B-155524, JAN. 14, 1965

B-155524, JAN. 14, 1965

TO THE HONORABLE, THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO LETTER AFSPPCA OF NOVEMBER 30, 1964, FROM THE CHIEF, PROCUREMENT OPERATIONS DIVISION, DIRECTORATE, PROCUREMENT POLICY, DEPUTY CHIEF OF STAFF, SYSTEMS AND LOGISTICS, REPORTING ON THE PROTEST BY R. E. WHITE AND ASSOCIATES, INC., AGAINST THE REJECTION OF ITS PROPOSAL UNDER REQUEST FOR PROPOSALS 36-600-65-5054.

IT IS REPORTED THAT THE PROTESTANT'S PROPOSAL WAS REJECTED AS NONRESPONSIVE BECAUSE INFORMATION FURNISHED UNDER SCHEDULE PROVISION "S" WAS SO INADEQUATE THAT THE AGENCY COULD NOT DETERMINE THE CONDITION, AGE, USEFULNESS AND SAFETY OF THE UNITS THE PROPONENT INTENDED TO FURNISH. SCHEDULE PROVISION "S" STATED:

"/A) IN THE EVENT THE PROPOSAL IS BASED ON FURNISHING ITEMS OR COMPONENTS WHICH ARE FORMER GOVERNMENT SURPLUS PROPERTY OR RESIDUAL INVENTORY RESULTING FROM TERMINATED GOVERNMENT CONTRACTS, COMPLETE DESCRIPTION OF THE ITEMS OR COMPONENTS, QUALITY TO BE USED, NAME OF GOVERNMENT AGENCY FROM WHICH ACQUIRED, AND DATE OF ACQUISITION SHALL BE SET FORTH BELOW: * *

IN THE SPACE PROVIDED IN PROVISION "S" THE PROPONENT INSERTED:

"ITEMS ARE CONSIDERED TO BE FORMER GOVERNMENT SURPLUS PROPERTY IN NEW CONDITION. OUR PROPOSAL INCLUDES FUNCTIONAL TESTS AND INSPECTION BY QUALIFIED SUBCONTRACTORS UNDER COGNIZANT GOVERNMENT QAR-S. THESE ITEMS WERE NOT ACQUIRED FROM ANY GOVERNMENT AGENCY. BIDDER WILL ACCEPT INCLUSION OF SPECIAL INSPECTION CLAUSE.'

SCHEDULE PROVISION "R," INSOFAR AS PERTINENT, STATES THAT:

"* * * THE CONTRACTOR REPRESENTS THAT THE SUPPLIES AND COMPONENTS INCLUDING ANY FORMER GOVERNMENT PROPERTY IDENTIFIED IN THE "GOVERNMENT SURPLUS" CLAUSE OF THIS CONTRACT (SCHEDULE PROVISION "S") TO BE PROVIDED UNDER THIS CONTRACT ARE NEW (NOT USED OR RECONDITIONED, AND NOT OF SUCH AGE OR SO DETERIORATED AS TO IMPAIR THEIR USEFULNESS OR SAFETY.) * * *"

THE PROPONENT REPRESENTED IN SCHEDULE PROVISION "S" THAT THE ITEMS WERE NEW. UNDER THE REPRESENTATION IN SCHEDULE PROVISION "R" WITH RESPECT TO WHAT IS "NEW," THE PROPONENT CERTIFIED THAT THE ITEMS WERE NOT USED OR RECONDITIONED AND NOT OF SUCH AGE OR SO DETERIORATED AS TO IMPAIR THEIR USEFULNESS OF SAFETY. MOREOVER, SCHEDULE PROVISION "S," IN ADDITION TO THE MATERIAL QUOTED ABOVE, STATES THAT THE ITEMS MUST COMPLY WITH THE SPECIFICATION IN ALL RESPECTS DESPITE ANY INFORMATION PROVIDED BY THE PROPONENT IN PROVISION "S.'

THEREFORE, IT SEEMS APPARENT THAT IF ANY AWARD HAD BEEN MADE TO THE PROPONENT IT WOULD HAVE BEEN OBLIGATED TO FURNISH PROPERTY MEETING THE STANDARD FOR "NEW" SET OUT IN THE SCHEDULE DESPITE THE DATA IT MAY OR MAY NOT HAVE FURNISHED IN PROVISION "S.' IT FOLLOWS, THEN, THAT THE PROPONENT SHOULD NOT HAVE BEEN PENALIZED FOR THE INFORMATION OR LACK THEREOF IN PROVISION "S" OF ITS PROPOSAL.

SINCE IT IS OUR UNDERSTANDING THAT THE CONTRACT WHICH WAS AWARDED HAS PROGRESSED SUBSTANTIALLY, WE WILL NOT SUGGEST ANY FURTHER ACTION IN THE MATTER AT THIS TIME.