B-173052, NOV 26, 1971, 51 COMP GEN 323

B-173052: Nov 26, 1971

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A DETERMINATION SHOULD BE MADE IF THE KIT WAS ALTERED BY THE QPL OFFEROR. IF IT CANNOT BE DETERMINED THAT THE PARTS IN THE KITS HAVE BEEN ALTERED OR ENHANCED. OR IF THE EXAMINATION IS NOT PRACTICAL. 1971: REFERENCE IS MADE TO THE PROTEST OF AEROKITS. THIS MATTER WAS THE SUBJECT OF A REPORT DATED AUGUST 25. THE RFP IS FOR A PROCUREMENT OF 19. THE CLOSING DATE WAS ORIGINALLY MARCH 8. THE SOLICITATION CONTAINED A QUALIFIED COMPONENTS CLAUSE AND AT THE TIME OF THE SOLICITATION WAS ISSUED THE PRESTOLITE COMPANY WAS CONSIDERED TO BE THE SOLE SUPPLIER FOR THIS KIT. A DETERMINATION WAS MADE PURSUANT TO 10 U.S.C. 2304(A)(2). THE ABOVE CODE PROVISION AUTHORIZES THE NEGOTIATION OF CONTRACTS WHEN THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING.

B-173052, NOV 26, 1971, 51 COMP GEN 323

CONTRACTS - SPECIFICATIONS - QUALIFIED PRODUCTS - PARTS FOR QUALIFIED PRODUCT BEFORE REJECTION OF UNSOLICITED OFFERS FOR REPAIR KITS FOR A GENERATOR ON A QUALIFIED PRODUCTS LIST (QPL) UNDER A SOLICITATION CONTAINING A QUALIFIED COMPONENTS CLAUSE, AND ACCEPTANCE ON A SOLE SOURCE BASIS OF THE QPL SUPPLIER'S OFFER TO FURNISH THE KITS, IF TIME PERMITS, AND IN VIEW OF PARAGRAPHS 3-102(C) OF THE ARMED SERVICES PROCUREMENT REGULATION PRESCRIBING COMPETITION TO THE MAXIMUM EXTENT, A DETERMINATION SHOULD BE MADE IF THE KIT WAS ALTERED BY THE QPL OFFEROR, OR IF THE KITS OF THE UNSOLICITED OFFERORS PROCURED FROM THE SAME SOURCE USED BY THE QPL OFFEROR, AUTOMATICALLY QUALIFIED THE KITS UNDER THE APPLICABLE MILITARY SPECIFICATIONS. IF IT CANNOT BE DETERMINED THAT THE PARTS IN THE KITS HAVE BEEN ALTERED OR ENHANCED, OR IF THE EXAMINATION IS NOT PRACTICAL, AWARD MAY BE MADE TO THE QPL OFFEROR AND THE UNSOLICITED OFFERORS ADVISED OF THE KIT PARTS REQUIRING QUALIFICATION TESTING FOR FUTURE PROCUREMENTS OF THE KITS.

TO THE SECRETARY OF THE ARMY, NOVEMBER 26, 1971:

REFERENCE IS MADE TO THE PROTEST OF AEROKITS, INC., AGAINST THE POSSIBLE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER REQUEST FOR PROPOSALS (RFP) DAAE07-71-R-0667 ISSUED BY THE UNITED STATES ARMY TANK AUTOMOTIVE COMMAND (USATACOM), WARREN, MICHIGAN, ON FEBRUARY 16, 1971. THIS MATTER WAS THE SUBJECT OF A REPORT DATED AUGUST 25, 1971, AMCGC-P, FROM THE DEPUTY GENERAL COUNSEL HEADQUARTERS, ARMY MATERIAL COMMAND.

THE RFP IS FOR A PROCUREMENT OF 19,695 REPAIR KITS FOR A 25 AMP GENERATOR, P/N 10950808. THE CLOSING DATE WAS ORIGINALLY MARCH 8, 1971. THE SOLICITATION CONTAINED A QUALIFIED COMPONENTS CLAUSE AND AT THE TIME OF THE SOLICITATION WAS ISSUED THE PRESTOLITE COMPANY WAS CONSIDERED TO BE THE SOLE SUPPLIER FOR THIS KIT. A DETERMINATION WAS MADE PURSUANT TO 10 U.S.C. 2304(A)(2), AS IMPLEMENTED BY PARAGRAPH 3 202.2(VI) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), TO NEGOTIATE WITHOUT FORMAL ADVERTISING. THE ABOVE CODE PROVISION AUTHORIZES THE NEGOTIATION OF CONTRACTS WHEN THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING.

