B-180798, NOV 14, 1974

B-180798: Nov 14, 1974

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USE OF QUALIFIED PRODUCTS LIST (QPL) IS FOR BENEFIT OF PROCURING ACTIVITY. USE OF OPL IS NOT SUBJECT TO QUESTION WHERE TESTING OF ITEM WOULD DELAY PROCUREMENT IN EXCESS OF 30 DAYS. 2. IS PROPER. SINCE RESPONSIBILITY FOR DETERMINING AND DRAFTING ADEQUATE SPECIFICATIONS IS VESTED IN PROCUREMENT ACTIVITY. 3. USE OF TERMS IN SPECIFICATIONS THAT FAIL TO ADVISE BIDDERS OF ESSENTIAL ACTUAL REQUIREMENTS OF GOVERNMENT IS IMPROPER AND CORRECTIVE MEASURES SHOULD BE TAKEN TO IMPROVE SPECIFICATIONS. WAS EXTENDED ON TWO SEPARATE OCCASIONS AS A RESULT OF THE BOSTON PNEUMATICS INC. BPI'S OBJECTIONS WERE FORWARDED TO THE NAVY FOR COMMENT. IT WAS DETERMINED THAT FIVE APPROVED MANUFACTURERS HAD SUBMITTED APPROPRIATE BIDS.

B-180798, NOV 14, 1974

1. USE OF QUALIFIED PRODUCTS LIST (QPL) IS FOR BENEFIT OF PROCURING ACTIVITY, AND USE OF OPL IS NOT SUBJECT TO QUESTION WHERE TESTING OF ITEM WOULD DELAY PROCUREMENT IN EXCESS OF 30 DAYS. 2. INCLUSION OF CERTAIN TEST REQUIREMENTS, UNLESS PROVEN TO BE ABUSE OF AGENCY DISCRETION, IS PROPER, SINCE RESPONSIBILITY FOR DETERMINING AND DRAFTING ADEQUATE SPECIFICATIONS IS VESTED IN PROCUREMENT ACTIVITY. 3. USE OF TERMS IN SPECIFICATIONS THAT FAIL TO ADVISE BIDDERS OF ESSENTIAL ACTUAL REQUIREMENTS OF GOVERNMENT IS IMPROPER AND CORRECTIVE MEASURES SHOULD BE TAKEN TO IMPROVE SPECIFICATIONS.

BOSTON PNEUMATICS, INC.:

SOLICITATION NO. 6PN-E-42295-AV-F

ON DECEMBER 19, 1973, THE GENERAL SERVICES ADMINISTRATION (GSA) ISSUED SOLICITATION NO. 6PN-E-42295-AV-F. THIS SOLICITATION CONTEMPLATED THE PROCUREMENT OF A DEFINITE QUANTITY OF PNEUMATIC IMPACT WRENCHES TO BE MANUFACTURED IN ACCORDANCE WITH FEDERAL SPECIFICATION 00 W-891E, DATED AUGUST 25, 1967, AS AMENDED.

BID OPENING, ORIGINALLY SCHEDULED FOR JANUARY 18, 1974, WAS EXTENDED ON TWO SEPARATE OCCASIONS AS A RESULT OF THE BOSTON PNEUMATICS INC. (BPI) PROTEST TO THE CONTRACTING OFFICER. IN THE INTERIM, BPI'S OBJECTIONS WERE FORWARDED TO THE NAVY FOR COMMENT. THE CONTRACTING OFFICER SUBSEQUENTLY MADE THE DECISION TO PROCEED WITH BID OPENING ON MARCH 20, 1974, FINDING BPI'S OBJECTIONS TO BE WITHOUT MERIT. AFTER BID OPENING, IT WAS DETERMINED THAT FIVE APPROVED MANUFACTURERS HAD SUBMITTED APPROPRIATE BIDS. THEREAFTER, ON APRIL 11, 1974, A DETERMINATION TO MAKE AWARD ON AN URGENCY BASIS PURSUANT TO FEDERAL PROCUREMENT REGULATIONS (FPR) SEC. 1- 2.407-8 (1970 ED. AMEND. 68) WAS APPROVED. ON APRIL 19, AWARD WAS MADE TO THE ARO CORPORATION (ARO).

