B-171742, JUN 9, 1971

B-171742, JUN 9, 1971

BID PROTEST - FIRST ARTICLE APPROVAL - WAIVER DENYING PROTEST BY LOW BIDDER AGAINST AWARD OF A CONTRACT TO MALSBARY MANUFACTURING COMPANY UNDER AN IFB ISSUED BY THE ROCK ISLAND ARSENAL FOR 103 WHEEL MOUNTED PRESSURE JET STEAM CLEANERS. WHERE THE SOLICITATION CALLED FOR BIDS ON THE BASIS OF FIRST ARTICLE APPROVAL OR WITHOUT FIRST ARTICLE APPROVAL, PROTESTANT'S OFFER WITHOUT APPROVAL MUST BE REJECTED WHEN ITS PREVIOUSLY APPROVED CLEANER WAS A FOUR- WHEEL MODEL AND NOT THE NEW TWO-WHEEL CONFIGURATION CALLED FOR IN THE INVITATION. APPROVAL CANNOT BE WAIVED AFTER CHANGES IN SPECIFICATIONS HAVE BEEN MADE.

TO SIOUX STEAM CLEANER CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM DATED JANUARY 22, 1971, AND YOUR LETTERS DATED JANUARY 22, AND APRIL 28, 1971, PROTESTING THE AWARD OF A CONTRACT TO MALSBARY MANUFACTURING COMPANY FOR WHEEL MOUNTED PRESSURE JET STEAM CLEANERS AND TECHNICAL DATA UNDER INVITATION FOR BIDS NO. DAAF01-71- B-0271, ISSUED BY ROCK ISLAND ARSENAL.

THE SOLICITATION WAS FOR 103 CLEANERS AND BIDS WERE REQUESTED ON THE BASIS OF FIRST ARTICLE APPROVAL OR WITHOUT FIRST ARTICLE APPROVAL, F.O.B. ORIGIN, OR F.O.B. DESTINATION. THE ITEM BEING PROCURED WAS TO BE IN ACCORDANCE WITH ROCK ISLAND ARSENAL, TOOL AND EQUIPMENT DIVISION, PURCHASE DESCRIPTION T&E PD-22A, DATED JULY 21, 1965, WITH 35 STATED EXCEPTIONS, COVERING DELETIONS AND ADDITIONS TO THE PURCHASE DESCRIPTION. THE BASIC PURCHASE DESCRIPTION AND SPECIFICATIONS ARE FOR A FOUR-WHEEL STEAM CLEANER. THE BASIC PURCHASE DESCRIPTION AS MODIFIED UNDER THE SUBJECT SOLICITATION CALLS FOR A TWO-WHEEL CLEANER WITH NECESSARY AND APPROPRIATE MINOR AND MAJOR CHANGES, INCLUDING CHANGES IN THE CHASSIS, MOUNTINGS, AND SAFETY DEVICES.

PAGE 16 OF THE INVITATION STATES IN PART:

"NOTICE:

"THIS PROCUREMENT IS SUBJECT TO FIRST ARTICLE APPROVAL TESTS. OFFERS ARE INVITED ON THE BASIS OF 'WITH FIRST ARTICLE APPROVAL' AND 'WITHOUT FIRST ARTICLE APPROVAL.' THE FACT THAT AN OFFEROR HAS PREVIOUSLY FURNISHED THE ITEM DOES NOT NECESSARILY MEAN THE FIRST ARTICLE WILL BE WAIVED. A FIRST ARTICLE MAY STILL BE REQUIRED. WAIVERS OF FIRST ARTICLE WILL BE CONSIDERED ON A CASE BY CASE BASIS.