THE REPAIR KIT IS FOR USE IN CONNECTION WITH THE ABOVE-MENTIONED GENERATOR. THE GENERATOR IS ON A QUALIFIED PRODUCTS LIST (QPL) AND PRESTOLITE IS THE ONLY APPROVED SOURCE FOR THE GENERATOR. THEREFORE, IT WAS REASONED THAT PRESTOLITE WAS THE ONLY SOURCE FOR THE FOUR QP KIT PARTS USED WITH OTHER PARTS IN THE KIT TO MAINTAIN THE GENERATOR. A PREVIOUS PROCUREMENT OF THE KIT HAD BEEN NEGOTIATED WITH PRESTOLITE IN 1969. THE FOUR QP PARTS WERE THE PLATE AND SEAL, ORD. P/N 10950813; BALL BEARING, ORD. P/N 10950814; BALL BEARING ORD. P/N 10950815; AND BRUSH, ORD. P/N 7374852. HOWEVER, IN ADDITION TO THE PROPOSAL RECEIVED FROM PRESTOLITE, UNSOLICITED PROPOSALS WERE RECEIVED FROM AEROKITS AND OTHER OFFERORS. THE ADDITIONAL OFFERORS INDICATED THEY WOULD PROCURE THE QP PARTS FROM THE SAME SOURCE THAT PRESTOLITE UTILIZES. NONE OF THE PROPOSALS WAS ACCEPTED BECAUSE IT WAS FELT THAT THERE WAS A LIKELIHOOD THAT A REDUCTION IN PRICE AND A SHORTER DELIVERY SCHEDULE COULD BE OBTAINED THROUGH FURTHER NEGOTIATIONS.

NEGOTIATIONS WERE REOPENED ON MARCH 23, 1971, WITH A CLOSING DATE OF APRIL 2, 1971, AND PROSPECTIVE OFFERORS WERE ADVISED THAT PRESTOLITE WAS THE ONLY APPROVED SOURCE FOR THE ABOVE-MENTIONED QP KIT PARTS. ONCE AGAIN PROPOSALS WERE RECEIVED FROM THE UNSOLICITED FIRMS WHICH HAD ORIGINALLY SUBMITTED OFFERS. SUCH PROPOSALS OFFERED TO FURNISH THE QP APPROVED PARTS FROM MANUFACTURERS WHICH ARE THE SAME SOURCES FOR THE QP PARTS THAT PRESTOLITE USED IN THE QPL GENERATOR. THESE OFFERORS CONTEND THAT SUCH PARTS ARE THEREFORE AUTOMATICALLY QUALIFIED UNDER PARAGRAPH 3.1.1.1 OF SPECIFICATION MIL-G-12604F COVERING THE GENERATOR. PARAGRAPHS 3.1.1 AND 3.1.1.1 OF THE SPECIFICATION PROVIDE:

3.1.1 REPAIR PARTS REQUIRING QUALIFICATION. REPAIR PARTS, (ARMATURES, BEARINGS, BRUSHES AND SEALS), FURNISHED UNDER THIS SPECIFICATION SHALL BE PRODUCTS WHICH HAVE BEEN TESTED AND HAVE PASSED THE QUALIFICATION TESTS SPECIFIED HEREIN AND HAVE BEEN LISTED ON, OR APPROVED FOR LISTING ON THE QUALIFIED PRODUCTS LIST (SEE 4.2.2 AND 6.3.1).

3.1.1.1 SUBMITTED GENERATOR ASSEMBLY. INDIVIDUAL REPAIR PARTS REQUIRING QUALIFICATION TO THIS SPECIFICATION WILL BE AUTOMATICALLY QUALIFIED WHEN THOSE REPAIR PARTS HAVE BEEN CONTAINED IN A GENERATOR ASSEMBLY THAT HAS BEEN QUALIFIED.

