B-159536, SEP. 21, 1966

B-159536: Sep 21, 1966

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TO THE AEROSONIC CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 20. THE SUBJECT INVITATION WAS ISSUED ON MARCH 21. ALTIMETERS WHICH HAVE NOT PREVIOUSLY PASSED A QUALIFICATION TEST. OR WHICH HAVE PASSED THE QUALIFICATION TEST AND HAVE BEEN MODIFIED IN ANY MANNER SHALL SATISFACTORILY PASS A QUALIFICATION TEST PRIOR TO THE ACCEPTANCE OF ANY ALTIMETERS. "4.2.2 QUALIFICATION TEST SAMPLES. THE RIGHT IS RESERVED TO REJECT BIDS ON PRODUCTS THAT HAVE NOT BEEN SUBJECTED TO THE REQUIRED TESTS AND FOUND SATISFACTORY FOR INCLUSION ON A QUALIFIED PRODUCTS LIST. THE ATTENTION OF SUPPLIERS IS CALLED TO THIS REQUIREMENT. MANUFACTURERS ARE URGED TO COMMUNICATE WITH THE WRIGHT AIR DEVELOPMENT CENTER AND ARRANGE TO HAVE THE PRODUCTS THAT THEY PROPOSE TO OFFER TO THE AIR FORCE TESTED FOR QUALIFICATION IN ORDER THAT THEY MAY BE ELIGIBLE TO BE AWARDED CONTRACT OR ORDERS FOR THE PRODUCTS COVERED BY THIS SPECIFICATION.

B-159536, SEP. 21, 1966

TO THE AEROSONIC CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 20, 1966, AND ENCLOSURES, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER BY THE OKLAHOMA CITY AIR MATERIEL AREA, TINKER AIR FORCE BASE, PURSUANT TO INVITATION FOR BIDS NO. 34-601-66-473 (OCPRHB).

THE SUBJECT INVITATION WAS ISSUED ON MARCH 21, 1966, FOR A QUANTITY OF ALTIMETER-BAROMETERS, IN ACCORDANCE WITH MILITARY SPECIFICATION A 4813, DATED MAY 5, 1954, AS AMENDED JANUARY 12, 1956, WHICH INCLUDES THE FOLLOWING PROVISIONS:

"4.2.1 PRIOR QUALIFICATION.--- UNLESS OTHERWISE SPECIFIED BY THE PROCURING SERVICE, ALTIMETERS WHICH HAVE NOT PREVIOUSLY PASSED A QUALIFICATION TEST, OR WHICH HAVE PASSED THE QUALIFICATION TEST AND HAVE BEEN MODIFIED IN ANY MANNER SHALL SATISFACTORILY PASS A QUALIFICATION TEST PRIOR TO THE ACCEPTANCE OF ANY ALTIMETERS.

"4.2.2 QUALIFICATION TEST SAMPLES.--- QUALIFICATION TEST SAMPLES SHALL CONSIST OF TWO ALTIMETERS OF EACH RANGE. SAMPLES SHALL BE APPROPRIATELY IDENTIFIED WITH THE MANUFACTURER'S OWN PART NUMBER AND ANY ADDITIONAL INFORMATION REQUIRED BY THE AUTHORIZING LETTER.

"6.2. QUALIFICATION TESTS.--- IN THE PROCUREMENT OF PRODUCTS REQUIRING QUALIFICATION, THE RIGHT IS RESERVED TO REJECT BIDS ON PRODUCTS THAT HAVE NOT BEEN SUBJECTED TO THE REQUIRED TESTS AND FOUND SATISFACTORY FOR INCLUSION ON A QUALIFIED PRODUCTS LIST. THE ATTENTION OF SUPPLIERS IS CALLED TO THIS REQUIREMENT, AND MANUFACTURERS ARE URGED TO COMMUNICATE WITH THE WRIGHT AIR DEVELOPMENT CENTER AND ARRANGE TO HAVE THE PRODUCTS THAT THEY PROPOSE TO OFFER TO THE AIR FORCE TESTED FOR QUALIFICATION IN ORDER THAT THEY MAY BE ELIGIBLE TO BE AWARDED CONTRACT OR ORDERS FOR THE PRODUCTS COVERED BY THIS SPECIFICATION. INFORMATION PERTAINING TO QUALIFICATION OF PRODUCTS MAY BE OBTAINED FROM THE COMMANDER, WRIGHT AIR DEVELOPMENT CENTER, WRIGHT PATTERSON AIR FORCE BASE, OHIO, ATTENTION:WCLS.'

