B-172636, AUG 23, 1971

B-172636: Aug 23, 1971

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PROTESTANT'S BID WAS REJECTED AS NON-RESPONSIVE BECAUSE IT COULD NOT BE DETERMINED FROM THE BID IF THE OFFERED PUMP WAS ON THE QPL. BUFFALO'S BID WAS RESPONSIVE AS THE COMPANY WAS LISTED ON THE QPL AS QUALIFIED TO PRODUCE ALL SIZES OF CLASS C-2 PUMPS. IT WAS EVIDENT THAT SUCH A PUMP WAS TO BE PROVIDED. IT WAS NOT PATENTLY ILLEGAL AND AWARD TO CARVER WILL NOT BE UPSET. TO BUFFALO FORGE COMPANY: REFERENCE IS MADE TO YOUR PROTEST. AWARDS WILL BE MADE ONLY FOR PRODUCTS WHICH ARE AT THE TIME SET FOR OPENING OF BIDS. QUALIFIED FOR INCLUSION IN APPLICABLE QUALIFIED PRODUCTS LIST QPL 17639 WHETHER OR NOT SUCH PRODUCTS HAVE ACTUALLY BEEN SO LISTED BY THAT DATE.". BIDS WERE OPENED ON JANUARY 22.

B-172636, AUG 23, 1971

BID PROTEST - BID RESPONSIVENESS - QPL REQUIREMENT DECISION CONCERNING PROTEST OF BUFFALO PUMPS DIVISION, BUFFALO FORGE COMPANY, LOW BIDDER, AGAINST THE AWARD OF A CONTRACT TO CARVER PUMP COMPANY, SECOND LOW BIDDER, UNDER IFB ISSUED BY NAVAL SUPPLY CENTER, PUGET SOUND, BREMERTON, WASHINGTON FOR FURNISHING TWO CLASS C-2 CENTRIFUGAL FIRE PUMPS. THE IFB REQUIRED THAT THE PRODUCTS OFFERED BE QUALIFIED UNDER THE APPLICABLE QPL BEFORE BID OPENING FOR A FIRM TO BE ELIGIBLE FOR AWARD. PROTESTANT'S BID WAS REJECTED AS NON-RESPONSIVE BECAUSE IT COULD NOT BE DETERMINED FROM THE BID IF THE OFFERED PUMP WAS ON THE QPL, AS THE TEST NUMBER GIVEN ON THE BID DID NOT AGREE WITH QUALIFICATION REFERENCES ON THE QPL. IN THE COMP. GEN.'S OPINION, BUFFALO'S BID WAS RESPONSIVE AS THE COMPANY WAS LISTED ON THE QPL AS QUALIFIED TO PRODUCE ALL SIZES OF CLASS C-2 PUMPS. ALSO, FROM THE INFORMATION SUPPLIED IN ITS BID, IT WAS EVIDENT THAT SUCH A PUMP WAS TO BE PROVIDED. HOWEVER, SINCE THE CONTRACTING OFFICER MADE HIS DETERMINATION IN GOOD FAITH, IT WAS NOT PATENTLY ILLEGAL AND AWARD TO CARVER WILL NOT BE UPSET. CORRECTIVE ACTION HAS BEEN RECOMMENDED TO THE SECRETARY OF THE NAVY.

TO BUFFALO FORGE COMPANY:

REFERENCE IS MADE TO YOUR PROTEST, FORWARDED HERE BY CONGRESSMAN HENRY P. SMITH III, AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS (IFB) NO. N00406-71-B-0135, ISSUED BY THE NAVAL SUPPLY CENTER, PUGET SOUND, BREMERTON, WASHINGTON.

