B-156620, AUG. 11, 1965, 45 COMP. GEN. 71

B-156620, AUG. 11, 1965, 45 COMP. GEN. 71

CONTRACTS - SPECIFICATIONS - SAMPLES - PREPRODUCTION SAMPLE REQUIREMENT WAIVER THE WAIVER AFTER BID OPENING AND PRIOR TO AWARD OF PRODUCT APPROVAL BASED ON PREPRODUCTION TEST REPORTS, SAMPLES, AND ACCEPTANCE TESTING, AWARD RESTRICTED TO BIDDERS WHOSE PRODUCTS HAD BEEN PREVIOUSLY APPROVED, AND THE AWARD TO THE LOW BIDDER WHO PROTESTED THE INCLUSION OF THE REQUIREMENT AFTER BID REJECTION WAS IMPROPER, THE PROCURING AGENCY ERRONEOUSLY RELYING ON PARAGRAPH 2-202.4 OF THE ARMED SERVICES PROCUREMENT REGULATION, THE INVITATION REQUIREMENT FOR PRIOR APPROVAL OF BIDDER PRODUCT NOT RESEMBLING THE BID SAMPLE REQUIREMENT OF THE PARAGRAPH TO SHOW THE CHARACTERISTICS OF A PRODUCT, AND ON THE BASIS OF THE PUBLISHED NOTIFICATION THAT AWARD WOULD BE RESTRICTED TO BIDDERS OFFERING A QUALIFIED PRODUCT, THE PREPRODUCTION TEST REQUIREMENT OF THE INVITATION MAY BE LIKENED TO THE QUALIFIED PRODUCTS PROCEDURE PRESCRIBED BY PARAGRAPH 1-1101, AND THE PREQUALIFICATION PROVISION OF THE INVITATION GOING TO THE ESSENCE OF THE PROCUREMENT, THE AWARD, PREJUDICIAL TO THE OTHER BIDDERS, NOTWITHSTANDING PREPRODUCTION TEST WAIVER FOR THEM, SHOULD NOT HAVE BEEN MADE; HOWEVER, IN VIEW OF THE URGENT NEED FOR THE PROCUREMENT, DELIVERY WILL NOT BE DISRUPTED.

TO THE SECRETARY OF THE ARMY, AUGUST 11, 1965:

BY LETTER DATED JUNE 14, 1965, THE DIRECTOR OF PROCUREMENT AND PRODUCTION, UNITED STATES ARMY MATERIEL COMMAND, FURNISHED A REPORT ON THE PROTEST OF THE ASTRONAUTICS CORPORATION OF AMERICAN AGAINST THE AWARD OF A CONTRACT TO CONSOLIDATED AIRBORNE SYSTEMS, INC., UNDER INVITATION FOR BIDS NO. AMC/Y/23-204-65-171.

THE INVITATION DATED JANUARY 13, 1965, REQUESTED BIDS ON A QUANTITY OF ATTITUDE INDICATORS IN ACCORDANCE WITH IROQUOIS PROCUREMENT PACKAGE NO. IND-A5-UH-1 DATED OCTOBER 6, 1964. PAGES 3 AND 4 OF THE INVITATION PROVIDED, IN PERTINENT PART UNDER THE CAPTION "PREPRODUCTION TEST QUIREMENTS," AS FOLLOWS:

A. CONSIDERATION FOR AWARD OF A CONTRACT WILL BE GIVEN ONLY TO FIRMS WHOSE PRODUCT HAS BEEN APPROVED BY THE PROCURING AGENCY PRIOR TO AWARD. APPROVAL SHALL BE BASED ON TEST REPORTS OF PREPRODUCTION TESTS PERFORMED IN ACCORDANCE WITH PARAGRAPH 4.4.2 OF PROCUREMENT PACKAGES IND-A5-UH-1, DATED 6 OCTOBER 1964, AND SUBMITTED TO THE CONTRACTING OFFICER ON OR BEFORE THE TIME SET FOR BID OPENING.

B. THE TESTS DESCRIBED ABOVE MAY BE CONDUCTED BY THE BIDDER AT THE BIDDER'S PLANT, OR AT A GOVERNMENT APPROVED TESTING LABORATORY, AND UNDER THE SURVEILLANCE OF GOVERNMENT QUALITY CONTROL PERSONNEL.

