B-149069, AUG. 1, 1962

B-149069: Aug 1, 1962

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SEVEN BIDS WERE RECEIVED AND OPENED APRIL 16. THE BID ABSTRACT BEAR THE FOLLOWING NOTE: "NOTE: THE LOWER BID OF MATHEWS SIGN AND DISPLAY COMPANY WAS NOT CONSIDERED FOR AWARD BECAUSE PARAGRAPH 3.1 OF MILITARY SPECIFICATION MIL-F -8799A UNDER WHICH THIS MATERIAL WAS ADVERTISED STATES THAT THE FILM FURNISHED SHALL BE A PRODUCT WHICH HAS BEEN TESTED AND HAS PASSED THE QUALIFICATION TESTS AND HAS BEEN LISTED ON THE APPROVED QUALIFIED PRODUCTS LIST. THIS FIRM IS NOT ON THE APPROVED QPL AND THEIR BID IS CONSIDERED AS NONRESPONSIVE.'. AWARD WAS THEREFORE MADE TO YANKEE AS THE LOWEST RESPONSIVE BIDDER UNDER THE INVITATION. PARAGRAPH 1 1.1101 OF THE FEDERAL PROCUREMENT REGULATIONS ROVIDES: "/A) WHENEVER PROCUREMENT OF QUALIFIED PRODUCTS IS TO BE MADE.

B-149069, AUG. 1, 1962

TO THE POSTMASTER GENERAL:

BY LETTER DATED JUNE 19, 1962, THE DIRECTOR, PROCUREMENT DIVISION, SUBMITTED THE FILE PERTINENT TO THE PROTEST OF THE MATHEWS SIGN AND DISPLAY CO. AGAINST THE AWARD MADE UNDER INVITATION FOR BIDS NO. 128, ISSUED ON MARCH 26, 1962, FOR A QUANTITY OF PRESSURE SENSITIVE SIGNS FOR MAIL BOXES.

THE INVITATION REQUESTED BIDS FOR PRESSURE SENSITIVE SIGNS OF TYPE II, WHITE ELASTOMERIC FILM, IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-F- 8799A/ASG), REVISED JUNE 13, 1961. SEVEN BIDS WERE RECEIVED AND OPENED APRIL 16, 1962, AND TAKING DISCOUNTS INTO CONSIDERATION, MATHEWS SUBMITTED THE LOWEST NET BID ON FASCAL 800 WHITE FILM IN THE AMOUNT OF $38,808, AND YANKEE ARTISTS, INC., SUBMITTED THE NEXT LOWEST BID IN THE AMOUNT OF $39,004. THE BID ABSTRACT BEAR THE FOLLOWING NOTE:

"NOTE: THE LOWER BID OF MATHEWS SIGN AND DISPLAY COMPANY WAS NOT CONSIDERED FOR AWARD BECAUSE PARAGRAPH 3.1 OF MILITARY SPECIFICATION MIL-F -8799A UNDER WHICH THIS MATERIAL WAS ADVERTISED STATES THAT THE FILM FURNISHED SHALL BE A PRODUCT WHICH HAS BEEN TESTED AND HAS PASSED THE QUALIFICATION TESTS AND HAS BEEN LISTED ON THE APPROVED QUALIFIED PRODUCTS LIST. THIS FIRM IS NOT ON THE APPROVED QPL AND THEIR BID IS CONSIDERED AS NONRESPONSIVE.'

AWARD WAS THEREFORE MADE TO YANKEE AS THE LOWEST RESPONSIVE BIDDER UNDER THE INVITATION. WE ASSUME THAT YANKEE OFFERED THE PRODUCT WHICH HAD BEEN QUALIFIED UNDER MIL-F-6799A/ASG).

