B-171683, SEP 3, 1971, 51 COMP GEN 141

B-171683, SEP 3, 1971, 51 COMP GEN 141

CONTRACTS - SPECIFICATIONS - CONFORMABILITY OF EQUIPMENT, ETC., OFFERED PART NUMBERS WHERE AN INVITATION PROVIDES FOR THE ACCEPTANCE OF BIDS ON BALL BEARINGS THAT ARE IDENTIFIED BY DIFFERENT PART NUMBERS THAN THOSE CITED IN THE SOLICITATION IF SUCH PARTS ARE PREQUALIFIED, ALTHOUGH AN INQUIRY BY THE CONTRACTING OFFICER TO THE MANUFACTURER OF THE PART OFFERED BY THE LOW BIDDER WOULD HAVE DISCLOSED IT MET THE REQUIREMENTS OF THE CONTROLLED DRAWING CONTAINED IN THE PROCUREMENT PACKAGE, SINCE THE PROCURING AGENCY'S REPRESENTATIVE AT THE MANUFACTURING PLANT REPORTED THAT THE INFORMATION AND DATA AVAILABLE DID NOT SUPPORT ACCEPTANCE OF THE PART OFFERED BY THE LOW BIDDER, THE CONTRACTING OFFICER ACTED REASONABLY IN REJECTING THE LOW BID. HOWEVER, IN FUTURE PROCUREMENTS, WHENEVER THE PART NUMBER OFFERED BY A QUALIFIED VENDOR DIFFERS FROM THE SPECIFICATION REQUIREMENTS, ADVICE AS TO ITS ACCEPTABILITY SHOULD BE OBTAINED FROM THE PRIME CONTRACTOR.

TO KALER, WORSLEY, DANIEL & HOLLMAN, SEPTEMBER 3, 1971:

WE REFER TO YOUR LETTERS OF JANUARY 22, 1971, AND MARCH 17, 1971, RELATING TO YOUR PROTEST AGAINST AWARD OF A CONTRACT TO SKF INDUSTRIES AFTER REJECTION OF THE LOW BID OF YOUR CLIENT, MARLIN-ROCKWELL COMPANY, A DIVISION OF TRW, INC. (MRC/TRW), UNDER INVITATION FOR BIDS NO. DAAJ01 71-B -0082 (P1J) ISSUED BY THE U.S. ARMY AVIATION SYSTEMS COMMAND, ST. LOUIS, MISSOURI.

THE INVITATION CALLED FOR BIDS FOR 1,876 STACKED BALL BEARINGS, FSN 3110- 847-2722, BELL HELICOPTER COMPANY P/N 204-040-346-3, OR QUALIFIED VENDOR'S PART NUMBERS IN ACCORDANCE WITH USAAVSCOM PROCUREMENT PACKAGE NUMBER 204- 040-346 WITH REVISION B DATED JUNE 3, 1968. THE INVITATION AND THE REFERENCED PROCUREMENT PACKAGE BOTH LISTED THE APPROVED SOURCES AND VENDORS AS SKF INDUSTRIES FOR P/N 458804 AND MRC/TRW FOR P/N 1PR MRC-7216D -SP-T MATCHED DB 1/2 PR-MRC-7216D-SP.

THE INVITATION SET FORTH ON PAGE 13 THE FOLLOWING PROVISIONS:

C. 32 SUPPLIES ELIGIBLE FOR CONTRACT-AWARD CONSIDERATION

1. THIS SOLICITATION IS NOT ON AN "OR EQUAL" BASIS, I.E., NOT FOR A BRAND NAME "OR EQUAL" SUPPLIES. HOWEVER, PROSPECTIVE CONTRACTORS MAY SUBMIT BIDS ON SUPPLIES BEARING DIFFERENT PART NUMBERS FROM THOSE CITED IN THE SOLICITATION PROVIDED THAT IN ORDER FOR SUCH BIDS TO BE RESPONSIVE, ALL OF THE FOLLOWING PREREQUISITES MUST BE MET:

A. THAT ON OR BEFORE THE TIME OF BID OPENING THE OFFERED SUPPLIES HAVE BEEN SUCCESSFULLY TESTED WITH A DETAILED TEST REPORT PREPARED THEREON.

