B-175493(2), APR 20, 1972

B-175493(2): Apr 20, 1972

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IT IS RECOMMENDED THAT IN FUTURE PROCUREMENTS WHERE THE EXPERIENCE REQUIREMENT RELATES DIRECTLY TO THE ACCEPTABILITY OF THE ITEM. ATTORNEY GENERAL: REFERENCE IS MADE TO A LETTER OF MARCH 17. ALTHOUGH WE HAVE DENIED THE PROTEST. WE CONSIDER THE IFB LACKING IN CLARITY AS TO ESTABLISHING THAT THE QUANTITY-IN-USE EXPERIENCE REQUIREMENT WAS A MATTER OF RESPONSIVENESS RATHER THAN RESPONSIBILITY. IT IS THEREFORE RECOMMENDED THAT IN FUTURE PROCUREMENTS WHERE IT IS DETERMINED THAT A PRIOR RELIABILITY QUALIFICATION OF THE ITEM INVOLVED IS ESSENTIAL. CAREFUL ATTENTION SHOULD BE GIVEN TO THE DRAFTING OF THE IFB TO CLEARLY ESTABLISH THEREIN THAT THE QUANTITY-IN-USE EXPERIENCE REQUIREMENT IS A MATTER CONFINED TO THE ACCEPTABILITY OF THE ITEM AND NOT GOING TO THE ACCEPTABILITY OR QUALIFICATIONS OF THE MANUFACTURER AS A PRODUCER OF THE ITEM.

B-175493(2), APR 20, 1972

BID PROTEST - NONRESPONSIVENESS - EXPERIENCE REQUIREMENT CONCERNING A DECISION DENYING THE PROTEST OF AEROTRON, INC., AGAINST AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER AN IFB ISSUED BY THE IMMIGRATION AND NATURALIZATION SERVICE FOR A PROCUREMENT OF PORTABLE RADIO SETS. IT IS RECOMMENDED THAT IN FUTURE PROCUREMENTS WHERE THE EXPERIENCE REQUIREMENT RELATES DIRECTLY TO THE ACCEPTABILITY OF THE ITEM, THE IFB SHOULD SET OUT WITH REASONABLE SPECIFICITY THE EXPERIENCE DEMANDED SO THAT A BIDDER'S RESPONSIVENESS OR NONRESPONSIVENESS CAN BE DETERMINED AT THE TIME OF OPENING.

TO MR. ATTORNEY GENERAL:

REFERENCE IS MADE TO A LETTER OF MARCH 17, 1972 (CO 11-72), WITH ENCLOSURES, FROM THE ASSOCIATE COMMISSIONER, MANAGEMENT, IMMIGRATION AND NATURALIZATION SERVICE, REPORTING ON THE PROTEST BY CADWALADER, WICKERSHAM AND TAFT, ATTORNEYS FOR AEROTRON, INC., AGAINST THE AWARD OF A CONTRACT TO ANYONE OTHER THAN AEROTRON, INC., UNDER INVITATION FOR BIDS NO. CO 11-72, ISSUED DECEMBER 7, 1971, BY THE IMMIGRATION AND NATURALIZATION SERVICE, UNITED STATES DEPARTMENT OF JUSTICE.

ALTHOUGH WE HAVE DENIED THE PROTEST, WE CONSIDER THE IFB LACKING IN CLARITY AS TO ESTABLISHING THAT THE QUANTITY-IN-USE EXPERIENCE REQUIREMENT WAS A MATTER OF RESPONSIVENESS RATHER THAN RESPONSIBILITY. IT IS THEREFORE RECOMMENDED THAT IN FUTURE PROCUREMENTS WHERE IT IS DETERMINED THAT A PRIOR RELIABILITY QUALIFICATION OF THE ITEM INVOLVED IS ESSENTIAL, AND THE ESTABLISHMENT OF A QUALIFIED PRODUCTS LIST THEREFORE WOULD NOT BE APPROPRIATE, CAREFUL ATTENTION SHOULD BE GIVEN TO THE DRAFTING OF THE IFB TO CLEARLY ESTABLISH THEREIN THAT THE QUANTITY-IN-USE EXPERIENCE REQUIREMENT IS A MATTER CONFINED TO THE ACCEPTABILITY OF THE ITEM AND NOT GOING TO THE ACCEPTABILITY OR QUALIFICATIONS OF THE MANUFACTURER AS A PRODUCER OF THE ITEM. IN SUCH CASES, THE IFB SHOULD ALSO SET OUT WITH REASONABLE SPECIFICITY THE EXPERIENCE WHICH IS CONSIDERED ESSENTIAL FOR A RESPONSIVE BID, AND REQUIRE THAT ANY SUPPORTING DATA DEEMED NECESSARY BE FURNISHED WITH THE BID SO THAT THE RESPONSIVENESS OR NONRESPONSIVENESS OF THE BID CAN BE ESTABLISHED AT THE TIME OF OPENING.

THE FILE FORWARDED TO OUR OFFICE BY THE LETTER OF MARCH 17 IS RETURNED.