B-171831(1), JUN 9, 1971

B-171831(1): Jun 9, 1971

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THE AWARD WILL NOT BE DISTURBED. AN AWARD COULD HAVE BEEN MADE TO PROTESTANT'S FIRM ON ITS BID OFFERING AN UNQUALIFIED SWITCH. FOR IT COULD HAVE BEEN TESTED FOR QUALIFICATION AT THE TIME THE SUBCONTRACT IS AWARDED. PROTESTANT'S OFFER TO FURNISH THE REQUIRED PRODUCT AT A HIGHER PRICE MADE 7 WEEKS AFTER BID OPENING WAS PROPERLY REJECTED AS AN ATTEMPT TO NEGOTIATE A HIGHER PRICE. FOUR BIDS WERE RECEIVED BY THE BID OPENING DATE. YOUR FIRM WAS LOW WITH A UNIT PRICE OF $58.10 WITHOUT CONTRACTOR TESTING AND $60.10 WITH CONTRACTOR TESTING. BALL WAS SECOND LOW WITH EQUIVALENT UNIT PRICES OF $76.37 AND $77.50. THE CONTRACT WAS AWARDED ON JANUARY 28. YOUR PROTEST IS BASED ON THIS 4-WAY SWITCH. A PREAWARD SURVEY WAS REQUESTED ON THE THREE LOW BIDDERS.

B-171831(1), JUN 9, 1971

BID PROTEST - BID RESPONSIVENESS - QPL REQUIREMENT DENIAL OF PROTEST BY LOW BIDDER AGAINST AWARD OF A CONTRACT TO A. C. BALL COMPANY, SECOND LOW BIDDER, UNDER AN IFB ISSUED BY THE ARMY AVIATION SYSTEMS COMMAND, FOR CONTROLLER GRIP ASSEMBLIES. CONTROVERSY CENTERS ON A QUALIFIED PRODUCTS LIST (QPL) REQUIREMENT FOR A 4-WAY SWITCH, NECESSARY FOR PROPER FUNCTIONING OF THE END PRODUCT. ALTHOUGH PROCURING AGENCY DID NOT GIVE PROPER NOTICE OF THE QPL REQUIREMENT FOR THE COMPONENT AS REQUIRED BY ASPR 1-1107.2(B) - REFERENCE IN A DRAWING OF THE 4-WAY SWITCH TO A PROCUREMENT SPECIFICATION WHICH CONTAINS A QPL NOT BEING AN ACCEPTABLE SUBSTITUTE FOR THE ASPR REQUIREMENT, THE AWARD WILL NOT BE DISTURBED. WHILE UNDER ASPR REGULATIONS, AN AWARD COULD HAVE BEEN MADE TO PROTESTANT'S FIRM ON ITS BID OFFERING AN UNQUALIFIED SWITCH, FOR IT COULD HAVE BEEN TESTED FOR QUALIFICATION AT THE TIME THE SUBCONTRACT IS AWARDED, STILL, PROTESTANT'S OFFER TO FURNISH THE REQUIRED PRODUCT AT A HIGHER PRICE MADE 7 WEEKS AFTER BID OPENING WAS PROPERLY REJECTED AS AN ATTEMPT TO NEGOTIATE A HIGHER PRICE.

TO R. A. MILLER ELECTRONICS CORPORATION:

WE REFER TO YOUR LETTERS OF FEBRUARY 1 AND APRIL 14, 1971, IN WHICH YOU SET FORTH THE BASIS OF YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO A. C. BALL COMPANY (BALL), ON JANUARY 28, 1971, UNDER INVITATION FOR BIDS (IFB) NO. DAAJ01-71-B-0151, ISSUED BY THE UNITED STATES ARMY AVIATION SYSTEMS COMMAND, ST. LOUIS, MISSOURI.

THE SUBJECT IFB, ISSUED ON SEPTEMBER 4, 1970, REQUESTED BIDS ON A QUANTITY OF CONTROLLER GRIP ASSEMBLIES IN ACCORDANCE WITH USA AVSCOM PROCUREMENT PACKAGE NO. 58087-1A, REV. A, DATED JULY 16, 1969. FOUR BIDS WERE RECEIVED BY THE BID OPENING DATE, OCTOBER 5, 1970. YOUR FIRM WAS LOW WITH A UNIT PRICE OF $58.10 WITHOUT CONTRACTOR TESTING AND $60.10 WITH CONTRACTOR TESTING. BALL WAS SECOND LOW WITH EQUIVALENT UNIT PRICES OF $76.37 AND $77.50. THE CONTRACT WAS AWARDED ON JANUARY 28, 1971, TO BALL AFTER YOUR FIRM HAD BEEN DETERMINED TO BE NONRESPONSIVE.