BASICALLY, BPI RAISES THREE ISSUES IN PROTEST UNDER THIS SOLICITATION. FIRST, BPI QUESTIONS THE PRIPRIETY OF THE USE OF A QUALIFIED PRODUCTS LIST (QPL) FOR THE PROCURING OF THE ITEMS. BPI CONTENDS THAT SINCE NEITHER LONG, UNUSUAL TESTING NOR COMPLEX, EXPENSIVE TESTS EQUIPMENT IS, IN ITS OPINION, REQUIRED, THE ITEM SHOULD NOT BE CLASSIFIED AS A QPL ITEM. SECOND, BPI QUESTIONS THE INCLUSION OF A SERVICE TEST REQUIREMENT (PARAGRAPH 4.7 OF THE SPECIFICATION), CLAIMING THAT THIS DOES NOT RELATE TO ANY OF THE REQUIREMENTS LISTED UNDER PART 3 OF THE SPECIFICATION. THIRD, BPI OBJECTS TO CERTAIN PORTIONS OF THE LANGUAGE USED UNDER BOTH PARAGRAPH 3.3 OF THE SPECIFICATION, ENTITLED "MATERIALS," AND PARAGRAPH 3.9, ENTITLED "GENERAL CONSTRUCTION." IN PARTICULAR, BPI CONTENDS THAT THERE ARE NO EXISTING KNOWN, CODIFIED, OR READILY AVAILABLE "STANDARD PRACTICES OF MANUFACTURERS PRODUCING TOOLS OF THE TYPES REQUIRED IN THIS SPECIFICATION," AND THEREFORE, THE LANGUAGE QUOTED FROM PARAGRAPH 3.3 OF THE SPECIFICATIONS IS VAGUE AND AMBIGUOUS AS TO WHAT MATERIALS ARE REQUIRED IN THE CONSTRUCTION OF THE ITEMS BEING PROCURED. BPI CONTENDS THAT THE TERMINOLOGY IN PARAGRAPH 3.9 IS ALSO AMBIGUOUS.

RESPONDING TO THE FIRST ISSUE OF PROTEST, GSA STATES THAT WHETHER AN ITEM CAN JUSTIFIABLY BE INCLUDED WITHIN A QPL MUST NECESSARILY BEGIN WITH THE PROPOSITION THAT THE ESTABLISHMENT OF A QPL IS PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT. IN THE INSTANT CASE, ALTHOUGH GSA HAD THE PURCHASING RESPONSIBILITY, THE NAVAL SHIP ENGINEERING CENTER (NAVY) HAD COMPLETE RESPONSIBILITY FOR THE MAINTENANCE OF THE SPECIFICATION, AS WELL AS QUALIFICATION TESTING AND MAINTENANCE OF THE OPL. RESPONSIBILITY FOR DRAFTING THE SPECIFICATIONS WAS DELEGATED TO THE DEPARTMENT OF DEFENSE, BUREAU OF SHIPS, PURSUANT TO FEDERAL PROPERTY MANAGEMENT REGULATIONS (FPMR) PART 101-29.101 AND CHAPTER I, SECTION 3, OF THE FEDERAL STANDARDIZATION HANDBOOK (FSH). FPMR 101-29.101 STATES:

"FEDERAL SPECIFICATIONS, FEDERAL QUALIFIED PRODUCTS LISTS, AND FEDERAL STANDARDS ARE REFERRED TO COLLECTIVELY AS FEDERAL STANDARDIZATION DOCUMENTS. THEY ARE DEVELOPED AND ISSUED BY GSA OR BY OTHER FEDERAL AGENCIES UNDER THE ASSIGNED AGENCY PLAN DESCRIBED IN THE 'FEDERAL STANDARDIZATION HANDBOOK' ISSUED BY THE COMMISSIONER, FEDERAL SUPPLY SERVICE, GSA."

