B-174954, MAY 8, 1972

B-174954: May 8, 1972

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AEROSONIC'S LOW BID WAS REJECTED BECAUSE ITS ALTIMETER HAD NOT QUALIFIED OR BEEN PLACED ON THE QUALIFIED PRODUCTS LIST REQUIRED BY ASPR 1-1107.2(A). IT DOES NOT APPEAR THAT PROTESTANT WAS MISLED WITH REGARD TO THE REQUIREMENT OF THE RFP THAT AWARD BE RESTRICTED TO QUALIFIED FIRMS. WILL NOT QUESTION A FACTUAL DETERMINATION OF TECHNICAL ACCEPTABILITY UNLESS THE EVIDENCE OF RECORD ESTABLISHES THAT THE AGENCY HAS ACTED ARBITRARILY. 17 COMP. HAVE PASSED THE NECESSARY QUALIFICATION TESTS. THE SUBJECT RFP WAS ISSUED ON NOVEMBER 12. AWARDS WILL BE MADE ONLY FOR SUCH PRODUCTS AS HAVE. BEEN TESTED AND APPROVED FOR INCLUSION IN THE APPLICABLE QUALIFIED PRODUCTS LIST WHETHER OR NOT SUCH PRODUCTS HAVE ACTUALLY BEEN SO LISTED BY THAT DATE.

B-174954, MAY 8, 1972

BID PROTEST - QUALIFIED PRODUCTS LIST - FAILURE TO QUALIFY DECISION DENYING THE PROTEST OF AEROSONIC CORPORATION AGAINST AWARD OF A CONTRACT TO KOLLSMAN INSTRUMENTS CORPORATION UNDER AN RFP ISSUED BY THE NAVAL AIR SYSTEMS COMMAND FOR A QUANTITY OF ALTIMETERS. AEROSONIC'S LOW BID WAS REJECTED BECAUSE ITS ALTIMETER HAD NOT QUALIFIED OR BEEN PLACED ON THE QUALIFIED PRODUCTS LIST REQUIRED BY ASPR 1-1107.2(A). IT DOES NOT APPEAR THAT PROTESTANT WAS MISLED WITH REGARD TO THE REQUIREMENT OF THE RFP THAT AWARD BE RESTRICTED TO QUALIFIED FIRMS, ESPECIALLY SINCE AEROSONIC HAD SUBMITTED ITS PRODUCT TO THE NAVAL AIR DEVELOPMENT CENTER FOR QUALIFICATION TESTING. FURTHER, THE COMP. GEN. WILL NOT QUESTION A FACTUAL DETERMINATION OF TECHNICAL ACCEPTABILITY UNLESS THE EVIDENCE OF RECORD ESTABLISHES THAT THE AGENCY HAS ACTED ARBITRARILY. 17 COMP. GEN. 554 (1938). IN VIEW OF THE FOREGOING AND SINCE BOTH KOLLSMAN AND LEIGH INSTRUMENTS, LTD., HAVE PASSED THE NECESSARY QUALIFICATION TESTS, THE PROTEST MUST BE DENIED.

TO AEROSONIC CORPORATION

WE REFER TO YOUR TELEFAX OF JANUARY 17, 1972, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER REQUEST FOR PROPOSALS (RFP) NO. N00019-72-R-0038, ISSUED BY THE NAVAL AIR SYSTEMS COMMAND.

THE SUBJECT RFP WAS ISSUED ON NOVEMBER 12, 1971, FOR A QUANTITY OF ALTIMETERS, SPARE AND REPAIR PARTS AND RELATED DATA, IN ACCORDANCE WITH MILITARY SPECIFICATION A-81494(AS), DATED APRIL 15, 1968, WHICH INCLUDES THE FOLLOWING PROVISIONS:

"3.1 QUALIFICATION - THE INSTRUMENTS FURNISHED UNDER THIS SPECIFICATION SHALL BE A PRODUCT WHICH HAS BEEN TESTED AND MEETS THE QUALITY ASSURANCE PROVISIONS SPECIFIED HEREIN AND HAS BEEN LISTED ON OR APPROVED FOR LISTING ON THE APPLICABLE QUALIFIED PRODUCTS LIST.

