B-176523, MAR 7, 1973

B-176523, MAR 7, 1973

BID PROTEST - QPL SPECIFICATION - FAILURE TO QUALIFY DECISION DENYING A PROTEST ON BEHALF OF BOSTON PNUEMATICS INC., AGAINST THE AWARD OF A CONTRACT TO INGERSOLL-RAND CO. UNDER A SOLICITATION ISSUED BY THE FEDERAL SUPPLY SERVICE. SINCE FEDERAL PROPERTY REGULATIONS, SEC. 1-1.305-1, IMPOSED A QUALIFIED PRODUCTS LIST REQUIREMENT ON THE SPECIFICATION NAMED IN THE SOLICITATION, BOSTON'S USE OF A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION MAY NOT BE USED WHEN AN APPROPRIATE FEDERAL SPECIFICATION IS AVAILABLE. FPR SEC. 1- 1.307-5. THEREFORE, SINCE BOSTON HAS HAD AMPLE OPPORTUNITY TO QUALIFY ITS PRODUCT AND HAS FAILED TO BE APPROVED, THE PROTEST MUST BE DENIED.

TO STASSEN, KOSTOS AND MASON:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 26, 1972, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO INGERSOLL RAND COMPANY (INGERSOLL), UNDER SOLICITATION NO. 6PR-W-20225-KI-F, ISSUED BY THE PROCUREMENT DIVISION, FEDERAL SUPPLY SERVICE (FSS), GENERAL SERVICES ADMINISTRATION (GSA).

THE SUBJECT SOLICITATION WAS ISSUED ON JUNE 29, 1972, FOR THE PROCUREMENT OF A DEFINITE QUANTITY OF PNEUMATIC HANDTOOLS. THIS ITEM WAS BEING PROCURED BY THE GSA FOR THE DEPARTMENT OF THE NAVY FOR USE IN TENSIONING BARRIER/BARRICADE WINCHES UTILIZED WITH ARRESTING GEAR ON AIRCRAFT CARRIERS. GSA DECIDED TO PROCURE THE ITEM - A POWER-DRIVEN WRENCH - AS AN ASSEMBLY OF COMPONENTS, CONSISTING OF A LARGE-SIZE MOTOR COMPONENT AND DESIGNATED ACCESSORIES. THE MOTOR COMPONENT OF A PNEUMATIC WOOD BORER (TYPE II - SIZE 4") AS SHOWN IN FEDERAL SPECIFICATION (F.S.) 00-D-691D WAS SELECTED. SINCE THIS SPECIFICATION INCORPORATES A QUALIFIED PRODUCTS LIST (QPL), THE SOLICITATION PROVIDED:

QUALIFIED PRODUCTS

(A) WITH RESPECT TO PRODUCTS DESCRIBED IN THIS SOLICITATION AS REQUIRING QUALIFICATION, AWARDS WILL BE MADE ONLY FOR SUCH PRODUCTS AS HAVE, PRIOR TO THE TIME SET FOR OPENING BIDS, BEEN TESTED AND APPROVED FOR INCLUSION IN THE QUALIFIED PRODUCTS LIST IDENTIFIED BELOW. MANUFACTURERS WHO WISH TO HAVE A PRODUCT TESTED FOR QUALIFICATION ARE URGED TO COMMUNICATE WITH THE OFFICE DESIGNATED BELOW. MANUFACTURERS HAVING PRODUCTS NOT YET LISTED, BUT WHICH HAVE BEEN QUALIFIED, ARE REQUESTED TO SUBMIT EVIDENCE OF SUCH QUALIFICATION WITH THEIR BIDS, SO THAT THEY MAY BE GIVEN CONSIDERATION.

(B) QPL-00-D-691 (LATEST EDITION) APPLIES TO THIS PROCUREMENT. THE ACTIVITY RESPONSIBLE FOR THE QUALIFIED PRODUCTS LIST IS NAVAL SHIPS ENGINEERING CENTER, CENTER BUILDING, PRINCE GEORGE'S CENTER, HYATTSVILLE, MD.