FSH CHAPTER I, SECTION 3, ENTITLED "THE ASSIGNED AGENCY PLAN," STATES AT SECTION 1-300 THAT:

"*** A FEDERAL AGENCY MAY REQUEST, OR GSA MAY OFFER, THE RESPONSIBILITY FOR THE DEVELOPMENT AND MAINTENANCE OF A FEDERAL SPECIFICATION OR A FEDERAL STANDARD, IDENTIFYING A SUBORDINATE ACTIVITY OF THE AGENCY TO ACT AS PREPARING ACTIVITY."

UNDER THE ABOVE AUTHORITY, RESPONSIBILITY FOR THE DRAFTING OF THE SPECIFICATIONS IN QUESTION WAS VALIDLY DELEGATED TO THE DEPARTMENT OF DEFENSE, BUREAU OF SHIPS, ON AUGUST 20, 1962.

THEREFORE, RELYING ON THE CRITERIA FOR JUSTIFICATION FOR INCLUSION OF A PRODUCT UNDER A OPL AS SET FORTH IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) SEC 1-1103 (1974 ED.), GSA DETERMINED THAT THE NAVY'S USE OF THE OPL WAS JUSTIFIED. THIS DETERMINATION WAS REACHED ON THE FOLLOWING BASIS. THE NAVY STATED THAT THE VARIOUS QUALITY ASSURANCE TESTS UNDER PARAGRAPH 4 OF THE SPECIFICATION WOULD REQUIRE A TIME PERIOD OF AT LEAST 5 WEEKS UNDER IDEAL CONDITIONS ON A NORMAL WORK SCHEDULE OF 8 HOURS PER DAY AND 5 DAYS PER WEEK. THIS TIME FRAME WAS BASED UPON THE TIME REQUIREMENTS FOR THE FOLLOWING TESTS:

PRELIMINARY INSPECTION 4 HOURS

PERFORMANCE TEST

MACHINE SPECIMENS (6 HOURS)

HEAT TREAT SPECIMENS (8 HOURS)

SET UP AND RUN

ACTUAL TEST (6 MAN HOURS)

20 HOURS

SOUND TEST 16 HOURS

SERVICE TEST 150 HOURS

MAINTENANCE DURING SERVICE TEST 12 HOURS

PERFORMANCE TEST (REPEATED) 20 HOURS

DISASSEMBLY AND REASSEMBLY 8 HOURS

REPORT (12 HOURS)

UNDER THE CIRCUMSTANCES, IT COULD BE EXPECTED THAT A DELAY OF AT LEAST 30 CALENDAR DAYS IN THE PROCUREMENT PROCESS WOULD BE ENCOUNTERED.

ASPR SEC. 1-1103 (1974 ED.) SPECIFICALLY ALLOWS THE USE OF A QPL WHEN:

"(I) THE TIME REQUIRED TO CONDUCT ONE OR MORE OF THE EXAMINATIONS AND TESTS TO DETERMINE COMPLIANCE WITH ALL THE TECHNICAL REQUIREMENTS OF THE SPECIFICATION WILL EXCEED 30 DAYS (720 HOURS). (USE OF THIS JUSTIFICATION SHOULD ADVANCE PRODUCT ACCEPTANCE BY AT LEAST 30 DAYS (720 HOURS).)

THE FACTS OF RECORD SHOW THAT THE CONTRACTING OFFICER COMPLIED WITH THE CRITERIA FOR USE OF A QPL UNDER THE ABOVE-CITED REGULATION. AS A RESULT, WE ARE UNABLE TO CONCLUDE THAT THE RECORD SUBSTANTIATES BPI'S ASSERTION THAT THERE WAS A MISUSE OF THE QPL.

AS CONCERNS THE INCLUSION OF THE SERVICE TEST REQUIREMENT, OUR OFFICE HAS HELD THAT THE DETERMINATION OF THE GOVERNMENT'S REQUIREMENTS AND THE DRAFTING OF THE SPECIFICATION TO MEET THOSE REQUIREMENTS ARE RESPONSIBILITIES VESTED IN THE PROCUREMENT ACTIVITY. WE WILL NOT QUESTION ITS ACTIONS IN THESE AREAS UNLESS IT IS CLEARLY SHOWN THAT THE ACTIVITY ABUSED ITS ADMINISTRATIVE DISCRETION. MATTER OF EAST BAY AUTO SUPPLY, INC., ET AL., B-180434, APRIL 12, 1974, 53 COMP. GEN.

