B-170585, NOV. 10, 1970

B-170585: Nov 10, 1970

Additional Materials:

Contact:

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

 

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

AGAINST REJECTION OF PROTESTANT'S LOW BID FOR FAILURE TO HAVE QUALIFIED PRODUCTS LISTING. A LOW BIDDER WHO WAS AFFORDED OPPORTUNITY TO HAVE ARTICLE APPROVED FOR QUALIFIED PRODUCT LISTING. INCORPORATED: REFERENCE IS MADE TO YOUR TELEGRAM OF AUGUST 12. THE SOLICITATION WAS FOR A QUANTITY OF FILTER ELEMENTS. SUBSEQUENT REQUIREMENTS WOULD BE ORDERED AS THE NEED AROSE AND THE TOTAL ESTIMATED QUANTITY TO BE ORDERED DURING THE CONTRACT PERIOD WAS STATED TO BE 522 EACH OF THE FILTERS. BIDS WERE OPENED ON AUGUST 11. YOUR BID WAS LOW OUT OF A TOTAL OF SEVEN BIDS RECEIVED. THE PRICE IN YOUR BID WAS $12.40 EACH FOR QUANTITY RANGES 4 THROUGH 9 AND THE SECOND LOW BID AT $13.75 EACH FOR QUANTITY RANGES 4 THROUGH 9.

B-170585, NOV. 10, 1970

BID PROTEST - QUALIFIED PRODUCT LISTING DENIAL OF PROTEST AGAINST AWARD OF ADVERTISED REQUIREMENTS-TYPE CONTRACT FOR FILTERS TO AIRCRAFT POROUS MEDIA, INC., AND AGAINST REJECTION OF PROTESTANT'S LOW BID FOR FAILURE TO HAVE QUALIFIED PRODUCTS LISTING. A LOW BIDDER WHO WAS AFFORDED OPPORTUNITY TO HAVE ARTICLE APPROVED FOR QUALIFIED PRODUCT LISTING, BUT DID NOT OBTAIN APPROVAL AT TIME OF BID OPENING HAD BID PROPERLY REJECTED AS UNRESPONSIVE.

TO WESTERN FILTER COMPANY, INCORPORATED:

REFERENCE IS MADE TO YOUR TELEGRAM OF AUGUST 12, 1970, AND LETTER OF AUGUST 19, 1970, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. DAAH01-71-B-0049, ISSUED ON JULY 10, 1970, BY THE UNITED STATES ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA.

THE SOLICITATION WAS FOR A QUANTITY OF FILTER ELEMENTS, MS 28897-8C IN ACCORDANCE WITH APPLICABLE SPECIFICATIONS. PAGE 13 OF THE INVITATION, AS AMENDED, PROVIDED IN PART THAT THE CONTRACT AWARDED WOULD BE A "REQUIREMENTS" TYPE OF CONTRACT WITH AN INITIAL QUANTITY OF 212 EACH PURCHASED UPON DATE OF AWARD. SUBSEQUENT REQUIREMENTS WOULD BE ORDERED AS THE NEED AROSE AND THE TOTAL ESTIMATED QUANTITY TO BE ORDERED DURING THE CONTRACT PERIOD WAS STATED TO BE 522 EACH OF THE FILTERS.

BIDS WERE OPENED ON AUGUST 11, 1970, AND YOUR BID WAS LOW OUT OF A TOTAL OF SEVEN BIDS RECEIVED. THE PRICE IN YOUR BID WAS $12.40 EACH FOR QUANTITY RANGES 4 THROUGH 9 AND THE SECOND LOW BID AT $13.75 EACH FOR QUANTITY RANGES 4 THROUGH 9, WAS SUBMITTED BY AIRCRAFT POROUS MEDIA, INCORPORATED. YOUR BID WAS REJECTED AS NON-RESPONSIVE SINCE THE ITEM OFFERED BY YOUR CONCERN HAD NOT BEEN APPROVED FOR QUALIFIED PRODUCTS LIST (QPL) LISTING AT THE TIME OF BID OPENING. AIRCRAFT POROUS MEDIA'S BID IS RESPONSIVE TO THE QPL REQUIREMENT. WE HAVE BEEN ADVISED THAT THE AWARD IS BEING HELD UP PENDING OUR DECISION ON THE MATTER.