C. IT IS UNDERSTOOD THAT THE INDICATOR SUPPLIED UNDER THE CONTRACT WILL BE IDENTICAL WITH THE CORRESPONDING PREPRODUCTION SAMPLE/S) IN DESIGN, CONSTRUCTION, QUALITY, MATERIAL, WORKMANSHIP, AND METHOD OF MANUFACTURE. APPROVAL OF PREPRODUCTION SAMPLE/S) DOES NOT PRECLUDE THE REQUIREMENTS OF ACCEPTANCE TESTING.

D. TWO (2) COPIES OF THE TEST REPORT SHALL BE FORWARDED TO U.S. ARMY AVIATION MATERIEL COMMAND, DIRECTORATE OF PROCUREMENT AND PRODUCTION, 12TH AND SPRUCE STREETS, ST. LOUIS, MISSOURI 63102, ATTN: SMOSM-PACB 2, OR MAY BE SUBMITTED WITH THE BID.

E. THE BIDDER SHALL MAKE AVAILABLE TO THE GOVERNMENT QUALITY CONTROL REPRESENTATIVE AT THE BIDDER'S FACILITY THREE (3) INSTRUMENTS TO BE USED AS PREPRODUCTION SAMPLES FOR TESTING IN ACCORDANCE WITH PARAGRAPH 4.4 OF PROCUREMENT PACKAGE IND-A5-UH-1. * * *

F. AT LEAST TEN (10) DAYS PRIOR TO COMPLETION OF THE PREPRODUCTION SAMPLE/S) THE CONTRACTOR SHALL NOTIFY THE CONTRACTING OFFICER, THE COGNIZANT GOVERNMENT REPRESENTATIVE, AND U.S. ARMY AVIATION MATERIEL COMMAND, ATTN: SMOSM-LV, AS TO THE DATE OF AVAILABILITY OF THE PREPRODUCTION SAMPLE/S) FOR INSPECTION AND/OR TEST.

G. PRIOR TO SUBMITTING THE PREPRODUCTION SAMPLE/S) TO THE GOVERNMENT FOR WITNESSING OF THE INSPECTION AND/OR TESTS, BIDDER SHALL HAVE:

(1) COMPLETELY FABRICATED THE ARTICLE (AND COMPONENTS THEREOF, IF APPLICABLE) AT THE SAME FACILITIES AND BY THE SAME PROCESSES WHICH ARE TO BE USED TO PRODUCE THE ITEM UNDER THE CONTRACT.

(2) PREPARED COMPLETE INSPECTION INSTRUCTIONS FOR ALL DIMENSIONS, PROCESSES, NONDESTRUCTIVE TESTS, AND CHEMICAL AND PHYSICAL TEST REPORT REQUIREMENTS.

(3) INSPECTED AND TESTED (NONDESTRUCTIVE) THE ITEM IN ACCORDANCE WITH SPECIFICATION REQUIREMENTS.

(4) PRESENTED TO THE GOVERNMENT REPRESENTATIVE A COPY OF THE COMPLETED INSPECTION RECORD OF ALL INSPECTIONS AND/OR TESTS REQUIRED BY THE SPECIFICATIONS. THIS INSPECTION RECORD SHALL BE CERTIFIED BY AN AUTHORITY (COMMITTING OFFICIAL) OF THE BIDDER'S FIRM THAT THE ARTICLE HAS BEEN PRODUCED AND INSPECTED AS REQUIRED AND MEETS ALL DRAWING AND SPECIFICATION REQUIREMENTS.

(5) MADE ALL PREPARATIONS FOR THE INSPECTION ON DATE OF DELIVERY AND ASSURED THAT NECESSARY EQUIPMENT IS READILY AVAILABLE.

H. THE PREPRODUCTION SAMPLE/S) UPON ACCEPTANCE BY THE GOVERNMENT SHALL BE RETAINED BY THE BIDDER FOR INSPECTION-COMPARISON PURPOSES UNTIL COMPLETION OF THE PRODUCTION RUN.