B. THAT ON OR BEFORE THE TIME OF BID OPENING THE SUPPLIES AND THEIR TESTING AND APPROVAL THEREOF HAVE BEEN ACCEPTED BY THE PRIME MANUFACTURER AS ACCEPTABLE SUPPLIES AND ARE FULLY INTERCHANGEABLE WITH THE PART NUMBER CITED IN THE SOLICITATION AND SUITABLE FOR THE INTENDED APPLICABLE USE.

C. EVIDENCE OF SUCH PREQUALIFICATION AND ACCEPTANCE IS FURNISHED BY THE PROSPECTIVE CONTRACTOR AS A PART OF HIS BID. IT SHOULD BE NOTED THAT APPROVAL OF THIS ITEM BY THE PRIME MANUFACTURER IS A LENGTHY AND TIME CONSUMING PROCESS.

2. THE DELIVERY SCHEDULE IN THIS SOLICITATION IS CRITICAL AND THE GOVERNMENT DOES NOT HAVE ADEQUATE SPECIFICATION AND TESTING DATA OR FACILITIES TO EVALUATE ALLEGED "OR EQUAL" ITEMS. THE SUPPLIES ELIGIBLE FOR CONTRACT AWARD CONSIDERATION MUST BE:

A. THE SPECIFIC PART NUMBER (OR THEIR SUPERSEDING PART NUMBERS) CITED IN THE SOLICITATION.

B. THOSE SUPPLIES BEARING DIFFERENT PART NUMBERS WHICH COMPLY WITH THE PRODUCT PREQUALIFICATION PROVISIONS SET FORTH IN PARAGRAPH 1 OF THIS CLAUSE.

3. SUPERSEDING PART NUMBERS NOT CITED IN THE INVITATION OFFERED BY VENDORS OF THE PRIME CONTRACTOR MUST ALSO BE QUALIFIED IN ACCORDANCE WITH PARAGRAPH 1 ABOVE, AND EVIDENCE OF PREQUALIFICATION, AND ACCEPTANCE MUST BE FURNISHED WITH VENDOR'S BID.

ON PAGE 16 OF THE INVITATION IMMEDIATELY BELOW THE SPACE PROVIDED FOR LISTING THE MANUFACTURER AND PART NUMBER BID UPON IS THE FOLLOWING PROVISION:

(BIDDER CERTIFIES THAT VENDOR PART NUMBER OR PRIME PART NUMBER OFFERED IS QUALIFIED IN ACCORDANCE WITH THE CONTROLLED DRAWING CONTAINED IN USAAVSCOM PROCUREMENT PACKAGE NUMBER 204-040-346. SEE SECTION C, PARAGRAPH 34, SUBPARAGRAPH 3.)

SKF INDUSTRIES BID ON ITS P/N 458804 AS LISTED IN THE INVITATION AT A UNIT PRICE OF $80.00 AND A TOTAL AMOUNT OF $150,080.00. MRC/TRW INSERTED ITS P/N 7216-D-5-T & 7216-D-5-S IN THE SPACE PROVIDED IN THE BID FORM WITH A UNIT PRICE OF $77.22 AND A TOTAL AMOUNT OF $144,864.72.

MRC/TRW ALSO PLACED A NOTATION NEAR THE PROCUREMENT PACKAGE NUMBER THAT IT WAS "QUOTING TO REVISION F." THERE IS NO REVISION F IN THE PROCUREMENT PACKAGE, HOWEVER, REVISION B WHICH IS REFERENCED IN THE INVITATION, CONTAINS REVISION F, DATED OCTOBER 11, 1967, OF BELL HELICOPTER DRAWING NO. 204-040-346, ORIGINALLY DATED JUNE 22, 1959. THE LATEST REVISION OF THE DRAWING, REVISION F, LISTS THE APPROVED PART NUMBER WHICH WAS USED IN THE INVITATION BUT DOES NOT LIST THE PART NUMBER BID UPON BY MRC/TRW.

AFTER BID OPENING, THE CONTRACTING OFFICER NOTED THAT THE PART NUMBER OFFERED BY MRC/TRW WAS NOT THE ONE LISTED IN THE INVITATION AND HE REQUESTED COMMENTS FROM THE PROCURING AGENCY'S REPRESENTATIVE AT BELL CONCERNING THE ACCEPTABILITY OF THE PART NUMBER OFFERED. THE REPRESENTATIVE RESPONDED THAT "INFORMATION/DATA DOES NOT SUPPORT THE MARLIN-ROCKWELL NUMBER (7216-D-5-T & 7216-D-5-S) AS ACCEPTABLE TO THE ITEM OF SUPPLY, BELL P/N 204-040-346-3." THE CONTRACTING OFFICER THEN REJECTED THE BID OF MRC/TRW BECAUSE IT DID NOT CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION, AND MADE AWARD TO SKF INDUSTRIES AS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER.