"6.4 QUALIFICATION - WITH RESPECT TO PRODUCTS REQUIRING QUALIFICATION, AWARDS WILL BE MADE ONLY FOR SUCH PRODUCTS AS HAVE, PRIOR TO THE TIME SET FOR OPENING OF BIDS, BEEN TESTED AND APPROVED FOR INCLUSION IN THE APPLICABLE QUALIFIED PRODUCTS LIST WHETHER OR NOT SUCH PRODUCTS HAVE ACTUALLY BEEN SO LISTED BY THAT DATE. THE ATTENTION OF THE SUPPLIERS IS CALLED TO THIS REQUIREMENT AND MANUFACTURERS ARE URGED TO ARRANGE TO HAVE THE PRODUCTS THAT THEY PROPOSE TO OFFER TO THE FEDERAL GOVERNMENT, TESTED FOR QUALIFICATION, IN ORDER THAT THEY MAY BE ELIGIBLE TO BE AWARDED CONTRACTS OR ORDERS FOR THE PRODUCTS COVERED BY THIS SPECIFICATION. THE ACTIVITY RESPONSIBLE FOR THE QUALIFIED PRODUCTS LIST IS THE NAVAL AIR SYSTEMS COMMAND, DEPARTMENT OF THE NAVY, WASHINGTON, D.C. 20360, AND INFORMATION PERTAINING TO QUALIFICATION OF PRODUCTS MAY BE OBTAINED FROM THAT ACTIVITY."

THE SOLICITATION INCLUDED IN SECTION B-16 THE QUALIFIED PRODUCTS CLAUSE REQUIRED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1 1107.2(A), AND IDENTIFIES THE QUALIFIED PRODUCTS LIST (QPL) APPLICABLE TO THE EQUIPMENT BEING PROCURED AS REQUIRED BY THIS PROVISION. THE RFP WAS INITIALLY ISSUED TO KOLLSMAN INSTRUMENTS CORPORATION AND LEIGH INSTRUMENTS, LIMITED, AS THEY WERE THE ONLY FIRMS WHOSE EQUIPMENT HAD BEEN TESTED AND QUALIFIED FOR INCLUSION IN THE APPLICABLE QUALIFIED PRODUCTS LIST (QPL). SUBSEQUENTLY, YOU REQUESTED AND RECEIVED A COPY OF THE RFP. PROPOSALS WERE RECEIVED FROM ALL THREE COMPANIES. WHILE YOURS WAS THE LOWEST BID, YOUR PRODUCT HAD NOT BEEN QUALIFIED AND WAS NOT LISTED ON QPL 81494-2. ALTHOUGH YOUR PROTEST WAS MADE TO OUR OFFICE PRIOR TO THE AWARD OF A CONTRACT, THE DEPARTMENT OF THE NAVY, ON OR ABOUT FEBRUARY 25, 1972, MADE A DETERMINATION OF URGENCY IN ACCORDANCE WITH ASPR 2-407.8(B)(3), AND PURSUANT THERETO AWARDED A CONTRACT TO THE KOLLSMAN INSTRUMENTS CORPORATION.

YOU CONTEND THAT THE RFP DID NOT REQUIRE THAT THE AAU-24/A ALTIMETER BE A QPL ITEM AND THAT AWARD BE MADE ONLY TO A FIRM WHOSE PRODUCT WAS QUALIFIED. FIRST, YOU NOTE THE ABSENCE OF ANY INDICATION ON THE TOP PAGE OF THE RFP (FORM 1707) IN THE BLANK CAPTIONED "THIS PROCUREMENT IS: OTHERWISE RESTRICTED TO," THAT THE PROCUREMENT WAS RESTRICTED TO QUALIFIED PRODUCTS. IN ADDITION, YOU CONTEND THAT THE LANGUAGE OF PARAGRAPH 6.2(C), UNDER ORDERING DATA, OF AMENDMENT 0001, DATED NOVEMBER 12, 1971, TO THE RFP FURTHER INDICATES THAT THE GOVERNMENT DID NOT INTEND TO REQUIRE A QPL ITEM. THAT SECTION READS AS FOLLOWS:

"(C) RELIABILITY QUALIFICATION OR ASSURANCE PHASE TESTS ARE REQUIRED (SEE PARAGRAPH 4.4.3 AND 4.4.3.1) UNLESS IT HAS SUCCESSFULLY BEEN PASSED PREVIOUSLY."