PREVIOUS TO THE BID OPENING DATE OF MARCH 29, 1965, CONSOLIDATED SUBMITTED TECHNICAL MANUALS, A QUALIFICATION TEST REPORT, AND A SAMPLE OF ITS INDICATOR PART NO. DST-29-1 IN SUPPORT OF A REQUEST FOR WAIVER OF THE PREPRODUCTION TESTS ON THE BASIS OF THE SIMILARITY OF ITS PRODUCT TO THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS. BY LETTER DATED MARCH 22, 1965, THE CONTRACTING OFFICER ADVISED CONSOLIDATED THAT:

AN ENGINEERING REVIEW INDICATES THAT YOUR TECHNICAL MANUAL FOR A LIQUID OXYGEN INDICATOR, AND YOUR TECHNICAL MANUAL AND OVERHAUL INSTRUCTIONS WITH PARTS BREAKDOWN FOR A THERMOCOUPLE TEMPERATURE INDICATOR, DO NOT CONTAIN SUFFICIENT INFORMATION TO INDICATE THAT YOUR PRODUCT MEETS THE SPECIFICATION FOR THE INDICATOR, ATTITUDE, REMOTE.

THE PREPRODUCTION TESTS AND SUBMISSION OF TEST REPORTS ARE THEREFORE REQUIRED UNLESS YOU CAN FURNISH QUALIFICATION TEST REPORTS (WHICH HAVE BEEN ACCEPTED EITHER BY THE ARMY, AIR FORCE OR NAVY) OF YOUR INDICATOR, ATTITUDE, REMOTE, IND-A5-UH-1, WHICH PROVE THAT SUCH INDICATOR MEETS THE REQUIREMENTS OF THE SPECIFICATION CONTAINED IN THE BID PACKAGE.

THREE OTHER PROSPECTIVE BIDDERS--- LEAR SIEGLER, INC., ASTRONAUTICS AND SPERRY PHOENIX COMPANY--- REQUESTED AND WERE GRANTED, PRIOR TO BID OPENING, WAIVERS OF PREPRODUCTION TESTS BASED UPON QUALIFICATION TEST REPORTS OF SIMILAR INDICATORS. HOWEVER, THE REQUIREMENT FOR PRODUCT APPROVAL WAS NOT WAIVED; RATHER, THESE THREE BIDDERS WERE ADVISED THAT THEIR PRODUCTS WERE ACCEPTABLE WITHOUT THE NECESSITY OF TESTING PRIOR TO BID OPENING.

FOUR BIDS WERE RECEIVED AND OPENING ON MARCH 29, 1965, WITH THE RESULT THAT CONSOLIDATED APPEARED TO BE THE LOW BIDDER FOLLOWED BY ASTRONAUTICS. HOWEVER, CONSOLIDATED FAILED ENTIRELY TO COMPLY WITH THE PREPRODUCTION TEST REQUIREMENTS, QUOTED ABOVE, AND WAS THEREFORE INITIALLY CONSIDERED TO BE NONRESPONSIVE. ON MARCH 31, 1965, CONSOLIDATED ADVISED THE PROCUREMENT ACTIVITY:

WE FORMALLY PROTEST THE INCLUSION OF THE REQUIREMENT FOR SUBMISSION OF BID SAMPLES AS A PRE-AWARD REQUIREMENT.

THE ABOVE REQUIREMENT IS IN CONFLICT WITH PARAGRAPH 2-202.4 OF ASPR.

THE APPLICABLE SPECIFICATION ADEQUATELY DESCRIBES ALL CHARACTERISTICS OF THE PRODUCT TO BE FURNISHED.

WAIVER OF THE BID SAMPLES REQUIREMENT OF THE SUBJECT SOLICITATION IS REQUESTED.

AFTER A REVIEW OF THE INVITATION PROVISIONS IN THE LIGHT OF THE SPECIFICATIONS, IT WAS ADMINISTRATIVELY DETERMINED THAT THE INVITATION REQUIREMENT FOR APPROVAL OF THE PRODUCT OF THE BIDDER BASED UPON TEST REPORTS CONSTITUTED AN UNNECESSARY BID SAMPLE REQUIREMENT WHOSE ONLY VALID PURPOSE WAS TO DETERMINE THE RESPONSIBILITY OF THE BIDDER. IN ARRIVING AT THIS DETERMINATION THAT THE PROTEST OF CONSOLIDATED WAS VALID, THE PROCUREMENT AGENCY RELIED UPON THE FOLLOWING FACTORS:

1. TECHNICAL PERSONNEL WHO DRAFTED THE SPECIFICATIONS DID NOT CONSIDER THE PROVISION FOR PRIOR PRODUCT APPROVAL NECESSARY;

