B-162315, JAN. 3, 1968

B-162315: Jan 3, 1968

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LOW OFFEROR WHO PROTESTS REQUIREMENT IN A SOLICITATION THAT TESTS WERE TO BE PERFORMED BY ONE OF THE COMPETING BIDDERS IS ADVISED THAT REQUIREMENT IS IMPROPER. AIR FORCE IS CONDUCTING FEASIBILITY OF SETTING UP A TESTING PROGRAM AND WILL ONLY PROCURE URGENT. INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 16. THE ELECTRODE ROD AND DISCS ARE CRITICAL COMPONENTS USED IN CONNECTION WITH THE BAIRD-ATOMIC SPECTROMETER. THE PROCUREMENT OF THE RODS AND DISCS WAS ASSIGNED AN ISSUE PRIORITY DESIGNATOR 02. THE DECISION WAS MADE TO SOLICIT PROPOSALS ON A NONCOMPETITIVE BASIS WITH A CLOSING DATE JULY 31. THE DECISION WAS MADE TO ASK FOR PRICES ONLY ON MANUFACTURERS' PART NUMBERS SINCE DATA SUFFICIENT FOR FORMAL ADVERTISEMENT OR ADDITIONAL COMPETITION WERE NOT AVAILABLE.

B-162315, JAN. 3, 1968

BIDS - TESTING PROCEDURES - RESTRICTIVE DECISION TO MET-BAY, INCORPORATED PROTESTING REQUIREMENT IN A NEGOTIATED PROCUREMENT FOR ELECTRODE RODS AND DISCS BY SAN ANTONIO AIR MATERIEL AREA THAT TESTS OF THE ITEMS BE PERFORMED BY A COMPETING BIDDER. LOW OFFEROR WHO PROTESTS REQUIREMENT IN A SOLICITATION THAT TESTS WERE TO BE PERFORMED BY ONE OF THE COMPETING BIDDERS IS ADVISED THAT REQUIREMENT IS IMPROPER. AIR FORCE IS CONDUCTING FEASIBILITY OF SETTING UP A TESTING PROGRAM AND WILL ONLY PROCURE URGENT, IMMEDIATE REQUIREMENTS UNTIL PROPER EVALUATION OF PROTESTANT'S ITEMS CAN BE ASCERTAINED.

MET-BAY, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 16, 1967, WITH ENCLOSURES, PROTESTING THE PROCUREMENT COVERED BY THE SAN ANTONIO AIR MATERIEL AREA (SAAMA), KELLY AIR FORCE BASE, TEXAS, REQUEST FOR PROPOSALS (RFP) NO. F41608-68-R-G052.

THE SUBJECT RFP, ISSUED JULY 12, 1967, SOLICITED QUOTATIONS FOR INCREMENTAL QUANTITIES OF ITEM 1, ELECTRODE ROD, BAIRD ATOMIC P/N 650044 OR UNION CARBIDE P/N AGKSP-SP-1047, AND INCREMENTAL QUANTITIES OF ITEM 2, ELECTRODE DISCS, BAIRD ATOMIC P/N 650043 OR UNION CARBIDE P/N AGKSP-L- 4072. THE ELECTRODE ROD AND DISCS ARE CRITICAL COMPONENTS USED IN CONNECTION WITH THE BAIRD-ATOMIC SPECTROMETER, WHICH ROUTINELY DETECTS TRACE ELEMENTS OF METAL IN LUBRICATING OIL FOR THE PURPOSE OF PREDICTING INCIPIENT FAILURES IN OIL WETTED MECHANISMS. BEFORE ISSUANCE OF THE RFP, THE PROCUREMENT OF THE RODS AND DISCS WAS ASSIGNED AN ISSUE PRIORITY DESIGNATOR 02, INDICATING AN URGENT NEED, AND THE DECISION WAS MADE TO SOLICIT PROPOSALS ON A NONCOMPETITIVE BASIS WITH A CLOSING DATE JULY 31, 1967. ALSO, THE DECISION WAS MADE TO ASK FOR PRICES ONLY ON MANUFACTURERS' PART NUMBERS SINCE DATA SUFFICIENT FOR FORMAL ADVERTISEMENT OR ADDITIONAL COMPETITION WERE NOT AVAILABLE. PRIOR TO THE CLOSING DATE OF THE REQUEST FOR PROPOSALS, MET-BAY, INCORPORATED, REQUESTED A COPY OF THE SOLICITATION.

THE CONTRACTING OFFICER DETERMINED THAT TO ESTABLISH A BASIS FOR ACCEPTABILITY OF AN UNKNOWN PART NUMBER (MET-BAY'S), A CERTIFICATION FROM THE MANUFACTURER OF THE BAIRD-ATOMIC SPECTROMETER WAS REQUIRED. MODIFICATION NO. 1 OF THE RFP DATED JULY 21, 1967, CONTAINED THE FOLLOWING SPECIAL REQUIREMENT:

"OFFERORS OTHER THAN THOSE LISTED IN SCHEDULE SECTION I, PART I, SUPPLIES AND SERVICES TO BE FURNISHED, SHALL FURNISH THE FOLLOWING WITH BID SUBMITTED:

"(1) CERTIFICATION FROM THE PRIME MANUFACTURER OF THE END ITEM THAT ITEM IS ACCEPTABLE FOR USE ON THE EQUIPMENT.