PAGE EIGHT OF THE INVITATION PROVIDED AS FOLLOWS:

"NOTICE - QUALIFIED END PRODUCTS (1969 DEC)

"AWARDS FOR ANY END ITEMS WHICH ARE REQUIRED TO BE QUALIFIED PRODUCTS WILL BE MADE ONLY WHEN SUCH ITEMS HAVE BEEN TESTED AND ARE QUALIFIED FOR INCLUSION IN A QUALIFIED PRODUCTS LIST (WORDS ILLEGIBLE) WHETHER OR NOT ACTUALLY INCLUDED IN THE LIST) AT THE TIME SET FOR OPENING OF BIDS, OR THE TIME OF AWARD IN THE CASE OF NEGOTIATED CONTRACTS. OFFERORS SHOULD CONTACT THE OFFICE DESIGNATED BELOW TO ARRANGE TO HAVE THE PRODUCTS WHICH THEY INTEND TO OFFER TESTED FOR QUALIFICATION.

"THE OFFEROR SHALL INSERT THE ITEM NAME AND THE TEST NUMBER (IF KNOWN) OF EACH QUALIFIED PRODUCT IN THE BLANK SPACES BELOW.

"ITEM NAME TEST NO.

"OFFERORS OFFERING PRODUCTS WHICH HAVE BEEN TESTED AND QUALIFIED, BUT WHICH ARE NOT YET LISTED, ARE REQUESTED TO SUBMIT EVIDENCE OF SUCH QUALIFICATION WITH THEIR BIDS OR PROPOSALS, SO THAT THEY MAY BE GIVEN CONSIDERATION. IF THIS IS A FORMALLY ADVERTISED PROCUREMENT, ANY BID WHICH DOES NOT IDENTIFY THE QUALIFIED PRODUCT BEING OFFERED, EITHER ABOVE OR ELSEWHERE IN THE BID, WILL BE REJECTED." IN THE SPACE WHERE BIDDERS WERE TO INSERT THE ITEM NAME AND TEST NUMBER OF EACH QUALIFIED PRODUCT, YOU INSERTED "SEE ATTACHED LETTER".

THE "ATTACHED LETTER" REFERRED TO ABOVE IS A LETTER DATED AUGUST 5, 1970, ADDRESSED TO THE UNITED STATES ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA. THE LETTER WAS NOT ACTUALLY ATTACHED TO YOUR BID BUT WAS SENT TO REDSTONE ARSENAL UNDER SEPARATE COVER. THIS LETTER REFERENCES THE INVITATION; STATES THAT YOUR PROPOSED FILTER ELEMENT MET YOUR TESTS FOR THE REQUIREMENTS OF MIL-F-8815B; AND THAT THE TEST REPORTS AND SAMPLES WERE SUBMITTED TO THE NAVAL AIR DEVELOPMENT CENTER ON JULY 9, 1970. THE LETTER OF AUGUST 5 ALSO ADVISES THAT TESTING WAS COMPLICATED BY THE MOVEMENT OF THE NAVY TEST FACILITY FROM PHILADELPHIA TO JOHNSVILLE AND THAT DELAYS RESULTED THEREFROM.

YOUR LETTER OF AUGUST 19 LISTS THE FOLLOWING 7 ITEMS AS THE BASES FOR THE PROTEST:

"1. PRODUCT MUST BE QUALIFIED PRODUCT, HAVING BEEN TESTED FOR INCLUSION ON QUALIFIED PRODUCTS LIST. HOWEVER, THE LABORATORY DESIGNATED AS THE ONLY APPROVED TESTING AGENCY IS AND HAS BEEN NON FUNCTIONABLE DUE TO A RELOCATION OF FACILITIES.

"2. THE COGNIZANT GOVERNMENT TEST AGENCY HAS NOT PROVIDED THE NECESSARY STAND-BY CAPABILITIES FOR TEST SERVICES.

"3. NECESSARY TESTING, EVEN UNDER NORMAL OPERATIONAL CIRCUMSTANCES, CANNOT BE ACCOMPLISHED IN THE TIME ALLOCATED BY THE IFB (ASPR 1 1107.2(A).