2. THE PRODUCT APPROVAL REQUIREMENT WAS IMPOSED OUT OF CONSIDERATIONS SURROUNDING THE DELIVERY SCHEDULE;

3. THE PRODUCT APPROVAL REQUIREMENT DUPLICATED THE PREPRODUCTION PROVISIONS OF THE SPECIFICATIONS AND, IN VIEW OF THE ABSENCE OF TECHNICAL CONSIDERATIONS SUPPORTING ITS INCLUSION, WAS VIOLATIVE OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-202.4 (A) AND DECISIONS OF OUR OFFICE TO THE EFFECT THAT BID SAMPLES MAY BE USED IN EXCEPTIONAL CASES AND ONLY WHERE AN ADEQUATE ITEM DESCRIPTION WAS NOT POSSIBLE; AND

4. THE PRODUCT APPROVAL REQUIREMENT HAD BEEN SATISFIED BY THREE OF THE FOUR BIDDERS BASED UPON INFORMATION CONCERNING A SIMILAR ITEM, BUT NONE OF THE THREE BIDDERS HAD TESTED THE ITEM CALLED FOR BY THE INVITATION.

THE PROCUREMENT AGENCY, HAVING DETERMINED THAT THE INVITATION REQUIREMENT FOR THE PRIOR APPROVAL OF A BIDDER'S PRODUCT BASED UPON PREBID OPENING TESTING WAS IMPROPER, WAIVED THE ENTIRE INVITATION REQUIREMENT AS TO CONSOLIDATED AND MADE AN AWARD TO IT ON APRIL 22, 1965, AS THE LOWEST, RESPONSIVE, RESPONSIBLE BIDDER. IN SUPPORT OF THIS WAIVER, THE PROCUREMENT AGENCY RELIED UPON THE ARMED SERVICES PROCUREMENT REGULATION POLICY ENUNCIATED AT ASPR 2-202.4 (B) AND DECISIONS OF OUR OFFICE REPORT AT 17 COMP. GEN. 940; 34 ID. 180; 37 ID. 845; 43 ID. 465.

ASPR 2-202.4 (A) DEFINES A BID SAMPLE AS---

* * * A SAMPLE REQUIRED BY THE INVITATION FOR BIDS TO BE FURNISHED BY A BIDDER AS PART OF HIS BID TO SHOW THE CHARACTERISTICS OF A PRODUCT OFFERED IN HIS BID. THE TERM DOES NOT INCLUDE ANY TYPE OF SAMPLE SUBMITTED AFTER BID OPENING SUCH AS ONE SUBMITTED TO EVIDENCE A MANUFACTURER'S ABILITY TO PRODUCE.

ASPR 2-202.4 FURTHER PROVIDES IN PERTINENT PART:

(B) POLICY. BIDDERS SHALL NOT BE REQUIRED TO FURNISH A BID SAMPLE OF A PRODUCT THEY PROPOSE TO FURNISH UNLESS THERE ARE CERTAIN CHARACTERISTICS OF THE PRODUCT WHICH CANNOT BE DESCRIBED ADEQUATELY IN THE APPLICABLE SPECIFICATION OR PURCHASE DESCRIPTION, THUS NECESSITATING THE SUBMISSION OF A SAMPLE TO ASSURE PROCUREMENT OF AN ACCEPTABLE PRODUCT. IT MAY BE APPROPRIATE TO REQUIRE BID SAMPLES, FOR EXAMPLE, WHERE THE PROCUREMENT IS OF PRODUCTS THAT MUST BE SUITABLE FROM THE STANDPOINT OF BALANCE, FACILITY OF USE, GENERAL "FEEL," COLOR, OR PATTERN, OR THAT HAVE CERTAIN OTHER CHARACTERISTICS WHICH CANNOT BE DESCRIBED ADEQUATELY IN THE APPLICABLE SPECIFICATIONS. HOWEVER, WHERE MORE THAN A MINOR PORTION OF THE CHARACTERISTICS OF THE PRODUCT CANNOT BE ADEQUATELY DESCRIBED IN THE SPECIFICATION, THE PRODUCT SHOULD BE PROCURED BY TWO-STEP FORMAL ADVERTISING OR NEGOTIATION, AS APPROPRIATE.

