B-174189, JAN 19, 1972, 51 COMP GEN 415

B-174189, JAN 19, 1972, 51 COMP GEN 415

CONTRACTS - SPECIFICATIONS - QUALIFIED PRODUCTS - PRODUCT DESIGNATION UNDER AN INVITATION FOR BIDS PROVIDING FOR THE AWARD OF A GUARANTEED MINIMUM REQUIREMENTS TYPE CONTRACT FOR POWER TOOLS THAT CONTAINED A QUALIFIED PRODUCTS CLAUSE AND PROVIDED SPACE FOR MANUFACTURE'S NAME, QPL TEST OR QUALIFICATION REFERENCE NUMBER, BUT NOT FOR THE PRODUCT DESIGNATION, THE FAILURE TO FURNISH PRODUCT DESIGNATION DOES NOT REQUIRE REJECTION OF A BID SINCE, ALTHOUGH THE OMITTED INFORMATION IS USEFUL IN IDENTIFYING WHETHER AN ITEM IS ON THE APPLICABLE QPL, IT IS NOT ESSENTIAL AS THE MANUFACTURER'S NAME AND QPL, TEST NUMBERS FURNISHED BY A BIDDER SUFFICE FOR LOCATING THE APPROPRIATE ITEM ON THE QPL, AND THE TASK OF TRACING AN ITEM IMPOSES NO UNDUE BURDEN ON THE CONTRACTING AGENCY. THEREFORE, THERE IS NOTHING IN THE OMISSION OF THE PRODUCT DESIGNATION TO EQUATE WITH FAILURE TO IDENTIFY. CONTRACTS - SPECIFICATIONS - CONFORMABILITY OF EQUIPMENT, ETC., OFFERED - SELF CERTIFICATION BY BIDDER THE ACCEPTANCE OF THE SELF-CERTIFICATION BY MANUFACTURERS ON THE QUALIFIED PRODUCTS LIST THAT THEIR PRODUCTS COMPLY WITH THE NOISE LEVEL REQUIREMENTS STANDARD SET FOR THE POWER TOOLS SOLICITED PENDING COMPLETION OF TEST FACILITIES BY THE NAVAL SHIP ENGINEERING CENTER IS AN ADMINISTRATIVE MATTER, SINCE THE FACILITIES WILL BE READY IN AMPLE TIME TO TEST DELIVERIES UNDER THE CONTRACT AWARDED AND FAILURE OF A PRODUCT TO MEET THE NOISE LEVEL REQUIREMENTS WOULD BE THE BASIS FOR REJECTION OF DELIVERY.

TO THE BLACK & DECKER MANUFACTURING COMPANY, JANUARY 19, 1972:

REFERENCE IS MADE TO FOUR LETTERS FROM YOUR CONCERN (SEPTEMBER 24, OCTOBER 12, DECEMBER 13 AND DECEMBER 17, 1971), PROTESTING AGAINST CONTRACT AWARDS FOR CERTAIN ITEMS TO OTHER CONCERNS UNDER INVITATION FOR BIDS NO. FPNTP-B6-19084-A-8-18-71, ISSUED ON JULY 19, 1971, BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION (GSA).

THE SOLICITATION INVITED BIDS FOR A REQUIREMENTS TYPE CONTRACT WITH A GUARANTEED MINIMUM FOR CERTAIN POWER TOOLS. THE QUANTITIES WERE TO COVER THE NORMAL REQUIREMENTS OF GSA'S SUPPLY DEPOTS FOR THE PERIOD FEBRUARY 1, 1972, OR DATE OF AWARD IF LATER, THROUGH JANUARY 31, 1973. BIDS WERE OPENED ON SEPTEMBER 9, 1971. AWARDS ARE BEING WITHHELD PENDING OUR DECISION ON THE VARIOUS ITEMS UNDER PROTEST.