THE SUBJECT IFB, ISSUED ON DECEMBER 21, 1970, SOLICITED BIDS FOR FURNISHING TWO CLASS C-2 CENTRIFUGAL FIRE PUMPS, IN ACCORD WITH SPECIFICATION MIL-P-17639C, SUPPORTED WITH NECESSARY MANUALS, DRAWINGS AND DATA. PARAGRAPH 6.3 OF MIL-P-17639C INVOKED A PRIOR PRODUCT QUALIFICATION REQUIREMENT AND PROVIDED THAT "WITH RESPECT TO PRODUCTS REQUIRING QUALIFICATION, AWARDS WILL BE MADE ONLY FOR PRODUCTS WHICH ARE AT THE TIME SET FOR OPENING OF BIDS, QUALIFIED FOR INCLUSION IN APPLICABLE QUALIFIED PRODUCTS LIST QPL 17639 WHETHER OR NOT SUCH PRODUCTS HAVE ACTUALLY BEEN SO LISTED BY THAT DATE."

BIDS WERE OPENED ON JANUARY 22, 1971, AND YOUR FIRM WAS THE LOW BIDDER AT $24,262, WITH THE CARVER PUMP COMPANY NEXT LOW IN THE AMOUNT OF $26,110. HOWEVER, AFTER EVALUATION, YOUR BID WAS REJECTED AS NONRESPONSIVE SINCE IT COULD NOT BE DETERMINED FROM YOUR BID THAT THE PUMP YOU PROPOSED TO FURNISH WAS TESTED AND QUALIFIED UNDER THE APPLICABLE QUALIFIED PRODUCTS LIST (QPL). AWARD WAS THEREAFTER MADE TO CARVER.

PAGE 7 OF THE INVITATION PROVIDED (IN CONFORMANCE WITH PARAGRAPH 1 1107.2 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR)) AS FOLLOWS:

"B-8 NOTICE - QUALIFIED END PRODUCTS (1969 DEC)

"AWARDS FOR ANY END ITEMS WHICH ARE REQUIRED TO BE QUALIFIED PRODUCTS WILL BE MADE ONLY WHEN SUCH ITEMS HAVE BEEN TESTED AND ARE QUALIFIED FOR INCLUSION IN A QUALIFIED PRODUCTS LIST IDENTIFIED BELOW (WHETHER OR NOT ACTUALLY INCLUDED IN THE LIST) AT THE TIME SET FOR OPENING OF BIDS, OR THE TIME OF AWARD IN THE CASE OF NEGOTIATED CONTRACTS. OFFERORS SHOULD CONTACT THE OFFICE DESIGNATED BELOW TO ARRANGE TO HAVE THE PRODUCTS WHICH THEY INTEND TO OFFER TESTED FOR QUALIFICATION.

"THE OFFEROR SHALL INSERT THE ITEM NAME AND THE TEST NUMBER (IF KNOWN) OF EACH QUALIFIED PRODUCT IN THE BLANK SPACES BELOW.

"ITEM NAME TEST NO.

"OFFERORS OFFERING PRODUCTS WHICH HAVE BEEN TESTED AND QUALIFIED, BUT WHICH ARE NOT YET LISTED, ARE REQUESTED TO SUBMIT EVIDENCE OF SUCH QUALIFICATION WITH THEIR BIDS OR PROPOSALS, SO THAT THEY MAY BE GIVEN CONSIDERATION. IF THIS IS A FORMALLY ADVERTISED PROCUREMENT, ANY BID WHICH DOES NOT IDENTIFY THE QUALIFIED PRODUCT BEING OFFERED, EITHER ABOVE OR ELSEWHERE IN THE BID, WILL BE REJECTED.

"ANY CHANGE IN LOCATION OR OWNERSHIP OF THE PLANT AT WHICH A PREVIOUSLY APPROVED PRODUCT IS, OR WAS, MANUFACTURED REQUIRES RE EVALUATION OF THE QUALIFICATION. SUCH RE-EVALUATION MUST BE ACCOMPLISHED PRIOR TO THE BID OPENING DATE IN THE CASE OF ADVERTISED PROCUREMENT AND PRIOR TO THE DATE OF AWARD IN THE CASE OF NEGOTIATED PROCUREMENTS. FAILURE OF OFFERORS TO ARRANGE FOR SUCH RE-EVALUATION SHALL PRECLUDE CONSIDERATION OF THEIR OFFERS.

