B-176011, AUG 11, 1972

B-176011, AUG 11, 1972

BID PROTEST - TESTING OF ITEM TO BE PURCHASED - AGENCY DETERMINATION DECISION DENYING PROTEST OF ROCKWOOD, A GULF & WESTERN PRECISION ENGINEERING COMPANY, AGAINST AWARD OF A CONTRACT TO FEECON CORPORATION UNDER AN RFP ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO, FOR A QUANTITY OF NOZZLES IDENTIFIED IN THE PROCUREMENT BY ROCKWOOD PART NUMBERS. PROTESTANT ALLEGES THAT THE FEECON PART MAY NOT MEET CERTAIN QUALITY REQUIREMENTS AND, THEREFORE, SHOULD UNDERGO THE SAME TESTING THAT THE ROCKWOOD PART HAS UNDERGONE. WHILE THE NOZZLE OFFERED BY FEECON HAS NOT BEEN TESTED IN THE END ITEM, IT HAS BEEN PREVIOUSLY FURNISHED TO THE DEPARTMENT OF THE AIR FORCE FOR USE IN THE P-4 FIRE TRUCK, WHICH REQUIRES ESSENTIALLY THE SAME NOZZLE AS THE P-2 TRUCK FOR WHICH NOZZLES ARE NOW SOUGHT. THE AGENCY TECHNICAL EVALUATORS HAVE DETERMINED THAT THE FEECON PART IS ACCEPTABLE; THE COMP. GEN. HAS NO REASON TO QUESTION THIS DETERMINATION.

TO ROCKWOOD,

A GULF & WESTERN PRECISION ENGINEERING COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 19, 1972, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER REQUEST FOR PROPOSALS (RFP) DSA700-72- R-2528, ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO.

THE REQUEST FOR PROPOSALS WAS ISSUED ON FEBRUARY 29, 1972, FOR OFFERS ON A TOTAL QUANTITY OF 33 NOZZLES IDENTIFIED BY ROCKWOOD PART NUMBER S6990 AND FEDERAL SUPPLY NUMBER 4210-00-066-5760. THE SOLICITATION INCLUDED THE PRODUCTS OFFERED CLAUSE WHICH PROVIDES IN PART AS FOLLOWS:

"C25 - PRODUCTS OFFERED:

(A) PRODUCTS OFFERED MUST EITHER BE IDENTICAL OR FUNCTIONALLY, PHYSICALLY, MECHANICALLY, AND ELECTRICALLY INTERCHANGEABLE WITH THE PRODUCTS CITED IN EACH PROCUREMENT IDENTIFICATION DESCRIPTION OF THIS SOLICITATION.

(B) FOR EVALUATION PURPOSES OFFERORS MUST INDICATE, BY MARKING THE APPROPRIATE BLOCKS), WHICH OF THE FOLLOWING SITUATIONS IS APPLICABLE TO EACH CLIN (CONTRACT LINE ITEM NUMBER) WHICH THEY ARE OFFERING AND FURNISH WHATEVER SUPPORTING INFORMATION IS REQUIRED BELOW. 'FAILURE TO FURNISH COMPLETE DATA AND INFORMATION REQUIRED TO SUPPORT SITUATIONS (2), (3) AND (4) BELOW MAY PRECLUDE CONSIDERATION OF YOUR PROPOSAL.'

(3) FOR CLINSWILL FURNISH A PRODUCT DETERMINED UNDER PRIOR MILITARY CONTRACTS, EITHER AS A PRIME OR SUBCONTRACTOR TO BE FUNCTIONALLY PHYSICALLY, MECHANICALLY AND ELECTRICALLY INTERCHANGEABLE WITH THE PRODUCT CITED IN THIS SOLICITATION THOUGH NOT MANUFACTURED IN ACCORDANCE WITH THE CITED MANUFACTURER'S DRAWING OR SPECIFICATION.

