B-171536(1), AUG 6, 1971

B-171536(1): Aug 6, 1971

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A PREVIOUS PROTEST BY ARO WAS WITHDRAWN AFTER GSA AWARDED THEM THE CONTRACT WITHOUT NOTIFYING THE OTHER PARTIES INVOLVED. SINCE AIR SPEED WAS NOT LISTED ON THE QUALIFIED PRODUCTS LIST AS A QUALIFIED MANUFACTURER OR DISTRIBUTOR OF THE TOOLS AS REQUIRED BY CLAUSE 11 OF THE SOLICITATION. THEIR BID WAS PROPERLY REJECTED AS BEING NONRESPONSIVE. WHILE GSA MAY HAVE VIOLATED THE NOTICE REQUIREMENTS OF FPR 1-2.407-8(B)(3). THAT WILL NOT AFFECT THE LEGALITY OF THE AWARD. TO AIR SPEED TOOL COMPANY: REFERENCE IS MADE TO THE TELEGRAM OF MARCH 4. WHICHEVER IS LATER THROUGH JANUARY 31. AWARDS WOULD BE MADE ONLY FOR SUCH PRODUCTS AS HAVE. FOR THOSE ITEMS WHICH WERE SUBJECT TO THE QPL REQUIREMENT. SPACES WERE PROVIDED IN THE SCHEDULE BELOW EACH SUCH ITEM AND BIDDERS WERE REQUESTED TO INSERT THE MANUFACTURER'S NAME AND PRODUCT DESIGNATION AND THE QPL TEST OR QUALIFICATION REFERENCE NUMBER OF EACH QUALIFIED PRODUCT OFFERED.

B-171536(1), AUG 6, 1971

BID PROTEST - NONRESPONSIVE BID - AWARD OF CONTRACT WITHOUT NOTICE TO UNSUCCESSFUL LOW BIDDER DENIAL OF PROTEST BY AIR SPEED TOOL COMPANY AGAINST THE AWARD OF A CONTRACT BY THE FEDERAL SUPPLY SERVICE, GSA, TO ARO CORPORATION UNDER THE IFB ISSUED FOR A REQUIREMENTS TYPE PROCUREMENT OF CERTAIN PORTABLE PNEUMATIC TOOLS. A PREVIOUS PROTEST BY ARO WAS WITHDRAWN AFTER GSA AWARDED THEM THE CONTRACT WITHOUT NOTIFYING THE OTHER PARTIES INVOLVED. SINCE AIR SPEED WAS NOT LISTED ON THE QUALIFIED PRODUCTS LIST AS A QUALIFIED MANUFACTURER OR DISTRIBUTOR OF THE TOOLS AS REQUIRED BY CLAUSE 11 OF THE SOLICITATION, THEIR BID WAS PROPERLY REJECTED AS BEING NONRESPONSIVE. FURTHER, WHILE GSA MAY HAVE VIOLATED THE NOTICE REQUIREMENTS OF FPR 1-2.407-8(B)(3), THAT WILL NOT AFFECT THE LEGALITY OF THE AWARD.

TO AIR SPEED TOOL COMPANY:

REFERENCE IS MADE TO THE TELEGRAM OF MARCH 4, 1971, AND LETTER OF MARCH 15, 1971, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE ARO CORPORATION UNDER INVITATION FOR BIDS (IFB) NO. FPNTP-B6-18729-A, ISSUED ON OCTOBER 9, 1970, BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION (GSA).

THE SOLICITATION INVITED BIDS FOR A REQUIREMENTS TYPE CONTRACT FOR CERTAIN PORTABLE PNEUMATIC TOOLS (FSC CLASS-5130) FOR THE PERIOD APRIL 1, 1971, OR DATE OF AWARD, WHICHEVER IS LATER THROUGH JANUARY 31, 1972.

CLAUSE 7 ON PAGE 9 OF THE SOLICITATION PROVIDED THAT AWARD WOULD BE MADE ITEM-BY-ITEM ON THE BASIS OF THE GOVERNMENT'S ESTIMATED PEAK MONTHLY REQUIREMENTS. CLAUSE 11 PROVIDED THAT WITH RESPECT TO THOSE PRODUCTS DESCRIBED IN THE SOLICITATION AS REQUIRING QUALIFICATION, AWARDS WOULD BE MADE ONLY FOR SUCH PRODUCTS AS HAVE, PRIOR TO THE TIME SET FOR RECEIPT OF OFFERS, BEEN TESTED AND APPROVED FOR INCLUSION ON THE QUALIFIED PRODUCTS LIST (QPL) IDENTIFIED IN THE CLAUSE. FOR THOSE ITEMS WHICH WERE SUBJECT TO THE QPL REQUIREMENT, SPACES WERE PROVIDED IN THE SCHEDULE BELOW EACH SUCH ITEM AND BIDDERS WERE REQUESTED TO INSERT THE MANUFACTURER'S NAME AND PRODUCT DESIGNATION AND THE QPL TEST OR QUALIFICATION REFERENCE NUMBER OF EACH QUALIFIED PRODUCT OFFERED.