THE INVITATION INCLUDED THE QUALIFIED PRODUCTS CLAUSE REQUIRED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1107.2 (A), BUT DID NOT IDENTIFY THE QUALIFIED PRODUCTS LIST (QPL) APPLICABLE TO THE EQUIPMENT BEING PROCURED AS REQUIRED BY THIS PROVISION. ALTHOUGH 11 BIDS WERE SOLICITED, ONLY TWO WERE RECEIVED AND OPENED ON APRIL 20, 1966. WHILE YOURS WAS THE LOWEST BID, ONLY THE KOLLSMAN INSTRUMENT CORPORATION BID INCLUDED INFORMATION THAT ITS PRODUCT HAS BEEN QUALIFIED AND WAS LISTED ON QPL 4813 -1.

ALTHOUGH YOU PROTESTED TO THE PROCURING ACTIVITY THAT THE OMISSION OF THE QPL NUMBER FROM THE IFB WOULD PERMIT ACCEPTANCE OF YOUR PRODUCT EVEN THOUGH IT HAD NOT BEEN QUALIFIED, AWARD WAS MADE TO KOLLSMAN ON JUNE 1. IT IS THE ADMINISTRATIVE POSITION THAT IT WAS THE INTENT OF THE PROCURING ACTIVITY TO PURCHASE ONLY A QPL ITEM, AS ONLY A PRODUCT QUALIFIED IN ACCORDANCE WITH MILITARY SPECIFICATION A-4813 WILL MEET ITS NEEDS, AND THAT REFERENCE TO THE APPLICABLE QPL WAS INADVERTENTLY OMITTED FROM THE INVITATION. IT IS ALSO POINTED OUT THAT WHILE THE QPL WAS NOT REFERENCED IN THE IFB WAS REQUIRED BY ASPR, THE APPLICABLE MILITARY SPECIFICATION MAKES IT CLEAR THAT AN ACCEPTABLE ITEM MUST BE ON A QPL AND THAT SYNOPSIS OF THE PROCUREMENT IN THE COMMERCE BUSINESS DAILY ALSO SERVED AS NOTICE OF THIS REQUIREMENT. FURTHERMORE, IT IS CONTENDED THAT CANCELLATION OF THE IFB AND READVERTISEMENT OF THE REQUIREMENT WITH REFERENCE TO THE QPL WOULD HAVE SERVED NO USEFUL PURPOSE AS YOUR COMPANY HAS NOT INDICATED IT WOULD UNDERTAKE QUALIFICATION OF YOUR PRODUCT.

OUR OFFICE HAS RECOGNIZED THE LEGALITY OF THE QUALIFIED PRODUCTS METHOD OF PROCUREMENT WHEN THE NEEDS OF THE AGENCY REQUIRE IT, EVEN THOUGH IT INVOLVES AN ELEMENT OF RESTRICTION ON FULL AND FREE COMPETITION. 36 COMP. GEN. 809. SINCE IT WAS ADMINISTRATIVELY DETERMINED THAT ONLY A PRODUCT QUALIFIED IN ACCORDANCE WITH MILITARY SPECIFICATION A-4813 WOULD SATISFY THE NEEDS OF THE ACTIVITY CONCERNED, COMPETITION WAS PROPERLY RESTRICTED TO THOSE BIDDERS OFFERING A PRODUCT MEETING THIS REQUIREMENT. APPLICABLE REGULATIONS PROVIDE FOR IDENTIFICATION IN THE INVITATION OF THE PERTINENT QUALIFIED PRODUCTS LIST. SEE ASPR 1-1107.2 (A). THE SUBJECT INVITATION INCLUDED THE NECESSARY CLAUSE, ALTHOUGH INADVERTENTLY OMITTING THE QPL NUMBER THEREFROM. WHILE THE INVITATION WAS DEFECTIVE TO THIS EXTENT, WE DO NOT BELIEVE THE DEFECT WAS OF SUCH SIGNIFICANCE AS TO EITHER REQUIRE CANCELLATION OF THE INVITATION OR RENDER THE AWARD PURSUANT THERETO ILLEGAL. THE FACT THAT THE QPL CLAUSE WAS INCLUDED IN THE INVITATION, THE REFERENCED MILITARY SPECIFICATION REQUIRES QUALIFICATION, AND THE SYNOPSIS OF THE PROCUREMENT IN THE COMMERCE BUSINESS DAILY INCLUDED REFERENCE TO THE QPL WERE SUFFICIENT TO, AT LEAST, MAKE IT INCUMBENT UPON INTERESTED BIDDERS TO INQUIRE IF THERE WAS ANY DOUBT ABOUT THE REQUIREMENT.

IN THESE CIRCUMSTANCES, IT IS OUR OPINION THAT THE AWARD TO KOLLSMAN CONSUMMATED A VALID AND BINDING CONTRACT AND THERE IS NO BASIS UPON WHICH OUR OFFICE MAY OBJECT THERETO. ACCORDINGLY, ..END :