APPLICATION FOR LISTING ON THE QPL SHOULD BE MADE DIRECTLY TO COMMANDING OFFICER, NAVAL SUPPLY DEPOT, 5801 TABOR AVENUE, PHILADELPHIA, PA 19120.

THE BIDS WERE SCHEDULED TO BE OPENED ON JULY 28, 1972. ON JULY 10, 1972, BOSTON PNEUMATICS, INC., SENT A LETTER TO THE PROCUREMENT DIVISION, FSS, PROTESTING AGAINST THE IMPOSITION OF A QPL REQUIREMENT AND REQUESTING THAT SUCH REQUIREMENT BE REMOVED, ESSENTIALLY ON THE GROUND THAT THE SOLICITED ITEM WAS DIFFERENT THAN THE DESIGNATED SPECIFICATION. THIS CONTENTION AROSE FROM THE FACT THAT THE ITEM WAS IDENTIFIED IN THE SOLICITATION UNDER THE HEADING "FSC 5130 - NUTRUNNER AND SCREWDRIVER," WHEREAS THE ITEM DESCRIPTION OF THE SOLICITATION REFERRED TO F.S. 00-D-691D COVERING A PNEUMATIC WOOD BORER (TYPE II - SIZE 4"). IT SHOULD BE NOTED HERE THAT THE ADMINISTRATIVE REPORT ADVISED THAT THE TERM "NUT RUNNER" ENCOMPASSES A PNEUMATIC WOOD BORER AND WAS USED ONLY TO FURTHER DESCRIBE THE END USE OF THE ITEM.

IN RESPONSE TO THE ADMINISTRATIVE PROTEST, THE CONTRACTING OFFICER NOTIFIED BOSTON PNEUMATICS THAT THE BID OPENING DATE HAD BEEN EXTENDED TO AUGUST 11, 1972, TO ALLOW TIME FOR RESOLUTION OF THE MATTER AND TO ALLOW BOSTON PNEUMATICS TIME TO QUALIFY ITS PRODUCT. HOWEVER, ON JULY 12, 1972, A PROTEST WAS FILED WITH OUR OFFICE AGAINST THE OPENING OF BIDS. NOTWITHSTANDING THE PROTEST, GSA, IN ACCORDANCE WITH SECTION 1 2.407- 8(B)(4) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), PROCEEDED WITH THE OPENING OF BIDS AND MADE AN AWARD ON AUGUST 30, 1972, TO INGERSOLL-RAND COMPANY, THE LOW RESPONSIVE, RESPONSIBLE BIDDER. BOSTON PNEUMATICS DID NOT SUBMIT A BID.

YOU CONTEND THAT THE GSA IMPOSED A QPL REQUIREMENT FOR THE EXPRESS PURPOSE OF LIMITING COMPETITION TO TWO LARGE BIDDERS AND EXCLUDING BOSTON PNEUMATICS FROM COMPETITION. WE NOTE THAT YOU ARE NOT QUESTIONING THE PROPRIETY OF A QPL FOR F.S. 00-D-691D; RATHER, YOU TAKE ISSUE WITH THE MANNER IN WHICH THE "NUT RUNNER" WAS PLACED ON THE QPL. SPECIFICALLY, YOU CONTEND THAT GSA WAS REQUIRED TO GIVE YOU NOTICE OF ITS INTENTION TO USE F.S. 00-D-691D.

