B-159479, OCT. 18, 1966

B-159479: Oct 18, 1966

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO WATERTOWN DIVISION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 16. FOUR PROPOSALS WERE RECEIVED AND OPENED ON DECEMBER 6. IT APPEARED THAT AIR ACCESSORIES WAS THE LOWEST RESPONSIVE OFFEROR AT $225 PER UNIT. AWARD WAS THEREFORE MADE TO AIR ACCESSORIES AT ITS OFFERED PRICE ON JANUARY 11. ARTICLE 4 OF THE CONTRACT PROVIDES AS FOLLOWS: "THE BIDDER OR OFFEROR/CONTRACTOR CERTIFIES THAT EACH ITEM TO BE SUPPLIED AND ITS COMPONENTS ARE NEW (NOT USED OR RECONDITIONED. THE AWARD WAS MADE ON THE BASIS OF ASSURANCES FROM AIR ACCESSORIES THAT THE PUMPS WOULD BE "FACTORY NEW.'. WAS ALSO APPARENT THAT THE RESPONSE OF AIR ACCESSORIES TO THE REQUEST FOR PROPOSALS WAS UNQUALIFIED AND INDICATED NO DEVIATION FROM THE STATED REQUIREMENTS.

B-159479, OCT. 18, 1966

TO WATERTOWN DIVISION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 16, 1966, AND ENCLOSURES, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE AIR ACCESSORIES AND PARTS SUPPLY CO., UNDER REQUEST FOR PROPOSALS NO. AMC (T) 23-204-362-66, ISSUED BY THE UNITED STATES ARMY AVIATION MATERIEL COMMAND, ST. LOUIS, MISSOURI, ON NOVEMBER 5, 1965.

THE REQUEST FOR PROPOSALS SOLICITED OFFERS FOR 35 PUMPS, RECIPROCATING, FSN 1650-203-6352, PART NUMBER 66WA300 (NEW YORK AIR BRAKE.) FOUR PROPOSALS WERE RECEIVED AND OPENED ON DECEMBER 6, 1965, AND IT APPEARED THAT AIR ACCESSORIES WAS THE LOWEST RESPONSIVE OFFEROR AT $225 PER UNIT. AWARD WAS THEREFORE MADE TO AIR ACCESSORIES AT ITS OFFERED PRICE ON JANUARY 11, 1966. THEREAFTER, YOU PROTESTED AGAINST SUCH AWARD ON THE BASIS THAT AIR ACCESSORIES WOULD NOT FURNISH NEW PUMPS AS REQUIRED BY ARTICLE 4 OF THE REQUEST FOR PROPOSALS. IN THAT RESPECT, YOU REQUESTED THE RIGHT TO EXAMINE THE AIR ACCESSORIES PUMPS IN ORDER TO DETERMINE THE SOURCE OF THE PUMPS.

ARTICLE 4 OF THE CONTRACT PROVIDES AS FOLLOWS:

"THE BIDDER OR OFFEROR/CONTRACTOR CERTIFIES THAT EACH ITEM TO BE SUPPLIED AND ITS COMPONENTS ARE NEW (NOT USED OR RECONDITIONED, AND NOT OF SUCH AGE OR SO DETERIORATED AS TO IMPAIR THEIR USEFULNESS OR SAFETY) AND NOT FORMER GOVERNMENT SURPLUS PROPERTY.'

THE RECORD BEFORE US SUBSTANTIATES YOUR ALLEGATION THAT AIR ACCESSORIES DID, IN FACT, INTEND TO FURNISH THE GOVERNMENT WITH OTHER THEN NEW PUMPS CONTRARY TO ARTICLE 4 ABOVE. HOWEVER, THE AWARD WAS MADE ON THE BASIS OF ASSURANCES FROM AIR ACCESSORIES THAT THE PUMPS WOULD BE "FACTORY NEW.' WAS ALSO APPARENT THAT THE RESPONSE OF AIR ACCESSORIES TO THE REQUEST FOR PROPOSALS WAS UNQUALIFIED AND INDICATED NO DEVIATION FROM THE STATED REQUIREMENTS. HENCE, AT THE TIME OF AWARD, THE OFFER OF AIR ACCESSORIES WAS PROPERLY ACCEPTED AND THE PROCUREMENT AGENCY HAD NO REASON TO DOUBT THAT PERFORMANCE OF THE CONTRACT WOULD BE AS SPECIFIED THEREIN. IT WAS NOT UNTIL AFTER AWARD THAT IT BECAME APPARENT THAT AIR ACCESSORIES WOULD FURNISH PUMPS NOT CONFORMING TO ARTICLE 4. IN VIEW OF IRREGULARITIES CONNECTED WITH PERFORMANCE, THE CONTRACT WAS AMENDED ON APRIL 5, 1966, BY MODIFICATION NO. 1 WHEREUNDER THE CONTRACT PRICE WAS REDUCED BY $2,170, OR FROM $7,875 TO $5,705.