"SPECIFICATION: MIL-P-17639C OF 20 OCT 67

"FOR QUALIFICATION TESTING INFORMATION CONTACT:

COMMANDER, NAVAL SHIP SYSTEMS COMMAND, CODE 621

DEPT. OF THE NAVY

WASHINGTON, D.C. 20360"

IN THE BLANK SPACE WHERE BIDDERS WERE TO INSERT THE ITEM NAME AND TEST NUMBER OF EACH QUALIFIED PRODUCT, YOU INSERTED THE WORD "BUFFALO." ALSO, YOU HAD INSERTED UNDER ITEM 0001 ON PAGE 15 OF THE INVITATION THE FOLLOWING INFORMATION:

"MANUFACTURER'S NAME BUFFALO PUMPS DIV-BUFFALO FORGE CO.

"MANUFACTURER'S DESIGNATION 5 X 6 A SLD

"TEST NO. N 2098

"DATA APPROVED ON DSA700-69-C-9017

NAVSEC LETTER SER. 967-6153D5 DATED 17 JUNE '70"

YOU CONTEND THAT YOUR FIRM WAS A QUALIFIED VENDOR FOR THE PRODUCTION OF CLASS C-2 PUMPS AND THAT YOUR BID SHOULD NOT HAVE BEEN REJECTED AS NONRESPONSIVE.

IN EVALUATING YOUR BID, IT IS REPORTED THAT THE PROCURING ACTIVITY PERSONNEL COMPARED THE INFORMATION SUPPLIED IN YOUR BID AGAINST THE QPL OF PRODUCTS QUALIFIED UNDER MILITARY SPECIFICATION MIL-P-17639. THE LIST INDICATED THAT BUFFALO PUMPS, INC., WAS QUALIFIED TO PRODUCE CLASS C-2 PUMPS, HORIZONTAL AND VERTICAL, ALL SIZES, UNDER TEST FOR QUALIFICATION REFERENCES EES 5245 AND EN8/L5-2/2047. SINCE THE TEST NUMBER, N 2098, WHICH YOUR COMPANY HAD INSERTED IN ITS BID DID NOT AGREE WITH THE TEST OR QUALIFICATION REFERENCES SHOWN ON QPL 17639-18, A FURTHER REVIEW WAS MADE TO DETERMINE IF THE INFORMATION PROVIDED IN YOUR BID COULD IDENTIFY THE PRODUCT OFFERED AS BEING ON THE QPL. THE REVIEW REVEALED THAT DRAWING N 2098 LISTED OPPOSITE THE "TEST NO." BLANK IN YOUR BID CONTAINED NO REFERENCE TO SPECIFICATION MIL-P-17639C OR QPL 17639 AND HAD NO MARKINGS TO INDICATE THAT THE DRAWING HAD BEEN APPROVED BY THE NAVAL SHIP ENGINEERING CENTER. MOREOVER, WHILE THE NAVSEC LETTER DSA700-69-C-9017 OF JUNE 17, 1970, MENTIONED IN YOUR BID, INDICATED APPROVAL OF A SERIES OF DRAWINGS UNDER CONTRACT -9017, IT DID NOT INCLUDE TESTS FOR DRAWING NO. N 2098, NOR DID IT PROVIDE ANY REFERENCE TO SPECIFICATION MIL-P-17639C OR QPL 17639.

ON THE BASIS THAT IT COULD NOT BE DETERMINED FROM THE INFORMATION IN THE BUFFALO PUMPS BID WHETHER OR NOT THE PUMP OFFERED WAS IN FACT ON THE QPL, IT WAS REJECTED AS NONRESPONSIVE.