IN OUR DECISION AT 36 COMP. GEN. 809, WE FOUND THE QUALIFIED PRODUCTS METHOD OF PROCUREMENT TO BE LEGAL. WE NOTED, HOWEVER, AT 38 COMP. GEN. 375, THAT APPLICABLE REGULATIONS SHOULD PROVIDE SPECIFICALLY FOR PUBLICATION SUFFICIENTLY IN ADVANCE OF THE ISSUANCE OF AN INVITATION TO PERMIT INTERESTED BIDDERS TO QUALIFY. PARAGRAPH 1 1.1101 OF THE FEDERAL PROCUREMENT REGULATIONS ROVIDES:

"/A) WHENEVER PROCUREMENT OF QUALIFIED PRODUCTS IS TO BE MADE, ONLY BIDS OR PROPOSALS OFFERING PRODUCTS WHICH HAVE BEEN QUALIFIED PRIOR TO THE OPENING OF ADVERTISED BIDS OR THE AWARD OF NEGOTIATED CONTRACTS SHALL BE CONSIDERED IN MAKING AN AWARD. MANUFACTURERS HAVING PRODUCTS WHICH HAVE BEEN QUALIFIED BUT WHICH ARE NOT YET INCLUDED ON THE QUALIFIED PRODUCTS LIST INVOLVED, SHOULD BE GIVEN CONSIDERATION AND AN OPPORTUNITY TO OFFER EVIDENCE OF SUCH QUALIFICATION IN THE TIME INTERVAL BEFORE AWARD MUST BE MADE. (OTHER INSTRUCTIONS CONCERNING ESTABLISHMENT OF QUALIFIED PRODUCTS LISTS, QUALIFICATION OF PRODUCTS, ETC., ARE CONTAINED IN GENERAL SERVICES ADMINISTRATION REGULATION 1-VI, PART 2.)

"/B) WHENEVER PROCUREMENT OF QUALIFIED PRODUCTS IS TO BE MADE BY FORMAL ADVERTISING, THE FOLLOWING PROVISION SHALL BE INSERTED IN INVITATIONS FOR BIDS:

"QUALIFIED PRODUCTS

"WITH RESPECT TO PRODUCTS DESCRIBED IN THIS INVITATION AS REQUIRING QUALIFICATIONS, 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 IN THE QUALIFIED PRODUCTS LIST IDENTIFIED BELOW. MANUFACTURERS WHO WISH TO HAVE A PRODUCT TESTED FOR QUALIFICATION ARE HAVING PRODUCTS NOT YET LISTED, BUT WHICH HAVE BEEN QUALIFIED, ARE SO THAT THEY MAY BE GIVEN CONSIDERATION.

"/IDENTIFY THE QUALIFIED PRODUCTS LIST INVOLVED AND GIVE THE NAME AND ADDRESS OF THE OFFICE WITH WHICH MANUFACTURERS SHOULD COMMUNICATE.)"

AS WILL BE NOTED, THE PRESENT REGULATION REQUIRES, IN ADDITION, NOTIFICATION IN THE INVITATION OF THE QUALIFIED PRODUCT REQUIREMENT. OUR OPINION, A BARE INDIRECT REFERENCE IN AN INVITATION TO A MILITARY SPECIFICATION CONTAINING THEREIN A QUALIFIED PRODUCT REQUIREMENT SHOULD NOT BE REGARDED AS AN ACCEPTABLE SUBSTITUTE FOR THE REQUIREMENTS IMPOSED BY THE QUOTED REGULATION. WE BELIEVE SUCH A FAILURE TO PROPERLY APPRISE ALL INTERESTED BIDDERS OF A REQUIREMENT WHICH, IF NOT MET, WOULD CAUSE REJECTION OF THEIR BIDS IS NOT CONSISTENT WITH THE FREE AND OPEN COMPETITION ENVISAGED BY THE PROCUREMENT STATUTE. WHILE WE ARE NOT DISPOSED AT THIS LATE DATE TO QUESTION THE AWARD MADE TO YANKEE, WE DO FEEL THAT CORRECTIVE ACTION SHOULD BE TAKEN TO PREVENT A RECURRENCE OF THIS SITUATION. WE ARE PLEASED TO NOTE THAT YOUR DEPARTMENT IS NOW REVISING THE REQUIREMENTS FOR SIGNS WHICH WILL ULTIMATELY PROVIDE YOUR DEPARTMENT WITH A SUITABLE AND MORE REALISTIC SPECIFICATION FOR ELASTOMERIC FILM RATHER THAN THE PRESENT MILITARY SPECIFICATION WHICH HAS