AT THE TIME OF AWARD, THE CONTRACTING OFFICER MADE THE NECESSARY DETERMINATION AND FINDING OF RESPONSIBILITY REQUIRED BY THE PROVISIONS OF ASPR 1-902, ET SEQ. A PREAWARD SURVEY OF THE SUCCESSFUL OFFEROR WAS WAIVED IN VIEW OF THE LOW DOLLAR VALUE OF THE PROCUREMENT AND SINCE THE PROCUREMENT AGENCY ALREADY HAD AN AFFIRMATIVE PREAWARD SURVEY WHICH COVERED A RECENT SIMILAR PROCUREMENT FROM THE SAME OFFEROR. SEE ASPR 1- 905.4 (A). WE THEREFORE BELIEVE THAT THE AWARD AS MADE IS NOT SUBJECT TO QUESTION BY OUR OFFICE.

ASPR 14-205 PROVIDES AS FOLLOWS:

"ACCEPTANCE OF SUPPLIES OR SERVICES NOT CONFORMING WITH CONTRACT REQUIREMENTS. WHEN SUPPLIES OR SERVICES TENDERED FOR ACCEPTANCE DO NOT CONFORM WITH CONTRACT REQUIREMENTS, THE APPLICABLE CONTRACT PROVISIONS SHALL GOVERN THE ACTION TO BE TAKEN. * * * FOR REASONS OF ECONOMY OR THE URGENCY OF THE REQUIREMENT, ACCEPTANCE OF SUPPLIES OR SERVICES WHICH DO NOT MEET ALL CONTRACT REQUIREMENTS MAY OCCASIONALLY BE DESIRABLE. PRIOR TO SUCH ACCEPTANCE, THE CONTRACTING OFFICER SHALL OBTAIN THE APPROVAL OF THE REQUIRING ACTIVITY WHERE THE NONCONFORMITY WITH CONTRACT REQUIREMENTS (I) AFFECTS MATTERS SUCH AS SAFETY, DURABILITY, PERFORMANCE, OR INTERCHANGEABILITY OF PARTS OR ASSEMBLIES, (II) RESULTS IN MATERIAL INCREASES IN WEIGHT, WHERE WEIGHT IS A SIGNIFICANT CONSIDERATION, OR (III) AFFECTS THE BASIC OBJECTIVES OF THE SPECIFICATIONS. ACCEPTANCE OF THESE TYPES OF NONCONFORMING SUPPLIES OR SERVICES SHALL BE COVERED BY AN APPROPRIATE MODIFICATION OF THE CONTRACT. ACCEPTANCE OF OTHER TYPES OF NONCONFORMING SUPPLIES AND SERVICES SHALL BE COVERED BY CONTRACT MODIFICATION IF DETERMINED NECESSARY BY THE CONTRACTING OFFICER.'

IN VIEW OF THE ABOVE REGULATORY PROVISION, WE FIND NO BASIS TO CONCLUDE THAT THE ACTION TAKEN TO AMEND THE CONTRACT WAS IMPROPER OR NOT IN THE INTEREST OF THE GOVERNMENT. IN THIS RESPECT, THE RECORD INDICATES THAT PUMPS DELIVERED UNDER THE CONTRACT AS MODIFIED MEET THE GOVERNMENT REQUIREMENTS AND ARE OTHERWISE ACCEPTABLE.

YOUR OFFER TO INSPECT AND IDENTIFY THE ITEMS TO BE PROCURED FROM AIR ACCESSORIES ON BEHALF OF THE GOVERNMENT WAS PROPERLY REFUSED. IT IS RECOGNIZED THAT UNDER CERTAIN UNIQUE CIRCUMSTANCES THE ACCEPTANCE OF SUCH AN OFFER MIGHT BE APPROPRIATE. HOWEVER, THE PROPER ADMINISTRATION OF A GOVERNMENT CONTRACT IS THE RESPONSIBILITY OF THE PROCUREMENT AGENCY. WHERE THE PROCUREMENT AGENCY, AS IN THE INSTANT CASE, RESERVED TO ITSELF ALONE THE RESPONSIBILITY OF ENFORCING AND ADJUSTING THE TERMS OF THE CONTRACT, SUCH INSPECTION AND EXAMINATION AS REQUESTED BY YOU WOULD NOT BE JUSTIFIED.

WE HAVE BEEN INFORMALLY ADVISED BY A REPRESENTATIVE OF THE ARMY MATERIEL COMMAND THAT IN FUTURE PROCUREMENTS OF THIS ITEM, ARTICLE 4 WILL NOT BE INCLUDED IN THE CONTRACTS BUT THAT THE CLAUSE PRESCRIBED BY ASPR 1-1208 WILL BE USED HEREAFTER.