"(2) SUFFICIENT DESCRIPTIVE OR TECHNICAL DATA TO PROVIDE ASSURANCE THAT ITEMS TO BE PROVIDED HEREUNDER ARE COMPLETELY SUITABLE FOR THE USE INTENDED.

"(3) SAMPLES OF THE ITEMS TO BE FURNISHED."

MET-BAY SUBMITTED THE LOW PROPOSAL WITH A SAMPLE OF EACH ITEM AND DESCRIPTIVE LITERATURE, BUT DID NOT FURNISH A CERTIFICATE FROM THE MANUFACTURER OF THE SPECTROMETER THAT THE ITEMS OFFERED WERE ACCEPTABLE FOR USE IN THE EQUIPMENT. BAIRD-ATOMIC, THE MANUFACTURER OF THE SPECTROMETER, AND UNION CARBIDE OFFERED TO FURNISH ITEMS CERTIFIED BY BAIRD-ATOMIC AS ACCEPTABLE TO USE IN THE EQUIPMENT. IN RESPONSE TO A REQUEST FROM THE CONTRACTING OFFICER, THE SENIOR PROJECT ENGINEER FOR SPECTROMETRIC ANALYSIS, DIRECTORATE OF MATERIEL MANAGEMENT, ADVISED THAT THE ONLY PROGRAM AVAILABLE FOR QUALIFYING ELECTRODES AND ELECTRODE DISCS FOR USE IN THE BAIRD-ATOMIC SPECTROMETER, WAS TESTING PERFORMED BY BAIRD- ATOMIC AND THAT CERTIFICATION OF ELECTRODE SOURCES OTHER THAN BAIRD-ATOMIC OR UNION CARBIDE "IS ESSENTIAL TO ASSURE SPECTROMETER ACCURACY, REPRODUCIBILITY AND THE REQUIRED SENSITIVITY CAPABLE OF PRODUCING THE MOST EXACT ANALYSIS." MET-BAY'S PROPOSAL, WHICH WAS LOW, WAS THEREFORE NOT CONSIDERED FURTHER AND AWARD FOR THE INITIAL INCREMENT WAS MADE TO UNION CARBIDE, THE SECOND LOW OFFEROR AND A QUALIFIED SOURCE, PURSUANT TO ASPR 2 -407.9(B) (3) (I).

MET-BAY PROTESTS THE REQUIREMENT IN THE SOLICITATION THAT OFFERORS OTHER THAN UNION CARBIDE AND BAIRD-ATOMIC FURNISH WITH THEIR PROPOSAL A CERTIFICATION FROM BAIRD-ATOMIC THAT THE ITEM IS ACCEPTABLE SINCE BAIRD ATOMIC IS A COMPETITOR IN THE FURNISHING OF ELECTRODES UNDER THIS SOLICITATION.

WE NOTE THAT MET-BAY DOES NOT QUESTION THE RIGHT OF THE GOVERNMENT TO SPECIFY IN A SOLICITATION A BRAND NAME PRODUCT, OR THE GOVERNMENT'S RIGHT TO REQUIRE SAMPLES FOR TESTING PURPOSES IN CONNECTION THEREWITH, OR THE GOVERNMENT'S RIGHT TO REQUIRE A PRODUCT TO BE TESTED ON THE END ITEM EQUIPMENT. RATHER, THE PROTEST IS DIRECTED TO THE REQUIREMENT UNDER WHICH THE TESTS OF THE PRODUCT WERE TO BE CONDUCTED BY A COMPETING BIDDER. AGREE WITH THE ADMINISTRATIVE REPORT THAT SUCH A REQUIREMENT IS IMPROPER.

IN THIS CONNECTION, THE AIR FORCE LOGISTICS COMMAND (AFLC) IS CONDUCTING A FEASIBILITY STUDY ON THE ADVISABILITY OF THE AIR FORCE SETTING UP A TESTING PROGRAM FOR THESE ELECTRODES AND DISCS. THE AIR FORCE SYSTEMS COMMAND PROJECT ENGINEER IS DETERMINING THE AVAILABILITY OF SPECTROMETERS FOR CONDUCTING THE TESTS AND INDICATES THAT THESE ARRANGEMENTS WILL BE COMPLETED ON OR ABOUT DECEMBER 15, 1967. IN THE INTERIM, ONLY URGENT, IMMEDIATE REQUIREMENTS FOR THE ELECTRODES AND DISCS WILL BE PROCURED FROM UNION CARBIDE AND/OR BAIRD-ATOMIC.

IN VIEW OF THE ABOVE AND THE ADMINISTRATIVE DETERMINATION THAT PROPER EVALUATION OF THE QUALIFICATION OF MET-BAY'S ITEMS WILL BE ASCERTAINED PRIOR TO FURTHER PROCUREMENT, NO FURTHER ACTION APPEARS TO BE REQUIRED BY THIS OFFICE.