(D) REQUIREMENTS OF INVITATION FOR BIDS. WHEN BID SAMPLES ARE REQUIRED, THE INVITATION FOR BIDS SHALL (I) STATE THE NUMBER AND, IF APPROPRIATE, THE SIZE OF THE SAMPLES TO BE SUBMITTED AND OTHERWISE FULLY DESCRIBE THE SAMPLES REQUIRED, (II) STATE CLEARLY THE PURPOSE FOR WHICH THE SAMPLES ARE NEEDED AND THE CRITERIA AGAINST WHICH THEY WILL BE TESTED OR EVALUATED, AND (III) INCLUDE A PROVISION IN ACCORDANCE WITH (E) BELOW. WHERE SAMPLES ARE NOT CONSIDERED NECESSARY AND WAIVER OF THE SAMPLE REQUIREMENTS OF A SPECIFICATION HAS BEEN AUTHORIZED, A STATEMENT SHALL BE INCLUDED IN THE INVITATION FOR BIDS THAT NOTWITHSTANDING THE REQUIREMENTS OF THE SPECIFICATIONS, SAMPLES WILL NOT BE REQUIRED.

(E) INVITATION FOR BIDS PROVISION. WHEN BID SAMPLES ARE REQUIRED, A PROVISION SUBSTANTIALLY AS FOLLOWS (MODIFIED, IF APPROPRIATE, IN ACCORDANCE WITH (F) BELOW) SHALL BE INCLUDED IN THE INVITATION FOR BIDS:

BID SAMPLES (OCT. 1960)

(A) BID SAMPLES, IN THE QUANTITIES, SIZES, ETC., REQUIRED FOR THE ITEMS SO INDICATED IN THIS INVITATION FOR BIDS, MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. SAMPLES WILL BE EVALUATED TO DETERMINE COMPLIANCE WITH THE SPECIFICATIONS OR OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS.

(B) FAILURE OF SAMPLES TO CONFORM TO THE REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH SAMPLES BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT A LATE SAMPLE TRANSMITTED BY MAIL MAY BE CONSIDERED UNDER THE PROVISION FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.

(C) PRODUCTS DELIVERED UNDER ANY RESULTING CONTRACT SHALL CONFORM TO THE APPROVED SAMPLE AS TO THE CHARACTERISTICS FOR WHICH THE SAMPLE WAS REQUIRED AND SHALL CONFORM TO THE SPECIFICATIONS AS TO ALL OTHER CHARACTERISTICS.

(F) WAIVER OF REQUIREMENT FOR BID SAMPLES.

(1) THE PROVISION PRESCRIBED IN (E) ABOVE MAY BE MODIFIED TO PROVIDE THAT THE REQUIREMENT FOR FURNISHING SAMPLES MAY BE WAIVED AS TO A BIDDER WHO OFFERS A PRODUCT PREVIOUSLY OR CURRENTLY BEING PROCURED OR TESTED BY THE PURCHASING ACTIVITY AND FOUND TO COMPLY WITH SPECIFICATION REQUIREMENTS CONFORMING IN EVERY MATERIAL RESPECT WITH THOSE IN THE CURRENT INVITATION FOR BIDS SO THAT FURTHER EVALUATION OR TESTING WOULD NOT ADD TO THE GOVERNMENT'S KNOWLEDGE OF THE ACCEPTABILITY OF THE PRODUCT. * * *

IT IS CLEAR THAT THE INVITATION REQUIREMENT FOR PRIOR APPROVAL OF A BIDDER'S PRODUCT IN NOWISE RESEMBLES THE BID SAMPLE REQUIREMENT ENVISAGED BY ASPR 2-202.4. FIRST, ASPR 2-202.4 DOES NOT SANCTION THE USE OF BID SAMPLES FOR THE PURPOSE OF DETERMINING WHETHER A BIDDER HAS THE CAPABILITY TO MANUFACTURE AN ITEM WHICH WILL MEET SPECIFICATION REQUIREMENTS. COMP. GEN. 465. SECOND, THE INVITATION REQUIRED THE FURNISHING OF PERFORMANCE TEST REPORTS OF THE PRODUCT AND NOT A SAMPLE OF THE PRODUCT ITSELF. THIRD, THE INVITATION REQUIREMENT WAS NOT INTENDED TO SHOW THE CHARACTERISTICS OF A BIDDER'S PRODUCT AS CONTEMPLATED BY ASPR 2-202.4, BUT RATHER, TO SECURE EVIDENCE THAT A BIDDER WAS CAPABLE OF MEETING THE SPECIFICATIONS. FOURTH, BIDDERS WERE NOT APPRISED OF THE CONSEQUENCES OF THE FAILURE TO SUBMIT TEST REPORTS ON OR BEFORE BID OPENING NOR DID THE INVITATION ADVISE BIDDERS OF THE FACT THAT WAIVERS COULD BE GRANTED. SEE 43 COMP. GEN. 780.

