B-174868, JUL 14, 1972

B-174868, JUL 14, 1972

BID PROTEST - "QUALIFIED PART" - REQUIRED TESTING DENIAL OF PROTEST BY SPER-LING ASSOCIATES, INC., AGAINST THE REJECTION OF THEIR PROPOSAL UNDER AN RFP ISSUED BY THE DEFENSE INDUSTRIAL SUPPLY CENTER, PHILADELPHIA, PA., FOR 913 LOCK NUTS, REQUIRING AN APPROVED SOURCE OF SUPPLY. WHILE IT VERY WELL MAY BE THAT THE SPER-LING PART IN FACT DOES MEET ALL THE INTERCHANGEABILITY AND RELIABILITY REQUIREMENTS, GAO CANNOT CONCLUDE THAT IT WAS UNREASONABLE FOR THE CONTRACTING OFFICER TO REQUIRE TESTING IN THE NORMAL MANNER EVEN THOUGH THE IDENTICAL PARTS HAD PREVIOUSLY BEEN SUPPLIED UNDER A CONTRACT WITH ANOTHER AIR FORCE ACTIVITY. SEE 47 COMP. GEN. 701 (1968). COPY FURNISHED DIRECTOR, DSA.

TO SPER-LING ASSOCIATES, INC.:

YOUR LETTERS OF DECEMBER 7, 1971, AND MARCH 8, 1972, PROTEST THE REJECTION OF YOUR PROPOSAL UNDER REQUEST FOR PROPOSALS (RFP) DSA500-72 R- 0524 ISSUED BY THE DEFENSE INDUSTRIAL SUPPLY CENTER (DISC), PHILADELPHIA, PENNSYLVANIA.

THE SUBJECT RFP WAS FOR 913 LOCK NUTS IDENTIFIED BY FEDERAL STOCK NO. (FSN) 5310-112-1226, GENERAL ELECTRIC PART NO. 3014M84P01. THE SOLICITATION LISTS AS AN APPROVED SOURCE OF SUPPLY, "ELASTIC STOP NUT CORP. 72962." ALTHOUGH YOUR FIRM SUBMITTED THE LOWEST OFFER, IT WAS REJECTED ON THE BASIS THAT THE SPER-LING PART NUMBER OFFERED HAD NOT BEEN APPROVED BY THE GENERAL ELECTRIC COMPANY, THE ORIGINAL MANUFACTURER, AS REQUIRED BY MILITARY STANDARD MIL-STD-100A AND AS SPECIFIED BY THE GENERAL ELECTRIC COMPANY DRAWING FOR THE PART NUMBER CALLED FOR BY THE RFP - A "SOURCE CONTROL DRAWING." FOLLOWING REJECTION OF THE SPER-LING PROPOSAL, AWARD WAS MADE ON NOVEMBER 30, 1971, TO AMERACE ESNA CORPORATION, ELASTIC STOP NUT DIVISION, BEFORE RECEIPT OF YOUR PROTEST.

IT IS YOUR POSITION THAT SPER-LING SHOULD BE CONSIDERED A QUALIFIED SOURCE FOR THE PART IN QUESTION INASMUCH AS THE IDENTICAL PART WAS PREVIOUSLY SUPPLIED BY SPER-LING AND ACCEPTED FOLLOWING FIRST ARTICLE TESTING BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT, VAN NUYS, UNDER UNITED STATES AIR FORCE CONTRACT F34601-71-C-0106, ISSUED BY THE OKLAHOMA CITY AIR MATERIEL AREA (OCAMA). IN SUBSTANTIATION OF YOUR POSITION THAT THE PREVIOUS TESTING AND ACCEPTANCE OF SPER-LING PARTS IS SUFFICIENT TO RENDER THEM "QUALIFIED," YOU CITE OUR DECISION IN 50 COMP. GEN. 184 (B-169172, SEPTEMBER 16, 1970), WHICH SUGGESTED THAT THE AIR FORCE INSTITUTE A QUALIFICATION TEST PROGRAM TO MEASURE THE ACCEPTABILITY OF AIRCRAFT ENGINE PARTS MANUFACTURED BY SOURCES OTHER THAN THE ORIGINAL MANUFACTURER.

THE REPORT IN THIS MATTER SUBMITTED TO OUR OFFICE BY THE DEFENSE SUPPLY AGENCY (DSA) CONCEDES THAT THE SPER-LING PART WAS SUPPLIED UNDER THE PRIOR OCAMA CONTRACT BUT POINTS OUT THAT SUCH CONTRACT ORIGINALLY CALLED FOR A SOURCE APPROVED LOCK NUT, WHICH WAS BUT ONE OF MANY PARTS OF A KIT BEING SUPPLIED UNDER THAT CONTRACT, BUT WAS MODIFIED TO ALLOW THE SUBSTITUTION OF A SPER-LING MANUFACTURED PART AS A RESULT OF NONAVAILABILITY OF PREVIOUSLY QUALIFIED PARTS COUPLED WITH AN URGENT DELIVERY REQUIREMENT. THE REPORT CLEARLY STATES, HOWEVER, THAT THE SUBSTITUTION OF A SPER-LING PART FOR ONE PREVIOUSLY QUALIFIED WAS INTENDED AS A ONE-TIME-ONLY DEVIATION FROM THE NORMAL PROCEDURE WHEREBY A PART MUST BE APPROVED BY THE ORIGINAL MANUFACTURER IN ACCORDANCE WITH AN ESTABLISHED TESTING PROCEDURE DICTATED BY THE URGENT NEED FOR THE KITS AND WAS SO CHARACTERIZED BY THE TERMS OF THE AMENDMENT.

