B-150427, FEB. 5, 1963

B-150427: Feb 5, 1963

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ESQUIRE: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 5. BIDS WERE OPENED ON NOVEMBER 16. ONLY TWO WERE RECEIVED: ONE FROM SCAICO AND THE OTHER FROM FENWAL. SCAICO WAS THE LOW BIDDER. THE SWITCHES OF BOTH FIRMS WERE THEN ON THE QUALIFIED PRODUCTS LIST. BECAUSE TEST REPORTS SUPPLIED BY FENWAL SHOWED THAT SCAICO WAS MANUFACTURING SWITCHES THAT COULD NOT QUALIFY FOR THE LIST. IT WAS DECIDED TO WITHHOLD AWARD UNDER THE SUBJECT INVITATION PENDING THE OUTCOME OF INDEPENDENT TESTING. FOUR SERIES OF TESTS WERE CONDUCTED BY UNITED TESTING LABORATORIES AND ONE SERIES BY AEROTEST LABORATORIES. A TOTAL OF 68 SCAICO SWITCHES WERE TESTED. SCAICO WAS NOTIFIED THAT EFFECTIVE ON THAT DATE ITS SWITCHES WERE REMOVED FROM THE QUALIFIED PRODUCTS LIST AND THAT.

B-150427, FEB. 5, 1963

TO THEODORE M. KOSTOS, ESQUIRE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 5, 1962, PROTESTING FOR SCAICO CONTROLS, INC., THE AWARD OF A CONTRACT TO FENWAL INCORPORATED UNDER IFB 33-604-62-234.

THE SUBJECT IFB ISSUED OCTOBER 16, 1961, SOLICITED BIDS FOR CERTAIN TYPE E-2 THERMOSTATIC SWITCHES WHICH HAD BEEN TESTED AND QUALIFIED FOR INCLUSION IN THE QUALIFIED PRODUCTS LIST. BIDS WERE OPENED ON NOVEMBER 16, 1961. ONLY TWO WERE RECEIVED: ONE FROM SCAICO AND THE OTHER FROM FENWAL. SCAICO WAS THE LOW BIDDER. THE SWITCHES OF BOTH FIRMS WERE THEN ON THE QUALIFIED PRODUCTS LIST. HOWEVER, BECAUSE TEST REPORTS SUPPLIED BY FENWAL SHOWED THAT SCAICO WAS MANUFACTURING SWITCHES THAT COULD NOT QUALIFY FOR THE LIST, SOME QUESTION AROSE AS TO WHETHER SIMILAR SWITCHES DELIVERED BY SCAICO UNDER CONTRACTS AF 33/604/-33797 AND AF 33/604/-35903 AWARDED ON MAY 10 AND AUGUST 9, 1961, RESPECTIVELY, MET THE QUALITY STANDARDS OF THE SPECIFICATION UNDER WHICH THE SWITCHES HAD BEEN QUALIFIED FOR INCLUSION IN THE QUALIFIED PRODUCTS LIST. IT WAS DECIDED TO WITHHOLD AWARD UNDER THE SUBJECT INVITATION PENDING THE OUTCOME OF INDEPENDENT TESTING.

TESTING OF SCAICO SWITCHES COMMENCED IN DECEMBER 1961 AND CONTINUED THROUGH JULY 1962. DURING THIS PERIOD. FOUR SERIES OF TESTS WERE CONDUCTED BY UNITED TESTING LABORATORIES AND ONE SERIES BY AEROTEST LABORATORIES. A TOTAL OF 68 SCAICO SWITCHES WERE TESTED. SIXTY-TWO FAILED TO MEET SPECIFICATIONS. ALTHOUGH THE SWITCHES TESTED REPRESENTED ONLY A SMALL SAMPLE SELECTED AT RANDOM FROM MANY THOUSANDS IN AIR FORCE INVENTORY, THE FAILURE RATE INDICATED THE POSSIBILITY THAT A MAJOR PORTION OF THOSE SUPPLIED BY SCAICO DID NOT MEET THE REQUIRED STANDARD. ON AUGUST 23, 1962, SCAICO WAS NOTIFIED THAT EFFECTIVE ON THAT DATE ITS SWITCHES WERE REMOVED FROM THE QUALIFIED PRODUCTS LIST AND THAT, IF IT DESIRED, IT MIGHT IMPROVE ITS PRODUCT AND INITIATE ACTION TO REQUALIFY FOR INCLUSION ON THE LIST. NO ACTION WAS TAKEN BY SCAICO TO REQUALIFY.

THE CONTRACTING OFFICER DETERMINED THAT SCAICO WAS NOT A RESPONSIBLE BIDDER FOR THE IMMEDIATE PROCUREMENT BECAUSE THE ITEM MANUFACTURED BY IT HAD BEEN REMOVED FROM THE QUALIFIED PRODUCTS LIST AND THE ITEMS SUPPLIED BY IT UNDER THE TWO PREVIOUS CONTRACTS DID NOT MEET SPECIFICATION REQUIREMENTS. SCAICO'S BID WAS THEREFORE REJECTED.

SAMPLES OF FENWAL'S SWITCHES WERE TESTED ALSO. AS A RESULT OF TESTING BY UNITED TESTING LABORATORIES, FENWAL WAS NOTIFIED ON JULY 18, 1962, THAT CONSIDERATION WAS BEING GIVEN TO REMOVING ITS SWITCHES FROM THE QUALIFIED PRODUCTS LIST. HOWEVER, AS A RESULT OF SUBSEQUENT SATISFACTORY TESTS PERFORMED AT FENWAL'S QUALITY CONTROL LABORATORY IN THE PRESENCE OF AIR FORCE PERSONNEL, IT WAS DETERMINED ON AUGUST 23, 1962, THAT THE FENWAL SWITCH WOULD CONTINUE TO REMAIN ON THE LIST. AWARD UNDER THE SUBJECT INVITATION WAS MADE TO FENWAL ON SEPTEMBER 27, 1962.

IN VIEW OF THE QUESTION AT THE TIME BIDS WERE OPENED AS TO WHETHER THE QUALITY OF SCAICO'S SWITCHES WAS UP TO QUALIFICATION STANDARD, IT SEEMS THAT THE CONTRACTING AGENCY WAS JUSTIFIED IN WITHHOLDING AWARD UNTIL AN INVESTIGATION COULD BE MADE AND A DECISION REACHED. AS THE PROCUREMENT WAS RESTRICTED TO SWITCHES ON THE QUALIFIED PRODUCTS LIST AND AS SCAICO'S SWITCHES DID NOT SO QUALIFY AT THE TIME OF AWARD, THE FAILURE TO AWARD THE CONTRACT TO THAT FIRM DOES NOT APPEAR TO BE LEGALLY OBJECTIONABLE. FURTHER, THE AWARD TO FENWAL DOES NOT APPEAR IMPROPER INASMUCH AS ITS