"4. WESTERN FILTER, A SMALL BUSINESS CONCERN, IS THE LOW BIDDER ON THE SUBJECT IFB AND HAS BEEN CONSISTENTLY LOW BIDDER ON MANY OTHERS. WFC HAS BEEN INSTRUMENTAL IN SIGNIFICANT PRICE REDUCTIONS ON THIS AND OTHER QPL- 8815 ITEMS, YET IS DENIED A COMPETITIVE POSITION IN THE NEGOTIATIONS.

"5. THERE ARE NO SMALL BUSINESS CURRENTLY REPRESENTED ON QPL-8815.

"6. WFC IS DENIED THE OPPORTUNITY TO SEEK CONTRACTS, WHERE QPL LISTING IS MANDATORY, DURING THE LAST HALF OF CALENDAR 1970 DUE TO DELAYS INCUMBENT ON NADC RELOCATION.

"7. WESTERN FILTER SUBMITTED THE NECESSARY SAMPLES, REPORTS, AND TEST FEES, FOR QPL TESTING TO NADC ON 9 JULY 1970. WE WERE ADVISED THAT EXPEDITING SUBMITTAL WOULD BE OF NO ADVANTAGE TO US SINCE THE TEST FACILITIES WOULD NOT BE AVAILABLE." PAGES 2 THROUGH 6 OF YOUR LETTER OF PROTEST ELABORATE ON THE 7 ITEMS QUOTED ABOVE. YOUR LETTER TRACES PRIOR PROCUREMENT HISTORY OF CERTAIN FILTER ELEMENTS BY VARIOUS GOVERNMENT SERVICES TO INDICATE THAT YOUR CONCERN WAS THE LOW BIDDER ON SEVERAL PRIOR PROCUREMENTS OF FILTERS. HOWEVER, THE FILTERS FURNISHED IN THE PRIOR PROCUREMENTS APPARENTLY WERE NOT THE SAME AS THE FILTERS WHICH ARE THE SUBJECT OF THE PRESENT PROCUREMENT.

YOUR LETTER OF AUGUST 19 SUMMARIZES THE BASIS FOR YOUR PROTEST AS FOLLOWS:

" *** WESTERN FILTER, A SMALL BUSINESS CONCERN, BECAUSE OF THE ABSENCE OF GOVERNMENT TESTING FACILITIES, IS EXCLUDED FROM CONSIDERATIONS ON ALL QPL- 8815 HARDWARE DURING THE LAST HALF OF CALENDAR 1970. NOT ONLY IS THIS A DISADVANTAGE TO WFC, BUT BECAUSE OF THE LACK OF COMPETITION, THESE PROCUREMENTS WILL NOT BE MADE UNDER THE MOST FAVORABLE FINANCIAL ARRANGEMENTS."

YOUR LETTER OF AUGUST 19 REQUESTS THAT NO AWARD SHOULD BE MADE UNDER THE PRESENT INVITATION UNTIL YOUR CONCERN HAS HAD AN OPPORTUNITY TO QUALIFY ITS PRODUCT. IN THE ALTERNATIVE, YOUR LETTER REQUESTS THAT THE CONTRACT BE AWARDED TO WESTERN FILTER BASED ON CONDITIONAL APPROVAL OF HARDWARE AND SUBMITTAL OF FIRST ARTICLE SAMPLES AND REPORTS.

WE ARE ADVISED BY ARMY THAT YOUR CONCERN WAS AFFORDED AN OPPORTUNITY TO QUALIFY FOR THE SUBJECT QPL LIST IN JULY 1968. A LETTER FROM YOUR CONCERN TO REDSTONE ARSENAL DATED JULY 28, 1970, INDICATES THAT YOUR CONCERN'S TESTING FOR THE SUBJECT FILTERS WHICH BEGAN IN FEBRUARY OF 1970, WAS COMPLETED ON OR ABOUT JUNE 12, 1970. YOUR LETTER OF AUGUST 5, 1970, TO REDSTONE ARSENAL, REFERENCING YOUR BID, STATES THAT YOUR TEST REPORTS AND SAMPLE ELEMENTS FOR YOUR FILTER WERE SUBMITTED FOR TESTING AT THE NAVAL AIR DEVELOPMENT CENTER (NADC) ON JULY 9, 1970. A MEMORANDUM IN THE RECORD FROM NADC STATES THAT YOUR REPORTS AND TEST SAMPLES DID NOT ARRIVE AT NADC UNTIL AFTER JULY 20, 1970, AND THAT APPROXIMATELY 30 DAYS ARE REQUIRED BY NADC FOR QUALIFICATION TESTING UNDER THE SUBJECT SPECIFICATION. THE RECORD THEREFORE INDICATES THAT UNTIL YOU BEGAN YOUR OWN TESTING OF YOUR PRODUCT IN FEBRUARY 1970, NO STEPS WERE TAKEN AFTER JULY 1968 TO QUALIFY YOUR PRODUCT FOR QPL LISTING.