YOUR LETTERS TO OUR OFFICE IN SUPPORT OF THE PROTEST FILED BY MRC/TRW EXPLAIN THE DISCREPANCY BETWEEN THE PART NUMBER CALLED FOR IN THE INVITATION AND THE PART NUMBER OFFERED BY MRC/TRW IN ITS BID BY STATING THAT THE PART NUMBER USED IN THE BELL DRAWING AND THE INVITATION WAS A PREPRODUCTION NUMBER AND THE PART NUMBER BID UPON IS A PRODUCTION NUMBER FOR THE BEARING IN QUESTION AND HAS BEEN USED BY MRC/TRW SINCE 1960. YOU SUBMITTED DOCUMENTATION OF MRC/TRW'S EFFORTS FROM 1960 TO 1963 TO GET BELL TO CHANGE THE DRAWING TO LIST ITS QUALIFIED PART BY THE PRODUCTION NUMBER INSTEAD OF THE PREPRODUCTION NUMBER. SUCH EFFORTS WERE APPARENTLY DISCONTINUED AFTER OCTOBER 16, 1963, WHEN YOUR CLIENT RECEIVED INFORMATION FROM A BELL TRANSMISSION GROUP ENGINEER THROUGH THE BENSON ENGINEERING COMPANY, ITS REPRESENTATIVE IN DALLAS, TO THE EFFECT THAT BELL WOULD NOT MAKE A SPECIAL REVISION OF ITS DRAWING FOR SUCH A MINOR CHANGE BECAUSE OF THE COSTS INVOLVED, BUT WOULD INCORPORATE ALL SUCH MINOR CHANGES WHEN A MAJOR CHANGE OF THE DRAWING WAS REQUIRED.

THE DRAWING ITSELF SHOWS THAT SUBSEQUENT TO SUCH ADVICE, REVISION D WAS MADE ON JANUARY 16, 1965, REVISION E ON MARCH 2, 1966, AND REVISION F ON NOVEMBER 11, 1967, WITHOUT ANY CHANGE IN THE APPROVED PART NUMBER FOR MRC/TRW, WHICH CONTINUED TO BE LISTED AS THE NUMBER YOU HAVE IDENTIFIED AS THE PREPRODUCTION NUMBER. THE RECORD IS SILENT AS TO THE REASON FOR BELL'S FAILURE TO MAKE THE REQUESTED CHANGE OF PART NUMBERS WHEN THESE SUBSEQUENT REVISIONS OF THE DRAWING WERE MADE.

YOU SUBMITTED A LIST OF 14 PURCHASE ORDERS FROM BELL HELICOPTER FOR THE BEARING SETS IN QUESTION UNDER THE CURRENT MRC/TRW PRODUCTION NUMBERS AND A LIST OF THREE GOVERNMENT CONTRACTS UNDER WHICH YOU FURNISHED BEARING SETS UNDER THE PRODUCTION NUMBERS. IN SUPPORT OF THE LATTER ASSERTION, YOU ATTACHED A COPY OF RFP DAAJ01-69-R-0052 (1L), ISSUED ON AUGUST 30, 1968, BY THE U.S. ARMY AVIATION MATERIEL COMMAND, WHICH CALLED FOR PROPOSALS ON 403 BEARING SETS AND LISTED THE APPROVED PART NUMBER FOR MRC/TRW AS THE ORIGINAL PART NUMBER SHOWN IN PROCUREMENT PACKAGE NUMBER 204-040-346, REVISION B, DATED JUNE 3, 1968.