YOU HAVE STATED YOUR ARGUMENT AS FOLLOWS:

" *** IN ORDER FOR A COMPANY TO BE ON A QPL IT MUST HAVE FIRST PASSED ALL OF THE REQUIREMENTS OF THE SPECIFICATION. THE SPECIFICATION FOR RELIABILITY IS ONE OF THE BASIC REQUIREMENTS THAT THE MANUFACTURER MUST HAVE PASSED IN ORDER TO RECEIVE A QPL LISTING. (2) THE AMENDMENT OF EXHIBIT V, PARAGRAPH 'C', CLEARLY STATES THAT IF YOU HAVE NOT PASSED THIS TEST YOU MUST PASS AND MEET THIS TEST AFTER THE CONTRACT HAS BEEN AWARDED. OUR BASIC ARGUMENT IS AS FOLLOWS: IT IS OBVIOUS THAT THE UNITED STATES NAVY COULD NOT HAVE PUT THIS REQUIREMENT IN IF ONLY COMPANIES WERE ON THE QPL LIST, SINCE ONLY COMPANIES ON THE QPL LIST WOULD HAVE ALREADY PASSED THIS REQUIREMENT AND THEREFORE THERE WAS NO NEED TO PLACE SUCH A PROVISION IN THE CONTRACT. THE FACT THAT THE NAVY WAS WILLING TO ACCEPT BIDDERS WHO HAVE NOT PASSED THAT TEST PROVES CONCLUSIVELY THAT THERE WAS NO INTENT UPON THE NAVY TO INSIST ON A QPL ITEM."

THE NAVY STATES IN THEIR ADMINISTRATIVE REPORT (A COPY OF WHICH WAS PREVIOUSLY FURNISHED TO YOU) THAT PARAGRAPH 6.2(C) OF THE AMENDMENT WAS DESIGNED TO MERELY CLARIFY THE FACT THAT A MANUFACTURER WHOSE PRODUCT HAD BEEN QUALIFIED AND HAD PASSED THE RELIABILITY QUALIFICATION OR ASSURANCE PHASE TEST WOULD NOT HAVE TO REPEAT THE TEST. SPECIFICALLY, THE NAVY HAS ADVISED US THAT THE QUESTION OF WHETHER A MANUFACTURER WOULD HAVE TO REPEAT THE TEST IF IT HAD BEEN SUCCESSFULLY PASSED PREVIOUSLY WAS RAISED BY LEIGH INSTRUMENTS. THEREFORE, THE AMENDMENT WAS ISSUED IN ORDER TO CLARIFY ANY AMBIGUITY AND TO PROPERLY NOTIFY ALL POTENTIAL OFFERORS OF THE ANSWER. IN ANY CASE WE DO NOT BELIEVE THE CLAUSE IS REASONABLY SUBJECT TO THE INTERPRETATION WHICH YOU HAVE PLACED UPON IT ESPECIALLY IN LIGHT OF THE PLAIN LANGUAGE OF SECTION B 16 OF THE SOLICITATION AND PARAGRAPHS 3.1 AND 6.4 OF THE APPLICABLE MILITARY SPECIFICATION (SET FORTH ABOVE). FURTHERMORE, ALTHOUGH YOU CONTEND THAT THE SOLICITATION DID NOT REQUIRE A QPL ITEM, THE FACT REMAINS THAT YOUR FIRM SUBMITTED A SAMPLE TO THE NAVAL AIR DEVELOPMENT CENTER FOR QUALIFICATION TESTING. ACCORDINGLY, WE DOUBT WHETHER IT MAY BE SAID THAT YOU WERE MISLED BY THE QPL REQUIREMENT. THIS REGARD, WE DO NOT THINK THAT THE ABSENCE OF A STATEMENT ON THE FACE OF THE SOLICITATION DOCUMENT (DD FORM 1707) INDICATING THAT THE PROCUREMENT WAS RESTRICTED TO QUALIFIED PRODUCTS, COULD REASONABLY BE INTERPRETED TO MEAN THAT THE QPL CLAUSE IN THE RFP WAS NOT APPLICABLE. ALSO, YOU COULD HAVE SOUGHT CLARIFICATION ON THIS POINT FROM THE NAVY PRIOR TO SUBMITTING YOUR PROPOSAL.