OUR OFFICE HAS BEEN FURNISHED WITH A COPY OF A LETTER DATED SEPTEMBER 24, 1970, FROM THE NAVAL AIR DEVELOPMENT CENTER, JOHNSVILLE, WARMINSTER, PENNSYLVANIA, ADDRESSED TO YOUR CONCERN, WHICH STATES THAT YOUR FILTER FAILED TO MEET THE DESIGN REQUIREMENTS OF DRAWING NO. MS 28897. NAVY'S LETTER OF SEPTEMBER 24 STATES THAT THE DESIGN OF YOUR FILTER ELEMENT WITH A LARGER "S" DIMENSION THAN THAT SPECIFIED IN THE DRAWINGS PROHIBITS INTERCHANGEABILITY AND PREVENTS THE ASSEMBLY OF YOUR FILTER ELEMENT INTO THE STANDARD HOUSING. WE ARE ADVISED THAT THIS NECESSITATES THE RESUBMITTAL OF DRAWINGS. IN VIEW OF THE RECORD IT DOES NOT SEEM THAT THE RELOCATION OF THE TESTING FACILITY WAS THE REASON WHY YOUR PRODUCT WAS NOT APPROVED FOR QPL LISTING PRIOR TO BID OPENING.

WE HAVE FOUND THE QPL METHOD OF PROCUREMENT TO BE LEGAL. SEE 36 COMP. GEN. 809 (1957). ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1 1105 PROVIDES THAT, WHERE POSSIBLE, MANUFACTURERS SHALL BE URGED TO SUBMIT THEIR PRODUCTS FOR QUALIFICATION AND WHERE POSSIBLE SHALL BE GIVEN SUFFICIENT TIME TO ARRANGE FOR QUALIFICATION TESTING PRIOR TO THE ISSUANCE OF THE INITIAL INVITATION FOR BIDS OR REQUEST FOR PROPOSALS FOR THE ITEM AS A QUALIFIED PRODUCT. ASPR 1-1107.1(A) PROVIDES THAT WHENEVER QUALIFIED PRODUCTS ARE TO BE PROCURED BY THE GOVERNMENT AS END ITEMS, ONLY BIDS OR PROPOSALS OFFERING PRODUCTS WHICH ARE QUALIFIED FOR LISTING ON THE APPLICABLE QPL AT THE TIME SET FOR OPENING OF BIDS OR AWARDS OF NEGOTIATED CONTRACTS SHALL BE CONSIDERED IN MAKING AWARDS.

PURSUANT TO OUR REVIEW WE HAVE NO BASIS FOR CONCLUDING THAT THE PRICE IN THE BID FROM AIRCRAFT POROUS MEDIA IS UNREASONABLE OR THAT YOU WERE NOT AFFORDED A REASONABLE OPPORTUNITY TO QUALIFY YOUR PRODUCT. THE REASON THAT NO PRODUCTS FROM SMALL BUSINESS CONCERNS ARE ON THE QPL LIST APPARENTLY IS THAT NONE HAVE BEEN QUALIFIED. SINCE THE ITEM OFFERED IN YOUR BID HAD NOT QUALIFIED FOR QPL LISTING AT THE TIME OF BID OPENING, YOUR BID WAS PROPERLY REJECTED AS NONRESPONSIVE. SEE B 166255, AUGUST 1, 1969.

FOR THESE REASONS YOUR PROTEST IS DENIED.