THE SAME AS THE HELMET LISTED, AND THAT YOUR PROTEST MUST THEREFORE BE DENIED.