"THE GOVERNMENT RESERVES THE RIGHT TO WAIVE THE REQUIREMENTS FOR FIRST ARTICLE APPROVAL TESTING WHERE SUPPLIES IDENTICAL OR SIMILAR TO THOSE CALLED FOR IN THE SCHEDULE HAVE BEEN PREVIOUSLY FURNISHED BY THE OFFEROR AND HAVE BEEN ACCEPTED BY THE GOVERNMENT. ***

"ANY AWARD IF MADE, WILL BE MADE WITH FIRST ARTICLE OR WITHOUT FIRST ARTICLE (NOT BOTH) - (F.O.B. DESTINATION OR F.O.B. ORIGIN)

"AWARD WILL BE MADE TO THAT RESPONSIBLE OFFEROR WHOSE OFFER CONFORMING TO THE SOLICITATION, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. *** "

BIDS WERE RECEIVED FROM FIVE PROSPECTIVE CONTRACTORS. THE TWO LOW BIDS WERE AS FOLLOWS:

DEST. ORIGIN DEST. ORIGIN

CONTRACTOR W/FAA W/FAA WO/FAA WO/FAA

MALSBARY MFG. CO. -- $1628.00 -- --

SIOUX STEAM CLEANER $1803.18 $1672.16 $1611.22 $1471.30

SIOUX STEAM CLEANER WAS THE APPARENT LOW BIDDER ON THE BASIS OF WAIVER OF FIRST ARTICLE APPROVAL. THE SIOUX BID STATED THAT APPROVAL OF THE ITEM WAS PREVIOUSLY GRANTED BY THE GOVERNMENT TO SIOUX UNDER ARMY CONTRACT DAAF01-69-C-0419.

THE CONTRACTING OFFICER SUBMITTED AN INQUIRY TO THE TOOL AND EQUIPMENT DIVISION, ROCK ISLAND ARSENAL, INQUIRING WHETHER FIRST ARTICLE TESTING COULD BE WAIVED FOR THE SIOUX COMPANY. THE REPLY WAS THAT FIRST ARTICLE TESTING COULD NOT BE WAIVED SINCE THE SIOUX CLEANER PREVIOUSLY APPROVED WAS A FOUR WHEEL MODEL AND NOT THE NEW TWO-WHEEL CONFIGURATION CALLED FOR UNDER THE SUBJECT INVITATION. IN VIEW OF THIS ADVICE, MALSBARY MANUFACTURING COMPANY WAS DETERMINED TO BE THE LOW BIDDER ON THE BASIS OF FIRST ARTICLE APPROVAL, AND WAS AWARDED A CONTRACT ON JANUARY 18, 1971.

YOU PROTEST THE AWARD TO MALSBARY FOR THE FOLLOWING REASONS:

1. THE ADDITIONAL COST ($17 PER UNIT) DIFFERENCE BETWEEN FIRST ARTICLE TESTED UNITS AND UNITS PRODUCED WITH THE TEST WAIVED IS UNWARRANTED.

2. THE MALSBARY UNIT PRICE IS AN ALL-TIME HIGH AND RESULTS IN THE EXPENDITURE BY THE GOVERNMENT OF UNNECESSARY FUNDS.

3. ROCK ISLAND ARSENAL WILL SPEND UP TO $10,500 FOR FIRST ARTICLE TESTING.

FURTHER, YOU CONTEND THAT YOU SHOULD HAVE BEEN GRANTED A WAIVER OF THE FIRST ARTICLE TESTING SINCE THE MODIFICATIONS REQUIRED TO ALTER THE RUNNING GEAR AND CHASSIS FRAME FROM A FOUR-WHEEL CONFIGURATION TO A TWO WHEEL CONFIGURATION REQUIRE NO INTEGRAL COMPONENT CHANGE.