NOTE: OFFERORS RELYING ON THIS PARAGRAPH (3) MUST INSERT BENEATH THE APPLICABLE CLIN OF THIS SOLICITATION THE SUBSTITUTED MANUFACTURER'S NAME AND PART NUMBER, AND, IN ADDITION, FURNISH SUFFICIENT DATA TO SUITABLY SUBSTANTIATE THE CLIN AS ACCEPTABLE. AS A MINIMUM, THE FOLLOWING DATA MUST BE FURNISHED (1) COPY OF CONTRACT OR PURCHASE ORDER UNDER WHICH FURNISHED, AND (2) COPY OF A DRAWING TO WHICH MADE."

THREE OFFERS WERE RECEIVED BY CLOSING DATE ON MARCH 17, 1972. THE THREE OFFERS WERE AS FOLLOWS:

FEECON CORP. $214.00 EACH

ROCKWOOD 266.00 EACH

OSHKOSH TRUCK CORP. 480.00 EACH

FEECON CORPORATION INSERTED THE WORD "ALL" IN THE BLANK SPACE OF "3" OF CLAUSE C25 QUOTED ABOVE. FEECON OFFERED ITS PART NUMBER 400360 AS BEING EQUAL IN ALL MATERIAL RESPECTS TO ROCKWOOD NO. S6990 AND SUBMITTED A COPY OF ITS DRAWING FOR PART NUMBER 400360.

IT IS REPORTED THAT SUBSEQUENT TO THE CLOSING DATE, ROCKWOOD INFORMALLY INQUIRED ABOUT THE STATUS OF THE AWARD AND ON APRIL 3, 1972, VOLUNTARILY REDUCED ITS PRICE TO $220.00 EACH. A CONTRACT WAS AWARDED TO FEECON ON APRIL 14, 1972, FOR 33 UNITS AT $214 EACH, OR A TOTAL AMOUNT OF $7,062.

YOU PROTEST THE AWARD STATING THAT THE ROCKWOOD NOZZLE IS ORIGINAL EQUIPMENT FOR THE P-2 FIRE TRUCK AND HAS SUCCESSFULLY UNDERGONE ALL TESTING CONDUCTED ON THE VEHICLE; THAT ALTERNATE EQUIPMENT SHOULD UNDERGO THE SAME TESTING; THAT THE FEECON NOZZLE MAY NOT MEET CERTAIN QUALITY REQUIREMENTS; AND THAT THE FEECON NOZZLE UNDERGO INDEPENDENT AIR FORCE TESTS.

WE ARE ADVISED THAT YOU HAVE BEEN FURNISHED A COPY OF THE CONTRACTING OFFICER'S REPORT TO OUR OFFICE.

IT WILL BE NOTED IN THE CONTRACTING OFFICER'S REPORT, AND THE DOCUMENTS ACCOMPANYING THE REPORT HERE SUBSTANTIATE, THAT ON MARCH 27, 1972, THE DIRECTORATE OF TECHNICAL OPERATIONS WAS REQUESTED TO EVALUATE FEECON'S OFFER ON ITS PART NUMBER 400360. THIS DIRECTORATE CONTACTED THE ENGINEER SUPPORT ACTIVITY AT WRAMA ON MARCH 30, 1972, AND WAS ADVISED THAT FEECON PART NUMBER 400360 WAS ACCEPTABLE FOR FSN 4210-00 066-5760. THE DIRECTORATE OF TECHNICAL OPERATIONS SO ADVISED THE DIRECTORATE OF PROCUREMENT THE SAME DAY. IN THIS CONNECTION YOU ARE ADVISED THAT IN ITS LETTER OF TRANSMITTAL ACCOMPANYING ITS OFFER, FEECON STATED THAT:

"THIS ITEM (FEECON P. N. 400360) HAS PREVIOUSLY BEEN SUPPLIED TO THE U.S. AIR FORCE THROUGH THE OSHKOSH TRUCK CO. FOR CONTRACT NO. F 33657 71-C-0047 FOR P-4 FIRE TRUCKS. THE HANDLINE SPECIFICATIONS FOR THE P-4 ARE EXACTLY THE SAME AS FOR THE P-2 WITH THE EXCEPTION THAT THE VALVE ASSEMBLY MATERIAL HAS BEEN UPGRADED FROM ALUMINUM TO BRONZE FOR GREATER CORROSION RESISTANCE. THE HOSE CONNECTIONS ARE EXACTLY THE SAME AND THE FEECON NOZZLE FALLS WITHIN THE NECESSARY SPACE REQUIREMENTS TO FIT INTERCHANGEABLY WITH THE ROCKWOOD NOZZLE ON THE P-2."

