B-163429, NOV. 1, 1968

B-163429: Nov 1, 1968

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TO THOMPSON AIRCRAFT TIRE CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 26. IN YOUR LETTER OF JANUARY 26 THE BASIS OF YOUR PROTEST WAS STATED AS FOLLOWS: "OUR PROTEST WAS BASED ON TWO REAL AND FIRM PREMISES WHICH MUST BE FULLY CONSIDERED: "1. THE RETREADING REQUIREMENTS WILL CONSIST OF DYNAMOMETER QUALIFICATION OF ONE RETREADED TIRE OF EACH SIZE AND PLY RATING FOR EACH TIRE DESIRED TO BE QUALIFIED BY EACH RETREADING PLANT. ........ 150 RETREADED TIRES FROM EACH PLANT WILL BE PROCURED FOR SERVICE EVALUATION. THE TIRES MUST PASS SERVICE EVALUATION SATISFACTORILY BEFORE CONTRACTOR WILL BE FULLY QUALIFIED.- "ONE CONTRACTOR. IS APPARENTLY BEING CONSIDERED QUALIFIED FOR AWARD. BEFORE FULL PRODUCTION AUTHORIZATION WAS GRANTED.

B-163429, NOV. 1, 1968

TO THOMPSON AIRCRAFT TIRE CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 26, 1968, AND SUBSEQUENT COMMUNICATIONS, PROTESTING THE AWARD OF A CONTRACT FOR THE REPAIR AND/OR RETREADING OF AIRCRAFT TIRES TO AIR TREADS OF ATLANTA, INC., UNDER ITEMS 5 AND 9 OF INVITATION FOR BIDS (IFB) NO. F42600-68-B-2574 ISSUED NOVEMBER 13, 1967, BY THE DEPARTMENT OF THE AIR FORCE, OGDEN AIR MATERIEL AREA, HILL AIR FORCE BASE, UTAH (OOAMA). ALTHOUGH YOU ALSO PROTESTED THE AWARD OF ITEM 1 TO AIR TREADS, YOUR ATTORNEYS WITHDREW THE PROTEST AS TO THAT ITEM BY LETTER OF SEPTEMBER 24, 1968.

IN YOUR LETTER OF JANUARY 26 THE BASIS OF YOUR PROTEST WAS STATED AS FOLLOWS:

"OUR PROTEST WAS BASED ON TWO REAL AND FIRM PREMISES WHICH MUST BE FULLY CONSIDERED:

"1. USAF SPECIFICATION DRAWING 62A31397, LETTER CHANGE DATED 17 AUGUST 1967 STATES, -PARAGRAPH 1 ..... THE RETREADING REQUIREMENTS WILL CONSIST OF DYNAMOMETER QUALIFICATION OF ONE RETREADED TIRE OF EACH SIZE AND PLY RATING FOR EACH TIRE DESIRED TO BE QUALIFIED BY EACH RETREADING PLANT. ........ PARAGRAPH 3 ..... IN ADDITION, FOR SELECTED TIRE SIZES, 150 RETREADED TIRES FROM EACH PLANT WILL BE PROCURED FOR SERVICE EVALUATION. THE TIRES MUST PASS SERVICE EVALUATION SATISFACTORILY BEFORE CONTRACTOR WILL BE FULLY QUALIFIED.- "ONE CONTRACTOR, AIR TREADS OF ATLANTA, BID ON THREE TIRE SIZES, 20.00X20/22 PR (0.40 S.D.), 36X11/22 PR AND 44X16/28 (0.38 S.D.) AND IS APPARENTLY BEING CONSIDERED QUALIFIED FOR AWARD. THIS COMPANY CANNOT BE CONSIDERED QUALIFIED IN ACCORDANCE WITH THE ABOVE CITED SPECIFICATION PROVISIONS. SIGNIFICANTLY, OONER HAS REPEATEDLY EMPHASIZED THE NEED FOR FIELD SERVICE TEST FOR ALL NEWLY QUALIFIED RETREAD AIRCRAFT TIRES. IN FACT, BEFORE FULL PRODUCTION AUTHORIZATION WAS GRANTED, FIELD SERVICE TESTS WERE REQUIRED ON ALL OF THE FOLLOWING SIZE RETREAD TIRES: 56X16/38 PR (TR-1), 56X16/38 PR (TR-2), 49X17/26 PR, 44X16/28 PR, 26X6.6/14 PR. ADDITIONALLY, OONER LETTER TO THOMPSON OF 24 OCTOBER 1967 (REF. 5) AGAIN RECITES THE NEED FOR FIELD SERVICE TESTS BEFORE FULL PRODUCTION QUALIFICATION APPROVAL CAN BE GRANTED. IT IS SIGNIFICANT THAT OONER DECIDED THIS TESTING WAS NO LONGER NECESSARY IN THEIR LETTER TO THOMPSON OF 16 JANUARY 1968 (REF. 6), THIS DECISION BEING MADE A FULL 13 CALENDAR DAYS SUBSEQUENT TO THE RECEIPT OF OUR LETTER OF PROTEST.