YOU CONTEND THAT THE INVITATION IN THE INSTANT PROCUREMENT PERMITS USE OF SUPERSEDING PART NUMBERS NOT CITED IN THE INVITATION, AND THAT THE CERTIFICATION PRINTED BELOW THE SPACE PROVIDED FOR INSERTION OF THE PART NUMBERS BID UPON IS ALL THE EVIDENCE NEEDED TO SUPPORT A FINDING THAT THE PARTS LISTED BY SUPERSEDING PART NUMBERS HAVE BEEN PREQUALIFIED AND ACCEPTED BY THE PRIME MANUFACTURER. THE CERTIFICATION, HOWEVER, IS THAT THE "PART NUMBER OFFERED IS QUALIFIED IN ACCORDANCE WITH THE CONTROLLED DRAWING CONTAINED IN USAAVSCOM PROCUREMENT PACKAGE NUMBER 204-040-346." SINCE THE PART NUMBER OFFERED BY MRC/TRW IS NOT THE ONE LISTED IN THE PROCUREMENT PACKAGE, WE THINK IT IS OBVIOUS THAT SUCH CERTIFICATION DOES NOT APPLY, AND THAT WE MUST LOOK FURTHER FOR THE BID REQUIREMENT IN THE CASE OF A SUPERSEDING PART NUMBER. THE CERTIFICATION SPECIFICALLY REFERS TO SECTION C, PARAGRAPH 32, SUBPARAGRAPH 3, WHICH SETS FORTH THE BID REQUIREMENTS IF A SUPERSEDING PART NUMBER IS OFFERED AND PROVIDES THAT SUPERSEDING PART NUMBERS "MUST ALSO BE QUALIFIED" AND THAT "EVIDENCE OF PREQUALIFICATION, AND ACCEPTANCE MUST BE FURNISHED WITH VENDOR'S BID." SUCH EVIDENCE WAS SUBMITTED WITH THE BID OF MRC/TRW TO SHOW THAT ITS SUPERSEDING PART NUMBER WAS "ALSO" QUALIFIED.

ALTHOUGH YOU STATE THAT THE ONLY EVIDENCE OF QUALIFICATION AND ACCEPTANCE BY BELL THAT MRC/TRW COULD PROVIDE WAS ITS OWN CERTIFICATION, SINCE BELL'S APPROVAL WAS MANIFESTED ONLY BY PRODUCTION ORDERS TO MRC/TRW, YOU SUBMITTED A COPY OF CURRENT PRODUCTION ORDER FROM BELL TO OUR OFFICE IN SUPPORT OF YOUR POSITION. IT IS OUR VIEW THAT SUCH COPY, TOGETHER WITH AN APPROPRIATE EXPLANATION, IF IT HAD BEEN SUBMITTED WITH THE BID, MAY HAVE SATISFIED THE BID REQUIREMENT AND BEEN ADEQUATE TO SHOW ACCEPTABILITY OF THE SUPERSEDING PART NUMBER. YOUR ARGUMENT, THAT UNLESS THE CERTIFICATIONS AS TO SUPERSEDING PART NUMBERS ARE ACCEPTABLE AS EVIDENCE THE INVITATION IS DEFECTIVE, IS NOT PERSUATIVE IN THE CIRCUMSTANCES.

THE COPY OF THE ARMY AVIATION MATERIEL COMMAND SOLICITATION OF AUGUST 30, 1968, WHICH YOU SUBMITTED AS EVIDENCE THAT MRC/TRW HAD SUPPLIED BEARINGS TO OTHER GOVERNMENT AGENCIES UNDER ITS CURRENT PRODUCTION NUMBER, DOES NOT ESTABLISH THAT FACT SINCE IT IS NOT A COPY OF THE CONTRACT WHICH RESULTED FROM THE SOLICITATION. WHILE IT DOES ESTABLISH THAT THE SOLICITATION USED THE SAME PROCUREMENT PACKAGE AS THE PRESENT SOLICITATION AND LISTED THE SAME PREPRODUCTION NUMBER FOR THE BEARING IN QUESTION, IT APPEARS THAT IT WAS A MATTER PECULIARLY WITHIN THE KNOWLEDGE OF MRC/TRW THAT VARIOUS GOVERNMENT AGENCIES WERE BASING THEIR SOLICITATIONS ON INFORMATION SUPPLIED BY BELL WHICH DID NOT SET FORTH MRC/TRW'S CURRENT PRODUCTION NUMBER FOR THE BEARING. GOOD JUDGMENT, IN THESE CIRCUMSTANCES AND EVEN IN THE ABSENCE OF THE BID REQUIREMENTS DISCUSSED ABOVE, WOULD SEEM TO DICTATE THAT MRC/TRW SHOULD HAVE ADVISED THE PROCURING AGENCY THAT THE BEARING OFFERED WAS THE SAME AS THAT CALLED FOR, AND THAT IT WAS ACCEPTABLE TO BELL IN LIEU OF ITS P/N 204 040-346-003.

