B-174727, SEP 12, 1972

B-174727: Sep 12, 1972

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THERE WERE NO TAPE BELTS AVAILABLE UNDER A FEDERAL SUPPLY SCHEDULE WHICH WAS EITHER MANDATORY OR OPTIONAL ON THE DEPARTMENT OF DEFENSE (DOD). ITEMS LISTED ON A QPL UNDER AN INTERIM FEDERAL SPECIFICATION ARE NOT MANDATORY ON ANY GOVERNMENT PURCHASING ACTIVITY. EDP'S BID WAS CLEARLY NOT RESPONSIVE SINCE IT DID NOT CONFORM TO THE MATERIAL REQUIREMENTS OF THE SPECIFICATIONS. THERE IS NO ALLEGATION OF THAT HERE. THE SUBJECT IFB WAS ISSUED ON SEPTEMBER 21. PURCHASE DESCRIPTION OF THE SEALS WAS SET FORTH IN THE INVITATION. FOUR BIDS INCLUDING EDP'S WERE RECEIVED AND OPENED ON OCTOBER 22. EDP'S BID WAS IN THE AMOUNT OF $.52 EACH RESULTING IN A TOTAL BID OF $9. EDP'S BID WAS DETERMINED TO BE NONRESPONSIVE AND AWARD WAS MADE ON NOVEMBER 26.

B-174727, SEP 12, 1972

BID PROTEST - NONRESPONSIVENESS DECISION REGARDING THE PROTEST OF ENGINEERED DATA PRODUCTS, INC. (EDP), AGAINST AWARD OF A CONTRACT FOR TAPE SEAL BELTS UNDER AN IFB ISSUED AT RANDOLPH AFB, TEX. THERE WERE NO TAPE BELTS AVAILABLE UNDER A FEDERAL SUPPLY SCHEDULE WHICH WAS EITHER MANDATORY OR OPTIONAL ON THE DEPARTMENT OF DEFENSE (DOD). MOREOVER, ITEMS LISTED ON A QPL UNDER AN INTERIM FEDERAL SPECIFICATION ARE NOT MANDATORY ON ANY GOVERNMENT PURCHASING ACTIVITY. (FPR 1-1.305-4). FURTHER, EDP'S BID WAS CLEARLY NOT RESPONSIVE SINCE IT DID NOT CONFORM TO THE MATERIAL REQUIREMENTS OF THE SPECIFICATIONS. SEE 43 COMP. GEN. 209 (1963). HOWEVER, ASPR 5-201 STATES THE POLICY OF DOD TO BE TO ORDER ITEMS AVAILABLE AT GSA STORES UNLESS DELIVERY REQUIREMENTS CANNOT BE MET, AND THERE IS NO ALLEGATION OF THAT HERE. MOREOVER, GSA CONSIDERS THESE ITEMS TO BE ADPE SUPPLIES SUBJECT TO GSA'S EXCLUSIVE PROCUREMENT JURISDICTION UNDER THE BROOKS ACT, 40 U.S.C. 759.

TO MR. SECRETARY:

WE REFER TO A LETTER DATED MARCH 1, 1972, FROM THE CHIEF, CONTRACT MANAGEMENT DIVISION, AND SUBSEQUENT CORRESPONDENCE, TRANSMITTING A REPORT IN CONNECTION WITH THE PROTEST OF ENGINEERED DATA PRODUCTS, INCORPORATED (EDP), AGAINST THE AWARD OF A CONTRACT TO WRIGHT LINE, DIVISION OF BARRY WRIGHT CORPORATION (WRIGHT), UNDER INVITATION FOR BIDS (IFB) NO. F41606-72 -B-0042, ISSUED AT RANDOLPH AIR FORCE BASE, TEXAS.

THE SUBJECT IFB WAS ISSUED ON SEPTEMBER 21, 1971, FOR THE PROCUREMENT OF 18,000 TAPE SEAL BELTS FOR TEN AND ONE-HALF INCH DIAMETER REELS. PURCHASE DESCRIPTION OF THE SEALS WAS SET FORTH IN THE INVITATION. FOUR BIDS INCLUDING EDP'S WERE RECEIVED AND OPENED ON OCTOBER 22, 1971. EDP'S BID WAS IN THE AMOUNT OF $.52 EACH RESULTING IN A TOTAL BID OF $9,360. EDP'S BID WAS DETERMINED TO BE NONRESPONSIVE AND AWARD WAS MADE ON NOVEMBER 26, 1971, TO WRIGHT AS THE NEXT LOW BIDDER AT $.62 EACH FOR A TOTAL PRICE OF $11,160.