"2. A.S.P.R. 1-1108 WAIVER OF QUALIFICATION REQUIREMENT STATES, ..... WHERE WAIVERS HAVE BEEN GRANTED, SOLICITATIONS SHALL SPECIFICALLY INDICATE THAT THE QUALIFICATION REQUIREMENT IS INAPPLICABLE. SUCH INFORMATION SHALL ALSO BE INCLUDED IN ANY SYNOPSIS OF THE PROCUREMENT.- ,PRIOR TO THE OPENING OF THE SUBJECT IFB, THERE WAS NO NOTIFICATION EITHER WRITTEN OR ORAL, THAT ANY OF THE QUALIFICATION REQUIREMENTS OF SPECIFICATION DRAWING 62A31397 HAS BEEN WAIVED OR RESCINDED.'

THE AIR FORCE HAS ADVISED US THAT THE LETTER OF AUGUST 17, 1967, WAS ISSUED TO THE INDUSTRY BY OOAMA IN ACCORDANCE WITH ITS PRACTICE OF KEEPING INTERESTED TIRE FIRMS CURRENT WITH CHANGES TO BE MADE IN THE SPECIFICATIONS USED IN THE PROCUREMENT OF SERVICES FOR THE REPAIR AND/OR RETREADING OF HIGH-SPEED AIRCRAFT TIRES. PARAGRAPH 4 OF THE AUGUST 17 LETTER STATED THAT THE CHANGES SPECIFIED THEREIN WOULD BE IMPLEMENTED TO THE DRAWING AS SOON AS TIME PERMITTED, AND THAT THE CHANGES BECAME EFFECTIVE AS OF THAT DATE. YOUR ATTORNEYS POINT OUT IN THEIR LETTER OF MAY 29, 1968, THAT NO REFERENCE TO THE SPECIFICATION CHANGES SET OUT IN THE AUGUST 17 LETTER WAS MADE IN THE IFB IN COMPLIANCE WITH PARAGRAPH 1- 1201 (A) OF THE ARMED SERVICES PROCUREMENT REGULATION. ALTHOUGH THE LETTER OF AUGUST 17 WAS NOT MENTIONED IN THE SOLICITATION OF NOVEMBER 13, THE IFB STATED IN PARAGRAPH P OF THE SCHEDULE THAT SPECIFICATIONS, STANDARDS, AND/OR DRAWINGS WHICH DESCRIBE THE REQUIREMENTS HAD BEEN PREVIOUSLY FURNISHED TO INTERESTED SOURCES IN THE INDUSTRY. IT IS CLEAR THAT YOU AND THE OTHER BIDDER ACCEPTED THE LETTER, WHICH IDENTIFIED ITS SUBJECT "CHANGE IN USAF SPECIFICATION DRAWING REQUIREMENTS 62A31397," AS AN EFFECTIVE AMENDMENT OF THAT SPECIFICATION DRAWING, AND WE PERCEIVE NO PREJUDICE TO YOUR FIRM FROM THE ABSENCE OF A SPECIFIC REFERENCE IN THE SOLICITATION TO THE LETTER OF AUGUST 17 OR TO THE CHANGES IN QUALIFICATION TESTING PROCEDURES EFFECTED BY THAT LETTER.

