B-174475, B-174978, MAR 29, 1972

B-174475, B-174978, MAR 29, 1972

BID PROTEST - NONRESPONSIVENESS - QUALIFIED PRODUCTS LIST REQUIREMENT DECISION CONCERNING THE PROTEST OF JULIAN A. MCDERMOTT CORPORATION AGAINST AWARDS OF CONTRACTS TO OTHER BIDDERS UNDER IFBS ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VA., FOR PROCUREMENTS OF VEHICULAR WARNING LIGHTS. PROTESTANT'S LOW BID UNDER EACH INVITATION WAS REJECTED AS NONRESPONSIVE FOR FAILURE TO OFFER A LIGHT QUALIFIED FOR LISTING ON THE QUALIFIED PRODUCTS LIST (QPL). HOWEVER, IT LATER BECAME KNOWN THAT THE SPECIFICATION HAD BEEN AMENDED TO DELETE THE QPL REQUIREMENT. IN THE CIRCUMSTANCES OF THIS CASE, THE COMP. GEN. MUST AGREE WITH THE DECISION OF THE CONTRACTING OFFICER THAT, IN THE BEST INTERESTS OF THE GOVERNMENT, THOSE CONTRACTS WHICH HAVE LARGELY BEEN COMPLETED SHOULD REMAIN UNDISTURBED BUT THOSE INVITATIONS WHICH HAVE NOT BEEN AWARDED SHOULD BE CANCELLED AND RESOLICITED. SEE 10 U.S.C. 2305(C); ASPR 2 404.1(B); 37 COMP. GEN. 760 (1958).

TO JULIAN A. MCDERMOTT CORPORATION:

WE REFER TO YOUR LETTER OF NOVEMBER 3, 1971, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST AWARDS OF CONTRACTS FOR VEHICULAR WARNING LIGHTS UNDER INVITATIONS FOR BIDS (IFB) NOS. DSA-400-71-B-6608, DSA-400-72-B-2160, -2505, -3404, -3720, AND -4044, ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA.

ALTHOUGH YOU WERE LOW BIDDER UNDER EACH INVITATION, YOUR BIDS IN EACH INSTANCE WERE REJECTED BY THE PROCUREMENT ACTIVITY AS NONRESPONSIVE BECAUSE YOU FAILED TO OFFER A LIGHT QUALIFIED FOR LISTING ON THE QUALIFIED PRODUCTS LIST (QPL). AWARD WAS DELAYED UNDER INVITATION 6608 PENDING A DECISION BY OUR OFFICE ON YOUR PRIOR PROTEST AGAINST A DETERMINATION UNDER A SIMILAR PROCUREMENT THAT YOUR BID WAS NONRESPONSIVE TO THE QPL REQUIREMENT. DUE TO AN URGENT NEED FOR THE LIGHTS, HOWEVER, YOUR BID UNDER INVITATION -6608 WAS REJECTED AS NONRESPONSIVE BY THE PROCURING ACTIVITY, AND THE CONTRACT WAS AWARDED TO THE NEXT LOW BIDDER ON OCTOBER 21, 1971. YOU PROTESTED THIS AWARD BY YOUR LETTER OF NOVEMBER 3. WITH REGARD TO THE OTHER INVITATIONS CITED, AWARDS WERE MADE UNDER INVITATIONS -2160 AND -2505 ON NOVEMBER 22 AND DECEMBER 2, 1971, RESPECTIVELY. YOU PROTESTED THESE AWARDS BY LETTER OF JANUARY 17, 1972. INVITATIONS -3404 AND -3720 WERE CANCELLED BY THE PROCUREMENT ACTIVITY AFTER IT BECAME KNOWN THAT THE SPECIFICATION COVERING THESE LIGHTS HAD BEEN AMENDED ON DECEMBER 15, 1971, TO DELETE THE QPL REQUIREMENT. FOR THE SAME REASON, A NO COST TERMINATION OF THE CONTRACT AWARDED UNDER INVITATION -4044 ON JANUARY 20, 1972, WAS EFFECTED. WE UNDERSTAND THAT THESE PROCUREMENTS WILL BE RESOLICITED UNDER THE AMENDED SPECIFICATION.

