B-176766, MAR 20, 1973

B-176766: Mar 20, 1973

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THE FAILURE OF A CONTRACTING OFFICER TO PROMPTLY NOTIFY AN OFFEROR OF AN AWARD MADE PURSUANT TO AN RFP AS REQUIRED BY ASPR 3-508.3 IS AT MOST A PROCEDURAL DEFECT NOT AFFECTING THE VALIDITY OF THE AWARD. SUCH A DETERMINATION WILL NOT BE DISTURBED BY GAO IN THE ABSENCE OF EVIDENCE THAT THE AGENCY ACTED ARBITRARILY. INC.: REFERENCE IS MADE TO YOUR TELEFAX MESSAGE DATED AUGUST 15. DELIVERY WAS REQUIRED 150 DAYS AFTER AWARD. THREE OFFERS WERE RECEIVED AT THE FOLLOWING UNIT PRICES: D. INC. 419.33 THE LOW OFFER BY YOUR FIRM WAS BASED ON SUPPLYING NEW SURPLUS ITEMS WHICH YOU STATE WERE CERTIFIED SERVICEABLE BY AN AUTHORIZED FEDERAL AVIATION ADMINISTRATION REPAIR FACILITY. THE CONTRACTING OFFICER STATES THAT FOR THIS REASON YOUR OFFER WAS FORWARDED TO THE DIRECTORATE OF TECHNICAL OPERATIONS (DCSC-S) FOR EVALUATION.

B-176766, MAR 20, 1973

BID PROTEST - UNTIMELY NOTIFICATION OF AWARD - DETERMINATION OF AGENCY'S MINIMUM NEEDS DECISION DENYING THE PROTEST OF D. MOODY & CO., INC., AGAINST THE AWARD OF A CONTRACT TO ITT GENERAL CONTROLS UNDER AN RFP ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO FOR SOLENOID VALVES. THE FAILURE OF A CONTRACTING OFFICER TO PROMPTLY NOTIFY AN OFFEROR OF AN AWARD MADE PURSUANT TO AN RFP AS REQUIRED BY ASPR 3-508.3 IS AT MOST A PROCEDURAL DEFECT NOT AFFECTING THE VALIDITY OF THE AWARD. ALSO, SINCE THE PURCHASING ACTIVITY HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING ITS MINIMUM NEEDS AND WHETHER AN OFFER MEETS THESE NEEDS, SUCH A DETERMINATION WILL NOT BE DISTURBED BY GAO IN THE ABSENCE OF EVIDENCE THAT THE AGENCY ACTED ARBITRARILY. B-170492, OCTOBER 26, 1970.

TO D. MOODY & CO., INC.:

REFERENCE IS MADE TO YOUR TELEFAX MESSAGE DATED AUGUST 15, 1972, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE AWARD OF A CONTRACT TO ITT GENERAL CONTROLS UNDER REQUEST FOR PROPOSALS (RFP) DSA700-72-R-2753, ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC), COLUMBUS, OHIO, ON FEBRUARY 29, 1972.

THE RFP SOLICITED OFFERS ON 24 SOLENOID VALVES, FSN 4810-528-3683, ITT GENERAL CONTROLS AEROSPACE PRODUCTS PART NUMBER AV11D1118B. DELIVERY WAS REQUIRED 150 DAYS AFTER AWARD. THREE OFFERS WERE RECEIVED AT THE FOLLOWING UNIT PRICES:

D. MOODY & CO., INC. $ 89.00

ITT GENERAL CONTROLS 141.99

NAPCO INDUSTRIES, INC. 419.33

THE LOW OFFER BY YOUR FIRM WAS BASED ON SUPPLYING NEW SURPLUS ITEMS WHICH YOU STATE WERE CERTIFIED SERVICEABLE BY AN AUTHORIZED FEDERAL AVIATION ADMINISTRATION REPAIR FACILITY. THE CONTRACTING OFFICER STATES THAT FOR THIS REASON YOUR OFFER WAS FORWARDED TO THE DIRECTORATE OF TECHNICAL OPERATIONS (DCSC-S) FOR EVALUATION. THAT OFFICE IN TURN SOUGHT GUIDANCE FROM THE NAVAL AVIATION SUPPLY OFFICE (ASO), PHILADELPHIA, PENNSYLVANIA, THE ACTIVITY RESPONSIBLE FOR SUPPLYING ENGINEERING SUPPORT FOR THIS ITEM. ASO ADVISED DCSC-S THAT SURPLUS MATERIAL WAS NOT ACCEPTABLE BECAUSE INSPECTION AND TESTING CRITERIA COULD NOT BE OBTAINED TO DETERMINE THE ACCEPTABILITY OF SURPLUS MATERIAL. DCSC-S THEN ADVISED THE CONTRACTING OFFICER THAT SURPLUS MATERIAL COULD NOT BE ACCEPTED BECAUSE THE VALVE WAS CLASSIFIED AS AN ENGINEERING CRITICAL ITEM DUE TO ITS USE IN THE AIR SYSTEM OF MILITARY AIRCRAFT; THE GOVERNMENT DID NOT HAVE THE NECESSARY TESTING DATA TO INSURE THAT THE ITEMS WOULD FUNCTION PROPERLY; THE DIFFICULTY OF CONTROLLING QUALITY IS INCREASED SINCE ORIGIN INSPECTION AT THE PLACE OF MANUFACTURE IS NOT POSSIBLE; AND, THE LONG STANDING POLICY OF DCSC-S TO PURCHASE SURPLUS MATERIALS FOR CRITICAL ITEMS ONLY IF NEW MATERIALS WERE NOT AVAILABLE. BASED ON THIS INFORMATION, THE CONTRACTING OFFICER REJECTED THE PROPOSAL MADE BY YOUR FIRM AND AWARD WAS MADE TO THE SECOND LOW OFFEROR, ITT GENERAL CONTROLS, ON JULY 21, 1972.

IT IS YOUR CONTENTION THAT THE REJECTION OF YOUR LOW OFFER BECAUSE YOU OFFERED SURPLUS ITEMS WAS IN VIOLATION OF PARAGRAPH 1-1208 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) AND OUR DECISION OF FEBRUARY 21, 1968, B-162931. YOU FURTHER CONTEND THE PROCURING ACTIVITY DELAYED NOTIFYING YOU OF THE AWARD FOR A PERIOD OF 14 WORKING DAYS, WHICH YOU CONTEND IS IN VIOLATION OF ASPR 2-408.1.

IN RESPONSE TO THE DETERMINATION BY DCSC-S THAT THE ITEMS OFFERED BY YOUR FIRM COULD NOT BE ACCEPTED BECAUSE THE VALVE WAS CLASSIFIED AS AN ENGINEERING CRITICAL ITEM, YOU STATE THAT NOWHERE IS "CRITICAL ITEM" OR "CRITICAL APPLICATION" DEFINED OR SET FORTH AS CRITERIA FOR NEGATIVE OR POSITIVE ACTION BY ANYONE UNDER ANY CIRCUMSTANCES. YOU STATE THAT TECHNICAL PERSONNEL BY DESIGNATING ITEMS AS CRITICAL ARE ACTING IN AN ARBITRARY, CAPRICIOUS AND ILLEGAL MANNER. YOU ACCUSE THE PROCURING ACTIVITY OF ATTEMPTING TO ESTABLISH THE USE TO WHICH AN ITEM WILL BE PUT AS THE CRITERIA OF ITS QUALITY AND SERVICEABILITY, RATHER THAN RELYING ON ENGINEERING DRAWINGS, SPECIFICATIONS, WORKMANSHIP AND TESTING TO DETERMINE THE ITEMS' QUALITY AND SERVICEABILITY.

YOU ALSO QUESTION THE DETERMINATION BY DCSC-S THAT THE GOVERNMENT DID NOT HAVE THE NECESSARY TESTING DATA TO INSURE THAT THE VALVES WOULD FUNCTION PROPERLY. YOU STATE THAT THERE ARE TECHNICAL ORDERS ISSUED BY THE MANUFACTURER OR USING AGENCY WHICH PRESCRIBE PROCEDURES FOR TESTING ITEMS WHICH CAN BE RECLAIMED OR OVERHAULED AND THAT YOU HAVE A COPY OF THE TECHNICAL ORDER APPLICABLE TO THE VALVES IN QUESTION.