PARAGRAPH 13(B) OF THE INVITATION UNDER THE "QUALIFIED PRODUCTS" CLAUSE PROVIDED AS FOLLOWS:

(B) THE OFFEROR SHALL INSERT, IN THE SPACES PROVIDED BELOW THE ITEM IN THE SCHEDULE OF ITEMS, THE MANUFACTURER'S NAME AND PRODUCT DESIGNATION, AND THE QPL TEST OR QUALIFICATION REFERENCE NUMBER OF EACH QUALIFIED PRODUCT OFFERED. IF THE OFFEROR IS A QUALIFIED DISTRIBUTOR, HE ALSO SHALL INSERT HIS NAME AND PRODUCT DESIGNATION. ANY OFFER WHICH DOES NOT IDENTIFY THE QUALIFIED PRODUCT OFFERED WILL BE REJECTED.

THE PURCHASE DESCRIPTION FOR EACH OF THE ITEMS SUBJECT TO THE QPL REQUIREMENT PROVIDED BLANKS TO BE COMPLETED BY THE BIDDER DESIGNATED AS "MFR'S NAME" AND "QPL TEST NO." THE INVITATION DID NOT PROVIDE ANY BLANK FOR PRODUCT DESIGNATION INFORMATION. ON A SEPARATE LIST FURNISHED WITH YOUR BID YOU GAVE PRODUCT DESIGNATION NUMBERS FOR VARIOUS QPL ITEMS ON WHICH YOU WERE BIDDING. BIDDERS SUCH AS ROCKWELL MANUFACTURING COMPANY AND INGERSOLL-RAND COMPANY FILLED IN THE "MFR'S NAME" AND "QPL TEST NO." BLANKS BUT DID NOT INCLUDE PRODUCT DESIGNATION INFORMATION WITH THEIR BIDS. YOU HAVE PROTESTED ANY AWARD TO THESE CONCERNS. THE ITEMS FOR WHICH YOUR CONCERN WOULD BE DIRECTLY IN LINE FOR AN AWARD IF THE PRODUCT DESIGNATION ISSUE WERE RESOLVED IN YOUR FAVOR ARE ITEMS NOS. 2, 9, 15 AND 23. THE RESOLUTION OF THE PRODUCT DESIGNATION ISSUE WILL ALSO HAVE AN EFFECT ON THE AWARDS OF ITEMS NOS. 1, 10, 17 AND 18 SINCE THE LOW BIDDERS FOR EACH OF THOSE ITEMS (ROCKWELL IS LOW FOR ITEM NO. 1 AND INGERSOLL-RAND IS LOW FOR THE OTHERS) DID NOT FURNISH PRODUCT DESIGNATION INFORMATION. HOWEVER, YOU WOULD NOT BE DIRECTLY IN LINE FOR AN AWARD OF ANY OF THOSE ITEMS EVEN IF THE PRODUCT DESIGNATION ISSUE WERE DECIDED IN YOUR FAVOR. YOU HAVE ALSO PROTESTED AGAINST AN AWARD TO AIR SPEED TOOL COMPANY FOR ITEM NO. 4 ON A DIFFERENT ISSUE.

YOU URGE THAT UNDER THE TERMS OF CLAUSE 13(B) OF THE SOLICITATION IT WAS EXPRESSLY PROVIDED THAT BIDS WOULD BE REJECTED FOR FAILURE TO FURNISH PRODUCT DESIGNATION INFORMATION. OUR DECISIONS B-158197, APRIL 5, 1966, AND B-161779, AUGUST 7, 1967, HAVE BEEN CITED IN SUPPORT OF YOUR POSITION.

GSA ADVISES THAT WHILE PRODUCT DESIGNATION INFORMATION IS USEFUL IN IDENTIFYING WHETHER AN ITEM IS ON THE APPLICABLE QPL, IT IS NOT ESSENTIAL FOR MAKING SUCH A DETERMINATION. IN THE SITUATION WHERE ONLY THE TEST NUMBER AND MANUFACTURER'S NAME ARE FURNISHED, GSA CAN TRACE THE TEST NUMBER TO THE APPLICABLE QPL AND BY LOOKING UNDER THE MANUFACTURER'S NAME CAN DETERMINE WHETHER THE BIDDER HAS OFFERED A QPL PRODUCT WHICH MEETS THE REQUIREMENTS OF THE SPECIFICATION.