, AND CASES CITED THEREIN. MOREOVER, IN THE INSTANT PROCUREMENT, WHAT THE GOVERNMENT IS INTERESTED IN IS QUALITY, SUITABILITY, MECHANICAL COMPATIBILITY, SOUNDNESS AND GENERAL WORKMANSHIP. WE FIND NO BASIS TO QUESTION THE EVALUATION OF THESE CHARACTERISTICS THROUGH THE USE OF A SERVICE TEST.

WE ARE CONCERNED, HOWEVER, WITH THE FINAL CONTENTION RAISED BY BPI REGARDING THIS SOLICITATION. OUR OFFICE REQUESTED COMMENTS FROM BOTH GSA AND ARO REGARDING THE EXISTENCE, AVAILABILITY, AND COMMON KNOWLEDGE OF THE "STANDARD PRACTICES OF MANUFACTURERS PRODUCING TOOLS OF THE TYPES REQUIRED IN THE SPECIFICATION." HOWEVER, NO COMMENTS WERE OFFERED IN RESPONSE TO OUR REQUESTS.

IT IS A BASIC TENET OF COMPETITIVE PROCUREMENTS THAT THE TERMS OF THE INVITATION MUST BE EXPRESSED CLEARLY, PRECISELY, AND UNAMBIGUOUSLY SO ALL PROSPECTIVE BIDDERS WILL KNOW WHAT IS REQUIRED OF THE PRODUCT BEING OFFERED. AFTER A REVIEW OF THE RECORD, OUR OFFICE IS OF THE OPINION THAT THE USE OF THE PHRASES "STANDARD PRACTICES OF MANUFACTURERS PRODUCING TOOLS OF THE TYPES REQUIRED IN THE SPECIFICATION," IN PARAGRAPH 3.3 AND "RUGGED CONSTRUCTION," "GENERAL SERVICE CONDITIONS," "SUFFICIENT HARDNESS," "LIMITS ESTABLISHED BY GOOD COMMERCIAL PRACTICE," AND "RELIABLE AND EFFECTIVE" IN PARAGRAPH 3.9 FAIL TO PROVIDE BIDDERS WITH A SUFFICIENTLY DEFINITE SPECIFICATION TO PERMIT INTELLIGENT BIDDING. HAVE BEEN UNABLE TO DISCERN THE MEANING OF THE ABOVE PHRASES AS APPLIED TO FIRMS COMPETING ON THIS AND SIMILAR PROCUREMENTS. WHAT CONSTITUTES "STANDARD PRACTICES" OR ANY OTHER OF THE ABOVE GENERAL PHRASES IS SUBJECT TO VARYING DEGREES OF INTERPRETATION AS TO THE GOVERNMENT'S ACTUAL NEEDS; THAT IS, WHETHER A SUPERIOR PRODUCT AT A HIGH COST IS DESIRED OR WHETHER AN ADEQUATE PRODUCT OF ACCEPTABLE QUALITY WOULD BE ACCEPTABLE AT A LESSER COST. SEE MATTER OF COMMUNICATION CORPS, INC., B-179994, APRIL 3, 1974.

THE SPECIFICATIONS CONTAINED IN THE INSTANT SOLICITATION DID NOT MEET THE ABOVE CRITERIA AND WERE INADEQUATE IN THAT THEY DID NOT ADVISE BIDDERS OF THE ESSENTIAL ACTUAL REQUIREMENTS OF THE GOVERNMENT IN REGARD TO MATERIALS TO BE USED. IN ANY EVENT, WE DO NOT BELIEVE THAT IT IS CONDUCIVE TO SOUND PROCUREMENT PRACTICE TO REQUIRE BIDDERS TO DIVINE THE GOVERNMENT'S ACTUAL NEEDS IN ORDER TO OFFER A PRODUCT AT A REASONABLE COST. B-179994,SUPRA.