YOU CONTEND THAT IN LIGHT OF THE LONG HISTORY OF EMPHASIS WHICH THE AIR FORCE HAD PLACED ON BOTH MULTIPLE DYNAMOMETER AND FIELD SERVICE TESTING REQUIREMENTS IN THE DEVELOPMENT OF ITS RETREAD PROGRAM AND IN THE EVALUATION OF VARIOUS AIRCRAFT TIRES WHICH HAD BEEN RETREADED BY YOUR FIRM, IT IS INCREDIBLE THAT THE AIR FORCE WOULD NOW CONSIDER A FIRM AS QUALIFIED FOR RETREADING HIGH-SPEED AIRCRAFT TIRES BASED ON A SINGLE DYNAMOMETER TEST. ALTHOUGH YOUR EXPERIENCE WITH THE AIR FORCE IN ITS RETREAD PROGRAM MAY MAKE THE PRESENT TEST REQUIREMENTS SEEM UNREALISTIC TO YOU, IT IS STATED IN YOUR ATTORNEYS' LETTER OF MAY 29, 1968, THAT THE ONLY ISSUE INVOLVED IN YOUR PROTEST IS WHETHER AIR TREADS, AT THE TIME OF OPENING OF BIDS, MET THE QUALIFICATION REQUIREMENTS ESTABLISHED IN THE IFB FOR BIDDING ON THE ITEMS AWARDED TO THAT FIRM. AS THERE APPEARS TO BE NO QUESTION AS TO AIR TREADS' RESPONSIBILITY, WE AGREE THAT AIR TREADS' RESPONSIVENESS TO THE IFB REQUIREMENTS IS THE BASIC POINT FOR RESOLUTION.

CONCERNING, HOWEVER, THE STATEMENT IN THE LETTER OF AUGUST 17 THAT "IN ADDITION FOR SELECTED TIRE SIZES 150 RETREADED TIRES FROM EACH PLANT WILL BE PROCURED FOR SERVICE EVALUATION," IT IS THE POSITION OF THE AIR FORCE THAT SUCH LANGUAGE DOES NOT INDICATE, NOR WAS IT INTENDED, THAT SERVICE TESTING WOULD BE CONDUCTED IN ALL CASES BUT, INSTEAD, ONLY FOR SPECIFIC TIRES WHERE THE AIR FORCE FEELS IT DESIRABLE TO DO SO (WHEN PERFORMANCE OR SUPPORTING DATA IS NOT AVAILABLE, OR BECAUSE SUCH TIRES MAY REPRESENT POSSIBLE PROBLEMS IN THE RETREAD PROGRAM). WE DO NOT CONSIDER SUCH AN INTERPRETATION OF THE STATEMENT TO BE UNREASONABLE, SINCE DECISIONS CONCERNING THE EXPENDITURE OF PUBLIC FUNDS, WHETHER FOR THE PROCUREMENT OF RETREADS IN CONNECTION WITH SERVICE EVALUATION OR FOR REGULAR USE, PROPERLY RESTS WITH THE PROCUREMENT ACTIVITY RATHER THAN THE SUPPLIER. FURTHERMORE, OTHER PROVISIONS OF THE SPECIFICATIONS HAVE INDICATED FOR A CONSIDERABLE PERIOD OF TIME THAT ANY SERVICE TESTING REQUIREMENTS WOULD BE AT THE OPTION OF THE GOVERNMENT. SEE PARAGRAPH 3.4 OF SPECIFICATION DRAWING 62A31397,"PRODUCTS SHALL BE SUBJECT TO ACTUAL AIRCRAFT SERVICE TESTING AND/OR EVALUATION AT USAF LABORATORY OR AT A COMMERCIAL LABORATORY, AT THE OPTION OF THE APPROVING AGENCY, TO DETERMINE COMPLIANCE WITH THE REQUIREMENTS SPECIFIED HEREIN"; PARAGRAPH 4.3.1.4"THE ENGINEERING AGENCY AUTHORIZING APPROVAL MAY REQUIRE A SERVICE TEST PRIOR TO AN UNCONDITIONAL QUALIFICATION APPROVAL"; AND PARAGRAPH 4.5.6 "THE APPROVING ENGINEERING ACTIVITY MAY CONDUCT SERVICE TESTS CONSISTING OF FLIGHT OR TAXI TESTS AT A USAF SELECTED LABORATORY IF DEEMED NECESSARY TO DETERMINE COMPLIANCE WITH THE REQUIREMENTS SPECIFIED HEREIN.'