ON APRIL 8, 1971, USATACOM, RESEARCH, DEVELOPMENT AND ENGINEERING DIRECTORATE, WAS REQUESTED TO REVIEW ITS POSITION THAT PRESTOLITE WAS THE ONLY SOURCE FOR THESE QP ITEMS AND TO DETERMINE IF THERE WERE ANY OTHER SOURCES ACCEPTABLE IN LIEU OF PRESTOLITE. IN ITS REPLY OF APRIL 20, 1971, THE RESEARCH, DEVELOPMENT AND ENGINEERING DIRECTORATE AGAIN TOOK THE POSITION THAT PRESTOLITE WAS THE ONLY ACCEPTABLE SOURCE FOR THESE ITEMS. THUS, ON MAY 14, 1971, THE CONTRACTING OFFICER ADVISED THE UNSOLICITED OFFERORS THAT THEIR PROPOSALS WERE CONSIDERED NONRESPONSIVE SINCE THEY WERE BASED ON SUPPLYING THE QP KIT PARTS FROM SOURCES OTHER THAN PRESTOLITE, THE ONLY APPROVED SOURCE FOR THESE ITEMS. ON MAY 21, 1971, THE RESEARCH, DEVELOPMENT AND ENGINEERING DIRECTORATE WAS REQUESTED TO REVIEW SPECIFICATION MIL-G-12604F, ESPECIALLY PARAGRAPH 3.1.1.1, GIVING ATTENTION TO THE IMPACT OF SUCH PROVISION ON THE ACCEPTABILITY OF PARTS FROM MANUFACTURERS OF THE PARTS USED IN THE QPL GENERATOR.

ON MAY 27, 1971, THE CONTRACTING OFFICER SENT A LETTER TO THE UNSOLICITED OFFERORS RESCINDING THE LETTER OF MAY 14, 1971, AND STATING THAT THEIR PROPOSALS WERE UNDER EVALUATION BASED ON THE SOLICITATION PROVISIONS INCLUDING THE QUALIFIED COMPONENTS CLAUSE. ON JUNE 7, 1971, THE RESEARCH, DEVELOPMENT AND ENGINEERING DIRECTORATE ADVISED THE PROCUREMENT OFFICIALS THAT CONTRACTORS SHOULD BE ELIGIBLE FOR AWARD WHO COULD FURNISH SATISFACTORY EVIDENCE THAT THE QP PARTS WOULD BE THE SAME AS THOSE FURNISHED BY PRESTOLITE, AND WOULD SO CERTIFY PRIOR TO AWARD OF THE CONTRACT. ON JUNE 11, 1971, OFFERORS WERE ADVISED THAT NEGOTIATIONS WERE ONCE AGAIN REOPENED AND THAT TO BE CONSIDERED FOR AWARD OFFERORS MUST FURNISH SATISFACTORY EVIDENCE AND CERTIFY THAT THE QP PARTS THEY PROPOSED TO FURNISH WERE IDENTICAL TO THE PARTS THAT WERE UTILIZED IN THE 25 AMP GENERATOR ASSEMBLY TESTED AND APPROVED FOR QPL. SUBSEQUENTLY, BY LETTER OF JUNE 18, 1971, AEROKITS REQUESTED THAT THE PROCURING ACTIVITY FURNISH IT WITH ALL QUALIFIED GOVERNMENT SOURCES AVAILABLE TO SUPPLY THE QP KIT PARTS IN QUESTION.

BY LETTER OF JUNE 30, 1971, REQUESTING BEST AND FINAL OFFERS, OFFERORS WERE ADVISED THAT PRESTOLITE WAS THE ONLY APPROVED SOURCE FOR THE PARTS IN QUESTION, PLUS FIVE ADDITIONAL PARTS IN THE KIT. OFFERORS WERE FURTHER ADVISED THAT THE COMMAND DID NOT HAVE NECESSARY DATA AVAILABLE TO ACCEPT OTHER THAN PRESTOLITE'S PARTS, AND TO BE CONSIDERED FOR AWARD PROPOSALS MUST CONTAIN A CERTIFICATION THAT THE ITEMS OFFERED WERE IDENTICAL TO OR THE SAME AS THE LISTED PARTS. WHILE THE LISTING SHOWED BOTH THE ORDNANCE PART NUMBER AND THE PRESTOLITE PART NUMBER, IT IS REPORTED THAT THE LETTER OF JUNE 30 MEANT THAT OFFERORS COULD SUPPLY ONLY PRESTOLITE PARTS OR PARTS WHICH HAD BEEN CERTIFIED BY TESTING. BY LETTERS DATED JULY 14, 1971, ALL OFFERORS OTHER THAN PRESTOLITE WERE ADVISED THAT THEIR PROPOSALS WERE NONRESPONSIVE FOR FAILURE TO MEET ALL THE CONDITIONS SET FORTH IN THE LETTER OF JUNE 30.