BIDS WERE OPENED ON NOVEMBER 17, 1970, AND 16 BIDS WERE RECEIVED. THE ITEMS IN ISSUE ARE 2, 7, 8, 9, 13 AND 28, ALL OF WHICH WERE SUBJECT TO THE QPL REQUIREMENT. AIR SPEED WAS LOW BIDDER ON EACH OF THESE ITEMS.

FOR EACH OF THE QPL ITEMS IN QUESTION, AIR SPEED MADE TWO INSERTIONS IN THE SCHEDULE'S PURCHASE DESCRIPTION. IN THE SPACES PROVIDED FOR THE MANUFACTURER'S NAME AND QPL TEST NUMBER, AIR SPEED INSERTED "D-K PRODUCTS DIVISION" AND ALSO DESIGNATED A QPL TEST NUMBER. IT WAS FOUND THAT AIR SPEED'S INSERTIONS RELATING TO THE D-K IDENTITY AND QPL TEST NUMBER WERE LISTED ON THE QPL. ON THE RIGHT HAND SIDE OF THE PURCHASE DESCRIPTION OF EACH OF THE ITEMS IN QUESTION AIR SPEED INSERTED "AIR SPEED TOOL COMPANY" AND ITS OWN MODEL NUMBERS. ALSO, ON PAGES 11 AND 12 (PARAGRAPHS 13 AND 15) AIR SPEED INDICATED THAT IT WAS THE MANUFACTURER OF THE ITEMS IN QUESTION. IT WAS FOUND THAT AIR SPEED WAS NOT LISTED ON THE APPLICABLE QPL AS A QUALIFIED MANUFACTURER OF THE MODELS OR AS AN AUTHORIZED DEALER OR DISTRIBUTOR OF THE D-K MODELS.

BY LETTER OF DECEMBER 14, 1970, ARO CORPORATION PROTESTED AGAINST ANY AWARDS TO YOUR CONCERN FOR ITEMS NOS. 2, 7, 8, 9, 13 AND 28, ON THE BASIS THAT YOUR BID DID NOT MEET THE QPL REQUIREMENT FOR THESE ITEMS. AIR SPEED HAD SUBMITTED CERTAIN COMMENTS ON ARO'S PROTEST IN ITS LETTERS TO OUR OFFICE DATED DECEMBER 21, 1970, JANUARY 8 AND 14, 1971, AND OUR OFFICE HAD BEEN ADVISED THAT AIR SPEED WOULD SUBMIT ADDITIONAL COMMENTS WITH RESPECT TO ARO'S PROTEST.

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

WE HAVE BEEN ADVISED BY GSA THAT D-K WAS ON THE QPL LIST FOR THE ITEMS IN QUESTION AT THE TIME OF BID OPENING AND AT THE TIME OF AWARD (JANUARY 25, 1971). D-K WAS REMOVED FROM THE QPL LIST ON MAY 3, 1971. A LETTER DATED APRIL 9, 1971, FROM AIR SPEED ADDRESSED TO THE NAVAL SHIP ENGINEERING CENTER (NSEC), THE AGENCY DESIGNATED IN THE SPECIFICATION AS BEING RESPONSIBLE FOR THE QPL, INDICATES THAT AIR SPEED PURCHASED D-K'S OPERATING EQUIPMENT ON APRIL 8, 1971. A LETTER DATED MARCH 15, 1971, FROM NSEC TO AIR SPEED STATES THAT D-K HAD ADVISED THE CENTER THAT IT WAS NO LONGER MANUFACTURING THE PRODUCTS ON THE QPL LIST AT ITS LOS ANGELES FACILITIES. SEE B-171536(2) DATED JUNE 7, 1971.

THE CONTENTIONS IN YOUR PROTEST MAY BE SUMMARIZED AS FOLLOWS:

(1) THAT THE PRODUCTS OFFERED ARE MANUFACTURED BASICALLY BY D-K AND THEN INSPECTED, ASSEMBLED AND OTHERWISE COMPLETED BY AIR SPEED AND THE POINT OF PRODUCTION BUT NOT OF BASIC MANUFACTURE IS AT AIR SPEED'S PLANT ADDRESS.

(2) THAT THE AWARD TO ARO SHOULD BE CANCELLED SINCE GSA FAILED TO NOTIFY OUR OFFICE OF THE PROPOSED AWARD WHILE YOU WERE IN THE PROCESS OF COMMENTING ON ARO'S PENDING PROTEST WITH OUR OFFICE.