REGARDING YOUR CONTENTION THAT THE PROCURING ACTIVITY'S 14-DAY DELAY IN NOTIFYING YOU OF THE AWARD WAS IN VIOLATION OF ASPR 2-408.1, SINCE ASPR 2- 408.1 PERTAINS TO ADVERTISED PROCUREMENTS, WE ASSUME THAT YOU INTENDED TO CITE ASPR 3-508.3 WHICH IS APPLICABLE TO NEGOTIATED PROCUREMENTS. ASPR 3- 508.3 PROVIDES THAT PROMPTLY AFTER AWARD THE CONTRACTING OFFICER SHALL GIVE WRITTEN NOTICE TO THE UNSUCCESSFUL OFFERORS THAT THEIR OFFERS WERE NOT ACCEPTED. WE BELIEVE THAT THE FAILURE OF THE CONTRACTING OFFICER TO NOTIFY YOU PROMPTLY OF THE AWARD WAS, AT MOST, A PROCEDURAL DEFECT WHICH DID NOT AFFECT THE VALIDITY OF THE AWARD ITSELF.

CONCERNING THE REJECTION OF YOUR SURPLUS VALVES BY DCSC, THIS OFFICE HAS BEEN FURNISHED A SUPPLEMENTAL REPORT BY THE DEFENSE SUPPLY AGENCY DATED FEBRUARY 16, 1973. THIS REPORT INDICATES THAT YOUR VALVE, ALTHOUGH NOT THE VALVE SPECIFICALLY DESCRIBED IN THE RFP, WAS ORIGINALLY DETERMINED TO BE SUFFICIENTLY SIMILAR TO BE ACCEPTABLE; HOWEVER, ON REEXAMINATION IT HAS BEEN FOUND THAT YOUR VALVE DOES NOT CONFORM MECHANICALLY TO THE GOVERNMENT'S REQUIREMENTS. IT IS STATED IN THE REPORT:

WHILE INVESTIGATING THE QUESTION OF TECHNICAL ORDERS RAISED IN THE BIDDER'S LETTER OF 12 DECEMBER 1972, TECHNICAL PERSONNEL AT THIS CENTER LEARNED, THROUGH DISCUSSIONS WITH THE MANUFACTURER, ITT GENERAL CONTROLS, THAT THE ORIGINAL PART NUMBER, AV11D1118, IS NOT INTERCHANGEABLE WITH THE REVISED PART NUMBER, AV11D1118B. THE REVISED VALVE CONTAINS AN ELECTRICAL CONNECTOR INSERT THAT WAS NOT PART OF THE ORIGINAL DESIGN. THEREFORE, THE DIFFERENCE BETWEEN THESE TWO PART NUMBERS IS MUCH MORE SIGNIFICANT THAN WAS INDICATED IN THE CONTRACTING OFFICER'S INITIAL REPORT. THE NAVAL AVIATION SUPPLY OFFICE HAS ADVISED THAT ONLY PART NO. AV11D1118B IS ACCEPTABLE. THIS IS THE PART THAT WAS SPECIFIED IN THE SOLICITATION. SINCE THE PART NUMBER OFFERED BY D. MOODY, AV11D1118, IS NOT THE PART SPECIFIED IN THE SOLICITATION AND IS NOT ACCEPTABLE TO THE GOVERNMENT, THE OFFER WAS PROPERLY REJECTED, REGARDLESS OF WHETHER OR NOT THE GOVERNMENT SHOULD HAVE CONSIDERED THE OFFER OF SURPLUS PROPERTY.

OUR OFFICE HAS HELD THAT THE PURCHASING ACTIVITY HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING ITS MINIMUM NEEDS AND WHETHER AN OFFER MEETS THESE NEEDS. SUCH A DETERMINATION WILL NOT BE DISTURBED BY THIS OFFICE IN ABSENCE OF EVIDENCE THAT THE AGENCY ACTED ARBITRARILY. 170492, OCTOBER 26, 1970. SINCE THERE DOES NOT APPEAR TO BE ANY BASIS FOR QUESTIONING THE PROCURING ACTIVITY'S DETERMINATION THAT THE VALVES OFFERED BY YOUR FIRM ARE NOT INTERCHANGEABLE WITH THE ITEM REQUIRED, THE QUESTION OF WHETHER SURPLUS MATERIAL SHOULD BE VIEWED AS ACCEPTABLE UNDER THE PROVISIONS OF THE RFP IS CONSIDERED TO BE ACADEMIC.

FOR THE ABOVE REASONS, YOUR PROTEST IS DENIED.