B-182650, MAR 5, 1975

B-182650: Mar 5, 1975

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POST-AWARD ALLEGATION BY PROTESTER THAT REQUIREMENT FOR ONLY ONE PREPRODUCTION SAMPLE WAS INADEQUATE AND THAT USER ACTIVITY IS NOT CAPABLE OF MAKING EXPERT DETERMINATION REGARDING QUALITY AND ACCEPTABILITY OF SUPPLIES BEING PROCURED IS DISMISSED AS UNTIMELY FILED. IS WITHOUT MERIT WHEN RECORD DOES NOT SHOW THAT THE CONTRACTING OFFICER AWARDED THE CONTRACT TO THE LOW BIDDER WITH THE INTENT TO MODIFY THE SPECIFICATION. 3. ALLEGATION THAT PROCURING ACTIVITY FAILED TO ADEQUATELY INVESTIGATE LOW BIDDER'S PREVIOUS EXPERIENCE AND FINANCIAL RESOURCES WILL NOT BE CONSIDERED SINCE GAO HAS DISCONTINUED PRACTICE OF REVIEWING BID PROTESTS OF CONTRACTING OFFICER'S RESPONSIBILITY DETERMINATIONS EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD.

B-182650, MAR 5, 1975

1. POST-AWARD ALLEGATION BY PROTESTER THAT REQUIREMENT FOR ONLY ONE PREPRODUCTION SAMPLE WAS INADEQUATE AND THAT USER ACTIVITY IS NOT CAPABLE OF MAKING EXPERT DETERMINATION REGARDING QUALITY AND ACCEPTABILITY OF SUPPLIES BEING PROCURED IS DISMISSED AS UNTIMELY FILED, SINCE IFB CLEARLY STATED QUANTITY OF PREPRODUCTION SAMPLES REQUIRED AND IDENTITY OF TESTING LABORATORY. 2. PROTESTER'S CONTENTION THAT LOW BIDDER RECEIVED PREFERENTIAL TREATMENT BECAUSE, AFTER AWARD, CONTRACTING OFFICER EXTENDED TIME FOR SUBMISSION OF PREPRODUCTION SAMPLE, IS WITHOUT MERIT WHEN RECORD DOES NOT SHOW THAT THE CONTRACTING OFFICER AWARDED THE CONTRACT TO THE LOW BIDDER WITH THE INTENT TO MODIFY THE SPECIFICATION. 3. ALLEGATION THAT PROCURING ACTIVITY FAILED TO ADEQUATELY INVESTIGATE LOW BIDDER'S PREVIOUS EXPERIENCE AND FINANCIAL RESOURCES WILL NOT BE CONSIDERED SINCE GAO HAS DISCONTINUED PRACTICE OF REVIEWING BID PROTESTS OF CONTRACTING OFFICER'S RESPONSIBILITY DETERMINATIONS EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD.

E.R. HITCHCOCK & ASSOCIATES:

ON AUGUST 19, 1974, INVITATION FOR BIDS (IFB) NO. 62-M-APHIS-75, WAS ISSUED BY THE ANIMAL AND PLANT HEALTH INSPECTION SERVICE (APHIS), DEPARTMENT OF AGRICULTURE, SOLICITING BIDS FOR THERMAL SHIPPING CONTAINERS. IN RESPONSE TO THE SUBJECT IFB, FOUR BIDS WERE RECEIVED, OF WHICH THE LOW BID WAS THAT OF INDUSCO INDUSTRIES, INC. (INDUSCO) IN THE AMOUNT OF $5.29 PER UNIT, AND THE NEXT LOW BID IN THE AMOUNT OF $7.76 PER UNIT WAS THAT OF THE FOSS COMPANY. THE RECORD INDICATES THAT INDUSCO, AS REQUESTED, CONFIRMED ITS BID PRICE OF $5.29 PER UNIT AND ON THE BASIS OF A SUBSEQUENT AFFIRMATIVE RESPONSIBILITY DETERMINATION BY THE CONTRACTING OFFICER, THE INSTANT CONTRACT WAS AWARDED TO THAT FIRM. THEREAFTER, E.R. HITCHCOCK AND ASSOCIATES (HITCHCOCK), THE THIRD LOW BIDDER, PROTESTED TO THIS OFFICE AGAINST THE AWARD.

HITCHCOCK FIRST CONTENDS THAT THE GOVERNMENT MAY RECEIVE SUPPLIES WHICH ARE NOT OF THE REQUISITE QUALITY BECAUSE THE PROCURING ACTIVITY HAS WAIVED FOR INDUSCO CERTAIN INSPECTION AND CERTIFICATION PROCEDURES CONTAINED IN THE APPLICABLE SPECIFICATIONS.