IT IS THE UNSOLICITED OFFERORS' POSITION THAT WHILE PRESTOLITE IS THE ONLY APPROVED SOURCE FOR THE ASSEMBLED GENERATOR, IT IS NOT THE SOLE APPROVED SOURCE FOR THE KIT PARTS WHICH WERE USED IN THE APPROVED GENERATOR. THESE OFFERORS DISAGREE WITH THE COMMAND'S POSITION THAT IN ORDER TO BE RESPONSIVE THE OFFEROR MUST OFFER EITHER PRESTOLITE KIT PARTS OR QUALIFY THE OFFERED PARTS THROUGH TESTING. SUCH OFFERORS CONTEND THAT THE KIT PARTS OFFERED BY PRESTOLITE'S SUPPLIERS SHOULD BE ACCEPTABLE TO THE GOVERNMENT, SINCE THE INFORMATION IN THE COMMAND'S POSSESSION CONCLUSIVELY SHOWS THAT THEY PROPOSE TO FURNISH QUALIFIED PARTS IN ACCORDANCE WITH THE RFP REQUIREMENTS. IN THIS CONNECTION WE NOTE THAT ENGINEERING CONCURRENCE IN THE TOYO BEARING MFG. CO., LTD., AS A SECOND SOURCE FOR THE BEARINGS IN THE KIT WAS BASED ON ATAC'S EVALUATION OF PRESTOLITE DATA RATHER THAN BY TESTING. IN THE CONCURRENCE LETTER OF APRIL 5, 1966, IT IS STATED:

IT IS THE RESPONSIBILITY OF THE MANUFACTURER TO ESTABLISH AND REPORT SUFFICIENT DATA TO ATAC, THE QUALIFYING ACTIVITY. ATAC WILL EVALUATE SUCH DATA TO DETERMINE WHETHER OR NOT THE ITEM PROPOSED FOR USE IS EQUIVALENT TO THE FIRST SOURCE ITEMS) AS PREVIOUSLY APPROVED IN THE QUALIFIED PRODUCT AND NOTIFY THE APPLICANT. ENGINEERING CONCURRENCE OR APPROVAL MAY BE REVOKED IF SUBSEQUENT TESTING AND EVALUATION BY ATAC INDICATES THAT THE ITEMS) DO NOT MEET THE DRAWING, SPECIFICATION, AND VEHICLE APPLICATION REQUIREMENTS.

IN THE CONTRACTING OFFICER'S SUPPLEMENTAL ADMINISTRATIVE REPORT IT IS STATED:

*** THE BUYING OF COMPONENTS FROM PRESTOLITE SOURCES DOES NOT IN ITSELF PROVE AEROKITS IS GIVING US THE PRESTOLITE KIT. THIS FACT WAS EXPLAINED TO AEROKITS AT LENGTH. THE GOVERNMENT (TACOM) DOES NOT KNOW WHAT MANUFACTURING PROCESSES PRESTOLITE PERFORMS ON THESE PURCHASED ITEMS PRIOR TO THEIR INCLUSION IN THE KIT. WE HAVE BEEN ASSURED THAT SOME COMPONENTS ARE IN FACT SUBJECT TO ADDITIONAL PROCESSING BY PRESTOLITE. HOWEVER, REPRESENTATIVES OF PRESTOLITE, WHEN ASKED BY ME, WOULD NOT DISCLOSE OR OTHERWISE IDENTIFY THIS PROCESSING. ***

