B-162449, JAN. 23, 1968

B-162449, JAN. 23, 1968

BIDS - QUALIFIED PRODUCTS DECISION TO CONSOLIDATED AIRBORNE SYSTEMS, INC., SUSTAINING DECISION TO NOV. 2, 1967, DENYING PROTEST OF BIDDER NOT OFFERING QUALIFIED PRODUCT TO NAVY. WHERE CONTRACTING AGENCY FOLLOWED PROCEDURE IN APR 1-1109 BECAUSE ONLY ONE SUPPLIER WAS ON QUALIFIED PRODUCTS LIST AND USING AGENCY DETERMINED THAT IT WOULD NOT BE FEASIBLE TO SUBSTITUTE FIRST ARTICLE TESTING FOR QPL ACTION OF PROCURING AGENCY WAS PROPER.

TO CONSOLIDATED AIRBORNE SYSTEMS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 19, 1967, IN WHICH YOU STATE THAT EXHIBITS B AND C OF THE ADMINISTRATIVE REPORT, FURNISHED THIS OFFICE BY THE NAVAL AIR SYSTEMS COMMAND, SUPPORT YOUR CONTENTION. WE ASSUME THAT YOUR STATEMENT,"WE BELIEVE THAT THESE EXHIBITS SUPPORT OUR NTENTION," REFERS TO THE ALLEGATIONS SET OUT IN YOUR LETTER OF SEPTEMBER 26, 1967, AND WE WILL ACCORDINGLY TREAT YOUR LETTER OF DECEMBER 19, 1967, AS A REQUEST FOR A RECONSIDERATION OF OUR DECISION B-162449, NOVEMBER 2, 1967.

YOU STATE THAT THE HEART OF THE MATTER IS IN QUESTION 2C IN EXHIBIT B AND THE ANSWER THERETO IS IN EXHIBIT C. THE PERTINENT PART OF EXHIBIT B STATES: "2. REFERENCE (C) (ASPR 1-1109) PRESCRIBES THE PROCEDURE TO BE FOLLOWED WHEN THE NUMBER OF SUPPLIERS ON A QPL IS INSUFFICIENT TO ASSURE ADEQUATE COMPETITION. REQUEST YOU ADVISE:

"C. WHETHER ANY OTHER MEANS OF QUALITY ASSURANCE MAY BE SUBSTITUTED FOR QUALIFICATION.'

IN YOUR LETTER OF SEPTEMBER 26, 1967, YOU TOOK THE POSITION THAT SINCE THE SUBJECT MATTER OF THE INVITATION FOR BIDS WAS BEING PROCURED TO A QUALIFIED PRODUCTS LIST (QPL) REQUIREMENT AND THERE WAS BUT ONE FIRM ON THE QPL, THAT THERE WAS INADEQUATE COMPETITION. IN VIEW OF THE FACT THAT THERE WAS INADEQUATE COMPETITION YOU WERE OF THE OPINION THAT THE CONTRACTING OFFICER SHOULD HAVE PROCEEDED IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1109 (A) (1) AND (2), WHICH STATES:

"1-1109 INADEQUATE COMPETITION.

"/A) PRE-SOLICITATION. IN CONNECTION WITH PROCUREMENT OF A QUALIFIED PRODUCT AS AN END ITEM, THE CONTRACTING OFFICER SHALL REVIEW THE APPLICABLE QUALIFIED PRODUCTS LIST PRIOR TO SOLICITATION TO ASCERTAIN WHETHER THE NUMBER OF SOURCES IS ADEQUATE FOR COMPETITION. IF, IN THE OPINION OF THE CONTRACTING OFFICER, THE NUMBER OF SOURCES IS INADEQUATE, ACTION SHALL BE TAKEN AS PRESCRIBED BELOW UNLESS HE ALREADY HAS THE NECESSARY INFORMATION.

"/1) THE CONTRACTING OFFICER SHALL REQUEST THE ACTIVITY THAT PREPARED THE SPECIFICATION TO PROVIDE INFORMATION CONCERNING THE STATUS OF TESTS ON ADDITIONAL PRODUCTS, INCLUDING THE ANTICIPATED DATES WHEN SUCH TESTS WILL BE COMPLETED SO THAT OPENING OF BIDS OR SUBMISSION OF PROPOSALS MAY BE SO SCHEDULED AS TO ALLOW COMPLETION OF THE TESTS.

"/2) IF NO TESTS ARE BEING CONDUCTED OR CONTEMPLATED, THE CONTRACTING OFFICER SHALL FURTHER REQUEST THE PREPARING ACTIVITY TO ADVISE WHETHER A MEANS OF QUALITY ASSURANCE OTHER THAN QUALIFICATION APPROVAL MAY BE SUBSTITUTED IN THE PROCUREMENT.'

ACCORDING TO THE RECORD, THE CONTRACTING OFFICER DID PROCEED IN ACCORDANCE WITH ASPR 1-1109 (A) (1) AND (2), AS EVIDENCED BY EXHIBIT B. IN ANSWER TO THE QUESTION WHETHER ANY OTHER MEANS OF QUALITY ASSURANCE MIGHT BE SUBSTITUTED FOR QUALIFICATION, THE SPECIFICATION PREPARING ACTIVITY STATED THAT THERE WAS "NO TECHNICAL REASON TO SUBSTITUTE ANY OTHER MEANS OF QUALITY ASSURANCE.' THE OBVIOUS CONNOTATION OF THIS STATEMENT WAS THAT FIRST ARTICLE APPROVAL, WHICH YOU PROPOSED, COULD NOT BE SUBSTITUTED FOR LISTING ON A QPL, AND SINCE YOUR PRODUCT WAS NOT ON THE QPL, YOU COULD NOT BE CONSIDERED FOR AWARD.