B-156326, JUL. 14, 1965

B-156326: Jul 14, 1965

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ESQ.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 12. THE SUBJECT INVITATION FOR BIDS WAS ISSUED DECEMBER 28. THE BIDS WERE OPENED ON JANUARY 27. WAS ADVISED THAT THERE WAS NO QPL FOR THE ITEM. A QPL WAS PUBLISHED BUT THIS INFORMATION WAS NOT RELAYED TO THE BUYER. BIDS WERE REQUESTED FOR FURNISHING 353 LIQUID OXYGEN INDICATOR SETS IN ACCORDANCE WITH SPECIFICATION MIL-I-26382A/USAF). TWENTY-NINE SOURCES WERE SOLICITED AND FIVE BIDS WERE RECEIVED AS FOLLOWS: CHART. 072.79 (BID "A") ELECTROSPACE WAS THE LOW BIDDER. WAS NOT ON THE QPL AT THE TIME OF BID OPENING. THIRD AND FOURTH LOW BIDDERS ARE ON THE QPL. AUTHORITY WAS REQUESTED TO CANCEL THE INVITATION AND READVERTISE UNDER QPL TERMS AND CONDITIONS.

B-156326, JUL. 14, 1965

TO SCOTT G. RIGBY, ESQ.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 12, 1965, CONCERNING THE PROTEST OF THE ELECTROSPACE CORPORATION IN CONNECTION WITH INVITATION FOR BIDS (IFB) NO. 33-657-65-191, ISSUED BY THE AERONAUTICAL SYSTEMS DIVISION (ASD), AIR FORCE SYSTEMS COMMAND, WRIGHT PATTERSON AIR FORCE BASE, OHIO.

THE SUBJECT INVITATION FOR BIDS WAS ISSUED DECEMBER 28, 1964, AND THE BIDS WERE OPENED ON JANUARY 27, 1965. ON OR ABOUT DECEMBER 8, 1964, THE BUYER INQUIRED OF THE COGNIZANT ENGINEERING ACTIVITY AS TO WHETHER OR NOT A QUALIFIED PRODUCTS LIST (QPL) HAD BEEN ESTABLISHED FOR THIS ITEM. WAS ADVISED THAT THERE WAS NO QPL FOR THE ITEM. SUBSEQUENTLY, ON DECEMBER 17, A QPL WAS PUBLISHED BUT THIS INFORMATION WAS NOT RELAYED TO THE BUYER.

BIDS WERE REQUESTED FOR FURNISHING 353 LIQUID OXYGEN INDICATOR SETS IN ACCORDANCE WITH SPECIFICATION MIL-I-26382A/USAF), DATED DECEMBER 9, 1963, UNDER BID "A" (PRE-PRODUCTION SAMPLE APPROVAL REQUIRED), OR BID "B" (PRE- PRODUCTION SAMPLE APPROVAL NOT REQUIRED). TWENTY-NINE SOURCES WERE SOLICITED AND FIVE BIDS WERE RECEIVED AS FOLLOWS:

CHART.

ELECTROSPACE CORPORATION $147,671.00 (BID "A")

SIMMONDS PRECISION PRODUCTS, INC. 154,349.40 (BID "B")

CONSOLIDATED AIRBORNE SYSTEMS, INC. 158,073.40 (BID "B")

PENN METER COMPANY 158,144.00 (BID "B")

MAC-TRON CORPORATION 176,072.79 (BID "A")

ELECTROSPACE WAS THE LOW BIDDER, BUT WAS NOT ON THE QPL AT THE TIME OF BID OPENING. THE SECOND, THIRD AND FOURTH LOW BIDDERS ARE ON THE QPL.

AFTER BID OPENING, THE BUYER LEARNED THAT THE REFERENCED INDICATOR HAD BEEN ESTABLISHED AS A QPL ITEM ON DECEMBER 17, 1964, AND SINCE THE PROCUREMENT HAD NOT BEEN ADVERTISED AS SUCH, AUTHORITY WAS REQUESTED TO CANCEL THE INVITATION AND READVERTISE UNDER QPL TERMS AND CONDITIONS. THIS WAS GRANTED BY THE CHIEF, PROCUREMENT AND PRODUCTION OFFICE, HEADQUARTERS ASD, ON FEBRUARY 25, 1965.

IN PROTESTING THE PROPOSED CANCELLATION OF THE IFB, ELECTROSPACE CONTENDED THAT AWARD TO ANY OTHER BIDDER WOULD BE CONTRARY TO 10 U.S.C. 2305 (C), REQUIRING AWARD TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND IS THE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED. IT IS CONTENDED, FURTHER, THAT THE PREPRODUCTION SAMPLE REQUIREMENT IN THE IFB IS EQUAL TO THE QPL TECHNIQUE IN QUALITY ASSURANCE, THEREBY FURNISHING AMPLE PROTECTION TO THE AIR FORCE, AND THAT CANCELLATION FOR LACK OF QUALITY ASSURANCE WOULD THEREFORE BE BASED ON A MATTER OF FORM RATHER THAN SUBSTANCE.

WE RECOGNIZE THAT THE REJECTION OF ALL BIDS AFTER OPENING SHOULD BE ACCOMPLISHED ONLY FOR THE MOST COGENT REASONS, SINCE PUBLIC EXPOSURE OF BIDS VIOLATES THE INTEGRITY OF THE BIDDING SYSTEM. IT IS ALSO TRUE, HOWEVER, THAT BEFORE AWARD MAY BE MADE TO THE "RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION," IN ACCORDANCE WITH 10 U.S.C. 2305 (C), IT MUST FIRST BE ESTABLISHED THAT THE INVITATION IS NOT MATERIALLY DEFECTIVE. IN THIS CONNECTION, IT IS PROVIDED IN SECTION 1 1107.1 (A) OF THE ARMED SERVICES PROCUREMENT REGULATION THAT "WHENEVER QUALIFIED PRODUCTS ARE TO BE PROCURED, ONLY BIDS OR PROPOSALS OFFERING PRODUCTS WHICH HAVE BEEN QUALIFIED PRIOR TO THE OPENING OF BIDS OR THE AWARD OF NEGOTIATED CONTRACTS SHALL BE CONSIDERED IN MAKING AN AWARD.'

ALTHOUGH QPL PROCUREMENTS MAY SOMETIMES BE RESTRICTIVE OF COMPETITION, THEY ARE CONSIDERED BY THIS OFFICE TO BE PROPER WHEN JUSTIFIED BY THE CIRCUMSTANCES AND THE NATURE OF THE ITEM BEING PROCURED. SEE 36 COMP. GEN. 809.

THE REGULATION QUOTED ABOVE IS STATUTORY IN NATURE, HAVING BEEN PROMULGATED PURSUANT TO 10 U.S.C. 2202. AS SUCH IT HAS THE FORCE AND EFFECT OF LAW, AND CONSTITUTES NOTICE OF A LIMITATION ON THE MANNER IN WHICH A CONTRACTING OFFICER MAY VALIDLY SOLICIT BIDS AND AWARD CONTRACTS. IN VIEW THEREOF, AND SINCE THE REGULATION IS DESIGNED IN PART TO PUT ALL BIDDERS ON AN EQUAL FOOTING AND TO PERMIT THE SOLICITATION AND EVALUATION OF BIDS ON THE SAME BASIS, WE WOULD NOT BE JUSTIFIED IN QUESTIONING THE ACTION OF THE ADMINISTRATIVE OFFICE IN CANCELLING THE INVITATION AND READVERTISING UNDER QPL PROCEDURES.