FPR 1-1.1101(A) PROVIDES THAT WHENEVER QUALIFIED PRODUCTS ARE TO BE PROCURED ONLY BIDS OR PROPOSALS OFFERING PRODUCTS WHICH HAVE BEEN QUALIFIED PRIOR TO BID OPENING SHALL BE CONSIDERED IN MAKING AN AWARD. CLAUSE 11 ON PAGES 10 AND 11 OF THE IFB WAS CONSISTENT WITH THIS PROVISION. PARAGRAPHS (B) AND (C) OF CLAUSE 11 PROVIDE THAT IF THE BIDDER WAS NOT THE ACTUAL MANUFACTURER OF A QUALIFIED PRODUCT, OR A QUALIFIED DISTRIBUTOR, I.E., ONE AUTHORIZED BY THE MANUFACTURER TO REBRAND AND DISTRIBUTE THE MANUFACTURER'S PRODUCT UNDER THE DISTRIBUTOR'S OWN BRAND DESIGNATION (SEE PARAGRAPH 11(C)), SUCH BIDDER WOULD BE INELIGIBLE TO BID ON THE QUALIFIED PRODUCTS. IT IS APPARENT THAT AIR SPEED WAS BIDDING AS A DISTRIBUTOR FOR D-K ON THE ITEMS IN QUESTION. AS STATED, D-K WAS LISTED ON THE QPL FOR THESE ITEMS AT THE TIME OF BIDDING. HOWEVER, AIR SPEED WAS NEITHER LISTED ON THE QPL AS A MANUFACTURER NOR AS AN AUTHORIZED DEALER OR DISTRIBUTOR OF THE D-K MODELS. ACCORDINGLY, AIR SPEED'S BIDS FOR THE ITEMS IN QUESTION WERE PROPERLY REJECTED PURSUANT TO CLAUSE 11 OF THE SOLICITATION. 36 COMP. GEN. 809 (1957).

WITH REGARD TO CONTENTION (2) ABOVE, GSA HAS CONCEDED THAT IT FAILED TO NOTIFY OUR OFFICE PRIOR TO PROCEEDING WITH THE AWARD TO ARO. IN THIS REGARD GSA CONSTRUED FPR 1-2.407-8(B)(3) AS PROTECTING THE INTERESTS OF A PROTESTING BIDDER AND SINCE ARO HAD AGREED TO WITHDRAW ITS PROTEST UPON RECEIPT OF AWARD, GSA DID NOT GIVE NOTIFICATION OF THE PROPOSED AWARD EITHER TO OUR OFFICE OR TO AIR SPEED. GSA CONCEDES THAT A LITERAL READING OF THE REGULATION WOULD REQUIRE NOTICE TO OUR OFFICE UNDER THE FACTS PRESENTED. GSA HAS ADVISED THAT ADMINISTRATIVE ACTION HAS BEEN TAKEN TO AVOID A RECURRENCE OF THIS TYPE OF SITUATION AND THAT FPR AND THE GENERAL SERVICES ADMINISTRATION PROCUREMENT REGULATIONS WILL BE REVIEWED FOR THE PURPOSE OF DETERMINING WHETHER ANY CHANGES SHOULD BE MADE TO SPECIFICALLY COVER THIS TYPE OF CASE. WHILE THERE APPARENTLY WAS SOME CONFUSION WITH RESPECT TO THE NOTICE REQUIREMENT IN FPR 1-2.407-8(B)(3), GSA'S FAILURE TO PROVIDE PROPER NOTICE TO OUR OFFICE OR TO THE UNSUCCESSFUL LOW BIDDER DOES NOT AFFECT THE LEGALITY OF THE AWARDS MADE. SEE B-168753, MARCH 25, 1970.

WE ARE ADVISING GSA THAT APPROPRIATE STEPS SHOULD BE TAKEN TO ASSURE THAT UNSUCCESSFUL LOWER BIDDERS ARE GIVEN PROMPT NOTICE OF THE REJECTION OF THEIR BIDS IN ACCORDANCE WITH FPR 1-2.408(A)(1).

THE LETTER OF MARCH 15 ALSO MENTIONS BLACK AND DECKER'S PROTEST ON DIFFERENT GROUNDS AGAINST AN AWARD TO AIR SPEED FOR ITEM NO. 5. THIS PROTEST WAS THE SUBJECT OF OUR DECISION B-171536(2), JUNE 7, 1971 (COPY ENCLOSED); CONSEQUENTLY, WE DO NOT FIND IT NECESSARY TO COMMENT FURTHER ON THAT PROTEST.