B-171702, MAY 26, 1971

B-171702, MAY 26, 1971

BID PROTEST - PRE-QUALIFICATION DECISION CONCERNING THE PROTEST OF FEDERAL SIGN AND SIGNAL CORPORATION AGAINST AWARD OF A CONTRACT TO RADIO CORPORATION OF AMERICA UNDER A SOLICITATION ISSUED BY THE BUREAU OF LAND MANAGEMENT FOR VHF/UHF RADIO COMMUNICATION EQUIPMENT. ALTHOUGH REMEDIAL ACTION IS PRECLUDED DUE TO COMPLETION OF THE CONTRACT, FUTURE PROCUREMENTS SHOULD FOLLOW THE GUIDELINES IN ASPR 1 1105. A QPL, INHERENTLY INVOLVING AN ELEMENT OF RESTRICTION ON FULL AND FREE COMPETITION, SHOULD BE USED ONLY WHEN IT IS IN THE GOVERNMENT'S INTEREST, AND SUCH PROCEDURE SHOULD PROVIDE FOR CIRCULARIZATION OF THE INDUSTRY, ESPECIALLY WHERE PRE-QUALIFICATION IS REQUIRED.

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER DATED MARCH 4, 1971, WITH ENCLOSURES, ON THE PROTEST OF FEDERAL SIGN AND SIGNAL CORPORATION (FSS), OF BLUE ISLAND, ILLINOIS, AFTER AWARD OF A CONTRACT TO RADIO CORPORATION OF AMERICA (RCA), UNDER SOLICITATION NO. P-1-145, ISSUED BY THE BUREAU OF LAND MANAGEMENT (BLM), ON NOVEMBER 16, 1970, FOR VHF/UHF RADIO COMMUNICATION EQUIPMENT.

THE INVITATION SOLICITED EQUIPMENT CONFORMING TO SPECIFICATIONS CONTAINED IN "SPECIFICATIONS FOR RADIO COMMUNICATIONS EQUIPMENT, PART 1, VHF/UHF" ISSUED BY THE BLM ON JULY 1, 1970.

SECTION 1.2 OF THE SPECIFICATIONS PROVIDED IN ESSENCE THAT EQUIPMENT OFFERED WOULD BE CONSIDERED AS MEETING THE SPECIFICATIONS ONLY IF IT HAD BEEN (A) TESTED AND CERTIFIED BY THE BLM OR (B) ACCEPTED BY ANOTHER FEDERAL GOVERNMENT AGENCY WHOSE SPECIFICATIONS ARE EQUAL TO OR EXCEED THOSE OF THE BLM.

BIDS WERE OPENED ON DECEMBER 7, 1970. THE LOW BID AT $607 PER UNIT FOR ITEMS 1, 2 AND 3 OF SCHEDULE A WAS SUBMITTED BY FSS; RCA SUBMITTED THE SECOND LOW BID AT $613 PER UNIT.

IN ITS BID FSS LISTED ITSELF AS THE MANUFACTURER OF THE ITEMS OFFERED UNDER SCHEDULE A AND IDENTIFIED THE COMPONENTS BY ITS OWN MODEL NUMBERS. SINCE THE ITEMS OFFERED BY FSS APPARENTLY DID NOT MEET THE REQUIREMENTS OF SECTION 1.2 AS SET OUT ABOVE, ITS BID WAS REJECTED.

THE RCA BID INDICATED THAT THE PRODUCT OFFERED BY THAT FIRM, MANUFACTURED BY REPCO OF ORLANDO, FLORIDA, HAD PREVIOUSLY BEEN CERTIFIED OR ACCEPTED BY BLM, THUS COMPLYING WITH THE PROVISIONS OF SECTION 1.2 OF THE SPECIFICATIONS. ON THAT BASIS THE AWARD WAS MADE TO RCA ON DECEMBER 29, 1970. IT IS REPORTED THAT DELIVERIES WERE EXPECTED TO BE COMPLETED IN FEBRUARY 1971.

ABOUT THE TIME OF BID OPENING FSS REPRESENTATIVES ADVISED BLM PERSONNEL THAT THE UNITS THEY PROPOSED TO FURNISH WERE MANUFACTURED BY REPCO, THE MANUFACTURER OF THE PRODUCT OFFERED BY RCA BUT THAT FSS WOULD PERFORM SOME OF THE ASSEMBLY WORK. AFTER AWARD BLM PERSONNEL DISCOVERED THAT THE ITEMS OFFERED BY FSS WERE MANUFACTURED AND FULLY ASSEMBLED BY REPCO AND THAT FSS APPARENTLY ONLY ADDED ITS NAME PLATE TO THE UNITS. THE REPORT STATES THAT KNOWLEDGE OF THIS LAST FACT PRIOR TO BID OPENING WOULD HAVE HAD SIGNIFICANT EFFECT ON THE EVALUATION OF BIDS.

SECTION 1.2 OF THE SPECIFICATIONS LIMITS ACCEPTABLE BIDS TO THOSE OFFERING EQUIPMENT PREVIOUSLY ACCEPTED OR CERTIFIED BY BLM OR, IN LIMITED CIRCUMSTANCES, FURNISHED TO ANOTHER FEDERAL AGENCY. THE PROVISION REFERS TO A STATEMENT OR CERTIFICATION OF ACCEPTANCE OF THE EQUIPMENT AS THE RESULT OF TESTS PERFORMED BY BLM, WITHIN THE PERIOD FOLLOWING THE ISSUANCE OF CURRENT SPECIFICATIONS. SECTION 1.4 OF THE SPECIFICATIONS PROVIDES THAT ALL EQUIPMENT OFFERED FOR ACCEPTANCE MUST BE PREVIOUSLY TESTED BY THE BUREAU OR ITS DESIGNEE AND PROVIDES AN ADDRESS TO WHICH INQUIRIES MAY BE DIRECTED.