THE CONTRACTING OFFICER'S STATEMENTS APPEAR TO BE BOTTOMED ON THE FOLLOWING REPORTED CIRCUMSTANCES. AT A MEETING HELD ON JUNE 21, 1971, ENGINEERING PERSONNEL DETERMINED THAT THE COMMAND DID NOT HAVE A COMPLETE ENGINEERING PACKAGE ON THE QP PARTS IN THE KIT. IT WAS THEREFORE DECIDED TO INQUIRE OF THE KNOWN SOURCES FOR THE PARTS TO OBTAIN THE REQUIRED INFORMATION. ALL OF THE SOURCES CONTACTED WERE ABLE TO FURNISH THE REQUESTED INFORMATION WITH THE EXCEPTION OF NEW DEPARTURE, ONE OF THE APPROVED SOURCES FOR THE BEARINGS, WHICH WAS UNABLE TO GIVE ITS CORRESPONDING PART NUMBER FOR PRESTOLITE PART X 3626. HOWEVER, PRESTOLITE'S KIT-213 IDENTIFIES THAT PART WITH ORDNANCE NUMBER 10950814, AND THE RECORD SHOWS NEW DEPARTURE PART Z99503LR3068LK5 FOR THIS ORDNANCE NUMBER.

ON JUNE 25, 1971, THE CONTRACTING OFFICER HELD A MEETING WITH PRESTOLITE IN RESPONSE TO THAT FIRM'S REQUEST TO DISCUSS THE RAMIFICATIONS OF THE COMPETITIVE PROCUREMENT INDICATED BY THE NOTIFICATION TO THE OFFERORS OF JUNE 11. PRESTOLITE REPRESENTATIVES STATED THAT THE GOVERNMENT DID NOT HAVE A COMPLETE PROCUREMENT PACKAGE AND WANTED TO KNOW WHAT THE CONTRACTING OFFICER WAS GOING TO BUY UNDER THE COMPETITIVE SOLICITATION. THE REPRESENTATIVES STATED, AMONG OTHER THINGS, THAT THE GOVERNMENT WOULD BE ACCEPTING SUBSTITUTES OF COMPONENTS BECAUSE IT COULD NOT POSITIVELY IDENTIFY EACH COMPONENT OF THE KIT, AND THAT PRESTOLITE PERFORMED AN ADDITIONAL MANUFACTURING PROCESS ON SOME OF THE PARTS. AFTER INSPECTING THE GOVERNMENT'S TECHNICAL PACKAGE FOR THE KIT, PRESTOLITE'S REPRESENTATIVES STATED UNEQUIVOCALLY THAT THE PACKAGE WAS NOT COMPLETE AND THAT THEY WOULD NOT GIVE THE GOVERNMENT THE NECESSARY INFORMATION TO MAKE IT COMPLETE.

ON JULY 1, 1971, THE TECHNICAL DATA DIVISION OF THE RESEARCH, DEVELOPMENT AND ENGINEERING DIRECTORATE, STATED IN REFERENCE TO THE JUNE 21 MEETING THAT FURTHER EVALUATION OF THE ENGINEERING PACKAGE REVEALED THAT IT IS INADEQUATE FOR COMPETITIVE PROCUREMENT, SINCE SOME OF THE COMPONENTS "OTHER THAN THE FOUR PARTS REQUIRING QUALIFICATION" ARE LACKING IN ESSENTIAL DATA. IT WAS FURTHER FOUND THAT NO VERIFICATION COULD BE MADE THAT PRESTOLITE DOES, OR DOES NOT, PROCESS SOME OF THE PARTS PRIOR TO THEIR INCLUSION IN THE KIT. BASED ON THESE FINDINGS IT WAS RECOMMENDED THAT ANY CONTRACTOR PROVIDING THE KIT BE REQUIRED TO PROCURE THOSE ITEMS, ON WHICH COMPLETE ENGINEERING DATA WAS LACKING, FROM PRESTOLITE.