SINCE AWARD HAS BEEN MADE AND THE ITEMS DELIVERED, CORRECTIVE ACTION IS NOT POSSIBLE AT THIS DATE AND FOR THAT REASON, NO IMMEDIATE REMEDY IS AVAILABLE TO THE PROTESTER. HOWEVER, WE RECOMMEND THAT CORRECTIVE MEASURES BE TAKEN TO IMPROVE THE SPECIFICATION REQUIREMENTS FOR IMPACT WRENCHES.

SOLICITATION NO. 6PR-W-44995-PM-F

SOLICITATION NO. 6PR-W-44995-PM-F WAS ISSUED ON FEBRUARY 25, 1974, BY GSA FOR A REQUIREMENTS-TYPE CONTRACT FOR NOSE ASSEMBLIES AND RIVET PULLING HEADS FOR SPECIFIED SERIES OF BRAND-NAME INSTALLATION TOOLS. BPI PROTESTED, AMONG OTHER THINGS, AGAINST THE "BID SAMPLE CLAUSE" PRIOR TO BID OPENING, RESULTING IN A SUBSTANTIAL REVISION OF THE CLAUSE ON APRIL 18, 1974, THROUGH AMENDMENT TWO TO THE SOLICITATION. BID OPENING OCCURRED ON MAY 17, 1974.

THE ISSUED OF PROTEST REMAINING ARE THREEFOLD. BPI CONTENDS (1) THAT A SUBJECTIVE EVALUATION OF ITS BID SAMPLES IS IMPROPER, (2) THAT THE REQUIREMENT THAT EACH ITEM BE FUNCTIONALLY AND MECHANICALLY COMPATIBLE (INTERCHANGEABLE) WITH THE SPECIFIED BRAND NAME TOOLS IS UNDULY RESTRICTIVE, AND (3) THAT THE WORD "NEW" IN PARAGRAPH 23 "SHOULD BE EXACTLY DEFINED--NOT IN LEGAL LANGUAGE BUT IN PLAIN BIDDERS TERMS."

HOWEVER, IDENTICAL ISSUES OF THE NATURE OF POINTS (1) AND (2) WERE DECIDED IN B-178656, DECEMBER 26, 1973, WHICH PROTEST WAS ALSO PRESENTED BY BPI. IN THAT DECISION, OUR OFFICE WAS OF THE OPINION THAT SECTION 1- 2.202-4(B) (1964 ED. AMEND. 10) OF FPR CLEARLY PERMITTED SUBJECT EVALUATIONS IN CIRCUMSTANCES SUCH AS THOSE PRESENT IN THE PROCUREMENT OF ITEMS OF THIS SORT. ADDITIONALLY, WE WERE OF THE OPINION THAT THE REQUIREMENT THAT THE NOSE ASSEMBLIES AND ACCESSORIES BE FULLY INTERCHANGEABLE WITH CERTAIN TOOLS "CURRENTLY IN THE DOD SYSTEM" WAS NOT SUBJECT TO QUESTION SINCE THE SOLICITATION ADEQUATELY SET FORTH THE INTERCHANGEABILITY REQUIREMENT, DRAWINGS OF THE REQUIRED ITEM, IF NEEDED, WERE READILY AVAILABLE FROM GSA, AND THIS REQUIREMENT WAS NECESSARY TO MEET THE LEGITIMATE NEEDS OF THE GOVERNMENT. WE CAN SEE NO BASIS OR RATIONAL JUSTIFICATION TO DISTINGUISH OUR HOLDING IN B 178656, SUPRA, FROM THE ISSUES PRESENTLY BEFORE US.

AS CONCERNS ISSUE NUMBER (3), WE DO NOT UNDERSTAND HOW THE TERM "NEW" CAN BE CONFUSING. "NEW" MEANS AN ARTICLE THAT IS NEITHER USED, REBUILT FROM USED PARTS IN WHOLE OR IN PART, NOR SECONDHAND. THEREFORE, FURTHER DEFINITION OF THE TERM AS IT APPEARS IN THE SOLICITATION DOES NOT APPEAR TO BE NECESSARY.

ACCORDINGLY, THIS PORTION OF THE PROTEST IS DENIED.