THE SUBJECT PROCUREMENT PACKAGE INCORPORATED VARIOUS DRAWINGS OBTAINED FROM GUARDIAN ELECTRIC CORPORATION (GUARDIAN) UNDER A PREVIOUS GOVERNMENT CONTRACT. DRAWING A218-101088, SPECIFIES THAT A 4-WAY SWITCH ASSEMBLY MUST CONFORM TO MS27708-1. MS27708-1 IN TURN REFERENCES AS A PROCUREMENT SPECIFICATION, MIL-S-9419C (USAF) WHICH CONTAINS A QUALIFIED PRODUCTS LIST (QPL). YOUR PROTEST IS BASED ON THIS 4-WAY SWITCH.

AFTER BID OPENING, A PREAWARD SURVEY WAS REQUESTED ON THE THREE LOW BIDDERS. WHEN THE REQUESTS WERE ISSUED, THE SURVEY TEAMS WERE DIRECTED TO INSURE THAT THE BIDDERS HAD FIRM QUOTES FROM QUALIFIED SOURCES FOR COMPONENTS INCLUDING THE 4-WAY SWITCH. YOUR FIRM LISTED AS SOURCES OF THE 4-WAY SWITCH, "P & D OR GUARDIAN."

ON NOVEMBER 4, 1970, A RE-SURVEY WAS REQUESTED ON YOUR FIRM. ATTACHMENT TO THE RE-SURVEY STATED THAT P & D CORPORATION (P & D) HAD ASSURED YOUR FIRM THAT THEIR 4-WAY SWITCH WAS ON THE QPL. WE ARE INFORMED IN THE ADMINISTRATIVE REPORT THAT ON NOVEMBER 16, 1970, PERSONNEL AT WRIGHT-PATTERSON AIR FORCE BASE, THE ACTIVITY RESPONSIBLE FOR THE QPL, REPORTED THAT GUARDIAN WAS THE ONLY FIRM ON THE QPL AND THAT THERE WAS NO OTHER FIRM IN THE PROCESS OF QUALIFYING.

BY LETTER OF NOVEMBER 18, 1970, THE CONTRACTING OFFICER ASKED THE THREE LOW BIDDERS TO AFFIRM THAT THEIR BIDS INCLUDED THE GUARDIAN 4-WAY SWITCH. BALL VERIFIED THAT THEY HAD A FIRM QUOTE FROM GUARDIAN. YOU REPLIED THAT ALTHOUGH THE P & D SWITCH WAS IN FACT FROM A QUALIFIED SOURCE YOU WOULD BE WILLING TO PROVIDE THE GUARDIAN 4-WAY SWITCH AT THE INCREASED UNIT PRICE OF $69.10 WITHOUT CONTRACTOR TESTING AND $71.10 WITH SUCH TESTING. YOUR FIRM'S BID WAS THEN REJECTED AS NONRESPONSIVE.

IN YOUR PROTEST YOU CONTEND THAT: (1) THE IFB DID NOT CONTAIN THE PROPER NOTIFICATION THAT QPL COMPONENT PARTS WOULD BE REQUIRED, (2) THE P & D SWITCH DID MEET THE QPL REQUIREMENTS, BECAUSE P & D COMPLETED INDEPENDENT LABORATORY TESTING AT THE TIME OF THE PROCUREMENT AND (3) YOUR BID AS CLARIFIED BY YOUR LETTER OF NOVEMBER 24 WAS RESPONSIVE IN THAT YOUR FIRM OFFERED THE GUARDIAN SWITCH AT A MODIFIED PRICE WHICH WAS STILL LOW.

YOUR FIRST TWO CONTENTIONS DEAL WITH THE QPL REQUIREMENT. ASPR 1 1107.1(B) PROVIDES THAT WHENEVER A QUALIFIED PRODUCT IS TO BE PROCURED BY A PRIME CONTRACTOR AS A COMPONENT OF AN END ITEM, THE PRIME CONTRACTOR SHALL BE REQUIRED TO FURNISH A COMPONENT WHICH HAS BEEN TESTED AND QUALIFIED BY THE TIME OF AWARD OF THE SUBCONTRACT. ASPR 1 1107.2(B) REQUIRES THE USE OF APPROPRIATE LANGUAGE IN THE PROCUREMENT SOLICITATION TO GIVE EFFECT TO ASPR 1-1107.1(B). SINCE THESE REGULATIONS ARE ISSUED PURSUANT TO THE ARMED SERVICES PROCUREMENT ACT, 10 U.S.C. 2301 ET SEQ., THEY HAVE THE FORCE OF LAW AND ARE BINDING NOT ONLY UPON BIDDERS BUT ALSO UPON THE PROCURING AGENCY. PAUL V UNITED STATES, 371 U.S. 245 (1962).