THE TESTING ACTIVITY, THE TOOL AND ENGINEERING DIVISION, AT ROCK ISLAND ARSENAL, REPORTS THAT SINCE THE SIOUX CLEANER PREVIOUSLY APPROVED UNDER THE EARLIER CONTRACT DOES NOT REFLECT THE NEW TWO-WHEEL CONFIGURATION, FIRST ARTICLE TESTS ARE REQUIRED TO ESTABLISH STRUCTUAL INTEGRITY AND ABILITY OF THE NEW DESIGN TO MEET MOBILITY REQUIREMENTS. ALTHOUGH IT IS CONCEDED THAT THE STEAM CLEANER APPARATUS MAY BE THE SAME ON THE FOUR WHEEL UNIT AS ON THE SOLICITED TWO-WHEEL UNIT, IT IS REPORTED THAT THE CHANGES MADE IN MOBILITY, RUNNING GEAR, AND CHASSIS FRAME REQUIREMENTS INVOLVED BALANCE PROBLEMS WHICH NECESSITATED FIRST ARTICLE APPROVAL TESTING. FURTHER, THE NEED IS NOTED FOR TESTING ADDITIONAL FACTORS, SUCH AS LIFTING ATTACHMENTS DESIGNED TO EFFECT BALANCE, ADDITIONAL AUTOMATIC SAFETY CONTROLS DESIGNED TO PROVIDE PROTECTION TO THE EQUIPMENT, AND SAFETY DEVICES DESIGNED TO OFFER PROTECTION TO THE OPERATOR.

UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1902(A)(I) (A) AND (B), A REQUIREMENT FOR FIRST ARTICLE APPROVAL TESTS MAY BE CONSIDERED APPROPRIATE WHEN THE PARTICULAR PROCUREMENT ITEM HAS NOT BEEN PREVIOUSLY FURNISHED OR WHERE THE PROCUREMENT ITEM HAS BEEN PREVIOUSLY FURNISHED BY THE BIDDER TO THE GOVERNMENT BUT THERE HAVE BEEN CHANGES IN PROCESSES OR SPECIFICATIONS, OR PRODUCTION HAS BEEN DISCONTINUED FOR AN EXTENDED PERIOD OF TIME. IN A SIMILAR SITUATION INVOLVING PREPRODUCTION SAMPLES, WE HAVE UPHELD THE REFUSAL OF A PROCURING AGENCY TO WAIVE A PREPRODUCTION SAMPLE EVALUATION AND APPROVAL REQUIREMENT IN AN INVITATION FOR BIDS WHERE SPECIFICATION CHANGES HAD BEEN MADE IN THE EQUIPMENT SUBSEQUENT TO THE TIME THAT THE PROTESTING BIDDER HAD PRODUCED SAMPLES, AND THE AGENCY'S TECHNICAL PERSONNEL HAD DETERMINED THAT THE PREPRODUCTION SAMPLES WERE NECESSARY TO INSURE THAT THE EQUIPMENT PURCHASED WOULD PERFORM AS REQUIRED. B 153175, JUNE 10, 1964; B-162438, FEBRUARY 15, 1968.

WE HAVE RECOGNIZED THAT THE DETERMINATION WHETHER TO WAIVE THE FIRST ARTICLE TEST REQUIREMENT IS WITHIN THE REASONABLE DISCRETION OF THE CONTRACTING ACTIVITY. 46 COMP. GEN. 123 (1966). THEREFORE, AND IN VIEW OF THE CIRCUMSTANCES HERE CONSIDERED, WE FIND NO BASIS TO QUESTION THE ADMINISTRATIVE DETERMINATION IN THIS CASE.

SINCE THE MALSBARY BID ON THE BASIS OF FIRST ARTICLE APPROVAL, WAS THE LOW RESPONSIVE BID FROM A RESPONSIBLE BIDDER, THERE IS NO BASIS FOR OUR OFFICE TO OBJECT TO THE AWARD.

CONCERNING YOUR STATEMENT THAT MALSBARY'S UNIT PRICE REPRESENTS AN "ALL- TIME" HIGH FOR THE ITEM, WE MSUT POINT OUT THAT IT WAS THE LOW BID PRICE "WITH FIRST ARTICLE APPROVAL." IN ADDITION, WE NOTE THAT THIS IS THE SECOND PROCUREMENT FOR TWO-WHEEL STEAM CLEANERS. THE FIRST PROCUREMENT WAS MADE AT A UNIT PRICE OF $1,583.99 FOR 190 UNITS, IN JUNE 1970. SINCE THIS PROCUREMENT IS FOR A SUBSTANTIALLY LESSER NUMBER, WE DO NOT VIEW THE CURRENT PRICE AS EXCESSIVE.

ACCORDINGLY, YOUR PROTEST IS DENIED.