YOU PREMISE YOUR PROTESTS ON THE GROUND THAT UNDER YOUR CONTRACT NO. DAAE07-71-C-0073 WITH THE UNITED STATES ARMY AUTOMOTIVE-TANK COMMAND (USATACOM), THE QPL AGENCY, YOUR LIGHT WAS SUCCESSFULLY TESTED FOR QPL LISTING. YOU ALSO CONTEND THAT NO OTHER FIRM CAN SUPPLY A LIGHT PROPERLY QUALIFIED FOR QPL LISTING BECAUSE ONLY THE LIGHT OF YOUR FIRM HAS BEEN SUCCESSFULLY TESTED UNDER THE LATEST REVISION OF THE GOVERNING SPECIFICATION. THESE CONTENTIONS WERE ALSO THE BASES OF YOUR PRIOR PROTEST INVOLVING THE ADVERTISED QPL REQUIREMENT FOR THESE LIGHTS. RESPECTING THAT PROTEST, IT WAS THE CONCLUSION OF OUR OFFICE IN DECISION B -172940, DATED NOVEMBER 4, 1971, WHICH WE LATER AFFIRMED, THAT YOUR LIGHT WAS NOT PROPERLY QUALIFIED TO BE INCLUDED ON THE QPL BECAUSE THE TESTING COMPLETED UNDER CONTRACT NO. -0073, WAS FOR PURPOSES OF ACCEPTANCE TESTING, NOT FOR INCLUSION ON THE QPL. THEREFORE, WE DID NOT OBJECT TO THE DETERMINATION THAT YOUR BID WAS NONRESPONSIVE. WE ALSO REJECTED YOUR CONTENTION THAT ONLY YOUR FIRM'S LIGHT WAS QUALIFIED FOR QPL LISTING.

IN ADDITION TO THE AFOREMENTIONED CONTENTIONS, WE NOTE, HOWEVER, THAT A NOTICE CONTAINED IN THE JULY 9, 1971, COMMERCE BUSINESS DAILY, THE ISSUANCE OF WHICH THE PROCURING ACTIVITY WAS APPARENTLY NOT AWARE OF, ANNOUNCED THAT USATACOM HAD MODIFIED THE QPL TESTING REQUIREMENTS FOR THE LIGHT IN QUESTION AND WOULD IN THE FUTURE ALLOW TESTING TO BE CONDUCTED BY THE MANUFACTURER IN HIS OWN PLANT OR IN FACILITIES CONTRACTED FOR BY HIM. USATACOM RESERVED THE RIGHT TO INSPECT THE FACILITIES SO AS TO ASCERTAIN THAT SUFFICIENT TESTING EQUIPMENT EXISTED. THE TESTING WAS TO BE SUPERVISED BY A DEPARTMENT OF DEFENSE QUALITY ASSURANCE REPRESENTATIVE. IT IS YOUR POSITION, THEREFORE, THAT THE SUCCESSFUL TESTING COMPLETED IN YOUR PLANT UNDER YOUR PRIOR CONTRACT WITH USATACOM WAS SUFFICIENT, UNDER THE NEW QPL TESTING REQUIREMENT, TO QUALIFY YOUR LIGHT FOR QPL LISTING UNDER THOSE SOLICITATIONS ISSUED SUBSEQUENT TO PROMULGATION OF THE NEW PROCEDURE. WHILE WE ARE NOT INCLINED TO DISAGREE WITH YOUR CONTENTION, WE DO NOT BELIEVE ANY DEFINITIVE DECISION ON THIS ISSUE IS NECESSARY IN THIS INSTANCE, BECAUSE THE CONTRACTS AWARDED UNDER INVITATIONS -6608, -2160, AND -2505, AWARDED AFTER INSTITUTION OF THE NEW PROCEDURE, HAVE BEEN LARGELY COMPLETED. WE THEREFORE DO NOT BELIEVE IT WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT TO DISTURB THOSE AWARDS, EVEN ASSUMING YOUR CONTENTION TO BE CORRECT.

CONCERNING PROPOSED RESOLICITATION FOR THE QUANTITIES OF LIGHTS COVERED BY INVITATIONS -3404, -3720, AND -4044, THE CONTRACTING OFFICER FELT THAT BECAUSE OF THE SUBSTANTIAL PRICE DIFFERENCE BETWEEN THE BID OF MCDERMOTT AND THAT OF THE NEXT LOW BID (AMOUNTING TO SOME 20 PERCENT OF THE TOTAL BID PRICE), AND BECAUSE OF THE AMENDED SPECIFICATION WHICH NO LONGER REQUIRED QPL LISTING, RESOLICITATION WAS REQUIRED IN ORDER TO ACHIEVE INCREASED COMPETITION AND LOWER PRICES. CANCELLATION OF AN INVITATION AND RESOLICITATION OF A PROCUREMENT IS PROPER WHERE, AS HERE, THE ADVERTISED SPECIFICATIONS HAVE BEEN RELAXED. SEE 10 U.S.C. 2305(C); ARMED SERVICES PROCUREMENT REGULATION 2-404.1(B); 37 COMP. GEN. 760 (1958).