IT IS REPORTED BY APHIS, HOWEVER, THAT NEITHER THE SUPPLIER'S RESPONSIBILITY TO PERFORM THE INSPECTION, TESTING OR CERTIFICATION REQUIREMENTS OF THE "QUALITY ASSURANCE PROVISIONS" OF THE SPECIFICATION, NOR THE REQUIREMENT THAT RECORDS OF SUCH PERFORMANCE BE KEPT AND AVAILABLE TO THE GOVERNMENT, HAS BEEN WAIVED. IN FACT, WE ARE ADVISED, THE GOVERNMENT FULLY INTENDS TO EXAMINE INDUSCO'S REQUIRED INSPECTION, TESTING, AND/OR CERTIFICATION RECORDS FOR CONTRACT COMPLIANCE PRIOR TO ACCEPTING DELIVERY OF THE CONTAINERS.

THE PROTESTER HAS NOT CONVINCINGLY DEMONSTRATED THAT THE ACTIVITY HAS WAIVED OR RELAXED THE SOLICITATION'S QUALITY CONTROL REQUIREMENTS. ALSO NOTE THAT THERE IS NO INDICATION IN INDUSCO'S BID THAT THE UNIT TO BE FURNISHED THE GOVERNMENT WOULD DEVIATE FROM THE REQUIREMENTS IN THE IFB.

IN ADDITION, THE SOLICITATION PROVIDED:

"THE SUCCESSFUL LOW OFFEROR MAY BE REQUIRED TO SUBMIT A PREPRODUCTION SAMPLE WITHIN 30 CALENDAR DAYS AFTER RECEIPT OF NOTICE OF AWARD *** TO THE NATIONAL ANIMAL DISEASE LABORATORY *** FOR EXAMINATION AND APPROVAL PRIOR TO PRODUCING THE ENTIRE QUANTITY.

"THE SAMPLE WILL BE EXAMINED FOR CONFORMITY AS TO THE DIMENSIONS AS SPECIFIED IN THE FEDERAL SPECIFICATION AND ALSO AS TO THE TEMPERATURE HOLDING REQUIREMENTS."

THE PROTESTER ARGUES THAT THE NATIONAL ANIMAL DISEASE LABORATORY IS NOT EQUIPPED OR STAFFED WITH THE NECESSARY PERSONNEL AND FACILITIES TO MAKE AN EXPERT DETERMINATION AS TO WHETHER OR NOT THE DELIVERED CONTAINERS ARE IN ACCORDANCE WITH THE SPECIFICATIONS, AND THAT A SINGLE PREPRODUCTION SAMPLE IS INADEQUATE FOR EVALUATING THE QUALITY OF THE CONTRACTOR'S PRODUCT.

THE PROVISION OF THE SOLICITATION QUOTED ABOVE CLEARLY PROVIDED THAT ONE PREPRODUCTION SAMPLE WOULD BE TESTED BY THE NATIONAL ANIMAL DISEASE LABORATORY. THE BASIS FOR HITCHCOCK'S PROTEST AS TO THE ALLEGED INADEQUACY OF THE SAMPLE SIZE AND ALLEGED INABILITY OF THE LABORATORY TO CONDUCT THE TESTS WERE THEREFORE EVIDENT WHEN THE IFB WAS ISSUED. UNDER OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 C.F.R. SEC. 20.2(A) (1974 ED.), HITCHCOCK WAS OBLIGATED TO FILE ITS PROTEST CONCERNING THESE ALLEGED DEFICIENCIES PRIOR TO BID OPENING. SINCE THIS ASPECT OF HITCHCOCK'S POST-AWARD PROTEST FAILS TO MEET THIS REQUIREMENT, IT IS UNTIMELY AND WE WILL NOT CONSIDER IT ON THE MERITS.

HITCHCOCK NEXT CONTENDS THAT APHIS HAS NOT ENFORCED THE SOLICITATION'S REQUIREMENT THAT THE SUCCESSFUL BIDDER SUBMIT A PREPRODUCTION SAMPLE WITHIN 30 CALENDAR DAYS AFTER RECEIPT OF NOTICE OF AWARD. THE PROTESTER ASSERTS THAT BY NOT ENFORCING THE TIME LIMIT, THE PROCURING ACTIVITY IS IN EFFECT GIVING INDUSCO PREFERENTIAL TREATMENT NOT AFFORDED THE OTHER BIDDERS. IT IS APHIS'S POSITION THAT THE EXTENSION OF TIME GRANTED THE CONTRACTOR FOR SUBMISSION OF THE REQUIRED SAMPLE WAS NOT INDICATIVE OF PREFERENTIAL TREATMENT, BUT, RATHER THE RESULT OF SUBSEQUENT MODIFICATION OF THE CONTRACT. THE RECORD INDICATES THAT APPROXIMATELY 2 WEEKS AFTER AWARD, INDUSCO INFORMED THE CONTRACTING OFFICER THAT, BASED ON ENGINEERING AND QUALITY ASSURANCE TESTS, IT BELIEVED AN ERROR EXISTED IN THE DIMENSIONS OF THE CONTAINER REQUIRED BY THE SOLICITATION'S SPECIFICATIONS.