WE DO NOT FIND ANYTHING IN THE SOLICITATION WHICH REQUIRES SATISFACTORY COMPLETION OF SERVICE TESTING AND EVALUATION OF THE TIRE SIZES SHOWN UNDER ITEMS 5 AND 9 AS A PREREQUISITE TO BIDDING ON THOSE ITEMS, NOR DOES THE RECORD INDICATE THAT PROCUREMENTS OF THOSE TIRES WERE MADE FROM ANY OF THE PROSPECTIVE BIDDERS, INCLUDING YOUR FIRM, FOR THE PURPOSE OF SERVICE TESTING IN ORDER TO QUALIFY THE VARIOUS RETREADING PLANTS PRIOR TO ACCEPTING BIDS ON THOSE ITEMS.

WHILE WE CAN READILY UNDERSTAND YOUR BELIEF THAT SERVICE TESTING WOULD BE REQUIRED PRIOR TO FULL PRODUCTION, INASMUCH AS YOU HAD BEEN ADVISED BY THE AIR FORCE ON OCTOBER 24, 1967, IN CONNECTION WITH YOUR DYNAMOMETER TEST OF THE TIRE SIZE SHOWN UNDER ITEM 9, THAT "PRIOR TO GRANTING FULL PRODUCTION QUALIFICATION APPROVAL FOR THIS TIRE SUCCESSFUL COMPLETION OF A FIELD SERVICE TEST WILL BE REQUIRED," IT SHOULD BE OBSERVED THAT EVEN IF SUCH STATEMENT HAD BEEN INCORPORATED INTO THE SUBSEQUENT SOLICITATION OF NOVEMBER 13 IT WOULD NOT HAVE NECESSARILY REQUIRED THE CONCLUSION THAT FIELD TESTING WAS A PREREQUISITE TO RESPONSIVE BIDDING AND AWARD OF THE CONTRACT. THE AIR FORCE INFORMED YOU ON JANUARY 16, 1968, THAT THE FIELD SERVICE TESTING REQUIREMENT SPECIFIED IN ITS LETTER OF OCTOBER 24, 1967, HAD BEEN DELETED. SUCH DECISION APPEARS TO HAVE BEEN BASED ON RECEIPT OF RETREAD DATA IN EARLY DECEMBER 1967 ON THE SERVICE TESTING OF SIMILAR SIZED TIRES, AND ON THE USE OF COMMERCIAL TIRE INFORMATION. SINCE THE IFB DID NOT REQUIRE SERVICE TESTING, THAT DECISION DID NOT EFFECT A WAIVER OF ANY OF THE SOLICITATION REQUIREMENTS.

REGARDING THE ISSUE OF WHETHER AIR TREADS MET THE BIDDER QUALIFICATION REQUIREMENTS AT TIME OF BID OPENING, THE PERTINENT PROVISIONS ARE CONTAINED IN PARAGRAPH K OF THE SCHEDULE AS FOLLOWS: ,K. QUALIFICATION TESTS:

OFFERORS WHO HAVE NOT PREVIOUSLY RECEIVED QUALIFICATION APPROVAL FOR THIS SERVICE FROM THE SERVICE ENGINEERING DIVISION (OONE), HILL AIR FORCE BASE, UTAH, ARE REQUIRED TO QUALIFY IN ACCORDANCE WITH THE APPROPRIATE USAF DRAWING LISTED FOR EACH LINE ITEM. THE QUALIFICATION REQUIREMENTS SET FORTH IN THE APPROPRIATE USAF DRAWINGS MUST BE RECEIVED BY THE OFFICE DESIGNATED PRIOR TO THE OPENING TIME OF THE SOLICITATION. OFFERS WILL BE ACCEPTED ONLY FROM THOSE FIRMS QUALIFIED PURSUANT THERETO.'