THE ADMINISTRATIVE REPORT REVEALS THAT FOR ALMOST 5 YEARS THE PRESENT ITEM HAS BEEN PROCURED BY GSA FOR THE DEPARTMENT OF THE NAVY AS A "BRAND NAME OR EQUAL" TYPE II ITEM PURSUANT TO A PURCHASE DESCRIPTION. THIS DESCRIPTION WAS BASED ON NAVAL ENGINEERING LABORATORY DRAWING NO. 404749, REVISION "D," DATED JANUARY 23, 1967. THE DRAWING REFERRED TO THE ITEM AS INGERSOLL-RAND PART NUMBER 33SK OR EQUAL. BOSTON PNEUMATICS SUPPLIED A PART WHICH WAS THE EQUAL OF PART NO. 33SK. IN MARCH 1971, ACTION WAS INITIATED TO PROCURE THE NUT RUNNER UNDER F.S. 00-D-691D IN ORDER TO INSURE THE PROCUREMENT OF QUALITY TOOLS FROM APPROVED SOURCES, AND ALSO TO COMPLY WITH THE PROVISION OF FEDERAL PROPERTY MANAGEMENT REGULATIONS (FPMR) 101-29.203 AND FPR SEC. 1-1.305 1. IN JULY 1971, THE NAVAL SHIP ENGINEERING CENTER ADVISED GSA THAT USE OF THE SPECIFICATION WAS AUTHORIZED.

THE REGULATIONS CITED ABOVE REQUIRE THE USE OF FEDERAL SPECIFICATIONS IN THE PROCUREMENT OF ITEMS COVERED BY SUCH SPECIFICATIONS, UNLESS OTHERWISE EXCEPTED. MOREOVER, A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION MAY NOT BE USED WHEN AN APPROPRIATE FEDERAL SPECIFICATION IS AVAILABLE. FPR SEC. 1-1.307-5. WE ALSO NOTE THAT F.S. 00-D-691D BECAME A MANDATORY SPECIFICATION IN 1967 AND WE ARE ADVISED THAT THE CONTINUED USE OF THE "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION WAS AN OVERSIGHT IN THAT GSA DID NOT REALIZE THAT THE NUT RUNNER AND WOOD BORER WERE THE SAME BASIC ITEM.

WITH RESPECT TO THE FACT THAT BOSTON PNEUMATICS WAS NOT NOTIFIED OF AN INTENTION TO USE F.S. 00-D-691D AND THE ASSOCIATED QPL FOR PROCURING THE SUBJECT ITEM UNTIL THE SOLICITATION WAS ISSUED, PARAGRAPH 4-104(B) OF THE "FEDERAL STANDARDIZATION HANDBOOK," WHICH IMPLEMENTS PART 101-29 OF THE FPMR, SETS OUT THE EXTENT OF PUBLICITY REQUIRED WHEN AN AGENCY DETERMINES THAT A PRODUCT IS TO BE COVERED BY A QPL. THIS PARAGRAPH PROVIDES:

(B) OPPORTUNITY TO QUALIFY. UPON DETERMINATION THAT A PRODUCT IS TO BE COVERED BY A QPL, THE PREPARING ACTIVITY SHALL URGE MANUFACTURERS TO SUBMIT FOR QUALIFICATION TESTS ANY PRODUCT OF THE GENERAL TYPE DESIRED. (PROSPECTIVE SUPPLIERS OTHER THAN MANUFACTURERS, SUCH AS REGULAR DEALERS, WHO WISH TO HAVE A PRODUCT QUALIFIED SHOULD BE ADVISED TO CONTACT THE MANUFACTURER SO THAT THE LATTER MAY INITIATE THE NECESSARY ACTION.) PUBLICITY SHALL BE GIVEN TO THE FOLLOWING:

(1) INTENTION TO PLACE A PRODUCT ON A QPL.

(2) THE FACT THAT, FOR PROCUREMENT BY FORMAL ADVERTISING, CONSIDERATION SHALL BE GIVEN TO THOSE PRODUCTS ONLY WHICH HAVE, PRIOR TO THE BID OPENING DATE, BEEN TESTED AND APPROVED FOR INCLUSION IN THE QPL, WHETHER OR NOT SUCH PRODUCTS HAVE ACTUALLY BEEN SO LISTED BY THAT DATE.