IN B-158197, APRIL 5, 1966, THE INVITATION REQUIRED BIDDERS TO IDENTIFY THE QPL PRODUCT OFFERED AND BLANK SPACES WERE PROVIDED FOR BIDDERS TO INSERT THE ITEM NAME AND TEST NUMBER. ONE OF THE BIDDERS FAILED TO FILL IN EITHER OF THE SPACES AND AN AWARD TO THIS BIDDER WAS PROTESTED ON THE GROUND THAT THE FAILURE TO FILL IN THOSE BLANKS RENDERED THE BID NONRESPONSIVE. WE FOUND THAT WHILE THE CLAUSE REQUIRED REJECTION FOR FAILURE TO IDENTIFY THE QUALIFIED PRODUCT OFFERED, THE OMISSION OF THE TEST NUMBER WAS NOT TANTAMOUNT TO A FAILURE TO IDENTIFY SINCE IT WAS CONTEMPLATED THAT IDENTIFICATION WOULD BE PRIMARILY THROUGH THE "ITEM NAME" BLANK, THE OTHER BLANK TO BE COMPLETED BY THE BIDDER. THE INVITATION ITSELF IDENTIFIED THE ITEM OFFERED SINCE THE PURCHASE DESCRIPTION GAVE BOTH THE MANUFACTURER'S AND GOVERNMENT'S PRODUCT DESIGNATION; THEREFORE, BY FILLING IN THE BLANKS, THE BIDDER WOULD ONLY BE DUPLICATING INFORMATION ALREADY IN THE BID SINCE THE GOVERNMENT'S AND MANUFACTURER'S DESIGNATION NUMBERS WERE IDENTICAL FOR ALL BIDDERS. THAT CASE IT WAS FOUND THAT THE FAILURE TO FURNISH THE ITEM NAME AND TEST NUMBER DID NOT RENDER THE BID NONRESPONSIVE.

OUR DECISION B-161779, AUGUST 7, 1967, CONCERNED A SITUATION WHERE A BIDDER FAILED TO FURNISH ANY INDICATION AS TO THE IDENTITY OF THE QUALIFIED PRODUCT OFFERED. WE FOUND THE BID TO BE NONRESPONSIVE FOR FAILING TO COMPLY WITH THE REQUIREMENT THAT THE BIDDER IDENTIFY THE QUALIFIED PRODUCT OFFERED. IN SO HOLDING WE STATED THAT THE BIDDER COULD HAVE SATISFIED THE REQUIREMENT FOR IDENTIFICATION BY LISTING THE PLACE OF MANUFACTURE OR THE NAME OF THE CORPORATION MANUFACTURING THE QUALIFIED PRODUCT ELSEWHERE IN THE BID.

ANOTHER CASE, 45 COMP. GEN. 397, 400 (1966), CONSIDERED WHETHER A BIDDER HAD SUFFICIENTLY IDENTIFIED THE QUALIFIED PRODUCT OFFERED AS FOLLOWS:

THE SECOND QUESTION TO BE DECIDED IS WHETHER THE BID OF PENNSYLVANIA REFINING COMPANY WHICH DID NOT SPECIFICALLY IDENTIFY THE PRODUCT OR THE TEST NUMBER IN PARAGRAPH 23, BUT SHOWED IN SECTION V, MANUFACTURING AND FILLING POINTS, THAT IT PROPOSED TO FURNISH A PRODUCT IN ACCORDANCE WITH THE SPECIFIC MILITARY SPECIFICATION AND THAT THE MANUFACTURING AND FILLING POINT FOR THE PRODUCT OFFERED WAS THE PENNSYLVANIA REFINING COMPANY, KARNS CITY, PENNSYLVANIA (WAS RESPONSIVE). THE PARTICULAR SPECIFICATIONS REQUIRE QUALIFICATION AND PENNSYLVANIA REFINING COMPANY, KARNS CITY, PENNSYLVANIA, IS LISTED ON THE PARTICULAR QUALIFIED PRODUCTS LISTS FOR A PRODUCT, OR PRODUCTS, MEETING SUCH SPECIFICATIONS. IT IS RECOGNIZED THAT A BIDDER COULD OFFER A QUALIFIED PRODUCT OF ANOTHER COMPANY, HOWEVER, IN SUCH EVENT THE MANUFACTURING WOULD BE BY THE FIRM WHOSE PRODUCT HAD BEEN QUALIFIED WITH SUBSEQUENT PACKAGING (SHIPPING) ONLY BY THE BIDDER. IN THE INSTANT MATTER PENNSYLVANIA REFINING COMPANY STATED IN ITS BID THAT THEY WERE DOING THE MANUFACTURING AND, THEREFORE, THEIR BIDS COULD ONLY BE INTERPRETED AS OFFERING A QUALIFIED PRODUCT MANUFACTURED BY THEM. THE IDENTIFY AND TEST NUMBER OF THE PARTICULAR PRODUCT, OR PRODUCTS, SO OFFERED READILY COULD BE DETERMINED BY THE GOVERNMENT BY REFERENCE TO THE PARTICULAR QUALIFIED PRODUCTS LIST. IN SUCH CIRCUMSTANCES WE AGREE WITH THE DETERMINATION OF THE CONTRACTING OFFICER THAT THE BIDS OF PENNSYLVANIA REFINING COMPANY HAVE IDENTIFIED SUFFICIENTLY THE QUALIFIED PRODUCTS OFFERED AND THAT THE BIDS SHOULD BE CONSIDERED FOR AWARD.

CLAUSE 13(B), ABOVE, PROVIDES THAT FAILURE TO "IDENTIFY" THE QUALIFIED PRODUCT OFFERED WILL RESULT IN REJECTION OF THE BID. HOWEVER, FAILURE TO FURNISH PRODUCT DESIGNATION INFORMATION DOES NOT NECESSARILY CONSTITUTE A FAILURE TO IDENTIFY. WHERE, AS HERE, THE MANUFACTURERS' NAMES AND QPL TEST NUMBERS HAVE BEEN FURNISHED BY THE BIDDERS AND THIS SUFFICES FOR LOCATING THE APPROPRIATE ITEM ON THE QPL, WE AGREE WITH GSA THAT THE ITEM HAS BEEN IDENTIFIED SUFFICIENTLY. MOREOVER, WE DO NOT THINK IT IS AN UNDUE BURDEN ON GSA TO TRACE THE ITEM TO THE QPL THROUGH THE USE OF THE MANUFACTURER'S NAME AND QPL TEST NUMBER AND GSA HAS OFFERED NO OBJECTION TO THIS TASK. THAT QUALIFIED PRODUCTS OFFERED CAN BE READILY IDENTIFIED BY USING ONLY THE MANUFACTURER'S NAME AND TEST NUMBER IS BORNE OUT BY LOOKING AT THE QPL ITSELF.

WHILE THE CASES CITED BY YOU DEAL WITH WHAT CONSTITUTES IDENTIFICATION, THERE IS NOTHING IN THOSE CASES WHICH WOULD EQUATE THE OMISSION OF PRODUCT DESIGNATION INFORMATION WITH A FAILURE TO IDENTIFY. RATHER AS INDICATED IN 45 COMP. GEN. 397, AND B-161779, SUPRA, IDENTIFICATION CAN RESULT FROM THE CONJUNCTIVE USE OF SUCH INFORMATION AS PRODUCT DESIGNATION, MANUFACTURER'S NAME AND THE QPL TEST NUMBER.