AS STATED ABOVE, THE INDUSTRY APPEARS TO HAVE UNDERSTOOD AND CONSIDERED THE LETTER OF AUGUST 17, 1967, TO BE AN EFFECTIVE AMENDMENT OF DRAWING 62A31397 WHICH GOVERNED THE STATEMENT OF WORK FOR ITEMS 5 AND 9, AND WE FIND NO COMPELLING REASON WHY THIS OFFICE SHOULD NOT AFFORD IT THE SAME RECOGNITION IN THE CONSIDERATION OF YOUR PROTEST. UNDER PARAGRAPH 1 OF THAT LETTER THE COMPETENCY TEST RETREADING REQUIREMENTS OF DRAWING 62A31397 WERE REDUCED TO DYNAMOMETER QUALIFICATION OF ONE RETREADED TIRE OF EACH SIZE AND PLY RATING FOR EACH TIRE TO BE QUALIFIED BY EACH RETREADING PLANT. UPON SUCCESSFUL COMPLETION ON NOVEMBER 15 AND DECEMBER 16, 1967, OF DYNAMOMETER TESTING OF THE TIRE SIZES SPECIFIED UNDER ITEMS 5 AND 9, RESPECTIVELY, AND SUBMISSION OF THE REPORTS TO THE AIR FORCE, AIR TREADS WAS ENTITLED TO BE CONSIDERED FOR APPROVAL AS A QUALIFIED RETREADER OF THOSE TIRES.

THE IFB REQUIRED THAT BIDDERS SUBMIT THE APPROPRIATE REQUIREMENTS, FOR QUALIFICATION AS ACCEPTABLE SOURCES FOR THE SERVICES SHOWN UNDER EACH ITEM BID UPON, PRIOR TO THE OPENING TIME SET FOR BIDS. ALTHOUGH OFFICIAL NOTICE OF QUALIFICATION APPROVAL WAS NOT FORWARDED TO AIR TREADS UNTIL JANUARY 1968, THE AIR FORCE REPORTS THAT AS OF DECEMBER 28, 1967, THE FINAL DATE SPECIFIED IN THE IFB FOR BID OPENING, AIR TREADS OF ATLANTA HAD BEEN ENTERED ON ITS LIST OF QUALIFIED BIDDERS FOR THE SERVICES REQUIRED UNDER ITEMS 5 AND 9. WHILE THE IFB WAS ISSUED ON NOVEMBER 13 TO OPEN ON DECEMBER 13, 1967, SEVERAL AMENDMENTS WERE ISSUED THERETO EXTENDING THE OPENING DATE TO DECEMBER 28. THE AIR FORCE DOES NOT DENY THAT IT EXPECTED ADDITIONAL QUALIFIED BIDDERS IN THE INTERVENING PERIOD, AND THE FACT THAT AIR TREADS SUBMITTED ITS BID DURING SUCH PERIOD AFFORDS NO BASIS AT LAW FOR OBJECTION.

IN VIEW OF THE FOREGOING, AND SINCE AIR TREADS APPEARS TO HAVE COMPLIED WITH THE SPECIFIED QUALIFICATION REQUIREMENTS AT TIME OF BID OPENING, THEREBY PERMITTING CONSIDERATION OF ITS BID ON ITEMS 5 AND 9, WE CANNOT CONCLUDE THAT AWARD OF THOSE ITEMS TO AIR TREADS WAS CLEARLY INVALID SO AS TO REQUIRE CANCELLATION OF ITS CONTRACT. ACCORDINGLY, YOUR PROTEST IS DENIED.