SUCH PUBLICITY SHALL BE ACCOMPLISHED BY THE FOLLOWING MEANS:

(3) A NOTICE SHALL BE SENT TO THE "COMMERCE BUSINESS DAILY" U.S. DEPARTMENT OF COMMERCE, ROOM 1300, NEW POST OFFICE BLDG., 433 WEST VAN BUREN STREET, CHICAGO, ILLINOIS 60607. THE NOTICE SHALL BE CLEARLY MARKED "QUALIFICATION TEST INFORMATION" AND SHALL CONTAIN THE NAME OF PRODUCT, THE APPLICABLE SPECIFICATION NUMBER, AND THE NAME AND ADDRESS OF THE AGENCY TO BE CONTACTED FOR COMPLETE INFORMATION REGARDING QUALIFICATION UNDER THE SPECIFICATION.

(4) CONTACT SHALL BE MADE WITH COMPANIES KNOWN TO BE INTERESTED IN SUBMITTING PRODUCTS FOR QUALIFICATION UNDER THE APPLICABLE SPECIFICATION. WHERE APPROPRIATE, TRADE ASSOCIATIONS SHALL ALSO BE NOTIFIED TO PROMOTE WIDESPREAD PUBLICITY.

THERE IS NO QUESTION THAT BOSTON PNEUMATICS RECEIVED THE ADVANCE NOTICE CONTEMPLATED BY THE MANUAL. THE INCORPORATED QPL FOR F.S. 00-D 691D WAS ESTABLISHED AND FIRST ISSUED IN 1955. THE GSA HAS SUBMITTED LETTERS SHOWING THAT BOSTON PNEUMATICS HAS HAD KNOWLEDGE OF THIS QPL AS EARLY AS JUNE 1956. THESE LETTERS FURTHER SHOW THAT BOSTON PNEUMATICS WAS AUTHORIZED TO QUALIFY SIX OF ITS DRILLS (INCLUDING WOOD BORER (TYPE II, SIZE 4")) IN JANUARY 1964. THIS AUTHORIZATION WAS CANCELED FOR FIVE OF THESE DRILLS IN FEBRUARY 1965 FOR FAILURE TO SUBMIT THE PRODUCTS FOR TESTING. FURTHER, AS INDICATED IN YOUR LETTER OF JANUARY 5, 1973, BOSTON PNEUMATICS ATTEMPTED TO QUALIFY ITS TOOLS IN 1968, AFTER F.S. 00-D-691D BECAME MANDATORY. WITH RESPECT TO YOUR GENERAL ALLEGATION OF IMPROPRIETIES IN THE TESTING PROCEDURES, WE HAVE BEEN INFORMALLY ADVISED THAT GSA PERSONNEL WERE UNAWARE OF THE CIRCUMSTANCES AND THAT THE NAVY DENIES THE EXISTENCE OF ANY IMPROPRIETY. IN THE PRESENT POSTURE OF THE MATTER, NO BASIS IS PRESENTED FOR GIVING ANY EFFECT TO YOUR ALLEGATION.

WE VIEW THE MANUAL PROVISIONS AS REQUIRING PUBLIC AND INDIVIDUAL NOTIFICATION IN SUFFICIENT TIME TO ALLOW INTERESTED MANUFACTURERS A REASONABLE OPPORTUNITY TO QUALIFY ITS PRODUCT PRIOR TO THE FIRST PROCUREMENT OF THE ITEM UNDER THE QPL. APART FROM NOTICE IN THE SOLICITATION ITSELF THAT THE ITEM IS COVERED BY A QPL, THERE IS NO INDICATION THAT NOTICE IS REQUIRED PRIOR TO THE ISSUANCE OF EACH SOLICITATION FOR A QPL ITEM. ACCORDINGLY AND SINCE BOSTON PNEUMATICS HAS HAD AN AMPLE OPPORTUNITY TO QUALIFY UNDER F.S. 00-D-691D, WE FIND NO BASIS TO QUESTION GSA'S FAILURE TO GIVE ADVANCE NOTICE OF ITS DECISION TO PROCURE THE ITEM UNDER THE REQUIRED SPECIFICATION.

IN VIEW OF THE FOREGOING, YOUR PROTEST IS DENIED.