WE FIND THE RECORD CONFUSING AS TO WHETHER FOUR OR NINE PARTS IN THE KIT ARE CONSIDERED TO BE QUALIFIED PRODUCTS, AND AS TO WHICH SPECIFIC QP PARTS THE COMMAND HAS COMPLETE TECHNICAL DATA. IN ANY EVENT, IT SEEMS THAT THE BASIC QUESTION FOR RESOLUTION IS WHETHER THOSE PARTS REQUIRING QUALIFICATION TO THE MILITARY SPECIFICATION AND BEING OFFERED IN THE UNSOLICITED PROPOSALS, WERE CONTAINED IN THE GENERATOR ASSEMBLY THAT WAS QUALIFIED. IF THE PERTINENT PARTS IN THE QPL GENERATOR, AS SUPPLIED TO PRESTOLITE BY THE SOURCE MANUFACTURERS, WERE NOT ALTERED BY PRESTOLITE IN ANY MATERIAL MANNER, IT WOULD APPEAR THAT THE SOURCE PARTS SHOULD BE CONSIDERED AS HAVING BEEN AUTOMATICALLY QUALIFIED UNDER PARAGRAPH 3.1.1.1 OF THE MILITARY SPECIFICATION, AND NO FURTHER QUALIFICATION TESTING OF THOSE PARTS IS REQUIRED. WHILE PRESTOLITE STATED THAT IT PERFORMS AN ADDITIONAL PROCESS ON SOME OF THE PARTS WHICH IT NOW FURNISHES IN THE KIT, THE RELEVANT POINT IS WHETHER PRESTOLITE DID ANYTHING TO THE SUBJECT PARTS FURNISHED FOR THE QPL GENERATOR WHICH WAS INDISPENSABLE TO THE ACCEPTABILITY AND PROPER PERFORMANCE OF THE GENERATOR. WE ASSUME, HOWEVER, THAT PRESTOLITE'S POSITION WOULD BE THAT THE OPERATION WHICH IT STATES IT NOW PERFORMS WAS ALSO PERFORMED ON SOME OF THE KIT PARTS IN THE QPL GENERATOR AND THAT THE PROCESSING WAS ESSENTIAL TO THE PROPER PERFORMANCE OF THAT GENERATOR.

WE BELIEVE THAT, SINCE THE PRESTOLITE KIT QP PART NUMBERS ARE IDENTIFIABLE WITH PART NUMBERS OF THE SOURCE MANUFACTURERS, HAD PRESTOLITE NOT CONTENDED THAT IT PERFORMS AN ADDITIONAL PROCESS ON SOME OF THE PARTS THE PROCUREMENT WOULD HAVE PROCEEDED ON A COMPETITIVE BASIS PURSUANT TO THE NOTICE OF JUNE 11. THIS PRESENTS, THEREFORE, A SITUATION WHEREIN THE PROCURING ACTIVITY PROPOSES TO EXCLUDE UNSOLICITED PROPOSALS, OFFERING SOURCE PARTS, FROM COMPETING FOR THE CONTRACT MAINLY BY REASON OF A SELFSERVING STATEMENT BY THE QPL OFFEROR, AND AN APPARENT LACK OF TECHNICAL DATA IN THE COMMAND TO COMPLETELY REFUTE OR SUPPORT THE STATEMENT. IN ADDITION PRESTOLITE REFUSES TO IDENTIFY THE EXACT NATURE OF THE ALLEGED MANUFACTURING PROCESS OR THE PART, OR PARTS, IN THE KIT ON WHICH THE PROCESS IS PERFORMED. ASPR 3-102(C) REQUIRES THAT NEGOTIATED PROCUREMENTS BE ON A COMPETITIVE BASIS TO THE MAXIMUM PRACTICABLE EXTENT. THIS REGULATION PLACES AN AFFIRMATIVE RESPONSIBILITY ON THE PURCHASING ACTIVITY FOR ASSURING THAT COMPETITIVE PROCUREMENT IS NOT FEASIBLE AND FOR ACTING WHENEVER POSSIBLE TO AVOID THE NEED FOR SUBSEQUENT NONCOMPETITIVE PROCUREMENTS. THE RECORD DOES NOT INDICATE THAT THE ACTUAL PRESTOLITE QP PARTS AND THE CORRESPONDING SOURCE PARTS HAVE BEEN SUBJECTED TO A COMPARATIVE SCIENTIFIC INSPECTION TO DETERMINE WHETHER THEY ARE ESSENTIALLY THE SAME. IN VIEW OF THE ADMINISTRATIVE RESPONSIBILITY FOR ASSURING THAT COMPETITIVE PROCUREMENT IS NOT FEASIBLE, AND THE PARTICULAR CIRCUMSTANCES HERE INVOLVED, WE DO NOT BELIEVE AN AWARD TO ANY OFFEROR WOULD BE JUSTIFIABLE ON THE PRESENT RECORD. WE THEREFORE SUGGEST THAT, IF TIME PERMITS FOR THE PROCUREMENT AT HAND, CONSIDERATION SHOULD BE GIVEN TO MAKING A COMPARATIVE EXAMINATION AND ANALYSIS OF THE PRESTOLITE KIT PARTS AND THE CORRESPONDING SOURCE PARTS. SUCH AN EXAMINATION BY THE PERTINENT ENGINEERS OR OTHER TECHNICAL PERSONNEL IN YOUR DEPARTMENT HAVING EXPERTISE IN SUCH MATTERS SHOULD BE MADE, PERHAPS IN CONJUNCTION WITH THE SOURCE MANUFACTURERS, TO DETERMINE WHETHER THE SOURCE QP PARTS OFFERED BY THE UNSOLICITED OFFERORS ARE FOR ALL PRACTICAL PURPOSES THE SAME AS THOSE PARTS FURNISHED IN PRESTOLITE'S KIT. AS INDICATED ABOVE, IF IT CAN BE DETERMINED FROM SUCH AN EXAMINATION AND ANALYSIS THAT THE SOURCE QP PARTS ARE NOT MATERIALLY ALTERED OR ENHANCED BY PRESTOLITE THEN THE PARTS SHOULD BE REGARDED AS BEING AUTOMATICALLY QUALIFIED UNDER PARAGRAPH 3.1.1.1.