WE DO NOT AGREE THAT THE PROCEDURE EMPLOYED IN THIS INSTANCE IS IN ANY WAY ANALOGOUS TO THE PROCEDURE APPROVED IN 26 COMP. GEN. 676 (1947). THAT CASE WE INDICATED THAT AWARD COULD PROPERLY BE RESTRICTED TO A FIRM MEETING SPECIALIZED EXPERIENCE REQUIREMENTS. EVEN THAT RULE HAS BEEN MATERIALLY LIMITED. SEE 43 COMP. GEN. 275, 278 (1963).

IN 36 COMP. GEN. 809 (1957) THIS OFFICE HELD THAT THE RESTRICTION OF A PROCUREMENT TO THOSE BIDDERS OFFERING A QUALIFIED PRODUCT DOES NOT RENDER AN AWARD ILLEGAL BECAUSE SOME BIDDERS WERE UNABLE TO QUALIFY IN TIME FOR AWARD. HOWEVER, THAT DECISION WAS REACHED IN THE LIGHT OF CERTAIN ESTABLISHED FACTS - NOT PRESENT HERE - NAMELY, THAT ALL INTERESTED MANUFACTURERS WERE CIRCULARIZED PRIOR TO THE ISSUANCE OF THE INVITATION, AND THE INCLUSION OF THE ITEM ON THE QPL WAS NOTED IN A PUBLICATION NORMALLY RECEIVED BY INTERESTED MANUFACTURERS IN SUFFICIENT TIME TO QUALIFY THEIR PRODUCTS AND TO BE ELIGIBLE FOR AWARD UNDER THE TERMS OF THE INVITATION.

HERE, THE ONLY NOTIFICATION PROCEDURE APPEARS TO BE THAT CONTAINED IN THE INVITATION FOR BIDS WHICH WAS ISSUED ON NOVEMBER 16, 1970. BIDS WERE OPENED ON DECEMBER 7, 1970, ALLOWING APPROXIMATELY THREE WEEKS BETWEEN NOTIFICATION AND OPENING, A MEAGER QUALIFYING PERIOD, PARTICULARLY IN LIGHT OF THE FACT THAT PRELIMINARY CORRESPONDENCE SEEMS TO HAVE BEEN REQUIRED TO LEARN PRECISELY HOW AND WHEN A PRODUCT SHOULD BE SUBMITTED FOR CERTIFICATION. ALTHOUGH THE ADMINISTRATIVE REPORT INDICATES THAT THE SUBJECT SPECIFICATION WAS "WIDELY DISTRIBUTED THROUGHOUT THE INDUSTRY" THERE IS NO INDICATION AS TO THE ACTUAL EXTENT OF SUCH CIRCULATION. NOR CAN WE FIND ANY SUPPORT FOR THE PROCEDURE IN THE REGULATIONS OF EITHER THE DEPARTMENT OF THE INTERIOR OR BLM.

ANY PROCUREMENT PROCEDURE SUCH AS THE QPL WHICH INHERENTLY INVOLVES AN ELEMENT OF RESTRICTION ON FULL AND FREE COMPETITION, IN DEROGATION OF THE PURPOSE OF THE PROCUREMENT STATUTES, SHOULD BE EMPLOYED ONLY WHEN ITS USE IS CLEARLY IN THE GOVERNMENT'S INTERESTS; AND EVEN IN THOSE CIRCUMSTANCES CARE SHOULD BE TAKEN TO INSURE THAT THE PROCEDURE EMPLOYED ENCOURAGES FULL AND FREE COMPETITION TO THE EXTENT IT IS OBTAINABLE IN THE CIRCUMSTANCES CONSISTENT WITH THE LEGITIMATE NEEDS OF THE GOVERNMENT. WE BELIEVE, THEREFORE, THAT AT A MINIMUM ANY SUCH PROCEDURE SHOULD PROVIDE FOR CIRCULARIZATION OF THE INDUSTRY, EITHER DIRECTLY OR BY PUBLICATION IN THE COMMERCE BUSINESS DAILY, SO THAT PROSPECTIVE BIDDERS MAY BE ADVISED IN SUFFICIENT TIME TO BECOME ELIGIBLE OF THE NEED FOR PREQUALIFICATION. THE ASPR PROVISIONS ON THE POINT (ASPR 1-1105), COULD WELL SERVE AS A GUIDE IN THIS RESPECT.

IN THE INSTANT CASE DELIVERIES UNDER THE CONTRACT WERE APPARENTLY COMPLETED BEFORE THE ADMINISTRATIVE REPORT WAS SENT AND WE ARE PRECLUDED FROM TAKING ANY REMEDIAL ACTION IN THE MATTER. HOWEVER, FUTURE PROCUREMENTS SHOULD UTILIZE PROCEDURES CONSISTENT WITH THE FOREGOING.

AS REQUESTED, WE ARE RETURNING THE DOCUMENTS FURNISHED WITH THE ADMINISTRATIVE REPORT. CONTRARY TO THE INDICATION IN THE LETTER OF MARCH 4, THE RCA BID WAS NOT SUBMITTED TO US. ..END :