EDP'S PROTEST WAS INITIALLY BASED ON THE CONTENTION THAT SINCE EDP'S PRODUCT HAD BEEN PLACED ON THE QUALIFIED PRODUCTS LIST (QPL), UNDER INTERIM FEDERAL SPECIFICATION W-B-001573, THE AGENCY SHOULD HAVE PURCHASED ITS PRODUCT THROUGH THE FEDERAL SUPPLY SERVICE. EDP ALSO SEEMS TO ALLEGE THAT THE AGENCY'S DETERMINATION THAT ITS BID WAS NONRESPONSIVE IS OPEN TO QUESTION IN VIEW OF THE FACT THAT EDP'S PRODUCT WAS TESTED AND PLACED ON THE QPL. FINALLY, EDP ALLEGES THAT THE ITEMS PROCURED FALL WITHIN THE PURVIEW OF THE BROOKS ACT, 40 U.S.C. 759 WHICH CONFERS UPON THE GENERAL SERVICES ADMINISTRATION (GSA) EXCLUSIVE AUTHORITY TO PROCURE ALL GENERAL- PURPOSE AUTOMATIC DATA PROCESSING EQUIPMENT (ADPE), AND RELATED SUPPLIES AND EQUIPMENT.

IN REGARD TO EDP'S FIRST ALLEGATION, WE ARE INFORMED THAT AT THE TIME OF THIS PROCUREMENT THERE WERE NO TAPE BELTS AVAILABLE UNDER A FEDERAL SUPPLY SCHEDULE WHICH WAS EITHER MANDATORY OR OPTIONAL ON THE DEPARTMENT OF DEFENSE. IN ADDITION, THE DEPARTMENT OF DEFENSE INDEX OF SPECIFICATIONS AND STANDARDS, PART I, DATED JULY 1, 1971, INDICATES THAT AS OF THAT DATE THERE WAS NO QPL ON THE SUBJECT SPECIFICATION. ALSO, WE NOTE THAT THE FEDERAL PROCUREMENT REGULATIONS (FPR) PROVIDE AT SECTION 1-1.305-4 THAT THE USE OF AN INTERIM FEDERAL SPECIFICATION, SUCH AS THAT INVOLVED IN THE INSTANT SITUATION, IS NOT MANDATORY ON ANY GOVERNMENT PURCHASING ACTIVITY.

IN REGARD TO THE REJECTION OF EDP'S BID AS NONRESPONSIVE WE NOTE THAT THE PURCHASE DESCRIPTION AS SET FORTH IN THE INVITATION SPECIFIES THAT THE BELT BE MOLDED OF POLYETHYLENE AND ASSEMBLED WITHOUT THE USE OF RIVETS OR FOREIGN METAL PARTS. THE RECORD INDICATES THAT EDP'S SEAL IS MOLDED OF POLYPROPYLENE AND INCLUDES A METAL RIVET. SINCE IT IS EVIDENT THAT EDP'S SEAL DOES NOT CONFORM TO THE MATERIAL REQUIREMENTS OF THE SPECIFICATION CONTAINED IN THE INVITATION, WE MUST CONCLUDE THAT EDP'S BID WAS PROPERLY DETERMINED TO BE NONRESPONSIVE. SEE 43 COMP. GEN. 209 (1963).

ALTHOUGH WE HAVE DETERMINED THAT EDP'S BID WAS NOT RESPONSIVE, WE NOTE THAT BOTH THE OCTOBER 1970 AND THE OCTOBER 1971 EDITIONS OF THE GENERAL SERVICES ADMINISTRATION (GSA) STORES STOCK CATALOG LIST "BAND, TAPE, SEALS, NO. 7440-097-8117" FOR TEN AND ONE-HALF INCH DIAMETER REELS AS AVAILABLE THROUGH GSA AT A PRICE OF $.40 EACH IN THE 1970 EDITION AND $.42 EACH IN THE 1971 EDITION. IN THIS REGARD ARMED SERVICES PROCUREMENT REGULATION (ASPR) 5-201 PROVIDES THAT IT IS THE POLICY OF THE DEPARTMENT OF DEFENSE TO ORDER ITEMS WHICH ARE AVAILABLE FROM GSA STORES DEPOTS UNLESS THE DELIVERY REQUIREMENT CANNOT BE MET. THE PROCURING ACTIVITY ASSERTS THAT THE BANDS LISTED IN THE GSA CATALOG WERE NOT SUITED TO THEIR NEEDS BECAUSE OF EXCESSIVE BREAKAGE AND THE LACK OF ESSENTIAL NUMBERING AND COLOR FEATURES, BUT DOES NOT ALLEGE THAT GSA COULD NOT MEET THE DELIVERY REQUIREMENTS.

IN REGARD TO EDP'S ALLEGATION THAT THE BROOK'S ACT COVERS THE SUBJECT ITEM, PLEASE SEE 48 COMP. GEN. 462 (1969) AND A LETTER DATED AUGUST 11, 1972, FROM THE ASSISTANT GENERAL COUNSEL, PROCUREMENT DIVISION OF GSA, COPY ENCLOSED, INDICATING THAT GSA CONSIDERS THE SUBJECT SEALS TO BE ADPE SUPPLIES AND SUBJECT TO GSA'S EXCLUSIVE PROCUREMENT JURISDICTION.