YOU FURTHER ALLEGE THAT YOUR AAU-27/A ALTIMETER IS CURRENTLY BEING PRODUCED FOR THE AIR FORCE AND IS EQUAL TO OR BETTER THAN THE AAU-24/A. WITH RESPECT TO THIS THE NAVY HAS RESPONDED AS FOLLOWS:

"THE RFP REQUIRES THE AAU-24/A ALTIMETER. AEROSONIC ARGUES THAT THE AAU- 27/A ALTIMETERS, WHICH THEY ARE CURRENTLY PRODUCING FOR THE AIR FORCE, ARE 'EQUAL OR BETTER THAN' THE AAU-24/A ALTIMETER. FOR THE AAU 27/A TO BE EQUAL TO THE AAU-24/A IT MUST BE DEMONSTRATED THAT IT CAN MEET THE QUALIFICATION REQUIREMENTS OF MIL-A-81494(AS). AEROSONIC, DURING NOVEMBER AND DECEMBER 1971, SUBMITTED SIX (6) TYPE AAU-27/A AND ONE (1) TYPE AAU- 24/A ALTIMETER TO THE NAVAL AIR DEVELOPMENT CENTER FOR QUALIFICATION TESTS. EACH OF THE SAMPLES SUBMITTED FAILED (ENCLOSURE 6). IN VIEW OF THIS FAILURE IT IS OBVIOUS THAT AEROSONIC'S AAU-27/A UNITS ARE NOT EQUAL TO THE AAU-24/A ALTIMETER."

IT IS WELL ESTABLISHED THAT THE FACTUAL DETERMINATION WHETHER ITEMS OFFERED MEET THE APPLICABLE SPECIFICATIONS IS PROPERLY THE FUNCTION OF THE PROCURING AGENCY, AND WE WILL NOT QUESTION SUCH A DETERMINATION UNLESS THE EVIDENCE OF RECORD ESTABLISHES THAT THE AGENCY HAS ACTED ARBITRARILY. COMP. GEN. 554 (1938). WE FIND NO SUCH EVIDENCE HERE.

YOU ALSO QUESTION WHETHER KOLLSMAN OR LEIGH HAVE PASSED THE NECESSARY QUALIFICATION TESTS. IN THIS REGARD WE HAVE BEEN PROVIDED COPIES OF REPORTS AND VARIOUS SUPPORT DOCUMENTATION FROM THE COMMANDER, NAVAL AIR DEVELOPMENT CENTER, WARMINISTER, PENNSYLVANIA, RECOMMENDING THAT AS A RESULT OF TESTS PERFORMED THAT THE AAU-24/A ALTIMETER MANUFACTURED BY BOTH OF THESE COMPANIES BE PLACED ON THE QPL.

FINALLY, YOU STATE THAT NAVY HAS NOT TRIED TO EXPAND ITS INDUSTRIAL BASE AND TO BRING COMPETITION FROM UNITED STATES MANUFACTURERS INTO THIS PROCUREMENT. THE RECORD SHOWS THAT IN NOVEMBER 1970, THE NAVY DID INITIATE THE PUBLICATION OF A NOTICE IN THE COMMERCE BUSINESS DAILY ADVISING POTENTIAL MANUFACTURERS OF NAVY'S DESIRE TO LOCATE NEW QUALIFIED SOURCES FOR THE AAU-24/A ALTIMETER.

IN VIEW OF THE FOREGOING, THE PROTEST MUST BE DENIED.