IN VIEW OF THE FOREGOING, IT WOULD APPEAR THAT THE SITUATION IN WHICH MRC/TRW FOUND ITSELF AS A RESULT OF ITS BID, AND WHICH LED TO REJECTION OF ITS BID AS NONRESPONSIVE, WAS A SITUATION OF ITS OWN MAKING AND WAS NOT A RESULT OF ANY IMPROPER ACTION ON THE PART OF THE ARMY AVIATION SYSTEMS COMMAND. THUS, THE PROCURING AGENCY ACTED ON THE LATEST DRAWING AVAILABLE FROM BELL BOTH IN DRAFTING THE INVITATION AND IN EVALUATING THE BIDS, WHILE THE BID OF MRC/TRW DID NOT RESPOND TO THE INVITATION BY OFFERING THE QUALIFIED PART NUMBER LISTED THEREIN, BUT INSTEAD OFFERED ANOTHER PART NUMBER WITHOUT ANY INFORMATION THAT COULD BE VERIFIED AS TO ITS ACCEPTABILITY TO BELL. CLEARLY THE BID DID NOT CONFORM TO THE BID REQUIREMENTS AND COULD BE CONSTRUED AS RESPONSIVE ONLY IF IT WAS PROPER TO SEEK INFORMATION FROM SOURCES OTHER THAN THE BID.

YOU ASSERT THAT THE PROCURING AGENCY HAD AN OBLIGATION TO SEEK FURTHER INFORMATION FROM MRC/TRW BEFORE REJECTION OF ITS BID, AND YOU CITE AS AUTHORITY OUR DECISION AT 41 COMP. GEN. 620 (1962). WE FIND NO ANALOGY BETWEEN THAT CASE AND THE PRESENT ONE. IN THE 1962 CASE, THE BID WAS RESPONSIVE ON ITS FACE AND SOME CONFUSION AROSE WHEN THE CONTRACTING OFFICER MADE CALCULATIONS ON PROJECTION OF A PERFORMANCE CURVE IN A CHART OBTAINED FROM THE MOTOR MANUFACTURER BUT NOT FROM THE BIDDER. WE HELD THAT THE BIDDER WAS ENTITLED TO BE HEARD IN SUCH A CASE. IN THE PRESENT CASE, HOWEVER, THE BID OF MRC/TRW WAS NOT RESPONSIVE ON ITS FACE NOR WAS ANY CONFLICTING INFORMATION OBTAINED FROM ANY OTHER SOURCE.

ALTHOUGH IT MAY WELL BE THAT AN INQUIRY PRIOR TO AWARD, DIRECTED TO PROPER PERSONNEL AT BELL, WOULD HAVE DISCLOSED THE ACCEPTABILITY OF THE PART NUMBER OFFERED, AN INQUIRY TO THE PROCURING AGENCY'S REPRESENTATIVE AT BELL ELICITED ONLY THAT INFORMATION AND DATA AVAILABLE DID NOT SUPPORT THE OFFERED PART NUMBER AS AN ACCEPTABLE ITEM FOR THE BELL PART NUMBER. IN THESE CIRCUMSTANCES, WE BELIEVE THE CONTRACTING OFFICER ACTED REASONABLY ON THE BASIS OF INFORMATION AVAILABLE TO HIM WHEN HE REJECTED THE BID OF MRC/TRW AS NONRESPONSIVE.

HOWEVER, WE HAVE RECOMMENDED IN OUR LETTER OF TODAY TO THE SECRETARY OF THE ARMY THAT CONSIDERATION BE GIVEN TO ESTABLISHING PROCEDURES FOR USE IN FUTURE PROCUREMENTS WHICH WILL ENSURE THAT ADVICE IS OBTAINED FROM THE PRIME CONTRACTOR WHENEVER A PART NUMBER IS OFFERED BY A QUALIFIED VENDOR WHICH DIFFERS FROM THE PART NUMBER LISTED BY THE PRIME CONTRACTOR AND SET OUT IN THE INVITATION.

FOR THE REASONS STATED, WE FIND NO BASIS FOR LEGAL OBJECTION TO THE ACTION OF THE PROCURING AGENCY. ACCORDINGLY, YOUR PROTEST IS DENIED.