THE TECHNICAL PERSONNEL OF THE PROCURING ACTIVITY CONCURRED WITH INDUSCO'S FINDING, AND THE CONTRACTING OFFICER ISSUED MODIFICATION NO. 1 WHICH CORRECTED THE DIMENSIONAL ERROR. THE MODIFICATION EXTENDED THE TIME FOR THE SUBMISSION OF THE REQUIRED PREPRODUCTION SAMPLE TO WITHIN 30 CALENDAR DAYS AFTER THE CONTRACTOR'S RECEIPT OF THE MODIFICATION. WE DO NOT BELIEVE THE PROTESTER HAS SHOWN ANY PREFERENTIAL TREATMENT OF INDUSCO IN THIS REGARD.

HITCHCOCK NEXT CONTENDS THAT IT WAS INAPPROPRIATE FOR THE CONTRACTING OFFICER TO MAKE TECHNICAL CHANGES IN THE SPECIFICATIONS AFTER AWARD, AND THAT IF THE GOVERNMENT FELT THERE WAS A MISTAKE IN THE SPECIFICATIONS, THE PROCUREMENT SHOULD HAVE BEEN CANCELED AND RE ADVERTISED.

THIS CASE ILLUSTRATES THAT SUBSEQUENT TO THE AWARD OF A GOVERNMENT CONTRACT CHANGES OR MODIFICATIONS IN THE TERMS OF THE AGREEMENT MAY BE REQUIRED. THAT IS NOT TO SAY THAT THE CONTRACTING PARTIES MAY EMPLOY A CHANGE IN THE TERMS OF THE CONTRACT SO AS TO INTERFERE WITH OR DEFEAT THE PURPOSE OF COMPETITIVE PROCUREMENT. THE COMPETITION TO BE ACHIEVED IN THE AWARD OF GOVERNMENT CONTRACTS MUST BE HELD TO THE WORK ACTUALLY TO BE PERFORMED. THUS, A CONTRACTING OFFICER MAY NOT AWARD A CONTRACT COMPETED FOR UNDER A GIVEN SPECIFICATION WITH THE INTENTION TO CHANGE TO A DIFFERENT SPECIFICATION AFTER AWARD. MATTER OF A & J MANUFACTURING COMPANY, 53 COMP. GEN. 838 (1974). THERE IS NO EVIDENCE OF RECORD THAT THE CONTRACT WAS AWARDED TO INDUSCO WITH THE INTENT OF CHANGING THE SPECIFICATIONS SHORTLY THEREAFTER. WE FIND NO BASIS TO CONCLUDE, THEREFORE, THAT THE CONTRACT MODIFICATION WAS IMPROPER OR THAT THE CONTRACT SHOULD HAVE BEEN CANCELED AND THE REQUIREMENT RESOLICITED.

MOREOVER, THE APPROPRIATENESS OF MODIFICATIONS TO A CONTRACT, PERTAINS TO CONTRACT ADMINISTRATION WHICH IS PRIMARILY A FUNCTION AND RESPONSIBILITY OF THE CONTRACTING AGENCY. MATTER OF KELLY SERVICES, B 182071, OCTOBER 8, 1974.

FINALLY, HITCHCOCK QUESTIONS THE PROPRIETY OF THE CONTRACTING OFFICER'S DETERMINATION THAT INDUSCO HAD THE ABILITY TO PERFORM THE INSTANT CONTRACT AND TO DELIVER CONTAINERS WHICH COMPLETELY SATISFY THE SOLICITATION'S REQUIREMENTS. PARTICULARLY, THE PROTESTER CONTENDS THAT THE CONTRACTING OFFICER DID NOT MAKE THE "NORMAL INQUIRIES" RELEVANT TO A RESPONSIBILITY DETERMINATION, SUCH AS WHETHER THE LOW BIDDER HAD PREVIOUS EXPERIENCE IN THE MANUFACTURE OF THERMAL CONTAINERS, OR ADEQUATE FINANCIAL ABILITY. THIS REGARD, OUR OFFICE WILL NOT REVIEW A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD. MATTER OF KELLY SERVICES, SUPRA. SINCE NO FRAUD HAS BEEN ALLEGED OR DEMONSTRATED, WE MUST DECLINE TO FURTHER CONSIDER THE MATTER.

IN VIEW OF THE FOREGOING, THERE IS NO LEGAL BASIS FOR OUR OFFICE TO QUESTION THE AWARD TO INDUSCO AND THEREFORE, HITCHCOCK'S PROTEST IS DENIED.