THE DECISIONS OF OUR OFFICE CITED ABOVE AFFORD NO BASIS FOR WAIVING THE INVITATION REQUIREMENT. THOSE DECISIONS DEALT WITH THE RESPONSIVENESS OF BIDS WHERE SAMPLES OF THE PRODUCT WERE REQUIRED TO BE FURNISHED FOR THE PURPOSE OF DETERMINING EXACTLY THE CHARACTERISTICS OF THE PRODUCT OFFERED. THAT IS NOT THE CASE HERE WHERE TEST RESULTS WERE REQUESTED FOR THE PURPOSE OF PREAWARD APPROVAL OF THE PRODUCT AND FOR THE SOLE PURPOSE OF RESTRICTING AWARD TO THOSE BIDDERS WHOSE PRODUCT HAD BEEN PREVIOUSLY APPROVED. IN OUR OPINION, THE INVITATION REQUIREMENT CLEARLY CONTEMPLATED THAT ALL BIDDERS HAD TO HAVE THEIR PRODUCTS APPROVED ON THE BASIS OF TEST REPORTS BEFORE BID OPENING. THE INVITATION PROVIDED FOR NO EXCEPTION OR RELAXATION OF THE REQUIREMENT. ITS MATERIALITY IS EVIDENCED FROM THE LANGUAGE EMPLOYED IN THAT THE PROVISION STATED THAT AWARD "WILL BE GIVEN ONLY TO FIRMS WHOSE PRODUCT HAS BEEN APPROVED * * * PRIOR TO AWARD * * * BASED ON TEST REPORTS.' HENCE, THE PROVISION MAY BE LIKENED TO THE QUALIFIED PRODUCTS PROCEDURE PRESCRIBED BY ASPR 1-1101 BECAUSE OF THE PROCUREMENT AGENCY'S PUBLISHED NOTIFICATION THAT AWARD WOULD BE RESTRICTED TO BIDDERS OFFERING A QUALIFIED PRODUCT. SEE 36 COMP. GEN. 809; 38 ID. 357 AND 40 ID. 348. THERE CAN BE NO QUESTION THAT A PRODUCT PREQUALIFICATION PROVISION IN AN INVITATION GOES TO THE ESSENCE OF THE PROCUREMENT, AND WE HAVE HELD SO IN SIMILAR SITUATIONS. 43 COMP. GEN. 707. IT IS FUNDAMENTAL THAT THE AWARD OF A CONTRACT UNDER 10 U.S.C. 2305 (C) MUST BE MADE UPON THE SAME SPECIFICATIONS OFFERED TO ALL BIDDERS, AND THAT AN AWARD PURSUANT TO A BID DEVIATING SUBSTANTIALLY FROM THE ADVERTISED SPECIFICATIONS DOES NOT RESULT IN A VALID AND BINDING CONTRACT. 43 COMP. GEN. 209, AND THE CASES THEREIN CITED; 43 COMP. GEN. 813.