NO NOTIFICATION PROVISION WAS INCLUDED IN THE SUBJECT IFB AS SPECIFIED BY ASPR 1-1107.2(B). IN OUR OPINION THE REFERENCE IN THE DRAWING OF THE 4- WAY SWITCH TO A PROCUREMENT SPECIFICATION WHICH CONTAINS A QPL SHOULD NOT BE REGARDED AS AN ACCEPTABLE SUBSTITUTE FOR THE REQUIREMENT IMPOSED BY THE CITED REGULATION. SEE B-149069, AUGUST 1, 1962.

IN REGARD TO YOUR SECOND CONTENTION, WE ARE INFORMED THAT THE SWITCH MANUFACTURED BY P & D WAS A QPL ITEM UNDER REVISION B OF MIL-S-9419 DATED APRIL 10, 1956, BUT THE ITEM WAS NOT INCLUDED IN REVISION C DATED APRIL 4, 1967, IN EFFECT ON THE DATE OF THE ISSUANCE OF THE SUBJECT IFB. WE HAVE ALREADY NOTED THAT IN THE CASE OF COMPONENTS, ASPR 1 1107.2(B) PERMITS TESTING AND QUALIFICATION FOR INCLUSION IN THE QPL AT THE TIME OF AWARD OF ANY SUBCONTRACT BY THE CONTRACTOR FOR SUCH COMPONENTS. HOWEVER, AT THE TIME THE CONTRACTING OFFICER REQUESTED ASSURANCE FROM THE BIDDERS THAT THE GUARDIAN SWITCH WOULD BE UTILIZED, IT WAS REPORTED BY THE CUSTODIAN ACTIVITY FOR THE QPL THAT NO OTHER MANUFACTURER WAS IN THE PROCESS OF QUALIFYING, NOR WAS THERE ANY INDICATION OF A DESIRE TO DO SO BY ANY MANUFACTURER. WE ARE ALSO INFORMED THAT THE QUALIFICATION TIME IS SUCH THAT THE DELIVERY SCHEDULE FOR THE END ITEMS COULD BE MAINTAINED ONLY BY USING A COMPONENT ALREADY ON THE QPL.

AS NOTED, THE CONTRACTING OFFICER CONCLUDED THAT YOUR BID WAS NONRESPONSIVE BECAUSE OF YOUR FAILURE TO CERTIFY AFTER BID OPENING THAT THE GUARDIAN SWITCH WOULD BE UTILIZED. IN GENERAL, THE RESPONSIVENESS OF A BID IS DECIDED ON THE BASIS OF THE BID ITSELF. IN THIS CASE, THERE APPEARS TO HAVE BEEN NOTHING IN THE BID WHICH WOULD HAVE ANY ADVERSE EFFECT ON ITS RESPONSIVENESS. HAD THE APPROPRIATE CLAUSE CALLED FOR BY ASPR 1-1107.2(B) WHEN QUALIFIED PRODUCTS ARE TO BE INCLUDED AS COMPONENTS OF END ITEMS BEEN INCLUDED IN THE IFB, AWARD COULD HAVE BEEN MADE TO YOUR FIRM WHICH WOULD THEN HAVE BEEN REQUIRED TO FURNISH A QUALIFIED PRODUCT. THE CIRCUMSTANCES INDICATE THAT THIS PROBABLY WOULD HAVE MEANT FURNISHING THE GUARDIAN COMPONENT. APPARENTLY, YOU DID NOT INTEND TO FURNISH SUCH COMPONENT AT YOUR BID PRICE. THERE IS, OF COURSE, NO BASIS UPON WHICH A LOW BIDDER IN RESPONSE TO A FORMALLY ADVERTISED SOLICITATION CAN BE PERMITTED TO NEGOTIATE A HIGHER PRICE AFTER BID OPENING. IN THE CIRCUMSTANCES, WE BELIEVE THAT THE CONTRACTING OFFICER PROPERLY REJECTED YOUR OFFER OF NOVEMBER 24, 1970, SOME SEVEN WEEKS AFTER BID OPENING, TO FURNISH THE GUARDIAN COMPONENT AT A HIGHER PRICE.

WE BELIEVE THAT THE IFB WAS DEFECTIVE FOR FAILING TO INCLUDE THE PRESCRIBED CLAUSE AND WE ARE, BY LETTER OF TODAY, RECOMMENDING TO THE SECRETARY OF THE ARMY THAT ACTION BE TAKEN TO INSURE THAT THE PROVISIONS CALLED FOR BY THE ASPR ARE INCLUDED IN FUTURE QPL PROCUREMENTS. HOWEVER, THE CIRCUMSTANCES DO NOT APPEAR TO WARRANT DISTURBING THE AWARD.