SINCE GSA HAS ASCERTAINED THAT QPL ITEMS MEETING THE REQUIREMENTS OF THE SPECIFICATIONS HAVE BEEN OFFERED FOR ITEMS NOS. 1,2,7,9,10,15 AND 23, THE PRODUCT DESIGNATION ISSUE DOES NOT CONSTITUTE A BASIS FOR OBJECTING TO AN AWARD TO THE LOW BIDDER FOR EACH OF THESE ITEMS. ITEMS NOS. 17 AND 18 ARE THE SUBJECT OF A SEPARATE DECISION TO CHICAGO PNEUMATIC (COPY ENCLOSED) WHICH HAS PROTESTED AGAINST AWARDS FOR THOSE ITEMS ON THE SAME BASIS AS YOUR PROTEST.

IN YOUR LETTER OF DECEMBER 17, 1971, YOU CONTEST THE ACCURACY OF THE STATEMENT IN GSA'S LETTER OF DECEMBER 7, 1971, THAT ROCKWELL'S MODEL 310- 103E CONFORMS TO THE SPECIFICATIONS FOR ITEM NO. 2 UNDER TEST NO. TT-256 SINCE NO MODEL 310-103E NUMBER FOR ROCKWELL APPEARS ON THE APPLICABLE QPL. GSA CONCEDES THAT THE DESIGNATION WAS THE RESULT OF A TYPOGRAPHICAL ERROR BY GSA AND SHOULD BE ROCKWELL MODEL 31D-103E, WHICH MEETS THE REQUIREMENTS OF THE SPECIFICATIONS AND APPEARS ON THE QPL NEXT TO TEST NO. TT-256. THIS CONTENTION DOES NOT HAVE ANY EFFECT ON OUR DECISION.

THE LOW BIDDER FOR ITEM NO. 4 IS AIR SPEED TOOL COMPANY. YOU URGE THAT AIR SPEED WILL NOT BE ABLE TO MEET THE MAXIMUM ALLOWABLE SOUND PRESSURE LEVEL REQUIREMENTS SPECIFIED IN INTERIM AMENDMENT NO. 6 TO THE APPLICABLE FEDERAL SPECIFICATION. THE NAVAL SHIP ENGINEERING CENTER (NSEC) WHICH HAS ADMINISTRATIVE RESPONSIBILITY FOR THE QPL APPLICABLE TO THIS PROCUREMENT IS IN THE PROCESS OF COMPLETING FACILITIES TO TEST WHETHER THE VARIOUS MANUFACTURERS ON THE QPL MEET THE NOISE LEVEL REQUIREMENTS. PENDING COMPLETION OF THE TEST FACILITIES, NSEC HAS ACCEPTED THE SELF- CERTIFICATION OF THE MANUFACTURERS ON THE QPL SUCH AS AIR SPEED THAT THEIR PRODUCTS COMPLY WITH THE NOISE LEVEL REQUIREMENTS. NSEC ANTICIPATES THAT THE TEST FACILITIES WILL BE READY SOMETIME IN JANUARY 1972 AND THAT THE ACTUAL TESTING WILL BE COMPLETED IN MARCH 1972, IN AMPLE TIME TO TEST ANY DELIVERIES UNDER THIS PROCUREMENT. AIR SPEED HAS OFFERED A PRODUCT WHICH IS ON THE APPLICABLE QPL FOR ITEM NO. 4; THEREFORE, THERE IS NO BASIS FOR QUESTIONING THE RESPONSIVENESS OF AIR SPEED'S BID TO THE QPL REQUIREMENT FOR THIS ITEM. FAILURE OF THE PRODUCT FURNISHED UNDER THE CONTRACT TO MEET THE NOISE LEVEL REQUIREMENTS WOULD BE A BASIS FOR REJECTING THE DELIVERY. WHETHER AWARD TO AIR SPEED SHOULD BE WITHHELD UNTIL TESTING HAS BEEN COMPLETED OR WHETHER AIR SPEED'S PRODUCTS SHOULD BE TESTED ON AN EXPEDITED BASIS ARE ADMINISTRATIVE MATTERS ON WHICH WE EXPRESS NO OPINION IN THE CIRCUMSTANCES OF THIS CASE.

FOR THESE REASONS YOUR PROTEST IS DENIED.