THE REPORT CITES PARAGRAPH 1-313(C) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) AS AUTHORIZING PROCUREMENT OF PARTS PROPERLY DETERMINED TO BE "SOURCE CONTROL" PARTS IN THIS MANNER BECAUSE OF THE NEED OF ASSURING INTERCHANGEABILITY AND RELIABILITY. FURTHER, THE REPORT POINTS OUT THAT THE PROCURING ACTIVITY UNDER SPER-LING'S PRIOR CONTRACT WAS OCAMA, AS INDICATED ABOVE, WHILE THE RESPONSIBLE ENGINEERING ACTIVITY FOR THE PART IN QUESTION IS THE SAN ANTONIO AIR MATERIEL AREA (SAAMA) AND TAKES THE POSITION THAT THE APPROVAL BY AN AIR FORCE ACTIVITY OTHER THAN THE ONE WITH PRIMARY ENGINEERING RESPONSIBILITY IS NOT SUFFICIENT TO ASSURE THAT ALL TEST REQUIREMENTS REQUIRED BY THE ORIGINAL MANUFACTURER WOULD BE SUCCESSFULLY PASSED. IT IS POINTED OUT, HOWEVER, THAT BY LETTER DATED FEBRUARY 11, 1972, TO SPER-LING, THERE WAS OUTLINED THE PROCEDURE TO BE FOLLOWED TO ASSURE THAT SPER-LING'S PART MEETS ALL GENERAL ELECTRIC TEST REQUIREMENTS.

WE AGREE WITH THIS ANALYSIS. WHILE IT VERY WELL MAY BE THAT THE SPER LING PART IN FACT DOES MEET ALL INTERCHANGEABILITY AND RELIABILITY REQUIREMENTS, WE CANNOT CONCLUDE THAT IT WAS UNREASONABLE FOR THE CONTRACTING OFFICER TO REQUIRE TESTING IN THE NORMAL MANNER, I.E., BY THE ORIGINAL MANUFACTURER, NOTWITHSTANDING THE FACT THAT IDENTICAL PARTS HAD PREVIOUSLY BEEN SUPPLIED BY SPER-LING AND APPARENTLY ACCEPTED AND INTRODUCED INTO THE AIR FORCE INVENTORY WITHOUT EVIDENT PROBLEM. IN THIS REGARD, OUR OFFICE HAS CONSISTENTLY HELD THAT THE DRAFTING OF SPECIFICATIONS AND DETERMINATIONS AS TO WHETHER ITEMS OFFERED MEET THOSE SPECIFICATIONS ARE PRIMARILY MATTERS OF ADMINISTRATIVE DISCRETION, SUBJECT TO QUESTION BY OUR OFFICE ONLY WHEN CLEARLY ERRONEOUS. SEE 47 COMP. GEN. 701 (1968). NO SUCH CLEAR ERROR IS EVIDENT HERE.

WHILE SPER-LING WAS PRECLUDED FROM COMPETING IN THE PROCUREMENT IN QUESTION, WE NOTE THAT THE OPPORTUNITY TO SUBMIT ITS PART FOR TESTING BY GENERAL ELECTRIC HAS BEEN EXTENDED. IT THEREFORE APPEARS THAT SPER LING WILL BE AFFORDED AN OPPORTUNITY TO COMPETE IN FUTURE PROCUREMENTS OF THE PART IN QUESTION, ASSUMING THAT ITS PART SUCCESSFULLY PASSES THE REQUIRED QUALIFICATION TESTS. 50 COMP. GEN., SUPRA, CITED BY YOU IN SUBSTANTIATION OF YOUR CONTENTION THAT THE SPER-LING PART SHOULD BE CONSIDERED ACCEPTABLE WITHOUT FURTHER TESTING, IS NOT FOR APPLICATION IN THIS INSTANCE INASMUCH AS THAT DECISION MERELY RECOMMENDED THAT A QUALIFICATION TEST PROGRAM BE INSTITUTED IN ORDER TO MEASURE THE ACCEPTABILITY OF PARTS PROPOSED TO BE FURNISHED BY OTHER THAN THE ORIGINAL MANUFACTURER BUT DID NOT DIRECT THAT PARTS WHICH HAD NOT SUCCESSFULLY COMPLETED SUCH A QUALIFICATION TEST PROGRAM BE ACCEPTED.

IN ACCORDANCE WITH THE ABOVE CONSIDERATIONS, YOUR PROTEST MUST BE DENIED.