UNDER THE PROVISIONS OF 10 U.S.C. 2304(G), THE DEFENSE CONSTRUCTION SUPPLY AGENCY IS CHARGED WITH THE RESPONSIBILITY, IN A PROCUREMENT OF THIS TYPE, OF SOLICITING PROPOSALS FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES CONSISTENT WITH THE NATURE AND REQUIREMENTS OF THE SUPPLIES TO BE PROCURED. ASPR 3-101 REPEATS THE LANGUAGE OF THE STATUTE IN THIS REGARD AND ASPR 3-102(C) SETS FORTH GENERAL REQUIREMENTS FOR NEGOTIATION AND PROVIDES IN PART:

"(C) NEGOTIATED PROCUREMENTS SHALL BE ON A COMPETITIVE BASIS TO THE MAXIMUM PRACTICAL EXTENT. WHEN A PROPOSED PROCUREMENT APPEARS TO BE NECESSARILY NONCOMPETITIVE, THE PURCHASING ACTIVITY IS RESPONSIBLE NOT ONLY FOR ASSURING THAT COMPETITIVE PROCUREMENT IS NOT FEASIBLE, BUT ALSO FOR ACTING WHENEVER POSSIBLE TO AVOID THE NEED FOR SUBSEQUENT NONCOMPETITIVE PROCUREMENTS. ***"

IN CONSONANCE WITH THE STATUTE AND THE REGULATIONS, THE CONTRACTING OFFICER SOLICITED NOZZLES DESCRIBED BY A NAME BRAND PART NUMBER AND PROVIDED BY A CLAUSE IN THE SOLICITATION THAT A PRODUCT OFFERED OTHER THAN THE NAME BRAND MUST BE EITHER IDENTICAL OR FUNCTIONALLY, PHYSICALLY, MECHANICALLY, AND ELECTRICALLY INTERCHANGEABLE WITH THE PRODUCT CITED IN THE PROCUREMENT IDENTIFICATION DESCRIPTION. ON EVALUATION, THE FEECON NOZZLE WAS DETERMINED TO FALL WITHIN THE PROVISIONS OF THE PRODUCTS OFFERED CLAUSE. WHILE THE NOZZLE WAS NOT TESTED IN THE END ITEM (THE P-2 FIRE TRUCK), THE OFFEROR REPORTED THAT HIS PRODUCT HAS PREVIOUSLY BEEN FURNISHED TO THE DEPARTMENT OF THE AIR FORCE UNDER A PRIME CONTRACT FOR THE P-4 FIRE TRUCK, WHICH REQUIRES ESSENTIALLY THE SAME NOZZLE AS THE P- 2. THE AGENCY TECHNICAL EVALUATORS DETERMINED THAT THE FEECON NOZZLE WAS ACCEPTABLE FOR THIS PROCUREMENT, AND WE HAVE NO BASIS TO QUESTION THIS DETERMINATION. SEE B-170503, OCTOBER 8, 1970, COPY ENCLOSED.

ALTHOUGH, AS INDICATED IN THE CONTRACTING OFFICER'S REPORT, THE RFP COULD HAVE MORE CLEARLY INDICATED THAT ALTERNATE PART NUMBERS WOULD BE CONSIDERED FOR AWARD, WE BELIEVE THE USE OF CLAUSE C25 IN THE RFP PROVIDED SUFFICIENT NOTICE OF THIS. FURTHERMORE, THE LATE AMENDMENT REDUCING YOUR OFFER TO $220 EACH INDICATES THAT YOUR FIRM WAS AWARE OF THE COMPETITIVE NATURE OF THIS PROCUREMENT.

BASED ON THE FOREGOING, WE MUST DENY YOUR PROTEST AGAINST THE AWARD TO FEECON.