IF IT CANNOT BE DETERMINED FROM SUCH AN EXAMINATION AND ANALYSIS WHETHER THE SOURCE PARTS HAVE BEEN MATERIALLY ALTERED OR ENHANCED WHEN FURNISHED IN PRESTOLITE'S KIT, OR IF IT IS THE CONSIDERED JUDGMENT OF YOUR DEPARTMENT THAT SUCH AN EXAMINATION IS NOT PRACTICAL, AN AWARD MAY BE MADE TO PRESTOLITE, IF OTHERWISE PROPER. IN THAT EVENT, HOWEVER, A DETERMINATION SHOULD BE MADE, AND THE UNSOLICITED OFFERORS ADVISED, AS TO THOSE SPECIFIC PARTS FOR WHICH QUALIFICATION TESTING WILL BE REQUIRED BEFORE BEING ACCEPTED FROM SOURCES OTHER THAN PRESTOLITE IN ANY FUTURE PROCUREMENTS OF THE KIT.

WE ALSO CALL YOUR ATTENTION TO THE EVALUATION, IN PARAGRAPH 3B OF THE CONTRACTING OFFICER'S SUPPLEMENTAL ADMINISTRATIVE REPORT, OF THE COST OF CERTAIN PARTS IN THE KIT AGAINST THE TOTAL KIT PRICE TO DETERMINE WHETHER SOME FOREIGN-MANUFACTURED PARTS COULD BE SUPPLIED BY AN OFFEROR WHO CERTIFIED IN THE BUY AMERICAN CERTIFICATE THAT EACH END PRODUCT BEING FURNISHED IS A "DOMESTIC SOURCE END PRODUCT." THAT TERM IS DEFINED IN THE BUY AMERICAN ACT CLAUSE WHICH IS INCORPORATED IN THE RFP BY REFERENCE. FOR A MANUFACTURED ITEM TO QUALIFY UNDER THE SPECIFIED DEFINITION AS A DOMESTIC SOURCE END PRODUCT, THE ITEM MUST FIRST BE "MANUFACTURED" IN THE UNITED STATES. WE BELIEVE IT IS AT LEAST QUESTIONABLE FROM THE PRESENT RECORD THAT THE KIT, AS DISTINGUISHED FROM THE INDIVIDUAL MANUFACTURED PARTS COMPRISING THE KIT, MAY PROPERLY BE CONSIDERED AS HAVING BEEN "MANUFACTURED" IN THE UNITED STATES SO AS TO QUALIFY THE KIT UNDER THE DEFINITION IN THE BUY AMERICAN ACT CLAUSE AS A DOMESTIC SOURCE END PRODUCT. IT WOULD THEREFORE APPEAR THAT AN OFFEROR WHO IS AWARDED THE CONTRACT, AND DID NOT LIST ANY EXCEPTIONS IN THE BUY AMERICAN CERTIFICATE OR OTHERWISE INDICATE THAT FOREIGN MANUFACTURED PARTS WERE BEING OFFERED, MIGHT BE REQUIRED TO FURNISH INDIVIDUAL KIT PARTS, ALL OF WHICH HAVE BEEN MANUFACTURED IN THE UNITED STATES.

THE FILE FORWARDED WITH THE REPORT OF AUGUST 25 IS RETURNED.