UNDER THE CIRCUMSTANCES IN THIS CASE WHERE THE BID OPENING DATE WAS FIXED IN LIGHT OF THE INVITATION REQUIREMENT FOR PRODUCT APPROVAL, IT WOULD HAVE BEEN PROPER AND EXPEDIENT FOR THE CONTRACTING OFFICER TO REJECT ALL BIDS WHEN IT WAS ADMINISTRATIVELY DETERMINED THAT THE PROTEST OF CONSOLIDATED AGAINST INCLUSION OF THE REQUIREMENT FOR PREAWARD PRODUCT APPROVAL WAS VALID. ASPR 2-404. THE RECORD INDICATES THAT CONSOLIDATED DID NOT PROTEST AGAINST THE INVITATION PROVISION UNTIL AFTER IT BECAME THE APPARENT LOW BIDDER. CONSIDERING THE LENGTH OF TIME THAT ENSUED BETWEEN THE ISSUANCE OF THE INVITATION (JANUARY 13, 1965) AND THE DATE OF BID OPENING (MARCH 29, 1965), IT WOULD SEEM THAT THE PROTEST OF CONSOLIDATED WAS NOT TIMELY ESPECIALLY SINCE THE COMPANY WAS ADVISED PRIOR TO BID OPENING THAT IT WOULD BE REQUIRED TO COMPLY WITH THE INVITATION PROVISIONS RESPECTING PRODUCT APPROVAL. CONSOLIDATED ELECTED TO SUBMIT A NONRESPONSIVE BID WHICH FORTUITOUSLY WAS LOW, THEREBY AFFORDING IT AN OPPORTUNITY TO PROTEST AGAINST THE VERY PROVISION WHICH RENDERED ITS BID NONRESPONSIVE. THESE REPORTED CIRCUMSTANCES AND THOSE RELATED ABOVE DEMONSTRATE, IN OUR OPINION, A LACK OF CARE IN PRESERVING AND MAINTAINING THE INTEGRITY OF THE STATUTORY COMPETITIVE BIDDING SYSTEM.

WE RECOGNIZE THAT THE PRODUCT APPROVAL REQUIREMENT THROUGH TEST REPORTS PROBABLY DUPLICATED THE POST-AWARD PREPRODUCTION REQUIREMENTS OF THE INVITATION AND THAT THE INCLUSION OF SUCH APPROVAL REQUIREMENT WAS NOT CONSIDERED WARRANTED BY TECHNICAL PERSONNEL. BUT AS LATE AS MARCH 22, 1965, OR PRIOR TO BID OPENING, THE PROCUREMENT AGENCY CONSIDERED THE PROVISION TO BE APPLICABLE AND IT THEREFORE DIRECTED CONSOLIDATED TO COMPLY STRICTLY WITH THE APPROVAL REQUIREMENT. ALTHOUGH THE REQUIREMENTS FOR PRODUCT APPROVAL THROUGH TEST REPORTS WERE WAIVED AS TO THREE OF THE FOUR BIDDERS, WE SEE NO JUSTIFICATION FOR EXTENDING THE WAIVER TO CONSOLIDATED WHICH WAS NOT ENTITLED TO PRODUCT APPROVAL. IT IS CLEAR THAT THOSE THREE BIDDERS PREPARED THEIR BIDS IN RECOGNITION OF THE PRODUCT APPROVAL REQUIREMENT AND THAT, HAD WAIVER BEEN DENIED, TEST REPORTS WOULD HAVE BEEN FURNISHED PRIOR TO BID OPENING. WE BELIEVE THAT THESE BIDDERS, THOUGH UNDER WAIVERS, WERE UNDULY PREJUDICED WHEN THE ENTIRE PRODUCT APPROVAL REQUIREMENT WAS CAST ASIDE AFTER BID OPENING AS UNNECESSARY AND AWARD MADE TO AN OSTENSIBLE NONRESPONSIVE BIDDER. MOREOVER, IT IS NOT UNREASONABLE TO ASSUME THAT HAD THE PRODUCT APPROVAL REQUIREMENT BEEN ELIMINATED FROM THE INVITATION EITHER AT DATE OF ISSUANCE OR BY AMENDMENT, OTHER QUALIFIED FIRMS WOULD HAVE SUBMITTED COMPETITIVE BIDS.

WE BELIEVE THAT NO AWARD SHOULD HAVE BEEN MADE UNDER THE INVITATION AND THAT THE AWARD MADE TO CONSOLIDATED WAS IMPROPER. WHILE WE APPRECIATE THE SITUATION THAT CONFRONTED THE PROCUREMENT AGENCY, WE DO NOT BELIEVE THAT ITS ACTIONS CONFORMED TO LAW OR IMPLEMENTING PROCUREMENT REGULATIONS. ALTHOUGH WE DO NOT FEEL THAT IT WOULD BE IN THE INTEREST OF THE GOVERNMENT AT THIS DATE TO DISRUPT THE DELIVERY OF URGENTLY NEEDED EQUIPMENT TO BE FURNISHED BY CONSOLIDATED UNDER ITS CONTRACT, WE STRONGLY RECOMMEND THAT APPROPRIATE MEASURES BE TAKEN TO PREVENT A RECURRENCE OF THIS TYPE OF PROCUREMENT.