IN OUR OPINION, BUFFALO PUMPS WAS RESPONSIVE. AS INDICATED ABOVE, BUFFALO PUMPS WAS LISTED IN THE APPLICABLE QPL AS QUALIFIED TO PRODUCE ALL SIZES OF CLASS C-2 PUMPS. FURTHER, IN A LETTER DATED MAY 24, 1971, OR SUBSEQUENT TO AWARD ON FEBRUARY 23, 1971, TO THE PROCUREMENT ACTIVITY, FROM THE NAVAL SHIP ENGINEERING CENTER, HYATTSVILLE, MARYLAND, THE ACTIVITY RESPONSIBLE FOR QPL QUALIFICATION AND LISTING, IT IS STATED THAT "SPECIFIC MODELS ARE NOT LISTED ON THE QPL SINCE DIFFERENT MODELS ARE MANUFACTURED AND STILL CONSIDERED QUALIFIED." THE LETTER ALSO STATES THAT:

"DIFFERENT MODEL NUMBERS OF PUMPS MAY BE SUBMITTED ON THE BID AS LONG AS THE PUMP BEING SUPPLIED IS OF THE SAME DESIGN AS THAT WHICH WAS QUALIFIED AND MEETS THE APPLICABLE SPECIFICATION."

IT SEEMS CLEAR THAT THE INFORMATION PROVIDED ON THE BUFFALO PUMPS BID REFERRED TO CLASS C-2 PUMPS, AND THAT THE BID THEREFORE SHOULD NOT HAVE BEEN DISREGARDED ON THE BASIS THAT DOUBT EXISTED AS TO WHETHER THE OFFERED PUMP WAS QUALIFIED UNDER THE APPLICABLE QPL.

WE NOTE, HOWEVER, THAT THE NAVAL SHIP ENGINEERING CENTER LETTER QUOTED ABOVE WAS FURNISHED AFTER AWARD AS A RESULT OF A REQUEST FROM THE PROCUREMENT ACTIVITY RELATED TO THE INSTANT PROTEST, AND THAT ADVICE FURNISHED BY THE ENGINEERING CENTER TO THE CONTRACTING OFFICIALS DURING CONSIDERATION OF THE BUFFALO PUMPS BID WAS TO THE EFFECT THAT THE TEST NUMBER LISTED WAS NOT SUFFICIENT TO INDICATE QPL QUALIFICATION. THEREFORE BELIEVE THAT THE CONTRACTING OFFICER'S DETERMINATION THAT THE BUFFALO PUMPS BID WAS NONRESPONSIVE, SINCE MADE IN GOOD FAITH, DOES NOT REQUIRE US TO CONCLUDE THAT THE AWARD MADE WAS PATENTLY ILLEGAL. SEE, IN THIS REGARD, 46 COMP. GEN. 123, 132 (1966).

WITH REGARD TO YOUR QUESTION AS TO THE PUMP THAT THE CARVER PUMP COMPANY IS FURNISHING, IT IS REPORTED THAT CARVER INSERTED ITEM NAME NC 2 AND TEST NO. 629P-1788C ON PAGE 7 AND MANUFACTURER'S DESIGNATION 4NC2 AND TEST NO. 649P-1788C ON PAGE 15. VERIFICATION AGAINST QPL 17639-19 INDICATES THAT BOTH NC-2 AND 629P-1788C WERE PROPER QUALIFICATION REFERENCES FOR THE CARVER PUMP COMPANY UNDER CLASS C-2 PUMPS.

ALTHOUGH NO CORRECTIVE ACTION MAY BE TAKEN AT THIS TIME, BY LETTER OF TODAY TO THE SECRETARY OF THE NAVY, WE ARE SUGGESTING THAT CARE BE TAKEN IN THE FUTURE TO PROPERLY INTERPRET BID INFORMATION RELATING TO QPL QUALIFICATION.